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

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

2. 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) (CLCA), and one count of aggravated assault contrary to s 20(1) of the CLCA. The appellant has sought permission to appeal his convictions.

3. The appellant only seeks bail on the basis of home detention.  The Court has received a favourable Bail Enquiry (Home Detention) Report. 

4. The respondent submits that home detention would be the only appropriate basis on which bail might be countenanced. Nonetheless, bail in any form is opposed.

   The offending and the appeal

5. The offending involved the appellant’s twin step-daughters. It occurred when they were aged between six and twelve, and the aggravated assault occurred when the relevant victim was aged 14 or 15. The appellant was sentenced by the trial judge to 20 years’ imprisonment with a non-parole period of 16 years.

6. At a callover on 13 May 2024, the appellant was granted permission to appeal on ground 1 of his appeal by David JA. That ground complains that the trial judge took into account the distress exhibited by the victims when they made their complaints many years after the offending, on the basis that it bolstered their credibility. It is contended that to make that finding was contrary to the recent ruling of the Court of Appeal in Fergusson v The King.[1]

   [1]     Fergusson v The King [2024] SASCA 63, [42]-[45] (Livesey P, Doyle and David JJA).

7. It is conceded that ground 6 does not require permission to appeal.  As for the remaining grounds (grounds 2, 3, 4, 5 and 7), the question of permission to appeal has been referred for argument as on appeal.

8. The appeal has been listed for hearing before the Court of Appeal on 19 November 2024.

   The application for bail pending appeal

9. Before the Bail Act commenced, in R v Giordano King CJ identified the matters to be taken into account when considering a grant of bail pending appeal, explaining that “[it] is unnecessary, and would be unwise to attempt to compile a list … [of] the totality of the circumstances [that] must be looked at”.[2] Factors that may be relevant include:[3]

   1.Bail ought not be granted after conviction unless bail was appropriate prior to trial.

   2.The prospects of the success of the appeal, noting that “I do not think however, that the court which considers the application for bail can be expected to assess the prospects of success of the appeal unless those prospects are obvious”.

   3.The duration of the term of imprisonment imposed, particularly if it is “so short that the term may expire before the appeal is determined”.

   [2]     R v Giordano (1982) 31 SASR 241, 242 (King CJ).

   [3]     R v Giordano (1982) 31 SASR 241, 243 (King CJ).

10. Chief Justice King warned that the courts should be cautious about granting bail pending appeal:[4]

    There are practical reasons, moreover, why courts should exercise extreme caution about the grant of bail pending appeal. An appellate court does not sentence afresh in the light of circumstances which have changed since sentence was passed. It should not be placed in the invidious position, particularly on an appeal against sentence, of the dismissal of the appeal having the effect of returning to prison a person whose circumstances may have changed greatly during a period of liberty on bail pending appeal. There is a serious risk of availability of bail leading to a proliferation of unmeritorious appeals thereby adding to the strains on the system of justice. Persons undergoing punishment in custody are prone to seize any opportunity to secure release, perhaps leaving the future to take care of itself. Appeals would be launched, irrespective of the prospects of success, simply in order to secure release, or perhaps with a view to creating situations which would tend to frustrate justice by making it difficult to return the appellant to prison.

    [4]    R v Giordano (1982) 31 SASR 241, 242. Followed in R v Baker [2000] SASC 281; R v Blayney [2002] SASC 184; R v Kostaras [2002] SASC 231; R v McKelliff [2003] SASC 357; R v Frederick [2004] SASC 304; C, TL v Police [2010] SASC 115, [87]-[90] (Kelly J, with whom White J agreed).

11. Section 10(2) of the Bail Act now confers on a bail authority “an unfettered discretion as to whether the applicant should be released on bail” in circumstances where the applicant has been convicted of the offending in respect of which the applicant has been “taken into custody”.[5]

    [5]    As for the meaning of these words see Question of Law Reserved No 3 of 2023 [2024] SASCA 29 (Doyle, Bleby and David JJA).

12. Following the introduction of the Bail Act, in Beshara & Kleut v Paphitis Cox J held that there was no presumption for or against bail on an application for bail pending appeal.[6] 

    [6]    Beshara & Kleut v Paphitis (1987) 136 LSJS 16 (Beshara) (Cox J).

13. Justice Cox held that “[a] convicted person who is seeking bail pending his appeal has the task of satisfying the bail authority that his is a proper case for the grant of bail”. As his Honour explained:[7]

    … [The] task of any defendant who applies for bail pending an appeal is never likely to be easy. That is not because a presumption, legal or factual or of some less precise kind, against the grant of bail in such a case. It is a conclusion that necessarily follows from the very circumstances inherent in any such application. These circumstances have not changed with the enactment of the Bail Act. There is nothing in the Bail Act that requires the courts to ignore them or to give them less weight than they were formerly given. That does not mean that the courts should never grant bail pending appeal. Each application must be dealt with on its own merits. However, it would seem correct to say that the grant of bail pending appeal will continue to be exceptional.

    [7]     Beshara, 19. Followed by Gray J in R v Baker [2000] SASC 281, [4]-[7], “there is no presumption for or against a grant of bail following conviction”.

14. Subsequently, in R v Flanigan,[8] Debelle J followed the approach of Cox J in Beshara and emphasised that the unfettered nature of the discretion in s 10(2) of the Bail Act is not consistent with the proposition that bail will only be granted in exceptional circumstances. He concluded that “the very conclusion that bail will only be granted in exceptional circumstances is, in fact, to fetter the exercise of the discretion”.[9] It ought not be overlooked, however, that Debelle J concluded that:[10]

    … a grant of bail pending appeal will never be easy and if regard is had to all relevant factors, it might at the end of the day result in the grant of bail being an exceptional event.

    [8]     R v Flanigan (unreported judgment, Supreme Court of South Australia, Debelle J, 25 November 1996, S5937) (Flanigan).

    [9]     Flanigan.

    [10]   Flanigan.

15. More recently, in R v Williams Davies J held that “[it] is neither appropriate, nor the task of a judge hearing a bail application pending an appeal to the Court of Criminal Appeal, to engage in the same exercise as that of the Court of Criminal Appeal”.[11]

    [11]   R v Williams [2018] NSWSC 994, [24].

16. Moreover, there is a public interest in not making it appear that a conviction is only contingent until affirmed on appeal,[12] as well as in having a convicted person serve the sentence imposed by the court as soon as is practicable.[13]

    [12]   Ex Parte Maher (1986) 1 Qd R 303 considered in R v McKellif [2003] SASC 357.

    [13]   Ex Parte Maher (1986) 1 Qd R 303, 310 approved by the High Court in United Mexican States v Cabal (2001) 209 CLR 165, [39]; cited in R v Frederick [2004] SASC 304.

    Determining the bail application

17. The discretion conferred by s 10(2) of the Bail Act must be exercised judicially having regard to all relevant factors.[14] I accept that I should proceed cautiously. In this case relevant factors include the following:

    1.The offending for which the appellant has been convicted is undoubtedly very serious. 

    2.The non-parole period of 16 years means that there is no scope for concern that the appeal may not be finalised before the appellant’s sentence expires.

    3.The appellant’s adherence to the terms of his previous bail agreement is in his favour, though that must be counter-balanced against the fact that he has now been convicted and is serving a lengthy non-parole period. 

    4.There has otherwise been no relevant change in the appellant’s circumstance since bail was revoked by the trial judge on 24 May 2024. 

    5.I accept that the appeal raises genuine and meritorious issues and that it is being prosecuted diligently. Nonetheless, I am not prepared to find that this is such an obvious case that it is appropriate for me to predict the likely outcome of the appeal. 

    6.Even if the appeal succeeds the appellant seeks a retrial, not an acquittal.[15]  There is no information available to me to suggest that the Director would not proceed with a retrial.

    7.Sub-section 10(4) of the Bail Act mandates that I must “give primary consideration to the need that the victim may have, or perceive, for physical protection from the applicant”. I accept that the risks associated with the applicant absconding, re-offending or contacting the two victims are negligible. 

    8.Whilst there is here a low but not negligible prospect that the victims may see the appellant in the rural setting discussed in evidence, I have no reason to think that the appellant would breach the terms of the applicable intervention orders.

    [14]   Flanigan.

    [15]   See Marotta v The Queen (1999) 73 ALJR 265, 267 (Callinan J), cited in R v Velevski [2000] NSWCCA 445; (2000) 117 A Crim R 30 (Barr J); R v Frederick [2004] SASC 304, [13]-[18] (Sulan J).

18. 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

19. I decline to grant bail and I dismiss the application.