Incandela v The Queen

Case [2023] ACTCA 41


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Incandela v The Queen

Citation: 

[2023] ACTCA 41

Hearing Date: 

28 February 2023

Decision Date: 

26 October 2023

Before:

Loukas-Karlsson, Baker and Charlesworth JJ

Decision: 

See [114] – [116].

Catchwords: 

CRIMINAL LAW – APPEAL – unreasonable verdict – credibility of witnesses – lack of corroborating evidence – miscarriage of justice – whether photographs of bruising caused unfair prejudice – evidence not obtained by police – whether directions regarding definition of consent were misleading – whether alternative case should have been left to jury – whether there was a failure to capture key points in summing up – appeal dismissed.

Legislation Cited: 

Court Procedures Rules 2006 (ACT), r 5531

Crimes Act 1900 (ACT) ss 54(1), 67

Criminal Code Act1899 (Qld), s 632

Evidence Act 2011 (ACT), s 164, 165

Evidence Act 1995 (Cth), s 164

Evidence Act 1995 (NSW), s 164

Evidence Act 2008 (SA), s 34L(5)

Evidence Act 2001 (Tas), s 164

Evidence Act 2008 (Vic), s 164

Evidence Act 1906 (WA), s 50

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 80

Evidence (Uniform National Legislation) Act 2011 (NT), s 164

Supreme Court Act 1933 (ACT), s 37O

Cases Cited: 

BM v R [2017] NSWCCA 133

Chidiac v R (No 2) [2016] NSWCCA 120

Doney v The Queen [1990] HCA 51; 171 CLR 207

Edwards v The Queen [1993] HCA 63; 178 CLR 193

Ewen v R [2015] NSWCCA 117; 250 A Crim R 544

Garay v The Queen (No 3) [2023] ACTCA 2

Gillard v The Queen [2014] HCA 16; 308 ALR 190

Harper v R [2022] NSWCCA 211

JJB v R [2006] NSWCCA 126; 161 A Crim R 187

Kamali v R [2019] NSWCCA 186

Khamis v R [2018] NSWCCA 131

KLM v Western Australia [2009] WASCA 73

KN v The Queen [2019] ACTCA 37; 14 ACTLR 289

M v The Queen [1994] HCA 63; 181 CLR 487

Marshall v The King [2023] ACTCA 11

Pell v The Queen [2020] HCA 12; 268 CLR 123

R v AX [2005] QCA 422

R v Incandela (No 3) [2022] ACTSC 93

R v Incandela (No 4) [2022] ACTSC 139

R v Meyn (No 3) [2012] NSWSC 1467

R v Zammit [1999] NSWCCA 65; 107 A Crim R 489

Sever v R [2010] NSWCCA 135

TKWJ v The Queen [2002] HCA 46; 212 CLR 124

UQ v The Queen [2019] ACTCA 23; 14 ACTLR 172

Warne v The King [2023] ACTCA 1; 374 FLR 311

Wells v The Queen (No 2) [2010] VSCA 294

Texts Cited

Law Council of Australia, Law Council Policy Statement on Jury Directions, 14 May 2010

Parties: 

Salvatore Incandela ( Appellant)

Director of Public Prosecutions ( Respondent)

Representation: 

Counsel

Self-represented ( Appellant)

B Morrisroe ( Respondent)

Solicitors

Self-represented ( Appellant)

ACT Director of Public Prosecutions ( Respondent)

File Number:

ACTCA 25 of 2022

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:…

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Incandela v The Queen [2023] ACTCA 41
Case
[2023] ACTCA 41
Decision Date

CaseChat Overview and Summary

The appeal concerned a criminal conviction where the appellant, Incandela, was found guilty by a jury. The dispute revolved around the appellant's assertion that the jury's verdict was unreasonable, alleging a miscarriage of justice. The appeal was heard by Loukas-Karlsson, Baker, and Charlesworth JJ in the Court of Appeal.

The Court of Appeal was required to determine several legal issues. These included whether the verdict was unreasonable given the credibility of witnesses and the lack of corroborating evidence, whether photographs of bruising caused unfair prejudice, whether the evidence of bruising, not obtained by police, was admissible, whether directions regarding the definition of consent were misleading, whether an alternative case should have been left to the jury, and whether there was a failure to capture key points in the summing up.

The Court dismissed the appeal, finding no basis for the appellant's arguments. It was held that the jury was entitled to accept the complainant's evidence and reject the appellant's version of events, even in the absence of corroboration. The photographs of bruising were deemed admissible and not unfairly prejudicial, as they were relevant to the complainant's account. The directions on consent were found to be adequate, and the decision not to leave an alternative case to the jury was justified. Furthermore, the summing up was considered to have adequately captured the key issues.

Orders

Orders of the court

See [114] – [116].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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