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.
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:…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
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.