[2025] SASC 55

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: 03/03/2025 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 (No 3) Criminal Trial by Judge Alone [2025] SASC 55 Reasons for Ruling of the Honourable Justice McDonald 28 April 2025 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - EVIDENCE CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE EVIDENCE - PROOF - STANDARD OF PROOF - STANDARD OF SATISFACTION - PROBATIVE VALUE EVIDENCE - PROOF - STANDARD OF PROOF - STANDARD OF SATISFACTION - PROBATIVE VALUE - CIRCUMSTANTIAL EVIDENCE This is an application made by the accused, for the exclusion of discreditable conduct evidence, specifically evidence in relation to alleged observations made by the accused’s neighbours regarding the accused yelling and evidence of the accused’s post-offence conduct. The accused challenges the admissibility of both forms of evidence on the grounds that the neighbours’ observations of yelling and the accused’s post-offence conduct are irrelevant and that the discreditable conduct evidence (accused yelling) does not satisfy the test under s 34PA(2)(a) of the Evidence Act 1929 (SA). The Director contends that the evidence regarding the neighbours’ observations of the accused yelling and the circumstantial evidence of the accused’s post-offence conduct, is relevant to the prosecution case in identifying and determining the nature of the relationship that existed between the accused and the deceased. The Director submits that the discreditable conduct evidence satisfies the test under s 34PA(2)(a) of the Evidence Act in that the probative value of the evidence outweighs its prejudicial effect and thus should be admitted. -- 1 of 22 -- Held: application partially dismissed: The evidence in relation to the neighbours’ observations of the accused yelling: 1. The evidence of Clayton Whitehead regarding observations of the accused yelling is relevant and is to be admitted. The probative value of the evidence outweighs its prejudicial effect, and the permissible use of the evidence can be kept separate and distinct from any impermissible use. 2. The evidence of Michelle Whitehead is relevant and is to be admitted. The probative value of the evidence outweighs its prejudicial effect, and the permissible use of the evidence can be kept separate and distinct from the impermissible use. 3. The evidence of Christopher White is relevant and is to be admitted. The probative value of the evidence outweighs its prejudicial effect, and the permissible use of the evidence can be kept separate and distinct from the impermissible use. The evidence in relation to the accused’s post-offence conduct: 4. The evidence of the accused clearing the deceased’s room is relevant and is to be admitted. 5. The evidence of the accused presenting as “pragmatic” to the social worker in the time leading up to the withdrawal of life-sustaining-treatment is relevant and is to be admitted. 6. The evidence of the accused informing the social worker that the deceased had been sexually abused and a police report made is relevant and is to be admitted. 7. The evidence of the accused spending a limited time at the hospital with the deceased is relevant and is to be admitted. 8. The evidence of AP stating that the deceased’s death was a “relief”, in the presence of the accused is not relevant and is to be excluded. 9. The evidence that the accused failed to make mention of the deceased at the post-funeral lunch is relevant and is to be admitted. 10. The evidence of the accused making comments of regret regarding the lack of money for gardening, after the deceased’s death is relevant and is to be admitted. 11. The evidence of the accused not collecting the deceased’s property from her school locker is relevant and is to be admitted. 12. The evidence that the deceased’s ashes were interned in the grave of the accused’s father is relevant and is to be admitted. Whilst most of the evidence is to be admitted, consideration will need to be given to the weight of the evidence at the conclusion of the trial. Evidence Act 1929 (SA) ss 34P, s 34P(2)(a), referred to. HML v The Queen (2008) 235 CLR 334, applied. -- 2 of 22 -- R v WILMOTT (No 3) [2025] SASC 55 Criminal: Application for exclusion of evidence re: accused yelling and post- offence conduct 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. Each of the charged offences arise out of allegations regarding 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. 2 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 and assault, 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. 3 Ms Wilmott has filed a number of interlocutory applications seeking the exclusion of various aspects of the evidence that the Director proposes to lead as part of the prosecution case. This ruling relates to the orders sought in grounds 6 and 15 of an interlocutory application filed by Ms Wilmott on 18 February 2025;6 the application seeks the exclusion of particular categories of evidence. The evidence that is the subject of these applications is evidence of the observations made by Ms Wilmott’s neighbours7 of her yelling at Jasmine and evidence of Ms Wilmott’s conduct after Jasmine was hospitalised and placed on life support. 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 FDN 329. 7 Clayton Whitehead, Michelle Whitehead and Christopher White. -- 3 of 22 -- [2025] SASC 55 McDonald J 2 Item 6: The exclusion of the evidence of Clayton Whitehead, Michelle Whitehead and Christopher White as to alleged observations of yelling 4 Clayton Whitehead, Michelle Whitehead and Christopher White were all neighbours of Ms Wilmott when she lived at 4 Gleneagles Circuit, Greenwith. Mr and Mrs Whitehead lived next door at number 5 and Mr White lived at number 3. 5 Each of these witnesses have provided affidavits setting out events that they observed and/or heard whilst Ms Wilmott lived on the street. In particular, they describe occasions on which they heard Ms Wilmott yell at, or berate Jasmine, and occasions on which they observed Jasmine undertake chores outside of the house, clothed in only her underwear. 6 Ms Wilmott seeks an order that the former category of evidence be excluded, namely, evidence of Ms Wilmott yelling at Jasmine. The basis upon which the application is made is that the evidence is irrelevant or, alternatively, that its prejudice outweighs its probative value. Clayton Whitehead 7 As of July 2020, Mr Whitehead had lived on Gleneagles Circuit for approximately 10 years. The observations that he made, that are the subject of this application, took place over approximately 2013 and 2014. At that time, he was aware of the family who lived next door. Mr Whitehead said that there was a male who was only there for a short period of time (MW), an adult female who he knew as Jenni Wilmott, a young Asian male (OW) and an older Asian child (AW), whose names he did not know. He was however able to name Jasmine on the basis that her name was regularly shouted by her mother. 8 The impugned evidence appears at [8]-[10] of Mr Whitehead’s affidavit of 28 July 2020. In those paragraphs Mr Whitehead described an occasion on which he heard a series of slapping sounds followed by Jasmine crying. He said, “[t]he noise was a solid slapping noise as though Jasmine was being hit with something, a strap or similar”. He said “[t]his continued for several minutes with the mother telling Jasmine to take her hands away” and “it’s not going to stop until you take your hands away”. He said that he also heard the voice of a young male screaming at Jasmine. Such was the impact of what he heard, Mr Whitehead called out “leave her alone you fucking bitch”, without any apparent effect.8 9 It was Mrs Shaw KC’s submission that given that this is evidence of discreditable conduct, not only must the prosecution establish that the evidence is relevant but also that it satisfies the test set out in s 34P(2)(a) of the Evidence Act 1929 (SA). Section 34P(2)(a) relevantly provides: 34P—Evidence of discreditable conduct 8 Affidavit of Clayton Whitehead dated 3 January 2025 at [4]. -- 4 of 22 -- [2025] SASC 55 McDonald J 3 (1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)— (a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and (b) is inadmissible for that purpose (impermissible use); and (c) subject to subsection (2), is inadmissible for any other purpose. (2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if— (a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and … (3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose. … 10 The use to which the prosecution seeks to put the evidence is to assist in determining the true nature of the relationship that existed between Jasmine and Ms Wilmott.9 It is therefore necessary for the prosecution to establish that the probative value of the evidence outweighs its prejudicial effect. 11 It was Mrs Shaw KC’s submission that as a starting point the evidence is simply not relevant, on the basis that most parents at some point will yell at their children, whether that be a product of their approach to parenting or out of frustration. On that argument, it follows that a negative inference cannot be drawn about the nature of the relationship between a parent and child on this evidence alone. 12 Information may be relevant, when it bears upon the assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. As Gleeson CJ explained in HML v The Queen:10 It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative. 13 It would appear from Mr Whitehead’s account, that the events that he described took place shortly before the actus reus of the offence of manslaughter 9 T359. 10 (2008) 235 CLR 334 at [6]. -- 5 of 22 -- [2025] SASC 55 McDonald J 4 is alleged to have occurred. The date range for the offence commences in 2013 when MW left the family home. Mr Whitehead believed that MW left the household shortly after the incident that he described. 14 Whilst I do not accept that as a general proposition, evidence of yelling of itself must be probative of the nature of the relationship between Ms Wilmott and Jasmine before it is admissible, the yelling and accompanying sounds described by Mr Whitehead are of a very distinctive type. In his account, Mr Whitehead described a significant, and to some extent bizarre, assault on Jasmine in which her brother appears to have participated. That conduct, if accepted, gives proper context to what the prosecution says happened after MW left the household. It is consistent with and supports the account of OW, that his mother would involve him in the assaults of Jasmine. The evidence is clearly relevant and therefore is prima facie admissible. 15 It is Ms Wilmott’s contention that even if relevant, the evidence does not satisfy the test set out in s 34P(2)(a), in that it cannot be established that the evidence is more probative than prejudicial. I do not accept that submission. In my view the probative value of the evidence outweighs its prejudicial effect. The permissible use of the evidence can also be kept sufficiently separate and distinct from any impermissible use. 16 An additional issue was raised about Mr Whitehead’s evidence concerning a police door knock that took place on 23 July 2020. I have been provided with a document that appears to be a pro forma door knock form that was completed by a member of SAPOL, when they attended at the Whitehead household on that date.11 17 On that form, notes have been made regarding the remarks made to the police. It reads:12 Often seen outside (young girl) putting bins out shouting by mother. Driving around circuit shouting at children to put items in other people’s bins. Lots of strange incidents – not enough to make CARL report. 18 It was submitted that this note is inconsistent with the version provided by Mr Whitehead in his affidavits, in that in the door knock form there is no mention of the particular assault involving Jasmine, her mother and her brother. 19 I am not convinced that there is an inconsistency, and even if there is, it would only be in a very extreme case that an inconsistency has such an impact to the overall reliability of a witness, that it could amount to a basis to exercise the discretion to exclude the evidence. 11 VDD18. 12 Ibid. -- 6 of 22 -- [2025] SASC 55 McDonald J 5 20 This is not such a case. 21 Even more problematic for this argument is that the endorsements on the door knock form would suggest that it was not Mr Whitehead but Mrs Whitehead who was spoken to by the police, at a time when Mr Whitehead was not even home. If that is so, the door knock form is entirely irrelevant to an assessment of Mr Whitehead’s account. 22 I decline to exclude the evidence of Clayton Whitehead. Michelle Whitehead 23 Mrs Whitehead has also provided an account of what she heard and observed occurring next door at Gleneagles Circuit. She too knew Jasmine by name, as Jasmine had introduced herself when she attended at their house to request to borrow things, and had heard her name being screamed by Ms Wilmott. Although Mrs Whitehead does not provide their names, she identified that a man, a woman and two boys of Asian appearance, one older and one younger, also lived at the house. 24 In her affidavits Mrs Whitehead described hearing yelling coming from the Wilmott household. She said that in 2008, when the family first moved in, she did not notice anything untoward, however about a year later she started to hear yelling coming from next door.13 She believes that the yelling took place over the last two years that the family lived at the house. She described the yelling in these terms:14 It was every morning and it was too much. It was a bit sporadic as though the person yelling was going through stages. She would get worse and better as though her stress levels were up and down. 25 Mrs Whitehead also described hearing Ms Wilmott screaming and slamming car doors in the mornings. She described this screaming as “excessive compared with what [she] would consider a normal yell at a child, more frequent”.15 26 In explaining the nature of the yelling that she heard, Mrs Whitehead said that she had been “raised in a ‘Scottish’ household where a loud voice is commonly used, but in no. 4 the voice of the woman was not only loud and screaming but filled with animosity”.16 27 Mrs Shaw KC challenged the evidence of Mrs Whitehead on the same basis that she challenged that of Mr Whitehead. She however made a particular complaint about the relevance of Mrs Whitehead’s account of hearing yelling and car doors slamming. The effect of Mrs Shaw KC’s submission was, in the context of attempting to herd three children into the car at the start of a school morning, a 13 Affidavit of Michelle Whitehead dated 3 February 2025 at [6]. 14 Affidavit of Michelle Whitehead dated 28 July 2020 at [6]. 15 Ibid at [10]. 16 Affidavit of Michelle Whitehead dated 3 February 2025 at [6]. -- 7 of 22 -- [2025] SASC 55 McDonald J 6 description of slamming car doors and yelling by parents is hardly out of the ordinary. 28 If that was the totality of the evidence of Mrs Whitehead, there would be some force in Mrs Shaw KC’s submissions. However, in her affidavits Mrs Whitehead appears to make a particular effort to make it plain that the yelling and screaming that she heard was, in her experience, not of the type that is commonplace in a domestic context. As I understand it, Mrs Whitehead is a mother with children of her own. 29 In those circumstances, I am satisfied that the evidence of Mrs Whitehead is relevant, and it satisfies the test in s 34P(2)(a), in that the probative value of the evidence outweighs its prejudicial effect. The permissible use of the evidence can also be kept sufficiently separate and distinct from the impermissible use. 30 I decline to exclude the evidence of Michelle Whitehead. Christopher White 31 When Mr White moved into his house on Gleneagles Circuit, the Wilmott family were already living next door. He described having a courteous, neighbourly, relationship with them. 32 Mr White also described hearing Ms Wilmott yelling at the children to get them into the car in the morning. He said “[t]his shouting was aggressive, and I wondered where she had left to go if there was ever something serious or an emergency”.17 33 Whilst the latter half of that statement would not be admissible in its current form, I take it that Mr White expressed himself in that manner to highlight that the nature of the yelling that he heard was at the more extreme end of the spectrum. 34 Whilst this evidence does not have the same probative value as that of Mr and Mrs Whitehead, it is necessary to consider it in combination with their accounts. 35 The evidence is relevant. How far in fact it takes the prosecution case is another question to be determined when all of the evidence has been heard. 36 I also find that the evidence of Mr White satisfies the test in s 34P(2)(a) in that its probative value outweighs any potential prejudice, and the permissible use of the evidence can be kept sufficiently separate and distinct from the impermissible use. 37 I decline to exclude the evidence of Christopher White. 17 Affidavit of Christopher White dated 10 August 2020 at [7]. -- 8 of 22 -- [2025] SASC 55 McDonald J 7 Item 15: The exclusion of “post-offence conduct” 38 The prosecution seeks to rely on a number of pieces of evidence that relate to Ms Wilmott’s conduct during the time that Jasmine was on life support18 and after her death.19 The prosecution submits that this is circumstantial evidence that is relevant to an assessment of the nature of the relationship between Ms Wilmott and Jasmine. 39 Ms Wilmott seeks the exclusion of the evidence on the basis that it is irrelevant. In support of that, it is contended that “if it is asserted that the particular reaction or approach of the accused to the grief of her daughter’s death is abnormal and therefore indicative of consciousness of guilt, the evidence is incapable of supporting that inference, and unfairly presumes there is an appropriate reaction to grief”.20 It was submitted that contrary to the prosecution case, there are witnesses who depose to the “genuineness of [Ms Wilmott’s] grief, her concern to ensure she stays strong, managed the trauma experienced by her 10 year old son who found his sister, and attempted CPR, at a time when she also had support from her friend Maria Paraskeva”.21 40 It is the prosecution’s submission that the evidence is relevant to an assessment of the nature of the relationship between Jasmine and Ms Wilmott; “it sheds light on [Ms Wilmott’s] attitude towards her daughter” and the extent of any maternal bond.22 41 At the end of the trial, I will be required to consider two competing arguments about the nature of this relationship; whether Ms Wilmott pursued a course of cruel behaviour towards Jasmine or, as Ms Wilmott contends, she conducted herself as a caring parent who behaved in the manner in which she did out of genuine care and concern for her daughter. This will involve an assessment as to whether Ms Wilmott acted in accordance with expected maternal instincts, which will need to be considered in the overall context of the nature of her relationship with Jasmine. 42 It is the prosecution’s submission that, whilst both parties will make competing submissions about the weight of the evidence, and the inferences to be drawn from it, it is only if the evidence is intractably neutral, in that it cannot assist one way or the other, that it should be excluded on the basis of relevance.23 18 From 4 October to 6 October 2018. 19 “Post-offence conduct” is the term that is commonly used for this category of evidence. I adopt that term for convenience, however I remain fully cognisant that the prosecution have not yet proved the commission of any offence. At this stage the prosecution case comprises of no more than allegations of criminal conduct. 20 FDN 329. 21 Ibid. 22 T309. 23 T310. -- 9 of 22 -- [2025] SASC 55 McDonald J 8 43 The prosecution expressly disavows any reliance upon this evidence in order to establish a consciousness of guilt. The sequence of events 44 In order to understand the nature of the evidence that the prosecution proposes to lead, and Ms Wilmott’s objections to that evidence, it is necessary to set out some of the details of the events following OW locating Jasmine hanging in her wardrobe. 45 At 10.49am on 4 October 2018, emergency services were contacted by OW and immediately attended. After resuscitation attempts, Jasmine was conveyed to the Flinders Medical Centre at 11.18am, arriving there at 11.28am. At about 12.06pm she was transferred to the Intensive Care Unit at the Flinders Medical Centre, where she remained for the afternoon until 6.35pm when she was transferred by MedSTAR Kids to the Paediatric Intensive Care Unit of the Women’s and Children’s Hospital. 46 At 11.54am Ms Wilmott and OW attended at the Flinders Medical Centre. Ms Wilmott was still at the Flinders Medical Centre at the time that Jasmine was transferred to the Women’s and Children’s Hospital. 47 From the Flinders Medical Centre, Ms Wilmott and OW returned home for a period of time. 48 Ms Wilmott told Debbie McCarthy, a social worker at the Flinders Medical Centre, that she did not know what to do as she had both Jasmine and OW to consider. OW told Ms Wilmott that he wanted to go home. 49 About an hour after Jasmine arrived at the Women’s and Children’s Hospital, Raechel Joyce, a social worker employed at that hospital, telephoned Ms Wilmott to see where she was. At the time of the telephone call, Ms Wilmott was still at home. She advised Ms Joyce that she was washing Jasmine’s teddy bear and then planned on coming to the hospital. 50 Sometime after this phone call, Ms Wilmott arrived at the hospital with AP (her partner), AW and OW. 51 In her submissions, Mrs Shaw KC relied heavily on the observation made of Ms Wilmott by Ms Joyce. I set out the relevant paragraphs of Ms Joyce’s affidavit in full:24 I am unsure of the time that Mrs Wilmott, [AP], [AW] and [OW] arrived at the PICU on the 4 October 2018. As Mrs Wilmott and the family arrived at the PICU, one of the PICU doctors met them, and we all went through to Jasmine’s room to talk. I do not recall the name of the doctor. Mrs Wilmott’s questions and responses were appropriate, with a somewhat pragmatic style. She stated that she was in disbelief, shock and felt numb. Mrs Wilmott appropriately supported [OW] who had brought his wand to put healing spells on 24 Affidavit of Raechel Joyce dated 16 October 2023 at [23]-[27]. -- 10 of 22 -- [2025] SASC 55 McDonald J 9 Jasmine. In my notes I have written that Mrs Wilmott’s response was a typical response of shock, grief, guilt and wanting to provide support and protection for [OW] and be present for Jasmine. My recollection of this initial interaction was that Mrs Wilmott was in the room with Jasmine, and she went over to Jasmine who was on the bed and looked at her and spoke to her. I do not recall what she said. I discussed the experience with Mrs Wilmott, and then Mrs Wilmott and [OW], I supported them to normalise their thoughts and feelings. I gave them psychoeducation and strategies for grief and loss, sleeping and eating, encouraged them to ask questions of the doctors. Mrs Wilmott wanted the WCH staff to speak with Ms Jane and Mr Winter and she gave consent to exchange information via a consent form. One of the PICU doctors advised Mrs Wilmott about likely outcomes and was she aware of the process and ability to call, visit, bring extended family and friends and request support from the WCH as needed. I cannot remember exactly what the doctor said to Mrs Wilmott. Given I have written ‘and she was aware of the process’ I imagine the conversation was regarding brain death assessment, but I cannot be exactly sure of this. Mrs Wilmott was going to take the boys home and return the following morning (5 October 2018) to spend time with Jasmine. I advised Mrs Wilmott that I would review Jasmine the following morning. I do not recall how long Mrs Wilmott and the family stayed at the WCH for on the evening of 4 October 2018. I am fairly confident that none of the family stayed with Jasmine overnight. 52 At some stage, while Ms Wilmott was at the hospital, Ms Joyce had a conversation with her about whether she would like to stay with Jasmine that night. Ms Wilmott replied with words to the effect of “Jasmine was unconscious” and “OW was conscious”, therefore OW needed her support. 53 Ms Joyce telephoned Ms Wilmott at 11.25am the following morning. At that time, Ms Wilmott said that she was coming into the hospital at about 11.45am and that she was bringing OW and a friend, who would care for OW whilst she spoke to the doctor. 54 There is no evidence about what time Ms Wilmott arrived at the hospital, other than it was some time after the 11.25am telephone call. At some point that day, there was a meeting involving the various doctors involved in Jasmine’s care, Ms Wilmott and two of Ms Wilmott’s friends. During the course of the meeting, the doctors explained that there was no possibility of meaningful survival – either Jasmine would have a decline resulting in death or she would remain in a vegetative state requiring full time care for all aspects of her life. 55 Later that day, there was another family meeting about the possible donation of Jasmine’s organs. Ms Wilmott expressed a wish to donate Jasmine’s organs on the basis that “something good” may come out of the situation. Present at the meeting were Ms Wilmott, her two friends, AW and his girlfriend, and OW. -- 11 of 22 -- [2025] SASC 55 McDonald J 10 56 There is no evidence about what time Ms Wilmott left the hospital on 5 October 2020, however there is evidence that she spent the night at home.25 57 At 10.00am on 6 October 2020, Ms Wilmott, OW and AP arrived at the hospital. At that time there was a meeting during which the surgery and organ donation process was further discussed. 58 At 11.09am, the extubation took place. Jasmine passed away at 11.22am. 59 As I have said, Ms Wilmott seeks orders excluding aspects of the evidence relating to her conduct whilst Jasmine was on life support and after her death. 1. Clearing Jasmine’s room whilst she was on life support 60 Jasmine was on life support from 4 October 2018 to about 11.00am on 6 October 2018, at which time it was determined to cease any further medical intervention. 61 The evidence that the prosecution proposes to lead on this topic comes from AP’s two daughters, KP26 and EP.27 62 At the time of Jasmine’s death, Ms Wilmott and her three children were living together with AP and his two daughters at O’Halloran Hill. 63 Both EP and KP were present in a granny flat at the rear of the family home when OW found Jasmine in the wardrobe. They remained at the house for most of the day. 64 In her affidavit, EP described Ms Wilmott and OW returning to the house from the hospital in the late afternoon. At that time, she was in the lounge room with KP watching a movie. She said that the following occurred after Ms Wilmott entered the house:28 Then straight away, like immediately after arriving home, Jenni started cleaning Jasmine’s room, I asked why she was doing it and she said it was because it smelt bad but it didn’t. Jenni vacuumed about three times, she put all the sheets through the wash and threw away a number of Jasmine’s belongings, such as the notebooks and rubbish. She told me she was going to have to rip up the carpet. It was very odd to me as Jasmine hadn’t been declared dead yet and if it that was the case and I was the mother I would have stayed at the hospital and at Jasmine’s side until her death. 65 In her affidavit, KP also described Ms Wilmott’s return to the house. She said that Ms Wilmott returned home with OW and AP. She said that there was an 25 Affidavit of KP dated 1 October 2020 at [89]. 26 Affidavits of KP dated 1 October 2020 and 18 January 2025. 27 Affidavit of EP dated 7 September 2020. 28 Ibid at [39]. -- 12 of 22 -- [2025] SASC 55 McDonald J 11 initial conversation in the lounge room during which Ms Wilmott seemed very detached. She described what happened from there:29 A short time after we had the discussion about [OW] and Jasmine, Jenni and [OW] went and cleaned Jasmine’s room. She corrected the chair and picked the paper up and cleaned marks from the carpet. I said to Jenni that you don’t need to do this now, she didn’t respond and it seemed like she just needed to do it. 66 In a subsequent affidavit KP further elaborated:30 … after the police left, there were lots of items left behind. Jenni and [OW] bagged a lot of things up and put them in the bin despite the fact that Jasmine was in hospital. Jenni’s was ‘miss fix it’ e.g. if there was an issue it had to be fixed at that moment, which I understand in the work setting but at home when you wish to relax I found this full on. 67 As a starting point, I make plain that I fully accept that grief can manifest itself in many ways, and therefore great care must be taken before relying on any post-offence conduct in those circumstances. Grief can involve a wide range of emotions which leads to various physical, behavioural and social reactions. It would, therefore, be unfair to attempt to measure Ms Wilmott’s conduct by some theoretical norm. As Mrs Shaw KC stated during submissions:31 So this comes back to my starting point into how people respond to grief. I suppose one can say you can look through it through the prism of guilt and interpret everything as consistent with guilt and the other is you look through the prism of the presumption of innocence but, more importantly, in the unknown territory of how a parent will respond to grief. 68 The evidence of Ms Wilmott’s conduct on her return to the house, after leaving the Flinders Medical Centre, is potentially illustrative of that. The manifestation of grief in some results in the person shutting down; incapable of action or coherent thoughts. For others it is to the contrary, they take solace in activity, they fill the void by occupying themselves. It would appear Ms Wilmott falls into the latter category. 69 The issue is however, whether the evidence, in consideration with other evidence, is capable of shedding any light into the nature of the relationship between Ms Wilmott and Jasmine. In my view, whilst the weight of the evidence currently stands at the lower end of the scale, it may be that, in combination with other evidence, that I am yet to hear, it has probative value. 70 There is an additional consideration, and that is that the entirety of the sequence of events following the finding of Jasmine, is relevant to the unfolding narrative of the prosecution case. There would be an unnecessary artificiality in excising this aspect of the events. Given that this is trial by Judge alone, there can 29 Affidavit of KP dated 1 October 2020 at [84]. 30 Affidavit of KP dated 18 January 2025 at [8]. 31 T315. -- 13 of 22 -- [2025] SASC 55 McDonald J 12 be no unfairness or prejudice to Ms Wilmott in admitting the evidence and determining the weight that it is to be given at the end of the trial. 71 I dismiss the application to exclude the post-offence conduct evidence of Ms Wilmott clearing Jasmine’s room. 2. Ms Wilmott presented as “pragmatic” to social worker Raechel Joyce in the time leading up to the withdrawal of life-sustaining treatment 72 Somewhat ironically, Ms Wilmott relies upon Ms Joyce’s observations in support of the contention that there was nothing in Ms Wilmott’s presentation that was untoward or outside of the normal range of responses to grief. The description of Ms Wilmott as “pragmatic” sits within the collection of observations made by Ms Joyce that informed her conclusion that “Ms Wilmott’s response was a typical response of shock, grief, guilt and wanting to provide support and protection for [OW] and be present for Jasmine”.32 73 There is no basis upon which to exclude this evidence. 3. Ms Wilmott told Raechel Joyce that Jasmine had been sexually abused by her father and a police report made 74 During her interactions with Ms Wilmott, Ms Joyce made contemporaneous notes. The notes relevantly record:33 S/W in unit to support Jasmine’s family with ongoing treatment and decision making. S/W asked Jenni about Jasmine’s dad, Jenni said their relationship is distant follow [sic] allegations from Jasmine re sexual abuse. Jenni said this was reported to SAPOL, not taken to court, Jenni advised as SAPOL thinking too stressful w ̅ Jasmine as a witness. Jenni said there are no court orders, Jenni is unable to contact him, she doesn’t have contact details. … 75 In her second affidavit, Ms Joyce provided some further context to this note and said:34 Further to paragraph 33,35 given the inevitability of Jasmine’s passing I believed that all immediate family members had the right to know Jasmine’s prognosis. I therefore enquired with Mrs Wilmott about Jasmine’s father. Mrs Wilmott advised that Jasmine’s relationship with her father was distant. I recall that Mrs Wilmott said that there were allegations of sexual abuse that had been reported to SAPOL. Mrs Wilmott said words to the effect that Jasmine had “nothing to do with [MW]” and that Jasmine “would not want [MW] present in PICU”. Ideally, we would want all parents involved in family meetings. Mrs Wilmott presented this information as though she was being protective of Jasmine. I did not find Mrs Wilmott to be unreasonable given the allegations but did explore whether she had contact details to make contact with [MW]. Mrs Wilmott advised that she was unable to contact [MW] as she did not have his contact details. 32 Affidavit of Raechel Joyce dated 16 October 2023 at [23]. 33 Exhibit VDD15, 5 October 2018 at 1900hrs. 34 Affidavit of Raechel Joyce dated 21 February 2025 at [9]. 35 This is a reference to paragraph 33 of the affidavit of Raechel Joyce dated 16 October 2023. -- 14 of 22 -- [2025] SASC 55 McDonald J 13 76 On the prosecution case, the allegation of sexual abuse by MW is false. It has been described as a “stage line” made up and fed to Jasmine.36 77 It was the prosecution’s submission that Ms Wilmott was not truthful with Ms Joyce in saying that there had been allegations of sexual abuse that were reported to the police, and also about the purported police response. It was submitted that this evidence also demonstrates a preoccupation by Ms Wilmott with respect to the allegations of sexual abuse, instead of her focus being on Jasmine, in circumstances in which she knew that Jasmine was soon to pass. In addition, the prosecution contend that it offered a justification as to why MW ought not to be contacted, consequently limiting access to the child by her adopted father, in the last stages of her life. 78 On the issue of Ms Wilmott’s preoccupation with the topic of MW having sexually abused Jasmine, it was submitted that this sheds light on the nature of the relationship between Ms Wilmott and Jasmine.37 79 It was Ms Wilmott’s contention that there is no basis upon which the conclusion can be reached that this allegation was false, let alone crafted by Ms Wilmott. Mrs Shaw KC made the point that Jasmine had made allegations of physical abuse to friends, a pastor at school, a police officer and in writing to her psychologist.38 80 Mrs Shaw KC also relied on the evidence that suggests that Ms Wilmott did not necessarily accept the truthfulness of the allegations, and asked rhetorically whether this was the behaviour or attitude of someone who was feeding Jasmine “stage lines”; that this evidence is inconsistent with Ms Wilmott actively promoting the allegation of MW being abusive. 81 It is of note however, that most of the evidence about Jasmine making allegations against MW relate to allegations of physical abuse and not sexual abuse. Likewise, the only allegation that was brought to the attention of police was of physical abuse. 82 There is very limited evidence to suggest that Jasmine had ever alleged that MW had sexually abused her. The only evidence that Mrs Shaw KC could point to was a Women’s and Children’s Hospital Emergency Department record dated 15 July 2015 that contains the following note:39 - child disclosed abuse from adopted father to mother - physical abuse, throwing bricks at her 36 T338. 37 T338. 38 T330. 39 VDD6. -- 15 of 22 -- [2025] SASC 55 McDonald J 14 - locking her in her room - not allowing her to attend school thought to be factitious?? - describes dreams of sexual abuse, seem to be beyond her understanding eg in the bath, father put his fingers in her vagina 83 There is no evidence currently before me about the circumstances in which this note was made. From the note itself it would appear that the history that was provided came from Ms Wilmott rather than from Jasmine herself. 84 As I have said, there are three bases upon which the prosecution contends that the evidence is admissible. 85 The first is that Ms Wilmott lied when she spoke with Ms Joyce. It would appear that assuming that Ms Joyce’s note is reliable, it is at least arguable that Ms Wilmott lied or exaggerated about an allegation of sexual abuse being made against MW. 86 The second basis is that the evidence demonstrates that Ms Wilmott had a preoccupation with the topic. Such a preoccupation would only be relevant if it was an unnatural or perverse preoccupation, such that it has the potential to shed some light on the relationship between Ms Wilmott and Jasmine. If it was, in fact, true that Jasmine had made such an allegation, Ms Wilmott’s concerns about Jasmine having been sexually abused, would be natural and explicable, particularly in the context of Jasmine having just attempted suicide. 87 In my view, subject to the prosecution proving that Jasmine did not make these allegations, the evidence is capable of demonstrating a preoccupation with this subject, that reflects on the nature of the relationship between Jasmine and her mother. It is therefore relevant on that basis. 88 The third basis upon which the prosecution contends that the evidence is relevant is that it amounts to an attempt to keep MW away from Jasmine. It is also necessary for the prosecution to prove that Jasmine did not make up these allegations for the evidence to be relevant and admissible for this purpose. If, in fact, Jasmine had made these allegations, it would be unsurprising for Ms Wilmott to react in this way, even in these extreme circumstances. If, however, the prosecution can prove its case theory about the allegations being generated by Ms Wilmott, the evidence would be relevant to show the manner in which she was manipulating the situation to keep MW away. 89 The evidence is relevant on the three bases identified by the prosecution. 90 I decline to exclude the evidence that Ms Wilmott told Ms Joyce that Jasmine had been sexually abused by her father. -- 16 of 22 -- [2025] SASC 55 McDonald J 15 4. Ms Wilmott spent limited time at the hospital with Jasmine between 4 October and her passing on 6 October 2018 91 The evidence on this topic comes from Raechel Joyce and KP. I have already set out the sequence of Ms Wilmott’s attendances at the hospitals. 92 In summary, on 4 October 2018, Ms Wilmott immediately went to the Flinders Medical Centre when she learnt of what had occurred. She remained there when Jasmine was transferred to the Women’s and Children’s Hospital. She returned home once Jasmine was transferred, after OW expressed a preference to go home. 93 Ms Wilmott attended at the Women’s and Children’s Hospital with AP, AW and OW however determined to not stay with Jasmine overnight on the basis that OW’s needs were greater. 94 Ms Wilmott returned to the Women’s and Children’s Hospital the following morning at some time after 11.25am, in the company of her friend and OW. Ms Wilmott appears to have remained at the hospital for most of the day, however, again returned home overnight. 95 At 10.00am on 6 October, Ms Wilmott returned to the Women’s and Children’s Hospital in the company of AP and OW. Jasmine was extubated at 11.09am that day. 96 It was the prosecution’s submission that Ms Wilmott’s absences from the hospital towards the end point of Jasmine’s life, are indicative of the absence of a maternal bond with her daughter, and are relevant to a consideration of the relationship between Ms Wilmott and Jasmine. 97 In particular, the prosecution was critical about how long it took for Ms Wilmott to arrive at the Women’s and Children’s Hospital, when Jasmine was first sent there, and the limited period of time that she remained there after she eventually arrived. It was submitted that any parent, upon learning of a prognosis that was so catastrophic, would not so hastily abandon the bedside of their child and return home. On that basis, it was the prosecution’s submission that this post- offence conduct is of some weight in the case against Ms Wilmott. 98 In support of that contention, the prosecution relied on the evidence that Ms Wilmott had a partner, who at that time was available to assist. 99 There is no doubt that some parents may have made different choices and elected to remain at the hospital with Jasmine and others may have returned much earlier in the morning. That is not to the point. The question is whether this evidence is, in combination with other evidence, capable of shedding some light on the relationship between Ms Wilmott and Jasmine, such that it falls out of the range of responses that would be expected from a parent. -- 17 of 22 -- [2025] SASC 55 McDonald J 16 100 Ms Wilmott was in an invidious position, to remain with Jasmine who was unlikely to be aware of her presence, but who was soon to pass, or to go with OW who had just been through an extremely traumatic experience, one that he would need to deal with in the coming weeks and months. 101 In my view, on the evidence as it currently stands, the decisions made by Ms Wilmott do not fall completely outside of the range of responses that may be expected from a parent who has a healthy, functioning relationship with their children. For that reason, even in combination with the evidence of Ms Wilmott clearing Jasmine’s room, it is unlikely that this evidence progresses the prosecution’s case on the question of the relationship between Ms Wilmott and Jasmine. 102 That does not however, mean that the evidence is irrelevant. As I have already mentioned, the entirety of the sequence of events following Jasmine’s admission to the Flinders Medical Centre, is relevant to the unfolding of the narrative of the prosecution case. On that basis, I do not propose to exclude the evidence. Again, the real question will be what weight can be placed on the evidence at the end of the trial. At this point in time, it would appear to be unlikely that I would be prepared to draw any adverse inference against Ms Wilmott, based on the decisions that she made about when to be in attendance at the hospital. 5. At Jasmine’s funeral, AP indicated, in Jenni Wilmott’s presence, that Jasmine’s death was a “relief”. Ms Wilmott did not demur and did not speak about Jasmine at the post-funeral lunch that they had with the family 103 It is convenient to break this complaint into two episodes; namely, the comment made at the funeral, and the failure to mention Jasmine at the lunch, as different considerations apply. The comments made at the funeral 104 The evidence on this topic again comes from KP and EP. 105 In her affidavit, KP described attending at Jasmine’s funeral. She said that “Dad also went around to Jenni’s family saying, and I quote; “It’s a relief...” He said this with and without Jenni being there, but I never saw Jenni deny it or disagree with what he was saying. This horrified me”.40 106 KP does not provide any further details of when and in what context she heard these comments being made. 107 There is even less detail in EP’s affidavit. In the context of describing Jasmine’s funeral, she said:41 That was the first day that I met Jenni’s extended family and I believe it was Dad’s first time meeting them too. Dad said to one particular family member, “thank you for your 40 Affidavit of KP dated 1 October 2020 at [100]. 41 Affidavit of EP dated 7 September 2020 at [43]. -- 18 of 22 -- [2025] SASC 55 McDonald J 17 condolences and your kind words, it’s been really hard but it’s a bit of a relief”. From that point I shut off emotionally for the rest of the day. … 108 It was Mrs Shaw KC’s submission that based on this evidence it is not open to conclude that AP was expressing relief in Jasmine’s death, and even if he was, it was also not open to infer that by Ms Wilmott’s silence (on the occasions it was said that she was present) amounted to adopting or concurring with those statements. 109 In relation to KP’s affidavit,42 it was submitted that based on the structure of the affidavit, it could readily be inferred that these statements were made at the wake after the funeral. Mrs Shaw KC made the submission that it is unclear as to what AP was referring when he said “it’s a relief”. Mrs Shaw KC asked rhetorically:43 Is it a relief that the service is finished? What a hard thing for any family to have to do, to have a service about their daughter. So the dot, dot, dot is actually quite important, because we don’t know what he’s referring to. 110 Mrs Shaw KC also relied on other evidence that demonstrated how upset Ms Wilmott was during the funeral. She was described as sobbing and too distraught to read the eulogy. It was submitted that, put into its proper context, there was no foundation for the inference to be drawn that Ms Wilmott was agreeing with a suggestion that Jasmine’s death was a relief. 111 In her submissions, Ms Litster also relied on the context in which the relevant passage appears in KP’s affidavit. She said that properly considered, the comments made by AP must be referrable to Jasmine’s suicide. The reactions of KP and EP also illuminate the meaning of the comment and appear to support the proposition that it was Jasmine’s death that was being discussed. 112 For this evidence to be relevant and admissible against Ms Wilmott it must be established that AP made the statements attributed to him, that Ms Wilmott was present when he made the statements, in making the statements AP was referring to the suicide of Jasmine, that Ms Wilmott understood that was what he was referring to, and by her conduct Ms Wilmott was adopting or concurring with the statements. 113 Unfortunately, both affidavits contain limited details of the surrounding circumstances in which these comments were made. Assuming that it can be established that AP made the statements, the version recounted by EP appears to more directly lend itself to the interpretation contended for by the prosecution. However, EP does not say that Ms Wilmott was present for that conversation. It follows that this conversation is not admissible against Ms Wilmott, as a statement adopted by her. The only issue to which this evidence could be put is to establish 42 Affidavit of KP dated 1 October 2020. 43 T314. -- 19 of 22 -- [2025] SASC 55 McDonald J 18 that AP was, in fact, making these statements, which would be supportive of KP’s account (in the event that evidence is admissible). 114 KP, on the other hand, describes Ms Wilmott as being present on occasions on which these statements were made. It is not, however, clear whether those statements are referrable to Jasmine’s suicide, or rather reflect a state of relief that the funeral and formalities were over. If that is unclear, it cannot be inferred that Ms Wilmott was joining in on any more than that. 115 Given the manner in which the evidence of KP and EP is expressed in their affidavits, it is insufficient to establish a factual foundation for the inference to be drawn that Ms Wilmott, through her silence, was evincing a particular attitude regarding Jasmine’s death. 116 The evidence is therefore not relevant and I grant the application for it to be excluded. The failure to make mention of Jasmine at the lunch 117 This issue arises from KP’s affidavit. She described a lunch that family members attended after Jasmine’s funeral. Present at the lunch were Ms Wilmott, AW, OW, AP, EP, her boyfriend and KP. In her affidavit, KP stated:44 The lunch was not too different to normal dinners, things were brushed aside and we didn’t talk about Jasmine or the funeral, I’m not sure if this was for [OW’s] benefit but again it was weird. 118 Even allowing for some sensitivity surrounding OW’s circumstances, it is at least arguably inconsistent with a normal human experience that at a lunch immediately following her daughter’s funeral, a mother would make no reference to that child. This evidence also needs to be considered in the context of EP’s affidavit in which she states that “from the day of the funeral forward, Jasmine was never mentioned by Jenni ever again”.45 119 This evidence is relevant and is capable of assisting in providing an insight into the relationship between Ms Wilmott and Jasmine. I decline to exclude the evidence. 6. Ms Wilmott made comments of regret about the lack of money for gardening after Jasmine’s death. She had used NDIS funds to pay for the gardening. The NDIS funds obtained by Jenni Wilmott were not utilised wholly for Jasmine’s care throughout her life 120 In her affidavit, EP describes that within a month of Jasmine’s death, Jasmine’s bedroom was converted into a gym and then later into a guest bedroom.46 In that context she described Ms Wilmott making a comment to her saying that 44 Affidavit of KP dated 1 October 2020 at [102]. 45 Affidavit of EP dated 7 September 2020 at [43]. 46 Ibid at [54]. -- 20 of 22 -- [2025] SASC 55 McDonald J 19 “your Dad is going to be sad now as your Dad is not going to be able to afford a gardener”. EP asked Ms Wilmott “what does the gardener have to do with it?”, and Ms Wilmott told her that the gardener had been paid out of Jasmine’s NDIS funding, as she did not have time to take care of the garden because she was looking after Jasmine. However now Jasmine was gone, Ms Wilmott would no longer receive the money for the gardener.47 121 In her submissions, Mrs Shaw KC put to the Court that funding for gardening was permitted under Jasmine’s NDIS package. She explained that the NDIS plan had two categories that allowed for flexible supports at home.48 This was a self- managed package and self-managed fund that included funding for cleaning and household activities, as well as house and yard maintenance.49 122 It was submitted that in the circumstances, in which Ms Wilmott had been provided with funding that could be utilised for gardening, it could hardly be held against her that she used it for that very purpose. Further, the comment made by EP was no more than Ms Wilmott “having a shot” at AP.50 123 I accept that whilst the comment made by Ms Wilmott may not have been in the best taste, it is difficult to see how, particularly absent a temporal context, it advances the case for the prosecution about the nature of the relationship between Jasmine and Ms Wilmott. It does, however form part of the body of evidence that is relevant to the diagnosis of Jasmine and whether any diagnosis was valid. As I understand it, the obtaining of the NDIS package and the use to which this funding was put, will form part of the broader prosecution case on this topic. 124 On that basis, I decline to exclude the evidence. 7. Ms Wilmott did not collect Jasmine’s property from her locker at Blackwood High School despite being advised it could be collected 125 It was Mrs Shaw KC’s submission that there is no evidence about the circumstances in which Ms Wilmott failed to collect the contents of Jasmine’s locker other than, as a matter of fact, the contents had not been collected.51 Mrs Shaw KC submitted that this could in no way suggest that Ms Wilmott did not care about her daughter. 126 In her submissions Ms Litster was realistic about the limited weight that could be placed on this evidence. Despite that, she maintained that the evidence has probative value if considered in the context of the overall prosecution case. 127 I accept that submission. I decline to exclude the evidence. 47 Ibid. 48 T329. 49 Exhibit VDD16. 50 T329. 51 T331. -- 21 of 22 -- [2025] SASC 55 McDonald J 20 8. Jasmine’s ashes were interned in the grave of Ms Wilmott’s father. As at the time of the investigation in 2020, there was no grave marker memorialising her life 128 It would appear that there is still no grave marker for Jasmine. 129 It was Mrs Shaw KC’s submission that this evidence has to be considered in the context of the affidavit of AP, in which he described that they celebrate Jasmine on her birthday, rather than reflecting on the date that she passed away, and that the family have a cherry blossom tree in their rear yard to commemorate Jasmine, as this was her favourite tree.52 130 Ms Litster made a similar submission as to that which she made about the evidence in relation to Ms Wilmott’s failure to collect the contents within Jasmine’s locker. She said that it is a circumstance that reflected Ms Wilmott’s level of attachment to Jasmine and, whilst it is one of the smaller circumstances in the mix, it is nonetheless relevant. 131 I accept that submission and decline to exclude the evidence. Conclusion 132 I make the observation that whilst I have declined to exclude much of the “post-offence conduct” evidence, that is the subject of objection, there remains a live issue as to the weight that can be placed on a number of aspects of this evidence. The appropriate time to make that determination is at the end of the trial when I have heard all of the evidence and the closing addresses of counsel. 52 Affidavit of AP dated 29 October 2020 at [17]. -- 22 of 22 --