Farmer (a pseudonym) v The King

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.