R v McConnell

[2000] QCA 463

SUPREME COURT OF QUEENSLAND

CITATION:

R v McConnell [2000] QCA 463

PARTIES:

R
v
McCONNELL, Ian Hamilton
(applicant)

FILE NO/S:

CA No 14 of 2000
DC No 162 of 1997

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

14 November 2000

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2000

JUDGES:

Pincus, McPherson and Thomas JJA

Separate reasons for judgment of each member of the Court;  each concurring as to the order made

ORDER:

Application to extend time in which to appeal against conviction refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS – ground that legal representatives at trial flagrantly incompetent – legitimate forensic decisions

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT - extension of time within which to appeal against conviction – where no reasonable or satisfactory explanation for delay – leave refused

Glennon (1992) 173 CLR 592, cited
R v Birks (1990) 19 NSWLR 677, cited
R v G [1997] 1 Qd R 584, cited

R v Paddon [1999] 2 Qd R 387; [1998] QCA 248 cited

COUNSEL:

D J Murray for applicant
L J Clare for respondent

SOLICITORS:

Ryan & Bosscher for applicant
Director of Public Prosecutions (Queensland) for respondent

1. PINCUS JA:  I have read the reasons of Thomas JA.

1. The basic rule is that under our system the accused is entitled to a fair trial or, at least, a trial which is as fair as the court can make it:  Glennon (1992) 173 CLR 592 at 616. The ability of criminal defence advocates no doubt varies widely; the law does not guarantee an accused person representation by the best counsel. These observations are not intended as a reflection on the ability of the counsel who appeared at the trial of this applicant; they have to do with the general question of how great must be the degree of incompetence proved, to warrant setting aside a verdict. A clear mistake made by counsel, although not capable of being, without hyperbole, described as demonstrating an "extremely high level of incompetence" could possibly be of such significance that the verdict cannot stand; for example, counsel might in a complicated case simply have forgotten to call an independent witness, or tender documents, where the evidence not adduced was of such a kind as to throw real doubt on the Crown's case. Similar considerations apply where the error is said to be one of a solicitor, in not taking proper steps to prepare the defence.

1. In these days in which there appears to be difficulty in providing adequate funds for defence of criminal charges, there is a need not to create the impression that only a minimal standard of diligence on the…