R v Daniel Scott Nankivell
[2007] SADC 14
•23 February 2007
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DANIEL SCOTT NANKIVELL
Criminal Trial by Judge Alone
[2007] SADC 14
Reasons for the Verdict of His Honour Judge Boylan
23 February 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of indecent assault - accused found to be mentally unfit - whether objective elements of offence proved beyond reasonable doubt.
Held: Objective elements of offence charged not established beyond reasonable doubt.
R v DANIEL SCOTT NANKIVELL
[2007] SADC 14
Daniel Scott Nankivell is charged with indecent assault. Because he is unfit to plead, the objective elements of the offence were tried before me, sitting without a jury. The prosecution called evidence and some facts were agreed. Unsurprisingly, Mr Nankivell did not give evidence; nor did he call any evidence. Having considered the evidence, I am not satisfied that the prosecution has proved beyond reasonable doubt that Mr Nankivell committed the objective elements of the offence.
The particulars of the offence are that, between the first day of August 2004 and the 11th day of November 2004 at Elizabeth Downs, he indecently assaulted Margaret Dawn Jones a person of the age of 9 years.
Margaret Jones is now 11. She is the eldest of the three children of Paul Jones and Dawn Lawrie. She has a sister Marlene and a brother Kenneth, both younger than she. For some years, the family lived at Seaton. Mr Nankivell, who had a been a friend of Paul Jones’s for many years, lived there with them. In August 2004, the family moved to a house at Elizabeth Downs. About a week after they had moved in, Mr Nankivell also moved in. He usually slept on a couch in the lounge.
Margaret gave evidence that Mr Nankivell touched her indecently when two of her cousins were sleeping over at her parents’ house. She said that those two cousins were Cheyenne and Jordan. Margaret, Marlene, Kenneth, and Cheyenne and Jordan were sleeping on a mattress in the lounge. Margaret was sleeping at one end of the mattress. When she and the other children went to sleep, Mr Nankivell was asleep on the couch. During the night, she woke. Mr Nankivell was kneeling next to her. He had his hand inside her pyjamas and was rubbing her outer vaginal area. She looked at him and then turned over. When she did so, he stopped touching her and she went back to sleep. Although it was dark, she thinks it must have been in the early hours of the morning because she could hear her parents talking in the kitchen.
Ms Lawrie, Margaret’s mother, gave evidence that there were a number of occasions, while Mr Nankivell was living with them at Elizabeth Downs, when her children and other children slept on a mattress in the lounge. She, too, said that Mr Nankivell usually slept on a couch in the lounge but she said that she always insisted that he sleep in a bedroom and not in the lounge when children were sleeping there.
Paul Jones, Margaret’s father, was not called but his statement was tendered. In it, he said that he remembered one occasion of a sleepover at Elizabeth Downs when Mr Nankivell slept on the couch while the children were sleeping on a mattress in the same room.
There was no suggestion that Margaret made a prompt complaint about the alleged assault. It was an agreed fact that she attended at the Elizabeth office of the Department for Family and Youth Services with her mother and grandmother on the 11th of November 2004. I do not know the reason for that attendance but I understand that she first complained on that day. The complaint was made to a FAYS officer, Ms Michelle Latella. I direct myself, of course, that Margaret’s failure to complain earlier does not necessarily mean that her allegation is false.
If the prosecution satisfies me that Mr Nankivell touched Margaret as she alleges, then the objective elements of the offence of indecent assault will have been made out. But there are too many inconsistencies in the evidence for me to be so satisfied.
I have already referred to a significant one: on Ms Lawrie’s evidence, Mr Nankivell did not sleep in the lounge when the children were sleeping there. Although Ms Lawrie was in some ways an imprecise witness, especially about dates, she was firm that she did not permit Mr Nankivell to share the lounge with the children during the night. Because Mr Jones was not called, I am not in a position to assess his reliability.
There were a number of inconsistencies between Margaret’s evidence and her mother’s on other topics. Some are relatively unimportant. For example, Margaret insisted that she always shared a bedroom with her sister Marlene. She also said that her mother and father shared a bedroom. Ms Lawrie said that her children always had their own rooms and that she and Paul Jones slept in separate rooms. While those matters are peripheral, they cause me to doubt the general reliability of Margaret’s memory. A significant inconsistency is that Margaret nominated her younger cousins Cheyenne and Jordan as having been the two visiting children on the night of the alleged offence. Ms Lawrie named a number of children who had slept over at the house during the relevant period but did not mention either of those two.
Margaret did not give a consistent account of the alleged incident. She gave varying accounts of her position and the accused’s when she first woke. Her description of the incident became self contradictory. Further, she agreed that she did not like Mr Nankivell living with her family. She denied in evidence that she told her father about the incident before the visit to FAYS, but agreed in cross-examination that she told Ms Latella that she had told her father about the incident.
I have no reason to believe that Margaret was not trying to tell me the truth. But the onus of proof is beyond reasonable doubt. In all of the circumstances, I cannot be satisfied that Mr Nankivell touched Margaret in the way she said he did.
Accordingly, I enter a verdict of not guilty. The accused is discharged.
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