R v McConnell[2000] QCA 463

SUPREME COURT OF QUEENSLAND

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

2. 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.

3. 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 part of defence lawyers will be expected.

4. In the present case, substantially for the reasons given by Thomas JA, it is in my opinion evident that the application should be refused.

5. McPHERSON JA:  This application to extend the time for appealing against conviction must be refused for the reasons given by Thomas JA.

6. THOMAS JA:  This is an application for extension of time within which to appeal against a conviction.  The applicant was convicted on 24 July 1998 on two counts of indecent dealing.  He did not seek to appeal until 21 January 2000.

7. The ground on which he seeks to rely is the alleged incompetence of his solicitor and counsel which he claims has resulted in a miscarriage of justice.

8. In accordance with the procedure contemplated by R v Paddon [1999] 2 Qd R 387 a number of affidavits were filed on behalf of the applicant and also on behalf of the Crown.  The latter affidavits substantially contradict the allegations of the applicant in relation to the manner in which the trial was run including the tactical considerations that were thought appropriate, and also on the question whether the applicant was properly advised in relation to the possibility of appeal and the time limit applicable.  The principal deponents were cross-examined in this court.

9. When the applicant was convicted by the jury the trial judge adjourned sentencing for three weeks during which the applicant was kept in custody. The sentences that were then imposed included an order for immediate release and for probation.    Although there is a conflict of evidence as to whether the applicant was advised of appeal rights on the day of his conviction, it is common ground that he spoke with his solicitor and barrister on the day of his sentence and that the subject of appeal was mentioned.  The applicant claims that they told him that the prospect of appeal was hopeless, that "that's the way it goes" and "you can't do anything about it".  The evidence of the solicitor and the barrister was that they told him they did not think he had strong grounds for appeal, that it would be costly, and that the applicant gave no instructions to proceed with any appeal.  It is worth noting that it is not even now suggested that any ground of appeal exists other than the contentious ground of flagrant incompetence of his counsel and solicitor.

10. The applicant claims that he was never informed by his legal representatives that there was a time limit of 28 days within which to appeal. It should be noted that the time allowed by s 671 of the Code for appeal is one calendar month, but nothing turns on this. He says that he was unfamiliar with such a requirement as the last time he had appeared in a criminal court was more than 40 years previously. He states that he mentioned to his probation officer his doubts about whether he should have been convicted and that she advised him to seek legal advice promptly on such a question. He does not say when she gave him such advice. The probation officer has confirmed that she advised him to take up any questions regarding the possibility of an appeal with his solicitor, but her evidence suggests that such advice was given to him quite early in the piece, probably 20 August 1998 which is only three days after the sentence. She also referred to subsequent statements by the applicant expressing anger at the verdict and his inability to contest it and his belief that he was not able to appeal against his conviction. The applicant's claim that as a result of his probation officer's advice to seek legal advice promptly he contacted a new adviser, a barrister (Mr Murray) in November 1999 (which is of course of 15 months after the sentence and nearly 16 months after the conviction) cannot be accepted. The sequence of events leading up to the applicant's changing of his legal advisers will be mentioned in due course. At this point it is noted that the applicant claims that the first occasion upon which he realised he was out of time to appeal against his conviction (or sentence for that matter) was 29 November 1999 when he had a conference with Mr Murray. He claims that "previous to that, I was unaware of time limitations for an appeal".

11. There is some inconsistency in the claims made by the applicant. In his second affidavit he claims that a few weeks after his release from custody he discussed the question of appeal with his former solicitor and was advised "I wouldn't know how to go about that – you're out of time. You only have 21 days". The applicant gave inconsistent explanations to the court concerning his interpretation of this statement. His claim that he never realised that he was out of time to appeal until he was told so by his new advisers 15 months after the sentence is not credible.

12. The applicant's evidence is in many respects contradicted by evidence provided by the Crown. The affidavit of his former solicitor is to the effect that immediately upon his conviction the applicant was advised that if he was going to appeal he would have to do so within 28 days, and that he should make arrangements to speak with the community officer and the legal aid solicitor when he was at the corrections centre. He was again advised after his sentence that if he was going to appeal a conviction he only had a week left to do so. His former solicitor deposes to at least four occasions when he mentioned the 28 day time limit, namely, in the court room immediately after the jury's decision, later the same day at the watchhouse, on the morning of 17 August 1998 before sentence was handed down, and again after the sentence was handed down.

13. The sequence in which events unfolded after his conviction makes it difficult to credit the extreme dissatisfaction which he now claims he felt with the conduct of his legal representatives at the time of trial. Soon after the sentencing on the present charges he faced a stalking charge which had been commenced against him before the present trial. He retained his former solicitors who successfully defended him upon it. Some considerable time later, in August 1999, criminal compensation proceedings were brought against him by the complainant. Again he retained the services of his former solicitors who briefed counsel who appeared on his behalf. In due course an order for payment of compensation of $19,598 was made on 14 October 1999. Negotiations ensued, and some time later an enforcement warrant was registered on the applicant's land. It was at about this time that he changed his solicitors, although precise dates are lacking. The first open allegation of incompetence made against his former solicitors and barrister appeared in the Notice of Appeal which was filed in court on 21 January 2000. When account is taken of the frequent contact that was maintained between the applicant and his solicitors without any complaint of former incompetence leading to his conviction, his claim of gross dissatisfaction at the time of trial is not credible.

14. Having regard to the number of areas in which the statements of the applicant are unacceptable it is necessary to say that the evidence of his former solicitor and barrister is to be preferred where it conflicts with his evidence.

15. The allegation of incompetence at trial did not surface until some time after the making of the criminal compensation order. It is not necessary to make positive findings as to the applicant's motivation or state of mind at relevant times. Quite simply he has not provided a reasonable or satisfactory explanation for a delay of approximately 18 months.

16. That would not necessarily be fatal to the application if it could be seen that justice had miscarried, as for example if there are sufficient grounds for thinking that his representatives displayed gross incompetence in the conduct of his trial. There are numerous allegations in the applicant's affidavits designed to support this ground. In addition, there was substantial cross-examination of his former legal representatives by his present barrister (Mr Murray) designed to lend support to this ground.

17. Most of the allegations are of failure to explore inconsistencies between statements given by the complainant or other Crown witnesses to the police and statements in the complainant's evidence at trial. These include matters such as whether the applicant had placed his hands beneath her clothing when fondling her breasts or whether he had "rubbed on top of her clothes". Another is that counsel failed to pursue the inconsistency between her allegation that the applicant during one of the assaults had used the words "you're a good girl, aren't you" whereas at trial she had said that the words were "there's a good girl". Another was whether the applicant was wearing a finger guard at the time. Another concerned the configuration and sequence in which the applicant had allegedly placed his arm over or under her shoulder before putting both arms around her waist and rubbing her breasts followed by undoing her shorts, placing it inside her pants and rubbing her vagina. Other matters were raised concerning the complainant but in my view the variations in detail are unremarkable. The failure to pursue them is sufficiently explained as a tactical decision to avoid undue confrontation which might alienate the jury. Counsel perceived her as a good witness who gained in confidence and stature and who showed an increasing rapport with the jury as cross-examination proceeded.

18. Another complaint is that counsel failed at trial to bring out the fact that in the complainant's statement she had alleged that the applicant kept saying "you like it, don't you" and "we wouldn't want anybody to know because people might get hurt", when the complainant omitted to give such statements against him in evidence-in-chief. It would have been extraordinary in my view had counsel risked adducing these additional damaging statements for the dubious benefit of exposing an inconsistency or omission in the complainant's evidence-in-chief.

19. It was further submitted on behalf of the applicant that his counsel at trial failed to cross-examine so as to reveal inconsistencies in the description of events in the recent complaint evidence. The evidence of recent complaint would seem to have been quite strong in that it involved a timely complaint by an 11 year old girl to her sister, her mother and her father. The complaint was made very soon after the second of two alleged indecent dealings, the first having occurred one or two days earlier and the second being more serious than the first. It is now submitted that trial counsel should have drawn attention to part of the statement of her sister Joanna, whose recollection of the complaint was that she was told that it happened in a toilet. This was a matter of which her sister stated that she could not be certain. This point was not a particularly promising one as the jury might well think that the sister's uncertainty as to the secondary details of a conversation that occurred 10 years before was understandable, and that she might well be mistaken. It is difficult to disagree with trial counsel's explanation that it would have been tactically unwise to focus more attention than already existed on this area of the evidence, particularly when there was a conformity between the complaint to all three persons of the inappropriate touching. The credibility of the recent complaint evidence could only have been further enhanced by drawing further attention to the evidence of a prompt confrontation between the complainant's father and the appellant in which he told the appellant "If you touch Mandy again I'll cut your knackers out".

20. Counsel for the appellant further submitted as a particular of alleged incompetence of trial counsel that he should have put to the father that the appellant had denied that he had touched Mandy. However trial counsel explained that if he had done so the Crown proposed to call a further witness, Mr Leach, who would inter alia confirm that such an accusation was made. Apparently Mr Leach would not be able to say whether there was a denial or not, but he could certainly confirm the accusation. In the context of all this, it is difficult to criticise trial counsel for thinking that discretion was preferable to valour in endeavouring to minimise the harm of this confrontation evidence.  This incident tended to give colour and enhancement to the recent complaint evidence, and whilst this instance is perhaps the best example put forward by counsel on appeal to support the ground relied on, I cannot say that counsel's failure to put his client's version on this point bespeaks incompetence. 

21. A further complaint was made that counsel failed to deal adequately with "the issue of identification". However quite plainly no such issue was raised. It is true that on the first occasion, the applicant having approached her from behind she did not immediately know who the person was, but her evidence was always to the effect that she saw him walk away from her afterwards and, of course, he was well known to her.

22. Without discussing further the alleged incompetence of counsel in failing to press the complainant further by cross-examining the complainant in relation to the alleged inconsistencies, it is enough to say that counsel's conduct is adequately explained by his tactical approach, explained to the applicant at the time that he would need to treat the complainant with "kid gloves". His failure to pursue the issues of this kind further than he did does not to my mind reveal incompetence, but rather appropriate sensitivity designed to maximise the applicant's chances. There are many legitimate paths open to an advocate. Experience suggests that insistence upon adducing every particular of inconsistency is not necessarily persuasive. The applicant's former counsel explained to this court that his conduct of the defence was based on concentration upon four particular matters where there was some independent basis for being able to say that the complainant was in error. For the sake of example, one of these was the complainant's statement that the boat in which she was playing at the time was almost completed was incorrect because the defence was able to prove that it had only just been started and was nowhere near complete. It is not necessary to recount the others. On the limited material which has been presented to this court I am unable to say that counsel's approach revealed incompetence, let alone the extremely high level of incompetence that must be demonstrated before a verdict should be set aside on such a ground (R v Birks (1990) 19 NSWLR 677, 683; R v G [1997] 1 Qd R 584; R v Paddon [1999] 2 Qd R 387, 397).

23. In my view the foreshadowed case of "gross incompetence" on the part of the legal advisers is not in the least promising.

24. On the ground that the delay has not been satisfactorily explained and the proposed appeal lacks substance I would refuse the application.