Nankivell v The King - [2024] SASCA 71

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
NANKIVELL v THE KING
[2024] SASCA 71
Decision of the Honourable President Livesey (ex tempore)
6 June 2024
CRIMINAL LAW - PROCEDURE - BAIL - AFTER CONVICTION
The appellant applied for bail pending appeal pursuant to s 10(2) of the Bail Act 1985 (SA). The appellant sought bail on the basis of home detention bail. The respondent opposed bail.
The appellant was convicted following a trial by judge alone of two counts of maintaining an unlawful relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) and one count of aggravated assault contrary to s 20(1) of this Act. The appellant was sentenced to 20 years’ imprisonment with a non-parole period of 16 years.
At a callover before a Judge of the Court of Appeal, the appellant was granted permission to appeal on Ground 1 of the appeal. The respondent conceded that permission to appeal is not required on Ground 6. The question of permission for the remaining grounds was referred for argument as on appeal. The appeal will be heard in November 2024.
Held per Livesey P refusing bail and dismissing the application.
1.The discretion conferred by s 10(2) of the Bail Act must be exercised judicially having regard to all relevant factors. It is necessary to proceed cautiously.

2. The offending for which the appellant has been convicted is undoubtedly very serious.
3.It is accepted that the appeal raises genuine and meritorious issues, and it is being prosecuted diligently. This is not such an obvious case that it is appropriate to predict the likely outcome of the appeal.
4.In the event the appeal succeeds, the appellant seeks a retrial, not an acquittal. It is not suggested that the Director would not proceed with a retrial.

Bail Act 1985 (SA) s 10(2); Criminal Law Consolidation Act 1935 (SA) ss 20(1), 50(1), referred to.
Beshara & Kleut v Paphitis (1987) 136 LSJS 16; C, TL v Police [2010] SASC 115; Ex parte Maher (1986) 1 Qd R 303; Fergusson v The King [2024] SASCA 63; Marotta v The Queen (1999) 73 ALJR 265; Question of Law Reserved No 3 of 2023 [2024] SASCA 29; R v Baker [2000] SASC 281; R v Blayney [2002] SASC 184; R v Flanigan unreported, Supreme Court of South Australia, Debelle J, 25 November 1996, S5937; R v Frederick [2004] SASC 304; R v Giordano (1982) 31 SASR 241; R v Kostaras [2002] SASC 231; R v McKelliff [2003] SASC 357; R v Velevski [2000] NSWCCA 445; R v Williams [2018] NSWSC 994; United Mexican States v Cabal (2001) 209 CLR 165, considered.

NANKIVELL v THE KING
[2024] SASCA 71
Court of Appeal – Criminal
LIVESEY P (ex tempore):
Introduction

The appellant has applied for bail pending appeal pursuant to s 10(2) of the Bail Act 1985 (SA) (the Bail Act).
The appellant…

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.

Continue reading Nankivell v The King

Details

AGLC: Nankivell v The King [2024] SASCA 71
Case: [2024] SASCA 71
Decision Date: 6 June 2024

CaseChat Overview and Summary

The applicant, Nankivell, sought bail pending an appeal against conviction. The application was heard by Livesey Ex Tempore P.

The sole legal issue before the Court was whether it was appropriate to grant bail to the applicant pending the determination of his appeal against conviction.

His Honour considered all relevant factors in determining the application. After reflection and taking into account the submissions of the parties, the Court concluded that it was not appropriate to grant bail in the circumstances of this case. Accordingly, the application for bail was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have been assisted by helpful written and oral submissions from the parties, which I have taken into account. Having reflected on this application, and after taking into account all relevant factors, in the circumstances of this case I do not consider that it is appropriate to grant bail pending appeal. Conclusion I decline to grant bail and I dismiss the application.

Ratio Decidendi

Legal Principle Established

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