Incandela v The Queen (No 2) - [2022] ACTCA 60

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Incandela v The Queen (No 2)
Citation:	[2022] ACTCA 60
Hearing Date:	13 October 2022
DecisionDate:	13 October 2022
Before:	Kennett J
Decision:	Bail is refused
Catchwords:	APPEAL – APPLICATION – where applicant seeks bail pending Court of Appeal hearing – where repeat application for bail – whether difficulty that appellant faces preparing an appeal in which he is unrepresented while he is incarcerated constitutes special or exceptional circumstances – bail refused
Legislation Cited:	Bail Act 1992 (ACT) ss 9E, 20C Crimes Act 1900 (ACT) s 54
Cases Cited:	Incandela v The Queen [2022] ACTCA 52
Parties:	Salvatore Incandela (Appellant) The Queen (Respondent)
Representation:	Counsel Self-represented (Appellant) K McCann (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: McCallum CJ Date of Decision: 29 March 2022 Case Title: R v Incandela Court File Number: SCC 64 of 2021

KENNETT J:

This is an application for bail pending the hearing of an appeal by Salvatore Incandela. Mr Incandela was found guilty by a jury on 29 March 2022 of the offence of sexual intercourse without consent, contrary to section 54(1) of the Crimes Act 1900 (ACT).

On 22 June he filed an appeal against his conviction and as I have noted, he seeks bail pending the hearing of that appeal. This is the second application he has made. The first application for bail was refused on 7 October 2022 by Elkaim J: [2022] ACTCA 52.

I have proceeded on the basis that Mr Incandela’s appeal from the verdict entered by the jury has some prospect of success. The prosecution does not suggest that I should regard it as lacking such prospects and in my view that is appropriate

It is not possible in a short hearing of this kind to form any clear view as to how strong the appeal is, but there is nothing before me to indicate that it is so strong that its very strength would constitute an exceptional circumstance.

In these circumstances, Mr Incandela’s bail application faces two problems.

One is that it is a repeat application within the meaning of s 20C of the Bail Act 1992 (ACT) (Bail Act), which means that I can only consider the present application if there has been a change in circumstances since Elkaim J’s decision of a few days ago, or if there is fresh evidence or information that was unavailable on the last occasion. I am not aware of any change in circumstance.

There is some material before me which was not before Elkaim J on the last occasion in the form of a set of propositions prepared, I understand, for Mr Incandela pointing to issues which will be relevant on the hearing of his appeal. I do not regard this information as something of relevance to the granting of bail within the meaning of s 20C, because it…

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

Case: [2022] ACTCA 60
Decision Date: 13 October 2022

CaseChat Overview and Summary

The applicant, Incandela, sought bail pending the determination of his appeal to the Court of Appeal. This was a repeat application for bail.

The central legal issue before Kennett J was whether the difficulties faced by the applicant in preparing his appeal, while unrepresented and incarcerated, constituted special or exceptional circumstances warranting the grant of bail.

Kennett J reasoned that while the applicant's unrepresented status and incarceration presented challenges, these were not of themselves sufficient to establish special or exceptional circumstances. The court considered the nature of the appeal and the applicant's ability to prepare it from custody. Ultimately, Kennett J concluded that the threshold for granting bail in these circumstances had not been met.

Bail was refused.

Orders

Orders of the court

Bail is refused

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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