Farmer (a pseudonym) v The King - [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; Burns v The Queen (1975) 132 CLR 258; Choudhary v Director of Public Prosecution [2013] VSCA 325; JJP v The Queen (2021) 139 SASR 91; R v Alexander [1994] 2 VR 249; R v BEC (2023) 16 QR 1; R v Christie [1914] AC 545; R v Gallagher [1998] 2 VR 671; R v Grills (1910) 11 CLR 400; R v Kamleh [2003] SASC 269; R v Lester [2010] QCA 152; R v MMJ (2006) 166 A Crim R 501; R v Nguyen (2001) 118 A Crim R 479; R v Rippey [2022] SASCA 141; R v Salahattin [1983] 1 VR 521; R v Spencer [2019] SASCFC 70; Sears v The Queen (2020) 137 SASR 219; Thatcher v Charles (1961) 104 CLR 57; Woon v The Queen (1964) 109 CLR 529, considered.

FARMER (A PSEUDONYM) v THE KING
[2025] SASCA 70
Court of Appeal – Criminal: S Doyle and David JJA and Stein AJA

THE COURT: Following a trial by judge alone, the appellant, DM, 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 CLCA’) in respect of his son. The appellant now appeals his conviction.
At the time of the alleged offending, the complainant was aged between 13 and 16 years old. The prosecution alleged that the appellant engaged in numerous acts of mutual masturbation with the complainant and two acts of fellatio, once by the appellant on the complainant, and once by the complainant on the appellant.
The appellant’s first three grounds of appeal relate to the admissibility, use, and directions in relation to evidence of the admissions by silence during the telephone conversation on 18 July 2021. (Grounds 1 to 3). The appellant also complains that the trial Judge’s reasons are inadequate (Ground 4).
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.
The complainant first disclosed the offending to his girlfriend, TS, in May or June 2021. He said this occurred in the context of an argument. He told her that sexual abuse had occurred and proivided some detail, in particular, that there had been acts of mutual masturbation and oral sexual intercourse.
TS confirmed that in early June 2021, the complainant told her the appellant had touched him and that it had included oral sexual intercourse. She confirmed that his disclosure occurred in the context of an argument, during which the complainant became hysterical.
The complainant gave evidence that after discussing the abuse with TS, he decided to confront the appellant. On 8 June 2021, the appellant attended the complainant’s home which he shared with TS. The complainant said that TS was in another room when he confronted the appellant about ‘the sexual abuse’ which he said, ‘happened far too long’. The complainant said that the appellant became very red, blushed and repeatedly said ‘I’m sorry’. The appellant asked who else knew, and on learning that TS knew about the abuse, the appellant asked if he could apologise to her.
The complainant and TS had a short conversation in their bedroom, and then they both joined the appellant in the loungeroom. The appellant apologised to TS and asked for her forgiveness. In response, TS said words to the effect that she would never forgive him, asked ‘how he as a father could ever do something like that to his own child’ and how it was so wrong, to which the appellant continued to repeatedly say ‘I’m sorry’.
The complainant gave evidence that the appellant asked whether the topic could stay between the complainant, TS and himself. He also asked whether the complainant was going to speak with the police. The complainant responded by saying he was not going to speak to the police, and that he needed time to think. The appellant left the premises but returned a short time later looking pale and panicked, and asked whether the conversation had been recorded. The complainant said he and TS said it had not been recorded and showed him their phones.
TS confirmed that the appellant came to their house and had a conversation with the complainant in the loungeroom while she was in the bedroom. She said that later, she and the complainant had a private conversation after which they spoke with the appellant. She confronted the appellant calling him ‘disgusting’, to which he repeatedly apologised. She also confirmed that after leaving their home, the appellant returned and asked whether the conversation had been recorded.
The prosecution relied on the evidence of this conversation, and the appellant’s apologies to both the complainant and TS, as an admission by the appellant to having committed acts of sexual abuse against the complainant. There is no challenge on appeal to its admissibility or to the trial Judge’s findings in that regard.
The complainant gave evidence of a telephone conversation he had with the appellant sometime after having confronted him with the sexual abuse in person. The telephone conversation occurred on 18 July 2021 and was conducted on speaker phone. Also in the room were his girlfriend TS, TS’s mother, JL, and their housemate KT. Unbeknownst to the complainant, KT recorded the latter part of the conversation.
The complainant said that during the unrecorded part of the conversation, he told the appellant he wanted to meet him in person. He indicated that he wished TS to be present (as she already knew everything that had happened). The appellant resisted TS being there.
The next part of the conversation was recorded by the complainant’s housemate, KT. A copy of the recording was tendered at trial.[1] A transcript of the conversation was provided to this Court in the following terms:
[1]     Trial Exhibit P1.
[Complainant]:     But I’m talking about you.
DM:I said to [JM], I said I’m not going into it all, I’m, that’s what I’m saying to you.
[Complainant]:     (unintelligible) him that it was me.
DM:[JM] asked what happened and I said [complainant] said that he spoke to [TS] and he said he told her everything and you said you wanted to have a talk and you wanted to break and then you said to me when you were younger, something along the lines of I could have stopped, I, I should have or I could have stopped things quicker. uh.
[Complainant]:     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.
[1:02]:              silence 4 seconds
DM:   Ah, do you want to talk in person or not?
[Complainant]:     About [unintelligible]? [KT] knows the bits and pieces.
DM:   right.
[Complainant]:     So does, so does [JL] as well.
DM:Right yeah, my questions is do you want to talk in person or not.
JL:This is not a conversation I thought I would have with you [DM], but I’ve heard everything you’ve said, and you’re a liar, you’re an absolute liar and you know what your son is suffering because of the shit you’ve done and so is my daughter I’ve spent three days on the phone with her bawling her arse off not being able to tell you what’s going on until today. My blood is absolutely boiling and a man that goes to church you think you can pray this shit away, what, what, what, who in their right mind would say my son initiated it, you’re the freaking adult you’re the parent, admit to your son what you fucking did to him.
DM:                 Is this [JL]?
JL:                   Oh, this is [JL], this is [JL].
DM:                 Okay.
JL:No, no, no, I don’t want to hear your bullshit I ain’t giving you my time of day you’re gonna listen, you are gonna listen your son has cried, he has, he has bawled his arse off on my daughter’s shoulder they are young they are 21 years old, 22 years old trying to live a fucking life like normal people do, but yet you put your filthy fucking hands on your son and you think for one second that I’m gonna go another day without reporting your fucking arse to the police, my mum works in the family youth services and so did I when I was young.
[2:55] :              silence 3 seconds
JL:How dare you sit there and manipulate your son and tell him to come to your house. You’re even lucky he’s having a conversation with you right now [DM] you and me both know that, I’m an adult, I’m not a kid like him. How dare you do that, to him your son. I had no idea about this stuff. [TS] has cancelled her gigs she’s, her eyes are puffy, puffy because she’s been crying because [the complainant] is going through stuff personally because of this shit and I’ve been sitting here since this morning or early today trying to consult [TS] and then coming over here to the house for the first time and being here for [the complainant].
I don’t care what excuse you’ve got [DM], I don’t care what you think or what you say, what you did to you’re son is absolutely fucking disgusting, you are a filthy dirty fucking crazy, you’re not even a man. You are disgusting and I will be here for [the complainant] you know what we had a rocky start with [TS] and him getting together, we really did, we had a rocky start. But you know what no one deserves to have that sort of shit happen to them and for you to not even have the balls to admit it to your son and just a [sic] I listened to you for the last 3 minutes and I said, you said why don’t you just say yes I touched you and I shouldn’t have yes I had filthy fucking things I did to you and I shouldn’t have because I’m your father, I’m supposed to protect you and love you and bring you up and if I’ve got urges like that, you know what go get a freaking hooker, go, go somewhere else you don’t do that to your child what is wrong with you.
I’ve only seen you two or three times and the whole time [TS] and [KM] and [the complainant] have been friends and never in a million years would I have ever thought anything like that of you guys, but you know what I’m just like what the hell this poor kid and I always said to [TS] even when I was pissed off with her in November after her 21st.
I had always said to her [the complainant] is a good kid, I just wished you didn’t lie to me. I don’t understand this [DM], I don’t get it. You did what you did man let your son fucking live his life and admit to what you did and hold accountability for it.
[at 5:42]:           silence 2 seconds
JL:he’s going through a lot of shit and my daughter is wearing the brunt of it her first proper relationship and she cares about him, clearly, but I’m not gonna let her suffer for what you did.
[6:00]:              silence 9 seconds
JL:                   You need to fix it.
[6:10]:              silence 38 seconds
JL:I, I don’t know what you’ve done [DM] I have no idea what you’ve done, I don’t know; but I thank God that I don’t and believe me I believe in him trust me I do.
[7:06]:              silence 31 seconds
JL:                   Do you have anything at all to say?
DM:                  Ah, no, no.
JL:Well, I wonder if the cops are gonna think the same I wonder because I’m about to call them you’ve had your chance and I’m not gonna let these kids live through this shit by themselves and you pretend that you’re this nice guy that goes to church. [The complainant] has no reason to lie and his friends know what he’s like.
[8:07]:              silence 9 seconds
JL:and you know yourself that these days this kind of stuff doesn’t go down too well and no matter how well you’ve tried to cover shit up or make shit up the truth will come out [DM].
[8:28]:              silence 6 seconds
JL:But there is no way I’m walking away from this knowing exactly what you’ve done to your son and saying nothing.
[8:41]:              silence 5 seconds
JL:and I don’t mind at all either if you record this that’s fine because I’m not worried at all.
[8:51]:              silence 5 seconds
DM:                 I’m listening but not recording.
JL:Well, that’s good I’m glad you’re listening and I can hear the remorse in your voice, I can hear you’re really sorry about it.
[9:05]:              silence 7 seconds
JL:You’re a cold-hearted person [DM] and you know what, fucking go to hell.
[ENDS]
(Emphasis added.)
The complainant gave evidence that following this conversation, he attended a police station and reported the alleged sexual abuse.
The prosecution case also included evidence from the complainant’s twin brother, KM, and his older brother, JM, which was not in dispute. The prosecution did not call TS’s mother, JL.
Defence case
The appellant did not give or adduce any evidence at trial.
The defence case was that the complainant could not be accepted as a credible or reliable witness. Defence counsel emphasised the inconsistencies and omissions in the complainant’s evidence, particularly as they related to the complainant’s evidence of specific occasions of abuse. In addition, defence counsel submitted that the conversation in person on 8 June 2021 did not occur as alleged, and even if it did, it was too ambiguous to amount to an admission. Defence counsel also submitted that the conversation on 18 July 2021 was ambiguous and the appellant’s silence did not constitute an admission.
The trial Judge’s reasons for verdict
In the trial Judge’s reasons for verdict, his Honour outlined the particulars of the charged offence, the elements of the offence and the relevant legal directions including as to the complaint evidence and the forensic disadvantage suffered by the appellant. The appellant took no issue on appeal with any of those directions.
The trial Judge then summarised the prosecution case and relevantly, the evidence concerning the appellant’s purported admissions during his conversation in person with the complainant and TS on 8 June 2021, and his admissions by silence during the telephone conversation recorded on 18 July 2021. His Honour also outlined the defence case generally, and in respect of the alleged admissions.

As to the admissions, the trial Judge found that he was satisfied beyond reasonable doubt that the conversation on 8 June 2021 happened in the circumstances as described by the complainant and TS. His Honour found that the complainant confronted the appellant and put to him that the sexual abuse had ‘gone on far too long’ and that the appellant responded by repeatedly apologising to the complainant, and then to TS, urging both of them not to tell anyone else.
In addition, the trial Judge found that he was satisfied that during the telephone conversation on 18 July 2021, the complainant and JL put to the appellant allegations of sexual abuse and that the appellant remained ‘silent in the face of unequivocal suggestions, in the presence of the complainant, that he [had] sexually assaulted the complainant over many years’. His Honour proceeded to make the following findings:
·the appellant heard the statements during which it was alleged he sexually abused the complainant for a number of years;
·the statements were repeated and unequivocally referable to the charged conduct such that the appellant understood what was being put to him and the facts were within his personal knowledge;
·the statements consisted of allegations that the appellant had been sexually assaulting his son over a period of years, and in the face of those allegations, the appellant repeatedly stayed silent; and
·on an assessment of human behaviour, they were statements from which a dissent was expected.
Accordingly, the trial Judge found that the appellant’s silence in the face of the allegations put to him by the complainant and JL, constituted an admission ‘that he had been sexually assaulting the complainant in some way for years’.
The trial Judge stated that irrespective of the admissions, he was satisfied beyond reasonable doubt of the complainant’s credibility and reliability as to the alleged unlawful sexual acts, and that the prosecution had proved the appellant guilty of the charged offence. He referred to, and relied upon, the admissions only for ‘completeness’.
Appeal grounds
The appellant appeals against his conviction on the following grounds:
1.      The [trial Judge] erred in admitting evidence of [the] telephone conversation of 18 July 2021.
2.      The [trial Judge] erred in finding that the silence of the [appellant] during the telephone conversation amounted to an admission by silence.
3.      The [trial Judge] erred in failing to direct himself adequately with respect to the telephone conversation of 18 July 2021 in that:
Particular
[3.1] His Honour failed to consider alternative explanations for the accused’s silence during that telephone conversation
4.      The [trial Judge] erred in failing to provide adequate reasons in that.
Particulars
[4.1] The reasons do not expose, or adequately expose, the use his Honour made of the tearful presentation of the complainant during his evidence.
[4.2] In the alternative to [3.1], the reasons do not expose, or adequately expose, the analysis by which his Honour concluded that the [appellant’s] silence in the telephone conversation of 18 July 2021, in that they do not expose a consideration of the alternative explanations for his silence.
[4.3] The reasons do not expose, or adequately expose, his Honour’s use of the finding that ‘the complainant appeared to bear no animosity towards the [appellant] apart from in relation to the conduct forming the case against the [appellant]’.
During the hearing, the appellant was granted leave to add the following particulars to Ground 4:
4.4That the reasons do not expose, or adequately expose, the portions of the conversation (either the words spoken by JL or the relevant portion of silence which followed) which were relied upon to find that the appellant made one or more admissions by silence.
4.5 That the reasons do not expose, or adequately expose, the analysis applied to the relevant portions of the conversation which resulted in a finding that it could amount to an admission or admissions by silence.
4.6 That the reasons do not expose, or adequately expose, the manner in which the [trial Judge] deployed any admission by silence.
Appeal Grounds 1 and 2: Admissibility and use of the 18 July 2021 telephone conversation
It is convenient to consider Appeal Grounds 1 and 2 together. Under these grounds, the appellant challenges both the admissibility and use made of the purported admissions by silence during the telephone conversation on 18 July 2021.
It is well established that evidence of admissions against a person’s interest, sufficiently referable to a fact in issue, are admissible as an exception to the hearsay rule.[2] It is also settled law that an accused person can, by silence or other conduct, acknowledge the truth of a statement.[3]
[2] Burns v The Queen (1975) 132 CLR 258 at 261 (Barwick CJ, Gibbs and Mason JJ).
[3] R v Grills (1910) 11 CLR 400 at 411 (Griffiths CJ); Woon v The Queen (1964) 109 CLR 529 at 536 (Kitto J), 539 (Taylor J), 541 (Windeyer J); Barca v The Queen (1975) 133 CLR 82 at 107 (Gibbs, Stephen and Mason JJ).
As Issacs J explained in R v Grills (‘Grills’):[4]
There may be an express and unqualified admission, or there may be guarded admission, or there may be no direct but merely an implied acknowledgement or there may be conduct, active or passive, positive or negative, from which having regard to the ordinary workings of human nature, a total denial may be considered by reasonable men to be precluded, because, if innocence existed, an unequivocal or a qualified denial would in such a situation be expected.
[4] R v Grills (1910) 11 CLR 400 at 422.
In certain circumstances, it may be open to leave to the jury (or tribunal of fact), that an accused person, having heard a statement put to him or her, and having had an opportunity of explaining or denying it, and the occasion being one upon which the accused person might reasonably be expected to provide an explanation or denial, has, by his or her silence, conduct, or demeanour, admitted the truth of some, or all, of the statement.[5]
[5] R v Grills (1910) 11 CLR 400; R v Salahattin [1983] 1 VR 521; R Kamleh [2003] SASC 269; R v BEC (2023) 16 QR 1 at [63]-[96] (Livesey AJA, Callaghan J agreeing).
It is not what is said to an accused person that is admissible, but rather it is an accused person’s response, by way of silence or conduct, from which an inference might be drawn that he or she has acknowledged the truth of the statement or shown a consciousness of guilt.[6]
[6] R v Christie [1914] AC 545 at 554 (Lord Atkinson); R v Salahattin [1983] 1 VR 521 at 528 (McInerney and Murray JJ).
In R v Spencer (‘Spencer’),[7] the Court of Criminal Appeal, drawing upon the relevant principles outlined by the High Court in Grills, Woon v The Queen,[8] Barca v The Queen,[9] and by reference to other intermediate appellate court decisions,[10] explained that whether such an inference is capable of being drawn will depend on the coalition of a number of facts, including:
1.    whether the accused heard or received the relevant statement;
2.    whether the accused understood the relevant statement;
3.    whether the facts were within the personal knowledge of the accused; and
4.    whether upon an evaluation of ordinary human behaviour, the statements were such that a dissent would have been expected.
[7]     R v Spencer [2019] SASCFC 70 at [35]-[39] (Nicholson, Lovell and Hinton JJ).
[8]     Woon v The Queen (1964) 109 CLR 529.
[9]     Barca v The Queen (1975) 133 CLR 82.
[10] R v Salahattin [1983] 1 VR 521; R v Alexander [1994] 2 VR 249 at 263 (Crockett, Southwell and Cummins JJ). See also R v Gallagher [1998] 2 VR 671; R v Nguyen (2001) 118 A Crim R 479; R v MMJ (2006) 166 A Crim R 501; R v Lester [2010] QCA 152; R v BEC (2023) 16 QR 1.
The Court in Spencer also made clear that where such evidence is admitted, it is generally desirable that a direction is given to the effect that the evidence may only be used in the way described if the jury (or tribunal of fact) is satisfied that the accused, by his or her silence or conduct, admitted the truth of the statement.[11]
[11] R v Spencer [2019] SASCFC 70 at [39] (Nicholson, Lovell and Hinton JJ) citing Barca v The Queen (1975) 133 CLR 82 at 107.
On this appeal, and at trial, none of those principles were in dispute.
In the present case, the appellant complains that the evidence of the recorded conversation on 18 July 2021 was not admissible or, in the alternative, was more prejudicial than probative and should have been excluded on that basis.[12] Prior to trial, the appellant unsuccessfully challenged the admissibility of the evidence, and made the following submissions:
·there was no properly identifiable accusation in the words spoken by the complainant or JL;
·the conversation did not permit a response to any accusation found to have been made to the appellant; and
·having regard to the content and context of the conversation, dissent from any proposition would not be expected in accordance with an evaluation of ordinary human behaviour.
[12] R v Christie [1914] AC 545.
In the alternative, it was put that the evidentiary value of the conversation was outweighed by its prejudicial effect; namely, the inflammatory nature of the call and the risk that the recorded part of the conversation (which was verbatim as opposed to a narrative) would be given disproportionate weight.
The appellant again presses those contentions before this Court. In addition, the appellant submits that it is not possible to isolate any particular allegation of misconduct with sufficient specificity to link the purported silence to the proposition with the charged offence. Rather, the statements by the complainant and JL can be characterised as ‘generalised abuse delivered in an aggressive and unrelenting manner’. As such, the appellant contends that the allegations did not invite a response.
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.
A short time later, JL intervenes. She expressly referred to the appellant having ‘put your filthy fucking hands on your son’ and later, ‘But you know what no one deserves to have that sort of shit happen to them and for you to not even have the balls to admit it to your son and just … I listened to you for the last 3 minutes and I said, you said why don’t you just say yes I touched you and I shouldn’t have yes I had filthy fucking things I did to you and I shouldn’t have because I’m your father, I’m supposed to protect you and love you and bring you up and if I’ve got urges like that, you know what go get a freaking hooker, go, go somewhere else you don’t do that to your child what is wrong with you’.[14] This is followed by silence for two seconds before JL again continues the conversation.
[14] Emphasis added.
Towards the end of the conversation, JL also said, ‘Well, I wonder if the cops are gonna think the same I wonder because I’m about to call them you’ve had your chance and I’m not gonna let these kids live through this shit by themselves and you pretend that you’re this nice guy that goes to church. [The complainant] has no reason to lie and his friends know what he’s like’.[15] This is followed by silence for nine seconds before JL again continues the conversation.
[15] Emphasis added.
There can be no doubt that the statements put to the appellant by the complainant and JL during this conversation were unambiguous allegations of sexual abuse or sexual touching that occurred over several years which were of sufficient seriousness to report to the police.
We are also satisfied that it is immaterial that the statements concerned broad allegations of sexual touching rather than allegations of a particular incident given the appellant was charged with an offence contrary to s 50(1) of the CLCA. In proof of the charged offence, the prosecution was not required to establish any of the constituent acts with the level of particularity required if they were charged as separate offences. Rather, the trial Judge only had to be satisfied of the general nature and character of the unlawful sexual acts.[16] As outlined earlier, the central issue in dispute was whether the appellant had engaged in an ongoing course of sexual abuse of the complainant during which he committed two or more unlawful sexual acts with or towards the complainant. In those circumstances, there was sufficient specificity in the statements to connect them and the appellant’s silence to the statements with the charged offence.
[16] Criminal Law Consolidation Act 1935 (SA) ss 50(4)(a)-(b); R v Rippey [2022] SASCA 141 at [112]-[116] (Livesey P, Doyle JA and Buss AJA); JJP v The Queen (2021) 139 SASR 91 at [144]-[158] (Doyle JA, Bleby JA agreeing).
Contrary to the appellant’s contention, we are also satisfied that the statements put to the appellant, and the circumstance in which they were put to him, were of such a nature that a denial at some point throughout the conversation would, upon an evaluation of human behaviour, ordinarily be expected. The conversation was long and pointed. The allegations of sexual abuse were central to that conversation. Indeed, confronting the appellant with the allegations seems to have been a purpose of the conversation, and was central to it. The allegations were not raised merely in passing. The conversation was in a familial context, and was serious in tone and nature.
It is true that early in the conversation JL said, ‘No, no, no, I don’t want to hear your bullshit I ain’t giving you my time of day you’re gonna listen’. It is also to be accepted that JL’s tone throughout the conversation was aggressive, indignant and undoubtedly hostile. However, the conversation took place over a considerable period of time during which there were extended pauses providing the appellant with several opportunities to respond or deny the accusatory statements put to him. Indeed, towards the end of the conversation, JL explicitly invited the appellant to respond when she asked, ‘Do you have anything at all to say?’ Again, the appellant remained silent.
Bearing in mind the length of time over which the conversation took place, and the unequivocal and unambiguous nature of the statements alleging that the appellant had sexually touched his biological son over a number of years, we do not consider that this is a case, where, as a matter of human experience, dissent would not be expected. The evidence was relevant and probative as an implied admission by the appellant of sexual offending against the complainant.
Further, we do not consider that the trial Judge erred in declining to exclude the evidence as more prejudicial than probative. The evidence was directly relevant to the disputed element of the charged offence and was strongly probative of that issue. It is to be accepted that there were several prejudicial aspects to the evidence including: JL’s expressed belief that the complainant was telling the truth; the derogatory terms in which JL spoke to the appellant; and the reference to the inadmissible conversation with the complainant’s older brother, JM. However, the trial was conducted without a jury and by a judge who was better equipped than a jury to compartmentalise and put to one side the prejudicial aspects of the conversation. This is particularly so in circumstances where the trial Judge expressly directed himself that the only admissible aspect of the conversation was the appellant’s response (or lack of response) to the statements put to him, and not the statements themselves. Had this been a trial by jury, it may have been appropriate or necessary to undertake a task of redacting, or warning against misuse of certain potentially prejudicial aspects of the conversation. However, in the case of a judge sitting alone, the general direction just mentioned was sufficient to guard against any prejudice.
In the circumstances, the trial Judge was correct in concluding that the prejudicial nature of the evidence did not outweigh its probative value. For those reasons, we are satisfied his Honour was not in error in declining to exclude the conversation in the exercise of his discretion.
Applying the principles articulated in Spencer, we are satisfied the evidence of the conversation on 18 July 2021 was admissible, and the trial Judge did not err in ultimately finding that the appellant’s silence to the statements put to him constituted an admission to sexually touching the complainant over a period of years. In particular:
·the statements were not unambiguous or vague but rather, unequivocally alleged that the appellant had sexually touched the complainant over a period of years;
·the statements put to the appellant were properly referable to a general allegation that the appellant had sexually abused the complainant, including by indecently touching the complainant which was the core allegation in dispute at trial;
·the statements were made in circumstances where the appellant heard them, and they were within his personal knowledge; and
·the statements put to the appellant were such that, upon an assessment of human behaviour, dissent would have been ordinarily expected.

For those reasons, the evidence was admissible and there was no error by the trial Judge in ultimately treating the evidence of the appellant’s response as an admission by silence to sexual abuse of the complainant.
We dismiss appeal Grounds 1 and 2.
Appeal Ground 3: Directions
Under appeal Ground 3, the appellant contends that the trial Judge gave inadequate directions as to the telephone conversation on 18 July 2021 by failing to consider or analyse alternative explanations for the appellant’s silence. At trial (after his Honour had declined to exclude the evidence), defence counsel’s primary submission was that the appellant’s silence to the various statements put to him did not constitute an admission because the statements were so vague and ambiguous, a denial would not be expected. Defence counsel also emphasised JL’s ‘attack’ on the appellant and submitted that people respond in different ways to such hostility and the appellant’s silence was capable of being interpreted as him ‘turning the other cheek’ rather than an admission.
The trial Judge, after outlining the relevant evidence, and the principles articulated in Spencer, highlighted several passages of the recording of the conversation before concluding that JL ‘is suggesting the [appellant] has and should have the decency to admit to inappropriately sexually assaulting his son in some way’. His Honour also considered that JL left long pauses for the appellant to respond during which he is silent ‘in the face of unequivocal suggestions, in the presence of the complainant, that he [had] sexually assaulted the complainant over many years, and that he should own up and apologise for his actions’.[17] Those findings answered the primary submissions of defence counsel that the statements put to the appellant were vague and ambiguous, and as such, his silence did not constitute an admission.
[17] Emphasis added.
After applying the relevant principles, the trial Judge then proceeded to find that the appellant heard the statements in question; that he understood what was being said to him; and the facts were within his knowledge. Significantly, his Honour also found that on ‘an assessment of human behaviour, dissent from a false proposition from a family member in the presence of the alleged victim that the [appellant] had been sexually assaulting his own son for years would, in ordinary experience, have been utterly expected in such a circumstance. Indeed, it is very difficult to imagine that a person falsely accused in such a circumstance … would stay silent’.
The trial Judge concluded that ‘the [appellant’s] silence, in the proven circumstances of the 18 July 2021 conversation, does constitute an admission by silence to the proposition that he had been sexually assaulting the complainant in some way for years’.
While the trial Judge did not refer to defence counsel’s submission that his silence was consistent with a religious man ‘turning the other cheek’ in the face of a hostile conversation, it was implicit in his finding that the appellant’s response was ‘utterly expected’ that he rejected this submission. It may have been preferable had his Honour explicitly referred to the submission, however, given the otherwise clear and thorough analysis of the evidence and relevant legal principles, we do not consider the failure to mention this topic exposed any gap in his reasoning, or inadequacy in the directions he gave himself on this topic.
For those reasons, we are satisfied that the trial Judge’s directions were not impacted by error nor productive of a miscarriage of justice.
We dismiss this ground of appeal.
Appeal Ground 4: Inadequate reasons
Under appeal Ground 4, the appellant complains that the trial Judge gave inadequate reasons for finding the offence proved. It is the appellant’s contention that the trial Judge’s reasons do not provide sufficient explanation as to his use of the appellant’s silence during the 18 July 2021 telephone conversation, the complainant’s tearful presentation during his evidence, and the complainant’s apparent lack of animosity to the appellant.
As to the first aspect of this complaint, we are satisfied the trial Judge’s reasons were not inadequate. For the reasons outlined under appeal Ground 3, his Honour comprehensively outlined his basis for concluding that the appellant’s silence during the telephone conversation of 18 July 2021 constituted an admission.
We are also satisfied that the trial Judge was not required to isolate, with any greater specificity than he did, the portions of the conversation which were relied upon to find that the appellant made an admission by silence. The appellant’s response to the telephone conversation on 18 July 2021 fell to be considered as a whole, as did the appellant’s silence to various statements made to him throughout the conversation. In any event, his Honour, in his reasons, did in fact highlight and emphasise particular statements put to the appellant, and the silence which followed, from which he reached his conclusion that the appellant’s silence constituted an admission.
As to the submission that the reasons do not adequately expose the manner by which the trial Judge deployed the appellant’s admission by silence, we do not agree. As outlined earlier, his Honour, in his reasons, outlined the issues in dispute at trial and the parties’ cases, as well as summarising the addresses of counsel. His Honour then made findings about the conversation on 8 June 2021 and the telephone conversation on 18 July 2021. His Honour ultimately reached the conclusion that the complainant’s evidence was ‘credible, compelling, and reliable, such that the events he deposed to are proven beyond reasonable doubt to have occurred’. His Honour found that the complainant’s evidence alone was sufficient on its own to prove the charged offence, absent the evidence of the initial complaint and the appellant’s admissions.
The trial Judge, however, for ‘completeness’ and consistent with his earlier findings, said that the appellant’s apologies during the conversation on 8 June 2021 and his silence during the telephone conversation on 18 July 2021 constituted admissions. His Honour then proceeded to find all elements of the offence proved and the appellant guilty of the charged offence.
Contrary to the appellant’s contention, the trial Judge’s reasons were sufficiently clear as to how he deployed the appellant’s admissions. His Honour explicitly indicated that the complainant’s evidence was sufficient to prove the charged offence, and he had found the offence proved on the basis of that evidence alone. It was ‘for completeness’ that he expressed his findings as to the admissions, presumably as they had been the subject of argument and focus during the trial. That approach in reaching his verdict was open to his Honour and there was no error, or inadequacy, in his reasons in that regard.
The appellant also contends that the reasons were inadequate as to the use the trial Judge made of the tearful presentation of the complainant during his evidence, and his finding that the complainant ‘appeared to bear no animosity or ill will towards the [appellant] apart from in relation to the conduct forming the case against the [appellant]’. Both were matters which relevantly informed the complainant’s demeanour as a witness. It was open to his Honour to have regard to those matters in his assessment of the complainant’s evidence, although there are limitations to the weight which can properly be afforded to a witness’s demeanour.
Moreover, the trial Judge referred to both aspects of the complainant’s demeanour in the context of his broader findings that the complainant was ‘an earnest, palpably honest, and credible witness, whose evidence had the ring of truth, and who consequently the court accepts beyond reasonable doubt’. His Honour also gave himself repeated directions as to the burden and standard of proof, and the need to only decide the case on the evidence admitted in the trial itself. In those circumstances, there was no requirement for his Honour to provide any further reasons as to the use he made of the complainant’s demeanour, nor was there any error in his treatment of this issue.
More generally, we are satisfied that the trial Judge dealt with all the contested issues in his reasons and reached his ultimate conclusion having regard to the whole of the evidence and the parties’ submissions. This is not a case where there is a lack of transparency as to how his Honour reached his essential findings, nor is there any error or inadequacy in the reasons productive of a miscarriage of justice.
We dismiss this ground of appeal.
Proposed orders:
1. Permission to appeal is granted but the appeal is dismissed.