Incandela v The Queen (No 3) - [2022] ACTCA 63

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	Incandela v The Queen (No 3)
Citation:	[2022] ACTCA 63
Hearing Date:	14 November 2022
DecisionDate:	15 November 2022
Before:	Mossop J
Decision:	The application for bail and the application for review of bail are dismissed.
Catchwords:	APPEAL – APLICATION – Bail – where applicant seeks bail pending appeal – bail review and repeat bail application filed – consideration of test for stay of sentence – no change in circumstances or fresh evidence or information as required by the Bail Act 1992 (ACT) – bail refused
Legislation Cited:	Bail Act 1992 (ACT), ss 9E, 19, 20C, 43A
Cases Cited:	Chamberlain v The Queen(No 1) (1983) 153 CLR 514 Incandela v The Queen [2022] ACTCA 52 Miles v R [2012] NSWCCA 88 Quzag v The Queen (No 3) [2015] ACTCA 37 R v Giordano (1982) 31 SASR 241 Samani v The Queen [2016] ACTCA 48 The Queen v Quzag [2015] ACTCA 36; 298 FLR 330
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

MOSSOP J:

Introduction

Salvatore Incandela has appealed from his conviction on a charge of sexual intercourse without consent. On 29 March 2022 he was found guilty by a jury. On 10 June 2022 he was sentenced by McCallum CJ to three years’ imprisonment with a two-year non‑parole period. The sentence was backdated to 22 March 2022. He has applied for bail and a review of bail.

Previous applications for bail

Mr Incandela has previously made a number of applications for bail.

On 7 October 2022 Elkaim J refused his application for bail. His Honour recorded that Mr Incandela had not been able to show that there were exceptional circumstances. Elkaim J agreed that Mr Incandela would face difficulty in preparing his appeal from prison. However, he did not accept that this amounted to exceptional circumstances so as to warrant a grant of bail: Incandela v The Queen [2022] ACTCA 52.

Mr Incandela made a further application for bail. This was heard by Kennett J on 13 October 2022. His Honour dealt with the application on the basis that the appeal had “some prospect of success”. However, his Honour said there was nothing before him to indicate that the prospects of the appeal were so strong that its strength would constitute an exceptional circumstance. His Honour rejected the application for bail because:

(a)there was no change in circumstances relevant to the grant of bail; and
(b)section 9E of the Bail Act 1992 (ACT) required that there be special or exceptional circumstances favouring the grant of bail.

So far as the former was concerned, his Honour said the availability to Mr Incandela of a set…

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 63
Decision Date: 15 November 2022

CaseChat Overview and Summary

The applicant, Incandela, sought bail pending the determination of an appeal against a sentence imposed by the Supreme Court of the Australian Capital Territory. This application was heard by Mossop J.

The central legal issue before the Court was whether the applicant had satisfied the criteria for granting bail pending appeal under the *Bail Act 1992* (ACT). Specifically, the Court was required to consider whether there had been a change in circumstances, or the emergence of fresh evidence or information, that would justify a review of the initial bail refusal.

Mossop J applied the principles established in *R v Smith* and the *Bail Act 1992* (ACT), which require a demonstration of changed circumstances or new material for a repeat bail application to succeed. His Honour found that no such change, evidence, or information had been presented by the applicant. Consequently, the Court concluded that the stringent test for granting bail pending appeal had not been met.

The application for bail and the application for review of bail were therefore dismissed.

Orders

Orders of the court

The application for bail and the application for review of bail are dismissed.

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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