[2025] SASC 44

Prosecution: R Counsel: MS J LITSTER WITH MR B STURM - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: JENNI GAYE WILMOTT Counsel: MRS M SHAW KC WITH MS E COUSINS - Solicitor: CRAIG CALDICOTT LAWYERS Hearing Date/s: 13/02/2025 File No/s: SCCRM-24-007601 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v WILMOTT Criminal Trial by Judge Alone [2025] SASC 44 Reasons for Ruling of the Honourable Justice McDonald 18 February 2025 CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - PARTICULARS CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY The accused has been charged with the offence of manslaughter and in the alternative, with the offences of criminal neglect, failing to provide food, failing to provide accommodation and two counts of aggravated assault causing harm. The alleged victim of these offences was the accused’s 15 year old adopted daughter. The prosecution relies on both acts and omissions in circumstances in which the accused owed the deceased a duty of care and submits that these acts and omissions amount to a failure on part of the accused to provide the standard of care required from a reasonably competent carer. It is the prosecution case that the accused’s conduct towards the deceased was a substantial cause of her death. The accused seeks an order for further and better particulars of the actus reus of count 1 on the Information on the basis that the prosecution outline fails to identify the actus reus and in the alternative, that if the acts and omissions listed in the prosecution outline are said to constitute the actus reus, the particulars are duplicitous and/or vague and uncertain. There were three issues that arose for consideration on this application, namely; whether the Director could rely on a combination of acts and omissions, whether it is open for the Director to rely on a series of separate acts and omissions that are alleged to have taken place over a five year period and whether the particulars of the offence of manslaughter, provided by the Director, are sufficient for the accused to understand the case that she has to meet. -- 1 of 20 -- Held: 1. The Director can rely on a combination of acts and omissions. 2. The Director can rely on a series of separate acts and omissions that are alleged to have taken place over a five year period. 3. The prosecution are to provide further and better particulars, in relation to count 1 on the Information, in the form as outlined in the reasons for ruling. Criminal Law Consolidation Act 1935 (SA) ss 13, 14(1), 30; Criminal Procedure Act 1921 (SA) s 123(1), referred to. Johnson v Miller (1937) 59 CLR 467; R v Pace & Conduit (Ruling No 2) [2008] VSC 308; R v Staker (2001) 110 SASR 274; Daly v Medwell (1986) 40 SASR 281; R v Barrett (No 3) [2019] SASC 93; Sam v The Queen (2011) 206 A Crim R 67; Patel v The Queen (2012) 247 CLR 531, applied. -- 2 of 20 -- R v WILMOTT [2025] SASC 44 CRIMINAL: Ruling re: particulars McDONALD J. 1 Jenni Gaye Wilmott has been charged with the offence of manslaughter1 and in the alternative with the offences of criminal neglect,2 failing to provide food,3 failing to provide accommodation,4 and two counts of aggravated assault causing harm.5 The alleged victim of each of these offences was Jasmine Da-Eun, Ms Wilmott’s 15-year-old adopted daughter. In addition, Ms Wilmott has been charged with deception, on the basis that it is alleged that she deceived the National Disability Insurance Agency, by falsely reporting that Jasmine had been diagnosed with Autism Spectrum Disorder (‘autism’).6 2 With the exception of count 7, each of the charged offences arise out of allegations about Ms Wilmott’s conduct towards Jasmine, up until Jasmine’s death by suicide. The Information particularises that the offences took place between 1 May 2013 and 7 October 2018, the former being the date on which Jasmine’s adopted father left the household. 3 It is the prosecution case that over that time Ms Wilmott physically, mentally and emotionally abused Jasmine to a level that amounted to criminal conduct. The prosecution relies on both acts and omissions in circumstances in which Ms Wilmott owed Jasmine a duty of care. The acts and omissions relied upon include physical violence, verbal abuse, social isolation, sustained humiliation and the deprivation of food, liberty and suitable accommodation. It is said that these acts and omissions amounted to a failure on the part of Ms Wilmott to provide the standard of care required from a reasonably competent carer. It is the prosecution case that Ms Wilmott’s conduct towards Jasmine was a substantial cause of Jasmine’s death. Background 4 Ms Wilmott has elected for trial by Judge alone. 5 In advance of the commencement of the trial the Director of Public Prosecutions (‘the Director’) provided three documents that set out the prosecution case against Ms Wilmott. These were the Prosecution Case Statement,7 a draft 1 Criminal Law Consolidation Act 1935 (SA) s 13. 2 Ibid s 14(1). 3 Ibid s 30. (Version 13.8.18-5.9.18 as at the date of the offence). 4 Ibid s 30. 5 Ibid s 20(4)(b). 6 Since the time of delivering this ruling, on 5 March 2025 the Director has entered a nolle prosequi in relation to this count. 7 FDN 29, filed pursuant to s 123(1) of the Criminal Procedure Act 1921 (SA). -- 3 of 20 -- [2025] SASC 44 McDonald J 2 Opening Address8 and an outline of argument for a voir dire hearing on the issue of the admissibility of discreditable conduct evidence.9 6 On 10 February 2025, Ms Wilmott filed an interlocutory application10 seeking an order for further and better particulars of the actus reus of count 1 on the Information. 7 The basis of that application was: 1. The prosecution outline fails to identify the actus reus. 2. Alternatively, if the acts and omissions listed in the prosecution outline are said to constitute the actus reus, the particulars are duplicitous and/or vague and uncertain. 8 The matter was called on for mention on 11 February 2025, to discuss the timetable for the hearing of various interlocutory applications that had been filed. During that hearing, it became apparent that although the application was for further and better particulars, it was underpinned by a complaint about the manner in which the prosecution has pitched its case, in particular, in relation to the actus reus of the offence of manslaughter. 9 It has become clear that three issues arise for consideration on this application. These are: 1. Can the Director rely on a combination of acts and omissions? 2. Is it open for the Director to rely on a series of separate acts and omissions that are alleged to have taken place over a five year period? 3. Are the particulars of the offence of manslaughter provided by the Director sufficient for Ms Wilmott to understand the case that she has to meet? 10 A convenient starting point for the determination of these issues is the manner in which the Director has set out the case in the three documents that I have identified. The Prosecution Case Statement 11 In the Prosecution Case Statement, the “course of conduct (acts and omissions) of Jenni Wilmott” is described as follows: 8 It should be noted that there was no obligation on the prosecution to provide a draft opening in advance of the trial. 9 FDN 29. 10 FDN 300. -- 4 of 20 -- [2025] SASC 44 McDonald J 3 8. It is alleged that a deliberate course of conduct of acts and omissions by Jenni Wilmott were the substantial cause of Jasmine Da-Eun’s death. 9. That conduct reflected a deliberate course of treatment of the deceased intended to cause psychological suffering, along with deliberately failing to provide her the conditions necessary to live and thrive safely as an adolescent in her care. 10. Further, this course of conduct reflected negligence in the discharge of her duty of care as Jasmine Da-Eun’s parent and carer to the criminal standard. 11. The course of conduct alleged includes the following negligent acts and omissions: a. Failing to provide her with adequate food, shelter and clothing. b. Failing to provide her with adequate access to socialisation within and outside the family home; c. Failing to allow her to move safely and feely within the home (causing her to be locked in her bedroom at Gleneagles Circuit, Greenwith); d. Failing to allow her to move safely and freely within the home at Flagstaff Hill (causing her bedroom door to be alarmed and supervising her exit). e. Failing to provide her with conditions of personal safety by; i. Physically assaulting her, causing others to assault her and causing her to hit herself. ii. Punishing her excessively, including with exercise and chores, physical discipline; cutting her hair; and causing others to punish her gratuitously. iii. Making her falsely admit to dysfunctional behaviours, in person, in writing and on video. 12 The prosecution then set out the nature of the evidence relied upon to support those particulars: Jasmine Da-Eun was isolated socially, restricted and subjected to inadequate living conditions, including in the following ways: a. She was detained by the use of an alarmed door and/or locked in her bedrooms for much of the time when she was at home when she wasn’t doing chores. She was not permitted to move freely throughout the homes she lived in and in the weeks prior to her death she was forced to spend extended periods of time in her bedroom. b. She was not permitted to participate in a normal level of social activities (for example, the evidence shows that she was not permitted to attend a school dance recital ten days before her death without explanation; it also shows that at school Jenni Wilmott requested that she be supervised at lunchtimes and not be permitted to freely socialise. She missed an abnormal number of school days). c. After school there were occasions where she would not be picked up on time and was left by herself, without proper arrangements being made by Jenni Wilmott for her to be safely collected. -- 5 of 20 -- [2025] SASC 44 McDonald J 4 d. She was frequently not permitted by Jenni Wilmott to eat meals with the family. e. From 2010 when Jasmine Da-Eun was 10 years old, she was moved into a slightly modified laundry and toilet downstairs which was unfit for a child to sleep in on account of a number of factors, including its low temperature. f. In Autumn of 2018 at Larkdale Crescent, O’Halloran Hill she was required to sleep in a tent outside on the patio of a house with [O] instead of a bedroom. Jasmine Da-Eun was excessively punished by the accused and subjected to degrading and uncomfortable treatment: a. She was made to run on treadmills and jog on the spot excessively (for punishment, not exercise), as well as to undertake an excessive number of onerous chores, including an ongoing requirement to clean up rubbish at home. b. She was also made to take off her clothes when cleaning, and when at home and in other circumstances. c. She was also required by Jenni Wilmott to hit herself in the head with a closed fist. d. Jenni Wilmott cut her hair as a punishment in 2018. e. The accused made her write and record false admissions of delinquent and dysfunctional behaviour, including of drinking her own urine and admitting to having a criminal record when she had none. f. The accused advised Jasmine Da-Eun’s schools of false allegations regarding her behaviours and insisted upon a disciplinary response to those allegations. Teachers were told not to reward her for positive behaviour. g. Her rooms were subjected to degrading inspections for pieces of food and other forbidden items. Her younger brother [O] was frequently involved in carrying out those inspections, in his supervisory role of her. h. The accused persistently told Jasmine Da-Eun that she was dysfunctional and a burden. i. Jasmine Da-Eun was provided inadequate clothing to wear in cold weather. Jasmine Da-Eun was provided inadequate food: a. She was deprived of adequate food according to a number of civilian witnesses and she was often not permitted to eat the same meals as her family. A number of civilians and doctors reported Jenni Wilmott describing Jasmine Da-Eun in terms which suggested she thought she was carrying more weight than was desirable. She was underweight until her death. Jasmine Da-Eun was assaulted repetitively: a. The accused assaulted Jasmine Da-Eun repetitively. She did so when she was cleaning, when she was sleeping, and in circumstances where it was observed by others that she was begging not to be hit. The accused hit her with her hands, a rolling pin and a wooden spoon. The accused also got others to assault Jasmine Da-Eun (including [O] and [S]). The assaults happened in areas of her body which tended to -- 6 of 20 -- [2025] SASC 44 McDonald J 5 be concealed by clothing. The accused would, on occasion, get her to take off her clothing before assaulting her. In June 2018, she was assaulted and ran away from home. She was returned to the care of Jenni Wilmott by SAPOL officers at that time. b. This open punishment by way of assault became limited after she moved in with [AP], a new partner, at the end of 2017. The draft Opening Address 13 At the invitation of counsel for Ms Wilmott, the Director provided a draft Opening Address. It is important to note that the Director was under no obligation to provide an opening prior to the commencement of trial, and ordinarily an opening address would not contain the level of particularisation that would be provided by the prosecution on a request for further and better particulars. 14 In the context of identifying the elements of the offence of manslaughter by criminal negligence, the Director particularised the acts and omissions relied upon as amounting to substantial cause of Jasmine’s death. These are: a. Failing to provide her with adequate food, shelter and clothing. b. Failing to provide her with adequate access to socialisation within and outside the family home; c. Failing to allow her to move safely and freely within the home (causing her to be locked in her in her bedroom at Gleneagles Circuit, Greenwith); d. Failing to allow her to move safely and freely within the home at Flagstaff Hill (causing her bedroom door to be alarmed and supervising her exit). e. Failing to provide her with conditions of personal safety, by: i. Physically assaulting her, causing others to assault her and causing her to hit herself. ii. Punishing her excessively, including with exercise and chores, physical discipline; cutting her hair; and causing others to punish her gratuitously. iii. Making her falsely admit to dysfunctional behaviours, in person, in writing and on video. 15 These particulars mirror those in the Prosecution’s Case Statement.11 16 At [134]-[138], the Director set out the evidence relied upon to establish those particulars. By way of example, for the allegation of excessive punishment, the evidence relied upon was described as: i. The accused punished Jasmine Da-Eun with an attitude of cruelty and in a way which would have plainly been deleterious to her psychological welfare. 11 FDN 29 at [11]. -- 7 of 20 -- [2025] SASC 44 McDonald J 6 ii. She was made to run on treadmills and jog on the spot (for punishment, not exercise), as well as to undertake an excessive number of chores (cleaning up rubbish, cleaning generally, bringing in groceries from the car which were far too heavy for her). According to [O], she was made to take off her clothes and hit herself in the head with a degree of frequency. iii. Jenni Wilmott cut her hair as a punishment on one occasion in 2018. iv. As referred to above, the accused got her to pen and record false admissions of delinquent and dysfunctional behaviour, including drinking her own urine and admitting to having a criminal record when she had none. Outline of argument for a voir dire hearing on the issue of the admissibility of discreditable conduct evidence 17 The prosecution’s written outline of submissions for the argument about the admissibility of discreditable conduct pursuant to s 34P of the Evidence Act 1929 (SA) contains a summary of some of the conduct alleged against Ms Wilmott that is the foundation of the manslaughter charge. It reads:12 a. Chores i. Jasmine was made to do excessive chores, both at home and at school, including in her underwear. b. Assaults i. On 30 May 2018, the accused was observed by a neighbour to grab Jasmine by her hair and punch her to the back of the head at least five times (Count 5). ii. On or about 25 June 2018, the accused punched and slapped Jasmine Da-Eun before she was knocked down to the ground, where the accused kicked and stomped on her stomach and legs (Count 6). 1. Jasmine told the witnesses ([G], [H]) that this was not the only time the accused had assaulted her. iii. Jasmine frequently presented with bruises at school. iv. Jasmine made comments to school friends to the effect that: 1. The accused had hit her multiple times with a belt, that she was scared of her mother a lot and that’s why she had lied about how she got the bruises. 2. Her mother had hit her, resulting in bruises to her legs. c. Malnourishment/Underfeeding i. Janine Tee, a paediatrician, opines that Jasmine was underdeveloped and did not develop at a healthy rate until her death. 12 FDN 298 at [6]. -- 8 of 20 -- [2025] SASC 44 McDonald J 7 ii. Numerous witnesses observed Jasmine not eating regular meals with the family and being given less food. iii. Numerous witnesses who attended school with Jasmine observed her to have insufficient food, and food that was poorly suited to consumption at school, such as raw broccoli, loaves of plain bread or pomegranates. iv. Jasmine made comments to several school friends to the effect that she was hungry, her mother had refused to feed her, and she had been sent to bed without any food. d. Confinement i. At the Flagstaff Hill property, in the months leading up to her death, Jasmine was routinely confined to her room. The door was alarmed and Jasmine was supervised by [O]. e. Social Isolation i. Jasmine was socially isolated and wouldn’t have friends over or visit friends’ houses. ii. Jasmine was restricted from attending extracurricular activities at school, including being unreasonably prevented from participating in the school dance performance on 26 September 2018 (eight days before she hanged herself). f. Haircut i. Jasmine’s hair was cut by the accused “forcefully”, at the same time as she presented with a bruise on her face. The elements of the offence 18 In order for the Director to prove the offence of manslaughter (by criminal negligence), it is necessary to establish beyond a reasonable doubt that: 1. As her adoptive parent, Ms Wilmott owed Jasmine a duty of care. That duty of care was that of a reasonably competent carer. 2. Ms Wilmott’s acts and omissions were deliberate and were in breach of that duty of care. 3. Ms Wilmott’s acts and omissions were a substantial cause of Jasmine’s death. 4. Ms Wilmott’s acts and omissions fell so far short of the requirements of reasonable competent parenting as to amount to gross or criminal negligence and thereby to warrant criminal punishment. That is, the acts and omissions involved such a high risk that death or grievous bodily harm would follow that the conduct warrants the sanctions of the criminal law. -- 9 of 20 -- [2025] SASC 44 McDonald J 8 19 Ms Wilmott does not dispute that as an adoptive parent she owed Jasmine a duty of care, nor does she generally dispute the nature of that duty. 20 Ms Wilmott does however dispute that she breached that duty of care and also that her conduct was a substantial cause of Jasmine’s death. 21 Although not expressly put during submissions, I take it that in the event that there is ultimately a finding that there were any shortcomings in Ms Wilmott’s parenting of Jasmine, it will be contended that it was not such as to amount to gross or criminal negligence. The purpose of particulars 22 In Johnson v Miller,13 Dixon J made a seminal statement as to the purpose of particulars in a criminal trial. His Honour said:14 [A] defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. 23 In that same case Evatt J provided a more detailed exposition of the obligation of a prosecutor to provide particulars. His Honour stated:15 It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court’s inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law. For various reasons, including the miscarriages caused by technical objections to matters of form, the formal indictment, information or complaint is allowed to become more sparing in the information it imparts. Side by side, the jurisdiction to order particulars may call for more frequent exercise. It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularize the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer. 24 The requirement for the provision of particulars is underpinned by the need for the prosecution to disclose its case and notions of fairness. It follows that an overly technical approach in assessing whether adequate particulars have been provided should not be adopted. Rather, the determination of the adequacy of particulars should be considered on a case by case basis, taking into account all of 13 (1937) 59 CLR 467. 14 Ibid at 489. 15 Ibid at 497-498. -- 10 of 20 -- [2025] SASC 44 McDonald J 9 the relevant circumstances including the complexity of the prosecution case. The ultimate question remains whether the particulars are sufficient to ensure that the accused is aware of the case that they have to meet. 1. Can the Director rely on a combination of acts and omissions? 25 Mrs Shaw KC, who appeared for Ms Wilmott, did not dispute that a breach of duty can involve a course of conduct, however submitted that it is not open for the prosecution to rely on both acts and omissions in combination. It follows from that argument that whilst the prosecution could rely on an ongoing failure to feed or an ongoing failure to obtain medical treatment, it was submitted that it is not open to rely on such shortcomings in combination with deliberate acts, such as assaults. 26 Mrs Shaw suggested that there was support for her argument in the various criminal neglect authorities, in that the language commonly employed is that the actus reus involves an “act or omission”. That submission however has to be considered in the factual context of those authorities, in that none of those relied upon by Mrs Shaw were concerned with circumstances in which the prosecution attempted to rely on both acts and omissions. 27 In particular, Mrs Shaw relied upon R v Pace & Conduit (Ruling No 2),16 a decision of a single Judge of the Victorian Supreme Court on an application for a directed acquittal, on the basis that there was no case to answer. 28 In Pace, two care workers were charged with the manslaughter of a disabled resident of a community residential home at which they were employed. The prosecution case was one of gross negligence. 29 The relevant series of events leading up to the death commenced with the decision to take the deceased and four other residents to a reserve to watch a game of football. 30 Upon their arrival, Mr Conduit absented himself from the group to take over coaching duties for one of the teams. Ms Pace was left to care for the five men. 31 At some point during the game, the deceased indicated that he needed to go to the toilet and Ms Pace took him to the change rooms for that purpose. Although she remained in the vicinity, Ms Pace did not enter the change rooms. 32 Whilst in the change rooms, the deceased consumed a bottle of liquid that contained liniment, which was not marked in anyway and which turned out to be poisonous. 33 Later, upon their return to the residential facility, the deceased became unwell. It was the prosecution case that in the context of having become aware 16 [2008] VSC 308. -- 11 of 20 -- [2025] SASC 44 McDonald J 10 that the deceased had consumed the liniment, Mr Conduit and Ms Pace failed to respond appropriately and seek medical treatment. 34 The case against Mr Conduit was that he voluntarily and deliberately absented himself from the immediate presence of the five residents, for a protracted period of time, when he was charged with their care and once he was alerted to the deceased having ingested a noxious substance, he failed to obtain medical advice or treatment immediately. 35 The case against Ms Pace was that she had failed to adequately supervise the deceased whilst in the change rooms and, once she was alerted to the deceased having ingested a noxious substance, she failed to obtain medical advice or treatment immediately. 36 The issues at trial were whether there was criminal negligence in either the failure to supervise and/or the failure to obtain medical assistance and, if so, whether any such criminal negligence could be proved to be a substantial and operating cause of death. 37 The question arose as to whether the two aspects of the case should be treated separately or cumulatively. The trial Judge, Lasry J, found that whilst it is common for a combination of circumstances to underpin an allegation of negligence, that on the “unusual facts” of the case, the appropriate course was to treat each component of the conduct separately. His Honour explained his reasoning:17 … in this case the two parts of the Crown case are, in my opinion, to be considered separately and I regard an attempt to combine them as not only difficult as a matter of logic but dangerous in that the true sequence of events and their significance might be clouded. The allegations of failure to supervise and the failure to obtain medical treatment do not occur in parallel. They occur sequentially … they are causative of different events. 38 On the facts of that case there were two separate routes to a verdict of guilty; one was not dependant on the other and, as a matter of logic, they could not have a cumulative effect. That much is demonstrated by the ultimate disposition of the matter. Lasry J found that there was no case to answer for either accused via either route. 39 On the allegation of a failure to supervise, Lasry J was unable to identify any evidence upon which the jury could rely to conclude that the conduct was criminally negligent, that is, that there was such a significant departure from the applicable standard of care that it would merit criminal punishment. 40 Lasry J observed that having made that determination, nothing that occurred subsequently could convert the failure to supervise into negligent conduct. What 17 Ibid at [33]. -- 12 of 20 -- [2025] SASC 44 McDonald J 11 occurred thereafter, in the failure to obtain medical assistance, was an allegation of a different nature that needed to be considered separately. 41 The issue that arose in relation to the failure to obtain medical assistance was even if the conduct was negligent, was it a substantial and operating cause of death? Medical evidence had been led to the effect that even with prompt and appropriate medical treatment, there would have remained a reasonable risk of death. Lasry J concluded that in those circumstances, it was not open for a jury to conclude beyond reasonable doubt that any criminally negligent failure to seek medical treatment was a substantial cause of death. There was certainly nothing about the allegation of the earlier failure to supervise that could assist in the determination of the issue. 42 The approach taken by the Director in this case is, however, distinguishable from that which was taken in Pace. 43 In her submissions, Ms Litster, who appeared for the Director, put to the Court that the starting point in considering the prosecution case is the scope of the duty of care owed by Ms Wilmott to her daughter. That duty is founded on the nature of the relationship between parent and child, and is framed in terms of the vulnerability of the child towards the parent and the obligations of the parent to ensure that the child safely thrives towards adulthood. 44 Ms Litster submitted that the other consideration which frames the particulars is the issue of causation. It is the prosecution case that there were a number of acts and omissions (some more significant than others) which together accumulated and caused the death of Jasmine. It is not a case in which different acts can be divided up on the basis that they have separate causative links. Ms Litster summarised the prosecution case in the following terms:18 Here, we have an accumulation of effect in terms of each act as it weighs on the deceased as a matter of causation. So it’s necessary, in this case, by virtue of the nature of the relationship between the deceased and her mother, the way in which this conduct accumulated upon the deceased, the unusual features of the case, the way in which death was caused, that the Crown charge the offence between 2013 and 2018. … the unusual features of this case, the way in which death was caused and the nature of the relationship between the complainant - between the deceased and the accused necessitates a broader date range. When I say ‘nature of the relationship’, I refer to, really, what may be the daily contact and the fact that smaller acts corrode over time. Those smaller acts and omissions, of course, are interposed with larger matters on the Crown case. 45 There is no rule of law or practice which prevents the prosecution from proceeding on the basis of a course of conduct, when alleging a breach of a duty of care which caused the death of the deceased. 46 In my view, it is open to the prosecution to rely on a series or combination of acts and omissions of differing natures. Whilst true it may be that the authorities 18 T34-35 (13 February 2025). -- 13 of 20 -- [2025] SASC 44 McDonald J 12 commonly refer to acts or omissions, “or” simply means that one condition has to be established. It does not mean that it cannot be both. It is also not uncommon for an act to be capable of description as an omission. A mother removing food from the cupboard so that a child cannot eat equates to a failure to provide food. Whether described as removing food or failing to provide food, the question remains, has the mother by her conduct, breached her duty of care. 47 In R v Staker,19 Peek J had cause to consider a submission that in the context of a charge of endangering life the prosecution could not rely on the cumulative effect of acts or omissions and were required to particularise a single discrete act or omission. In rejecting that submission, Peek J discussed the category of offences which due to their very nature do not offend the rule against duplicity. By way of illustration, Peek J relied upon the decision of Daly v Medwell,20 in which the appellant had been convicted of using a telephone for the purpose of harassing a named victim contrary to reg 38 of the Telecommunications Act 1975 (Cth). It was argued on appeal that each call was a separate offence and should have been charged separately. King CJ did not accept that submission and stated:21 The hearing therefore proceeded upon the basis, in my view, that the complaint alleged a single offence consisting of a continuing course of conduct between the dates specified in the complaint involving the use of the telephone for the purpose of harassing Miss C. It is not difficult to envisage instances, of course, in which a single telephone call of itself may not amount to use for the purpose of harassment, but in which a number of calls of the same kind by reason of the cumulative effect, might be regarded as use of the telephone service for the purpose of harassment. Likewise, as the learned Judge on appeal recognized, it is not difficult to imagine a situation in which a single call by reason of its nature might be characterized without more as use of the telephone service for the purpose of harassment. But, even where that is the case, it does not follow that subsequent telephone calls may not be so linked with the initial telephone call as to form part of the same use of the telephone service. The concept of harassment itself contains within it some element of continuity or at least the capacity for some element of continuity. Likewise, ‘use’ in one of its senses involves some continuity of conduct and it seems to me that the expression ‘use for the purpose of harassment’ can properly cover a continuing course of conduct consisting of a number of incidents so identified with one another by their nature or by time, place or circumstance, that they can properly be regarded as a single course of conduct and a single continuing use of the telephone service. 48 In Staker, in considering the offence of endangering life for which the prosecution are required to prove that a person “does an act or makes an omission”, Peek J observed:22 … the fact that the present statute specifically enacts that an omission, as well as an act, may constitute the basis of liability is a critically important matter when considering whether this statute is intended to permit the charging of a course of conduct. 19 (2011) 110 SASR 274. 20 (1986) 40 SASR 281. 21 Ibid at [296]. 22 R v Staker (2011) 110 SASR 274 at [26]. -- 14 of 20 -- [2025] SASC 44 McDonald J 13 49 Of note in Staker, the Information was particularised to include acts and omissions. It read: …between the 28th day of February 2008 and the 23rd day of June 2008, at Parafield Gardens, without lawful excuse, did acts preventing [X] from getting adequate food and made omissions namely failing to provide [X] with adequate food knowing that the acts and omissions were likely to endanger the life of [X] and being recklessly indifferent as to whether the life of [X] was endangered. (Emphasis added) 50 Peek J also determined that the singular words of “act” and “omission” also included the respective plurals with the legislation positively evincing an intention that a course of conduct may be charged. 51 In R v Barrett (No 3),23 the prosecution relied on a combination of acts and omissions. Ms Barrett was charged with two counts of manslaughter by criminal negligence arising from the death of two babies who died soon after their planned homebirths, at which the accused was in attendance. It was the prosecution case that the accused was engaged to act as a midwife for both pregnancies and births and as such was obliged to provide both antenatal care and care during the birthing and post-natal period, to the standard of a reasonably competent midwife. 52 In her Honour’s reasons for the verdicts, Vanstone J summarised the prosecution case in relation to the first birth in the following terms:24 Particulars of the acts and omissions relied upon to prove the charge included the accused’s advice, encouragement and agreement to facilitate the birth of the deceased in a home environment, in circumstances where it was known that the mother was pregnant with twins; conveying to Ms Kerr that it was safe to have a twin birth at home and failing to accurately advise her of the risks associated with giving birth at home, instead positively reinforcing that Ms Kerr’s babies would be born without complication; offering her services and providing antenatal care in the context of a home birth; failing to discuss a plan to transfer to hospital, and actively discouraging Ms Kerr from consulting other health care providers. Further, the prosecution alleges that the accused failed to properly monitor the heart rate and position of Tully during labour, and failed to provide appropriate and timely advice about the dangerousness of the situation and the need to transfer to hospital. 53 The prosecution particularised count 2 in similar terms. 54 Although agreement between counsel meant that Vanstone J was not required to make any ruling in relation to particulars, there was certainly no suggestion that her Honour was in any way critical of the prosecution relying on both acts and omissions, and in particularising the case in this manner. 55 In my view, it is open for the prosecution to rely on a course of conduct involving both acts and omissions. 23 [2019] SASC 93. 24 Ibid at [15]. -- 15 of 20 -- [2025] SASC 44 McDonald J 14 2. Is it open for the Director to rely on a series of separate acts and omissions that are alleged to have taken place over a five year period? 56 It was contended on behalf of Ms Wilmott that whilst it is open for the Director to rely on a course of conduct, that is only in circumstances in which “it’s a single transaction and a single act”.25 Mrs Shaw used as an example of a permissible course of conduct, the starvation of a child over a period of time. It was submitted that this scenario stands in contrast to the case being put against Ms Wilmott. Mrs Shaw submitted that it was not open to the prosecution to rely on a series of disparate acts, over such an extended period of time, as the actus reus of the offence. It was said that to do so results in an inability to determine issues such as whether an event is too remote or whether there has been a change in circumstances over time, such that there is no causative link between the conduct alleged and Jasmine’s death. 57 During her submissions, Mrs Shaw relied on a number of the particulars provided by the prosecution to highlight the difficulty created by the prosecution presenting its case in this manner. In respect to a particular of “failing to allow her [Jasmine] to move safely and freely within the home” Mrs Shaw suggested that there was a legitimate explanation, consistent with Ms Wilmott’s duty of care to Jasmine, for her to restrict Jasmine to her room at night. That explanation related to Jasmine’s purported eating disorder. Mrs Shaw used the analogy of putting a fence up around a swimming pool to keep a child safe. 58 There is some force in what is contended by Mrs Shaw, about the link between the conduct being relied upon and Jasmine’s death not being immediately apparent. I make the observation that at this point in time, based on my limited knowledge of the case, it is not necessarily clear how it is that some of the conduct relied upon by the prosecution has the necessary causative link. 59 However, that does not mean that it is not open to the prosecution to present the case in this manner. It is rather a question of whether ultimately the prosecution can make good that the conduct amounted to a breach of the duty of care of a reasonably competent carer and was a substantial cause of Jasmine’s death. In due course, much of what was put by Mrs Shaw will be relevant as to whether the prosecution can prove the case beyond reasonable doubt. 60 Whilst I accept that in a case of manslaughter by criminal negligence an allegation of a course of conduct that extends over five years is unusual, a prosecution case of multifaceted negligence is far from unheard of. 61 As set out previously in Barrett (No 3), the prosecution relied on a diverse range of acts and omissions alleged to have commenced in the antenatal period which continued through the birth, up until the death of the child. 25 T5 (13 February 2025). -- 16 of 20 -- [2025] SASC 44 McDonald J 15 62 In Sam v The Queen,26 the prosecution also relied on a course of conduct that took place over a period of time. The accused were a husband and wife charged with the manslaughter of their daughter, Gloria. Gloria died at nine months old from septicaemia, with the antecedent causes being chronic eczema and malnutrition. Essentially, the prosecution case was that Gloria had suffered with chronic eczema from a very young age. The conduct that was the subject of the charge fell between 27 April and 5 May 2007, that being the critical period when the accused should have sought medical treatment following a trip to India. The prosecution also relied on a failure to feed Gloria, resulting in her malnourishment. There was medical evidence presented at trial that if Gloria had not been so severely malnourished, she would have had a better chance of surviving the infection. 63 On appeal, McClellan CJ at CL made the observation that in determining the question of criminal liability it was “entirely inappropriate” to separate the last hours of Gloria’s life when she became critically ill from the earlier period during which time her condition deteriorated. It was during the particularised time frame that Gloria’s condition deteriorated such that she became vulnerable to a critical infection which led to her death. Over that period, the accused had not only failed to access appropriate medical treatment, but had also allowed her to become increasingly malnourished. 64 In Patel v The Queen,27 the prosecution also relied on various aspects of the accused’s conduct as the basis of three counts of manslaughter and one count of unlawfully doing grievous bodily harm. At the relevant time, Dr Patel was employed as a surgeon at the Bundaberg Base Hospital. The charges arose out of surgery conducted on four patients by Dr Patel. 65 The tenor of the initial case against Dr Patel was that he was generally incompetent and grossly negligent in recommending the surgical procedures; the manner in which he carried out each of them; and the post-operative treatment which he supervised. 66 The difficulty that arose in Patel came about in large part because on day 43 of a trial by jury, the prosecution provided a set of revised particulars which had the effect of significantly narrowing the case against Dr Patel. The prosecution case shifted to focus solely on whether the surgical procedures should have been undertaken. This change to the prosecution case had the consequence that a great deal of prejudicial, and largely irrelevant, evidence had been admitted and was before the jury. By way of example, the reformulation of the prosecution case rendered irrelevant the evidence it had led to demonstrate that the appellant had behaved in a certain way in the operating theatre and in the post-operative care of the patients, that were careless to the point of being criminally negligent. 26 (2011) 206 A Crim R 67. 27 (2012) 247 CLR 531. -- 17 of 20 -- [2025] SASC 44 McDonald J 16 67 The High Court allowed the appeal on the basis that there had been a miscarriage of justice because of the manner in which the prosecution case changed at a very late point in the trial, with the result that much of the evidence that had been admitted previously no longer remained relevant to the more confined case that went to the jury. 68 Although the trial clearly miscarried because of the extent of the inadmissible evidence before the jury, there was no suggestion either by the High Court or the Queensland Court of Appeal that it had not been open to the prosecution to particularise and run their case in this broad based fashion.28 The “wheels fell off” when the prosecution recast the case well into the trial, in circumstances in which the jury had before it a large body of irrelevant, highly prejudicial evidence. 69 In his judgment, Heydon J helpfully summarised the basis upon which the appeal was allowed. His Honour said:29 The prosecution case, even on the revised particulars as the trial judge initially understood them, had rendered inadmissible a lot of evidence that may arguably have been admissible on the original particulars. And the prosecution case on the revised particulars in final address, as the trial judge summarised it to the jury, rendered even more evidence inadmissible. The bulk, intensity, significance and repetitiveness of the evidence thus rendered inadmissible is likely to have had a profound and illegitimate effect on the jury. Its prejudicial effect was increased by the fact that much of it was referred to in opening, at a time when its content would be likely to have had a considerable impact. The trial judge’s endeavours throughout the trial to minimise the problems which eventually emerged were earnest, energetic, even heroic. But despite those endeavours, circumstances had conspired to ensure that the prejudice to which the prosecution’s conduct of the trial had exposed the appellant was incapable of being overcome. None of the standard techniques for dealing with material which, having been received into evidence, turns out to be inadmissible could have surmounted it. (Footnote omitted) 70 I have reached the view that it is open for the prosecution to particularise the case against Ms Wilmott based on a series of acts and omissions that are alleged to have occurred over a five year period. The issues raised by Mrs Shaw as to the disparate nature of the acts and their temporal remoteness will ultimately be considerations in determining whether the conduct, if proved, can be causatively linked with Jasmine’s death. 28 In one of the grounds upon which the appellant sought special leave to appeal, that had been referred by the Full Court to the High Court, a complaint was raised about the initial particulars. The appellant considered that the trial judge wrongly permitted the prosecution to proceed on the basis of the original particulars, when they provided so many alternatives as to be incoherent and therefore prejudice the defence. It was not necessary for the Court to deal with this ground on the basis that the appellants had not raised the issue at the time and by the time of the appeal “it is the effect of the particulars, not their quality, which is now in issue”. 29 Patel v The Queen (2012) 247 CLR 531 at [256]-[257]. -- 18 of 20 -- [2025] SASC 44 McDonald J 17 3. Are the particulars of the offence of manslaughter, provided by the Director sufficient for Ms Wilmott to understand the case that she has to meet? 71 As set out previously, the particulars provided by the Director are contained in three documents; the Prosecution Case Statement, the draft Opening Address and the prosecution’s written submissions for the discreditable conduct argument. 72 In the Prosecution Case Statement and the draft opening the same five particulars are set out. In the chapeau preceding these particulars, there is reference to the acts and omissions relied upon by the prosecution as “including” the five particulars, effectively suggesting that the list is incomplete, leaving the door open for the prosecution to introduce other acts or omissions at some later point in time. 73 In my view, at this point in time that is unsatisfactory. At this stage in the proceedings, Ms Wilmott is entitled to know whether, on the prosecution case, the list of the five particulars is the totality of the allegations made against her in relation to the charge of manslaughter. If there are other acts or omissions that the prosecution rely on, then that should be made plain and if not, it should be made clear that the list of particulars is exhaustive. 74 Both the Prosecution Case Statement and the draft Opening Address provide a summary of the evidence underpinning the particulars. The two lists are different and neither marries up with the list of particulars. By way of example, in the draft opening there is a section setting a summary of facts with a heading of “Degraded and repetitively told she was dysfunctional/a burden”. Under that heading there is an entry “Jenni Wilmott persistently constructed a narrative of her having a dysfunctional condition (Reactive Attachment Disorder, then Autism then Obsessive Compulsive Disorder and Mood Disorder – Dr Jureidini says that these diagnoses were unsupported by any objective evidence), and as a liar. Notably, Jenni Wilmott “diagnosed” her before any health professional did, and the health professional who diagnosed her - Dr Curran - did so on Jenni Wilmott’s report of her conditions”.30 75 The allegations set out in that paragraph do not fall within any of the five particulars, although of note, particular “e(iii) making her falsely admit to dysfunctional behaviours, in person, in writing and on video”31 appears to be interrelated. It is not clear from the documents provided by the Director whether the allegation that I have highlighted forms part of the actus reus relied upon by the prosecution or whether it is said to be relevant for some other purpose. 76 The example that I have raised highlights a lack of clarity in the Prosecution Case Statement and the draft Opening Address as to precisely what conduct the prosecution relies on to establish the actus reus of the offence. 30 Prosecution Draft Opening Address (FDN 278) at [135]. 31 Ibid at [127]. -- 19 of 20 -- [2025] SASC 44 McDonald J 18 77 The situation is not improved with the provision of the prosecution outline on the discreditable conduct argument. That is unsurprising given that document was prepared to meet a particular argument and hence focusses on those aspects of the case that are relevant to that argument. 78 I make it plain that I am in no way critical for the manner in which each of these three documents have been drafted and presented. Each was designed for a particular purpose at a certain point in time. It does, however, highlight the need for further clarity about not only the particulars of the offence, but also the evidence relied upon by the Director to prove each of those particulars. 79 In my view, Ms Wilmott is entitled to a greater degree of certainty from a document created for the purpose of setting out precisely what the particulars are and the evidence upon which the prosecution relies to establish them. Such a document would no doubt be of assistance to all, myself included, in understanding and remaining focussed on the parameters of the prosecution case. 80 I invite the Director to consider the production of further and better particulars in the form that I have suggested. -- 20 of 20 --