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:

1. 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).

1. 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.

1. 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

1. 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.

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

1. 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.

1. 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 does not relate to circumstances which would justify bail, per se. The material does have relevance, of course, to the appeal’s prospects of success. However, as I have said, I am not in a position to form any definitive view about the strength of those prospects.

1. The other difficulty faced by this application is that under s 9E of the Bail Act, bail pending an appeal can only be granted if the Court is satisfied that special or exceptional circumstances exist favouring the grant of bail. A class of case in which special or exceptional circumstances is not infrequently found is where a short sentence has been imposed and there is a prospect that the whole, or an unacceptably large part, of the sentence will have been served before the appeal can be heard.

1. However, that is not this case. Mr Incandela has been sentenced to a term of three years’ imprisonment and the appeal, as I understand it, will be heard within a year.

1. The circumstances that Mr Incandela pressed upon me today are, in short, the difficulty that he faces preparing an appeal in which he is unrepresented while he is incarcerated. I readily accept that this is a difficult task, given the resources available to him in the Alexander Maconochie Centre, the restrictions on his access to research material and restrictions on his communication with those who might help him. However, while those problems are real, they are far from being exceptional, being something which any incarcerated person faces if seeking to prepare an appeal without legal representation.

1. For those reasons, there are two statutory barriers to a grant of bail and it is not appropriate for me to go further and consider whether, absent those barriers, I would have been inclined to grant bail. Bail will have to be refused.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett

Associate:

Date: