[2025] SASC 168

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: 21/03/2025, 22/03/2025 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 6) Criminal Trial by Judge Alone [2025] SASC 168 Reasons for Rulings of the Honourable Justice McDonald 7 October 2025 EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE - OTHER MATTERS EVIDENCE - ADMISSIBILITY - EXCLUSIONS: IMPROPERLY OBTAINED EVIDENCE CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN The accused is charged with the offence of manslaughter and in the alternative with the offences of criminal neglect, failing to provide food, failing to provide accommodation, and two counts of aggravated assault causing harm. The prosecution alleges that the accused was physically, mentally and emotionally abusive toward her adopted daughter (‘the deceased’), and that this conduct was a substantial cause of her death. The prosecution seeks to admit into evidence a prescribed interview with OW pursuant to s 13BA of the Evidence Act 1929 (SA). OW is the younger brother of the deceased and an adopted son of the accused. It follows that the prosecution must establish that the interview was recorded in accordance with Pt 17, Div 3 of the Summary Offences Act 1953 (SA). On 14 March 2025, the accused filed an interlocutory application seeking the exclusion of the entirety of OW’s evidence. Numerous grounds were submitted in support of that application and a voir dire hearing was sought. The prosecution opposed both the application seeking the exclusion of OW’s evidence, and the application for a voir dire. Upon hearing submissions, this Court granted the application for a voir dire hearing. The voir dire hearing centred on, but was not limited to, the following particulars: -- 1 of 86 -- 1. The impugned interview was not recorded in compliance with the relevant provisions of the Summary Offences Act 1953 (SA) and is thus inadmissible; 2. SAPOL engaged in unlawful conduct in collaboration with the Department for Child Protection, and OW was unlawfully removed from the accused’s care as a consequence; 3. The removal of OW from the care of the accused, by the Department for Child Protection pursuant to s 41 of the Children and Young People (Safety) Act 2017 (SA) was unlawful and for an improper purpose; 4. The ongoing guardianship order and the exclusion of a relationship between OW and the accused was unlawful and/or an abuse of process of the Court; 5. The conduct of SAPOL and OW’s psychologist undermined and circumvented the application of s 21 of the Evidence Act 1929 (SA) in relation to OW’s rights under that section, nor was OW provided with independent advice in that respect. Held: 1. The application to admit the prescribed interview with OW is granted. 2. The application to exclude OW's evidence is refused. Children and Young People (Safety) Act 2017 (SA) s 41, s 146, s 147; Criminal Law Consolidation Act 1935 (SA) s 13, s 14, s 20, s 30; Evidence Act 1929 (SA) s 12AB, s 13BA, s 21.; Police Act 1998 (SA) s 11 ; Summary Offences Act 1953 (SA) s 74C, s 74D, s 74EA, s 74EB, s 74EC, referred to. Hughes v Police (2009) 103 SASR 337; Police v Henwood (2005) 92 SASR 15; Police v Hodder [2016] SASC 70; South Australia v Crossley [2020] SASCFC 128, applied. Lindsay v The King; Rankine v The King; Woods v The King 142 SASR 175, distinguished. Director of Public Prosecutions (Cth) v Brady (2016) 346 FLR 1; Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325, discussed. -- 2 of 86 -- R v WILMOTT (No 6) [2025] SASC 168 Criminal: Ruling re OW 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 At the time of her death, Jasmine lived with Ms Wilmott, AP (Ms Wilmott’s partner), AW (Jasmine’s older brother), OW (Jasmine’s younger brother), and EP and KP (AP’s daughters). Like Jasmine, AW and OW had been adopted from Korea as infants by Ms Wilmott and her husband at that time, MW. 4 OW had been home at the time that Jasmine hanged herself in her wardrobe. OW found the suicide note that Jasmine had pushed out under her bedroom door, which caused him to go into her bedroom, where he found Jasmine unconscious. OW cut Jasmine down and called for an ambulance. 5 OW has participated in three interviews with the police. The most recent took place on 8 April 2022. The prosecution have made an application for this interview to be admitted pursuant to s 13BA of the Evidence Act 1929 (SA) (‘Evidence Act’). Ms Wilmott opposes the admission of the interview on the basis that it does not satisfy the preconditions for admissibility. In the alternative, it is 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). -- 3 of 86 -- [2025] SASC 168 McDonald J 2 submitted that, even if admissible, the interview should be excluded in the exercise of the discretion. Ms Wilmott, however, goes further than that and has filed an interlocutory application seeking the exclusion of the entirety of the evidence of OW.6 The following grounds are relied upon in support of that application: 1. That the evidence of [OW] was obtained as a consequence of unlawful conduct by the South Australia Police (SAPOL) in conjunction with the Department for Child Protection (DCP). 2. That on the day of the accused’s arrest in October 2020, [OW] (aged 12) was compulsorily removed from the care of the accused, and made subject to Guardianship order. The conduct of SAPOL in that removal and subsequent role of DCP in relation to compulsory care was an abuse of process of the court. This resulted in ongoing psychological treatment and other influences that ultimately led to a change in statements 3. The proposal to lead the third statement of [OW] instead of the earlier two statements, after a long period of compulsory care by DCP, and having had ongoing counselling by a psychologist is contrary to the provisions of the Evidence Act 1929 (SA), and/ or unfair and/ or ought to be excluded in the exercise of discretion … 5. That the removal of [OW] from the care of the accused pursuant to section 41 of the Children and Young People (Safety) Act 2017 (SA) was unlawful and for an improper purpose. 6. That the ongoing application of the guardianship order and the exclusion of a relationship between [OW] and his mother, and subsequently, a denial of a relationship between [AW] and his mother was unlawful and/or an abuse of process of the Court. 7. The conduct of the SAPOL in conjunction with DCP and of the psychologist in relation to the obtaining of the subject interview (08/04/22) with [OW] was in in breach of the provisions of section 74 of the Summary offences Act and the Regulations and SAPOL General Orders. 7.1 Alternatively, it was unfair and an abuse of process and /or ought to be excluded in the exercise of discretion. 8. The conversations between [OW], SAPOL, staff of DCP and the psychologist that were interviews for the purposes of the Summary Offences Act (sections 74D-74EC) were not recorded in accordance with the provisions of that Act, and / or alternatively, such recordings have not been disclosed. 9. The conduct of SAPOL and the psychologist undermined and circumvented the application of section 21 of the Evidence Act 1929 (SA) in relation to [OW’s] rights under that section, nor was [OW] provided with independent advice in that respect. 10. The engagement of the psychologist as the support person resulted in the subject interview that was tainted and/ or unfair to be admitted against the accused 6 FDN 375. -- 4 of 86 -- [2025] SASC 168 McDonald J 3 11. The previous statement of [OW] to SAPOL in 2018 and the content and the circumstances and conduct of SAPOL and DCP in relation to two previous interviews between [OW] and SAPOL in 2020 and 2021, has the result that it is improper and unfair to seek to lead the 2022 interview as the evidence in chief. 12. The evidence ought to be excluded in the exercise of the discretion. The accused will submit that where: 12.1 [OW] at aged 10 suffered the trauma of finding his sister on 04/10/18 in the bedroom, 12.2 was forcibly and unlawfully removed from his mother’s care in October 2020 at aged 12, damaging and destroying his relationship with her, 12.3 was compulsorily placed under the guardianship of the Minister until the age of 18, 12.4 where requests by [OW] to return to live with his mother were denied, 12.5 where only supervised access was initially permitted, and ceased from 15/09/21 and upon the accused’s arrest for manslaughter in April 2023, a condition of her bail precluded contact with her remaining child, [AW], 12.6 the subject interview was given after ongoing psychotherapy and liaison with police, and absent independent advice, and in the presence of section 21 of the Evidence Act, 12.7 where his DCP placement and [OW’s] behaviour had become problematic in the lead up to the interview of [OW] in April 2022, 12.8 where after the giving of the 2022 interview, [OW] expressed his unwillingness or uncertainty about giving evidence against his mother, and 12.9 where the conduct of the authorities whose obligations included the fostering of [OW’s] interests, removed any attachment to or connection with his mother, the calling of [OW] to give evidence against his mother against that background, will likely result in further irremediable trauma to him, is oppressive, contrary to the public interest, an abuse of process and productive of an unfair trial 6 In support of this application, Ms Wilmott sought a voir dire hearing. The prosecution opposed both the applications for the exclusion of the evidence of OW, and the application for a voir dire. Having heard submissions from the parties, I determined to grant the application for a voir dire hearing. The evidence on the voir dire 7 Before considering the respective applications made by the Director of Public Prosecutions (‘the Director’) and Ms Wilmott, it is convenient to set out a summary of the evidence that was given on the voir dire. As some of the arguments were nuanced and heavily dependent upon the factual matrix of this case, it is necessary to traverse the evidence in some detail. -- 5 of 86 -- [2025] SASC 168 McDonald J 4 8 The prosecution called Detective Senior Sergeant Graham Tomkins, Detective Brevet Sergeant Benjamin Ward, Catherine Wood, Detective Brevet Sergeant Elaine McGilchrist, Brevet Sergeant Vanessa Kelly, and Detective Inspector Erin Vanderwoude7 to give evidence on the voir dire. The following account of the events surrounding the arrest of Ms Wilmott, and the three interviews conducted with OW, is a composite of the evidence of these witnesses. The establishment of Operation Veritas 9 Detective Brevet Sergeant (‘DBS’) Benjamin Ward is the case officer in charge of Operation Veritas. It was his evidence that Operation Veritas officially commenced on 24 June 2020,8 and was set up to investigate the circumstances of Jasmine’s death. 10 DBS Ward told the Court that Jasmine’s suicide was initially investigated by Detectives from the Southern Districts Criminal Investigation Branch. DBS Ward described this as a “small investigation” producing a limited number of witness statements. It resulted in a finding that Jasmine’s cause of death was suicide. 11 In 2019, there was a coronial request for a review of the file, and as the Major Crime Investigation Branch did not take the matter on, it was sent to the Public Protection Branch. At that time, DBS Ward was based in the Special Crimes Investigation Section, which was one of the sections within that branch. He explained that a team was set up to carry out the review. The team was comprised of Detective Sergeant (‘DS’) Erin Vanderwoude, DBS Luke McPhee, DBS Emma Woodhouse, DBS Donna Spark, DBS Zoe Gooch and DBS Elaine McGilchrist. The team was under the management of Detective Senior Sergeant (‘DSS’) Graham Tomkins. 12 In 2020, DS Vanderwoude was stationed at the Human Source Branch of SAPOL. She was specifically seconded to the Public Protection Branch to take on the role of supervising the Veritas investigation team. DS Vanderwoude was responsible for the daily running of the investigation. Above her was DSS Tomkins, the investigation manager who had general oversight of the task force. He was also responsible for briefing the Assistant Commissioner (‘AC’), Peter Harvey, about the status of the investigation as it progressed.9 His daily involvement was, however, limited as he was also responsible for running two other sections of the department over that period of time. 13 DS Vanderwoude’s first task was to review the coronial file and identify lines of enquiry for further investigation. Based on that review, DS Vanderwoude 7 At the time of Ms Wilmott’s arrest, Detective Inspector Vanderwoude held the rank of Detective Sergeant. For that reason, I will refer to her as Detective Sergeant Vanderwoude during the course of this judgment, for ease of reference. 8 Based on VDP78 this would appear to be when the administration of the task force commenced, with the task force officially commencing on 29 June 2020. 9 T1087. -- 6 of 86 -- [2025] SASC 168 McDonald J 5 established that there were a number of areas in which the investigation had been lacking, and required further exploration. 14 The investigation team was structured such that each detective had a specific area to investigate. This was referred to as a “silo approach”. Relevantly, DBS Ward was responsible for obtaining statements from the friends and family of Ms Wilmott, DBS McGilchrist was responsible for schooling and education and DBS McPhee was responsible for liaising with the Department for Child Protection (‘the DCP’). 15 Throughout the course of the investigation, there were weekly meetings during which the Veritas investigators provided updates on the progress of the case. The outcome of these meetings was reported through DSS Tomkins, up through the ranks, to AC Harvey. The progression from a coronial inquiry to a criminal investigation 16 During the first eight weeks of the investigation, various inquiries were carried out, resulting in the formation of a suspicion that Ms Wilmott had engaged in criminal conduct, namely assault and withholding food from Jasmine. As a consequence, on 27 August 2020, DS Vanderwoude made the decision to upgrade the status of the investigation from a coronial inquiry to a criminal investigation. It was only upon a review of the statements and other material that had been obtained by the investigators by that date, that DS Vanderwoude formed the view that there was sufficient evidence to establish a reasonable cause to suspect that a criminal offence had taken place. The practical consequence was that the powers available to the police changed from a Coronial Direction, to the ability to use general search warrants. Early inquiries into the welfare of OW 17 At an early stage of the investigation concerns were raised by AC Harvey with DSS Tomkins about the welfare of OW. These concerns were based upon the circumstances of the removal of SM (a previous foster child) from the Wilmott home in 2016, and the circumstances of Jasmine’s suicide in 2018. In particular, Jasmine’s weight and physical appearance at the time of her death. This resulted in police surveillance being undertaken and inquiries made with OW’s school about his welfare. The purpose of the surveillance was to make observations of OW in order to determine whether there were any obvious signs of neglect. A request was first made for surveillance to be undertaken on OW on 25 June 2020. The surveillance took place between 25 June 2020 and 29 June 2020.10 No particular concerns were raised about OW’s welfare as a consequence of the observations made during that period of time. 18 DBS McGilchrist was the Veritas task force member who was given the role of making the initial enquiries with Blackwood Primary School, the school that 10 VDP78. -- 7 of 86 -- [2025] SASC 168 McDonald J 6 OW was attending at that time. DBS McGilchrist first made contact with the principal of Blackwood Primary School, Ms Kris Robson, on 22 July 2020. Ms Robson confirmed that OW had started at Blackwood Primary School at the beginning of 2019 and remained a student at the school. Ms Robson told DBS McGilchrist that although the school did not have any concerns about Ms Wilmott, earlier in the year they had some concerns about OW. These concerns arose out of two incidents that occurred towards the end of the previous term. 19 The first incident involved OW repeatedly holding his breath until the point of blacking out. Ms Robson told DBS McGilchrist that OW had become quite upset at the time and said that he held his breath because he wanted to see what would happen. 20 The second incident involved OW removing blades from pencil sharpeners and handing them out to other students, including one who had previous self- harming issues. Ms Robson suggested that an explanation for this behaviour may have been a misconceived attempt by OW to try and make friends with other children in his class. 21 Ms Robson advised DBS McGilchrist that, as a result of these incidents, the school had a meeting with Ms Wilmott about their concerns, and recommended that OW have some sessions with the school psychologist. Ms Wilmott had indicated that she would obtain a referral from OW’s general practitioner, so that he could see the school psychologist. At the time of the telephone call, Ms Robson was of the belief that they had not yet received the referral.11 22 No issues were raised about OW’s weight, food or school attendance.12 23 As a result of speaking with the principal, DBS McGilchrist was also put in touch with Angela Auricht, OW’s teacher. 24 On 23 July 2020, DBS McGilchrist had a telephone conversation with Ms Auricht. Ms Auricht had been present on the occasion OW held his breath until he passed out and when he had handed out the pencil sharpener blades. Ms Auricht provided further details about what had occurred on these occasions. Ms Auricht told DBS McGilchrist that after OW had handed out the pencil sharpener blades, she had spoken to him about his reasons for doing so. When asked specifically about why he handed the blade to the student who had trauma in her background, he said that he knew that she had been self-harming and he wanted to give her a blade to cut herself. 11 The principal later advised DBS McGilchrist that she had subsequently found out that Ms Wilmott had signed the form for the school psychologist. T1240. 12 T1217-1219; VDP97. -- 8 of 86 -- [2025] SASC 168 McDonald J 7 25 By the time that police went to the school to take Ms Robson’s statement, OW was engaging with a psychologist and a welfare worker at the school. Concerns about OW leading up to the arrest of Ms Wilmott 26 It was DSS Tomkins’ evidence that during the course of the investigation, the police received no further information that raised any particular concerns about the welfare of OW. In his view, the information that came from the school about the occasion on which OW had held his breath until he passed out, was “not a massive concern”13 at that point. DSS Tomkins told the Court that in considering the welfare of OW, he also factored in the information that the police were receiving over the course of the investigation about the male children in the household being treated better than Jasmine. In addition to that, the police had spoken to the school and requested that they keep an eye out for OW, and report back if they noticed anything out of the ordinary.14 27 From DSS Tomkins’ perspective, the position changed, however, as the investigation moved toward the arrest phase. He explained:15 As we moved towards the arrest phase of the operation, my concerns were heightened because we were going to arrest his mother and, given the information I had at that stage, I wasn’t sure - I couldn’t be confident of his safety at home. We weren’t going to oppose bail on Ms Wilmott and I was concerned that she would be going back into the house and [OW] would be there. We spoke to [OW] a couple of times at that point, I think from statements from the victim management team, so she would have been well aware they would have been speaking to her children, [AW] and [OW]. So I had to consider that, was it prudent for me to let Ms Wilmott return home and have [OW] present at the house that day. So we decided to have a strategy meeting with the Department of Corrections - sorry, child protection, and that was discussed at a meeting between myself and the team and a strategy meeting was held with DCP as to what their thoughts and what their intentions would be as to any intervention they might take. 28 It was DSS Tomkins’ evidence that he was concerned about Ms Wilmott’s reaction to being charged, arrested and bailed. He said:16 … I couldn’t, in all consciousness, not avert my mind to [OW] being in that house and I had no idea how that - the reaction and the fallout of the arrest was going to be and I wasn’t confident to leave that matter unaddressed. 29 DSS Tomkins elaborated on why he was concerned about OW at the time of the arrest:17 I believed that the nature of the arrest at that point in time, young Jasmine having been deceased for two years and there was nothing to suggest that [OW] was in any danger, at the point of arrest it was going to be become very apparent that [OW] was present at the time that Jasmine was found, a lot of stuff that would be quite damning could fall on young 13 T1074. 14 T1077. 15 T1075. 16 T1083-1084. 17 T1078-1079. -- 9 of 86 -- [2025] SASC 168 McDonald J 8 [OW’s] shoulders, so we were concerned that in the short term at least, him being present presented an issue for his safety at the time. 30 In cross-examination, DSS Tomkins further explained why his concern for OW was heightened by the prospect of Ms Wilmott’s arrest. He said:18 A. The arrest changes everything. … A. Because of the seriousness, it’s different to if we are out investigating a matter to then arresting the person for it. … A. I have, I have to be mindful of the safety and harm that could fall as a result of our actions and that was where I said to - where we discussed it with the teams that we have to consider [OW’s] wellbeing at the point of arrest, we have to. 31 DSS Tomkins shared his concerns with the other investigators, in particular, the need to consider OW’s safety in the short term. 32 Other members of the investigation team also gave evidence about their concerns becoming heightened as they moved towards the arrest of Ms Wilmott. It was DBS Ward’s evidence, like that of DSS Tomkins’, that the move towards the arrest phase raised issues about the welfare of OW, and the need to take steps to ensure his safety once Ms Wilmott had been arrested. 33 In particular, DBS Ward was concerned that, whilst there were many family members living in the Wilmott household, they worked long hours or were often not home.19 As a result, DBS Ward formed the view that there was no “real presence in the children’s life”.20 This also gave rise to concerns as to who would care for OW, given that Ms Wilmott was to be arrested on some “very serious charges”.21 34 DS Vanderwoude also gave evidence about concerns for the safety of OW in the lead up to the arrest. She said that because of the behaviour that they were going to allege had occurred, OW was likely to be at risk within the home.22 When asked to explain what that risk was, DS Vanderwoude said:23 Primarily that he was a witness to the allegations that were we putting forward in relation to what had occurred within the home to Jasmine. Also believed that the allegations were of a sufficient seriousness that it posed a risk to his welfare and his ongoing safety should he remain in Ms Wilmott’s custody post her arrest. 18 T1099. 19 T961. 20 T961. 21 T962. 22 T1447. 23 T1448. -- 10 of 86 -- [2025] SASC 168 McDonald J 9 Planning for the arrest of Ms Wilmott and the interview of OW 35 The decision was made to arrest Ms Wilmott on 29 October 2020, and to interview OW on that same day. 36 Prior to the interview, DBS Ward researched his obligations for interviewing OW, given that OW was a vulnerable witness.24 As a consequence, DBS Ward became aware that it was necessary for the interview to be conducted by a prescribed interviewer, that OW was entitled to have a companion present, and that the interview was to be recorded on video. When asked about his understanding of what constituted an interview under the Summary Offences Act 1953 (SA) (‘Summary Offences Act’), DBS Ward said that he understood “That any conversation had with [OW] would be recorded”.25 He went on to qualify this by saying that it was any conversation about “the content of the investigation”,26 as opposed to a conversation about welfare or where OW was “going to next”.27 37 Although the evidence is not clear about when or by whom the decision was first made, on 21 October 2020, a briefing was conducted to commence planning for a prescribed interview with OW. Present at that meeting were DBS Ward, DBS McGilchrist, BS Vanessa Kelly and Sergeant Karin Dayman. BS Kelly and Sergeant Dayman were from the victim management team. BS Kelly was to conduct the prescribed interview and Sergeant Dayman was her supervisor. 38 As it transpired, BS Kelly ended up conducting all three prescribed interviews with OW. 39 During the meeting on 21 October 2020, a plan was formulated to interview OW on the day of Ms Wilmott’s arrest at the victim management suites, or if he preferred, at his school. There were also discussions surrounding a possible support person and strategies to assist OW in feeling more comfortable.28 The school psychologist and a pastoral care worker were identified as possible options to fill the role of a support person. Eliminated as suitable for this role was AP, as he was a potential witness who had not yet been spoken to. 40 At the meeting, the members of the victim management team requested that information be obtained about things like: OW’s favourite subjects, hobbies and food to assist in rapport building. 41 This resulted in a further approach to OW’s school and a meeting with staff from the DCP. 42 DBS McGilchrist again had responsibility for contacting the school. The purpose of the contact was to obtain information about OW’s caregivers, what 24 T991. 25 T992. 26 T993. 27 T993. 28 T1221-1222. -- 11 of 86 -- [2025] SASC 168 McDonald J 10 other supports there were in the Wilmott household and who was conveying him to and from school, all of which were relevant to ensuring that appropriate measures were in place at the time of Ms Wilmott’s arrest. 43 For that reason, DBS McGilchrist again made contact with the principal of Blackwood Primary School. Ms Robson identified potential support persons, namely the school counsellor or the school psychologist and suggested suitable spaces at the school for conducting the interview. In addition, she provided the information that DBS McGilchrist requested about OW’s favourite subjects, food allergies and how he travelled to and from school.29 44 In her evidence, BS Kelly did not make reference to the meeting that took place on 21 October 2020. Her memory was that she was officially requested to interview OW on 23 October 2020, however, she had been generally aware of the investigation because of its nature and the number of resources involved. Brevet Sergeant Kelly explained the situation:30 I was made aware that the investigation was underway, which is really common practice, we’re all in the same office, and so it’s not uncommon to hear about jobs, know what’s going on amongst your team members and just this was - this involved a lot of members, police, and so we are often given the heads-up when there’s a big job going on. 45 BS Kelly first commenced making notes in this matter on 28 October 2020, when she attended the briefing that took place that day in preparation for Ms Wilmott’s arrest. 46 I will come to that briefing in due course. The involvement of the Department for Child Protection 47 Catherine Wood gave evidence on behalf of the DCP. Ms Wood has worked for the DCP for 27 years, most recently as a supervisor of one of the assessment and protective intervention teams. That role involves supervising a team of social workers who are responsible for child protection investigations, working with families to address child protection concerns, working with children who have been removed from their parents’ care and working towards addressing concerns to enable a child to return home. Ms Wood was working in this role at the time that Ms Wilmott was arrested and OW was removed from her care. Ms Wood explained the DCP’s role, and their involvement in OW being removed from Ms Wilmott’s custody. 48 It was Ms Wood’s evidence that, in 2020, she was working at the St Mary’s DCP office when her manager, Julie Powell, made her aware that an intake had been received on or around 25 September 2020 in relation to OW.31 From the DCP’s perspective, the intake raised concerns about the emotional and 29 T1224. 30 T1281. 31 VDD41. -- 12 of 86 -- [2025] SASC 168 McDonald J 11 psychological wellbeing of OW.32 At the time that Ms Wood was made aware of this intake, it remained open, and therefore still under investigation. 49 The evidence is unclear as to who made the report that resulted in this intake. At first, it appeared that DBS McGilchrist had made the report. That proved to be incorrect. DS Vanderwoude was cross-examined on the topic. It was her evidence that, given the passage of time, she cannot now recollect whether SAPOL made the notification. She said it could have been reported by SAPOL, given that they are mandatory notifiers. She explained:33 Police officers are obliged, when they believe - or they receive information that they believe a child is at risk, we’re obliged to submit a CARL notification. So if they were speaking to the neighbour and the neighbour provided them with that information, we are obliged to submit it. So it’s not out of the realms that we could have submitted that intake, I just don’t recall which way it came. 50 The evidence was that, at this time, police had received information from Ms Wilmott’s neighbours about hearing her yell inappropriately at OW, albeit they had declined to provide statements. 51 DS Vanderwoude said that had she received that information as part of the investigation, she personally would have felt that she was mandated to report it. 52 I am prepared to draw the inference that it was a member of SAPOL who made the report that resulted in the DCP intake. For current purposes, it does not matter who that was. 53 I am not, however, prepared to draw the inference that there was any malevolent intent behind the making of the report, given that police officers are mandatory reporters and would have been in breach of their duties to not make such a notification once in possession of the information from Ms Wilmott’s neighbours. 54 In their initial conversation, Ms Powell advised Ms Wood that she had also had some discussions with SAPOL about OW on 19 October 2020. The DCP case file records that on that date DBS Ward had telephoned Ms Powell and left a message for her to return his call. When she returned the call, DBS Ward told her about the plan to arrest Ms Wilmott and to interview OW that same day. The purpose of DBS Ward calling Ms Powell was to make arrangements for the care of OW on Ms Wilmott’s arrest.34 The strategy meeting on 27 October 2020 55 A strategy meeting involving members of SAPOL and the DCP took place on 27 October 2020. 32 T1134. 33 T1486. 34 T1153-1154. -- 13 of 86 -- [2025] SASC 168 McDonald J 12 56 Accounts vary as to who was responsible for arranging the strategy meeting. 57 It was DSS Tomkins’ evidence that, as a result of concerns about OW, there was a decision made between him and the investigating detectives, DS Vanderwoude and DBS Ward, about the need for a strategy meeting to be held with the DCP, to advise them of SAPOL’s intended actions and for them to consider OW’s welfare.35 58 Ms Wood’s evidence was that her manager, Ms Powell, wished for her to convene a strategy discussion in relation to the concerns about OW.36 When Ms Litster asked Ms Wood if she was responsible for calling the strategy meeting, Ms Wood responded with “My recollection is, yes, I made contact with the attendees and requested their attendance”.37 59 In my view, the likely explanation for these differences in recollections is that there were a number of moving pieces for both SAPOL and the DCP at that time. From the perspective of both organisations, it was necessary that information was shared, and the means by which to do this was a strategy meeting. It was of no moment both then and now, as to the precise genesis of the idea. 60 Ms Wood explained that strategy meetings are commonly convened in a variety of circumstances. She said:38 They can occur in lots of different examples. So if we have an intake, as I explained before, that’s been assessed as requiring a 24-hour response or an urgent response, in all of those matters we need to convene a strategy discussion. So they usually occur with Child Protection Services and SAPOL, but they can - we can include other agencies that may have had a role with the family and have pivotal information to share. We can also convene them in matters which have been assessed as requiring a 10-day response. So they’re the two categories, generally, that require a DCP intervention, a response. If the - if an intake has been assessed as requiring a 10-day response but covers certain areas, say, for example, a situation where there are possible sexual abuse allegations or there’s been some other criminal element to it or there’s injuries to a child, so they’re basically where there’s been either - there could possibly be a role for either Child Protection Services or SAPOL as well in the investigation. So the idea - the purpose of these meetings is to share information that we have on the family and the background information and then create a plan, I guess, for moving forward, as to who will undertake the investigation, what that may look like, what may need to occur if a child needs to have a medical assessment, like a forensic medical or a forensic interview, making arrangements for those things to occur. So they’re quite a usual process in our work. 61 Although the participants at strategy meetings may vary depending on the situation, members of SAPOL, Child Protection Services (‘CPS’) and the DCP are always in attendance. 35 T1083. 36 T1131. 37 T1132. 38 T1139-1140. -- 14 of 86 -- [2025] SASC 168 McDonald J 13 62 The meeting between members of the Veritas task force and the DCP took place on 27 October 2020. It was DBS Ward’s evidence that the purpose of the meeting was to advise the DCP of what the police had learned through their investigation and in doing so, to alert them to the need to put a safety plan in place for OW. DBS Ward was very clear in his evidence that the police were not seeking the removal of OW, but wanted another agency, DCP, to ensure that OW was cared for. 63 DSS Tomkins gave similar evidence about the reason that the police sought the involvement of the DCP in relation to OW. He said:39 The role of DCP is effectively the role of his care, safety, welfare, child protection, as is ours. We are child protection officers under the Act. We all have a duty of care to make sure all kids don’t suffer harm and are protected. The role in this particular case and the reasons for a strategy meeting was we believed that the DCP would need to be involved at that stage to offer ongoing support and protection to [OW] that the police wouldn’t be able to provide after we left the house. 64 Ms Wood made contact with the attendees in advance of the meeting to request that they be present. Those in attendance at the meeting were: Catherine Wood - Supervisor DCP; Julie Powell – Manager DCP; Geneveive Bowyer – Senior Practitioner DCP (Case worker allocated to OW); Marion Brown – DCP Adoption Services (in attendance because Jasmine and OW had been adopted); Kayla Curtis – DCP Adoption Services (in attendance because Jasmine and OW had been adopted); Rachel McCulloch – Manager CARN (Supervisor of Marion Brown and Kayla Curtis); Senior Sergeant Erin Vanderwoude – SAPOL; Brevet Sergeant Elaine McGilchrist – SAPOL; and Brevet Sergeant Ben Ward – SAPOL. Ms Bowyer took minutes, which were subsequently converted into the DCP case note of the strategy meeting.40 65 The case note records that inter alia the following was discussed:41 • The background and history of the Wilmott family, including the details of SM’s removal after a serious care concern was substantiated in 2016.42 • Concerns from all parties regarding the care that OW was being afforded by Ms Wilmott and his previous experiences in her care. • That SAPOL’s investigation had commenced as a coronial investigation, however, had changed to a criminal investigation, with SAPOL planning to charge Ms Wilmott with criminal neglect. 39 T1081-1082. 40 VDD45. 41 VDD45. 42 It would appear that this was incorrect in that the allegation involving SM was not substantiated. -- 15 of 86 -- [2025] SASC 168 McDonald J 14 • That SAPOL planned on arresting Ms Wilmott on Thursday, 29 October 2020. • Concerns about the impact that the arrest would have on OW’s safety. • DCP adoption services advised that the South Korean government were aware of Jasmine’s death, had raised concerns for OW and were expecting an update on the situation. • SAPOL provided some of the details of the allegations that formed the basis of the case against Ms Wilmott, and discussed the difficulty in proving the offence. • The DCP advised that “further consideration will need to be given for a Section 41 removal to determine if the DCP have grounds to do this if [OW] does not disclose, discussed difficulty of proving psychological harm. DCP significantly concerned regarding [OW]’s safety in Jenni’s care given the charges being placed on Jenni in relation to Jasmine’s death and the serious care concern that led to [SM] being removed from Jenni’s care in 2016”. The DCP were to consult with the Crown regarding evidence. • Placement options available for OW. SAPOL advised that if OW was placed with family, that could be reflected in Ms Wilmott’s bail conditions so that she could have no contact with him. • The plan for 29 October 2020, was for SAPOL to attend OW’s school and interview OW, preferably at the Wakefield Police Station, however, the interview may need to take place at the school if that was OW’s preference. A pastoral care worker was to be the support person for OW. Ms Wilmott was to be arrested at the same time that OW was being interviewed. • SAPOL was to be in close contact with the DCP on 29 October 2020, to provide updates of proceedings in relation to Ms Wilmott’s arrest and interviews with the family members and OW. 66 Significantly, there is no evidence to suggest that during the strategy meeting the police recommended to the DCP that OW be removed from Ms Wilmott’s care. To the contrary, Ms Wood was very clear in her evidence that the responsibility for determining what was to happen with OW was that of the DCP. Speaking of SAPOL, she said:43 43 T1159. -- 16 of 86 -- [2025] SASC 168 McDonald J 15 … They don’t have the ability to recommend, that decision sits with DCP. So even if they had a view, which I don’t recall them stating, a view one way or another, that decision doesn’t sit with them. 67 By the end of the strategy meeting, no decision had been made about what was to happen with OW when Ms Wilmott was arrested. Ms Wood explained the position:44 I think at the time we were very clear that we weren’t in a position to make that decision, about whether we had sufficient evidence to remove [OW] and that the outcome of the strategy discussion was that we were seeking further - we would do some further consultation and seek some further information. 68 Members of SAPOL also gave evidence about what occurred at the strategy meeting. 69 DBS Ward told the Court that the information provided to the DCP at the meeting included allegations of Ms Wilmott assaulting Jasmine and depriving her of food. In addition, the police told the DCP that they had evidence from neighbours who described OW as being present and involved in assaults against/towards Jasmine. The police also provided information about Jasmine’s weight at the time of her death, and the circumstances in which SM came to be removed from the Wilmott household, which held some similarities to the allegations made about Jasmine. 70 The police also provided the DCP with information specific to OW. DBS Ward explained:45 Then specifically to [OW], there were statements provided from the teachers of [OW], the concerns to his behaviour at school and their view of Jenni’s lack of care to him and the lack of psychological support. 71 DBS Ward said that the police provided the DCP with information about the particular occasion on which OW had held his breath until he passed out and that when the school asked Ms Wilmott to collect him, she said, “he’s fine, he can catch a bus” and did not appear to be overly concerned. 72 It was DBS Ward’s evidence that an important focus of that meeting was to provide information about what the police knew of the family dynamic in the household. He summarised the nature and purpose of the information in the following exchange:46 A. Yes, we tried, as best as we could, to provide the family dynamics of the Wilmott household and what we understood of it. I had personally taken the statements of [KP] and [EP], which was Ms Wilmott’s boyfriend’s children. So I had got a picture from them as to what the dynamics of the household were like and it was my understanding that [AP] worked long hours and would quite often leave the house 44 T1159. 45 T961. 46 T961–962. -- 17 of 86 -- [2025] SASC 168 McDonald J 16 before the children even woke and when he came home, quite often, the children would be asleep. So, then from our records and statements we understood that the children would go - sorry, that [OW] and Jasmine were going into respite care on the weekends, so we didn’t feel like [AP] had a real presence in that house. We knew of an uncle that lived at the rear of the premises but we didn’t really feel like that person, either, was a real presence in the children’s life. Q. Who was that. A. Can’t remember if that was Neil or Dennis Rayner. Q. Who was Neil or Dennis related to. A. Brothers of Ms Wilmott, I think it was Neil. So, in the absence of - sorry, and one other person in the household was [AW], … but it was also our understanding - and I had personally spoken to [AW] several times - that he very much wasn’t present in the house a lot, that he was quite often at his girlfriend’s house. So, because the police had no objections to bail, we knew that Ms Wilmott on would be getting bailed back to that house, we had concerns as to who was going to look after [OW], given what we were about to arrest Ms Wilmott on, which were very serious charges. Q. You communicated that information and those concerns to DCP. A. Yes. 73 The police provided the DCP with the details of when they proposed to arrest Ms Wilmott. When asked whether arrangements were made by the DCP at the strategy meeting for the day of the arrest, DBS Ward responded:47 So we had that meeting with them and by no means did they say what they were going to do at that meeting, our role was to go down there and provide them information and then they would then make a decision as to what they were going to do with [OW], either in the immediate future or long-term future, we walked away from that meeting. I understand then that there was correspondence from the DCP to Erin Vanderwoude asking some more questions, which Erin then answered relative to our investigation etc. And then, at some point, I’m pretty sure we were clear by the time we did go to the arrest that the DCP would get involved and remove [OW] on that day. 74 As set out previously, it was DSS Tomkins’ evidence that as the investigation progressed towards the arrest phase, concern about OW’s welfare escalated and it was for that reason that the strategy meeting was arranged with the DCP to discuss their thoughts and intentions in relation to any possible intervention.48 75 DSS Tomkins gave evidence about his understanding of the role that the DCP played in relation to OW. He said:49 The role of DCP is effectively the role of his care, safety, welfare, child protection, as is ours. We are child protection officers under the Act. We all have a duty of care to make sure all kids don’t suffer harm and are protected. The role in this particular case and the 47 T962. 48 T1075. 49 T1081-1082. -- 18 of 86 -- [2025] SASC 168 McDonald J 17 reasons for a strategy meeting was we believed that the DCP would need to be involved at that stage to offer ongoing support and protection to [OW] that the police wouldn’t be able to provide after we left the house. 76 DSS Tomkins was cross-examined about whether police recommended the removal of OW to the DCP and he was emphatic in his response, that it “Definitely wasn’t a recommendation, no”.50 Police briefing on 28 October 2020 77 On 28 October 2020, there was another SAPOL briefing in preparation for the planned arrest of Ms Wilmott the following day. The briefing was conducted by DBS Ward and was to ensure that everyone knew their roles and expected outcomes. Everyone who was to be part of the tactical operation the next day attended the briefing. 78 As part of her preparation for the interview of OW, BS Kelly was present at the briefing. When asked whether there was a plan to interview OW the following day, BS Kelly responded, “Yes, we can never be sure but we always go prepared if that’s the case”.51 Communications between SAPOL and the DCP leading up to the arrest 79 At 7.41am on 28 October 2020, DS Vanderwoude sent an email to Ms Powell and Ms Wood in which she said that she was: 52 … happy to facilitate any provision of evidence (statements etc) that you will require for any removal process if that is the way you decide to go tomorrow. We will probably just need to decide what statements etc best suit the purpose … (Emphasis added) 80 At 4.51pm, Ms Bowyer responded, advising that the DCP had consulted with the Crown that afternoon in relation to the potential removal of OW. Ms Bowyer advised that at that point in time they were struggling for evidence and requested that SAPOL provide them with further information, including specific examples of Ms Wilmott’s treatment of Jasmine, and any specific examples of the manner in which Ms Wilmott had started treating OW in a similar manner to Jasmine. 81 DS Vanderwoude replied to that email at 7.40am the following morning. In the response, she provided details of evidence obtained by SAPOL implicating Ms Wilmott in the mistreatment of Jasmine and OW, and her alleged criminal offending. 82 That information included details of the following: 50 T1109. 51 T1283. 52 VDP84 and VDP84a. -- 19 of 86 -- [2025] SASC 168 McDonald J 18 • Occasions on which Ms Wilmott had demonstrated a lack of care in relation to a failure to provide OW with psychological support when he had demonstrated extreme behaviours at school. • Assaults by Ms Wilmott on Jasmine. • A particular assault of Jasmine by Ms Wilmott, which involved her kicking and punching Jasmine and cutting her hair. • Observations made by a neighbour of OW being forced to assault Jasmine. • An intake in which concerns were raised about the manner in which Ms Wilmott speaks/yells at OW. • An intake in which it was reported that OW was sent to school with inadequate food. 83 Attached to the email were a selection of statements said to demonstrate Ms Wilmott’s mistreatment of Jasmine as observed by friends, family and respite carers. 84 In the lead up to the arrest, there was also further surveillance of Ms Wilmott. The purpose of this surveillance was to gain intelligence about the movements of members of the household, to assist in making operational decisions about when it was best to safely arrest Ms Wilmott. The plan was to attend at Ms Wilmott’s house at a time when she was likely to be the only person present. This would avoid the need for OW to witness his mother’s arrest. 85 Unfortunately, matters did not go to plan, as OW was home from school that day because he was sick. Consequently, he was present when the police attended to arrest Ms Wilmott. The arrest 86 On 29 October 2020, police first became aware that OW was not at school when DBS McGilchrist and BS Kelly turned up at Blackwood Primary School at about 9.00am for the purpose of interviewing him.53 87 Upon receiving that information, at 9.20am, DBS McGilchrist contacted DS Vanderwoude and advised her of the situation. DS Vanderwoude told DBS McGilchrist that they would go ahead with the plan to arrest Ms Wilmott and would ask for her to arrange for someone to come and be with OW. DS Vanderwoude requested that DBS McGilchrist make contact with the DCP and clarify whether they proposed to remove OW. 53 T1230. -- 20 of 86 -- [2025] SASC 168 McDonald J 19 88 At 9.30am, DBS McGilchrist contacted Ms Wood and received confirmation that the DCP were intending to remove OW from Ms Willmott’s custody that day. DBS McGilchrist advised Ms Wood that there would need to be a change of location for the prescribed interview because OW was home from school as he was unwell. 89 Although Ms Wood had no memory of this conversation, she did not dispute that it took place. She reiterated however, that no final decision was to be made about the removal of OW until they arrived at the Wilmott house. Ms Wood said:54 I think it would be fair to say that we, at that point in time, would have had an idea about what way we were proceeding, but, again, that final decision can’t be made and wasn’t made until such a time as we were actually present in the home and Gen had undertaken an assessment and then that final decision was made. So even if we’ve done a whole pile of background reading and information and sourced other information, we can’t make a final decision until we are physically there doing the investigation. 90 It was Ms Wood’s evidence that no final assessment could be made of the information received until present at the house. She explained:55 I could have still got there and said ‘Actually, no, none of this information is correct and we’re not going to follow through with the removal’, at which point, if I changed - after the assessment was done, if I had changed my mind, we would have informed police of that and the reasons for that. 91 At 9.32am, DBS McGilchrist called DS Vanderwoude back and advised that the DCP were intending to remove OW. There was also some discussion about postponing the prescribed interview, subject to assessing how unwell OW was. 92 At 10.57am, DBS McGilchrist and BS Kelly attended at Ms Wilmott’s home address, and once DBS McGilchrist confirmed that OW was at the house, she made contact with Ms Wood to advise her of the situation. 93 At 11.22am, BS Kelly called Sergeant Dayman to discuss whether, if the interview was to occur, she should conduct it at OW’s home address, or in the Victim Management suites. The advice that she received was to adopt whatever course OW was more comfortable with.56 94 At 11.34am, Ms Wood and Ms Bowyer arrived at Ms Wilmott’s home address and received a briefing from the police who were in attendance. 57 They then left the premises prior to the police embarking on the prescribed interview. 54 T1168-1169. 55 T1169. 56 T1285. 57 Although Ms Wood did not recall this attendance, based on the other evidence, I find that she did attend at Ms Wilmott’s home address at about 11.34am. This finding does not impact on Ms Wood’s creditability as it appeared to be a genuine lapse of memory, no doubt as a product of the passage of time. -- 21 of 86 -- [2025] SASC 168 McDonald J 20 When was the decision made to carry out a s 41 removal of OW? 95 As is apparent from this brief chronology of events, there was some conflict between the evidence of the various witnesses about when the DCP made the decision to remove OW from the Wilmott household. 96 For reasons that will become apparent, when I come to consider Ms Wilmott’s application to exclude OW’s evidence, the circumstances in which this decision was made, in particular by whom and when, are central to Mrs Shaw KC’s argument. It is, therefore, necessary to consider the evidence on this topic in some detail. 97 There was no suggestion by any witness that it was anyone other than the DCP who was to make the decision about whether OW was to be removed. It was very clear across the evidence of all of the witnesses that, whilst SAPOL played a role in providing information and assistance, that was the extent of their involvement. In particular, it was apparent to me, from the evidence of Ms Wood, that she is experienced in her role and takes the making of decisions, such as these, very seriously. I gained the impression from Ms Wood that even if SAPOL had attempted to transgress into the role of the DCP and influence the decision, they would have been met with fierce resistance. There is, however, no evidence to suggest that SAPOL made any such attempt. 98 The evidence about when the decision to remove OW was made is not so clear. Read literally, the evidence of some of the SAPOL witnesses is inconsistent with that of Ms Wood. 99 Before considering that evidence, and the apparent inconsistencies, it is helpful to consider the regime in place for the removal of a child under s 41 of the Children and Young People (Safety) Act 2017 (SA) (‘CYPS Act’) and how that took effect in this case. 100 Section 41 of the CYPS Act relevantly provides: 41—Removal of child or young person (1) Subject to this section, if a child protection officer believes on reasonable grounds that— (a) a child or young person has suffered, or there is a significant possibility that a child or young person will suffer, serious harm; and (b) it is necessary to remove the child or young person from that situation in order to protect them from suffering serious harm or further serious harm; and (c) there is no reasonably practicable alternative to removing the child or young person in the circumstances, the child protection officer may remove the child or young person from any premises, place, vehicle or vessel using such force (including breaking into the premises, place, vehicle or vessel) as is reasonably necessary for the purpose. -- 22 of 86 -- [2025] SASC 168 McDonald J 21 … (4) A child protection officer who is an employee of the Department may only remove a child or young person from the custody of a parent or guardian of the child or young person with the Chief Executive’s prior approval. (5) Subsections (3) and (4) do not apply if the child protection officer believes on reasonable grounds that the delay involved in seeking prior approval would significantly increase the risk of serious harm, or further serious harm, being caused to the child or young person. 101 Section 146 provides the Minister or the Chief Executive with the power to delegate any function or power under the CYPS Act to a specified person or body. 102 Section 147 identifies those who fall into the category of “child protection officers”. It includes “an employee of the Department authorised by the Chief Executive by instrument in writing as a child protection officer” and “police officers”.58 103 It follows that s 41 is to be utilised in circumstances in which a child is at imminent risk of suffering serious harm. There are two roles involved in making this assessment, namely, the Chief Executive or the Chief Executive’s delegate who approves the decision, and the child protection officer who makes the decision or forms the intent to remove. 104 Ms Wood was the delegate who approved the decision of Ms Bowyer, who was the child protection officer.59 I have received a copy of a delegation made pursuant to s 146 of the CYPS Act which includes supervisors of a child protection/guardianship office,60 amongst those delegated the power under s 41(4). Ms Wood, therefore, falls within that delegation. The evidence of Ms Wood 105 As I have said, the effect of Ms Wood’s evidence was that, whilst the plan was in place to remove OW, no final decision was to be made until all available relevant information had been received. Ms Wood went on to further elaborate about what needed to occur before the DCP could make a decision to effect a s 41 removal. She explained that any disclosures made by OW during the prescribed interview would be a relevant consideration. However, the question to be determined on all of the available evidence, was whether there was sufficient information to suggest that OW was at risk of serious harm if he remained in Ms Wilmott’s care. 58 Children and Young People (Safety) Act 2017 (SA) s 147(1)(b)-(c). 59 T1142. 60 VDP107. -- 23 of 86 -- [2025] SASC 168 McDonald J 22 106 Ms Wood went on to explain that if she was satisfied that a child has been abused or neglected, or is at significant risk of abuse or neglect, the child may need to be removed from their parents’ care in order to mitigate that risk.61 107 In relation to the assessment that was conducted before any such determination is made, Ms Wood further explained that the DCP will consider whether they can manage the risk with the child remaining in the home or whether the risk is significant enough that the child needs to be removed.62 Ms Wood concluded that, in this particular case, the DCP found no factors that would mitigate the risk and that the only option the DCP had was to invoke a removal under s 41 of the CYPS Act.63 108 As to the timing of the decision to remove OW, in her evidence in chief, Ms Wood explained that it was only once they were present in the Willmott home on 29 October 2020, that Ms Bowyer provided her with the relevant information and she made her final assessment that OW should be removed.64 109 In cross-examination, Ms Wood was asked about whether the decision to remove OW had in fact been made at, or by the time of, the strategy meeting. It was her evidence that, at that time, no decision had to be made, as the DCP needed to undertake their own assessment of whether the grounds for a s 41 removal could be established.65 Ms Wood explained that it was necessary for the DCP to undertake their own investigation:66 … the intake alone is just information that suggests that there is a risk to the child. We still need to conduct our own investigation and be satisfied, as the delegate I need to be satisfied that the child is considered to have been - to have either been abused or neglected or to be at significant risk of abuse or neglect and that that - and that child needed to be removed from their parents’ care in order to mitigate that. 110 Consistent with that approach, on 28 October, the DCP sought legal advice from the Crown. At 4.51pm, Ms Bowyer sent DS Vanderwoude an email referring to a “potential removal” of OW, requesting additional information, further reflecting that by that time, no decision had been made. 111 In cross-examination Ms Wood was asked whether at about 9.30am on 29 October the DCP confirmed to DBS McGilchrist that it was intended to remove OW that day. She responded:67 I think it would be fair to say that we, at that point in time, would have had an idea about what way we were proceeding, but, again, that final decision can’t be made and wasn’t made until such a time as we were actually present in the home and Gen had undertaken an 61 T1163. 62 T1165. 63 T1165. 64 T1142. 65 T1157. 66 T1163. 67 T1168-1169. -- 24 of 86 -- [2025] SASC 168 McDonald J 23 assessment and then that final decision was made. So even if we’ve done a whole pile of background reading and information and sourced other information, we can’t make a final decision until we are physically there doing the investigation. 112 When asked whether she disputed that she had told the police that they were still intending to remove OW that day, Ms Wood again attempted to explain the situation:68 No, I’m saying that there is a possibility that I had said that that was our intention and that that was the view that we had. However, we still would - I could have still got there and said ‘Actually, no, none of this information is correct and we’re not going to follow through with the removal’, at which point, if I changed - after the assessment was done, if I had changed my mind, we would have informed police of that and the reasons for that. 113 Ms Wood was also asked about whether at 11.05am, she advised DBS McGilchrist that she planned on having members from the DCP attend at the home address and carry out the removal process. She repeated, yet again, that whilst that may have been their intention, it was still necessary to make the assessment and arrive at a final decision once they were present at the house. 114 The basis of the removal of OW is set out in the affidavit relied upon in the guardianship proceedings in the Youth Court. It relevantly reads:69 The department was concerned regarding the care [OW] has been afforded by Ms Wilmott, Ms Wilmott has been arrested and charged with criminal neglect and two counts of aggravated assault in relation to the death of Jasmine. [OW] has witnessed and experienced Ms Wilmott’s manipulative, controlling, neglectful and abusive care towards her children and is at significant risk of physical, emotional and psychological harm in the care of Ms Wilmott. [OW] is showing some indicators of emotional harm, such as recently purposely holding his breath until he passed out and providing blades of sharpness to classmates. [OW’s] ongoing experiences of being cared for by Ms Wilmott place him at risk of continued emotional harm. At the time, [OW] does not have any relationship with [MW]. The department require the proposed order to make assessments of [MW’s] willingness and/or capacity to provide care for [OW]. And there is a significant child protection history relating to Ms Wilmott’s care of children. These notifications, in conjunction with information from SAPOL’s ongoing investigation, display a serious pattern of Ms Wilmott’s abuse and neglect towards children in her care. 115 It was Ms Wood’s evidence that although the affidavit was drafted subsequent to the removal of OW, it accurately reflected the basis of her decision on 29 October 2020. The evidence of DBS Ward 116 It was DBS Ward’s evidence that the purpose behind making contact with the DCP was to formulate a safety plan for OW for after Ms Wilmott’s arrest.70 DBS ward explained that although he had never previously been involved in the 68 T1169. 69 T1140-1142. 70 T958. -- 25 of 86 -- [2025] SASC 168 McDonald J 24 removal of a child, he was aware that under s 41 of the CYPS Act, a police officer has the power to remove a child if there is imminent danger to that child. However, he said “These weren’t the circumstances to do that and it wasn’t the case that we were wanting a removal, for example, we just wanted another agency to look after the welfare of [OW] once the arrest had been finished”.71 117 In cross-examination, when DBS Ward was pressed on the topic of SAPOL’s involvement in the removal of OW, he remained firm and said “And, again, I’ll reiterate, SAPOL did not advocate for a removal. It was our responsibility to report to the DCP our concerns”.72 When it was suggested to him that the purpose of the meeting with the DCP on 27 October 2020 was to arrange to obtain a statement from OW in the absence of Ms Wilmott, DBS Ward refuted the suggestion. He said:73 I would doubt it, because it wasn’t a motivation, it wasn’t the reason. Our whole purpose of that meeting was the safety concerns, no strategy, nothing to do with how we’re going to get [OW] to talk or anything like that. It was safety, because we had that responsibility. 118 DBS Ward was also asked whether the issue about OW’s welfare was really about concerns that he would not “disclose” whilst he remained in the care of Ms Wilmott. DBS Ward denied that this was the case and explained that whilst that may have been discussed as an outcome that could occur, it was not the motivation for having OW removed.74 When asked directly about whether he had recommended a removal of OW under the CYPS Act on the day of the arrest, DBS Ward replied “I don’t recall doing that, I’m not saying that we didn’t do that but at the end of the day DCP are responsible for that decision”.75 119 DBS Ward was cross-examined about a passage in a statement that he had prepared shortly before giving evidence,76 in which he had said “From discussions with [AP’s] daughters, it was obvious he couldn’t be relied upon to be present within the household to ensure the safety of [OW]. Therefore, the investigators advised the DCP of our obligations under the Children and Young People (Safety) Act 2017 and recommended the removal of [OW] on the day of the accused’s arrest”.77 Whilst DBS Ward accepted that he had used those words, he suggested it was a poor choice of words, that did not accurately reflect the situation. He explained “That is what I have written, in reflection that is probably a bad choice of words because I don’t recall recommending to the DCP that we remove the child”.78 71 T959. 72 T1016. 73 T1017. 74 T1017. 75 T1053. 76 27 March 2025. 77 Affidavit of Benjamin Philip Ward dated 27 March 2025 at [35]. 78 T1055. -- 26 of 86 -- [2025] SASC 168 McDonald J 25 The evidence of DS Vanderwoude 120 It was DS Vanderwoude’s evidence that prior to her attending Ms Wilmott’s house to effect her arrest, she understood that the DCP were to carry out a removal.79 In cross-examination, she clarified that it was her understanding that at some point on 29 October 2020 it was likely that OW would be removed.80 The evidence of DBS McGilchrist 121 DBS McGilchrist was one of the Operation Veritas team members who attended at the strategy meeting with the DCP. She made some “dot point” notes during the course of the meeting. She explained that her notes did not reflect the entirety of the discussion. One of the dot point notes made by DBS McGilchrist was “need to make an assessment as to whether they can remove [OW]”.81 Written next to that was “DCP”, meaning that comment could be attributed to the DCP. 122 It was the recollection of DBS McGilchrist that during the meeting there was reference to an application to remove OW. She said:82 There was consideration for an application to apply for removal. That is also by DCP. Ultimately any application to remove a child under s.41 of the Child and Young Person (Safety) Act, there’s obviously certain strict criteria s to when a child protection officer can remove a child. So obviously that is done by DCP and they have to establish whether it meets a criteria and they make the application decisions in relation to that. 123 DBS McGilchrist was asked what the DCP said about that with reference to her notes. She responded:83 I do have a dot point consider application to apply for removal as I didn’t think [OW] would feel safe to disclose while still in the care of Jenni. Again, that’s a dot point, that’s not to say that the entirety of what DCP said. 124 The actual note made by DBS McGilchrist reads:84 Consider application to Crown for removal as they don’t think [OW] would feel safe to disclose whilst still in the care of Jenni. 125 When cross-examined about who she meant by “they”, DBS McGilchrist said that whilst it was five years ago and she could not say with certainty who made the statement, the use of the word “they” would tend to suggest that it was someone from the DCP or the adoption services.85 That view was reinforced by 79 T1455. 80 T1492. 81 T1228-1229. 82 T1229. 83 T1229. 84 VDD46. 85 T1250. -- 27 of 86 -- [2025] SASC 168 McDonald J 26 DBS McGilchrist’s understanding that it was only the DCP who could make an application to the Crown for the removal of OW.86 126 It was DBS McGilchrist’s evidence that at 9.20am on 29 October 2020, she telephoned DS Vanderwoude and in that conversation DS Vanderwoude asked her to clarify with the DCP “whether they were going to remove [OW]”.87 As a consequence, at 9.30am, she contacted Ms Wood “and they confirmed they were still intending to remove [OW] from Jenni Wilmott’s custody that day”.88 At 9.32am, DBS McGilchrist contacted DS Vanderwoude “and advised DCP were still intending to do the removal of [OW]”.89 127 After attending at Ms Wilmott’s home address, at 11.05am, DBS McGilchrist again made contact with Ms Wood to advise her that OW was at home. She said “[o]nce I confirmed that Catherine advised she was going to send members to attend the home address to carry out the removal process in relation to [OW]”.90 128 At 2.16pm, at the conclusion of the interview with OW, DBS McGilchrist contacted the DCP. Her note of the conversation reads “agreed to bring [AP] in to speak to him first to explain what is going to occur and to see if he is willing to explain that Jenni has been arrested, explain removal process to [OW] with police and DCP”.91 129 In cross-examination, DBS McGilchrist agreed that it was her understanding that the DCP would speak with AP first to explain what was happening. Findings about the circumstances in which the decision was made to remove OW from Ms Wilmott’s care 130 I reject any suggestion that the investigators in the Veritas task force attempted to, or did in fact, influence the DCP staff in their decision to remove OW from Ms Wilmott’s care. There is no support in the evidence for that contention. The evidence was consistent across all of the witnesses, that whilst SAPOL had a role in assisting the DCP and providing information to them, that was the extent of their role. 131 It was the DCP who were required to make the decision about whether to remove OW from the Wilmott household. 132 In my view, whilst superficially there may appear to be inconsistences about when that decision was made, on a deeper analysis, it is apparent that those differences are illusory. 86 T1250. 87 T1231. 88 T1231. 89 T1231. 90 T1232. 91 T1267. -- 28 of 86 -- [2025] SASC 168 McDonald J 27 133 The strategy meeting on 27 October 2020, came about as the result of a desire on the part of SAPOL and the DCP to look out for the care and wellbeing of OW. I accept the evidence that, as the date of arrest approached, police concerns about the risk posed by Ms Wilmott to OW increased. There is a degree of artificiality in approaching the situation faced by the police on the basis of the suggestion that, historically, Ms Wilmott had treated the boys in her household differently to the girls, and that there was only limited evidence of abusive behaviour by Ms Wilmott towards OW. The police were armed with allegations (supported by witness statements) of serious and prolonged mistreatment of Jasmine by Ms Wilmott. No doubt being arrested and charged would place significant pressure on Ms Wilmott, in circumstances in which it would be obvious that OW was potentially an important witness as to what had taken place in the family home. It is unsurprising that, as a consequence, police concerns about the risk posed to OW were heightened. I would go so far as to say that it would have been negligent for them to not have taken steps to ensure OW’s safety. 134 I accept the evidence that the strategy meeting was not a means by which the police were attempting to effect a removal of OW to further their investigation. It was about ensuring that those best equipped to make the decision about OW had the most current, relevant information to do so. 135 By the end of the strategy meeting, the DCP were left considering the most appropriate, available options for OW, given his mother’s imminent arrest. 136 The fact that they sought legal advice from the Crown, and further information about OW and Jasmine from the police, supports the suggestion that genuine efforts were being made to come to a decision about what was in OW’s best interests. 137 I accept the evidence of Ms Wood that, whilst plans were being put in place so that the removal of OW could be carried out from some time after the strategy meeting, no final decision was to be made until they arrived at the Wilmott home on 29 October 2020. Such an approach accords with commonsense and the practical reality of the situation that the DCP were confronted with. 138 The DCP had been provided with information about previous allegations made about Ms Wilmott, and the limited options available for alternative carers within the household. Despite whatever tentative views were arrived at between 27 October and 29 October 2020, no final decision could be made until their arrival at the Wilmott household. The situation was at least potentially dynamic. The police may have changed their position and determined not to arrest Ms Wilmott that day, or there may have been a relative, of whom they had been unaware, who was at the home and was an appropriate alternative carer for OW. Either of these events, or any other number of exigencies, may have resulted in the DCP coming to a different decision about the need to remove OW from the household. For that reason, it was not only sensible, but entirely appropriate, to make a final determination once present with OW in the house. -- 29 of 86 -- [2025] SASC 168 McDonald J 28 139 I also find that the decision made by the DCP was motivated solely by their belief of what was in OW’s best interest. To make it plain, I reject any suggestion that the DCP were influenced in their decision making process by a desire to assist the police in obtaining evidence against Ms Wilmott. That conclusion is supported by Ms Wood’s evidence, that right up until the time that she came to court to give evidence, she was unaware of whether or not the police had in fact interviewed OW. Had assisting the police been her motivation, that was a matter she would have been acutely aware of. The first interview with OW 140 The first interview with OW commenced at 12.13pm on 29 October 2020. As mentioned, each of the police officers in attendance at Ms Wilmott’s home that day had pre-allocated roles. DBS Ward was responsible for Ms Wilmott’s arrest and conducting an interview with her. He therefore played no role in OW’s interview, as he was occupied in dealing with Ms Wilmott. 141 DBS McGilchrist and BS Kelly were responsible for dealing with OW. BS Kelly gave evidence about her state of mind when she arrived at the Wilmott home to interview OW. She explained:92 I was going there to meet him because I had been allocated the task to conduct a vulnerable witness interview if he chose, so I went there prepared if he chose to conduct the interview. If he didn’t choose to conduct an interview, victim management is still or witness management is still required in investigations like this and so I - that would have remained with me even if he didn’t proceed with an interview. 142 When they first arrived at the house, there were a number of other police in attendance and OW was in the lounge room. At 11.45am, BS Kelly had an initial conversation with OW in the lounge room in the presence of DBS McGilchrist. BS Kelly introduced herself to OW, and commenced attempting to build rapport with him to break down any uncomfortable barriers.93 She described her role at that point in the following terms:94 My job is, straightaway when I go to a house, such as an example like this investigation, is to - my job is to - it’s called victim management but it can be witness, like a subject, whoever the person I’m dealing with, is to be that point of contact for them, to communicate with them, to build rapport with them, to - he was just a child and so I was there to try and make him feel as comfortable as possible because there was a lot going on for a kid in the house and my job is to try and make him feel as comfortable as possible. 143 This initial conversation was not recorded on video. Both DBS McGilchrist and BS Kelly were asked about this. DBS McGilchrist said it was not normal practice to record conversations of this nature. She explained:95 92 T1320. 93 T1233. 94 T1286. 95 T1234. -- 30 of 86 -- [2025] SASC 168 McDonald J 29 … If you were to put a video straight on in front of a child, that’s going to break down any trust, it’s more about introducing yourself, what your role is, you’re not discussing any of the criminal investigation itself, just whether they’re willing to partake in an interview and giving the options so there was no requirement to put a video on at that stage. 144 BS Kelly explained that, in her view, she was not required to video record this conversation, as it was about rapport building and making OW feel comfortable. She went on to elaborate:96 I - my - a big part of my job is victim/subject/witness welfare and if I’m trying to look after a child in really stressful circumstances, where I’m just having general conversation, rapport building, trying to make him feel comfortable, having a big - having a camera in his face is doing the exact opposite. 145 BS Kelly did, however, make some handwritten notes of the conversation.97 She made these notes when she returned to base after the interview.98 Relevantly, these notes record the following:99 Came into front loungeroom where piano is, introduced myself, he showed me the piano, inside the piano, played some tunes on piano. Explained I’m police + explained Elaine’s police as well. [OW] said “Is this what happens when someone dies” We are here in relation to your sister. I went on the explain to [OW] that I wanted to ask him some Q’s about his family. W/S ok but didn’t want to talk about Jasmine’s death – didn’t want to go over that detail. I agreed + said I won’t have him need to talk then finding Jasmine. I explained he can ask Q’s anytime + I’ll be transparent if 1) allowed to answer 2) don’t know answer 3) I will answer. [OW] happy with this. Option given for [OW] to have P.C in I/V. He asked for his mum – advised if can’t be mum – suggested Brenton (chaplain at school) – [OW] declined to have anyone else. Was happy to proceed w/o any support person. I gave [OW] option of doing I/V at VMT suites – lunch on way, comfy space – OR – we can do I/V @ home – he preferred home. 146 In recounting the detail of that conversation, BS Kelly emphasised that OW made it very clear that he did not want to go over Jasmine’s death in any detail and she agreed that she would not require him to do so. 147 BS Kelly explained to OW that he could have a person present during the interview “to support him, be of emotional help, to check in with him”.100 OW 96 T1287. 97 VDP98. 98 T1311. 99 VDP98. 100 T1290. -- 31 of 86 -- [2025] SASC 168 McDonald J 30 asked for his mother to be present, however, it was explained to him that she would not be suitable. As an alternative, it was suggested that “Brenton”, the school chaplain, could be present. OW said that he did not want Brenton and was happy to proceed without a support person.101 148 It was BS Kelly’s evidence that OW agreed to participate in the interview and said that if he had not agreed, she would not have proceeded. She explained that, in her role, the focus was on OW. She said “I am not part of the investigative team, so my whole role is victim focussed, witness focussed and protecting their welfare, basically”.102 149 BS Kelly gave evidence that the initial conversations with OW were important because she had been trained that there was no utility in attempting to force someone to participate in an interview when they did not want to. She explained:103 That there was a big focus on there is no point in pushing someone to be part of a prescribed interview because it doesn’t give the best reliable account of what’s happened and so we wouldn’t dream of trying to push someone into an interview if they’re not ready, because it doesn’t achieve anything. 150 Initially, OW was given the option of attending the victim management suites, however, he declined and said that he would be happy to speak with the police at home.104 An assessment was made that OW was not too sick to be interviewed. 151 When the formal interview commenced at 12.13pm the video camera was turned on. 152 It was turned off at the conclusion of the interview at 2.16pm. 153 During the course of the interview, OW appeared to be in good spirits, engaged and chatty. In cross-examination, BS Kelly explained that the focus of the interview was “To find out from [OW] what family life was like, what his - what he’s experienced growing up in his family, what his relationships were like, what took place in that household”.105 For that purpose, BS Kelly had prepared a very extensive interview plan. BS Kelly did not accept the suggestion made by Mrs Shaw KC that she had deliberately avoided telling OW that she wanted to speak to him about his mother. The following topics were discussed: • The family dynamic and OW’s relationship with AW and Jasmine. • Family outings. 101 T1291. 102 T1292. 103 T1293. 104 T1233. 105 T1320. -- 32 of 86 -- [2025] SASC 168 McDonald J 31 • Jasmine receiving gifts on her birthday. • The living arrangements at Gleneagles Circuit, Greenwith, including Jasmine sleeping in the laundry. • Jasmine not bringing friends home. • Family meal times and the provision of food in the household. • The lunches that Jasmine was provided to take to school. • The children’s attendance at various schools. • The school drop off routine. • The chores undertaken by the children around the house, in particular, the requirement for Jasmine to undertake a lot of the chores. • An occasion on which OW ran away from home after breaking a television. • The family having dinner together the night before Jasmine committed suicide. • The morning before Jasmine committed suicide. • The relationship between Jasmine and Ms Wilmott. • Ms Wilmott telling OW that Jasmine had been diagnosed with autism and his belief that Jasmine did not have autism. • Jasmine taking food out of the fridge because she was hungry. • Jasmine’s diet. • Jasmine staying in her room by herself a lot. She would request that books or food be brought to her. • Sleeping with Jasmine in a tent in the backyard at Larkdale Crescent, O’Halloran Hill. • SM living with them for a period of time, although OW had limited memory of her because of his age. • OW’s belief that he was the favourite child. • Ms Wilmott telling OW that Jasmine stole food. • Disagreements between Jasmine and SM. -- 33 of 86 -- [2025] SASC 168 McDonald J 32 154 I have watched this and the subsequent two interviews conducted with OW. He is clearly very bright. I have no doubt that given the subjects that were discussed in this interview, against the backdrop of his mother’s arrest, OW was well aware that the interview was focussed on Ms Wilmott, and the circumstances of Jasmine’s death. 155 At about 3.00pm on 29 October 2020, Ms Wood and Ms Bowyer attended Ms Wilmott’s home address, potentially for the purpose of removing OW. 156 By the time that they arrived at the house, AP was present. 157 On arrival, and after assessing the current situation, the decision was made by Ms Bowyer to remove OW pursuant to s 41 of the CYPS Act. As I have said, Ms Bowyer was, for the purpose of the Act, the child protection officer who formed the view that OW needed to be removed. Ms Bowyer conveyed that decision to Ms Wood as the person with the delegated authority to conduct the removal of the child. 158 Ms Bowyer and Ms Wood asked AP to explain what was happening to OW, as they thought the information would be better received coming from someone OW knew. After AP explained what was happening to OW, OW had a shower and packed some belongings, and was driven away. After the s 41 removal, OW was placed in the care of a maternal uncle. 159 Ms Wood gave evidence that consideration was given to other placements for OW. AP was excluded as a suitable carer on the basis that SAPOL told DCP that he was present in the household during the time that concerns were raised about Jasmine and OW, and he had done nothing to ensure the protection of either of the children.106 160 Ms Wilmott’s brother, who was staying in a granny flat at the back of the house, was also deemed unsuitable on the basis that he was a potential witness, who had yet to be interviewed.107 161 From the perspective of DCP, the next step was to complete an application to the Youth Court, seeking a three-month care and protection order in relation to OW. That application first came before the Court on 5 November 2020.108 162 Contained in that application was some additional information that came from OW on the day of his removal from Ms Wilmott’s custody. It was reported by Ms Wood and Ms Bowyer that, whilst they were driving to OW’s uncle’s house, they asked OW if he understood what was happening and why the DCP 106 T1176. 107 T1177. 108 VDP85, VDP86. -- 34 of 86 -- [2025] SASC 168 McDonald J 33 were worried. He responded that “DCP did not want what mum did to Jasmine to happen to me”.109 163 On 5 November 2020, an interim order was made in the Youth Court placing OW under the guardianship of the Chief Executive of the Department for Child Protection. There has been no challenge to that order or the sufficiency of the information and/or evidence upon which it was based. 164 The matter next came before the Youth Court on 26 November 2020, followed by a number of subsequent hearings, leading up to 15 July 2021, when a care and protection order was made placing OW under the guardianship of the Chief Executive of the Department for Child Protection, until he attained 18 years of age. The second interview with OW 165 The police conducted a second interview with OW on 3 March 2021. 166 In his evidence, DBS Ward explained the circumstances that resulted in the police reinterviewing OW. He said:110 The first occasion that [OW] was interviewed, obviously she111 had absolutely no idea of what had occurred that day. Her life had been upended. It’s quite common that a child won’t disclose anything on a first occasion. There was no opportunity for rapport build between Vanessa Kelly and [OW] and also [OW’s] preference to go to the school is not ideal for interviewing children because of the distractions, the child is aware that everyone else is watching them go in a room, teachers being involved. So my understanding is that from the interview there was very little information gained from [OW], so therefore it was always going to be our plan to interview her a second time when the circumstances were correct. 167 He explained the circumstances that led up to the second interview:112 Vanessa Kelly and I were in constant communications with each other as we did want to speak to [OW] again. However we didn’t want to put any pressure on her or cause her any stress and we felt that if there was a separation of time between [OW] and Ms Wilmott, that then maybe [OW] might be more open to talking about what had occurred in the house. The fact that it was four months was not something that we had planned but I was getting communications from the DCP and Child Protection Services that they were eager to interview [OW] themselves, and so not wanting to hold up their processes and understanding the importance of their processes, we then arranged a meeting with [OW] to see if it would be appropriate to interview her a second time. 168 DBS Ward described making arrangements through OW’s caregiver to interview him at 9.00am on 25 February 2021, at the Sturt Police Station. He said that although he would have preferred to wait longer before reinterviewing OW, he felt a pressure to press ahead because he was aware that the DCP and CPS also 109 T1146. 110 T966-967. 111 OW now identifies as she/her. 112 T967. -- 35 of 86 -- [2025] SASC 168 McDonald J 34 wanted to interview OW, but were waiting for the police interviews to take place first. 169 When he was asked why he would have preferred to wait longer before conducting the second interview, DBS Ward explained:113 It’s my experience having investigated numerous child criminal investigations, where the children are victims, is that if there is that separation from the child and the alleged perpetrator and that influence is removed, that you are going to probably have a better chance of a child being more open and frank in a prescribed interview rather than being protective or - and just withholding information or not talking at all. 170 DBS Ward went on to elaborate:114 Yes, it would have been, would have been Vanessa Kelly’s and my preference that [OW] had already received some counselling or was in a safe environment within her house where she was - that an adequate amount of time had been of separation between herself and Ms Wilmott, we had no set date. We were just going to continue to be in correspondence with the DCP and CPS and also the caregivers of [OW] and see whether they would tell us ‘Look I think [OW] is probably in a better position now to have her second interview’. That would have been the preferred circumstances but I also had to be mindful of the fact that another organisation wanted to also speak to her and I didn’t want to hold that up. 171 On 24 February 2021, the day before the interview, DBS Ward was made aware that OW was unwell, “potentially due to the stress of tomorrow’s interview”.115 Although DBS Ward did not initially recall being made aware of this information, his memory was refreshed in cross-examination, when taken to an email exchange between himself and a case worker from the DCP. In that exchange, the case worker went on to express a concern that as a consequence of OW’s stress, “he may be unwilling to attend”.116 172 It was BS Kelly’s evidence that as a consequence of receiving this information the interview was cancelled and replaced with a “consult” to help ease OW’s anxiety.117 When asked why she did not just cancel the arrangements for the interview and reschedule, she said:118 Because he already had anxiety about it, so it would be in his best interest for me to meet him and - in person to perhaps, if he’s got any questions he wants to ask me, I’m there to help with that. 173 The following day, OW, in the company of a case worker from the DCP, met up with BS Kelly and DBS Ward. In the end, no interview took place that day. DBS Ward explained why. He said:119 113 T969. 114 T968. 115 VDD58. 116 VDD58. 117 T1295. 118 T1296. 119 T967-968. -- 36 of 86 -- [2025] SASC 168 McDonald J 35 So [OW] arrived with - I think she arrived with a DCP worker and as soon as [OW] walked through the doors of the Sturt Police Station, Vanessa and I turned to each other and said ‘We’re not interviewing today’. She was obviously stressed, you could see she was uncomfortable and so it is not in our best interests to further traumatise or stress a child out. So Vanessa had a one-on-one conversation with [OW] for about 10 minutes after which Vanessa came out, that was the end of the meeting, [OW] left the police station and Vanessa and I got into the car and I asked what had occurred and she said ‘I don’t think [OW] is getting any trauma counselling or anything like that and I think we need to organise that’. So we returned to Adelaide and Vanessa phoned an organisation called Act For Kids and organised some counselling for [OW]. 174 BS Kelly’s evidence about these events was consistent with that of DBS Ward. She said that prior to the interview being abandoned, OW requested to speak privately with BS Kelly. That request was facilitated. 175 BS Kelly said she spoke privately with OW in a separate room at the police station. During that conversation, general matters were discussed, including his current living situation, the intention to conduct an addendum interview with him, and general matters relating to his welfare. She said:120 He just talked to me about his current living situation. Again, this is a young, a young boy who has been through a lot and my job is to maintain rapport and hear how he’s going to determine if he needs anything and in that conversation I discussed that I can - would he be open to counselling. 176 When asked whether he would be open to counselling, OW agreed that he would.121 177 On her return to Adelaide, BS Kelly contacted ‘Act for Kids’ to place a referral for someone to reach out to OW in regards to counselling. 178 Miranda Willet was the psychologist who was allocated to OW and provided him with ongoing counselling. I will come back to her involvement in the context of the third interview. 179 The conversation that took place on 25 February 2021 was not video recorded. When asked why not, BS Kelly responded:122 We are not - it’s not a prescribed requirement to but when it’s a conversation around the victim, anxieties, welfare, any questions that I can help answer for him, I’m not going - I wouldn’t record that ever. 180 At the end of this conversation, it was decided that DBS Ward would continue liaising with the DCP and OW’s foster parents to arrange another time to conduct a further interview. 120 T1296. 121 T1296. 122 T1296. -- 37 of 86 -- [2025] SASC 168 McDonald J 36 181 In cross-examination, Mrs Shaw KC asked BS Kelly about whether, during the course of this conversation, she provided OW with the option of not participating in another interview. BS Kelly responded:123 As you have appreciated I don’t have those exact notes written down. I am very consistent with the subjects that I interview and they are very – it is really important that I make them aware that they are not obliged and it is important for me to say that, not just because they do have a choice but because there is absolutely no benefit in me trying to conduct an interview with someone who doesn’t want to. 182 When challenged about the fact that she had no specific recollection of whether she told OW he was not obliged to participate, BS Kelly remained firm about her usual practices. She said:124 Those exact words, no, but we went to the consult knowing he had anxiety around the interview so I can only presume I conducted my regular consistent conversations with subjects around ‘what’s his anxiety’ and anything that came from that, like would he like me to answer any questions about what it is that he’s anxious about. 183 BS Kelly also remained firm in her evidence that had OW said that he did not want to participate in a further interview, she would not have made arrangements for the second interview.125 184 The second interview was rescheduled for 21 March 2021. Due to DCP commitments, the interview was brought forward and took place on 3 March 2021. 185 At 10.10am, BS Kelly met with OW and Ms Bowyer at the Victim Management suites. The presence of Ms Bowyer during the second interview 186 I digress to say something about the presence of Ms Bowyer during this interview. Ms Bowyer had obviously played a central role in the s 41 removal of OW. It would appear that she also had some ongoing involvement with OW in the time between the two interviews, although to what extent is not clear. During the cross-examination of BS Kelly, she was asked about her knowledge of Ms Bowyer’s previous involvement in the case. She responded that she did not know. The following exchange then took place:126 Q. If she was someone who was involved in your investigation, for example, during the 29 October 2020, would that be someone you would think was appropriate to be present during the interview. A. Yes. Q. Why is that. 123 T1333. 124 T1334. 125 T1337. 126 T1338-1340. -- 38 of 86 -- [2025] SASC 168 McDonald J 37 A. Because he knows her. If she – and this is an if because I don’t know if she was officially allocated, I don’t know DCP workings, but the consistency is important, so if he has been her contact since the removal, her – if she’s been the communications with [OW] about where to from here and what’s happening for him, then, to me, that’s a trusted, consistent source for someone to sit with him. But essentially it’s not my decision – like, if, on a police point of view, you know, she’s not the accused and, you know, there’s no – like, when he requested his mum, we can’t have that. So if he wanted her to be there, I’m going to say yes to that because that’s his choice. Q. Just to be clear, you’ve got no record at any stage he said he wanted her to be there or you have. A. She – yeah – yes, so Genevieve conveyed him in. Q. Yes. A. And during, like, the pre-conversation before the videorecorded interview I will always ask if he wants a prescribed companion present, support person, and in this case prescribed companion was requested at 1010 and Genevieve was his support person. Q. I appreciate you aren’t aware of the role of DCP in the original investigation and their provision of information to SAPOL in the original investigation but can I ask you, as a matter of your training, is it the case that if the prescribed companion has been involved in the investigation, for example, might be a potential witness, you would not ordinarily have that person as a prescribed companion. A. Not necessarily. A prescribed companion is a support person, they are not allowed to talk in the interview unless it’s to do with welfare, such as ‘[OW], would you like a break now?’, it’s simply a person with them as – for support, not to participate or turn to to ask questions or references or anything of that matter. Q. I apologise for asking this again, but I’m just clarifying, are you saying the fact that they may have been involved in the investigation or may be a potential witness doesn’t matter, bearing in mind the nature of what they’re doing. A. I’m not saying it doesn’t matter, that question is so incredibly broad, like, there is so much that goes into consideration to determine if someone would be appropriate and Ben Ward, who had carriage of it, if she wasn’t appropriate, he would have said ‘She’s not appropriate’. Q. So is that really a decision you left for Mr Ward, bearing in mind he had the carriage of the investigation. A. Is that what? Q. Is that a decision that you really had left at the feet of Mr Ward, bearing in mind his role in the carriage of the investigation. A. I trust that Ben would have told me that she’s not appropriate to be a support person if that was the case. 187 Mrs Shaw KC then asked BS Kelly a series of more general questions about the approach she adopted in determining whether someone is an appropriate -- 39 of 86 -- [2025] SASC 168 McDonald J 38 prescribed companion. Given the emphasis placed on this issue in Mrs Shaw KC’s submissions, I set out this cross-examination in full:127 Q. Can I just ask you a general question then in terms of your practice and your training, ignoring this case for a minute, is it the case that, as part of your training – tell me one way or the other – that if a prescribed companion is a potential witness to the police investigation, you would – if it was your decision, you would not have them as a prescribed companion. A. Well, a witness, there can be many, many witnesses in a case, not necessarily to the direct allegations that are being brought forward. So there could be a witness to ‘I worked with this person’ and they’re a witness in the case. So I can’t say a clear black and white answer to that because witnesses can hold many different roles in cases. Q. And also in relation to whether the person may have been involved in the investigation with police, that is, an investigator in the sense of, for example, providing the police with information towards the investigation, would you regard that person as an appropriate person to be a prescribed companion. A. If, for example, she was an - like, provide - had information on an intake, you know, about the family and all of that, I don’t see a problem with her being a support because she’s not talking in the interview, she’s not having conversation with [OW] in the interview and she’s not aiding or helping him to answer questions in any way. Q. Is there anything in terms of what you understand to be the requirements that you’re obliged to follow that you use as your benchmark in that respect. A. As to who can be a support person? Q. Yes. A. I have to try and think back to my training. The training taught us what their role is and, for example, the importance of their role and not – I’m repeating this, but, you know, not saying anything, not aiding in answering questions. That’s taught in the training. I believe it’s a police risk assessment and – are the ones that make the decision as to who – as to whether that support person is okay to be present. 188 Returning back to the interview of March 2021. There was again an initial informal conversation to build rapport that was not recorded on video. When asked what was discussed, BS Kelly replied, “His counselling, again just based around rapport, just having lovely human interaction about how it’s going, how he is”.128 189 In cross-examination, BS Kelly further elaborated on the topics that were discussed, which included OW’s current situation and living arrangements, and her intention to conduct a further interview. When asked whether she could provide any additional details about the conversation on the topic of a further interview, BS Kelly responded:129 127 T1340-1341. 128 T1299. 129 T1333. -- 40 of 86 -- [2025] SASC 168 McDonald J 39 As you have appreciated I don’t have those exact notes written down. I am very consistent with the subjects that I interview and they are very - it is really important that I make them aware that they are not obliged and it is important for me to say that, not just because they do have a choice but because there is absolutely no benefit in me trying to conduct an interview with someone who doesn’t want to. 190 During that conversation, there was no discussion about Ms Wilmott or any matters that were to be the subject of the interview. 191 BS Kelly explained that this was a deliberate decision on her part. She said “it’s very clear in our training that we do not engage in any conversation about the event that we are going to be interviewing about and if – you can’t control what a witness says, if a witness were to bring that up, I would be doing verbatim notes straightaway on that conversation”.130 192 The formal interview commenced at 10.28am. The interview was recorded. BS Kelly, DBS Ward and Ms Bowyer were present throughout the interview. It is clear from viewing the interview that, on this occasion, OW was nervous and a little hesitant in speaking with the police. 193 When asked to describe OW’s demeanour during the second interview, BS Kelly provided the following response:131 In the first few interviews [OW] was shy. He was reserved. He didn’t sort of speak freely, like we can get some witnesses coming in and happy to talk about the day at school, what they ate for lunch and we have some toys and things in our room and they might go and play with that. [OW] was reserved but definitely we had rapport going because it wasn’t the first time I’d met him. 194 The topics discussed during this interview were similar to those that had been canvassed in the first interview. They included: • The family eating dinner together. • Occasions on which Jasmine would eat separately in her bedroom. • Jasmine undertaking household chores. • The food provided to the children for dinner. • Restriction on access to food in the fridge. • OW preparing food for Jasmine. • The alarm in Jasmine’s bedroom at Lilford Way. The alarm was for Jasmine’s safety. 130 T1299. 131 T1300. -- 41 of 86 -- [2025] SASC 168 McDonald J 40 • The restriction of Jasmine’s movements; limited opportunities to leave her bedroom. • On the day of Jasmine’s death, her room was alarmed. OW had to deactivate the alarm to go into the bedroom. • An account provided by Ms Wilmott about an occasion on which Jasmine took pills into her bedroom. • Occasions on which Ms Wilmott would take OW and AW out and leave Jasmine in her bedroom. • An occasion on which the family attended a Korean restaurant and Jasmine came along as well. • Jasmine’s hoarding of food in her room. • The events of the morning of Jasmine’s death. • Jasmine remaining in her bedroom, with the alarm turned on, throughout the school holidays. • OW denied that he had ever been instructed to punish Jasmine. • Jasmine having no access to technology. • Jasmine being locked in her room at the Gleneagles house. 195 After the conclusion of the interview, the group moved into a separate, more comfortable lounge space. At this time, BS Kelly noticed a change in the demeanour of OW. She said that he was in good spirits and appeared relieved that the interview was over. She said that it was the most talkative and relaxed that she had ever seen him.132 This informal conversation was not recorded. 196 At that time, the police had no plan to conduct any further interview with OW. It was DBS Ward’s evidence that he and BS Kelly shared the view that OW was not going to make any further disclosure and, in all likelihood, would never speak frankly with the police. 197 The investigation was completed in October 2020. On 11 November 2020, the task force was stood down and a copy of the brief was provided to the DPP. Those who had been involved in the investigation returned to their respective areas of SAPOL. The brief, however, remained with DBS Ward. 198 On 21 April 2021, the charges against Ms Wilmott were withdrawn. 132 T1300. -- 42 of 86 -- [2025] SASC 168 McDonald J 41 The third interview with OW 199 About 12 months later, on 8 March 2022, either DBS Ward or BS Kelly received a telephone call from OW’s treating psychologist, Miranda Willet, in which she advised that she had just had a counselling session with OW, during which he had divulged “a whole heap of information”.133 Ms Willet told the police that OW was prepared to speak with them however he had some concerns. 200 A meeting was arranged between Ms Willet, OW and the police on 22 March 2022, in order to attempt to address these concerns. Present at that meeting were OW, Ms Willet, DBS Ward and BS Kelly. OW’s concerns primarily related to how AW would react to OW speaking with the police, and talking openly about what had occurred in the Wilmott household. OW asked the police to go and speak with AW to advise him that OW was proposing to speak with them, on the basis that he wanted AW’s approval. OW wanted the police to attempt to ensure that if he spoke with them, he would still have a relationship with AW.134 201 During the meeting, BS Kelly assured OW that the police were not going to make OW do anything that he did not want to do. OW was told “If he provided an interview, that he can still opt out at any point”.135 202 This meeting was not video recorded. BS Kelly made notes of the meeting. One of two pages of her notes for this date was tendered. These notes read:136 22/3/22 [OW] – Meeting Met w ̅ [OW] + his psychologist Miranda - w ̅ I/O Ben WARD Purpose to answer questions [OW[ has in regard to if he were to provide statement (i/v) to police. * Main concern in what brother [AW] will think of him. Asked police talk w ̅ [AW] + tell him [OW] will prove stmnt + ask if he approves. [OW] wants us to tell [AW] + ensure he will still have relationship w ̅ him. Further discussion around assuring [OW] police arent going make him do anything he doesnt want to. If provides I/V – he can opt out at any point. [OW] wanted time to think about it + talk over w ̅ Miranda. 203 Although the second page of BS Kelly’s notes was not tendered, it would appear from cross-examination that she also noted “No forcing, pull out, mum in trouble for other things”.137 133 T970. 134 T1305. 135 T1305. 136 VDP99. 137 T1361. -- 43 of 86 -- [2025] SASC 168 McDonald J 42 204 BS Kelly explained that she told OW that he was not solely responsible for the allegations against his mother. 205 After the meeting, DBS Ward made a note of what had taken place at the meeting in the shield occurrence log. He recorded the following:138 22/03/2022 Meeting this date with Psychologist, Miranda WILLETT, and [OW] and VMT member, Vanessa KELLY. Meeting arranged to discuss with [OW] his concerns about speaking to police and the repercussions the disclosures may have on his brother [AW]. [OW] advised in very clear terms that he was under no obligation to provide police a statement and the decision was purely his. Following meeting, I/O WARD received phone call from WILLETT advising [OW] was happy to speak to police but would like police to speak to [AW] first and gain [AW’s] understanding. 206 After that meeting, DBS Ward made contact with AW, as requested by OW, and arranged for a meeting to take place on 25 March 2022. 207 The day before the meeting, on 24 March 2022, the DCP advised that OW’s carer, Patrick Dupont, had been in contact and had raised some concerns about OW providing a statement. As a consequence, DBS Ward telephoned Mr Dupont. Details of that conversation were recorded in the Police Incident Log by DBS Ward.139 The following was noted: I reassured DUPONT that [OW] was not going to be ‘culpable’ for any admitted offending. [OW] has made admission to his Psychologist that he hit Jasmine at the direction of WILMOTT, JENNI, this was done in the form of ‘punishment’, [OW] also stated he was responsible for locking Jasmine in her room including on the day of Jasmine’s death. Jasmine passed away on 5 October 2018, at the time of her death [OW] was less than 10yres and 3 months old as he was born on 12/07/2008. I advised DUPONT that any ‘offences’ [OW] committed under the age of 10yrs he could not be culpable for and it would not be in the DPP’s or Public Interest to prosecute [OW] as any actions he committed against Jasmine were likely to have been at Jenni’s instruction. Prior to [OW’s] admissions, there had been no allegations/evidence that [OW] had committed any offences. Advised DUPONT that it was preferable to get a statement from [OW] prior to the 8th of April as I had been advised by DCP that [MW] was travelling to Adelaide from Victoria to see [OW]. Explained I wanted to retain the ‘integrity’ of the investigation and prevent any suggestion that there was opportunity for [MW] and [OW] to collude etc. Advised DUPONT that we had given [OW] the assurance that he was in control and that if he was to provide a statement he wouldn’t be compelled to give evidence against Jenni given his relationship (son/mother) and his welfare was of utmost importance and Police wouldn’t do anything to jeopardise his mental health. Section 21 of the Evidence Act 1929 provides provisions in regards to circumstances such as these. Spoke at length that [OW’s] evidence was not relied upon in determining charges against Jenni. Advised the DPP have a list of charges they’re looking at laying against Jenni and 138 VDD29. 139 VDD29. -- 44 of 86 -- [2025] SASC 168 McDonald J 43 “if” [OW] was to provide a statement then additional charges would be laid in respect of his evidence. Stressed that a statement from [OW] was not going to get Jenni in trouble, that it was her actions. … DUPONT has my contact details if he wishes to seek clarification or discuss things in the future. 208 In cross-examination, DBS Ward agreed that at the meeting on 22 March 2022, he had given OW an assurance that if he gave a statement he would stay in control, in the terms that he explained to Mr Dupont. 209 The meeting with AW went ahead as scheduled on 25 March 2022. It was DBS Ward’s evidence that during the meeting with AW, AW was upset and disbelieved that OW would speak to the police. Whilst AW did not give OW his approval to participate in an interview, he said that he was not going to stand in OW’s way or obstruct OW from speaking to the police. 210 DBS Ward reported the outcome of the meeting back to Ms Willet. On 5 April 2021, Ms Willet telephoned DBS Ward and advised him that OW was prepared to participate in an interview. 211 The third interview took place on 8 April 2022. It was DBS Ward’s evidence that there was again some urgency in conducting the interview. On this occasion, it was because there was a planned reunification of OW with MW, that had been arranged for 22 April 2022. Based on DBS Ward’s experience, he formed the view that it was best to reinterview OW before that reunification occurred, so that it could not be suggested that OW’s account had been contaminated by MW. 212 During submissions, Mrs Shaw KC suggested that it was open to infer that the meeting with MW was some sort of inducement that had been held out to OW. Such a suggestion is inconsistent with the evidence that the interview had to be brought forward so that it took place in advance of the meeting with MW. That sequence of events would suggest that the meeting was not contingent upon OW participating in an interview, but rather had been raised in advance of and separate from the interview. 213 I accept the submission made by Ms Litster that the approach adopted by DBS Ward speaks to him doing his best to ensure that OW’s account was truthful and uncontaminated. He was aware that, by this time, MW had provided a statement that implicated Ms Wilmott, and wanted to avoid any suggestion that MW had influenced the account provided by OW. 214 I do not accept that a meeting with MW was held out as a form of inducement, nor that it had any impact on what OW said at the interview. 215 The third interview commenced at 2.19pm and was conducted in the Victim Management suites. Present were BS Kelly, Ms Willet (as the prescribed companion), and OW. DS Vanderwoude viewed the interview from behind a mirror. -- 45 of 86 -- [2025] SASC 168 McDonald J 44 216 Again, the formal interview was preceded by some general discussion between BS Kelly and OW. These discussions broadly related to OW’s welfare.140 During this conversation, BS Kelly acknowledged that there were topics that it may be hard for OW to talk about. Ms Willet was present throughout most of this conversation.141 BS Kelly noted that during this conversation OW was “surprisingly upbeat”.142 217 During this interview, OW was far more forthcoming with the provision of information than he had been in the first two interviews. During the third interview, OW discussed the following topics: • SM was treated like Jasmine; Ms Wilmott would hit her a lot. • Ms Wilmott would lock Jasmine in her room and sometimes would not allow her to eat. • The food that Jasmine was given was basic, like Weetbix or carrots. • An occasion on which Ms Wilmott conducted an inspection of Jasmine’s room and found food that Jasmine was not meant to have and, as a punishment, Ms Wilmott hit Jasmine 10 to 15 times. • Locating jars of vomit in Jasmine’s room. • An occasion on which Jasmine said “a bad word” and Ms Wilmott washed her mouth out with soap and beat her with a rolling pin. • Occasions on which Ms Wilmott would hit Jasmine for not sweeping or mopping fast enough. • Ms Wilmott frequently striking Jasmine with a wooden spoon, once every two or three days. • Most days Ms Wilmott would strike Jasmine with her hands. • Ms Wilmott would make Jasmine hit herself. • An occasion on which Ms Wilmott picked OW up from school and Jasmine was in the car wearing only underpants. After driving for a while, Ms Wilmott told Jasmine to hit herself. • Ms Wilmott would film Jasmine apologising to the therapist for not doing as she was told e.g. hoarding food. 140 T1306. 141 Ms Willet may have left for a period of time to move her car, T1307. 142 T1308. -- 46 of 86 -- [2025] SASC 168 McDonald J 45 • Ms Wilmott forcing Jasmine to do chores in her underwear. • Jasmine would sometimes plead not to be hit. • Jasmine would bruise as a result of being hit by Ms Wilmott. Ms Wilmott would tell Jasmine to use ice to assist in the reduction of the bruising. • An occasion on which Jasmine got into trouble and Ms Wilmott cut off her hair. • Jasmine would be provided with different food from the rest of the family for dinner. • Ms Wilmott would tell OW to punish Jasmine. On some occasions, he would use his hands and on other occasions he would wear boxing gloves. • Jasmine would be locked in her bedroom (the laundry) at the Gleneagles address for days; she would be in there for most of the days in the school holidays. OW would let her out at lunch time so that she could have something to eat and drink. • After school, Jasmine would do chores and then she would be locked in her bedroom. • Ms Wilmott’s behaviour to Jasmine was a bit better closer to the time that Jasmine passed away. • Leading up to the time of Jasmine’s death, OW had started letting her out of her bedroom. Jasmine had started to knock on her door and ask to be let out after Ms Wilmott left. • On the day of her death, Jasmine had knocked on her door and asked to be let out of her bedroom. However, OW did not let her out. • The circumstances of OW finding the suicide note and going into Jasmine’s bedroom. • Ms Wilmott told OW that Jasmine had an eating disorder and that was why they had to conduct room checks. • Ms Wilmott told OW that Jasmine had a growth disorder and was autistic. • When the family moved in with AP, Ms Wilmott stopped being so physical with Jasmine. Ms Wilmott was nicer to Jasmine when AP was around. -- 47 of 86 -- [2025] SASC 168 McDonald J 46 • Ms Wilmott would make comments about SM’s weight. • SM did some chores but Jasmine did most of them. • An occasion on which SM punched Jasmine and Ms Wilmott egged her on. 218 Towards the end of the interview, Brevet Sergeant Kelly asked OW why he had not previously mentioned some of the matters that came up in the third interview. OW responded:143 Well, I was still seeing mum all the time, and I didn’t want her to get angry at me or- … I was scared that I’d get in trouble as well. OW went on to further explain, “And, like, I was still really close to mum and I felt I need to kind of protect her, I guess”.144 219 When asked why he was now speaking up, OW said that it was a consequence of no longer seeing Ms Wilmott. He said:145 … it’s kind of separated me and helped me kind of realise the stuff we did, you know, and, like, you know, I’m not seeing her anymore, and it just doesn’t, I don’t feel like I need to protect her anymore. The presence of Ms Willet during the third interview 220 During cross-examination, an issue was raised about the decision to permit Ms Willet to undertake the role of the prescribed companion during the third interview. Mrs Shaw KC asked BS Kelly about whether she saw any particular issue with Ms Wilmott performing this role, given that she was OW’s treating psychologist. In particular, it was suggested that Ms Willet was potentially a prosecution witness. BS Kelly maintained that she had no concerns about Ms Willet taking on this role and from her perspective, if there was an issue with Ms Willet being a potential witness, that was a matter for DBS Ward as the investigating officer. 221 BS Kelly went on to explain that determining whether someone is a suitable prescribed companion is a balancing exercise. She said that in circumstances in which the person has been a part of the investigation:146 … we weigh that up and sometimes the investigating officer will put, you know, a line in the sand and say yes or no and in this case we were very comfortable with Miranda being his support person in this matter, she wasn’t allowed to talk in the interview, she wasn’t allowed to prompt him in any way whatsoever, so I feel really comfortable with her being the support person 143 Record of interview at 54. 144 Record of interview at 55. 145 Record of interview at 55. 146 T1379. -- 48 of 86 -- [2025] SASC 168 McDonald J 47 222 BS Kelly did not agree with the suggestion made by Mrs Shaw KC that Ms Willet’s presence put pressure on OW, given that she had been his therapist for the previous 12 months. BS Kelly explained that she had made it very clear to OW throughout the entire process that there was not any pressure on him to answer her questions. 223 DBS Ward was also cross-examined about the decision to permit Ms Willet to be OW’s companion during the interview. He denied that it was his suggestion that Ms Willet be the companion, however, he believed that she was suitable because, to his mind, she was independent from the investigation.147 He said that he believed that Ms Willet would not be a witness because she had been OW’s psychologist and, therefore, her conversations with OW would be privileged. It was his evidence that he had retained that view until shortly before the trial when he heard that defence had issued a subpoena for Ms Willet to give evidence.148 224 At the conclusion of the interview, BS Kelly reiterated to OW that he would “not be forced to do anything he doesn’t want to in regards to this process”.149 She described him as in “good spirits, he was smiling” and looking forward to seeing MW.150 225 BS Kelly’s final contact with OW took place sometime after the third interview. BS Kelly explained that in her role, it is not uncommon to retain ongoing contact with a witness or victim. On this occasion, BS Kelly met up with OW and Ms Wilmott at his home address. At that time, he advised BS Kelly that he had no need for her to have any further contact with him. The conversation was not video recorded. The second arrest 226 On 2 December 2022, the police received information that the DPP were to reinstate the charges. 227 On 26 April 2023, Ms Wilmott was rearrested. Application to admit the interview of OW conducted on 8 April 2022 (the third interview) pursuant to s 13BA of the Evidence Act 1929 (SA) 228 As I have said, the prosecution have made an application for the third prescribed interview of OW to be admitted pursuant to s 13BA of the Evidence Act. 229 It is for the prosecution to establish that the interview with OW should be admitted under s 13BA of the Evidence Act. Section 13BA provides: 147 T1023-1024. 148 T1024. 149 T1310. 150 T1310. -- 49 of 86 -- [2025] SASC 168 McDonald J 48 13BA—Admissibility of recorded evidence by certain witnesses in certain criminal proceedings (1) Subject to this section, the court may, in the trial of a charge of an offence, or in a pre-trial special hearing conducted in accordance with section 12AB, order that the evidence of a witness be admitted in the form of an audio visual record. (2) Subject to subsection (2a), an application for an order under subsection (1) must— (a) be made in writing by the party wishing to have the audio visual record of the evidence admitted under this section; and (b) be filed in the court; and (c) within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and (d) otherwise be made in accordance with the rules of court. (2a) An application for an order to admit an audio visual record of the examination, cross- examination or re-examination of a witness at a pre-trial special hearing may be made orally at the pre-trial special hearing or in accordance with any directions of the court. (3) An audio visual record of the evidence of a witness may be admitted under this section if the recording— (a) has been made in a pre-trial special hearing conducted in accordance with section 12AB; or (b) has been made pursuant to Part 17 Division 3 of the Summary Offences Act 1953 and— (i) the court is satisfied as to the witness’s capacity to give sworn or unsworn evidence at the time the recording was made; and (ii) the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and (iii) the witness is available, if required, for further examination, cross- examination or re-examination during the course of the trial or, if the order for admission of the recording is being sought in a pre-trial special hearing under section 12AB, during the course of the pre-trial special hearing. (4) The court’s discretion to exclude evidence is not affected by subsection (3) and the court may— (a) rule as inadmissible the whole or any part of the recording; or (b) before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason. (5) Despite subsection (3)(b)(iii), the witness cannot be further examined, cross- examined or re-examined on the evidence admitted under this section without the -- 50 of 86 -- [2025] SASC 168 McDonald J 49 permission of the court which may only be given, on application by a party to the proceedings— (a) if the court is satisfied that a party to the proceedings has, since the making of the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or (b) if the witness gives evidence in the trial or, if the order for admission of the recording is being sought in a pre-trial special hearing under section 12AB, during the course of the pre-trial special hearing, apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross-examined or re-examined; or (c) if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross-examined or re-examined. (6) If a court admits evidence in the form of an audio visual record under this section, the judge must— (a) explain to the jury that the law allows the court to admit evidence in this form; and (b) warn the jury— (i) not to draw from the admission of evidence in that form any inference adverse to the defendant; and (ii) not to allow the admission of evidence in that form to influence the weight to be given to the evidence. 230 It follows that, for the interview to be admissible, the prosecution must file the requisite application and establish either, that the recording was made in a pre- trial special hearing conducted in accordance with s 12AB, or pursuant to pt 17, div 3 of the Summary Offences Act. Here, the prosecution contend that the interview was conducted in accordance with the relevant provisions of the Summary Offences Act. 231 In addition, for the interview to be admissible, it must be established that the witness had the capacity to give sworn or unsworn evidence at the time the recording was made, that the witness is available to give evidence and that Ms Wilmott has been given a reasonable opportunity to view the recording. 232 There is no dispute that OW had the capacity to give evidence, is available to give evidence and that Ms Wilmott has had sufficient opportunity to view the video. 233 The contest is centred on whether there has been compliance with the Summary Offences Act, and in the event there has been non-compliance, the consequential effect of that failure. -- 51 of 86 -- [2025] SASC 168 McDonald J 50 234 It is Ms Wilmott’s contention that there has been a failure to comply with the Summary Offences Act on the basis that not all of the “relevant” conversations between the police and OW were recorded, that the prescribed examiner contravened the Summary Offences Regulations 2016 (SA) (‘Summary Offences Regulations’) by using leading questions during the course of the interview and by failing to ensure that there was an appropriate prescribed companion present at each of the three interviews.151 The failure to record “relevant” conversations 235 Part 17 of the Summary Offences Act contains the sections of the Act that relate to the recording of interviews. Division 3 of pt 17 applies to interviews with certain categories of vulnerable witnesses. 236 Section 74EB of the Summary Offences Act sets out the requirements for conducting such an interview and relevantly reads: 74EB—Obligation to record interviews with certain vulnerable witnesses If a person to whom this Division applies is to be interviewed as a potential witness in relation to the investigation of a serious offence against the person, the interview must be conducted as follows: (a) an audio visual recording of the interview must be made in accordance with the regulations; (b) the interview must be conducted by a prescribed interviewer; (c) the manner in which the interview is conducted must meet the prescribed requirements to the prescribed extent. 237 The definition of an “interview” is contained within the interpretation section and reads: 74C—Interpretation In this Part— interview includes— (a) a conversation; or (b) part of a conversation; or (c) a series of conversations, but does not include an examination under the Independent Commission Against Corruption Act 2012; … 151 Summary Offences Regulations 2016 (SA) reg 21. -- 52 of 86 -- [2025] SASC 168 McDonald J 51 238 The final section of the Summary Offences Act, with work to do on this application is s 74EC which provides for the admissibility of a prescribed interview. It relevantly reads: 74EC—Admissibility of evidence of interview (1) In proceedings for a charge of a serious offence against the person, evidence of an interview between a prescribed interviewer and a person to whom this Division applies is inadmissible unless— (a) the prescribed interviewer complied with this Division in relation to the conduct and recording of the interview; or (b) the court is satisfied that the interests of justice require the admission of the evidence despite the prescribed interviewer’s non-compliance. 239 Of note, the starting point is that the prescribed interview is inadmissible unless it was compliant with the requirements within div 3, or it is established that the interests of justice require the admission of the evidence. 240 The interview conducted with OW on 8 April 2022 was recorded as required by s 74EB. That much is uncontentious. Mrs Shaw KC’s argument about non- compliance with the requirements to record, is based on the extended definition of an interview under s 74C, which includes “a conversation” or “part of a conversation” or “a series of conversations”. It was Mrs Shaw KC’s submission that, as a consequence of the extended definition, any conversation between BS Kelly and OW should have been recorded. Although Mrs Shaw KC cross- examined BS Kelly about all of the conversations that she had with OW, given the prosecution are only proposing to lead the third interview, the only conversations that are potentially relevant are those that were proximate to that interview. Those are the informal conversations that took place immediately before and after the third interview on 8 April 2022. In addition to this, Mrs Shaw KC submitted that the conversation that took place on 22 March 2022 should also have been recorded, and given the subject matter discussed during that interview, the failure to have done so impacts on the admissibility of the third interview with OW. 241 As I understand, it is Mrs Shaw KC’s argument that because the police did not record the informal conversations that took place before and after the third interview, as well as the conversation that took place on 22 March 2022, BS Kelly has not complied with the requirements that there be an audio visual recording of “the interview.” In the event that is correct, the interview will be inadmissible unless I am “satisfied that the interest of justice require the admission of the evidence” despite the non-compliance. 242 In support of the argument Mrs Shaw KC relied on the decision of Kourakis CJ in Lindsay v The King; Rankine v The King; Woods v The King (‘Lindsay’).152 152 (2022) 142 SASR 175. -- 53 of 86 -- [2025] SASC 168 McDonald J 52 That was a challenge to a decision to admit the interview of a suspect under s 74D, for which the same extended definition of interview applies. 243 In Lindsay, the issue under consideration was the admissibility of conversations with Mr Rankine, that were covertly recorded by undercover operatives whilst he was being held in the Adelaide City Watchhouse on unrelated charges. At trial, Mr Rankine unsuccessfully sought an order excluding evidence of the conversations on the ground that the undercover police officers had failed to comply with all of the measures mandated by s 74D of the Summary Offences Act for the recording of conversations between police officers and suspects. 244 Section 74D of the Summary Offences Act imposes the following obligations on police officers engaging in interviews with suspects: 74D—Obligation to record interviews with suspects (1) An investigating officer who suspects, or has reasonable grounds to suspect, a person (the suspect) of having committed an indictable offence and who proposes to interview the suspect must ensure the following requirements are complied with: (a) if it is reasonably practicable to make an audio visual record of the interview, an audio visual record of the interview must be made; (b) if it is not reasonably practicable to make an audio visual record of the interview but it is reasonably practicable to make an audio record of the interview, an audio record of the interview must be made; (c) if it is not reasonably practicable to make either an audio visual record or audio record of the interview— (i) a written record of the interview must be made at the time of the interview or as soon as practicable after the interview; and (ii) as soon as practicable after the interview, the record must be read aloud to the suspect and an audio visual record made of the reading; and (iii) when the audio visual recording begins (but before the reading begins) the suspect must be invited to interrupt the reading at any time to point out errors or omissions in the record; and (iv) if the suspect in fact interrupts the reading to point out an error or omission, the suspect must then be allowed a reasonable opportunity to do so; and (v) at the end of the reading, but while the audio visual recording continues, the suspect must again be invited to point out errors or omissions in the record and allowed a reasonable opportunity to do so; and (vi) if the investigating officer agrees that there is an error or omission in the record, the officer must amend the record to correct the error or omission and if the officer does not agree that there is an error or omission in the record, the officer must nevertheless make a note of the -- 54 of 86 -- [2025] SASC 168 McDonald J 53 error or omission asserted by the suspect in an addendum to the record of interview. (2) If the suspicion, or a reasonable ground for suspicion, arises during the course of an interview, the investigating officer’s obligations under subsection (1) arise at that point and apply to the interview from that point. (3) In deciding whether it is reasonably practicable to make an audio visual record or audio record of an interview, the following matters must be considered: (a) the availability of recording equipment within the period for which it would be lawful to detain the person being interviewed; (b) mechanical failure of recording equipment; (c) a refusal of the interviewee to allow an audio visual record or audio record of the interview to be made; (d) any other relevant matter. (4) As soon as practicable after an audio visual record or audio record of an interview is made under this Part, the investigating officer must give the suspect a written statement— (a) if an audio visual record was made—of the right of the suspect or the suspect’s legal adviser (or both) to view the recording and to obtain from the audio visual record an audio record; or (b) if an audio record but no audio visual record was made—of the right of the suspect to obtain a copy of the audio record. (5) Arrangements must be made, at the request of a suspect, for the playing of an audio visual record at a reasonable time and place to be nominated by an appropriate investigating officer. (6) A suspect must be provided, on request and on payment of the fee fixed by regulation, with— (a) an audio record of the audio visual record of an interview with the suspect under this Division; or (b) a copy of an audio record of an interview with the suspect under this Division. 245 As is clear from the section, s 74D creates a detailed regime designed to achieve a just and transparent resolution of disputes about details of what passed between investigators and a person reasonably suspected of having committed a crime. In Lindsay, Kourakis CJ made some observations about the purpose of the enactment of this section:153 The following should be noted. First, s 74D is calculated to redress the credibility imbalance between police officers and suspects in the event that the latter is charged. It had been a matter of considerable public and judicial concern for some time before the 153 Lindsay v The King; Rankine v The King; Woods v The King (2022) 142 SASR 175 at [152]. -- 55 of 86 -- [2025] SASC 168 McDonald J 54 enactment of Pt 17 that courts were often asked to adjudicate on the guilt of defendants based on disputed confessions or admissions alleged to have been made to police in the absence of any objective record or independent witness. Judicial and legal resources were unnecessarily committed to resolving those contests. Over time electronic technologies provided simple and cost-effective means to make audio-visual records of police interviews. 246 In Lindsay, Mr Rankine was suspected of having been involved in a number of robberies (with co-offenders). One of those, was the robbery of the V Hotel. Prior to his arrest for that robbery, Mr Rankine was arrested for breaching bail in relation to unrelated matters. It would seem, from the observations made by Kourakis CJ, that the arrest was a deliberate ploy employed by those investigating the robberies to further the investigation. A determination was made to seek approval for an undercover operation to engage with Mr Rankine whilst he was in custody in an attempt to extract admissions. Although by this stage the police reasonably suspected Mr Rankine to have been involved in the robbery of the V Hotel, they chose this covert route rather than run the risk of Mr Rankine refusing to speak with them in a controlled formal interview situation. The goal was to obtain a confession from Mr Rankine that would form part of the brief of evidence to be used against him at trial. 247 Approval was granted for the undercover operation. The conduct authorised was engaging Mr Rankine in conversations regarding the series of armed robberies. No direction was given or condition imposed requiring compliance with s 74D. 248 Pursuant to the authorisation, the undercover operative engaged in conversations with Mr Rankine, resulting in the obtaining of admissions made by him that the prosecution successfully sought to lead at trial. 249 On appeal, it was contended that there had been a breach of s 74D on the basis that, whilst no formal interview had been embarked upon, there had been conversations which fell within the extended definition. The Court of Appeal determined that in the circumstances of that case, a distinction between a formal interview and an informal conversation designed to elicit admissions, was illusory. Kourakis CJ observed that had the police formally interviewed Mr Rankine when he was in the police cells without first cautioning him, any inculpatory statement that was made, would almost certainly be excluded. The course that was instead adopted was to effectively embark on an attempt to do just that, although under the guise of an informal conversation. 250 Kourakis CJ discussed the impropriety in adopting such an approach. His Honour said:154 A police strategy calculated to engage a person reasonably suspected of committing an offence in conversation with a view to elicit admissions without giving a caution may undermine the important procedural protection afforded by the common law, that an 154 Lindsay v The King; Rankine v The King; Woods v The King (2022) 142 SASR 175 at [102]. -- 56 of 86 -- [2025] SASC 168 McDonald J 55 accused is not bound to give his or her account of the allegations in evidence in his or her trial, even if only open-ended questions are asked. That procedural protection may be undermined if the prosecution adduce evidence of the answers given by a person, who is reasonably suspected of committing an offence, to questions asked in order to elicit admissions, without first giving the usual caution. The rule applies whether the police identify themselves as such or whether they are pretending to be fellow prisoners, albeit the giving of a caution is likely to render the latter strategy impractical. Strategically eliciting a suspected person’s account for use against him or her in the trial in which he or she would otherwise have the benefit of the right to silence undermines that fundamental procedural protection. 251 Put simply, the issue raised was that failing to administer a caution at an appropriate time has the potential to result in forensic unfairness by reason of a denial of the common law procedural protection against self-incrimination. 252 Kourakis CJ discussed the distinction without difference between a formal interview and the situation contrived by the police in Lindsay:155 … An interrogation generally, but not always, proceeds by police officers exercising their actual and apparent authority to confront a suspect with incriminatory evidence. I will refer to an interview of that kind as a formal interview. An undercover operation uses deception to gain trust. I will refer to the questioning of a suspect about his or her offending by persons who are not police officers, or are pretending not to be police officers, as an informal interview. The end point and purpose of both is the same; obtaining a self-incriminatory account of the offences which the investigator reasonably suspects the subject has committed. 253 It was in that context that Kourakis CJ considered the extended definition of interview and the inclusion in that definition of a conversation. His Honour explained:156 … the word conversation must be given its ordinary meaning. It is not a term of art. The very extension of the word interview to include a conversation manifests an intention to go beyond formal police interviews. There is no textual or contextual reason to read down the meaning of interview and conversation by reference to concepts of a “formal” police interview or a police interrogation. The definition plainly eschews any such narrow meaning. 254 It is unsurprising that the informal conversations that took place in Lindsay were found to amount to interviews, given the circumstances in which they occurred. The regime created by s 74D is designed to protect the rights of those suspected of serious crimes against self-incrimination. To attempt to circumvent such a protection by characterising the police engagement with Mr Rankine as an informal conversation would undermine the intent of the legislation. 255 It was Mrs Shaw KC’s contention that it follows that the conversations that took place between BS Kelly and OW before and after the interview on 8 April 155 Lindsay v The King; Rankine v The King; Woods v The King (2022) 142 SASR 175 at [113]. 156 Lindsay v The King; Rankine v The King; Woods v The King (2022) 142 SASR 175 at [156]. -- 57 of 86 -- [2025] SASC 168 McDonald J 56 2022 are “interviews” and, therefore, a failure to record them is in breach of s 74EB. 256 It was submitted that if that is so, one of the preconditions for admissibility has not been satisfied and, thereupon, the interview is inadmissible, unless the Court is satisfied that the interests of justice require the admission of the evidence. 257 There are three fundamental problems with that submission. The first is that, although the extended definition of an interview is applicable to both interviews with suspects and vulnerable witnesses, div 2 (suspects) sets out a very different regime to div 3 (vulnerable witnesses). These regimes reflect the policy considerations underpinning the respective provisions. The functions of the protections in place for a suspect are different to the functions and principles of the protections for a vulnerable witness. The purpose of s 74EA is not about protecting a right to silence, but rather is designed to protect the integrity of the evidence of a vulnerable witness at an early stage, avoiding the need for that witness to repeat their account of a traumatic event. 258 The second problem with Mrs Shaw KC’s submission is that whilst a conversation may amount to an interview, it does not mean that every conversation is an interview. To embark on an interview is to embark on a process designed to obtain information, whether that be by way of a formal process or a more informal conversation comprising of open-ended questions. Whether or not a conversation will fall within the definition of an interview will depend upon the facts and circumstances of each individual case. 259 The point is illustrated by a comparison of the conversations in Lindsay with the conversations that took place between BS Kelly and OW. In Lindsay, the police set about deliberately engaging with Mr Rankine in order to obtain evidence to use against him at trial. That is, evidence that directly related to the issues to be determined. The evidence about the nature of the impugned conversation in this case could not be more different. 260 The third interview took place at OW’s instigation. From the police’s perspective, the process of interviewing OW had been completed. It was only after Ms Wilmott contacted the police and told them that OW wished to speak with them that the arrangements were made for an interview to take place. 261 The impugned conversation between BS Kelly and OW were for the purpose of reassuring and ‘settling’ OW. They generally related to OW’s welfare. It was the evidence of BS Kelly that conversations of this nature with victims or witnesses are common place and it would be counterproductive to building rapport to immediately turn on the camera. 262 The third problem with this submission is that in the event of non-compliance by a failure to record, it is the relevant interview that is inadmissible. The relevant interviews for the purposes of this argument are the informal conversations that -- 58 of 86 -- [2025] SASC 168 McDonald J 57 took place before and after the formal interview and the conversation on 22 March 2022. The prosecution, unsurprisingly, do not seek to lead these conversations given that nothing that was discussed is of any relevance to the issues at trial. As I have said, the interview that the prosecution seeks to lead is the formal interview which was video recorded. 263 Whilst a situation could be envisaged in which the connection or overlap between an informal or introductory conversation and a formal interview may lead to the exclusion of the latter, no such connection has been established in this case. 264 Although it was Mrs Shaw KC’s submission that the conversation that took place on 22 March 2022 was preplanned and there “is the potential for the witness to be reticent and the potential for incentives to be given to the witness to speak to the police”,157 that is the case with any conversation with any witness, whether or not they fall into the category of a vulnerable witness. That does not mean that it is necessary to record the conversation or that the conversation amounts to an interview for the purposes of the Summary Offences Act. 265 Further, there is no evidence that in any way supports the suggestion made from the bar table that OW was reticent or was offered any inducement. Such a suggestion is entirely at odds with the evidence. 266 In my view the prosecution have established that the interview that took place on 8 April 2022 complied with the requirement that it be the subject of audio visual recording. The failure to arrange for an appropriate prescribed companion 267 At the first interview, after being told that his mother could not be present, OW elected to not have a companion present. At the second interview, the prescribed companion was Ms Bowyer, and at the third interview it was Ms Willet. I have already canvassed the criticisms made of the decisions by SAPOL to permit Ms Bowyer and Ms Willet to be OW’s prescribed companions, I will not repeat them. 268 Regulation 23(5) of the Summary Offences Regulations provides: A prescribed interviewer who proposes to interview a vulnerable witness whom the interviewer believes should be provided with emotional or other support during the interview must, if the witness wishes to be accompanied by a person who is a prescribed companion, make arrangements for the witness to be so accompanied during the interview. 157 T1625. -- 59 of 86 -- [2025] SASC 168 McDonald J 58 269 Those who may take on the role of a prescribed companion are set out in reg 21 as: 21—Prescribed companions … (a) a parent, guardian, spouse, domestic partner or any other relative of the witness; (b) a friend or carer of the witness; (c) any other person approved for the purposes of the interview with the witness by the prescribed interviewer who is to conduct the interview; (d) a person of a class approved by the Commissioner for the purposes of this regulation. 270 There are a few observations to be made about these regulations. The first is that it is for the witness to determine whether they wish to be accompanied by a prescribed companion in an interview. In the event that they do, the prescribed interviewer must make arrangements for the witness to be so accompanied. 271 The category of people who may perform the role of a prescribed companion is broad, no doubt deliberately so. The policy underpinning these regulations is aimed at supporting and putting a vulnerable witness at ease, it follows that the options should be left open to reflect the broad range of circumstances in which a witness may find themselves. 272 In the first interview, OW chose to not avail himself of the option of having a prescribed companion present. At the outset of the interview, on camera, BS Kelly confirmed that OW did not wish to have anyone sit with him. 273 The fact that this decision may have been impacted upon by the options available for who was in a position to take on that role, does not affect whether there has been compliance with the Summary Offences Regulations. It would not be uncommon for a child in OW’s circumstances to have limited options available to them. That does not derogate from OW having had the option of a prescribed companion under the Summary Offences Regulations. 274 In the second and third interviews, OW had a prescribed companion of his choice present. Whilst Mrs Shaw KC has been critical of the police for failing to intervene and exclude OW’s choices as unsuitable, that does not mean that there has been non-compliance with the Summary Offences Regulations. 275 A further complaint made by Mrs Shaw KC was that a prescribed companion must be approved “by the prescribed interviewer who is to conduct the interview”.158 Here, that was BS Kelly. On the basis that it was BS Kelly’s 158 Summary Offences Regulations 2016 (SA) reg 21(c). -- 60 of 86 -- [2025] SASC 168 McDonald J 59 evidence that she would defer to the views of DBS Ward to determine whether Ms Bowyer or Ms Willet was inappropriate, it was suggested by Mrs Shaw KC that she had failed to comply with the Summary Offences Regulations. With respect, there is an artificiality to that submission. DBS Ward and BS Kelly were both present at the interview, working as a team, albeit with different roles. I took BS Kelly’s evidence to be no more than, had DBS Ward, with his extensive knowledge of the investigation, seen an issue with the presence of Ms Bowyer or Ms Willet, he would have raised it with her. 276 I find that the use of a prescribed companion across the three interviews was compliant with the Summary Offences Regulations. The use of leading questions 277 Regulation 23(7)(a) of the Summary Offences Regulations provides: 23—Interviewing vulnerable witnesses ... (7) For the purposes of section 74EB(c), the manner in which an interview with a vulnerable witness is conducted will meet the prescribed requirements if— (a) so far as is practicable, any statement made by the vulnerable witness is not elicited by the use of leading questions; and … 278 Implicit in the language used in the Regulation is an acknowledgement that there will be circumstances in which it will be necessary to resort to the use of a leading question. That must be so in circumstances in which s 13BA and the relevant regulations, relate to interviews with vulnerable witnesses who will commonly lack sophistication and who will not infrequently have complex communications needs. It would be an unfortunate outcome if the very legislative regime crafted to facilitate those who are particularly vulnerable giving evidence, resulted in the exclusion of the entirety of that evidence in the event that there was a leading question. Having said that, the legislation clearly intends to strike a pragmatic balance between facilitating a vulnerable witness giving their account and adherence to the strict rules of evidence. Police general orders 279 In support of her argument, Mrs Shaw KC also relied upon two police General Orders that were tendered during the voir dire. These were General Orders in relation to interviewing suspects and vulnerable witnesses.159 In these General Orders there is reference to leading questions. They relevantly state:160 159 Two orders were tendered because the orders were updated over the relevant period. The relevant reference, however, remained the same. 160 VDD102. -- 61 of 86 -- [2025] SASC 168 McDonald J 60 Leading questions Regulation 23 of the SOR requires that any disclosure made by the vulnerable witness during the police interview is not elicited by the use of leading questions. A leading question is one which either suggests the required answer or which is based on an assumption of facts that have not yet been proved. 280 The first observation to be made about this General Order is that it sets the bar higher than the test set out in the Summary Offences Regulations, as there is no reference to the qualifier of “so far as is practicable”. 281 The second relates to the status of police General Orders. 282 A police General Order is a direction issued by the Commissioner of Police under s 11 of the Police Act 1998 (SA). That section authorises the Commissioner to make binding general or specific orders for the control and management of police. Section 11(2) provides that the orders may concern the various duties to be performed, the manner in which, or the time and place at which, they are to be performed, and any other matter which the Commissioner considers relevant to the control and management of police. These orders have no statutory or other legal force and, at most, can lead to disciplinary measures and consequences. 283 In Police v Henwood,161 Doyle CJ gave consideration to the status of police General Orders. In particular, his Honour considered an order that related to “Random Breath Testing Operations”. His Honour observed:162 I doubt whether the Order is a statutory instrument as defined. It is not an “instrument of a legislative character”. It is an instrument of an administrative character. Some of its provisions may be sourced to provisions of the RTA, such as s 47DA, but as a whole it is no more than an exercise of the Commissioner’s powers of management and control of SA Police. It is a series of detailed administrative instructions. Nor, for much the same reason, can it be described as a code or standard, as a matter of ordinary language. Nor, as a matter of ordinary language or ordinary legal usage, is the Order a regulation, rule, bylaw or statute. I accept that these terms cover a wide range of instruments, but in my experience they would not usually be applied to a document like the Order. It is, as I have already said, by and large a series of administrative or management instruments given to police officers as to the performance of their functions. While a number of the instructions, not surprisingly, reflect or can be related to provisions in the RTA, other provisions do not. 284 In Hughes v Police,163 White J was required to determine whether a Magistrate had correctly found that a police officer had a defence to the offence of driving in a manner dangerous to the public as a consequence of the nature of his duties. One of the arguments advanced was that a police General Order bound a police officer, under threat of disciplinary action, to drive in a manner that could be dangerous to the public. In that context, White J gave consideration to the force 161 (2005) 92 SASR 15. 162 Police v Henwood (2005) 92 SASR 15 at [52]. 163 (2009) 103 SASR 337. -- 62 of 86 -- [2025] SASC 168 McDonald J 61 and effect of General Orders. In determining that the relevant General Order did not provide a defence to the offence, White J noted:164 … Although the General Orders are binding on members of the SA Police, they do not have any wider status or authority. They are not subordinate legislation to which the Subordinate Legislation Act 1978 (SA) applies. The Commissioner could not alter the standard by which driving is to be assessed as dangerous which has been established for the purposes of s 46 by binding decisions of the Full Court of this State and of the High Court. … (Footnote omitted) 285 In Police v Hodder,165 Parker J similarly expressed the view that a police General Order, whilst providing information and administrative direction to police and public servants, has no legislative effect.166 286 In South Australia v Crossley,167 Peek J also touched on the subject of the status of police General Orders. In that case, it was the police who placed reliance on the General Orders in support of their actions. In that context, Peek J said:168 … A mere habit or preference of the officer to use hand cuffs when arresting is certainly not sufficient justification. And nor is some internal SAPOL custom or directive, oral or written. SAPOL can in no way change the laws of the land by the issuing of an internal “order”, “directive” or any other communication referred to by whatever impressive name. 287 Whilst a breach of a police General Order may be a measure by which to evaluate the conduct of a police officer, and may create a potential disciplinary issue for the officer in question, it does not affect whether the preconditions for the admissibility of a prescribed interview have been met. At most, it may be relevant to the consideration of the exercise of a discretion to exclude the evidence. Brevet Sergeant Kelly 288 Before I deal with the impugned questions, I propose to first make some findings about the evidence of BS Kelly. 289 At the relevant time, BS Kelly was a member of the Victim Management Team at the Public Protection Branch. A large part of her role in that section was to conduct prescribed interviews. BS Kelly is very experienced in this role and has been conducting prescribed interviews since 2015. In advance of commencing in the role, BS Kelly undertook the training program – Specialist Investigative Interviewing of Vulnerable Witnesses, provided by Deakin University. The course involved six months of online and over the phone training on how to obtain a 164 Hughes v Police (2009) 103 SASR 337 at [54]. 165 [2016] SASC 70. 166 Police v Hodder [2016] SASC 70 at [47]. 167 [2020] SASCFC 128. 168 South Australia v Crossley [2020] SASCFC 128 at [58]. -- 63 of 86 -- [2025] SASC 168 McDonald J 62 reliable account from a witness. BS Kelly explained the practicalities of what the training involved:169 So we were - there was a lot of online training where we got to see examples of - we learnt about leading questions, non-leading questions, how children from about five years up is what we’re trained in, how children respond to questions and how best to - an example is we just really learnt about how to obtain a reliable account from, whether it be a child, an adult, even someone with a disability we were trained in. We would do practice interviews, so with the Deakin Uni facilitators we would do lots of practice interviews. We would have to read over transcripts of interviews and learn leading questions, forced choice questions, specific questions and just really getting a thorough understanding of what it is you’re asking the child and how, again, just repeatedly learning how to get a really reliable account from them without coaching. 290 BS Kelly gave evidence over two days and was cross-examined by Mrs Shaw KC in considerable detail. Overall, I found BS Kelly to be a very impressive witness. She came across as someone with a professional approach who took her role very seriously. She clearly had a victim/witness focus and consistently endeavoured to adhere to the training that she had received. It was apparent that at all times throughout her dealings with OW, his welfare was paramount. 291 I have no doubt that BS Kelly was an honest and reliable witness who did her best to assist the court. I accept the submission made by Ms Litster that BS Kelly had done her best to inform herself about appropriate procedures and had followed the teachings that she had been advised were best practice. 292 During cross-examination, BS Kelly was asked a number of questions about leading questions, both in a general sense, and in relation to specific questions that she asked during the course of the interviews. 293 Whilst on occasions BS Kelly accepted that a question was less than ideal, generally it was her view that the questions that she asked were appropriate and compliant. “I heard” questions 294 On occasions, during the course of each of the three interviews, BS Kelly would introduce a new topic, prefacing the question with “I heard”. She explained that this was a technique that she had been taught during her training. She said that whilst “best practice is to begin broad and open … it doesn’t rule out using information received elsewhere”.170 She said that she has been taught that, in order to obtain information when interviewing children, “we have to begin somewhere and they train us that utilising ‘I heard’ and bringing in some of that information is required to conduct an interview, to try and elicit information. So that is the training I’ve got and that was the practice I’m going on”.171 169 T1278. 170 T1377. 171 T1383. -- 64 of 86 -- [2025] SASC 168 McDonald J 63 295 On occasions, BS Kelly would introduce a topic using the “I heard” technique, followed by the words “tell me about that”. She explained that she made a deliberate choice to use those words in OW’s interviews because it was an open ended way to direct him to a topic. She explained:172 … ‘Tell me about that’ - me saying ‘Tell me about that, tell me about that’ and he can relay what he wants. He can relay ‘I don’t know about that’ or ‘I know this, this, this about that’, so ‘Tell me about that’, that’s me being open and giving him an opportunity to relay what he wants. Reference to Ms Wilmott in the questions 296 A particular complaint was made about Ms Wilmott being referred to in some of the questions asked by BS Kelly. The relevant questions were asked midway through the interview. On the first occasion, in the context of moving from the topic of the food provided to Jasmine, to punishment, the following exchange occurred:173 BS Kelly: Yeah. Yeah. We um – Now, I heard that you told Miranda about how you would have to punish Jasmine sometimes. OW: Yeah … BS Kelly: Tell me, tell me about that. OW: Um, so mum would tell me to punish her and, like, I just, just use my hands. 297 There were then a series of unobjectionable questions in which BS Kelly attempted to elicit particular occasions upon which this took place. 298 The second reference to Ms Wilmott took place some time later in the interview in the context of BS Kelly attempting to broach the difficult subject of the day that Jasmine died:174 BS Kelly: Yeah. Of course. Yeah. Yep. Um so we did, we have touched on the day that Jasmine died, all right, yeah, and you, you always do really well, okay. I’m not saying it’s easy, but you’ve done really well talking me through some of those things- OW: Yeah. BS Kelly: So I just wanna let you know that ok. Now that you’re here to talk and tell me a few more things about what happened, I, I heard you told Miranda a bit more detail of um what happened that day. Tell, tell me what you talked to Miranda about. 172 T1390. 173 Record of Interview at 23. 174 Record of Interview at 31. -- 65 of 86 -- [2025] SASC 168 McDonald J 64 OW: Um, so was it about, like, er knocking on the door BS Kelly: Oh I, I can talk you- OW: Like- BS Kelly: Through it if you like. OW: Yeah, okay. 299 BS Kelly then asked OW a series of non-leading questions designed to give him an opportunity to talk through the events leading up to finding Jasmine. 300 It should be noted that in relation to the two references to Ms Wilmott, the first occurred in the course of a leading question, the second did not. Regardless, Mrs Shaw KC makes a complaint about both mentions of Ms Wilmott on the basis that to make reference to OW’s previous conversations with her, whilst she was present in the interview, placed inappropriate pressure on OW to agree with what was put. In other words, OW was unlikely to challenge what was being raised by BS Kelly and risk contradicting what Ms Wilmott had apparently said. 301 In cross-examination, Mrs Shaw KC raised this topic with BS Kelly and the following exchange occurred:175 Q. So can I just then ask you about p.23 line 25, you said ‘I heard that you told Miranda about how you would have to punish Jasmine sometimes’. A. Yes. Q. When you’ve asked that question, there’s the assumption of fact in that, that he had told Miranda about how he would have to punish Jasmine sometimes. A. That’s what I had heard, yes. Q. So Miranda was sitting there at the time, Miranda Willet. A. Yes, she was the prescribed companion. Q. It didn’t strike you that, in the presence of her, who was the person to whom the statement had been made, that that was inconsistent with the role of a prescribed companion. A. No. Q. So if the answer was ‘No’, do you agree that that might well have meant that Miranda Willet was a witness. A. Miranda Willet was always - yes, she’s a witness. 175 T1378-1379. -- 66 of 86 -- [2025] SASC 168 McDonald J 65 Q. In terms of choosing the prescribed companion, isn’t it the case that you are required to choose someone who is not part of the investigation. A. As I mentioned yesterday, we weigh that up and sometimes the investigating officer will put, you know, a line in the sand and say yes or no and in this case we were very comfortable with Miranda being his support person in this matter, she wasn’t allowed to talk in the interview, she wasn’t allowed to prompt him in any way whatsoever, so I feel really comfortable with her being the support person. Q. It didn’t occur to you if you put propositions based on what she said and he was sitting there and she had been his therapist for nearly 12 months, that might put pressure on him to agree with you. A. It certainly - I wouldn’t say that puts pressure on him for anything, I feel I made it very clear to him throughout this entire process that there isn’t any pressure to answer my questions. 302 The criticism made by Mrs Shaw KC about the reference to Ms Wilmott has more force in the context of a leading question, however, I agree that as a general proposition, it was unfortunate that BS Kelly made reference of OW’s earlier conversations with Ms Willet, particularly when she was present in the interview room. To do so, created the potential for OW to feel obliged to respond in a particular way. Having said that, I have watched and considered the relevant portions of the interviews closely. There is nothing about how OW appears, the manner in which he responds, or the contents of his answers that in anyway suggests that he was influenced by the references to Ms Willet. Did the questions contravene reg 23(7)(a) of the Summary Offences Regulations? 303 It is accepted by the prosecution that a number of the questions asked by BS Kelly in the third interview of OW fall into the category of leading questions. The issue that arises for determination is whether this was in contravention of the Summary Offences Regulations, which requires the prescribed interviewer to avoid the use of leading questions “so far as is practicable”. 304 It was Ms Litster’s submission that there has been no breach of the regulation in that the leading questions utilised by BS Kelly were a necessary device to take OW to relevant topics. In the alternative, it was submitted that insofar as there has been any breach, the breach is trivial when considered in the context of the entirety of the interview, and the interests of justice require the admission of the interview. 305 In order to assess that submission, it is first necessary to identify the impugned questions. Although Mrs Shaw KC was critical of the questioning across all three interviews, there was no suggestion that the answers from the first two interviews tainted the answers given by OW in the third interview. That must logically be so, given that the third interview was instigated by OW, who wished to change and elaborate on the account that he provided in the first two interviews. -- 67 of 86 -- [2025] SASC 168 McDonald J 66 306 During the course of submissions, the prosecution provided me with a table setting out the questions from OW’s third interview that were conceded to be leading questions.176 I was subsequently provided with a further version of this table which contained additional questions about which Ms Wilmott complained, as well as an additional column setting out BS Kelly’s cross-examination on those questions. It is convenient to adopt that table for the purpose of identifying the impugned questions (see Annexure 1). However, for ease of reference, I have omitted the column containing the references to the cross-examination, and have added an additional column with my observations about the question. 307 The inclusion of the words “so far as is practicable” in reg 23(7)(a) is an acknowledgement that, whilst the gold standard in conducting a prescribed interview involves the avoidance of the use of any leading questions, practically speaking, that outcome is difficult to achieve. Any interview, but particularly one involving a vulnerable witness, is a dynamic and quickly evolving situation in which the interviewer, despite having the best intentions, may fall into factual error or inadvertently lapse into a leading question. On occasions, it will be necessary to make a judgment call about whether, in order to canvas all relevant matters, it is necessary to utilise a question leading into a topic. In the event that choice is made, the interviewer, at the very least, runs the risk that the answer elicited by that question will be excluded. As BS Kelly said in her evidence:177 Yes, and it’s not that that’s not allowed. I have to make a decision in the moment. Throughout interviews, I have to make a decision - so, for example, we say ‘Never introduce the offender’, for example, in an interview. There are some very rare occasions where police have had to introduce the offender for a whole number of reasons. So it - we shouldn’t say black and white ‘Never introduce the offender’, because sometimes we have to, for a myriad of reasons. 308 Whilst it is ultimately a matter for the Court to make an assessment as to whether there has been a breach of the Summary Offences Regulations, in assessing the practicality of adopting a form of question that differs from that used by BS Kelly, I take into account that she is a very experienced prescribed interviewer who was doing her best to elicit an uncontaminated, detailed account whilst factoring in the wellbeing of OW. 309 In my view, the interview did not contravene the Summary Offences Regulations in that, as far as reasonably practicable, BS Kelly avoided the use of leading questions. On the occasions that questions were leading, it was necessary to take OW to a relevant topic, and upon arriving at that topic, BS Kelly immediately opened up the questioning to enable OW to give his account. 310 That is not to say that the interview is without fault. This, like most interviews, was impacted upon by the ordinary frailties of the interviewer’s memory and occasional miscommunications. Those matters will be relevant to 176 MFI VDP109. 177 T1348-1349. -- 68 of 86 -- [2025] SASC 168 McDonald J 67 any application for individual questions and answers to be excluded. However, that does not result in the interview being non-compliant with s 13BA(3)(b) of the Evidence Act. 311 Even if I had found that the interview was non-compliant as a consequence of the use of leading questions, I would still have admitted the interview pursuant to s 74EC(1)(b) of the Summary Offences Act. That is, on the basis that the requirements to avoid leading questions is fundamentally connected to the influence that the question has on the answer elicited. Having considered the impugned questions both individually and in the context of the overall interview, in my view, there can be no suggestion that they contaminated the account provided by OW. The interview also contained a structure that permitted OW to disagree with aspects which were leading, and to also clarify points that needed to be clarified. Over the course of the interview, he demonstrated that he was capable of doing so. 312 In those circumstances, factoring in the seriousness of the alleged offending and the public policy underpinning the legislation, it would be in the interest of justice to admit the interview even if there has been a breach. Application to exclude the evidence of OW178 313 Although the application filed by Ms Wilmott contains a number of grounds and particulars as the basis for the exclusion of OW’s evidence, the overarching complaint is that the conduct of the police was such that it would be contrary to the interests of justice to permit the admission of the evidence. Put simply, it is Mrs Shaw KC’s submission that “the ends do not justify the means” and the police conduct should not be condoned by permitting the prosecution to now rely on the evidence of OW. Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions 314 Central to Mrs Shaw KC’s argument is the High Court decision of Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions179 (‘Strickland’). It is useful to consider the facts and circumstances of that case before determining its application to the facts of the matter before this Court. 315 In Strickland, the appellants appealed a decision of the Court of Appeal of the Supreme Court of Victoria, allowing appeals from orders of the primary Judge permanently staying the prosecution of the appellants. 316 Fundamental to the outcome in Strickland was an accuseds’ right to silence and their entitlement to decline to answer questions on the basis of the protection against self-incrimination. 178 FDN 375. 179 (2018) 266 CLR 325. -- 69 of 86 -- [2025] SASC 168 McDonald J 68 317 In the course of an investigation by the AFP, and after exercising their right to decline to participate in an interview under caution with officers of the AFP, each appellant was subjected to a compulsory examination purportedly conducted under the Australian Crime Commission Act 2020 (Cth) by the Australian Crime Commission (‘ACC’). The ACC had referred the allegations that were the basis of the charge to the AFP, and offered to allow the AFP to utilise the ACC’s coercive powers. The primary Judge found that the ACC acted “as a facility for the AFP to cross-examine under oath whoever the AFP wished, for the AFP’s own purposes”.180 318 The prejudice occasioned to the appellants as a consequence of the approach adopted by the AFP and ACC was summarised by Gageler J:181 … Each compulsory examination was conducted for the “purpose of achieving forensic disadvantage to [the appellant], and advantage to the prosecution, in foreseen future legal proceedings”. To a varying degree in relation to each appellant, each compulsory examination achieved the result of occasioning forensic disadvantage to the appellant in the proceedings which were subsequently commenced by the filing of the indictments by the CDPP. The main forensic disadvantage to each appellant which the primary judge found that the examination had the purpose of achieving lay in the appellant being “locked in” to a version of events on oath from which the appellant could not credibly depart at trial. The additional forensic advantage to the prosecution which the primary judge found that the examination had the purpose of achieving lay in information obtained through the examination being available to be used to assist AFP officers to assemble the prosecution brief to be provided to the CDPP. To the extent the information was so used, its use carried the additional practical consequence of occasioning forensic disadvantage to each appellant by limiting the appellant’s ability to cross-examine the AFP officers who assembled the prosecution brief with a view to casting doubt on the prosecution case. (Footnotes omitted) 319 It follows that the appellants had been denied the protection of the common law right to refuse to answer questions. The primary judge found that the ACC examiner was aware that the appellants were regarded by the AFP as suspects, and therefore as people who may be charged, and that they had refused to answer questions. In plain contravention of the ACC practice to not examine witnesses likely to be charged, the examiner compelled them to answer questions relating to the very matters that were to be the subject of the charges. 320 The Court held that whilst the forensic disadvantage suffered by the appellants as a result of their unlawful compulsory examination, would of itself not necessarily result in a stay of proceedings, that disadvantage had to be considered in conjunction with the ACC examiner’s “unlawful, reckless disregard 180 Director of Public Prosecutions (Cth) v Brady (2016) 346 FLR 1 at [395]. 181 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 at [119]-[120]. -- 70 of 86 -- [2025] SASC 168 McDonald J 69 of his statutory responsibilities”.182 The combined effect was such that “the continued prosecution of the appellants would bring the administration of justice into disrepute”.183 321 The Court observed that although in previous decisions regarding unlawful ACC examinations, the only circumstances that had resulted in a permanent stay of proceedings involved deliberate unlawful conduct on the part of investigative or prosecutorial authorities (or at least advertent reckless disregard of lawful requirements), that was not a necessary prerequisite for the sanction of a stay. Chief Justice Kiefel, Bell and Nettle JJ (the plurality) explained:184 … although in previous cases regarding unlawful examination and dissemination of examination product the courts’ concerns regarding the administration of justice falling into disrepute have focused on deliberate or advertent reckless disregard of legal requirements, nothing in previous authority suggests or should be taken to imply that abjectly insouciant, wide-ranging disregard of the requirements of the ACC Act of the kind that occurred in the present cases may not also bring the administration of justice into disrepute. As the majority of this Court stated in Moti v The Queen, decided cases should not be read as attempting to chart the boundaries of abuse of process. Nor should they be read as attempting to define exhaustively the circumstances that warrant exercise of the power to stay criminal proceedings or as providing some “exhaustive dictionary of words” by one or more of which executive action must be capable of description before proceedings may be stayed. As Kirby J aptly summarised the position in Truong v The Queen: “relief is not confined to cases of deliberate and knowing misconduct, although that may be sufficient to enliven the jurisdiction. It extends to serious cases where, whatever the initial motivation or purpose of the offending party, and whether deliberate, reckless or seriously negligent, the result is one which the courts, exercising the judicial power, cannot tolerate or be part of.” No doubt, society and therefore the law ordinarily looks more askance on instances of deliberate or advertent reckless disregard of a duty or obligation than upon the accidents of incompetence. As a rule, the former are conceived of as entailing greater moral culpability and for that reason their condonation is conceived of as more likely to bring the administration of justice into disrepute. But ultimately it is a question of degree which substantially depends upon the nature of the duty or obligation. If a duty or obligation is of no more than peripheral significance, condonation of its breach, even of an intentional breach, may appear justified in the interests of relatively more pressing considerations of justice. The power to stay proceedings is not available to cure venial irregularities. But if, as here, the duty or obligation is of a kind that goes to the very root of the administration of justice, condonation of its breach will bring the administration of justice into disrepute regardless of the culprit’s mentality. Ultimately, these appeals turn on that distinction. 322 Whilst acknowledging that a permanent stay of proceedings in a criminal trial is an extraordinary step and “should only ever be granted where there is such a 182 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 at [86]. 183 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 at [86]. 184 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 at [99]-[100]. -- 71 of 86 -- [2025] SASC 168 McDonald J 70 fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial”,185 the appeal was allowed and a permanent stay was granted. 323 In explaining the basis for arriving at that position, the plurality observed that there is:186 … a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, therefore, a recognition that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute. (Emphasis in original) 324 Although in dissent on the outcome of the appeal, Gageler J made some apposite observations on the purpose of the power of a Court to stay proceedings:187 As I have emphasised from the outset, the power of a superior court to stay its own proceedings as an abuse of process is a power to protect the integrity of its own processes. It is not a power to discipline or to punish those who might bring those proceedings or those who might stand behind them. Its focus is on prevention of the court’s procedures being used in a manner that is inconsistent with the due administration of justice by the court. In a case where use of the court’s procedures would be substantially unfair, the inconsistency lies in the administration of justice by the court being converted into an instrument of that substantial unfairness. In a case where use of the court’s procedures would bring the administration of justice into disrepute, the inconsistency lies correspondingly in the tendency of the court, in permitting that use of its procedures to occur, to erode public confidence in the court’s administration of justice in that and other cases. The application of Strickland to the facts of the case 325 It was Mrs Shaw KC’s submission that the transgressions of the police in this case, in conjunction with the conduct of the DCP, are such that to permit the evidence of OW to be led, would bring the system of justice into disrepute. It was however conceded that unlike in Strickland, there is an alternative remedy available to the Court, falling short of staying the prosecution case in its entirety. That is to deprive the police and prosecution of the “poisoned fruit” and exclude the evidence of OW. 326 It was Mrs Shaw KC’s submission that the conduct of the police in the investigation of Ms Wilmott was similar to that engaged in by the Federal Police and the ACC in Strickland. She submitted that the police had deliberately 185 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 at [106]. 186 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 at [106], Emphasis in original. 187 Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 at [154]. -- 72 of 86 -- [2025] SASC 168 McDonald J 71 conspired with the DCP, for the purpose of effecting the removal of OW from his mother to ensure that the maternal bond was broken, resulting in her having no influence over OW. 327 Mrs Shaw KC set out a chronology of events in support of that submission. She emphasised that the police had the power to remove OW pursuant to s 41, and the fact that they did not do so prior to the involvement of the DCP highlights that they believed there were insufficient legitimate concerns about OW’s safety to warrant his removal from Ms Wilmott. 328 It was contended that the arrest and removal were deliberately scheduled to maximise the potential of obtaining an incriminating account from OW, and that the only real reason for OW’s removal was to destroy OW’s relationship with his mother, to facilitate the police investigation. 329 It was Mrs Shaw KC’s submission that there was no lawful basis for the DCP to have removed OW from Ms Wilmott’s care and the information that they purported to rely on was incorrect or lacking in substance. In addition, the information, at its highest, was capable of establishing a risk of harm, not serious harm. 330 In support of the application, Mrs Shaw KC relied upon the purported breaches of the Summary Offences Act and of the Evidence Act that I have already dealt with, together with what she referred to as the Strickland complaints. 331 Mrs Shaw KC summarised her argument in the following terms:188 That is a matter that does fall within the principles of Strickland that the police should not be encouraged or further encouraged to liaise with DCP, or any other entity, knowing that they are performing a role in breach of their section and, indeed, the police section, because they were all child protection officers, and be able to come along and say ‘That was their decision, not ours’, they were not at arm’s length, they worked hand in hand. SAPOL called police to come down when the interview was finished, SAPOL checked with DCP ‘Are you going to remove today?’, and the answer was ‘Yes’. Conclusion re: Interlocutory application to exclude the evidence of OW 332 In order for this application to succeed it is necessary for me to make a finding that SAPOL engaged in unlawful or improper conduct in collaborating with the DCP. Further, that it was as a consequence of this collusion that OW was unlawfully removed from Ms Wilmott’s care. 333 For reasons that I have already provided, I do not come to that view. To the contrary, I find that, at all times, SAPOL and the DCP behaved conscientiously, within the parameters of their respective roles and with a focus on the best interests and welfare of OW. 188 T1800. -- 73 of 86 -- [2025] SASC 168 McDonald J 72 334 Although those findings necessarily mean that this application must be dismissed, it is appropriate to say something further about some of the additional particulars relied upon by Mrs Shaw KC. That the removal of OW from the care of the accused pursuant to s 41 of the Children and Young People (Safety) Act 2017 (SA) was unlawful and for an improper purpose 335 One of the complaints made by Mrs Shaw KC related to the adequacy of the information relied upon by the DCP to carry out the s 41 removal. In particular, that the DCP mistakenly believed that the allegations in relation to SM had been substantiated and that the arrest of Ms Wilmott was to be for the offence of manslaughter, when it was in fact, at that stage, for the less serious offence of criminal neglect. 336 It was Mrs Shaw KC’s submission that, considered objectively, the information in the possession of the DCP was insufficient to form the basis for a s 41 removal of OW. 337 Assuming for the argument that Mrs Shaw KC is correct about that contention, absent collusion with or influence from SAPOL, that would not be a basis upon which to exclude the evidence. At worst, the DCP in making a judgment call, got it wrong. It should be noted however, that if they did so, it was in the context of seeking legal advice from the Crown and in circumstances in which, when the matter came before the Youth Court, the Judge confirmed the decision based on the same information. That the ongoing application of the guardianship order and the exclusion of a relationship between OW and his mother, and subsequently, a denial of a relationship between AW and his mother was unlawful and/or an abuse of process of the Court 338 There is no evidence to support the suggestion that SAPOL played any role in the ongoing arrangements for the guardianship of OW. There is also very limited evidence about the role that the DCP played and the basis upon which they made various decisions about the care arrangements for OW. 339 It is also important to note that the ultimate decisions about guardianship were made by the Court in proceedings in which all parties, including OW, were legally represented. -- 74 of 86 -- [2025] SASC 168 McDonald J 73 The conduct of SAPOL and the psychologist undermined and circumvented the application of section 21 of the Evidence Act 1929 (SA) in relation to OW’s rights under that section, nor was OW provided with independent advice in that respect 340 Section 21 of the Evidence Act relevantly provides: 21—Competence and compellability of witnesses (1) A close relative of a person charged with an offence is competent and compellable to give evidence for the defence and, subject to this section, is competent and compellable to give evidence for the prosecution. (2) If a person is charged with an offence and a close relative of the accused is required by law (whether by subpoena or other process) to give evidence against the accused in any proceedings related to the charge (including proceedings for the grant, variation or revocation of bail, or an appeal at which fresh evidence is to be taken), the prospective witness may apply to the court for an exemption from the requirement to give evidence against the accused in the proceedings. (3) If, on an application under subsection (2), the court considers that— (a) if the prospective witness were to give evidence, or evidence of a particular kind, against the accused, there would be a substantial risk of— (i) serious harm to the relationship between the prospective witness and the accused; or (ii) serious harm of a material, emotional or psychological nature to the prospective witness; and (b) having regard to the nature and gravity of the alleged offence and the importance to the proceedings of the evidence that the prospective witness is in a position to give, there is insufficient justification for exposing the prospective witness to that risk, the court may exempt the prospective witness (wholly or in part) from the requirement to give evidence against the accused in the proceedings before the court. (4) A court may, on its own initiative, grant an exemption under subsection (3) where no application has been made under subsection (2) if— (a) the prospective witness who is required by law to give evidence against the accused is a young child or is cognitively impaired; and (b) the court is of the opinion that such an exemption should be granted. … 341 It is plain that the section relates to the right of a close relative of an accused to be exempted from giving evidence. The point at which that right may be exercised is at trial. 342 The section has no application to the provision of witness statements or the participation of witnesses in interviews. That logically must be so, because -- 75 of 86 -- [2025] SASC 168 McDonald J 74 otherwise, how could a Judge undertake the necessary balancing exercise, as required under s 21, absent knowledge of the details of the evidence that a witness may give. 343 It was Mrs Shaw KC’s argument that because the account provided by OW was in the form of a prescribed interview, that alters the situation, in that the interview may be presented as the evidence of the witness. 344 That submission however, overlooks two relevant considerations: one that is applicable to all cases in which there is a prescribed interview, and the other that arises on the facts of this case. 345 For a prescribed interview to be admissible under s 13BA of the Evidence Act, a witness must be available, if required, for further examination. It follows that in the event that a family member wishes to avail themselves of their s 21 rights at trial, that option remains open. In the event that the Judge provides them with an exemption from giving evidence, they are no longer “available” and the prescribed interview cannot be relied upon. 346 In addition to this, during the course of the evidence I heard on numerous occasions that the police had told OW that the decision as to whether he was to give evidence against Ms Wilmott was to remain his. I accept that OW was given this advice and that advice was genuine. I have also been told by Ms Litster that checks have been made with OW and his position remains that he wishes to give evidence. Ms Litster has also told the Court that OW will be given an opportunity to obtain independent legal advice before he gives evidence. 347 It follows that the conduct of the police and prosecution have in no way undermined OW’s right to request an exemption from giving evidence. I also accept the Director’s assurance that OW will have an opportunity to obtain legal advice prior to trial and should OW have a change of heart, and no longer wish to give evidence, that decision will be respected. Conclusion 348 I refuse the application to exclude the evidence of OW. -- 76 of 86 -- [2025] SASC 168 McDonald J 75 Annexure 1: Leading questions Page /Line The question and answer BS KELLY’s evidence (if any) about where that information (‘I heard’) came from Was the information in the first or second interviews Was the information earlier in the third interview Observations 1 Page 7, line 27 And when she went back to her room, um we’ve talked a lot about Jasmine being alarmed in her room- Yeah. Cf second interview Topic of alarm introduced Line 159: Q. I heard there was an alarm in jasmines room There is no dispute about there being an alarm to Jasmine’s bedroom door. 2 Page 8, line 6 Q. Okay. And who told you to lock her in the bedroom. A. Mum. Her evidence (T1391- 1392) was that the question was aimed to cover off ‘who, what, where, when, why’ and that the way the question was phrased gave him the opportunity to equally say ‘it was just me’. No. Not directly on point, but OW had already introduced the fact that the accused would lock Jasmine in her bedroom. Page 3, Lines 21-25: Q. Yep yep. Okay. So tell me what you’d like to share about the way mum treated Jasmine. A. Um, it wasn’t that good. Q. Mmhm. A. Used to, like, hit her a lot and- Q. Yeah. OW had already volunteered to a very open question that Ms Wilmott would lock Jasmine in her bedroom. Considering OW’s age at the time that Jasmine was being locked in her bedroom, it is not unreasonable to suppose that OW was undertaking this role at someone’s request. The question did not however lock OW into an answer in that it was open for him to respond that no-one had told him to lock the door. -- 77 of 86 -- [2025] SASC 168 McDonald J 76 A. Er, would lock her in her room. 3 Page 17, line 22 Q. No, that’s okay. So I heard sometimes Jasmine pleaded not to be hit. Is, is that true. A. Yeah. Discussed at T1378. Disagrees with it being a leading question; explains that ‘I heard’ was used to elicit more information. No. No. This appears to be one of the occasions on which BS Kelly used the “I heard” technique to take OW directly to a topic that had come up in other witness affidavits. By this time, OW had already spoken of Ms Wilmott hitting Jasmine. Of note, the question is immediately followed by an open question of “Could you talk me through a time which that happened”. 4 Page 21, line 32 Q. Why do you think Jasmine hoarded food. A. So she wouldn’t get hungry. N/A 1st interview (29/10/2020): • OW says that Jasmine would sometimes take food from the fridge. When asked why: “maybe Mum said no to her so and she was just hungry and she really wanted it or she was kind of craving it” (Line 859). • Jenni told OW that Jasmine would steal food (Page 51, Lines 1186-1189). 2nd interview (3/3/2021): At Page 4, Line 29 of the third interview, OW described Jasmine hoarding food in her bedroom. There is no dispute that Jasmine hoarded food. -- 78 of 86 -- [2025] SASC 168 McDonald J 77 • Kelly asks “are you aware of any issues in the house around Jasmine and food” – • Response is that she would hoard food (Line 490). 5 Page 22, line 15 Let’s start with meal times, ‘cos I, you said she sometimes didn’t eat meals with you, yeah. Cf earlier interview no 2 Contrary to earlier answer Line 37: Mhmm Well like I heard Jasmine didn’t always eat with the family at dinner time Line 38: Yeah sometimes she um, yeah I don’t really remember too well. I do remember that we most the time ate dinner together. Don’t remember anything else really In the second interview, after the passage already identified at line 38, OW went on to elaborate about the circumstances in which Jasmine would not eat dinner with the family. He said that Jasmine “might be reading a book, she might be cleaning her room up umm she might just like want some alone time” (Line 44). OW subsequently returned to the topic “Um Jasmine normally you know she she’d um you know maybe she would eat in her room if she wanted some alone time or like maybe if um Mum was doing like cleaning the dishes or cleaning the table she might eat in her room” (Line 62). 6 Page 23, line 21-23 Yeah, and I, I understand that. Yeah, I understand that. Like I said, I’m, I’m asking lots of questions and if you don’t know the answer, that’s, that’s okay. What In my view, this is not a leading question. -- 79 of 86 -- [2025] SASC 168 McDonald J 78 would Jasmine say about food. Er, I don’t know. She didn’t say anything about, like, wanting more, but I don’t know. 7 Page 23, line 25 Q. Yeah. Yeah. We um – Now, I heard that you told Miranda about how you would have to punish Jasmine sometimes. A. Yeah. T1365-66: Kelly is questioned by HH about what information (if any) was provided by Willet: Q. So you knew in a general sense he’d disclosed to her – A. Yes. Q. - but not the details of what the disclosure was. A. Yes, yeah. No. No. This is a leading question which refers specifically to the information having come from Ms Willet. The “I heard” form of questioning could have occurred without reference to Ms Willet. That question is immediately followed by the very open question of “Tell me, tell me about that” and a series of open, non-leading questions in response to which OW recounts in some detail the manner in which he was required to punish Jasmine. 8 Page 31, line 6 Q. So I just wanna let you know that ok. Now that you’re here to talk and tell me a few more things about what happened, I, I heard you told Miranda a bit more detail of um what happened that day. Tell, tell me what you talked to Miranda about. A. Um, so it was about, like, er, knocking on the door. N/A. No. This question is referrable to the previous question which was “Yeah. Of course. Yeah. Yep. Um so we did, we have touched on the day that Jasmine died, all right, yeah, and you, you always do really well, okay. I’m not saying it’s easy, but you’ve done really well talking me through some of those things -”. The question that is the subject of the complaint is not a leading question. The issue that arises in relation to this question is the reference to Ms -- 80 of 86 -- [2025] SASC 168 McDonald J 79 Willet when she was present during the interview as the prescribed companion. 9 Page 44, line 3 Q. We, you sort of touched on [SM] just very briefly in previous interviews. As you know, [SM] did come forward about- A: Yeah. T1386-7: Kelly does not recall whether OW already knew that SM had made allegations. T1388: Kelly was aware of the allegations (from SM) before the interview. 1st interview: Line 1136. 2nd interview only mentioned insofar as she used to live with them; OW thought she was “mean” and they didn’t really get along. OW introduces the subject of SM very briefly on Page 3, Lines 21-24: Q. Okay. So I, I’ll just start with-, yeah, tell, tell me what you’d like to share with me. A. Um, that, the way we treated Jasmine and, like, how mum treated Jasmine. Q. Yeah. A. And how we treated, like, [SM] as well. In order to properly assess this question it is necessary to consider it in the context of the question that follows. After being interrupted by OW, BS Kelly continued “You know, some things, and just wondering if you could give us a, an outline of some of the things of what happened when [SM] was living with you”. OW went on to recount details of what would happen when Ms Wilmott would collect SM from OSCH. Although the relevant question is leading, in that it introduces the notion that OW knows that SM has “come forward”, it then develops into a broad, open-ended question that provided OW an opportunity to provide an account of anything that he recalled about when SM lived with the Wilmott family. Of note, BS Kelly did not recall whether OW already knew that SM had made allegations, however she was aware of SM’s allegations before the third interview. 10 Q. Yeah. Okay. So I heard, you know, things did happen, your mum, you T1390. No. See directly above (Page 3, Lines 21-24), although not At the outset of the third interview, in response to a question of “Okay. So I, I’ll just start with, yeah, tell, -- 81 of 86 -- [2025] SASC 168 McDonald J 80 Page 45, line 15 know, did some things to [SM] and, and, between Jasmine and [SM], could you tell me a little bit about that. A. Um, I don’t really remember much about [SM] and what mum did to [SM]. Kelly says the phrase “some things” is broad enough to not be leading. directly on the subject matter introduced by Kelly. tell me what you’d like to share with me”, OW introduced the topic of Ms Wilmott treating SM like she treated Jasmine. In that context, this question is not leading but is referring back to the earlier answer given. 11 Page 46, line 1- 27 Yeah. Yeah. So I, I’m sort of, ‘cos I wasn’t there for that, I’m trying to understand, sort of, the tone of your mum’s voice, like, what, so you heard your mum tell [SM] to take a knife into Jasmine’s room. Yeah, but she told me that it was kind of off her own accord. But you knew otherwise. Not what OW told Kelly: Page 45, Lines 22-29: A. Er, yeah, um, I do remember, I think, mum told [SM] to bring a knife down into Jasmine’s room before. A. And then, er, we, like, we, mum talked to me about it before, she kind of said, oh yeah, [SM] brought a knife down into Jasmine’s room and I just kind of thought to myself, you told her to- It would seem that in this exchange, BS Kelly had not picked up on some of the detail in an answer provided by OW at Page 45 of the transcript. In response to a very open question about what OW had seen Ms Wilmott do to SM, OW responded “… I do remember, I think, mum told [SM] to bring a knife down into Jasmine’s room before”. OW went on to further clarify “… mum talked to me about it before, she kind of said, oh yeah, [SM] brought a knife down into Jasmine’s room and I just kind of thought to myself, you told her to”. Although in the first answer it appears that OW is recounting something he saw or had heard, it becomes apparent by the end of the second answer that he made an assumption that Ms Wilmott had -- 82 of 86 -- [2025] SASC 168 McDonald J 81 told SM to bring the knife into Jasmine’s room. That answer is followed immediately by the impugned question in which it appears that BS Kelly has acted on the mistaken belief that OW actually heard Ms Wilmott tell SM to take the knife to Jasmine’s bedroom. That mistaken belief then infects the remainder of the questions on that topic in that it becomes unclear as to whether OW is relying on memory or supposition 12 Page 47, line 1 Q. So your mum kept, sort of was intimating that [SM] was fat and piggy farm, or something. A. Yeah. Yeah. Er, yeah, I don’t really remember. I think she had, like, the same amount of food as us. T1393: Kelly was referring to information given by OW earlier in the (3rd) interview when OW says that Jenni would say “we’ve gotta get there before, like, feeding time at the funny farm because they fatten her up” (Page 44, Line 11). No. See Kelly’s answer. In this answer, BS Kelly was attempting to pick up on a topic that had been raised by OW earlier in the third interview. Whilst she has not repeated the answer previously given by OW in a manner that is word perfect, she has captured the gist of what OW had said previously. In my view this may be a clumsy question, it is not a leading question. It also does not impact on the response provided by OW in that he replies in a non-committal fashion. 13 Page 47, line 16 Q. Yeah. Yeah. Um so I heard that [SM] and Jasmine sometimes hurt each other. A. Yeah. T1390. A. Yes, so this question is being more specific and in our training – this is towards the back end No. No. This is a leading question. That topic had not arisen prior to this when asked about this question, BS Kelly gave the following response: (T1390) -- 83 of 86 -- [2025] SASC 168 McDonald J 82 of our interview and in our training we are advised that in order to elicit information and cover off on elements of offences, we can put more specifically things to the witness and I’ve made a decision, on the back end as it’s closer, because I’ve started broad, broad, broad, I’ve done depth, specific, broad, broad, depth, specific and so I made a choice to put that in there to elicit and give him an opportunity to relay what he wanted to in relation to that”. A. Yes, so this question is being more specific and in our training - this is towards the back end of the interview and in our training we are advised that in order to elicit information and cover off on elements of offences, we can put more specifically things to the witness and I’ve made a decision, on the back end as it’s closer, because I’ve started broad, broad, broad, I’ve gone depth, specific, broad, broad, depth, specific and so I made a choice to put that in there to elicit and give him an opportunity to relay what he wanted to in relation to that. It would appear from this answer that in order to direct OW’s attention to a topic that had arisen in the affidavits of other witnesses, and to ensure that OW had the opportunity to comment, BS Kelly made a considered decision to ask OW a direct question leading him into the topic. It is important that she immediately followed that question with a completely open question of “Tell me about that”. 14 Page 47-49, Did anyone tell [SM] what to do to Jasmine. I don’t know. This question follows an answer from OW, that he remembers SM punching Jasmine once. -- 84 of 86 -- [2025] SASC 168 McDonald J 83 line 24- 11 My mum might just egged her on, I guess. Yeah. Yeah. So your mum egged [SM] along. Yeah. Okay. And what kind of things would she egg [SM] on Um, maybe, I think she pushed her down the stairs once, [SM] to Jasmine … I think my mum was kind of, like, yeah, you should do that, and [SM] just kind of like did it, I guess. But I don’t remember exactly. This was at Gleneagles. And how was Jasmine when she got pushed down the stairs. Um, I’m not sure. I think she had, she had a blood nose, or something And did you see that happen Er, no. No. I guess, and also, I don’t know how, but I just remember it, I guess. It is arguable as to whether this is a leading question. Whilst it introduces the suggestion that someone may have asked SM to punch Jasmine, it does not presuppose the answer. It does however lead to an exchange that continues for about a page and a half, during which OW appears to speculate about Ms Wilmott “egging [SM] on”. -- 85 of 86 -- [2025] SASC 168 McDonald J 84 I don’t know where from. Just, I do. 15 Page 49, line 27 So [SM], you know, has told, you know, people outside of the home about things that happened anything else that you can share with us Whilst the question suggests that SM had provided the police with information, it does not disclose what that information was. 16 Page 51-52, line 21- 8 And what about, how [MW] treated Jasmine. Do you have any memory around that Yeah. Okay. Okay. And I hear you’re seeing him soon. Tomorrow, actually. Oh I’m excited, nervous as well. It is not clear to me why this question has been included in the table, as it is clearly not a leading question. 17 Page 55, line 19 Yeah. Thanks for sharing that, [OW]. Is there, sort of, anything else you wanna share around that. It is not clear to me why this question has been included in the table, as it is clearly not a leading question. -- 86 of 86 --