Farmer (a pseudonym) v The King

Case [2025] SASCA 70

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

FARMER (A PSEUDONYM) v THE KING

[2025] SASCA 70

Judgment of the Court of Appeal  

(The Honourable Justice S Doyle, the Honourable Justice David and the Honourable Justice Stein)

26 June 2025

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - STATEMENTS MADE IN PRESENCE OF ACCUSED AND RELATED CONDUCT - PARTICULAR CONDUCT - SILENCE

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - DIRECTIONS AS TO PARTICULAR MATTERS

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

Following a trial by judge alone, the appellant was convicted of one count of sexual abuse of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).

The prosecution alleged that the appellant sexually abused his son by engaging in numerous acts of mutual masturbation and two acts of fellatio. The prosecution case consisted of the complainant’s evidence as supported by his initial complaint to his girlfriend as well as the appellant’s alleged admissions on 8 June 2021 and admissions (by silence) during a telephone conversation on 18 July 2021. At trial, the appellant did not give or call evidence . 

The trial Judge was satisfied beyond reasonable doubt of the complainant’s credibility and reliability as to the alleged unlawful sexual acts. The trial Judge found that the appellant made admissions to the offending on 8 June 2021 and his silence during the telephone conversation on 18 July 2021 constituted an admission. However, in find the charge proved the trial Judge only referred to and relied upon the appellant's admissions for 'completeness'. 

The appellant seeks permission to appeal against his conviction on four grounds. Grounds 1 to 3 relate to the admissibility, use, and directions in relation to evidence of the telephone conversation on 18 July 2021, purportedly containing the appellant’s admissions by silence to sexually abusing the complainant. Ground 4 complains that the trial Judge’s reasons are inadequate.

Held, per the Court, granting permission to appeal but dismissing the appeal:

1.    The evidence of the appellant’s silence during the telephone conversation on 18 July 2021 was admissible. The trial Judge did not err in treating the evidence of the appellant’s silence to the statements put to him as an admission of sexually abusing the complainant.

2.    The trial Judge’s directions as to the evidence of the admissions by silence were not erroneous nor productive of a miscarriage of justice.

3.    The trial Judge’s reasons for verdict were not inadequate.

Criminal Law Consolidation Act 1935 (SA) ss 50(1), 50(4)(a), 50(4)(b), referred to.
Barca v The Queen (1975) 133 CLR 82

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Farmer (a pseudonym) v The King [2025] SASCA 70
Case
[2025] SASCA 70
Decision Date

CaseChat Overview and Summary

The appeal concerned a criminal conviction for maintaining a sexual relationship with a child and persistent sexual abuse of a child. The appellant, referred to as Farmer, was convicted primarily on the evidence of the complainant. Additional evidence included statements allegedly made by the appellant on 8 June 2021 and during a telephone conversation on 18 July 2021, as well as evidence from the complainant's brothers. The defence argued the complainant was not credible, the alleged admissions were ambiguous, and the prosecution had not proven guilt beyond reasonable doubt. The appeal was heard by S Doyle, David and Stein JJ.

The legal issues before the court included whether the trial judge erred in admitting and relying upon the appellant's silence during a telephone conversation on 18 July 2021 as an admission of guilt. Specifically, the court considered whether the statements made to the appellant during that conversation were sufficiently clear and unambiguous to expect a denial, and whether the appellant's silence, in the context of being told to listen and not speak, could be construed as an admission. The court also considered whether, even if the silence could be interpreted as an admission, it should have been excluded in the exercise of the trial judge's discretion.

The court reasoned that the assessment of the appellant's silence on 18 July 2021 needed to be considered in light of an earlier conversation on 8 June 2021. In that earlier conversation, the complainant had confronted the appellant with allegations of "sexual abuse" which had "gone on far too long." The appellant's unchallenged evidence was that he repeatedly apologised during this conversation and expressed concern about being reported to the police. The court found that, viewed in this broader context, the statements made during the 18 July conversation were unequivocally referable to a general allegation of sexual abuse over a period of years. Furthermore, the court identified specific parts of the 18 July conversation that contained unambiguous allegations of sexual abuse, such as the complainant stating, "The whole ordeal should have stopped a lot quicker and you as a parent, you as my dad should have stopped and shouldn’t have started. But you know how it went on for years." The appellant's subsequent four-second silence was considered in light of his prior admissions and apologies.

Permission to appeal was granted, but the appeal itself 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

For the reasons which follow, we grant permission to appeal but dismiss the appeal.The evidence at trial The prosecution case relied primarily on the complainant’s evidence. In addition, there was evidence adduced from his girlfriend, TS, in relation to an initial complaint, and subsequent alleged admissions by the appellant on 8 June 2021 and during a telephone conversation on 18 July 2021. The prosecution also called evidence from the complainant’s brothers who were living with the appellant and the complainant at the relevant times. The appellant did not give evidence or call any evidence. Defence counsel submitted at trial that the complainant was not a credible or reliable witness, the purported admissions were ambiguous, and the prosecution had not proved beyond reasonable doubt that the appellant committed any of the alleged unlawful sexual acts with or towards the complainant. The prosecution case The complainant gave evidence that his parents separated when he was about five years old, and from the age of about seven or eight years, he began living with the appellant. When he was around 13 years old, and living at an address in Munno Para West, his relationship with the appellant began to change. The appellant began to make inappropriate jokes and would smack him on the bottom in a playful manner, which he reciprocated. After a while, the appellant’s behaviour escalated, and he began to place his hands down the complainant’s pants and touch his bottom. Again, the complainant reciprocated this behaviour. The complainant gave evidence that he and the appellant began to engage in acts of mutual masturbation. This would occur when his brothers had gone to bed. He outlined a particular occasion, on a morning before school, when the appellant performed fellatio on him. The complainant also described another occasion when they were in the appellant’s bedroom and, during an episode involving mutual masturbation, the complainant performed fellatio on the appellant. From mid-2014, the appellant was in a relationship with a woman called Giovanna and the sexual acts stopped. Sometime, around a year later, the family moved to a new home in Blakeview where they stayed for approximately six months. While living there, the appellant and Giovanna split up and the acts of mutual masturbation began again. The family then moved again to an address in Craigmore. The complainant gave evidence that the sexual abuse continued, and he described one instance of mutual masturbation after which the appellant said words to the effect of ‘we shouldn’t have done that’. The complainant described the appellant’s demeanour as more serious than in the past. On this occasion, the appellant found some twine and prayed with the complainant asking for forgiveness, and then cut the twine to symbolically break the pattern of behaviour. Notwithstanding, the sexual acts continued and there were further incidents of mutual masturbation in the bathroom at Craigmore.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Moreover, the appellant emphasises that he was told by JL to not speak and to listen, and that JL’s tone positively discouraged any response from the appellant. It is the appellant’s submission that upon an evaluation of ordinary human behaviour, dissent would not be expected. Indeed, to respond in the circumstances faced by the appellant would be an exercise in futility.[13] For those reasons, the appellant contends that the evidence was not capable of amounting to an admission by silence, and at the very least, the evidence should have been excluded in the exercise of the trial Judge’s discretion. Further, for the same reasons, the appellant submits the trial Judge was in error in finding that the appellant’s silence throughout the conversation amounted to an admission. [13] See Thatcher v Charles (1961) 104 CLR 57; R v MMJ (2006) 166 A Crim R 501; Choudhary v Director of Public Prosecution [2013] VSCA 325.Consideration When determining these grounds of appeal relating to the admissibility and use of the evidence of the 18 July 2021 telephone conversation, it is necessary to consider that evidence in the context of the whole of the prosecution case, in particular, the appellant’s purported admissions approximately six weeks earlier on 8 June 2021. In his evidence at trial, the complainant said that when confronting the appellant on 8 June 2021, he used the words ‘sexual abuse’ and told him that it had ‘gone on far too long’. The complainant’s unchallenged evidence was that during this conversation, the appellant apologised repeatedly to the complainant, and later, TS. The complainant also gave evidence that at the commencement of the telephone conversation on 18 July 2021, the appellant referred to his earlier conversation with the complainant on 8 June 2021, and a conversation the appellant had with his older son, JM, about it. Indeed, that is reflected in the tendered recording. Accordingly, an assessment of the appellant’s understanding of, and response to, the statements put to him during the conversation on 18 July 2021 needs to be undertaken in the broader context of the 8 June 2021 conversation. During that conversation, the complainant had confronted the appellant with allegations of ‘sexual abuse’, which the appellant acknowledged by repeatedly apologising to the complainant and TS, asking them not to tell anyone else and checking neither had recorded the conversation nor were going to report the matter to police. The appellant’s submission that the statements put to him during the telephone conversation on 18 July 2021 were vague and ambiguous falls to be considered in that broader context. When regard is had to the earlier conversation on 8 June 2021, and the conversation on 18 July 2021 is considered as a whole, we are satisfied the statements put to the appellant are unequivocally referable to a general allegation of sexual abuse or indecent touching committed over a period of years. In any event, there are several parts of the conversation which, on their own terms, include unambiguous allegations of sexual abuse. For example, at the outset of the recorded part of the conversation, after referencing the earlier June conversation, the complainant said to the appellant: ‘The whole ordeal should have stopped a lot quicker and you as a parent, you as my dad should have stopped and shouldn’t have started. But you know how it went on for years’. This was followed by the appellant’s silence for four seconds.