Incandela v The Queen (No 3)
[2022] ACTCA 63
•15 November 2022
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 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 of written propositions relevant to the ground of appeal that the verdict of the jury was unreasonable was not information relevant to the granting of bail because it did not relate to a circumstance which would justify bail.
In relation to the second matter, his Honour pointed out that there were cases in which special or exceptional circumstances might be demonstrated where a short sentence had been imposed and there was the prospect that the whole or a substantial portion of it would be served prior to the appeal being heard.
His Honour recorded that the circumstance pressed by Mr Incandela was “the difficulty that he faces preparing an appeal in which he is unrepresented while he is incarcerated”. His Honour accepted that this was a difficult task given the resources available to him in the Alexander Maconochie Centre (AMC), the restrictions on his access to research material and on communications with those who might help him. However, his Honour identified that they were far from being exceptional. Because of the two statutory barriers that his Honour identified, he did not go on to consider whether a grant of bail would be appropriate.
Mr Incandela made yet another application for bail which was heard by Kennett J on 2 November 2022. The grounds for this application included the difficulties that he asserted he had when communicating with his sister who was his McKenzie friend for the purposes of the appeal and that he is “dyslexic and illiterate”. His application recorded that the special or exceptional circumstances in favour of the granting of bail were as follows:
I am not able to make phone calls when needed (discuss my case with relevant persons)
I am unable to receive audio files when in detention.
I am unable to receive attachments while in detention.
I am not able to seek legal advice due to limited phone access and no online access
I am not able to access library to research due to jail lockins, covid restrictions, and sometimes no library times available at all for several weeks
I have no legal guidance at all and contacting services that are available is vital for my appeal
I am not able to google research legal numbers again due to no online access
I do not have any online access for any services which means that I am not able to defend myself reasonably
I have no access to a printer to print
I previously have not received court mail or mail from DPP in time
I cannot research precedence as there is no online access available for me
I cannot look up comparative cases
if I’m able to work then I have the potential to pay a legal representative
all of these factors contribute to me not being given a fair set of resources with which to be afforded fairness in my proceedings.
Counsel for the respondent submitted that there had been no change in circumstances such as to meet the threshold in s 20C of the Bail Act. Mr Incandela contended that a change in circumstances was that he had received a court date, namely 28 February 2023, for the hearing of the appeal. He also referred to the decision of Hulme J in Miles v R [2012] NSWCCA 88 and the terms of a report by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disabilities in relation to the difficulties experienced by such people in the criminal justice system. He referred to a study commissioned by the Australian Institute of Judicial Administration in relation to self-represented litigants. He said to his Honour that he was 42 years old, read like an eight-year-old and had dyslexia and attention deficit hyperactivity disorder (ADHD). He explained that he had not raised this previously because he was ashamed. However, he said that this was the change in circumstances from his earlier bail application. Kennett J dealt with some other aspects of the application and then said:
Thirdly, bail is refused and I will just interpolate that that is because I regard section 20C of the Bail Act is preventing me from considering the merits of a bail application until it is shown that there has been a change in circumstances since the last application was made.
His Honour then requested the Director of Public Prosecutions communicate with the responsible people at the AMC to address Mr Incandela’s issues in relation to contact with his sister and the facilities that he needs to get his arguments together for the appeal.
On 9 November 2022 Mr Incandela then filed an application for review of the decision of Kennett J as well as an application for bail.
No application for a stay
Bail could not be granted in the present case unless there was a stay of the orders requiring Mr Incandela to serve his sentence of imprisonment: The Queen v Quzag [2015] ACTCA 36; 298 FLR 330. The reasons given by the judges who have previously considered Mr Incandela’s bail application have not expressly addressed the antecedent question of whether a stay should be granted. It may be that their Honours proceeded on the basis that the requirement to demonstrate special or exceptional circumstances for the purposes of the bail application would be sufficient also to warrant the grant of a stay.
In Quzag v The Queen(No 3) [2015] ACTCA 37 Burns J (with whom Wigney and Penfold JJ agreed) made the following comment in relation to the test for a stay of a conviction or sentence at [5]:
There was some discussion during the course of the hearing of the Crown appeal whether the criteria for granting a stay of sentence was less stringent than the criteria relating to the granting of bail to a person who has been sentenced in this court and is subject to an appeal. However, it is unnecessary in the present proceedings to resolve that issue because it was accepted by Mr White SC, who appears on behalf of the Crown, that the criteria for granting a stay are at least no more stringent than the criteria for granting bail in the circumstances which are present in the present case.
In Samani v The Queen [2016] ACTCA 48 at [7]-[12] Refshauge ACJ discussed the issue in a manner consistent with the decision of the Court of Appeal in Quzag (No 3).
Given the lack of argument on the point, in my view it is appropriate to proceed on the basis that the requirement for a stay is no greater than the establishment of special or exceptional circumstances. However, focusing on the stay as opposed to the grant of bail places a somewhat different emphasis on the exercise. In Chamberlain v The Queen(No 1) (1983) 153 CLR 514, Brennan J said (at 519-520) that to grant bail pending an appeal from a conviction is to whittle away the finality of the jury’s verdict and to invest it with a provisional quality, thus attacking the central feature in the administration of criminal justice. The consequences of failing to give adequate weight to this consideration were also clearly described in R v Giordano (1982) 31 SASR 241 at 242. Any consideration of the question of a stay must take place in this context and this must inform what may be considered to be circumstances sufficient to warrant the grant of a stay.
Having regard to the manner in which the matter proceeded, if I considered that it was appropriate to stay the orders made by McCallum CJ and grant bail to Mr Incandela, I would have permitted him to amend his application so as to formally seek a stay of those orders. However, for the reasons which follow, it is not necessary to adopt that course.
Statutory provisions
The relevant provisions of the Bail Act ss 9E, 19, 20C and 43A which are as follows:
9EBail for person sentenced to imprisonment
(1)This section applies if—
(a)a person has been convicted of an offence by a court and sentenced to a period of imprisonment for the offence; and
(b)an appeal is pending in relation to the conviction or sentence.
(2)A court must not grant bail to the person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.
(3)In this section:
appeal includes an appeal against a decision on appeal.
19Court bail—general
(1)A court may, in accordance with this part, make any of the following orders in relation to bail (a bail order):
(a)an order granting bail to an accused person who is being held in custody in relation to an offence with which the person has been charged;
(b)an order enlarging, varying or revoking bail granted to the person.
(2)In deciding whether to make a bail order in relation to an accused person, a court may have regard to any information it considers relevant and reliable.
(3)This Act does not limit the number of applications in relation to bail that an accused person may make to a court in accordance with this Act.
(4)A court must deal with an application in relation to bail as soon as reasonably practicable.
(5)However, a court may decide not to hear an application in relation to bail if the application is frivolous or vexatious.
20CRepeat application for bail—Supreme Court
(1)This section applies to an application for bail (other than a bail review application) by an accused person in a proceeding if—
(a)the proceeding is one in which the Supreme Court has power to make a bail order under section 20B (a); and
(b)the accused person has—
(i) made 2 or more applications for bail in the Magistrates Court when the proceeding was before that court; or
(ii) if subparagraph (i) does not apply—made 1 application in the Supreme Court for bail in the proceeding.
(2)The court may only consider a further application for bail (other than a bail review application) by the person in the proceeding if the court is satisfied—
(a)that since the last application for bail there has been a change in circumstances relevant to the granting of bail; or
(b)that there is fresh evidence or information of relevance to the granting of bail that was unavailable at the last application for bail.
(Examples omitted.)
43APower of Supreme Court to review—decision of Magistrates Court or Supreme Court
(1)This section applies if a decision in relation to bail for an accused person has been made by—
(a)the Magistrates Court in accordance with section 42A (Power of Magistrates Court to review—decision of Magistrates Court); or
(b)the Supreme Court.
(2)The Supreme Court may, on application under this division (other than under section 44 (Right of review of bail decisions—prosecution)), review the decision of the court, only if the court is satisfied that the applicant has shown—
(a)a change in circumstances relevant to the granting of bail since the court’s decision; or
(b)the availability of fresh evidence or information relevant to the granting of bail to the accused person that was unavailable when the court made the decision.
Consideration
Counsel for the Crown drew attention to s 19(5) of the Bail Act. I am not satisfied that the present application is either frivolous or vexatious. While it is one of several such applications made by Mr Incandela, I am not satisfied that they are so lacking in merit, or brought for the purpose of vexing the respondent or the court, that they can be characterised as frivolous or vexatious.
In relation to the review of the bail decision, that is a review of the decision of Kennett J on 2 November 2022. It is a requirement, in order to enliven the jurisdiction to conduct the review, that the court is satisfied that the applicant has shown either a change in circumstances relevant to the granting of bail since the court’s previous decision, or the availability of fresh evidence or information relevant to the granting of bail that was unavailable when the court made the decision.
The matters emphasised by Mr Incandela were that he was self‑represented, that there were not adequate facilities for the preparation of his appeal and that he suffered from a disability. I understood that his disability was dyslexia and ADHD. He certainly appeared to have difficulty reading when making his submissions in court.
The submissions that he advanced were, in substance, very similar to those advanced before Kennett J on 2 November 2022, addressing his disability and the reports relating to the difficulties that persons with a disability suffer when accessing the justice system. He referred to the practical difficulties that he faced within the AMC and the decision of Hulme J in Miles v R. There was some additional information that he provided. This was in the form of an email from his sister (who Kennett J permitted to act as his McKenzie friend in the presentation of the appeal) containing references to two Victorian Supreme Court decisions about the significance of the role of a trial judge in providing assistance to unrepresented persons with a disability.
I am not satisfied that there has been any change in circumstances relevant to the grant of bail since the application before Kennett J or that there is fresh evidence or information that has become available that was unavailable when the court made its earlier decision. As a consequence, I am not satisfied that the court has power under s 43A to review the decision of Kennett J. In particular, I am not satisfied that the email from his sister is, or contains, fresh evidence or information or amounts to a change in circumstances. The difficulties that Mr Incandela has with reading and problems he asserts with the facilities available for preparation of his appeal were all clearly before Kennett J on 2 November 2022.
Although Mr Incandela was not particularly sure about it, there was also an application for bail which he filed at the same time as the application for review of bail. The Bail Act does not limit the number of applications in relation to bail that an accused person may make: s19(3). The expression “accused person” extends to a person to whom an appeal relating to offences is pending: Bail Act, Dictionary “accused person”. However, the Act provides hurdles for persons making repeat bail applications. In relation to the Supreme Court, that is contained in s 20C which has the effect that, in a case such as the present, the court may only consider a further application for bail if the court is satisfied that since the last application for bail there has been a change in circumstances relevant to the granting of bail or there is fresh evidence or information of relevance to the granting of bail that was unavailable at the last application for bail.
The position of Mr Incandela is, therefore, the same in relation to his application for bail as it is in relation to his application for review of the earlier bail decision, namely, he is required to satisfy the threshold of change in circumstances or fresh evidence or information. As pointed out earlier he cannot satisfy that threshold.
For those reasons, whether the application is one for a review of the earlier decision or a separate application for bail, the application cannot be considered further.
Although it is not necessary to do so, I record that had I been satisfied that there was a change in circumstances, or fresh evidence or information, Mr Incandela would have been required to satisfy the further requirement that there be special or exceptional circumstances. Notwithstanding his evident difficulty with reading, Mr Incandela very effectively articulated the difficulties that he would face in preparing his appeal while in custody. I accept that he will face considerable difficulties as an unrepresented person effectively preparing for the hearing of his appeal. That is particularly so in circumstances where he has difficulty reading. He has, however, available to him a statement of factual matters relevant to his appeal which I infer has been prepared by someone else, which may assist him in articulating his contention that the jury’s verdict was unreasonable. He will also receive substantial assistance as a result of the Director of Public Prosecutions preparing the appeal papers. The difficulties which Mr Incandela faces are, although substantial, not sufficient to amount to special or exceptional circumstances in the context of an application for appeal bail.
At the hearing before Kennett J on 2 November Mr Incandela referred to his lack of access to the AMC library, lack of internet access, difficulties receiving documents from or sending documents to the court, limits on calls to his sister who is acting as his McKenzie friend and difficulties with posting larger items to his sister. After the hearing before Kennett J, each of these matters were drawn to the attention of ACT Corrective Services. The written response was included in the annexures to the affidavit read by counsel for the respondent on the current application. While it is not possible on the evidence before me to make specific findings of fact about the foundation for Mr Incandela’s complaints, the limited information and evidence before the court does not demonstrate a denial of reasonable facilities for a self-represented person such as Mr Incandela to prepare his appeal such as was observed to exist in Miles v R at [4].
The order of the Court is: The application for bail and the application for review of bail are dismissed.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 25 November 2022 |
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