[2025] SASC 82

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: 09/05/2025 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 4) Criminal Trial by Judge Alone [2025] SASC 82 Reasons for Ruling of the Honourable Justice McDonald 29 May 2025 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - GENERALLY This is an application for a stay of proceedings until such time that the prosecution advises that they will call AP as a witness. The prosecution set out a number of matters which, in combination, had resulted in the prosecution determining that AP could not be called as a witness of truth. The first was a material change in AP’s position about a preparedness to give evidence in the case, and in particular, the timing of that change in position. The prosecution further submitted that there also internal inconsistencies within AP’s account. The prosecution submitted that the decision to not call AP has been taken cautiously, with all of the obligations of the prosecution’s duties weighing heavily, and that it is only after careful reflection, having had an opportunity to meet with the relevant witness, that the prosecution had come to the position that AP cannot be held out as a witness of truth. The accused contends that she cannot receive a fair trial absent the prosecution calling AP to give evidence. The accused contended that any inconsistency between AP and other witnesses had to be considered in the context that the nature of the prosecution case is such that there are many inconsistencies between prosecution witnesses, not just those involving AP. The accused submitted that inconsistencies of themselves are not a sufficient basis upon which to find a witness to be unreliable, and consequently decline to call them to give evidence. The accused further submitted -- 1 of 14 -- that the inconsistencies had not been of such significance that it had impacted on the decision about whether to call AP to give evidence until a specific date. The accused submitted that if the inconsistencies now relied upon by the prosecution were of such great moment, then surely the decision would have been made well in advance of the specified date. Held: 1. The prosecution has satisfied the test of establishing identifiable circumstances that clearly establish that the witness is untruthful, unreliable, or at the very least, reluctant to divulge all he knows. 2. The failure by the prosecution to call AP will not result in an unfair trial. 3. Accordingly, the application for a stay of proceedings is dismissed. Criminal Law Consolidation Act 1935 (SA) ss 13, 14(1), 20(4)(b), 30., referred to. R v M, RS (2018) 131 SASR 24; Rona v District Court of South Australia (1995) 63 SASR 223, applied. Richardson v The Queen (1974) 131 CLR 116; Whitehorn v The Queen (1983) 152 CLR 657; R v Apostilides (1984) 154 CLR 563, discussed. -- 2 of 14 -- R v WILMOTT (No 4) [2025] SASC 82 Criminal: Ruling re AP 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. 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 made an application for a stay of proceedings.6 The basis of the application is the failure by the prosecution to call a potential witness, AP, to give evidence. Before I consider the merits of the application, it is necessary to set out some of the details of the evidence that AP could give if called as a prosecution witness. The evidence of AP Background 4 Jasmine was born in South Korea and adopted by Ms Wilmott and MW in 2003, at the age of four and a half months old. She had an older and younger brother, who had also been adopted from South Korea. 5 Initially, Jasmine and her two brothers lived together with MW and Ms Wilmott at the family home at 4 Gleneagles Circuit, Greenwith. In about 2010/2011, the relationship between MW and Ms Wilmott deteriorated, resulting 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 436. -- 3 of 14 -- [2025] SASC 82 McDonald J 2 in MW moving out of the house to live in a shed located on the property. In late May 2013, MW left and moved to Alice Springs. 6 It is the prosecution case that whilst Ms Wilmott had mistreated Jasmine since her adoption, the situation deteriorated after MW left. For that reason, the prosecution have particularised the offences as occurring between 1 May 2013 and 7 October 2018. 7 In late 2017, Ms Wilmott met and commenced a relationship with AP. Within six months, they had purchased a house together at 12 Lilford Way, Flagstaff Hill. For a period of time, whilst Ms Wilmott was selling her house at Greenwith, she and the three children moved into AP’s home at Larkdale Crescent, O’Halloran Hill. At that time, AP’s two daughters, EP and KP, also lived with him on a part-time basis. As there was insufficient room for everyone in the house, Jasmine and her younger brother, OW, slept in a tent in the rear yard. 8 In mid-2018, Ms Wilmott, AP, and the five children moved into 12 Lilford Way, Flagstaff Hill. At this property, AP’s two daughters slept in a granny flat at the rear of the house. Each of Ms Wilmott’s three children had their own bedroom. Jasmine’s bedroom door was alarmed and there was a security screen on her window. 9 It follows from this chronology, that at the time of Jasmine’s death, AP had known Ms Wilmott and her children for approximately 12 months and had lived under the same roof as them for a significant period of time. Affidavits provided by AP 10 AP has provided two affidavits dated 29 October 2020 and 18 February 2025. It would appear that the second came about as a result of a proofing by the prosecution. 11 In his initial affidavit, AP covered a number of topics. Unfortunately, it is often unclear as to whether AP was describing an event that he saw or heard himself, or whether he was relying on hearsay information. The following is a list of topics raised by AP with an indication of the apparent source of that information. • The history of AP’s relationship with Ms Wilmott, and their families movements between different addresses: (eyewitness evidence). • AP’s understanding of Jasmine’s health issues: (the basis of the evidence is unclear and is potentially hearsay). • AP’s belief that Jasmine was bullied at school and had behavioural issues that resulted in her stealing food from other children: (the basis of the evidence is unclear and is potentially hearsay). -- 4 of 14 -- [2025] SASC 82 McDonald J 3 • The behaviour of Jasmine in hoarding food in her bedroom and in garbage bags around the house and in the granny flat: (the basis of the evidence is unclear and is potentially hearsay). • Jasmine sneaking out of her bedroom window in the middle of the night to steal food from bins: (the basis of the evidence is unclear and is potentially hearsay). • Attempts to manage Jasmine’s behaviour by installing a screen on her bedroom window and a sensor attached to an alarm on Jasmine’s bedroom door: (eyewitness evidence). • Observations of Jasmine eating with the family but throwing up afterwards: (eyewitness evidence). • The occasion on which Ms Wilmott found out that Jasmine had taken images of herself and put them on a dating site, resulting in her being punished by having her hair cut: (the basis of the evidence is unclear and is potentially hearsay). • Observations that Jasmine acted young for her age and did not relate to other people her own age: (a combination of eyewitness evidence and potentially hearsay evidence). • An observation that “before Jasmine passed away I thought things were getting better for her. There was some sort of light”: (the basis of the evidence is unclear and is potentially hearsay). • Celebrating Jasmine’s birthday since her death and plans for a plaque to mark the spot where she was buried, as well as a commemorative cherry blossom tree in the yard: (eyewitness evidence). • Marks on the side of the fridge: (the relevance of this evidence is unclear). • AP’s research into adoption practices in South Korea: (irrelevant and inadmissible). • Monitoring what Jasmine watched on the internet and television: (eyewitness evidence). 12 I make two interrelated observations about AP’s initial affidavit. The first is that the affidavit of AP is relatively short and lacking in detail, particularly given the amount of time that he spent with Ms Wilmott and Jasmine. 13 The second is that in determining the issues on this application, it is important that I do not speculate about what evidence AP could potentially give, based on his presence in the same household as the Wilmott family for an extended period -- 5 of 14 -- [2025] SASC 82 McDonald J 4 of time. The focus should remain on his account as set out in the affidavits that he has provided. It would appear that much of what is contained in the affidavits may be inadmissible hearsay. 14 The addendum affidavit commences with AP explaining that on 26 July 2023 he sent an email to the police requesting that his initial affidavit be withdrawn. He said that the reason he sent the email was because he believed that the case had been withdrawn and there were two small errors that he wished to have amended. 15 In addition to this, AP provided some further clarification about aspects of his initial affidavit. In relation to the hoarding behaviour, AP said that he saw bile under Jasmine’s mattress and he spoke to her about it. He also described Jasmine going into the granny flat when his daughters were not there. 16 He explained that the reason that he and Ms Wilmott monitored Jasmine’s room was because she would leave her bedroom to access and hoard food. This part of his account appears to be based on AP’s own observations and possible hearsay. 17 AP also clarified that whilst he maintained that Jasmine would eat with the family, he qualified this by saying that he would often get home late after the children had eaten. This appears to be admissible eyewitness evidence. 18 There are clearly aspects of AP’s account that may assist and support the defence case. The events preceding the application for a stay 19 On 7 April 2025, the prosecution advised Ms Wilmott, through her lawyers, that they did not propose to call AP as a witness. At that time, no reasons were provided. 20 It was the defence submission that this decision has to be considered against the history of AP’s involvement in these proceedings up until that date. That history commenced on 29 October 2020, the date of Ms Wilmott’s arrest, when AP provided the police with his initial signed affidavit. 21 On 5 July 2023, after Ms Wilmott was arrested for the second time,7 the Prosecution Case Statement was filed, naming AP in Part 3, under the heading “Witnesses to be called”. 22 On 26 July 2023, AP sent the email to Detectives Ward and McPhee requesting that the statement that he had provided “be withdrawn”. It would appear that no action was taken in response to the request at that time. 23 On 21 January 2025, the Director sent an email to Ms Wilmott’s lawyers asking that they advise if they required the prosecution to call AP (amongst 7 26 April 2023. -- 6 of 14 -- [2025] SASC 82 McDonald J 5 others).8 The email explained that in the event that he was required, arrangements would need to be made for a subpoena to ensure AP’s attendance. 24 On 31 January 2025, Detective Ward sent an email to AP asking whether he was prepared to participate in a proofing. Having received no response to that email, Detective Ward sent a further email to AP on 6 February 2025. That email included the following:9 For clarification, you are not obliged to discuss your statement but should you wish to speak to the DPP and recant your statement or advise of your situation you are free to do so. 25 That same day, AP responded, indicating that he believed that his affidavit had been withdrawn, he agreed however, to meet with lawyers from the DPP. AP requested that he be provided with a copy of his affidavit on the basis that he had never received one. Arrangements were made for the meeting to take place on 10 February 2025. 26 It would appear that as a consequence of that meeting, on 18 February 2025, AP provided the addendum affidavit. 27 Over this period in 2025, when AP was engaging with Detective Ward, the prosecution provided a draft opening address to the defence legal team.10 Further and better particulars were also filed.11 Both of these documents made reference to AP. During submissions on the voir dire in relation to the admissibility of “post- offence conduct”, the prosecution also relied upon an aspect of AP’s evidence in support of their case.12 I infer from this sequence of events, that over this period of time it remained the intention of the prosecution to call AP to give evidence. 28 At no stage over that time did the prosecution advise that they did not intend to call AP. As I have said, Ms Wilmott was first advised of this on 7 April 2025. 29 On 2 May 2025, Ms Wilmott filed an interlocutory application seeking a stay of proceedings until such time that the prosecution call AP to give evidence. Although the application was expressed in those terms, a more accurate and practical expression of the defence position is that the proceedings should be stayed until such time that the prosecution advises that they will call AP as a witness. 30 Ms Wilmott contends that she cannot receive a fair trial absent the prosecution calling AP to give evidence. It is on that basis that she seeks a stay of proceedings. There are, however, a number of steps to be undertaken before the Court can determine whether such an application should be granted. The course to be adopted is predicated on the duty of a prosecutor to call all credible and 8 Given that there is no response attached, I assume that, at this stage, there was no response to the enquiry. 9 VDD116; Tab 6. 10 FDN 278, 30 January 2025. 11 FDN 341, 25 February 2025. 12 The aspect of the evidence relied upon was the absence of a grave marker where Jasmine was buried. -- 7 of 14 -- [2025] SASC 82 McDonald J 6 reliable witnesses, who are relevant to the unfolding of the narrative of the prosecution case. The prosecution’s duty to call witnesses 31 The prosecution bears the responsibility for deciding whether a witness will be called on the prosecution case. It is to be expected that the prosecution will call all eye witnesses whose evidence is relevant to the proof of the elements of the offence. The role of a prosecutor in this respect was described by the Court in Richardson v The Queen,13 in the following terms: Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few. What is important is that it is for the prosecutor to decide in the particular case what are the relevant factors and, in the light of those factors, to determine the course which will ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused. It is in this sense that it has been said that the prosecutor has a discretion as to what witnesses will be called for the prosecution. But to say this is not to give the prosecutor’s decision the same character as the exercise of a judicial discretion or the exercise of a discretionary power or to make his decision reviewable in the same manner as those discretions are reviewable. In the context the word “discretion” signifies no more than that the prosecutor is called upon to make a personal judgment, bearing in mind the responsibilities which we have already mentioned. 32 Prosecutors cannot decline to call witnesses for tactical reasons, although equally they cannot present a witness who they consider to be untruthful or lacking in credibility. As discussed by Dawson J in Whitehorn v The Queen,14 considerations which may justify the prosecution declining to call a witness include circumstances in which a witness’ evidence is judged to be “unreliable, untrustworthy or otherwise incapable of belief”.15 33 A Court has no power to direct a prosecutor to call a particular witness. The responsibility to determine which witnesses are to be called on the prosecution case, lies with the prosecutor and the prosecutor alone. It is an onerous task. For this reason, the role of a prosecutor has been described as “a lonely one, the nature 13 (1974) 131 CLR 116 at 119. 14 (1983) 152 CLR 657. 15 Ibid at 674. -- 8 of 14 -- [2025] SASC 82 McDonald J 7 of which is such that it cannot be shared with the trial Judge without placing in jeopardy the essential independence of that office in the adversary system”.16 34 It follows that it is no part of a trial Judge’s role to review a prosecutor’s decision to not call a witness. This reflects the adversarial nature of the trial and the judicial function.17 35 If however, a prosecutor proposes to refrain from calling a witness, who they would otherwise be expected to call, they should communicate that fact to the accused through their counsel. As observed by Deane J in Whitehorn v The Queen “[i]f the accused seeks to be told why the Crown is refraining from calling such a witness, fairness to the accused would ordinarily require that the Crown communicate the reason or reasons”.18 36 It is open to counsel for an accused, to make an application to a trial Judge, to make a request of the prosecutor to provide reasons for arriving at a decision to not call a witness, and invite the prosecutor to reconsider that decision. 37 That is the extent of the role to be played by the trial Judge. The trial Judge cannot direct the prosecutor to reconsider the decision, nor is there the power to direct that the prosecutor call the witness. 38 Whilst there is the power for a trial Judge to call the witness themself, that power has been described as “exceptional” and should rarely occur. 39 In R v Apostilides the High Court distilled these considerations down into six principles. These are:19 1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. 2. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons. 3. Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness. 4. When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor’s reasons for his decision as the prosecutor thinks it proper to divulge. 16 R v Apostilides (1984) 154 CLR 563 at 575. 17 R v M, RS (2018) 131 SASR 24 at [48]. 18 (1983) 152 CLR 657 at 665. 19 R v Apostilides (1984) 154 CLR 563 at 575. -- 9 of 14 -- [2025] SASC 82 McDonald J 8 5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence. 6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice. The reasons provided by the prosecution for not calling AP 40 Ordinarily, in circumstances in which an accused takes issue with a prosecutor declining to call a witness, the procedure adopted is for defence counsel to make an application for the trial Judge to request that the prosecutor provide their reasons for arriving at the decision to not call the witness. 41 On 9 May 2025, at the outset of submissions on the application, Ms Litster advised the Court that whilst the Director’s primary position was that the application was premature, and should be made at the end of the prosecution case, for the “sake of transparency” she was prepared to set out “some basic matters which found the decision not to call [AP] as a witness of truth in the prosecution case”.20 In other words, Ms Litster did not require Mrs Shaw KC to make an application for the Court to request that she indicate the basis upon which the decision had been made to not call AP. 42 Ms Litster set out a number of matters which, in combination, had resulted in the prosecution determining that AP could not be called as a witness of truth. The first was “a material change in [AP’s] position about a preparedness to give evidence in the case”,21 and in particular, the timing of that change in position. From the prosecution’s perspective, it was significant that the email expressing AP’s desire to withdraw his statement was sent eight days before the charge determination was due to be heard in the Magistrates Court. 43 Ms Litster made the point that at the time AP was living with Ms Wilmott and was her guarantor. She submitted that “[t]he inference available … is that [AP] sent that email to the investigator for the purpose of affecting whether the charges against his partner, Ms Wilmott, would proceed past the point of a charge determination”.22 It was contended that the change of position and its timing had to be considered in the context that AP was undoubtedly a partisan witness, and he would have been aware that there were aspects of his affidavit that contained information that was potentially inculpatory of Ms Wilmott. Ms Litster submitted that there is a gratuitous paragraph in AP’s first affidavit about adopted children from South Korea having disabilities, that makes obvious the partisan nature of the witness. 44 Ms Litster advised the Court that whilst there were concerns about whether the prosecution could call AP as a witness of truth prior to 10 February 2025, the 20 T1815. 21 T1816. 22 T1816-1817. -- 10 of 14 -- [2025] SASC 82 McDonald J 9 issue crystallised at the proofing that took place on that date, in conjunction with the proofings of his daughters that also took place at about that time. The combination of the various proofings (and no doubt the stark differences in the witnesses’ accounts) enabled the prosecution to undertake a full evaluation of the evidence that those witnesses would give. 45 In further support of her decision to decline to call AP, Ms Litster relied on the explanation provided by him in his addendum affidavit for why he had asked for his initial affidavit to be withdrawn. It was submitted that there was no basis upon which AP would have held the belief, as asserted in the affidavit, that the charges against Ms Wilmott were to be withdrawn. 46 In addition to this, it was submitted that there are also internal inconsistencies within AP’s account. In particular, there was an inconsistency in his explanation about the need to keep Jasmine safe by detaining her in her bedroom at Flagstaff Hill, as opposed to his explanation for requiring her to sleep in a tent in the backyard at O’Halloran Hill. 47 Ms Litster also pointed to, what she described as, a significant degree of minimisation in AP’s account, about the chores that Jasmine was required to undertake around the house when compared to the accounts of KP, EP, SM,23 and OW. 48 The final matter relied upon by Ms Litster was the demeanour of AP in dealing with the prosecution. Whilst Ms Litster accepted that this factor is never determinative, she submitted that it was still a relevant consideration that on her meeting with him, AP had presented as evasive and argumentative. 49 In summary, Ms Litster submitted that in making the decision to not call AP:24 [I]t’s not any one particular matter but, weighed all together on careful reflection, it’s the indications of partisanship of the witness, the change in his position about a preparedness to cooperate, the material differences between evidence in the prosecution brief of a number of witnesses as against his account and also internal inconsistencies within his own account at times and his demeanour when speaking with me. 50 Ms Litster assured the Court that the decision to not call AP “has been taken fairly cautiously, with all of the obligations of the prosecution’s duties weighing heavily”,25 and that it is only after careful reflection, having had an opportunity to meet with the relevant witnesses, that she had come to the position that AP cannot be held out as a witness of truth.26 23 Another child who had previously been fostered by Ms Wilmott and had lived in the Wilmott household for approximately three years. 24 T1828. 25 T1824. 26 T1825. -- 11 of 14 -- [2025] SASC 82 McDonald J 10 Ms Wilmott’s submissions in support for a stay of proceedings 51 In the usual course, after a prosecutor has provided their reasons for declining to call a witness, if the accused takes issue with the sufficiency of those reasons, an application is made to ask the trial Judge to invite the prosecution to reconsider the decision. 52 Mrs Shaw KC instead proceeded to make submissions which focussed on the adequacy of the reasons that formed the basis of the decision to not call AP. She adopted this approach on the basis that in the event that I accepted those submissions, the first step would be to invite Ms Litster to reconsider her decision and, in the event that Ms Litster declined that invitation, or arrived at the same decision, the next step would be to consider whether to grant the application to stay the proceedings. Stay of proceedings 53 I pause here to say something about the availability of the remedy of a stay of proceedings. 54 There is no dispute that the Court possesses an implied power to stay criminal proceedings in circumstances in which the prosecution will result in a trial that is unfair to the accused.27 It is not a means by which the Court may convey displeasure or disagreement with a decision made by the prosecution. It is an extreme measure that is sparingly used to protect the Court’s processes from abuse and to ensure that an accused receives a fair trial. 55 A stay, whether temporary or permanent, is a remedy of last resort as it has the effect of amounting to a refusal by the Court to exercise jurisdiction. 56 To justify a stay of criminal proceedings, there must be a fundamental defect that goes to the root of the trial, which is of such a nature that there is no other option available to relieve against its unfair consequence. The community interest in facilitating the prosecution of persons accused of serious crimes weighs heavily against the grant of a permanent stay of proceedings. 57 Mrs Shaw KC made submissions about the purported inconsistencies between AP and other witnesses. There were three limbs to the submissions on this topic. 58 The first was that any inconsistency between AP and other witnesses had to be considered in the context that the nature of the prosecution case is such that there are many inconsistencies between prosecution witnesses, not just those involving AP. 59 The second point raised by Mrs Shaw KC was that there is clear authority for the proposition that inconsistencies of themselves are not a sufficient basis upon 27 Rona v District Court of South Australia (1995) 63 SASR 223. -- 12 of 14 -- [2025] SASC 82 McDonald J 11 which to find a witness to be unreliable, and consequently decline to call them to give evidence. In particular, Mrs Shaw KC relied on the decision of Hinton J in R v M, RS.28 In that case, the appellant had been convicted of one count of persistent sexual abuse against his stepdaughter. The complainant gave evidence that she had complained to her mother about the offending and the mother denied that those complaints had been made. The prosecutor declined to call the mother to give evidence. The explanation for that decision was that the prosecutor had taken the view that there was no reason to believe that the complainant was not a witness of truth, and in circumstances in which there was no explanation for the conflicting accounts, the mother could not also be called as a witness of truth. 60 In the context of considering whether that decision had resulted in a miscarriage of justice, Hinton J observed that the fact that the mother could not be expected to support the complainant as to the making of a complaint did not provide, without more, good reason for the prosecutor to not call the mother. Hinton J went on to refer to the High Court in R v Apostilides,29 speaking of it being necessary for a prosecutor to be able to point to “identifiable circumstances” that “clearly establish” that a witness is unreliable before the prosecutor is justified in not calling them. It is only then that the “overriding interests of justice” warrant that the prosecution not call the witness “who can give evidence capable of having some bearing on an issue in dispute”.30 61 The third limb to Mrs Shaw KC’s submissions about the inconsistences between AP and other witnesses, was that those inconsistences had not been of such significance that it had impacted on the decision about whether to call AP to give evidence until 7 April 2025. In particular, as recently as 3 March 2025 when the prosecution relied upon AP’s affidavits on the voir dire, there was no suggestion that he was not to be called as a witness. By that time, the prosecution had proofed EP,31 KP,32 and AP, and had obtained an addendum affidavit from AP. It was Ms Wilmott’s contention that if the inconsistencies now relied upon by the prosecution were of such great moment, then surely the decision would have been made well in advance of this date. 62 Mrs Shaw KC also made the point that AP’s statements are not entirely inconsistent with the prosecution case; in fact, many aspects of his account support evidence to be given by other witnesses who the prosecution are calling. 63 It was Mrs Shaw KC’s submission that a further relevant consideration in considering the adequacy of the reasons underpinning the decision to not call AP, and the consequences for Ms Wilmott arising from that decision, is the fact that AP is (at least potentially) an eye witness to the actus reus of the alleged offending. As a family living together, AP could give eye witness evidence about the living 28 (2018) 131 SASR 24. 29 (1984) 154 CLR 563. 30 R v M, RS (2018) 131 SASR 24 at [57]. 31 EP was proofed on 8 January 2025. 32 KP was proofed on 17 January 2025. -- 13 of 14 -- [2025] SASC 82 McDonald J 12 conditions, social isolation, sensors on the door, the haircut, chores and meal times. It was Mrs Shaw KC’s submission that as an eye witness to the actus reus, AP is a crucial prosecution witness, which increases the magnitude of the adverse consequences for Ms Wilmott in the event that a decision is made to not call him. Consideration 64 AP is a witness who can give material evidence relevant to the resolution of issues that will be in dispute in this trial. Accordingly, I consider that he should be called to give evidence as part of the prosecution case unless good reason exists for not doing so. 65 The prosecution have identified a number of factors that they rely on in combination, to arrive at a conclusion that they cannot hold AP out as a reliable and truthful witness. Whilst one of those considerations are the inconsistencies between AP and other prosecution witnesses, those inconsistencies are not relied upon in isolation, but in conjunction with the other matters identified by Ms Litster. 66 It is also a relevant consideration that, unlike in M, RS, this is not a case in which it is just the accounts of two witnesses that are at odds and cannot be reconciled with one another, but rather aspects of AP’s account are at odds with numerous other witnesses, (some of whom are unknown to each other) across a variety of topics. 67 I also do not accept that there is anything about the timing of the decision to not call AP that undermines the explanation provided by Ms Litster. A decision of this nature must be approached with caution, after careful consideration. I accept that is what occurred here. Whilst the sequence of events is of some utility in understanding the narrative framework that had led to this point, it does not illuminate whether, in accordance with the authorities, it was open for the prosecution to decline to call AP as a witness of truth. 68 In my view the prosecution have satisfied the test of establishing “identifiable circumstances” that “clearly establish” that the witness is untruthful, unreliable, or at the very least, reluctant to divulge all that he knows. 69 In those circumstances, I decline to invite Ms Litster to reconsider her decision to not call AP to give evidence. It follows that I refuse the application for a stay of proceedings. 70 As things currently stand, the complaint raised by Mrs Shaw KC about the failure to call AP falls a long way short from warranting a stay of proceedings. If, however, that situation changes as the witnesses give evidence over the course of the trial, it will be open for Mrs Shaw KC to renew her application at the conclusion, or towards the end, of the prosecution case. -- 14 of 14 --