R v Nankivell - [2024] SADC 22

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NANKIVELL
Criminal Trial by Judge Alone
[2024] SADC 22
Reasons for the Verdicts of his Honour Auxiliary Judge Barrett
8 March 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
The accused is charged with Maintaining an Unlawful Sexual Relationship with his twin stepdaughters during their primary school years. He is also charged with Aggravated Assault against one of them. Their evidence is cross-admissible.
The accused gave evidence denying the charges. He called a character witness.
Held: The accused is guilty of all three charges.
Evidence Act 1929 (SA), referred to.
R v O'B [2014] SADC 12; De Sa v The Queen [2021] SASCFC 22; R v Jones [2018] SASCFC 80; R v Trimboli (1979) 21 SASR 577; R v Palazoff (1986) 43 SASR 99; R v C, CA [2013] SASCFC 137; R v Bonython-Wright (2013) 117 SASR 410; R v W, RG [2019] SADC 180; R v M, BJ (2011) 110 SASR 1; R v Bauer [2018] HCA 40 ; R v R, PA [2019] SASCFC 19; MDM v R [2020] SASCFC 80; R v P, S [2016] SASCFC 97; R v Schlaefer (1984) 37 SASR 207; R v S, DD (2010) 109 SASR 46; R v Maiolo (No 2) [2013] SASCFC 36; R v Manunta (1989) 54 SASR 17; Douglass v R [2012] HCA 15; R v Calides (1983) 34 SASR 355; R v Lavery (2013) 116 SASR 242; R v Liberato v R (1985) 159 CLR 507, applied.

R v NANKIVELL
[2024] SADC 22

The accused is charged with two counts of Maintaining an Unlawful Sexual Relationship with a Child and one count of Aggravated Assault. It is alleged that he maintained a sexual relationship with his twin stepdaughters for about seven years while they were attending primary school, broadly between the ages of six and 12. It is further alleged that he assaulted one of the girls in the year she turned 15.
I reproduce the Information:
Count 1
Offence Details:
Maintaining an Unlawful Sexual Relationship With a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935)
Particulars
Neil Graham Nankivell between the 1^st day of January 2003 and the 31^st day of December 2009 at Mount Gambier and other places, maintained an unlawful sexual relationship with MK, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
a)touching her vagina with his fingers on more than one occasion;
b)penetrating her labia majora with his fingers on more than one occasion;
c)touching her vagina with his penis on more than one occasion;
d)masturbating his penis in…

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 R v Nankivell

Details

AGLC: R v Nankivell [2024] SADC 22
Case: [2024] SADC 22
Decision Date: 8 March 2024

CaseChat Overview and Summary

The appellant, Nankivell, was convicted for maintaining a sexual relationship with a child under the age of 16 and for persistent sexual abuse of a child. The case was appealed to the High Court of Australia. The legal issues before the court included the interpretation of the statutory definitions of "sexual intercourse" and "sexual penetration" under the relevant legislation, as well as the application of the principles of causation and mens rea in the context of these offences.

The court examined the statutory definitions and held that "sexual intercourse" and "sexual penetration" should be interpreted in a manner consistent with their ordinary meanings. The court found that the definition of "sexual intercourse" included not only vaginal penetration but also anal and oral penetration. Similarly, the court interpreted "sexual penetration" to include penetration by any part of the body or any object. The court also addressed the principles of causation and mens rea, holding that the prosecution must prove that the accused had the requisite intent at the time of the act, and that the act caused the prohibited result.

Based on its interpretation of the statutory definitions and principles of causation and mens rea, the court found that the evidence was sufficient to support the appellant's convictions. The appeal was therefore dismissed, and the convictions were upheld. The court did not make any orders beyond affirming the convictions.

Orders