R v Mcconnell

[R v McCONNELL]
[2000] QCA 101

COURT OF APPEAL

DAVIES JA
McPHERSON JA
MOYNIHAN J

CA No 14 of 2000

THE QUEEN

IAN HAMILTON McCONNELL Applicant

BRISBANE

..DATE 29/03/2000

JUDGMENT

DAVIES JA: As I indicated during the course of argument for myself I find it impossible to say on what has been said so far and what has been put before the Court indirectly by way of evidence that there is an arguable basis for an appeal.

The main complaint which has been made has been about the incompetence of counsel below. A number of specific examples were given of a failure to cross-examine on specific issues. It is uncertain, at least to me, whether in fact the failure to cross-examine on these issues was on instructions, was if not on instructions a sound tactical decision or whether as submitted by Mr Murray an error and if an error whether it demonstrated incompetence.

It is impossible to cite any of those things in my view without having proper evidence before this Court and unless this Court can be satisfied as to that matter it really ought not, in my view, to be granting an extension of time.
I would therefore adjourn this application and I would order that the applicant file all affidavits which he proposes to file to support his application for an extension of time within 14 days; that the respondent file any affidavits in reply within a further seven days; that if any party wishes to cross-examine any of the deponents to affidavits they should give notice to the other party and to the Registry at least 28 days before the hearing date of the adjourned hearing of this application.

Now, you understand, Mr Murray, from what I've proposed that I would have in mind that you would have filed all affidavits - that is, any evidence which you intend to adduce to support it, waiving any necessary privilege for that purpose. All right.

They are the orders I would propose.

McPHERSON JA: I agree.

MOYNIHAN J: Yes, I agree.

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CaseChat Overview and Summary

The case of R v McConnell involves the applicant, Ian Hamilton McConnell, seeking an extension of time for the appeal. The appeal is against his conviction and sentence imposed by the trial judge. The Court of Appeal, comprising Davies JA, McPherson JA, and Moynihan J, heard the application. The primary issue before the court was whether McConnell's application for an extension of time for the appeal should be granted, considering the alleged incompetence of his counsel during the trial and the necessity of additional evidence to substantiate these claims.

The court needed to determine if McConnell had an arguable basis for the appeal and whether the alleged failures of his counsel constituted a sound tactical decision, an error, or incompetence. The court emphasised the necessity of having proper evidence before it to make an informed decision. It was crucial for the court to ascertain whether the failures to cross-examine were due to instructions, a tactical decision, or an error by the counsel. Without this evidence, the court was hesitant to grant the extension of time.

Davies JA, McPherson JA, and Moynihan J concluded that it was impossible to decide the application based on the current evidence and submissions. They agreed to adjourn the application and ordered McConnell to file all affidavits supporting his application within 14 days, with the respondent having a further seven days to file any rebuttal affidavits. Additionally, any party wishing to cross-examine deponents must provide notice to the other party and the Registry at least 28 days before the adjourned hearing. This decision underscores the necessity for comprehensive evidence to substantiate claims of incompetence in legal representation and the importance of procedural fairness in the judicial process.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established