[2025] SASC 187

Prosecution: R Counsel: MS J LITSTER WITH MS R BLUMBERG - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: JENNI GAYE WILMOTT Counsel: MRS M SHAW KC WITH MR J HENDERSON - Solicitor: CRAIG CALDICOTT LAWYERS Hearing Date/s: 15/10/2025 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 7) Criminal Trial by Judge Alone [2025] SASC 187 Reasons for Ruling of the Honourable Justice McDonald 13 November 2025 EVIDENCE - ADMISSIBILITY CRIMINAL LAW - EVIDENCE - HEARSAY - PARTICULAR MATTERS - STATEMENT OF VICTIM WHO LATER DIED CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE This is an application by the accused seeking to exclude evidence relating to: • the deceased’s absences from school; • NDIS funding obtained by the accused for the deceased and its use; and • statements made by the deceased proposed to be admitted pursuant to s 34KA of the Evidence Act 1929 (SA) (‘the Evidence Act’). The accused argued that the prosecution should be precluded from leading evidence of the school absences and the explanations for those absences on the basis that the evidence is either irrelevant or more prejudicial than probative. The Court found that the school attendance records relied upon establish that the deceased missed a significant proportion of her schooling. That evidence is, therefore, capable of contributing to a finding that the accused’s conduct resulted in socially isolating the deceased, which is in turn, part of the prosecution case establishing causation and gross negligence on the accused’s part. The evidence is relevant and not more prejudicial than probative. The prosecution proposes to lead evidence that in 2015, the accused made a claim for National Disability Insurance Scheme (‘NDIS’) funding on behalf of the deceased on the basis of a diagnosis -- 1 of 86 -- of autism spectrum disorder (‘ASD’). The prosecution also intends to lead evidence of how that money was spent. It is the prosecution case that the deceased did not have ASD and that the application of the NDIS funding, for matters outside of the deceased’s treatment and care, are relevant to establish the falseness of the claim or, more relevantly, to establish that the accused knew that the deceased did not have ASD. The accused objects to that evidence being led on the basis that it is irrelevant, it is evidence of bad character and, therefore, falls under s 34P of the Evidence Act and is more prejudicial than probative. The Court found that the evidence goes no further than demonstrating generalised dishonest or fraudulent conduct on the part of the accused, that would be impermissible for the prosecution to rely on. It is not relevant to the proof of the issues in this case in that it does no more than suggest that the accused is of bad character. The prosecution made an application under s 34KA(1) of the Evidence Act for a number of statements made by the deceased to be admitted into evidence. Section 34KA permits the admission of “out of court statements” in prescribed proceedings if the evidence would have been admissible as oral evidence, in circumstances in which the witness is now deceased. The accused objects to the admission of the deceased’s statements into evidence on both broad, overarching grounds and on considerations pertaining to specific statements. The overarching grounds are the form of the statements, the content of the statements, inconsistencies between statements, issues relating to the reliability of the statement-maker (the deceased), and the proximity of the statement to the deceased’s passing. The evidence of what the deceased said on the topics raised, has the potential to assist in the determination of the issues in this case. The statements to be admitted are not more prejudicial than probative and their admission results in no particular unfairness to the accused. Held: 1. The evidence of the deceased’s absences from school will be admitted. 2. The accused’s application to exclude the evidence of NDIS funding is granted. 3. A number of the statements made by the deceased (as identified in Appendix 1) will be admitted pursuant to s 34KA of the Evidence Act. Evidence Act 1929 (SA) ss 9, 34KA, 34KD, 34P; Criminal Law Consolidation Act 1935 (SA) ss 13, 14, 30, 20(4)(b), 139, referred to. R v Koenig [2013] SASC 42; Rout v The King [2024] SASCA 72, applied. R v Haines [2016] SASC 96; R v Wilmott (No 2) [2025] SASC 54; R v Wilmott (No 3) [2025] SASC 55; R v Wilmott (No 5) [2025] SASC 106; R v Wilmott (No 6) [2025] SASC 168, discussed. -- 2 of 86 -- R v WILMOTT (No 7) [2025] SASC 187 Criminal: Application McDONALD J. 1 Jenni Gaye Wilmott has been charged with the offence of manslaughter1 and in the alternative with the offences of criminal neglect,2 failing to provide food,3 failing to provide accommodation,4 and two counts of aggravated assault causing harm.5 The alleged victim of each of these offences was Jasmine Da-Eun, Ms Wilmott’s 15-year-old adopted daughter. Each of the charged offences arise out of allegations regarding Ms Wilmott’s conduct towards Jasmine, up until Jasmine’s death by suicide. The Information particularises that the offences took place between 1 May 2013 and 7 October 2018, the former being the date on which Jasmine’s adopted father left the household. 2 It is the prosecution case that, over that time, Ms Wilmott physically, mentally and emotionally abused Jasmine to a level that amounted to criminal conduct. The prosecution relies on both acts and omissions in circumstances in which Ms Wilmott owed Jasmine a duty of care. The acts and omissions relied upon include physical violence and assault, verbal abuse, social isolation, sustained humiliation and the deprivation of food, liberty and suitable accommodation. It is said that these acts and omissions amounted to a failure on the part of Ms Wilmott to provide the standard of care required from a reasonably competent carer. It is the prosecution case that Ms Wilmott’s conduct towards Jasmine was a substantial cause of Jasmine’s death. 3 Ms Wilmott filed a number of interlocutory applications to exclude various aspects of the evidence upon which the prosecution sought to rely in order to prove the case against her. These applications are the subject of R v Wilmott (No 2),6 R v Wilmott (No 3),7 R v Wilmott (No 5),8 and R v Wilmott (No 6).9 4 On 10 September 2025, Ms Wilmott filed a further interlocutory application, consolidating additional applications for the exclusion of evidence yet to be determined. These applications related to evidence of school absences, evidence relating to NDIS funding obtained by Ms Wilmott on behalf of Jasmine and how that funding was used, and statements made by Jasmine to be admitted pursuant to s 34KA of the Evidence Act 1929 (SA) (‘Evidence Act’). 1 Criminal Law Consolidation Act 1935 (SA) s 13. 2 Ibid s 14(1). 3 Ibid s 30 (Version 13.8.18-5.9.18 as at the date of the offence). 4 Ibid s 30. 5 Ibid s 20(4)(b). 6 [2025] SASC 54. 7 [2025] SASC 55. 8 [2025] SASC 106. 9 [2025] SASC 168. -- 3 of 86 -- [2025] SASC 187 McDonald J 2 5 In this judgment, I set out my decisions and reasoning in relation to these three applications. 1. School absences 6 Ms Wilmott seeks an order that the prosecution be precluded from leading evidence of Jasmine’s absences from school and the explanations for those absences. The basis for the objection to the admission of the evidence is that it is irrelevant or, in the alternative, that it is more prejudicial than probative.10 The relevance of the evidence 7 It is the prosecution case that throughout her life, Jasmine was regularly moved from one school to another, in a manner that was entirely unnecessary given her living arrangements. The relevance of this evidence is said to be twofold, namely, that it was a reflection of Ms Wilmott’s reaction to the staff at the schools beginning to question her parenting behaviour, and that it contributed to the social isolation that Jasmine experienced. 8 As part of this aspect of the case, the prosecution also seeks to lead evidence that it was common for Jasmine to be absent from the school at which she was enrolled, sometimes for extended periods of time. In addition, the prosecution will also lead a body of evidence establishing that Jasmine was regularly late to school, collected early, and was deprived of the opportunity to attend regular school activities such as camps and a dance recital. It is, however, the evidence of the number of days upon which Jasmine was absent from school that is the subject of this application. 9 It is the prosecution case that this evidence is relevant to both the fact of Jasmine becoming socially isolated and also to an assessment of Ms Wilmott’s conduct. That is, that it is relevant to the issues of causation and as to whether Ms Wilmott’s conduct fell so far short of the requirements of a reasonably competent parent as to amount to gross or criminal negligence warranting criminal punishment. As to the latter, Ms Litster described the use to which the prosecution proposes to put the evidence in the following terms:11 It is a body of evidence that, when considered as a whole, goes to the question of gross negligence … All of the evidence in the prosecution case on the topic of negligence goes to the question of grossness of the course of conduct, but when looking at it all together, that’s when one gets a clear understanding of the scope of the isolation of the child. Removing a child from school early every so often because, picking up an abstract example, they have a problem with their back and they need to go to a chiropractor from time to time is one thing but when looked at altogether here, this is a child that’s removed from school early with a degree of consuming regularity and also taken to school late with a degree of regularity and doesn’t go to school often, misses school activities with her friends often, misses the dance recital, all things of importance to a child’s sense of self and development. 10 FDN 455. 11 T2021-2022. -- 4 of 86 -- [2025] SASC 187 McDonald J 3 So it’s when looked at altogether, one gleans an understanding of both Ms Wilmott’s gross negligence, but also of the impact on the child of this conduct. 10 The evidence relied upon by the prosecution to prove this aspect of the case comes from attendance records from Jasmine’s various schools. The evidence that the prosecution proposes to lead is set out in the table below: St Dominic’s Priory College 2012-2014 (Four years, Years 3-5) 2012 – Absent 33.5 out of 175 days 2013 – Absent 12 out of 167 days 2014 – Absent 42 of out 169 days Hope Christian College 2015-2018 (Four years, Years 6-9 (part of term 1)) Absent 84 days Golden Grove High School Feb – May 2018 (Year 9) Absent 22 days Aberfoyle Park High School May – July 2018 (Year 9) Absent 22 days Blackwood High School July – September 2018 (Year 9) Absent six days The basis of Ms Wilmott’s objection to the evidence 11 Mrs Shaw KC made a number of complaints about the broader body of evidence that the prosecution intends to lead to establish that Jasmine became socially isolated as a consequence of deprivation of an opportunity to attend school and school-related activities. These submissions were in large part based on the manner in which the prosecution have particularised their case, namely, to rely on a course of multifaceted conduct. Mrs Shaw KC submitted that, broken down into individual acts, none were capable of establishing gross negligence on the part of Ms Wilmott. By way of example, on the topic of Jasmine arriving at school late and leaving early, she said the following:12 If I can then come to the particular evidence proposed about school absences, bearing in mind the question that the starting point is: does a parent have a duty to ensure her child is at school on time and is the parent managing – a supporting parent with three children and, of course, then the foster child to be regarded as breaching her duty of care because she chooses to send her children to different schools that requires a two-hour or a lengthy period of transportation. Is she breaching a duty of care? Is she required to choose to put all her children in one school so they arrive on time? 12 T2024. -- 5 of 86 -- [2025] SASC 187 McDonald J 4 12 In the context of Jasmine missing out on school-related activities, Mrs Shaw KC made a similar point:13 … we submit that the prosecution are setting the bar too low. That the alleged duty to ensure that she socialises by sending her to a concert, for example, is misconceived. A parent doesn’t have a duty to send her child to a matinee as well as the evening event. I appreciate that the prosecution is presenting that from the perspective of this was something the child missed out on. We submit that that might be disappointing but the question is not the child’s disappointment, it’s the question of the parent’s duty and whether that is such a gross breach of duty – appreciating the Crown’s case of a continuum – it constitutes criminal negligence. We submit it would not meet the civil standard let alone the criminal standard. 13 In support of the submission that Ms Wilmott’s conduct did not amount to gross negligence, Mrs Shaw KC relied upon the relatively good grades that Jasmine was receiving for her schoolwork over this period of time. 14 There are a number of observations to be made about the submissions made by Mrs Shaw KC. The first is, as I have previously ruled,14 it is open for the prosecution to rely on a series of acts that took place over the relevant period of time in order to prove the offence of manslaughter, given the factual matrix of this case. It is, therefore, no answer to the allegations to separate out each of those acts to make the submission that standing alone, the individual acts could not establish gross negligence on the part of Ms Wilmott. 15 The grades that Jasmine was receiving are also of limited relevance to an assessment of the probative value of the evidence that the prosecution seeks to lead. It is not to the point that Jasmine was managing to keep up with her schoolwork when assessing the aspect of the prosecution case involving an allegation of social isolation. It is the absence of an opportunity to engage with other children that the prosecution contends contributed to Jasmine developing a suicidal ideation, not the grades that she was receiving for her school work. 16 The final general observation to be made is that whilst Mrs Shaw KC made criticisms in relation to a number of aspects of the prosecution case about the failure of Jasmine to attend school and school-related functions, the only evidence that is the subject of the application for exclusion is the evidence of Jasmine’s rate of absenteeism. 17 In respect of this aspect of the evidence, Mrs Shaw KC’s central complaint was that whilst there were limited periods when Jasmine’s school attendance was poor, this could be explained by Jasmine’s personal circumstances at the relevant point in time. In that context, considerable emphasis was placed on Jasmine’s school attendance rate at St Dominic’s Priory College, in particular, a comparison was drawn between 2013 when Jasmine’s attendance rate was calculated to be at about 92 percent and 2014 when it was calculated to be at about 75 percent. The 13 T2023-2024. 14 R v Wilmott [2025] SASC 44. -- 6 of 86 -- [2025] SASC 187 McDonald J 5 2014 calculation can be further broken down to an attendance rate of 87 percent in semester 1, and 62 percent in semester 2. 18 It was submitted that there is evidence to suggest that over 2014, Jasmine was becoming increasingly unhappy at school, and that in turn was an explanation for the reduction in her attendance. It was Mrs Shaw KC’s submission that this latter attendance rate has to be considered against the backdrop of 2013, when Jasmine attended school on more days than the State average attendance rate for school children.15 19 The difficulty with that submission, however, becomes apparent when a similar calculation is conducted for Jasmine’s school attendance in the years that followed, leading up to her death. 20 Between 2015 and 2018, Jasmine was enrolled at Hope Christian College. Over her three years there, and part of term 1 in 2018, she was absent for a total of 84 days. Jasmine’s attendance rate over those three years is therefore calculated to be at approximately 85 percent. After that, there appears to be a significant increase in the number of days that Jasmine was absent from school. 21 Between February 2018 and May 2018, when Jasmine was enrolled at Golden Grove High School, she was absent for a total of 22 days. Jasmine’s attendance rate at that time is calculated to be at approximately 58 percent. 22 At some point in May 2018, Jasmine moved to Aberfoyle Park High School. At that school, Jasmine was absent for a total of 24 days, and her attendance rate is calculated to be at approximately 37 percent.16 23 Between July and September 2018, Jasmine was enrolled at Blackwood High School. Her attendance rate in term 3 is calculated to be at approximately 88 percent, based on the assumption that she attended there from the start to the conclusion of term 3. When considering Jasmine’s average attendance across all three terms and across all three schools in 2018, the attendance rate averages at 61 percent. 24 In my view, the evidence is capable of establishing that Jasmine’s attendance at school between 2014 and the time of her death was below that which can be considered as reasonable for a child of her age. Consideration of the evidence of school absenteeism 25 As I have said, this evidence is potentially relevant to two of the elements of the offence of manslaughter, causation and gross negligence. Although 15 No evidence was produced in support of this submission to establish what the State average for school attendance was in 2013/2014. For current purposes, I am, however, prepared to act on the assertion from Senior Counsel made from the Bar table. 16 Certain assumptions have been made where, for example, the records indicate that Jasmine attended two different schools in May, 2018. In such cases, I have taken the middle of the month as the notional start and end date for each school. -- 7 of 86 -- [2025] SASC 187 McDonald J 6 Mrs Shaw KC’s submissions were focussed on the latter, if she is correct and the evidence is lacking in probative value, it follows that it would not be admissible for either purpose. 26 It is useful to consider each basis for admissibility separately. On the issue of causation, it would seem that in circumstances in which the prosecution relies on social isolation as contributing to the cause of Jasmine’s death, evidence of her exposure (or lack thereof) to other children is highly relevant to an assessment of the defence and prosecution cases. If, for example, the records indicated that Jasmine attended school on most days with infrequent absences, that would cut against the prosecution case. In such circumstances, it would be expected that the impact of leaving school early or arriving late would be reduced. If, however, as appears to be the case, from about 2014, Jasmine was regularly absent from school, this may have a cumulative effect on the absence of other commonplace social interactions. In a trial in which the prosecution will allege that Jasmine was deprived of any opportunity of engaging in social interactions outside of school hours, the extent to which she could take up those opportunities within school hours is a relevant consideration. To my mind, it would be artificial in the extreme to assess this aspect of the prosecution case, absent evidence about Jasmine’s level of school attendance. 27 It is the second basis upon which the prosecution seeks to lead the evidence that is more contentious. 28 During the course of Mrs Shaw KC’s submissions and, in particular, in addressing Jasmine’s attendance at St Dominic’s, she put to the Court that no adverse inference could be drawn against Ms Wilmott for Jasmine failing to attend school on a number of occasions that fell within the bell curve of the normal range of non-attendance for children. 29 If the evidence went no further than 2014, and Jasmine’s schooling at St Dominic’s, there would be considerable force in the submission made by Mrs Shaw KC. It would be difficult to use evidence of Jasmine’s failure to attend school, at a frequency generally accepted in the community, as contributing to a finding of gross negligence on the part of her mother. 30 That is not, however, the case here. As I have said, the entirety of the school attendance records relied upon establish that Jasmine missed a significant proportion of her schooling. That evidence is capable of contributing to a finding that Ms Wilmott’s conduct resulted in socially isolating Jasmine, which is in turn, part of the prosecution case establishing gross negligence on Ms Wilmott’s part. I therefore reject Ms Wilmott’s contention that the evidence is irrelevant. 31 I also do not accept that evidence is more prejudicial than probative. The only logical use to which the evidence could be put is the use relied upon by the prosecution. Whether or not the evidence, in combination with other evidence, is ultimately sufficiently probative to establish the elements of the offence, will be a -- 8 of 86 -- [2025] SASC 187 McDonald J 7 matter to be determined at the conclusion of the trial. It is however, not capable of being relied upon in some alternative manner that is prejudicial to Ms Wilmott. 32 I decline to exercise my discretion to exclude the evidence of Jasmine’s absences from school. 2. National Disability Insurance Scheme funding 33 The prosecution proposes to lead evidence that in 2015 Ms Wilmott made a claim for National Disability Insurance Scheme (‘NDIS’) funding on behalf of Jasmine on the basis of a diagnosis of autism spectrum disorder (‘ASD’). The prosecution also intends to lead evidence of how that money was spent. 34 It is the prosecution case that Jasmine did not have ASD and that the application of the NDIS funding, for matters outside of Jasmine’s treatment and care, are relevant to establish the falseness of the claim or, more relevantly, to establish that Ms Wilmott knew that Jasmine did not have ASD. 35 Ms Wilmott seeks an order that the prosecution be precluded from leading the NDIS evidence on the basis that it is irrelevant, it is evidence of bad character and, therefore, falls under s 34P of the Evidence Act and it is more prejudicial than probative. 36 The ambit of the evidence that the prosecution proposes to lead on this topic has narrowed considerably over time. Initially, in addition to the charges alleging misconduct against Jasmine, Ms Wilmott was charged with the offence of Deception.17 At that time, the prosecution intended to lead evidence from a forensic accountant about the overall state of Ms Wilmott’s finances, to put the NDIS funding that she was receiving into proper context, in order to prove a motive to behave dishonestly, that is to obtain funding to which she was not entitled. 37 Since that time, the prosecution have entered a nolle prosequi in relation to the dishonesty offence. It follows that a financial motive is no longer relied upon. The prosecution, however, maintain that the evidence is relevant to the proof of the offence of Manslaughter, in that it is capable of showing “that the diagnosis of ASD in 2015 was improper and made on account of Ms Wilmott’s say-so and pursuit of pressing that narrative that her daughter had particular medical conditions which comprises a particular in the course of conduct of the overall acts and omissions that, together, comprise the gross negligence”.18 38 Ms Litster succinctly put to the Court: “we rely on the misapplication of funds obtained in response to the claim that Jasmine had ASD to show that Jenni Wilmott knew she did not have ASD”.19 17 Criminal Law Consolidation Act 1935 (SA) s 139(b). 18 T2057. 19 T2057. -- 9 of 86 -- [2025] SASC 187 McDonald J 8 39 I accept that the line of reasoning relied upon by the prosecution is legitimate and, therefore, the evidence is potentially probative to the issues in the trial. By way of example, assume that a parent made a claim on behalf of a child for government funding for specialised schooling, a Guide Dog and relevant technology, on the basis that the child was blind. In the event that none of that money was spent on those services and the parent, instead, spent the money on lavish overseas travel, the inference could readily be drawn that the parent knew or believed the child was not blind. 40 The issue upon which this application ultimately turns is not whether that line of reasoning is open, but whether the evidence is such that the inference that the prosecution seeks to rely upon is capable of being drawn. 41 The evidence takes the form of the table that is annexed to the affidavit of the forensic accountant who undertook the broad analysis of Ms Wilmott’s finances. 42 Amongst other things, the table sets out funds received from the National Disability Insurance Authority (‘NDIA’) and how those funds were expended. Between 1 July 2015 and 31 December 2018, Ms Wilmott received a total of $70,417.64 by way of NDIS payments. Out of that amount, $59,100.36 was expended on legitimate NDIS expenses, comprising of medical and property maintenance payments. Under Jasmine’s NDIS package, Ms Wilmott was entitled to claim money spent on property maintenance on the basis that this was work that she could not undertake herself, given Jasmine’s care requirements. 43 In addition to this, over the same period of time, the forensic accountant identified that $7,198.32 was spent on “living expenses” which could not be claimed as legitimate expenses associated with Jasmine’s ASD. This included money spent on electricity and gas, supermarkets and food outlets, retail and department stores and dining out and entertainment. Also included in that figure were additional medical expenses that could not be claimed as part of the NDIS package of services. 44 It is therefore apparent, from the figures relied upon by the prosecution, that unlike my example of the parent using the funding for lavish travel, the majority of the NDIS funds received by Ms Wilmott were utilised for NDIS approved purposes. 45 Attempting to bolster their position on the argument, the prosecution made the submission that the medical appointments upon which the money was expended were of a type necessary to maintain NDIS funding. Additionally, the prosecution submitted that the money spent on the medical expenses should be considered in the context of what was actually required by way of treatment or assistance for Jasmine. Ms Litster put to the Court that:20 20 T2062-2063. -- 10 of 86 -- [2025] SASC 187 McDonald J 9 … she didn’t have ASD and there was a false contention advanced to the NDIA about the level of care that she required. So that was certainly not something that could ever be required properly as expenditure for Jasmine. So whether it is technically authorised as something under the NDIS matters not in the abstract sense. It is something which, in this case, where the plan was self-managed, it is not something that reflects a proper use of the funds for Jasmine. 46 I have a difficulty with this submission. There is a circularity of reasoning in the approach adopted that requires the evidence to be considered through the prism of the prosecution case; that is, to accept as a starting point that the medical services for which Ms Wilmott was authorised to expend NDIS funds were not necessary because Jasmine did not have ASD. In my view, it is not open to draw any adverse inference against Ms Wilmott for using funds in the manner in which she was permitted to use them. 47 The question that remains is what use can be made of the allegation that over three-and-a-half years Ms Wilmott used $7,198.32 for a purpose that was not authorised under Jasmine’s NDIS package. Put another way, can the inference be drawn from this evidence that Ms Wilmott did not believe that Jasmine had ASD? 48 I think not. The most that can be concluded on the basis of this evidence is that Ms Wilmott was “skimming off the top” of Jasmine’s funding for her own benefit. If that is so, the evidence goes no further than demonstrating generalised dishonest or fraudulent conduct on the part of Ms Wilmott, that would be impermissible for the prosecution to rely upon. It is not relevant to the proof of the issues in this case and does no more than suggest that Ms Wilmott is of bad character. 49 In my view, the evidence relied upon by the prosecution does not reach the height necessary for the inference that the prosecution seeks to draw. 50 I grant the application to exclude the evidence of the NDIS funding and how that funding was spent. 3. Section 34KA of the Evidence Act 51 The prosecution have made an application under s 34KA(1) of the Evidence Act for a number of statements made by Jasmine to be admitted into evidence. Section 34KA permits the admission of “out of court statements” in prescribed proceedings (defined as including criminal proceedings) if the evidence would have been admissible as oral evidence, in circumstances in which the witness is now (relevantly) deceased. Relevant legal principles 52 The starting point for the consideration of the application is that the evidence of Jasmine’s statements is prima facie admissible. The Court, however, retains a broad discretion to decline to admit the evidence both within the legislative framework and in accordance with common law principles. -- 11 of 86 -- [2025] SASC 187 McDonald J 10 53 Section 34KD(1)(b) provides that the Court may refuse to admit a statement as evidence if “satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence”. In addition, there is no dispute that the Christie21 discretion is preserved under s 34KD, as is the unfairness discretion to exclude the evidence.22 Although not exclusively, it was generally the unfairness discretion upon which Ms Wilmott relied. Ms Wilmott’s argument on the s 34KA applications 54 Ms Wilmott objects to the admission of Jasmine’s statements into evidence on both broad, overarching grounds and on considerations pertaining to specific statements. The overarching grounds are the form of the statements, the content of the statements, inconsistencies between statements, issues relating to the reliability of the statement-maker (Jasmine), and the proximity of the statement to Jasmine’s passing. The form of the statements 55 The first issue raised by Ms Wilmott’s counsel, Mr Henderson,23 is the requirement that the evidence amounts to a “statement” made by Jasmine before it is admissible. A “statement” is defined by s 4 of the Evidence Act to include “a statement however made”. It was, therefore, accepted by Mr Henderson that the evidence can take the form of an oral statement or a documentary statement (including, for example, an SMS message). It was submitted, however, that despite the breadth of the definition, in order to amount to a statement, the evidence sought to be adduced must be a definite or clear expression of words uttered by Jasmine. Evidence cannot, for example, be admitted of what a witness understood, inferred, or otherwise took or assumed from Jasmine’s words. 56 It was Mr Henderson’s submission that the form of the statement is relevant to a consideration of both the Christie and the unfairness discretions. He suggested, by way of example, a comparison between an oral statement made in previous court proceedings under oath and transcribed, as opposed to evidence given in court by a witness of a statement made to them years prior, about which they can only recall the general details. It is obvious that the former being more reliable, will have greater probative value than the latter. 57 In R v Haines,24 Kourakis CJ gave consideration to the admissibility of a “statement” made by the mother of the accused in circumstances in which the mother had become too unwell to give evidence. In that case, a relevant consideration to the exercise of the discretion was the form of the statement. Although the statement had been taken down and witnessed by a police officer, an 21 R v Christie [1914] AC 545. 22 Evidence Act 1929 (SA) s 34KD(2). 23 Mr Henderson made the submissions for Ms Wilmott on the s 34KA application. 24 [2016] SASC 96. -- 12 of 86 -- [2025] SASC 187 McDonald J 11 issue arose about the extent to which it reflected the words of the witness. After hearing evidence, Kourakis CJ concluded that the statement was not a faithful record of the words actually used by the witness, but was a summary using the police officer’s terminology, and set out his understanding of the events that the witness was describing. Kourakis CJ concluded that the police officer’s statement-taking methodology had not resulted in a clear record of the witness’ own words and was one of the considerations that his Honour relied upon in the exercise of his discretion to decline to admit the statement. The content of the “statements” 58 It was Mr Henderson’s submission that the content of the “statements” was also relevant to the exercise of the discretion of whether to decline to admit them into evidence; that is, when the statement is imprecise, equivocal or subjective, that will be a basis to enliven the unfairness or Christie discretion for exclusion. 59 It was submitted that there are two reasons for this. 60 The first was that any imprecision or vagaries that attend the statement, invite speculation as to precisely what was meant by it. Unless the meaning of the statement can be reasonably inferred from other admissible evidence, then the degree of any imprecision or vagueness will necessarily impact upon the probative value of the statement. 61 The second and interrelated point made by Mr Henderson was that when the statement is imprecise, equivocal, or subjective, the forensic disadvantage to the accused caused by the loss of the common law procedural right to cross-examine the maker of the statement is exacerbated. 62 It was Mr Henderson’s submission that where a statement sought to be adduced pursuant to s 34KA is attended by imprecision, is equivocal, subjective, or otherwise invites speculation as to what is precisely meant by the statement-maker, it militates strongly in favour of exclusion. Inconsistencies 63 A central concern raised by Mr Henderson about the s 34KA application is a suggestion that the prosecution have been selective in identifying the statements that they seek to lead. It was submitted that Jasmine has made numerous statements that are inconsistent and contradictory, and to rely on some and not others amounts to “cherry-picking” in a manner that is unfair to Ms Wilmott. 64 Mr Henderson suggested to the Court that the basis upon which the prosecution have determined to rely on some statements made by Jasmine and not others is unclear, other than that those selected best align with the prosecution case theory. It was his submission that absent there being an objective basis grounded in the evidence to justify the selection of one statement over another, the value of the statement is significantly diminished such that it would be difficult to overcome -- 13 of 86 -- [2025] SASC 187 McDonald J 12 any application for its exclusion pursuant to either the unfairness or Christie discretion. 65 It was Mr Henderson’s submission that even if the inconsistent statements were introduced into evidence to remedy this unfairness, the difficulty that was identified in Haines as to how to deal with the conflicting accounts would arise. 66 In Haines, subsequent to providing the police statement, the witness provided two affidavits to solicitors at the Aboriginal Legal Rights Movement. Those affidavits were significantly and materially at odds with the statement that had been taken by the police. Kourakis CJ discussed the nature of the forensic disadvantage that it would create if all three versions were admitted, absent the witness being available for cross-examination. His Honour observed:25 Moreover the admission of the witness statement taken by Sergeant Griffin and the affidavits would make the forensic contest at trial a contest as to whether, in effect, Mrs Haines’ statement made on the night of the incident was more likely to be reliable and truthful than the subsequent affidavits taken by her daughter’s lawyers. Competing arguments would be put to the jury at trial on that question. On the part of the prosecution it would be argued that later concern by Mrs Haines for her daughter led her to regret making what was a truthful witness statement to Sergeant Griffin and caused her to make falsely exculpatory statements to the accused’s lawyers after the event. On the part of the defence it will be put that Mrs Haines’ statement was paraphrased in an incriminatory way by Sergeant Griffin, whether consciously or unconsciously, and that Mrs Haines was not in a position, because she was unwell, upset and tired, to ensure that the exculpatory aspects of her statement were taken down fully and correctly. Those arguments would, by hypothesis, take place in the absence of testimony from Mrs Haines herself who is the only witness who could speak directly to those questions. If Mrs Haines were called as a witness and the differing accounts in her statements put to her, the jury could make an assessment based on both the content of her answers and her demeanour as to what to accept or not to accept. But she will not be called. 67 Kourakis CJ found that this would result in a prosecution for murder that would effectively “take place on the papers” and consequently the forensic unfairness was too great to countenance. On that basis, his Honour declined to admit the original statement but indicated that in the event that the accused tendered the two subsequent affidavits, he would permit the prosecution to lead the first statement. 68 Mr Henderson attempted to draw an analogy between the circumstances confronting the Court in Haines and the course that the prosecution purports to adopt in this case. 69 Whilst the observations of Kourakis CJ are of some assistance in determining the issues before this Court, there is an important point of distinction. In Haines, the three conflicting accounts were from an eyewitness to a homicide and were highly relevant to the issue of self-defence, which was the determinative issue at 25 [2016] SASC 96 at [49]-[50]. -- 14 of 86 -- [2025] SASC 187 McDonald J 13 trial. The risk of forensic prejudice in not calling the author of the statements in those circumstances was particularly high. 70 The situation here is, however, fundamentally different in that the relevant statements are part of a much larger body of evidence that, in combination, is relied upon by the prosecution to prove the elements of the offence. 71 It was the prosecution’s submission that, unlike in Haines, the central contest will not turn on the impugned statements and, further, there is a significant body of evidence that is available to assist in the determination of the contest about which version should be relied upon. 72 Over the course of submissions, it became apparent that there was a further shortcoming in Mr Henderson’s argument on the basis that it is open to the defence to put any contradictory statements made by Jasmine before the Court. This can occur by two routes. Firstly, Ms Litster made it plain that she accepted that it was inappropriate for the prosecution to “cherry-pick” between conflicting statements made by Jasmine, and if there were additional statements made by Jasmine that Ms Wilmott sought to be led, the prosecution were open to leading them as part of their case. The second is that it is open to Ms Wilmott to make an application for the admission of statements made by Jasmine pursuant to s 34KA. Initially, counsel for Ms Wilmott held a concern that it may be contended that it was not open for an accused in a murder trial to make such an application on the basis that s 34KA(5)(a) precludes the admission of the out of court statement if it is shown (relevantly) that the death of the victim was caused by the party (or by that party’s agent) seeking to adduce into evidence the out of court statement. 73 The prosecution, however, accepted that, based on the reasoning of White J in R v Koenig,26 Ms Wilmott was not precluded from utilising s 34KA. That concession was appropriately made as the reasoning of White J in Koenig is sound and based on a comprehensive analysis of the legislation. In my view, it is open for Ms Wilmott to apply for statements to be admitted pursuant to s 34KA and the same considerations will apply as they do to the prosecution on such an application. The reliability of the statement-maker 74 The statements that the prosecution seek to rely upon were variously made between 2012 and 2018, making Jasmine aged between nine and 15 years at the time that they were made. 75 Although Mr Henderson accepted that any witness, even a young child, is presumed to be capable of giving sworn evidence,27 it was submitted that if Jasmine were giving evidence in person, an assessment would be made pursuant to s 9 of the Evidence Act as to whether she was capable of giving sworn or unsworn 26 [2013] SASC 42. 27 Rout v The King [2024] SASCA 72 at [20]. -- 15 of 86 -- [2025] SASC 187 McDonald J 14 evidence. Whilst s 9(6) expressly provides that s 9 does not apply to a statement adduced pursuant to s 34KA, Mr Henderson maintained that Ms Wilmott suffers significant prejudice as a result of Jasmine’s age at the relevant time. It was submitted that in circumstances in which no assessment can be made of Jasmine’s understanding of the difference between the truth and a lie, and no assessment can be made of whether Jasmine understood the importance of telling the truth (particularly when the statements were purportedly made in circumstances where the need for truthfulness would not have been obvious), there is an inherent unreliability in each of the statements that cannot now be precisely assessed or quantified. 76 A further matter that Ms Wilmott relies upon is the evidence that the Court is likely to hear as to Jasmine’s presentation and various diagnoses of mental conditions and impairments. 77 The prosecution does not accept that Jasmine suffered from any significant mental condition or impairment. This is a matter that I will need to consider and determine when all of the evidence has been led. It therefore follows that at this point in time, this is not a consideration that I can take into account in ruling on this application. The proximity of the statement to Jasmine’s passing 78 Whilst accepting that there will be exceptions, Mr Henderson submitted, as a general proposition, that the probative value of any statements made by Jasmine diminishes the more remote in time they are from 4 October 2018. It was submitted that this is because the strength of any inference to be drawn from any statement made by Jasmine that had any bearing on the decision to take her own life, must necessarily diminish as it becomes less proximate in time. Accordingly, as the statement becomes more remote, the unfairness caused by the loss of the common law procedural right to cross-examine Jasmine increases, as does the strength of the case for exclusion. The prosecution argument on the s 34KA applications 79 It was the prosecution submission that the test for admissibility has been satisfied in relation to each of the applications for the admission of statements made by Jasmine. Additionally, that the nature of statements and the circumstances in which they were made do not warrant the exercise of the Christie discretion or the unfairness discretion. 80 In particular, the prosecution relied on the nature of the statements said to have been made by Jasmine and her capacity to make the observation that is the subject of the statement. In submissions, Ms Litster described the nature of the statements in the following terms:28 28 T1976. -- 16 of 86 -- [2025] SASC 187 McDonald J 15 In the majority of these 34KA applications, they are just neat little snippets from Jasmine speaking to small aspects of her observations, which she’s well placed to make ‘I’m hungry’, ‘I don’t like this’, ‘my mother did this’. Those are matters which enhance the reliability of the statement itself or which reflect the reliability of the statement itself. These aren’t statements which inherently have a question of a witness with a psychosis – using an extreme example – or someone who has difficulties in their capacity to make an observation of a particular situation because of a sight line issue or something like that, so it’s my submission, with the majority of these matters, the reliability is intact and clear because of the nature of the statements the Crown seeks to adduce. 81 The majority of the statements relied upon were situational, in that they occurred in a spontaneous fashion in response to events that were taking place at that point in time. Consequently, they were unlikely to have been rehearsed, falsely contrived, or preplanned. Ms Litster also described the majority of the statements as confined, clear, and direct, with all of the hallmarks of reliability. For most of the statements, that is an accurate description. Consideration of s 34KA applications 82 As Kourakis CJ emphasised in Haines, the statutory intervention of s 34KA into the common law, rendering inadmissible hearsay statements admissible, is a fundamental change in the criminal law. Once admitted, an accused is deprived of the ability to test the evidence by the cross-examination of the witness in open court. For that reason, Kourakis CJ suggested a number of considerations that are relevant to an assessment of the forensic unfairness resulting from the loss of those protections. These include:29 • The value of the evidence. • The significance of the statement to the prosecution case overall. • Whether the statement is supported in material respects by other prosecution evidence. • Whether the statement constitutes a major part of the prosecution case. • The reliability of the evidence that the statement was made. • The reliability of the statement maker having regard to his or her ability to perceive the facts described in the statements and to the circumstances in which his or her statement was taken. • The extent of the forensic disadvantage of the accused caused by the loss of the common law procedural right to cross-examine the maker of the statement. • Any other forensic unfairness suffered by the accused as a result of the admission of the statement, compared to the position of the accused if the witness had been called to testify. 29 [2016] SASC 96 at [40]. -- 17 of 86 -- [2025] SASC 187 McDonald J 16 83 Kourakis CJ made the following general observations about the approach to be taken in a consideration of the unfairness discretion in the context of a s 34KA application:30 The loss of the procedural right to cross-examine a prosecution witness in open court places an accused in a position of significant forensic disadvantage. It must be accorded substantial weight in the application of the general unfairness discretion. The more complex the subject matter of the statement, and controversial the circumstances in which it was taken, the greater will be that unfairness. I have taken these considerations and observations into account in my assessment of the competing submissions made on this application. Approach adopted 84 The Director has provided me with a schedule of statements made by Jasmine for which there is an application for admission into evidence pursuant to s 34KA. Utilising the nomenclature provided by the Director, Ms Wilmott’s counsel provided me with a table setting out the basis of the specific objections to each of the statements. These specific objections are over and above the general complaints that I have already set out. For the purpose of delivering this ruling, I have combined those two documents and added an additional column that reflects my ruling. This document appears at Annexure 1. Given the number of statements under consideration, for current purposes I propose to deal with the statements I propose to admit in general categories. The detailed breakdown is set out in Annexure 1.31 85 In determining these applications, I have taken into account not only the specific issues raised by Ms Wilmott in relation to individual statements made by Jasmine, but the overarching grounds and considerations that were raised. 1. Assertion Jasmine was hungry 86 A number of witnesses provide an account of Jasmine describing feeling hungry and of the circumstances in which that occurred. 87 The relevant affidavits are: • ED (1 September 2020) at [8]; • Georgina Fenton (21 August 2020) at [8]; • Tiarnie Ramsden (5 February 2025) at [8]; and 30 [2016] SASC 96 at [41]. 31 During the course of submissions, counsel for both Ms Wilmott and the prosecution abandoned arguments for and against the admission of various statements. In Annexure 1, I have indicated those statements abandoned by the prosecution. I have not included the concessions made by counsel for Ms Wilmott as, regardless of the position taken, it remained a matter for the Court to determine the question of admissibility. -- 18 of 86 -- [2025] SASC 187 McDonald J 17 • SM (15 January 2025) at [49] and (30 January 2025) at [6]. 88 These statements have an inherent reliability in that they relate to a physical sensation and were spontaneously made. They are about a matter well within Jasmine’s knowledge and the witnesses to whom those statements were made are unlikely to be unreliable. 89 By way of example, Ms Fenton, a teacher from St Dominic’s, said the following: On special occasions like birthdays, the children are allowed to bring in treats like Freddo Frogs and share them around. I knew that Jasmine wasn’t allowed to have any, which meant that she was segregated a bit from the rest of the class. Jasmine told me on a number of occasions that she was hungry and I noticed a lack of energy from her. What I mean by this is Jasmine appeared lethargic, not able to hold herself up. 90 Tiarne Ramsden, a friend from Hope Christian College, also said “Jasmine used to complain about being hungry at least once a week”. 91 An additional consideration that weighs in favour of the admission of these statements is that numerous independent witnesses provide similar accounts that support each other. 2. Statements about food deprivation 92 A number of witnesses describe Jasmine making statements relevant to the topic of food deprivation. The relevant affidavits are: • Emma Rogers (23 September 2020) at Annexure C; • Sarah Downie-Doyle (1 September 2020) at [10]; • Cate O’Leary (26 August 2020) at [8]; • Stephanie Hunt (31 August 2020) at [17]; • Chloe Endicott (5 February 2025) at [3]; • Isabella Hendy-Thomson (28 January 2025) at [15]-[16]; • Grace Willmore (5 February 2025) at [3]; and • Aleesha Knight (15 October 2020) at [8] and (10 February 2025) at [6], [8]-[10] and [12]. 93 Some of the statements relied upon by the prosecution relate to a specific occasion whilst others are of a more general nature or describe a course of conduct over a period of time. -- 19 of 86 -- [2025] SASC 187 McDonald J 18 94 Isabella Hendy-Thomson, a former school friend of Jasmine’s from Hope Christian College, has provided an affidavit which contains both types of statements said to have been made by Jasmine. She said: From what I saw when I was with Jasmine at lunch or recess, and from what we used to see during the general school day and talk about, Jasmine either had nothing to eat from home or unusual random things. I remember very vividly that one day she came to school with a whole raw cabbage. Jasmine said to me that it was the only thing she could steal out of the fridge. She didn’t say much else about it. … Jasmine used to hang around our lockers at the start of lunch and ask us (just her friends, not everyone) if we had anything spare to eat. We used to give her things. We were cautious, because of her having allergies, but Jasmine would say it was fine, she could eat that. I never saw her have a reaction to anything she ate. 95 Chloe Endicott described a similar event that is also alleged to have taken place when Jasmine attended Hope Christian College. The statement by Jasmine relied upon by the prosecution occurred in the following context: I remember that in addition to what I have mentioned, I even saw her bring in a whole head of broccoli with a stem attached. I used to ask her about what she brought in, and she used to just say something like ‘this is what my mum gave me’ or ‘this is what was in the house’. 96 Aleesha Knight, another friend from Hope Christian College, made a similar observation, with Jasmine providing the same explanation: In relation to the food that Jasmine had at school, on average she would have something from home about once a week and it would be strange things, like a whole cauliflower, a whole broccoli, a capsicum or carrot. She used to say it was something that she had taken when her mum wasn’t looking, that was why she had food. Most commonly, it was cauliflower and always raw vegetables that I recall. 97 The similarity of the accounts of Ms Hendy-Thomson, Ms Endicott and Ms Knight makes it more likely that they are reliable in their recounting of the relevant statements made by Jasmine. 98 Food deprivation is an important part of the prosecution case. At the time of her death Jasmine was significantly underweight. There is no doubt that the statements made by Jasmine on this topic are highly relevant. They also have the hallmarks of reliability in that they were spontaneously made, in response to the situation in which Jasmine found herself. 99 It is also a relevant consideration that these statements sit amongst other evidence relevant to this topic, including observations of witnesses of the food that Jasmine would bring to school and/or that she was provided with at home. 3. Statements about a haircut 100 The prosecution seeks to lead two statements said to have been made by Jasmine about Ms Wilmott cutting her hair. The relevant affidavits are: -- 20 of 86 -- [2025] SASC 187 McDonald J 19 • Grace Willmore (5 February 2025) at [11]; and • Hayley Wiedermann (17 September 2020) at [18]. 101 Ms Willmore was Jasmine’s friend at St Dominic’s and Ms Wiedermann attended at Aberfoyle Park High School with Jasmine, some years later. 102 Ms Willmore provides an account of having a conversation with Jasmine about Jasmine’s mother cutting her hair. She said: … During this conversation I also recall Jasmine and I talking about hair, and she told me she used to have long hair like mine until her mum cut it off. This didn’t surprise me too much because my dad used to cut my hair when I was little as well. 103 Ms Wiedermann also describes a conversation with Jasmine about Ms Wilmott cutting her hair. That conversation appears to have occurred shortly after the relevant haircut. I remember that Jasmine always had beautiful long dark hair but one day she came in and her hair was butchered, like someone had been hacking at it. I said “oh Jasmine you’ve had your hair cut, it’s lovely”. Jasmine said I don’t, I hate it. I asked her why she had it cut then and she said something like mum made me or mum did it. Jasmine was miserable and shut off to my questioning by that point. I told her not to worry and it would grow back, it looked so bad. 104 It is the prosecution case that Ms Wilmott cut Jasmine’s hair to punish her. Although during the course of previous legal arguments it was suggested that the fact of Ms Wilmott cutting Jasmine’s hair was not in dispute, as of yet it is not the subject of agreement. It therefore remains necessary for the prosecution to prove this aspect of the case. 105 Both statements made by Jasmine occurred in the context of conversations with school friends. Consequently, they were spontaneous, about a matter within Jasmine’s knowledge and are therefore likely to be reliable. That is particularly so in respect of the account provided by Ms Wiedermann, which involved Jasmine reacting in an emotional manner to observations made about her haircut. The fact that the statement made by Jasmine was accompanied by objective evidence of the fact of a haircut, adds to the reliability of the evidence. 4. Reasons for arriving at school late and leaving early 106 As set out previously, part of the body of evidence relied upon by the prosecution to establish that Jasmine was socially isolated, is the evidence that on a regular basis she was dropped off at school late and picked up early. It was the prosecution’s submission that the evidence also establishes where Jasmine sat in the “pecking order” of the children. That is, that it was Jasmine who was required to miss school in order to facilitate the boys arrival at school on time. 107 The affidavits relevant to this topic are: -- 21 of 86 -- [2025] SASC 187 McDonald J 20 • Tiarnie Ramsden (24 October 2020) at [13] and (5 February 2025) at [9] and [11] (Hope Christian College); • Stephanie Hunt (31 August 2020) at [20] (Hope Christian College); • Alex-Lee Jankovic (19 September 2020) at [13] (Hope Christian College); • Isabella Hendy-Thomson (28 January 2025) at [12] (Hope Christian College); and • LF (7 September 2020) at [5]-[6] and (31 January 2025) at [6] (Blackwood High School). 108 In considering the reliability and probative value of this evidence, it is of significance that it would appear that there is no real dispute that Jasmine would arrive at school late and leave early. The evidence the prosecution seeks to rely on are the reasons that Jasmine provided for why that would occur. 109 Ms Ramsden, Ms Hunt, Ms Jankovic and Ms Hendy-Thomson all describe statements made by Jasmine whilst at Hope Christian College. 110 Ms Ramsden, Ms Hunt and Ms Hendy-Thomson each had conversations with Jasmine about why it was necessary for her to be collected from school early. Ms Ramsden said: She did have to leave early every day from school. I remember her saying that her mother made her leave as she had a very strict schedule. 111 Ms Hendy-Thomson also spoke with Jasmine about why she would be picked up from school early each day: Jasmine usually missed most of the last lesson, she used to go to the office and then get released to go home. Jasmine said that she had to go and get her siblings from their schools and that her mum picked her up. 112 Similarly, Ms Hunt recalled that Jasmine would be picked up early each day and recounted a particular occasion that she recalled: I do remember that Jasmine had to leave school early every day and had to sit in the front office for about twenty minutes waiting for her mother to pick her up as her siblings went to different schools. I remember one day Jasmine was late and she told me that her mother was angry with her for being late. 113 Ms Ramsden and Ms Jankovic also spoke to Jasmine about why she would get to school late when she attended at the Hope Christian College. 114 Ms Ramsden provided the following brief account of what she was told by Jasmine: -- 22 of 86 -- [2025] SASC 187 McDonald J 21 Jasmine would usually arrive during first period, but I couldn’t say exactly what time. She used to say that she was late because they were dropping off her siblings first, something like that. 115 Ms Jankovic said that Jasmine provided her with a similar explanation: Jasmine was often late for school. I remember her telling me she had a few siblings and that she was the only one who went to Hope Christian College. She told me that she was often late as her mother had to drop her other siblings off as well. 116 It would seem that there is nothing particularly contentious about the accounts of the witnesses of the explanations provided by Jasmine about why she would come to school late and leave early. It sits with the other evidence to be presented on the prosecution case and carries with it no potential prejudice. 5. Statements made by Jasmine about not being permitted to socialise/attend a school dance performance 117 It is the prosecution case that Ms Wilmott deprived Jasmine of the opportunity of normal social interactions that children experience and require to flourish. 118 Isabella Hendy-Thomson had a conversation with Jasmine on this topic. The relevant affidavit is: 119 Isabella Hendy-Thomson (28 January 2025) at [11]. 120 Ms Hendy-Thomson observed that Jasmine was not permitted to interact with her outside of school. She said that she raised the topic with Jasmine and the following exchange occurred: I don’t know why we weren’t allowed to go to Jasmine’s house, we asked to catch up, but she just said that she wasn’t allowed to have people over. She never gave any reason for it, to me anyway. I invited Jasmine to my house, at least a few times but she just said she wasn’t allowed, or her mum wouldn’t let her. 121 An aspect of the body of evidence relied upon by the prosecution to prove social isolation relates to an incident that took place whilst Jasmine was at Blackwood High School. The evidence will be that Jasmine was involved in a school dance production, that involved considerable preparation, however did not attend to take up her role in the evening performance. 122 There are two witnesses, MD and LF, who describe having conversations with Jasmine about the circumstances surrounding her failure to participate in the dance performance. The relevant affidavits are: • MD (7 September 2020) at [21]-[23], [26]-[27] and (16 December 2024) at [5]; • LF (7 September 2020) at [9] and (31 January 2025) at [9] and [11]. -- 23 of 86 -- [2025] SASC 187 McDonald J 22 123 MD described having conversations with Jasmine both before and after the performance about her reasons for not participating. She said: Jasmine was really looking forward to taking part in the show as were we all. On that day however 26th September 2020 [sic] at the beginning of the day Jasmine told me that she was probably not going to be able to do the show. She told the teacher that she wouldn’t be able to take part in the show and got in trouble because of this. 124 Subsequent to this, Jasmine told MD the reason that she had not attended the performance: After this Jasmine confided in me that her mum had had an argument with her that morning and had been smashing dishes, the argument had been because her mother didn’t want her to perform in the show. Jasmine had persisted and her mum had been really angry at her and therefore she was not allowed to take part. Jasmine was really upset and I asked her if that was a normal occurrence. Jasmine said that sometimes her and her mum had arguments but didn’t go into anything further. … 125 LF has also provided an account of having a conversation with Jasmine in advance of the performance about why she could not participate. She said: I also recall another time when Jasmine old me that her mother wasn’t going to let her participate in a dance performance at school even though it went towards her grade. She told her that her mother wasn’t comfortable with it and that she had done this several times before and that she wasn’t happy with her mother. This was only about two weeks before the end of term/close to the time that Jasmine passed away. 126 In a subsequent affidavit, LF went on to provide some further context about the significance of this event: In relation to the performance, Jasmine was in the chorus, but she had a soloist role, a speaking moment that she was especially selected for. Jasmine loved dancing and she was very, very, upset that she couldn’t be involved. All our friendship group was involved. It was only a couple of days before the performance that he mother told her that. I remember that the dance teacher wasn’t very happy when Jasmine told her. All she could say was that mum wouldn’t let me and she didn’t tell me why. 127 The evidence on this topic is relevant to the circumstances in which it is alleged Jasmine was prevented by Ms Wilmott from engaging in common place social interactions. It fits together with other evidence that the prosecution will rely upon to establish social isolation. 128 This is an important aspect of the prosecution case as Dr Jon Jureidini, a paediatric psychiatrist, will give evidence about the impact of isolation on the mental health of a young person, which is in turn relevant to the question of causation. 129 As with much of the evidence that the prosecution will lead pursuant to s 34KA, the statements made by Jasmine were spontaneous and reactive to a situation in which Jasmine found herself. The conversations were between school friends, and took place in a manner in which school friends commonly confide in -- 24 of 86 -- [2025] SASC 187 McDonald J 23 each other, which would tend to suggest that Jasmine was reliable in the account that she was providing and the witnesses reliable in their recollection and recounting of the conversations. 6. Statements made by Jasmine that suggest that she enjoyed school and had friends 130 It is Ms Wilmott’s case that there was much going on in Jasmine’s life leading up to her suicide which may have contributed to her decision to take her life. This included years of failing to fit in and thrive at school, and bullying by other students. The prosecution proposes to rely on a body of evidence to challenge (or at least put into context) the defence case that Jasmine was generally unhappy at school. 131 The relevant affidavits are: • Phillip Tarrant (13 August 2020) at [9]-[11]; • Isabella Hendy-Thomson (28 January 2025) at [27] and [28]; and • Timothy Potter (2 September 2020) at [6]. 132 Phillip Tarrant was the principal of Hope Christian College when Jasmine attended there. In advance of her commencing, Mr Tarrant conducted an interview with Ms Wilmott and Jasmine. Mr Tarrant described the following as occurring during the course of the interview: After asking some initial questions from Jenni I then spoke with Jasmine and asked her a series of questions. The first questions I asked Jasmine was whose idea was it to come to the school, Jasmine told me it was her idea and she had looked on the internet and liked the look of the school. She told me that her favourite subjects were English and Art as she enjoyed drawing, painting and using clay. She told me her least favourite subjects were Physical Education due to a coordination problem and lack of motivation. She also stated she did not like Maths. During the interview Jasmine mentioned that she wanted to be Occupational Therapist or Physiotherapist and that she was interested in leadership. Jasmine told me she had a small group of 8-10 friends at last school which was Saint Dominic’s Priory. I asked Jasmine what she liked to do at recess or lunch, and she told me she liked to talk, go to library and play a game called ‘pull the plug.’ The final question I asked during the interview was what difference Jasmine would notice coming to Hope Christian School. She told me it was a different cohort of children, she had seen that the school had a choir and excursions, fundraisers and campus excited her. 133 After Jasmine moved from Hope Christian College, Ms Hendy-Thomson kept in contact with her. Ms Hendy-Thomson has provided details of an email exchange that she had with Jasmine after Jasmine commenced at Aberfoyle Park High School. She said: -- 25 of 86 -- [2025] SASC 187 McDonald J 24 I have looked at the messages after Jasmine left school. They are mostly about me asking her how her new school was going and she said that it was awesome. She sent me some pictures of herself. She was happy that she didn’t have to worry about the uniform. We spoke about school work and what subjects she wanted to do. Jasmine asked a bit about old school mates, she said that public school was better. There was nothing out of the ordinary in the messages, and she didn’t talk about her home life, it was just back and forth mostly about school stuff. 134 In the paragraph of her affidavit that follows, Ms Hendy-Thomson provides details of her last communication with Jasmine that took place on 22 June 2018. That conversation presents a less positive picture. The prosecution have agreed that it is fair to Ms Wilmott to lead this conversation to put Ms Hendy-Thomson’s evidence into its proper context. She described that last conversation as follows: We last talked on 22nd of June 2018, Jasmine said she hated life today, she was changing subjects and doing three assignments. Trying to talk to mum but the internet was shit and she had a headache, other than that life is great. I replied that really does suck. Jasmine asked me what I was up to, I said I had an internal suspension. … 135 The final witness on this topic is Timothy Potter. At the relevant time, he was the wellbeing leader at Golden Grove High School. Part of that role involved dealing with new school enrolments and the initial student/family interviews. In 2017, he received an enrolment enquiry for Jasmine to commence in term 1, year 8, 2018. He was involved in a meeting with Ms Wilmott and Jasmine that was also attended by Paul Gibbs, the head of the special needs department. Mr Potter described that during the meeting: [Jasmine] told me that she was capable with her studies. I think she also said there were some learning difficulties specifically around English and Maths. She said that she enjoyed school. 136 In my view, these statements made by Jasmine do not advance the prosecution case very far, particularly given that two of the witnesses describe conversations that took place as part of an interview process for a new school. Comments made by Jasmine in such an environment lack the spontaneity of many of the other statements relied upon by the prosecution, and are more likely to be contrived or preplanned. 137 On the balance however, they form part of the broader body of evidence surrounding Jasmine’s schooling and her attitude towards school. It cannot be said that any prejudice flows to the accused from the admission of these statements. 7. Statements made by Jasmine about her relationship with Ms Wilmott 138 The nature of the relationship between Ms Wilmott and Jasmine is obviously central to the prosecution case. Statements by Jasmine about her state of mind about the relationship are therefore relevant and potentially highly probative. 139 The affidavits relevant to this topic are: -- 26 of 86 -- [2025] SASC 187 McDonald J 25 • Emma Rogers (23 September 2020) at [35]; • LF (7 September 2020) at [5]-[6], [21] and [25], and (31 January 2025) at [4]-[5]; and • Julie Woodcock (14 August 2020) at [43] and [53]. 140 Emma Rogers taught Jasmine when she attended Our Lady of Hope Primary School between 2010 and 2011. Ms Rogers said the following about the extent to which Jasmine raised concerns about Ms Wilmott: Jasmine never made any disclosures of abuse towards her parents or her siblings. She would tell me that Jenni would tell her off quite often but that was evident in Jenni’s emails to me. Jasmine never ever said though that she was scared of her parents or siblings or that she didn’t want to go home. 141 LF was Jasmine’s school friend at Blackwood High School. She described having a number of conversations with Jasmine about her mother and the broader family dynamic. She said: Jasmine described her mother as being intense32 women [sic] who would wake her up during the night. She said that one minute her mother was happy the next she was sad. … 142 LF went on to elaborate: During my conversations with Jasmine she did confide in me a lot and told me quite a few things. Jasmine told me that she was adopted and had some younger siblings. She also said that her mother had a mental health condition ...33 Jasmine would tell me that she would be woken up at various times during the night by her mother or her mother [sic] partner. She also stated that her mother went through extended periods where she would be wake her up or she would have to look after her siblings and that was why she was often late for school. … 143 LF also described Jasmine talking to her about how she was treated by Ms Wilmott in comparison to her brothers. LF recounted: I also remember Jasmine talking about her other siblings and mother on another occasion when she said that her youngest sibling was loved the most, she was ignored and her older brother could do no wrong. She also said that her step-father wasn’t around that often. She also said that he would also wake her up at strange times of the night as well as her mother. 144 In a subsequent affidavit, LF further explained: In terms of the siblings that Jasmine told me about, she said she had two brothers, one older and one younger. Her mum was an intense person with outbursts of emotion, both positive and negative. She went from having bouts of sadness to elated joy. …34 Jasmine used to have arguments with her mum, and some stressful times with her brothers, sibling conflict. 32 I have admitted this statement subject to clarification about whether it was Jasmine who used the word “intense”. 33 I have not permitted the words “which sounded very like bi-polar” to be led. 34 I have not permitted the prosecution to lead evidence of LF’s opinion that Ms Wilmott may have had bipolar disorder. -- 27 of 86 -- [2025] SASC 187 McDonald J 26 She said that she preferred her little brother, her older brother was ‘heralded’ within the family and could do no wrong. 145 Julie Woodcock provided respite care for Jasmine in the period leading up to Jasmine’s suicide. Jasmine also spoke with her about the family dynamics. She said: Jasmine would talk to me about what was happening at home but not in detail so Jasmine would say things like “mum’s cross” or being angry. She spoke of her new sister and was upset when she left as mum wouldn’t let her see her again as “she was too disruptive”. 146 Ms Woodcock went on to provide details of a conversation that she had with Jasmine about a particular occasion that Jasmine came into conflict with Ms Wilmott. I only ever saw Jasmine cry on two occasions. One occasion was when mum was convinced that Jenni had hidden the remote control and was having a meltdown about it, Jasmine later told me she didn’t know where it was and hadn’t hidden it. The second time was when I picked up Jasmine from school and she was upset about being bullied at school. 147 The evidence of statements made by Jasmine about her relationship with her mother is limited. On the prosecution case that is because not only did Jasmine exhibit the innate loyalty that a child feels towards a parent, but also because she was conditioned to remain silent. On Ms Wilmott’s case, the reason that Jasmine did not complain about Ms Wilmott’s behaviour towards her was because there was nothing to complain about. She was doing her best as a single mother to care for the needs of four children. 148 The evidence of what Jasmine said on this topic falls within a very broad body of evidence of observations made by witnesses along with statements made by Ms Wilmott, from which I will be asked by both parties to draw inferences about the nature of this relationship. The reliability of what was said by Jasmine and was recounted by the relevant witness can be tested by an assessment of that evidence alongside of and in comparison with other evidence that I ultimately accept. 8. Statements made by Jasmine evidencing a suicidal intent 149 Although there is no dispute about the fact and circumstances of Jasmine’s death, the issue of what caused Jasmine to make the decision to take her own life, is the most critical issue in this trial. Any evidence that sheds any light on Jasmine’s state of mind in the period leading up to her death is relevant and highly probative to the determination of this issue. The prosecution relies on a number of communications made by Jasmine that they contend are relevant to this issue. 150 The affidavits relevant to this topic are: • Isabella Hendy-Thomson (28 January 2025) at [25], Annexure A and Annexure B; -- 28 of 86 -- [2025] SASC 187 McDonald J 27 • LF (31 January 2025) at [8]; and • SM (15 January 2025) at [74]. 151 Ms Hendy-Thomson describes and provides a copy of an online chat on Google Hangouts that she engaged in with Jasmine on 7 June 2017. It relevantly reads: Jasmine: i am so sad Isabella: why Jasmine: cause my mum is angry Isabella: aww Jasmine: feeling so sick and sad Isabella: awww Jasmine: if my mum is going to keep doing this i am leaving … Jasmine: i cant do this i will go to live with my dad Isabella: oh Jasmine: and get hurt every day … Jasmine: shes gone to far Isabella: yeah Jasmine: (emoji bomb) 2 my head Isabella: no Jasmine: yes I am done 152 Ms Hendy-Thomas also provided a letter that Jasmine had sent to her accompanying a poem. The letter relevantly reads: This poem is for you I wrote it for you. Why? Because I am angry! (angry face) You and I are so similar. I used to be like you. Scared, angry, hurt and wanting to die. I would bash my head on brick walls, try to strangle myself, jump of [sic] my cupboard but nothing worked why because it wasn’t meant to be. I have -- 29 of 86 -- [2025] SASC 187 McDonald J 28 so much hurt inside of my [sic] because I am angry. My birth mother rejected me, my foster mother neglected me and then my father abused me. I am angry now but I used to be depressed and sad, lonely anxious and absolutely scared. I have had 10 years of people walking all over me and treating me like shit and only last year did I decide enough is enough. No one will ever fxxxxin walk over me again. I can’t be an woosh and give them the power. You have to be strong. I try to help anyone I see unhappy I can’t help it. If I see someone flat, depressed anything I will go out of my way to help them. Why? Because I know how it feels and I have to help others …. 153 LF also described an occasion when Jasmine was at Blackwood High School, when Jasmine expressed suicidal thoughts: Jasmine often referenced suicide or self-harm, but just in the same way other friend joked about it or referenced it, a bit inappropriately but as a joke. However, on that occasion when she said she might as well jump off a bridge, she just seemed absolutely dejected. I remember from what Jasmine said, something had happened with her little brother, she didn’t say what but she and her mum had argued over something to do with him. The family believed her mum was wrong. It was one of the mornings that Jasmine was late. 154 SM, who had been in foster care at the Wilmott household for a period of time, also described a conversation that she had with Jasmine that reflected Jasmine’s state of mind, albeit it did not go as far as to suggest any suicidal ideation. SM said: I remember the last time I saw Jasmine alive was just before I was removed from Jenni’s care. I remember having a conversation with Jasmine where I asked her why she didn’t ever fight back or try and run away. Jasmine told me that if she fought back she might not make it alive. These are the words I remember her saying. It never occurred to me that Jasmine might take her own life. 155 The common theme in each of these statements made by Jasmine is that they reflect Jasmine’s state of mind towards her mother and the impact that she believed that her mother’s conduct was having on her at a relevant point in time. 156 It is evidence that, along with other evidence to be presented on the prosecution case, is relevant to an assessment of the circumstances surrounding Jasmine’s decision to take her own life. 9. Statements made by Jasmine to explain injuries 157 Aleesha Knight and Isabella Hendy-Thomson describe Jasmine proving an account of how she had sustained injuries. The affidavits relevant to this topic are: • Isabella Hendy-Thomson (28 January 2025) at [20]; and • Aleesha Knight (15 October 2020) at [13] and (10 February 2025) at [13]-[14]. -- 30 of 86 -- [2025] SASC 187 McDonald J 29 158 Ms Hendy-Thomson describes Jasmine attending at Hope Chistian College with bruises and that sometimes she would complain of pain from her injuries. She recounted a particular occasion when Jasmine provided an explanation for some of those injuries: One day Jasmine, Aleesha, me and I think Chloe and Stephanie were sitting in the access centre. We were telling scary stories, made up about ghosts and things like that. The next day, Jasmine came to school and told us that she got into trouble because she had mentioned the stories at the dinner table and scared her younger siblings. She mentioned it because she herself had started to feel scared, not that she was re telling the stories. Jasmine said she got into trouble for it, that her mum hit her. She didn’t specify exactly how but she showed us that she had bruises on her upper legs from being hit. There were more than two bruises from memory, they were a bluish colour, they looked fresh. 159 Aleesha Knight also described speaking to Jasmine about injuries that Ms Knight had observed. She said: I asked her again how she got all the bruises over her body. Jasmine told me that her mother had hit her multiple times with a belt. Jasime told me that she was scared of her mother a lot and that’s why she had lied about how she got the bruises. Jasmine then asked me not to say anything to anyone. I wanted to tell someone but she asked me not to. 160 In a subsequent affidavit, Ms Knight further elaborated: … I have described a time when Jasmine told me the bruises all over her body were from being hit by her mother with a belt. I can’t remember now what she said she had done, or what had happened leading up to her being hit. When she begged me not to tell anyone, or the teachers, I remember her saying something very much like “if mum finds out I’ve talked to anyone else it’s going to be way worse next time you see me”. 161 Each of the statements made by Jasmine are anchored to the observations of injuries. The evidence sits against a backdrop of other witnesses allegedly having observed Ms Wilmott assault Jasmine. Importantly, those witnesses include OW and SM, whose reliability and credibility will be under significant challenge. The evidence of what Jasmine said on this topic has the potential to assist in the determination of these issues. 162 It is for the reasons that I have set out, that I have determined to admit the statements that I have identified that were made by Jasmine, pursuant to s 34KA. 163 In arriving at these decisions, I have been mindful of the observations made by Kourakis CJ in Haines, that “[t]he more complex the subject matter of the statement, and controversial the circumstances in which it was taken, the greater will be that unfairness”.35 Generally speaking, the subject matter of the statements is straightforward and not complex and there is often minimal controversy around the circumstances in which they were made. 35 R v Haines [2016] SASC 96 at [41]. -- 31 of 86 -- [2025] SASC 187 McDonald J 30 Annexure 1 STATEMENT NO. ON INTERLOC. APP FILED 18/2/25 WITNESS AFFIDAVIT REFERENCE SUBJECT/ USE STATEMENT/S BY JASMINE DEFENCE OBJECTIONS TO STATEMENTS SOUGHT TO BE LED RULING Our Lady of Hope Primary School (2010-2011) 1 ROGERS, Emma 23/9/2020, [35] Arguments with the accused The terms of the relationship. 35. Jasmine never made any disclosures of abuse towards her parents or her siblings. She would tell me that Jenni would tell her off quite often but that was evident in Jenni emails to me. Jasmine never ever said though that she was scared of her parents or siblings or that she didn’t want to go home. I do believe that Jenni mother had a lot to do with Jasmine and would look after her quite often from memory. - To be admitted. 23/9/2020, Annexure C Food at School The terms of the relationship Deprived food. Email from Emma ROGERS to the accused, dated 29/07/10: Jasmine also told me that she steals as she doesn’t like what is in her lunch box. She said she would like pickles and cheese sandwiches, smiley fritz with sauce and cheers. She also said her brother gets good stuff and she doesn’t? Matt just told me she can choose if she does the right thing. - To be admitted. -- 32 of 86 -- [2025] SASC 187 McDonald J 31 Thanks Emma St Dominic’s Priory School (2012-2014) 2 ED 1/9/2020, [8] Hunger/Food The terms of the relationship Deprived food. 8. I recall that Jasmine would always be dropped off at our house really early around about 7am or just before 7am. I’m not an early riser so there were times when I would wake up and Jasmine was already at my house. I remember when Jasmine first came to her house she would say that she was hungry and would go to our cupboards and take some food. It was generally packets of chips… The proposed evidence relates to amorphous state of mind; namely, that Jasmine was hungry. It is devoid of any detail. In those circumstances, there is a significant forensic disadvantage caused by the absence of cross-examination (is the statement truthful, why is she hungry, does she have her own food, is she simply saying that she is hungry so as be given snacks or junk food). In those circumstances, the Defendant is prejudiced significantly by her inability to test the evidence in cross- examination, and the statement otherwise has limited value. To be admitted. 1/9/2020, [10] MW The relationship with her father is relevant to an evaluation of the narrative of MW’s abusiveness. 10. The only thing I remember Jasmine telling me was that her adoptive dad was in the Northern Territory and that he was trying to come back to try and find her and her mother. She never really went into any more detail than that. The Defendant does not understand the relevance of this purported statement to the prosecution case. The Defendant queries whether and how bears upon the nature and extent of any of her alleged acts or omissions? To the extent that the statement is said to be relevant to Jasmine’s state of knowledge, then absent any indication as to how Jasmine has acquired that knowledge, the statement invites speculation and is otherwise of limited probative value. The prosecution no longer pursues the application. -- 33 of 86 -- [2025] SASC 187 McDonald J 32 Subject to the identification of relevance, the Defendant submits that this purported statement of nil value or limited significance. Though it is unclear, both of these purported statements must have been uttered in around 2012 (outside of the charged period) when the witness and Jasmine were aged approximately 9 years old. The witness is purporting to give evidence about events that occurred approximately 6 years earlier. 3 DOWNIE- DOYLE, Sarah Elizabeth 1/9/2020, [10] Food The terms of the relationship Deprived food. 10. After a few weeks I found Jasmine in the pantry with a packet of chips, which she asked if she could have, which was not a problem. After this Jasmine began to ask me if she could have breakfast and told me that her mum didn’t give her breakfast, so I fed her along with [ED] and gave her things like toast or Weet-bix. The purported statement is, as recounted by the witness, of narrow compass. It is indicative only that on a single occasion the witness was told by Jasmine that she was hungry and that she had not been given breakfast by ‘her mum’. To infer anything beyond that would invite speculation and, in the absence of cross- examination, would occasion upon the Defendant significant disadvantage and unfairness. To be admitted. 4 FENTON, Georgina 21/8/2020, [8] Hunger/Food The terms of the relationship Deprived food. 8. On special occasions like birthdays, the children are allowed to bring in treats like Freddo Frogs and share them around. I knew that Jasmine wasn’t allowed to have any, which meant she was segregated a bit from the rest of the class. Jasmine told me Evidence as to amorphous state of mind – significant forensic disadvantage caused by absence of cross-examination (is the statement truthful, why is she hungry, does she have her own food, is statement connected to the circumstance of To be admitted. -- 34 of 86 -- [2025] SASC 187 McDonald J 33 on a number of occasions that she was hungry and I noticed a lack of energy from her. What I mean by this is Jasmine appeared lethargic, not able to hold herself up. treats being brought in on special occasions). In those circumstances, the Defendant is prejudiced significantly by her inability to test the evidence in cross- examination, and the statement otherwise has limited value. 5 MEYER, Georgia 31/7/2020, Annexure G Jasmine wanting to stay at St Dominic’s Relevant to evaluating the accused’s version of why Jasmine needed to move schools. Email from Georgia MEYER to Byron MORTIMER; Chris PURGACZ, dated 23/10/14: Hi Byron and Chris, Had a good chat with Jaz and while more quietly spoken she did respond very willingly in many ways. I did just mention the “issue” last term but said I wasn’t going there...just wanted to talk about her learning and the working relationship with Byron. She understood this and agreed Byron is a very caring teacher who would only want the best for his students and that he was concerned about whether that relationship had changed in any way...she said no ...so I did say that it would help her to show signs that indicate when we get on with people. Said she saw herself here next year. I talked about what st dom’s had to offer as a school that cared for students and enabled them to grow up The Defendant submits the evidence is not of a ‘statement’ attributable to Jasmine, but is rather a report of a conversation and of matters purportedly assented to. The Defendant submits that it is not evidence of a statement admissible pursuant to section 34KA. The prosecution no longer pursues the application. -- 35 of 86 -- [2025] SASC 187 McDonald J 34 in a supportive environment and said she was looking forward to year 6 and when in |r 7 she would be over with “us” and then if she wanted , I would be happy for her to be in my SB class....just wanting her to look into the future/hope/ purpose/support etc. 6 O’LEARY, Cate 26/8/2020, [8] Lunches The terms of the relationship Deprived food. 8. Jasmine didn’t ever have any food with her and I recall asking where it was, Jasmine told me she didn’t have any. On one occasion though, I witnessed her bring two droopy carrots to school, not the type of food you would expect anyone to have to eat. The Defendant suits that absent any further detail, such as whether the statement is attributable to a single occasion, and why she didn’t have any food, the statement has limited probative value. To be admitted. 7 VU, Angelina 24/10/2020, [7]-[8] Disabled Sister Relevant to evaluating the terms of their home life, her observations/ experience of SM, her relationship with her mother and father. 7. I recall that Jasmine was late to school at times. I also recall that she was adopted. Jasmine did tell me about her sister once. She told me that her sister was disabled and that she had to help out a lot. I got the impression that things could be a bit rough but that was only my opinion. Jasmine never said that to me herself. 8. …I do recall Jasmine telling me that her mother was quite busy and that she wasn’t very close to her dad. [7]: The Defendant does not presently understand the relevance of this statement to the prosecution case. How does it bear upon the nature and extent of any acts or omissions of the Defendant? To the extent that it is relied upon to establish that Jasmine had to ‘help out a lot’, the Defendant submits that there is an imprecision to the statement that reduces its probative value (the Court cannot know what Jasmine meant by ‘help out’ and ‘a lot’). In those circumstances, the Defendant is prejudiced significantly by her inability to test the evidence in cross- The prosecution no longer pursues the application. -- 36 of 86 -- [2025] SASC 187 McDonald J 35 examination, and the statement otherwise has limited value. [8]: There is currently no detail as to the context and circumstances in which the purported statement was uttered. The Court cannot know whether it was in response to a specific event or question. In any event, it is submitted that purported utterance is of a benign statement of fact that is of very little probative value. Absent the ability to cross- examine Jasmine as to the basis or motive for her utterance, the evidence invites speculation and occasions upon the Defendant unfairness and disadvantage. 24/10/2020, [12] Getting to School Relevant to the narrative on the topic of Jasmine getting to school. 12. I do recall Jasmine coming up to me one day at school. She asked me why my mother wasn’t answering her phone. She said that her mother had been trying to get in contact with my mother. I asked her why her mother had been trying to get in contact with my mother. She told me that her parents couldn’t find a way to get her to school and her mother was wondering whether my mother could take her to school. I told Jasmine that her mother had my mother old number. I did not give out my mother’s new number to Jasmine that day. I then went home that night and told my mother what Jasmine had said. - The prosecution no longer pursues the application. -- 37 of 86 -- [2025] SASC 187 McDonald J 36 8 WILLMORE, Rina 11/9/2020, [21] Getting to school Under s 34 KA – that her mother was looking at another school for her. 21. There was an incident when on the way from St Dominic’s to CBC it was quiet in the car and Jasmine piped up with. “My mums looking at another school for me, she’s trying to find people who are going the same way”. I just froze, waited a moment and said “Oh. O.K. I didn’t engage Jasmine in any discussion. The Defendant does not presently understand the relevance of this statement to the prosecution case in circumstances where there is no controversy over the fact of Jasmine changing schools. If it is asserted that the utterance, ‘she’s trying to find people who are going the same way’, is evidence why the Defendant was looking at other schools, then it is submitted that is of limited probative value. Similarly, if it led as evidence of what Jasmine understood to be the reason for her changing schools, then it is also of limited probative value. It is submitted that is because the meaning of the statement, ‘she’s trying to find people going the same way’ is, on its face, unclear and could have many different meanings; for example, given the statement is made whilst being driven to school, is this a reference to the geographic location of the school – or is it a reference Jasmine’s development) – there is simply no way of coming to any conclusion without resorting to speculation. In those circumstances, the Defendant submits that she is prejudiced significantly by her inability to test the The prosecution no longer pursues the application. -- 38 of 86 -- [2025] SASC 187 McDonald J 37 evidence in cross-examination, and the statement otherwise has limited value. 9 WILLMORE, Grace 5/2/2025, [3] Food The terms of the relationship Deprived food. 3. I used to ask her about why she didn’t have any food. She used to say, “mum doesn’t give me food” or “I’m not hungry” but then she would ask me for food or an apple or something. A couple of times she said because “my mum hates me” and other times “my mum forgot”. I remember once in year five it was hot and we all had to stay in for lunch. Everyone went to their lockers to get their lunch boxes when the teacher told us to. I think I had a sandwich, apple and some cucumber sticks. Jasmine opened hers and there was nothing in it. She asked if she could have some of my food. I remember asking her why she didn’t have any food, it was lunch time. She said her mum didn’t give her anything. I said “why” and she said, “my mum hates me” and walked away. - To be admitted. 5/2/2025, [7] Mobile Phone Relevant to the relationship with Jenni. 7…. My memory is that still she didn’t have her own phone, but there was an old Nokia that Jasmine had every now and then, she said it wasn’t hers. The Defendant does not understand the relevance of this purported statement to the prosecution case. The Defendant queries whether and how bears upon the nature and extent of any of her alleged acts or omissions? To be admitted (subject to it being in issue at trial). -- 39 of 86 -- [2025] SASC 187 McDonald J 38 5/2/2025, [11] Haircut Relevant to proof of the haircut as punishment – disproves it was a hairdresser haircut. 11. … During this conversation I also recall Jasmine and I talking about hair, and she told me she used to have long hair like mine until her mum cut it off. This didn’t surprise me too much because my dad used to cut my hair when I was little as well. This photograph was in year five (which was 2014). I remember we were sitting in the research room in the school library, working on an assignment about careers and what we wanted to be when we grew up. It is submitted that the purported utterance is of a benign statement of fact that is of very little probative value. Absent the ability to cross- examine Jasmine as to the basis or motive for her utterance, or whether she was expressing upset or consternation, the evidence invites speculation and occasions upon the Defendant unfairness and disadvantage. To be admitted. Hope Christian College (2015-2017) 10, 11 FRENCHAM, Leticia Marie 15/10/2020, [6]-[7] Relationship with accused, siblings The terms of the relationship 6. I recall Jasmine telling me that she didn’t like her foster mum as they would always argue. She also said that she had to look after her younger brother as her mother wasn’t at home a lot. She also told me that her older brother took really good care of them. 7. I also recall Jasmine telling me that her foster sister got put back into care as she was rude and didn’t get on with her mother. I remember Jasmine telling that her foster sister went back into care and it had something to do with her mother however she never explained what the reason was for her being returned to care. [6]: It is submitted that the absence of detail as to the context and circumstances in which Jasmine’s purported statement was uttered diminish its probative value. It is submitted that is particularly so in circumstances where both Jasmine and the witness were young children – and the utterance is of the type that one might hear from a child from time to time. Absent the ability to cross- examine Jasmine as to spirit in which the utterance was made, the Defendant is at a significant forensic disadvantage. Further, the Defendant notes that there exists on the prosecution brief a significant body of evidence of statements made by Jasmine in which she speaks positively and lovingly The prosecution no longer pursues the application. -- 40 of 86 -- [2025] SASC 187 McDonald J 39 about the Defendant. To admit this statement, and thereafter for the Defendant to lead the contrary statements, would result in the Court engaging in the type of exercise warned against by Kourakis CJ in Haines. [7]: The Defendant submits that there is an imprecision and incompleteness to the statement about the sister being taken away that reduces its probative value. Absent any further detail or the ability to cross-examine, the Court is left in the position of having to speculate as to the source of Jasmine’s understanding and what precisely she meant by her utterance. 15/10/2020, [11] Siblings attending different schools The terms of the relationship with Jenni Wilmott 11. I also recall that Jasmine had to catch the bus to school. I remember her saying that her and her other siblings weren’t allowed to go to the same schools together however she never explained why they weren’t allowed to go to the same schools. It is submitted that the probative value of this statement is limited absent any further detail as to where Jasmine’s understanding as to her sibling’s different schools came from (was it from the Defendant, her siblings, or some other person) and what she understood the reason to be for their different schools. Absent that detail, the utterance of limited probative value but is otherwise unfair to the Defendant because it invites prejudicial speculation. Absent the ability to cross-examine Jasmine about these matters, the Defendant is at a significant forensic disadvantage. The prosecution no longer pursues the application. -- 41 of 86 -- [2025] SASC 187 McDonald J 40 31/1/2025, [7] Birthday Card from Jasmine The terms of the relationship with Jenni Wilmott. Deprivation in Jasmine’s home life. Front of Card: ‘HAPPY B’DAY Leticia’ Inside Card: ‘Dear Leticia, Hope you have a great birthday today. BTW if you could have any gif what would it be? Can you get me something cause you gave everyone cupcakes from Jas.’ The Defendant submits that the meaning of the statement is, on its face, unclear and could have many different meanings . The statement, ‘can you get me something …’, invites speculation as to whether this a reference to Jasmine asking for food, and if so the circumstances of the request render it irrelevant because the request, on its face, was precipitated by the actions of Leticia giving cupcakes of others and not any act or omission of the Defendant. In those circumstances, the Defendant is prejudiced significantly by her inability to test the evidence in cross- examination, and the statement otherwise has limited value. The prosecution no longer pursues the application. 12, 13 RAMSDEN, Tiarnie Anne-Marie 24/10/2020, [13] Missing school Explanatory of school absences. 13. Jasmine got on pretty well with her teachers at school. I would describe as good/average. She would get ‘C’ grades and some ‘B’ grades. She was never disruptive in class. She did have to leave early every day from school. I remember her saying that her mother made her leave early as she had a very strict schedule. I also recall Jasmine used to be absent from school. When I asked her why she was absent she would say that she had a lot of appointments and that was why she was off so much. - To be admitted. -- 42 of 86 -- [2025] SASC 187 McDonald J 41 5/2/2025, [9] Missing School Explanatory of school absences. 9. In my original statement I have said I only ever hung out with Jasmine at school and didn’t socialise with her outside of school hours. Jasmine had a strict schedule. She had a lot of appointments, so I didn’t feel like she had much time. She told me about having a lot of appointments when we were in year eight. She said they were doctors’ appointments, but didn’t say what sort. I assumed it was to do with her allergies. She said there were lots of appointments that her mum had to follow, and she had to go with her. - To be admitted. 5/2/2025, [11] Late to School & Leaving Early Explanatory of school absences. 11. …Jasmine would usually arrive during first period, but I couldn’t say exactly what time. She used to say that she was late because they were dropping off her siblings first, something like that. Jasmine also left early, at least half an hour. She used to say that she had appointments, her mum would pick her up. She was absent sometimes too, I couldn’t say the exact amount of times, but it was frequent. - To be admitted. 5/2/2025, [8] Hunger The terms of the relationship Deprived food. 8. Jasmine used to complain about being hungry at least once a week. The proposed evidence relates to amorphous state of mind; namely, that Jasmine was hungry. It is devoid of any detail. In those circumstances, there is a significant forensic disadvantage caused by the absence of cross-examination (is the statement To be admitted. -- 43 of 86 -- [2025] SASC 187 McDonald J 42 truthful, why is she hungry, does she have her own food, is she simply saying that she is hungry so as be given snacks or junk food). In those circumstances, the Defendant is prejudiced significantly by her inability to test the evidence in cross- examination, and the statement otherwise has limited value. 14 HUNT, Stephanie Jayne 31/8/2020, [17] Food The terms of the relationship Deprived food. 17. I remember Jasmine telling me that she and her mother did not get along. I remember one occasion when she told me that she had been fighting with her siblings and that she had been sent to her bed without any food. I cannot recall whether I told my parents about this or not. It is submitted that the absence of detail as to the context and circumstances in which Jasmine’s purported statement was uttered diminish its probative value. It is submitted that is particularly so in circumstances where both Jasmine and the witness were young children – and the utterance is of the type that one might hear from a child from time to time. Absent the ability to cross- examine Jasmine as to spirit in which the utterance was made, the Defendant is at a significant forensic disadvantage. Further, the Defendant notes that there exists on the prosecution brief a significant body of evidence of statements made by Jasmine in which she speaks positively and lovingly about the Defendant. To admit this statement, and thereafter for the Defendant to lead the contrary statements, would result in the Court To be admitted. -- 44 of 86 -- [2025] SASC 187 McDonald J 43 engaging in the type of exercise warned against by Kourakis CJ in Haines. As to the statement that Jasmine was ‘sent to her bed without any food’, absent any detail as who sent her to bed, the statement invites speculation and is otherwise of limited probative value. 31/8/2020, [20] Leaving School Early Explanatory of school absences. 20. I do remember that Jasmine had to leave school early every day and had to sit in the front office for about 20 minutes waiting for her mother to pick her up as her siblings went to different schools. I remember one day that Jasmine was late and she told me that her mother was angry with her for being late. The Defendant submits that the value of the evidence is limited absent any more context or detail. That is because there is nothing out of the ordinary about a parent being ‘angry’ with a child for being late for pick up. It is submitted that the evidence only has value if one speculates as to the degree of anger exhibited and whether or not the response was proportionate to the conduct of Jasmine. In those circumstances, the Defendant is prejudiced significantly by her inability to test the evidence in cross- examination, and the statement otherwise has limited value. To be admitted. 15, 16 ENDICOTT, Chloe Renee 31/8/2020, [16] (see also affidavit 5/2/2025, [13]) Birth Parents Explanatory of Jasmine’s interest in parental relationships. 16. I do remember her telling me that she wanted to find her birth parents and she wanted to get to know who they were. The Defendant does not understand the relevance of this statement to the prosecution case and queries whether and how it bears upon the nature and extent of any acts or omissions of the Defendant. The prosecution no longer pursues the application. -- 45 of 86 -- [2025] SASC 187 McDonald J 44 5/2/2025, [3] Food The terms of the relationship Deprived food. 3. I spoke about the food that I saw Jasmine bring to school in my original statement. I remember that in addition to what I have mentioned, I even saw her bring in a whole head of broccoli with a stem attached. I used to ask her about what she brought in, and she used to just say something like, “this is what my mum gave me” or “this is what was in the house”. I remember that when we were at her locker, it would sometimes have mouldy vegetables in it, she wouldn’t eat them and throw them to the back, so her locker smelt. - To be admitted. 5/2/2025, [6] Socialising Outside of School Relevant to show Jenni Wilmott’s attitude to Jasmine socialising. 6. In my original statement, I have mentioned that Jasmine was never allowed to socialise with any of her friends outside of school, but I didn’t know the reason why. I do remember that Jasmine told us once in about 2017 that her mum had said, “she’ll never get far in life if that’s all she wants to do is play basketball”, I think referring to me. I don’t remember the context of that conversation now, it may have been in response to me or one of us asking, “why can’t we ever see you?” and Jasmine saying her mum said that we weren’t going anywhere in life. Stephanie and I used to play basketball almost every day. There was never really a clear reason for The Defendant does not understand the relevance of this statement to the prosecution case. On its face, the proposed evidence is double-hearsay, insofar as it is evidence from the witness about what Jasmine told her about what her mother (the Defendant) had told her. The Defendant presumes that is being led not to prove the underlying assertion, but to prove a comment made to Jasmine by the Defendant. If that is the case, then the Defendant submits that the statement cannot bear meaningfully upon any fact in issue (that is particularly so when one considers that the witness cannot now The prosecution no longer pursues the application. -- 46 of 86 -- [2025] SASC 187 McDonald J 45 why Jasmine couldn’t see us outside of school though. My mum used to say invite Jasmine over to things, but she was never allowed. recall the context in which the statement was made by Jasmine). 17, 18 KNIGHT, Aleesha Jade 15/10/2020, [8] Food The terms of the relationship Deprived food. 8. One of the things I recall her telling me was that she wouldn’t eat all week as her mother would refuse to feed her so she wouldn’t eat until the weekend when she was at her fathers. She also told me she had a lot of food allergies, including allergies to sugar, glucose and what. - To be admitted subsequent to the prosecutor proofing the witness. 10/2/2025, [6] Food The terms of the relationship Deprived food. 6. In relation to the food that Jasmine had at school, on average she would have something from home about once a week and it would be strange things, like a whole cauliflower, whole broccoli, a capsicum or carrot. She used to say that it was something she had taken when her mum wasn’t looking, that was why she had food. Most commonly, it was cauliflower and always raw vegetables that I recall. No objection. To be admitted subsequent to the prosecutor proofing the witness. 10/2/2025, [8]- [10], [12] Food/Allergies The terms of the relationship Deprived food. 8. Jasmine was given things like yogurt pouches (lots of them, she loved them), sandwiches, cheese sticks and fruit/jelly cups. She was supposed to be allergic to so many things, but she never had any reactions. We asked her about it, and she said that she didn’t think her allergies were real, but her mum did, like deathly real. No objection. To be admitted subsequent to the prosecutor proofing the witness. -- 47 of 86 -- [2025] SASC 187 McDonald J 46 She could die if she ate certain foods. She said that her mum had decreed she was allergic to various things, so she wasn’t fed them. Then, on the weekend she was fed by her dad, who didn’t follow any of the regulations and she had no reactions. That was a big part of why Jasmine didn’t think the allergies were real. 9. I know Jasmine didn’t think her allergies were real, but I couldn’t specify an exact conversation where she first told us that, they usually came about when we were talking about her eating some of our food or the food we had brought for her. From around mid-2017, we would be talking about food in some way, I don’t remember the exact context but Jasmine would say something like “if I don’t eat now, I won’t eat until I see you guys again” referring to not eating over the weekend. 10. … sugar was one of the main allergies Jasmine said her mum said she had. She couldn’t eat anything with sugar. 12. I remember Jasmine saying her mum was getting so over the top in relation to her sugar and other allergies… -- 48 of 86 -- [2025] SASC 187 McDonald J 47 15/10/2020, [13] Assault/Bruises The terms of the relationship That it was a relationship within which violence occurred. 13. Later that same day Jasmine and I were on her own. I asked her again how she got all the bruises over her body. Jasmine told me that her mother had hit her multiple times with a belt. Jasmine told me that she was scared of her mother a lot and that’s why she had lied about how she got the bruises. Jasmine then asked me not to say anything to anyone. I wanted to tell someone but she asked me not to. The Defendant submits that there exists on the prosecution brief a significant body of evidence of statements made by Jasmine in which she speaks positively and lovingly about the Defendant. To admit this statement, and thereafter for the Defendant to lead the contrary statements, would result in the Court engaging in the type of exercise warned against by Kourakis CJ in Haines. To be admitted subsequent to the prosecutor proofing the witness. 10/2/2025, [13]-[14] Assaults/Bruises The terms of the relationship That it was a relationship within which violence occurred. 13. In my original statement (paragraph 13), I have described a time when Jasmine told me the bruises all over her body were from being hit by her mother with a belt. I can’t remember now what she said she had done, or what had happened leading up to her being hit. When she begged me not to tell anyone, or the teachers, I remember her saying something very much like “if mum finds out I’ve talked to anyone else it’s going to be way worse next time you see me”. 14. My memory is that Jasmine was referring to a past time that she talked to someone about what was happening at home, or someone said they had noticed something. I think Jasmine said that she was either grounded or hit afterwards. It wasn’t punishment with electronics, Jasmine’s laptop was heavily monitored by her mum, [13]: - [14]: The Defendant submits that the equivocal and imprecise nature of the evidence is such that it is of limited probative value. The Defendant notes that witness ‘thinks’ that Jasmine either said one thing, or another. That, it is submitted, cannot amount to a ‘statement’ for the purpose of section 34KA. Similarly, the second sentence sought to be lead, ‘It wasn’t punished with electronics …’ is simply a bald assertion of the witness absent any foundation and is also not a ‘statement’ for the purposes of section 34KA. To be admitted subsequent to the prosecutor proofing the witness. -- 49 of 86 -- [2025] SASC 187 McDonald J 48 she wasn’t allowed to use it at home. I can’t remember any other details of what Jasmine told me in relation to that previous time now… 15/10/2020, [15]-[20] Abuse, leaving school early The terms of the relationship That it was a relationship within which violence and verbal abuse occurred. 15. Jasmine would often tell me about incidents where Jasmine mother would verbally abuse her. Jasmine would tell me what her mother said to her however I can’t recall what Jasmine mother said to her now as it’s been so long since I spoke with Jasmine about these things. 16. Jasmine also told me that her mother wasn’t nice to her and would tell her that she was the least favourite child. Jasmine also told me that she was scared and didn’t want to go home. 17. I remember that I used to sit with Jasmine in the front office quite a lot whilst she was waiting to be picked up by her mother. I remember Jasmine telling me that her mother would get angry with her and would start shouting at her if she wasn’t outside waiting on her and that she would keep driving and that she would have to run after the car and jump in whilst the car was still moving. 18. I actually witnessed this on 2 or 3 occasions whilst I was waiting with [15]: The Defendant submits that the absence of any detail whatsoever as to the nature and extent of ‘verbal abuse’ said to have been directed at her by the Defendant reduces significantly the probative value of the utterance. Absent any further detail (including context), the utterance only gains probative value if the Court speculates as to the nature and extent of the ‘verbal abuse’. It is submitted that the prejudice to the Defendant of engaging in such speculation is obvious, and exacerbated by her inability to cross-examine on the statement. [16]: The Defendant submits that Jasmine’s purported statement that she ‘wasn’t nice to her’ is of limited probative value absent any more context or detail. Further, the Defendant is prejudiced significantly by her inability to test the evidence in cross-examination. The statement about what the witness was told about what Jasmine was told by the Defendant is double-hearsay. To be admitted subsequent to the prosecutor proofing the witness. -- 50 of 86 -- [2025] SASC 187 McDonald J 49 Jasmine for her mother to pick her up. I recall Jasmine sprinting out to the carpark and her mother kept driving and Jasmine had to jump into the car whilst the car was still moving. I didn’t hear Jasmine mother shouting at Jasmine from where I was standing. 19. I remember Jasmine telling me that she needed to leave early as her siblings went to different schools. I remember asking her why that was, but she said she didn’t know. 20. I also recall that Jasmine used to be late for school quite a lot. Again she told me that it takes her mother ages to drop her off as she has to drop off her other siblings first and that she was last be dropped off. [17]: - [19]-[20]: - 10/2/2025, [16] Verbal Abuse The terms of the relationship That it was a relationship within which violence and verbal abuse occurred. 16. In paragraph 15 of my original statement, I have described Jasmine often telling me about incidents when her mother would verbally abuse her. One incident is when I told Jasmine a scary story about Hannibal Lecter, she told her mum about it. Her mum screamed at her, saying things like “if you’re going to bring these things home, don’t come home”. I initially felt bad for telling Jasmine the story, I thought that she was being yelled at for repeating it to her brother, but she didn’t, she just told her mum about being told because she was scared. I Probative value of the evidence is limited absent any more context or detail. Nothing out of the ordinary about a parent being ‘screaming’ where they have misbehaved. Evidence only has value if one speculates as to the degree of anger exhibited and whether or not the response was proportionate to conduct of Jasmine. In those circumstances, the Defendant is prejudiced significantly by her inability to test the evidence in cross- To be admitted subsequent to the prosecutor proofing the witness. -- 51 of 86 -- [2025] SASC 187 McDonald J 50 can’t recall a single time Jasmine ever told me a single positive thing that Jenni had said to her. examination, and the statement otherwise has limited value. 10/2/2025, [17]-[18] Social Isolation Relevant to show Jenni Wilmott’s attitude to Jasmine socialising (also food deprivation). 17. In terms of never hanging out with Jasmine after school, I was not allowed to go to her house, I don’t even know where she lived. Jasmine wasn’t allowed to go anywhere outside of school or even go to birthday parties. She was invited, she just wasn’t allow to go to them. Jasmine told me once that that was because of her food allergies, her mum couldn’t monitor what she ate and there would be a lot of sugary foods. That conversation was in relation to why she couldn’t come to my birthday party, I think the one I had in 2017. 18. I asked Jasmine to ask Jenni if I could go to her house in about mid- 2018, as Jasmine had told us she was leaving the school and I was trying to arrange a get-together. Jasmine said Jenni was very angry about being asked, saying something like, “why do they want to come here, what have you been telling them?” [17]–[18]: Hearsay upon hearsay. To be admitted subsequent to the prosecutor proofing the witness. 19 JANKOVIC, Alex-Lee May 19/9/2020, [13] Arriving Late For School Relevant to show terms of 13. Jasmine was often late for school. I remember her telling me she had a few siblings and that she was the only one that went to Hope Christian College. She told me that she was The Defendant does not understand the relevance of this statement to the prosecution case and queries whether and how it bears upon the nature and To be admitted. -- 52 of 86 -- [2025] SASC 187 McDonald J 51 her relationship and missed school/Jenni Wilmott’s attitude to her being late to school. often late as her mother had to drop her other siblings off as well. extent of any acts or omissions of the Defendant. 20 MICHELL, Juline 13/8/2020, [13] Food The terms of the relationship Deprived food. 13. Jasmine came to my office to calm down as she was upset and we had the locker cleaned out. Jasmine told me that all the food was from last term and no one has given her food this term. - The prosecution no longer pursues the application. 21 PELENTSOV, Rachel Tracy Coombes affidavit (21/8/2020), Annexure D Relevant to the terms of her relationship with Jasmine’s mother and her siblings. Email from Rachel PELENTSOV to Tracey COOMBES, dated 30/11/16: … I have managed to have a chat with Jasmine regarding her general well- being I have not managed to specifically ask or address her situation at home other than ask how she is going at home and she said she is getting along with her siblings (there was 3 other siblings, but not there is only 2…I am not sure why, but this changed early this term or late last term). Jasmine’s only reference to her mother was that they didn’t have a good morning... this conversation was yesterday 30/11/16. I have not directly or specifically told Jasmine what she can do if she needs The Defendant notes that, as presently framed, the proposed evidence is double hearsay insofar as it is the witness Coombes reporting a conversation that she had with Pelentsov about a conversation between Pelentsov and Jasmine. In any event, the circumstances of the communication are such that the evidence is more prejudicial than probative. To be admitted. -- 53 of 86 -- [2025] SASC 187 McDonald J 52 to report any mistreatment of abuse as she has been highly anxious, and I needed to establish her trust in this conversation. I did express that she can come talk to me any time, and when I asked her who does she feel safe with and who would she talk to if she had anything she needed to say, she did identify myself and our current chaplain. I reiterated with her that my door is always open to her even if it looks like I am busy and she can come and tell me anything that she is concerned about. 22 TARRANT, Phillip 13/8/2020, [9]- [11] School- Favourite Subjects, etc. Relevant to show that Jasmine had friends at St Dominics and enjoyed school there. 9. After asking some initial questions from Jenni I then spoke with Jasmine and asked her a series of questions. The first questions I asked Jasmine was whose idea was it to come to the school, Jasmine told me it was her idea and she looked on the internet and liked the look of the school. She told me her favourite subjects were English and Art as she enjoyed drawing, painting and using clay. She told me her least favourite subjects were Physical Education due to a coordination problem and lack of motivation. She also stated she did not like Maths. 10. During the interview Jasmine mentioned she wanted to be Occupational Therapist or Physiotherapist and that she was [9]-[11]: - To be admitted. -- 54 of 86 -- [2025] SASC 187 McDonald J 53 interested in leadership. Jasmine told me she had a small group of 8-10 friends at last school which was St Dominic’s Priory. I asked Jasmine what she liked to do at recess or lunch and she told me she liked to talk, go to library and play a game called ‘pull the plug’. 11. The final questions I asked during the interview was what difference Jasmine would notice coming to Hope Christian School. She told me it was a different cohort of children, she had seen the school had a choir and excursions, fundraisers and camps excited her. 23 HENDY- THOMSON, Isabella Ruby 28/1/2025, [7] Neglect by mother Relevant to show her relationship with her mother. 7. I also knew that Jasmine had an older brother and some younger siblings, I don’t know if they were boys or girls, she didn’t talk about them much. Jasmine mentioned that she had a dad, she said that he was abusive (she said that once in a message which I refer to below). She also referred to Jenni being neglectful of her. I don’t recall any exact circumstances, that’s just he overall impression I have from what Jasmine spoke of and how she was during our entire friendship. I remember her saying once or twice that she didn’t want to live with Jenni. Once she said that she would go and live with her dad and get The Defendant submits that the witnesses’ ‘impression’ of what she was told by Jasmine is not a ‘statement’ that is properly admissible pursuant to section 34KA. The Defendant notes that the prosecution does not seek to lead the evidence of the witness that Jasmine said to her that ‘her [dad] was abusive’. Otherwise, the Defendant submits that the probative value of the evidence that the witness was told ‘once or twice’ by Jasmine that she ‘didn’t want to live with Jenni’ is limited absent any more context or detail. To be admitted subject to the prosecution identifying the admissible component of the statement. -- 55 of 86 -- [2025] SASC 187 McDonald J 54 abused or hurt by him instead. She said that via message (Google Hangouts) in June 2017 when we were in year eight. In those circumstances, the Defendant is prejudiced significantly by her inability to test the evidence in cross- examination, and the statement otherwise has limited value. 28/1/2025, [11] Having friends over Going to friends’ houses Relevant to show her limited socialisation and her relationship with her mother. 11. I don’t know why we weren’t allowed to go to Jasmine’s house, we asked to catch up, she just said she wasn’t allowed to have people over. She never gave a reason for it, to me anyway. I invited Jasmine to my house, at least a few times but she just said she wasn’t allowed, or her mum wouldn’t let her. The Defendant submits that the probative value of the evidence is limited absent any more context or detail. The evidence is only probative if one speculates as to what Jasmine understood the reason to be for not being allowed to have people over or go to other people’s homes. To be admitted. 28/1/2025, [12] Leaving school early Relevant to explain school absences. 12. … Jasmine usually missed most of the last lesson, she used to go to the office and then get released to go home. Jasmine said that she had to go and get her siblings from their school and that her mum picked her up. - To be admitted. 28/1/2025, [15]-[16] Food & Allergies The terms of the relationship Deprived food. 15. From what I saw when I was with Jasmine at lunch or recess, and from what we used to see during the general school day and talk about, Jasmine either had nothing to eat from home or unusual random things. I remember very vividly that one day she came to school with a whole raw cabbage. [15]: - To be admitted. -- 56 of 86 -- [2025] SASC 187 McDonald J 55 Jasmine said to me that it was the only thing she could steal out of the fridge. She didn’t say much else about it. … 16. Jasmine used to hang around our lockers at the start of lunch and ask us (just her friends, not everyone) if we had anything spare to eat. We used to give her things. We were cautious, because of her having allergies, but Jasmine would say it was fine, she could eat that. I never saw her have a reaction to anything she ate. 28/1/2025, [19] Food The terms of the relationship Deprived food. 19. I don’t remember a lot about why Jasmine didn’t have food at school, we possibly did speak about it, I just don’t remember. I don’t remember Jasmine talking about allergies, other than to say ‘no that’s ok I can have it’ when we offered her food. - To be admitted. 28/1/2025, [20] Bruises The terms of the relationship That it involved violence and abuse. 20. Jasmine used to come to school with bruises and there were times when she would say she was in pain from injuries. One day Jasmine, Aleesha, me and I think Chloe and Stephanie were sitting in the access centre. We were telling scary stories, made up about ghosts and things like that. The next day, Jasmine came to school and told us that she got into trouble because she had mentioned The Defendant notes that there exists on the prosecution brief a significant body of evidence of statements made by Jasmine in which she various explanations for bruises that do not involve the Defendant. To admit this statement, and thereafter for the Defendant to lead the contrary statements, would result in the Court engaging in the type of exercise To be admitted. -- 57 of 86 -- [2025] SASC 187 McDonald J 56 the stories at the dinner table and scared her younger siblings. She mentioned it because she herself had started to feel scared, not that she was re-telling the stories. Jasmine said she got into trouble for it, that her mum hit her. She didn’t specify exactly how but she showed us that she had bruises on her upper legs from being hit. There were more than two bruises from memory, they were a bluish colour, they looked fresh. warned against by Kourakis CJ in Haines. 28/1/2025, [25], Annexure A (see also affidavit 6/2/2025, Annexure A) Suicidal Messages to Isabella 7 June 2017 Relationship with mother. Her mother caused her to feel extreme distress. Jasmine: “I am so sad” Isabella: “Why” Jasmine: “because my mum is angry, feeling so sick and sad” Isabella: “aaw” Jasmine: “if my mum is going to keep doing this I’m leaving” … Jasmine: “I can’t do this, I will go and live with my dad and get hurt everyday” … Jasmine: “she’s gone too far” Jasmine: (emoji bomb) Jasmine: “to my head” Isabella: “no” Jasmine: “yes I am done” - To be admitted. 28/1/2025, [27] Aberfoyle Park High School Relevant to Jasmine’s I have looked at the messages after Jasmine left school. They are mostly about me asking her how her new school was going and she said it was awesome. She sent me some pictures The Defendant submits that the text messages themselves are the best evidence. To be admitted. -- 58 of 86 -- [2025] SASC 187 McDonald J 57 experience of school/ narratives of bullying. of herself. She was happy that she didn’t have to worry about the uniform. We spoke about schoolwork and what subjects she wanted to do. Jasmine asked a bit about old school mates, she said that public school was better. There was nothing out of the ordinary in the messages, and she didn’t talk about her home life, it was just back and forth mostly about school stuff. 28/1/2025, [28] Aberfoyle Park High School Relevant to show Jasmine ‘hated life’ in the months leading up to her hanging. We last talked on 22nd of June 2018, Jasmine said she hated life today, she was changing subjects and doing three assignments. Tyring to talk to mum but the internet was shit and she had a headache, other than that life is great. I replied that really does suck. Jasmine asked what I was up to, I said I had an internal suspension. She spoke about her computer not working in class and asked what the suspension was for. I said it was for wearing the wrong uniform. She said she doesn’t have to worry about that, she wears a school top but other than that they can wear jeans. By then she was going to Aberfoyle High School. Her last message was “I know I love no uniform, I GTG (got to go) but have fun”. The Defendant submits that the stated reason that Jasmine was ‘hating life’ is her school work and not because of any acts or omissions of the Defendant. The probative value of the evidence is, in those circumstances, limited. To be admitted. 28/1/2025, Annexure B Poem … Dear Izzie, The Defendant submits that a ‘poem’ is not a statement for the purposes of section 34KA. In any event, the Court To be admitted. -- 59 of 86 -- [2025] SASC 187 McDonald J 58 Relevant to the truth of her relationship with her mother, and the neglect within that relationship. This poem is for you I wrote it for you. Why? Because I am angry! (angry face) You and I are so similar. I used to be like you. Scared, angry, hurt and wanting to die. I would bash my head on brick walls, try to strange myself, jump of my cupboard but nothing worked why because it wasn’t meant to be. I have so much hurt inside of my because I am angry. My birth mother rejected me, my foster mother neglected me and then my father abused me. I am angry now but I used to be depressed and sad, lonely anxious and absolute scared. I have had 10 years of people walking all over me and treating me like shit and only last year did I decide enough is enough. No one will ever faxxxin walk over me again. I can’t be am woosh and give them the power. You have to be strong. I try to help anyone I see unhappy I can’t help it. If I see someone flat, depressed anything I will go out of my way to help them. Why? Because I know how it feels and I have to help others. … cannot know the circumstances in which the poem was written and to what extent it was intended by Jasmine to be truthful or fictional. By way of example, the Defendant understands that it is the prosecution case that Jasmine was not abused by her father, [MW]; however, in this poem, Jasmine is alleged to have written ‘my mother neglected me and then my father abused me’. In those circumstances, the Defendant submits that it is not open to the prosecution assert that parts of the poem are truthful whilst others (even parts of the same sentence) are not truthful. To dissect the writing in that way creates a degree of artificiality that reduces significantly the probative value of the evidence. In those circumstances, the Defendant is prejudiced significantly by her inability to test the evidence in cross- examination, and the statement otherwise has limited value. Golden Grove High School (2018- Year 9- Terms 1-2) -- 60 of 86 -- [2025] SASC 187 McDonald J 59 24 POTTER, Timothy 2/9/2020, [6] School Relevant to show Jasmine was capable in her studies. In 2017 I received an enrolment enquiry for Jasmine Wilmott to start in year 8 Term 3 in 2017. I recall Jenni and Jasmine coming in for a meeting with myself and Paul GIBBS who was head of special needs department at our school. She told me that she was capable with her studies. I think she also said there were some learning difficulties specifically around English and Maths. She said that she enjoyed school. The Defendant submits that the person who made the statement sought to be adduced is not adequately identified and so the section 34KA(1)(b) precondition is not satisfied. To be admitted. Aberfoyle Park High School (2018- Year 9- Term 2) 25 WIEDERMANN , Hayley Janelle 17/9/2020, [18] Haircut Relevant to the terms of her relationship with Jenni Wilmott and that the haircut was as punishment. I remember that Jasmine always had beautiful long dark hair but one day she came in and her hair was butchered, like someone had been hacking at it. I said, “oh Jasmine, you’ve had your hair cut, it’s lovely”. Jasmine said, “I don’t, I hate it”. I asked her why she had cut it then and she said something like mum made me or mum did it. Jasmine was miserable and shut off to my questioning by that point. I told her not to worry and it would grow back, it looked so bad. The Defendant submits that in respect of the second purported statement sought to be adduced, there is a degree of imprecision to the statement where it is prefaced with, ‘[Jasmine] said something like …’. The Defendant submits that in circumstances where the Court cannot know which of the two statements was uttered, the probative value of the evidence is very limited. To be admitted. 26 June 2018 (Missing Person) 26, 27 GIURETIS, Danielle 7/9/2020, [6]- [7] Assault Relevant evidence to evaluate a 6. I spoke with Jasmine and asked her what had happened. She told me that her mother had caught her with a Facebook account and got really angry with her and punched her to In respect of the witnesses Giuretis, and [DH] & [JH], the Defendant submits that the personal circumstances of the witnesses, and the circumstances in which their Evidence to be taken de bene esse. -- 61 of 86 -- [2025] SASC 187 McDonald J 60 charged assault (count 6). the face multiple times. She told me this incident had occurred at her home address the night before. Jasmine further told me that her mother had also punched her to her arms as well. Jasmine took off her school jumper and showed me bruises on her upper right and left arms. The bruising was a little darker than the bruising on her face and more spread out. 7. Jasmine told me that her mother had hit her so many times that she had fallen over onto the floor. When she had fallen on the floor she stated that her mother had then kicked her all over her body. Jasmine then showed me bruising on left and right legs which appeared similar to bruising on her arms. She also lifted her shirt and showed me some bruising to her abdomen which was also similar to the bruising on her arms and legs. observations are made, are such that their credibility and reliability will be in issue. It may be that the Court cannot decide as to the admissibility of any statements of Jasmine purportedly witnessed by them unless and until their evidence has been received de bene ese. [6]: The Defendant notes that evidence will also be led in respect of this occasion that when spoken to by Police, Jasmine does not make any allegation against her mother and the attending Police do not observe any bruising. The statement is therefore not supported by other more credible evidence on the prosecution case. Accordingly, to admit this statement, and thereafter for the Defendant to lead the contrary statements, would result in the Court engaging in the type of exercise warned against by Kourakis CJ in Haines. It follows that the Defendant is prejudiced significantly by her inability to test the evidence in cross- examination, and the statement otherwise has limited value. The Defendant also submits that the circumstances in which the purported statement was made ought to cause the Court some concern. -- 62 of 86 -- [2025] SASC 187 McDonald J 61 7/9/2020, [9]- [10] Prior Assaults by the Accused Relevant to evaluate the relationship. 9. After Jasmine had showed me the bruises I asked her if her mother had assaulted her before. Jasmine told me that it had occurred before but not to the extent of night before. Jasmine told me that her mother was always mean and aggressive towards her and would often yell at her. 10. Jasmine further told me that she was adopted and that her father had separated with her mother and she thought her mother blamed her for the separation. Jasmine told me she did not get along with her mother and she felt out of place at home. Jasmine also told me that she did not feel safe going back to her mother. [9]-[10]: As above. Evidence to be taken de bene esse. 3/2/2025, [2] Jasmine concerned about being separated from her brother Relevant to evaluate why Jasmine didn’t give a full account to the authorities. Paragraph 11 to 12 of my original statement; Jasmine was scared of Child Protection Service (CPS) getting involved and her brother and her getting separated. I remembered this at the time but I don’t know if the police officer who took my statement asked questions relative to it so I didn’t say it but it is something I remember Jasmine saying, so it wasn’t put in my original statement. - Evidence to be taken de bene esse. 3/2/2025, [3] What Jasmine told police 3. Paragraph 17 to 18, Police asked Jasmine what happened and she told them, I think she repeated that her mother had beat her up the night As above. Evidence to be taken de bene esse. -- 63 of 86 -- [2025] SASC 187 McDonald J 62 Relevant to count 6. Also relevant to evaluation of the evidence of the police officer’s accounts. before and that she was scared to go home. We tried to show the police the bruising on the face but they said they couldn’t really see anything and they were going to talk to her outside. At that point both police officers took Jasmine outside… ‘ 3/2/2025, [5] Assault Relevant to count 6. I asked Jasmine if she wanted to go to hospital as I was concerned about the bruising, more so the swelling on her temple and her cheekbone, to at least have it documented. But more to have her checked out as Jasmine had said her mum had punched her in the head and face and I was worried about possible concussion. Jasmine kept saying “it’s okay, it’s okay” as if she didn’t want to impose on us. - Evidence to be taken de bene esse. 3/2/2025, [6] Relationship with mother 6. Jasmine told me that her dad left when she was young and it was like her mum blamed her for the marriage break-up. The Defendant submits that the probative value of this statement is limited absent any further detail or explanation as to why ‘it was like’ her mother blamed her. Absent that detail, the evidence invites speculation as to why Jasmine formed that opinion and the Defendant is prejudiced significantly by her inability to cross- examine. Evidence to be taken de bene esse. 28 DH 14/9/2020, [6] Assault Relevant to count 6. I spoke with Jasmine and asked if she was ok. Jasmine became quite emotional and began to cry. Jasmine told me that her mum had found social media on her phone and had [6]-[7]: The Defendant notes that evidence will also be led in respect of this occasion that when spoken to by Police, Jasmine does not make any allegation against her mother and the Evidence to be taken de bene esse. -- 64 of 86 -- [2025] SASC 187 McDonald J 63 become upset by this. Jasmine told me her mum had punched and slapped her a few times before she was knocked down to the ground where her mum kicked and stomped on her stomach and legs. attending Police do not observe any bruising. The statement is therefore not supported by other more credible evidence on the prosecution case. Accordingly, to admit this statement, and thereafter for the Defendant to lead the contrary statements, would result in the Court engaging in the type of exercise warned against by Kourakis CJ in Haines. It follows that the Defendant is prejudiced significantly by her inability to test the evidence in cross- examination, and the statement otherwise has limited value. The Defendant also submits that the circumstances in which the purported statement was made ought to cause the Court some concern. 14/9/2020, [9] Accused’s behaviour after MW left the relationship Relevant to the terms of the relationship. Jasmine told me she had been adopted from overseas and her adopted mother and father were happily married and when she first arrived in Australia. She then told me her adopted father had left the relationship and overtime her mother had become aggressive and dominant towards her. Jasmine told me she was scared of her mum and no longer wanted anything to do with her. Jasmine also told me that her adopted father had treated her well As above. Evidence to be taken de bene esse. -- 65 of 86 -- [2025] SASC 187 McDonald J 64 and that things got worse when he left. 14/9/2020, [14]-[15] Jasmine’s conversation with police Relevant to Jasmine’s relationship with her mother. 14. When we arrived at my house I began to set up a room for Jasmine. I had planned to buy new clothes for Jasmine the next day so she did not have to go home. I recall speaking to Jasmine about going to the Police to report what had happened. Jasmine told me she wanted to do this. I was planning on taking her to the Police the next day. 15. About 20 minutes later two police officers, one male and one female arrived at my house. They told me that needed to take Jasmine home as she had been reported as a missing person. I told the police that Jasmine had told me she had been assaulted by her mum the night before and that I had seen bruises on Jasmine’s body. The Police didn’t appear to want to listen to what I had to say. They came inside the house and told Jasmine she needed to go with them. Jasmine told the Police that she did not want to go home. After about 2 minutes the Police left with Jasmine. When Jasmine left she was crying and emotional. It was obvious that she did not want to go home. [14]-[15]: - Evidence to be taken de bene esse. -- 66 of 86 -- [2025] SASC 187 McDonald J 65 29, 30, 31 JH 12/8/2020, [7]- [10] Why she moved schools so frequently Haircut Bruising Relevant to the terms of the relationship – it explains the terms of abuse on which it operated. 7. The first time we really spoke I asked about her situation at home, I can’t recall whether she was in Foster Care or adopted. She told me she had been taken from her parents a long time ago when she was a baby. She said that she could have been adopted but because foster care were involved she wasn’t adopted. She told me of her foster mum, her brother and her living at home. She didn’t know about her biological family. She told me she had been moved from school to school to school after every time something got mentioned at home. Each time at home there was always new troubles going and she would talk of something happening. She always appeared very quiet and scared and was scared to talk because if it got back to mum then she’d get in trouble. 8. When I first met Jasmine she had long hair and one day she came to school and her hair was short and she had the largest Aberfoyle t-shirt on. I went to the office and asked for the smallest t-shirt possible and gave it to Jasmine. I asked Jasmine what was wrong, she had a bruise on her face and she told me her mum cut her hair. I can’t remember what reason Jasmine gave me. Jasmine said that her mum “hit me, she treated me like a slave”, her mum would get her in [7]: The Defendant submits that there are vagaries to the purported statement such as, ‘everytime something got mentioned at home’ and ‘new troubles’. Absent any further detail, the Court is left to speculate as to what is meant. Accordingly, it is submitted that the vagaries are such that the probative value the statements is limited. The Defendant submits that the final sentence comprises evidence of the witnesses’ opinion as to why Jasmine presented the way that she did and is not admissible pursuant to section 34KA. [8]: - [9]: The Defendant submits that the probative value of this statement is limited absent any further detail or explanation as to why Jasmine didn’t want to go home. Absent that detail, the evidence invites speculation as to why Jasmine formed that opinion. In those circumstances, the Defendant is prejudiced significantly by her inability to test the evidence in cross- examination, and the statement otherwise has limited value. [10]: - Evidence to be taken de bene esse. -- 67 of 86 -- [2025] SASC 187 McDonald J 66 trouble if she didn’t do things right. Jasmine had a full brother and was really worried about him and didn’t want him living there. 9. This was the last day I saw her, she told me she didn’t feel safe anymore, she didn’t want to go home, she didn’t want to get picked up, she was almost in tears. One day (26/06/2018) Jasmine came to school with bruises on her face and she had bruises on her arm and I think on her legs. I was working in the canteen at the time. 10. I said to her, if you don’t feel safe you can meet my step-mum, Danni, and she said she didn’t want to go home and said she wanted to skip school. I asked if she really wanted to skip school and she said yes. I took her back to my step-mum’s house and I introduced Jasmine to Danni. We got to Danni’s by catching the bus. We caught the bus to FLAGSTAFF HILL and then to Danni’s. I had a school iPad and so I took photos of a bruise on one of her cheeks, I don’t recall which one but it was a decent bruise, she had tanned skin so when a bruise showed up it looked pretty bad, you could see the swelling. She had cuts too but I can’t recall where they were or how they happened. The bruises she had on her arm, she said were from where her Foster mum had -- 68 of 86 -- [2025] SASC 187 McDonald J 67 grabbed her. She also said that her mum had cut her hair “forcefully”, I don’t know what that means but that’s what Jasmine said. 12/8/2020, [14] Suicide Relevant to explain her attitude to suicide in the last months of her life. 14. … Jasmine had told me she wanted to commit suicide, she didn’t fully open up about things at home just little bits and pieces. The Defendant submits that in circumstances where there is no detail as what Jasmine is alleged to have uttered, when, and in what circumstances, the evidence is of limited probative value. There are also significant issues as to the credibility of the witness who was herself engaging in self-harm. Evidence to be taken de bene esse. 12/8/2020, [19] Picking up Rubbish Relevant to explain the terms of her relationship with Jenni Wilmott. 19. Another thing I remember about Jasmine is there’s a library outside of the school and there was a carpark, I’d hang out with her whilst she was waiting for her mum or there were other days when her mum was already there and Jasmine would have to pick up rubbish or sticks. People would see her doing this and she’d be so embarrassed that she was having to do these things for her mum. When I asked her why, her response was always, “She makes me, she makes me”, “If I don’t do it I will get hurt”. What’s really sad is that she just didn’t want to be in that family anymore. Jasmine’s Mum would tell Jasmine not to say things to the police and that if she did Jasmine would know what would happen to her… The Defendant submits that the second sentence sought to be adduced is not attributed to Jasmine and is inadmissible pursuant to section 34KA. Evidence to be taken de bene esse. -- 69 of 86 -- [2025] SASC 187 McDonald J 68 12/8/2020, [20] Food The terms of the relationship Deprived food. 20. Jasmine hardly ever ate, she would always come to school hungry. I didn’t know what her food situation was like but I’d ask if she’d eaten or brought food in and she’d be like “no”. I gave her food from the canteen like garlic bread, hash browns. Because I worked at the canteen I got paid $9.00 a day plus hot food that didn’t get sold, I gave this food to Jasmine. One of the ladies worked at the canteen was Tara and she’d encourage me to give the food away rather than throwing it in the bin. - Evidence to be taken de bene esse. 12/8/2020, [22] Clothing The terms of the relationship Deprived clothing. 22. I would ask Jasmine about her clothing and why it didn’t fit properly and she told me that she never went out shopping, she never had new stuff, she had some clothes that fit her but not much. The way I saw it was that her mum was using Jasmine to get money through Foster Care payments. She told me how she had to do everything, she didn’t say what everything was but if she didn’t do it she would then get punished. - Evidence to be taken de bene esse. 30/1/2025, [7] Abuse by accused Relationship with her mother and siblings. 7. Jasmine was scared of getting hurt but was more terrified of her brother copping it. I know this because Jasmine told me. Jasmine told me that Jenni would get angry if Jasmine didn’t do chores properly, if she didn’t finish them in time or - Evidence to be taken de bene esse. -- 70 of 86 -- [2025] SASC 187 McDonald J 69 didn’t do a good job. Sometimes it wouldn’t be over chores, it’d be over other things. 30/1/2025, [8] Welfare check by police Explanation of why Jasmine did not tell the police anything in respect of the ‘Cooper’ incident. It explains the terms of Jasmine’s fear of Jenni Wilmott – the terms of their relationship. 8. Jasmine told me about a time there was a welfare check at Jasmine’s house. I think she told me that she was in the car, Jenni spoke to the police and Jenni gave her daggers and Jasmine wasn’t able to talk to police, Jenni was present, telling the police that everything was fine. Jasmine said that Jenni was standing right there so she couldn’t tell the police what happened. Jasmine was scared of going to the police as she couldn’t do anything to get out of the situation. I think Jasmine told me these things as I opened up to her and made her feel comfortable… Evidence to be taken de bene esse. 30/1/2025, [10] Borrowing clothing at school The terms of the relationship Deprived clothing. 10. Regarding paragraph nine, when we went into the bathroom, Jasmine said she was too scared to ask for clothing, but I didn’t care and I’d ask the office for a t-shirt. I think it was more than a few times. Each time I gave Jasmine a t-shirt she’d give them back at the end of the day. Jasmine told me when I gave her the t-shirt that her mum couldn’t find out. - Evidence to be taken de bene esse. 30/1/2025, [13] Haircut 13. Paragraph eight, the haircut wasn’t even, you could [tell] it wasn’t professionally done. A professional - Evidence to be taken de bene esse. -- 71 of 86 -- [2025] SASC 187 McDonald J 70 The terms of the relationship The punitive haircut. cut would be nice with a good length. Her hair was longer and thicker than mine. Jasmine told me that Jenni had grabbed her hair and cut it with scissors. She didn’t tell me why Jenni had cut it. You could tell that Jasmine hadn’t done it to herself without any care. 30/1/2025, [18] Missing Person The terms of the relationship Explained how Jasmine got to the H’s address as a matter of narrative. 18. When Jasmine and I left school, I think it was at the end of lunch. I knew I [had] to leave then so we wouldn’t get caught by the teachers. Jasmine told me she didn’t want to go home and that’s why we left the school. I thought by taking her to Dad’s there’d be a chance he wouldn’t tell the police… - Evidence to be taken de bene esse. 17/3/2025, [9] Self-harm Relevant to her attitude to self harm in the last aspect of her life. 9. When I asked Jasmine those things, I remember her saying that she ‘thinks about hurting herself, but she doesn’t’. Once she said that there was nothing at home that she could hurt herself with, there were no sharp knives that she could hurt herself with and hide it. I never saw any cut marks or anything like that on Jasmine’s. She also said that she wouldn’t do anything to hurt herself because of her little brother. The way she spoke about him, it was almost like she was his parent, she “mummed” her brother, she loved him so much. I - Evidence to be taken de bene esse. -- 72 of 86 -- [2025] SASC 187 McDonald J 71 truly believed that she wanted to always be there for her brother. Blackwood High School (2018- Year 9- Terms 2-3) 32, 33 MD 7/9/2020, [13]- [14] Relationship with mother & OW 13. Jasmine didn’t really speak much about her home or family but I was aware that she didn’t have a good relationship with her mum; she also said that she had a younger brother called [OW] who was annoying as she had to look after him quite a lot and that he was the favour. 14. Jasmine said that she didn’t get enough attention, and mentioned and older brother [AW] but he was rarely at the house. [13]: The Defendant submits that the witnesses’ evidence that ‘… I was aware that she didn’t have a good relationship with her mum’ is not attributable to any utterance of Jasmine and is inadmissible pursuant to section 34KA. [14]: The Defendant submits that the probative value of this statement is limited absent any further detail or explanation what is meant by the statement and from whom it was that she felt she wasn’t receiving sufficient attention. Absent that detail, the evidence invites speculation as to why Jasmine formed that opinion. The prosecution no longer pursues the application. 7/9/2020, [21]- [23] School dance performance 26/9/2020 Relevant as an explanation of Jasmine’s disappointment, state of mind and relationship with the accused right at the end of her life. 21. Jasmine was really looking forward to taking part in the show as were we all. On that day however 26th September 2020 at the beginning of the day Jasmine told me that she was probably not going to be able to do the show. She told the teacher that she wouldn’t be able to take part in the show and got in trouble because of this. 22. Jasmine had been upset as we were going to be graded on our performance, the teacher allowed her [21]: The Defendant submits that the only part of that is potentially admissible as an out of court statement pursuant to section 34KA is ‘Jasmine told me that she was probably not going to be able to do the show’. [22]: The Defendant submits that there is no statement attributed to Jasmine and that the evidence is inadmissible pursuant to section 34KA. [23]: The Defendant submits that the witness purports to give a paraphrased To be admitted. -- 73 of 86 -- [2025] SASC 187 McDonald J 72 to be graded on her performance during the matinee however so that was good. 23. After this Jasmine confided in me that her mum had had an argument with her that morning and had been smashing dishes, the argument had been because her mother didn’t want her to perform in the show. Jasmine had persisted and her mum had been really angry at her and therefore she was not allowed to take part. Jasmine was really upset and I asked her if that was a normal occurrence. Jasmine said that sometimes her and her mum had arguments but didn’t go into anything further. explanation about what she was told rather than a recollection of the words actually uttered by Jasmine. It is not a ‘statement’ admissible pursuant to section 34KA. Further, the nature of the evidence is such that is probative value is diminished and the prejudice to the Defendant absent the ability to cross-examine is increased. 7/9/2020, [26]- [27] School dance performance 26/9/2020 Relevant to show Jasmine’s punitive isolation at the end of her life. 26. After the performance we had about a week or so left of term and Jasmine didn’t bring anything else up about home and I didn’t ask. I saw her on the last day of term and told her to have a nice holiday. She said that she wasn’t looking forward to it because of her mum, but nothing else. 27. I asked her if I could keep in contact with her but she didn’t have a phone and didn’t give me any contact details. I did have an email address of hers at one point however I no longer have this. [26]: The probative value of this statement is limited absent any further detail or explanation as to what Jasmine meant by ‘because of her ‘mum’. Absent that detail, the evidence invites speculation as to why Jasmine formed that opinion. In those circumstances, the Defendant is prejudiced significantly by her inability to test the evidence in cross- examination, and the statement otherwise has limited value. [27]: - To be admitted. -- 74 of 86 -- [2025] SASC 187 McDonald J 73 16/12/2024, [5] School dance performance 26/9/2020 Relevant as an explanation of Jasmine’s disappointment, state of mind and relationship with the accused right at the end of her life. 5. The dance performance was a matinee which was between lesson 4 to lunch. Jasmine had mentioned to me that she would not be doing the night performance because her Mum and her had an argument in the morning and that she wanted Jasmine to be home that night. Jasmine then said that her Mum had called Connie (Katrina CONSTANOPOULOS) so she was aware why she wouldn’t be able to perform that night as she would be getting an adjusted grade from the lunchtime performance. - To be admitted. 34, 35 LF 7/9/2020, [5]- [6] Accused’s mental health Relevant to show Jasmine’s home life and relationship with her mother. 5. During my conversations with Jasmine she did confide in me a lot and told me quite a few things. Jasmine told me that she was adopted and had some younger siblings. She also said that her mother had a mental health condition which sounded very like bi-polar. Jasmine would tell me that she would be woken up at various times during the night by her mother or her mother partner. She also stated that her mother went through extended periods where she would be wake her up or she would have to look after her siblings and that was why she was often late for school. I can confirm Jasmine was late for school on a regular basis as we had quite a few [5]-[6]: - To be admitted subject to the prosecution identifying the admissible component of the statement. -- 75 of 86 -- [2025] SASC 187 McDonald J 74 morning classes together. I would often see her turning up late for class. 6. Jasmine also mentioned that she wasn’t particularly happy at home but she never went into any details as to why she wasn’t happy at home. 7/9/2020, [9] School Dance Performance 26/9/2020 Relevant as an explanation of Jasmine’s disappointment, state of mind and relationship with the accused right at the end of her life. 9. I also recall another time when Jasmine told me that her mother wasn’t going to let her participate in a dance performance at school even though it went towards her grade. She told her that her mother wasn’t comfortable with it and that she had done this several times before and that she wasn’t happy with her mother. This was only about two weeks before the end of term/close to the time that Jasmine passed away. - To be admitted. 7/9/2020, [12] Suicidal Comment Relevant as an explanation of Jasmine’s disappointment, state of mind and relationship with the accused right at the end of her life. 12. I also remember another incident a couple of weeks before the drama performance. I remember her saying, “I had a fight with my mother and she went crazy at me and between that and my assignment I might as well go and jump off a bridge or something”. - The prosecution no longer pursues the application. -- 76 of 86 -- [2025] SASC 187 McDonald J 75 7/9/2020, [15] Previous Suicidal Threats Relevant as an explanation of Jasmine’s state of mind and relationship with the accused. 15. When she previously made comments about wanting to harm herself it related to different things. On one occasion it related to her having to do an assignment, on another occasion it related to her younger brother however she never elaborated as to why and on another occasion it was after she came back from a medical appointment. - The prosecution no longer pursues the application 7/9/2020, [21] Accused “intense” Relevant to explain her relationship with her mother and her experience of the home. 21. Jasmine described her mother as being an intense woman who would wake her up during the night. She said that one minute her mother was happy the next she was sad. I didn’t think Jasmine had a good relationship with her mother. - To be admitted subject to the prosecution clarifying that it was Jasmine who described her mother as “intense”. 7/9/2020, [25] Jasmine’s siblings Relevant to explain her relationship with her mother and AP’s capacity to make observations of how Jasmine was treated in the home. 25. I also remember Jasmine talking about her other siblings and mother on another occasion when she said that her youngest sibling was loved the most, she was ignored and her older brother could do no wrong. She also said that her step-father wasn’t around that often. She also said that he would also wake he up at strange times of the night as well as her mother. - To be admitted. -- 77 of 86 -- [2025] SASC 187 McDonald J 76 31/1/2025, [4] Accused’s emotional ‘outbursts’ Relevant to explain her relationship with her mother and her experience of the home. In terms of the siblings that Jasmine told me about, she said she had two brothers, one older and one younger. Her mum was an intense person with outbursts of emotion, both positive and negative. She went from having bouts of sadness to elated joy. From my own understanding of bi-polar, that is what it sounded like to me. Jasmine used to have arguments with her mum, and some stressful times with her brothers, sibling conflict. She said that she preferred her little brother, her older brother was ‘heralded’ within the family and could do no wrong. - To be admitted. 31/1/2015, [5] Being yelled at by the accused Relevant to explain her relationship with her mother and her experience of the home. 5. In my original statement I have referred to Jasmine telling me her mum or stepdad would come into her room at different times of the night and wake her. I also remember her saying she used to be yelled at, but I couldn’t say if that was in relation to when she was woken up, or separately. She said that there was intense emotion when she was being yelled at, but she didn’t go into detail about what it was about, other than something like an assignment or family dynamics. Once she told me it was in relation to not looking after her little brother, but I don’t recall any more detail around that. The Defendant submits that in circumstances where the conduct being spoken of by Jasmine is attributed to ‘her mum or stepdad’, and it is not possible now to know which, the evidence is of limited probative value and outweighed by the prejudice it causes to the Defendant (that conduct which cannot reasonably be attributed to her might be so attributed). To be admitted. -- 78 of 86 -- [2025] SASC 187 McDonald J 77 31/1/2015, [6] Late to school Relevant to explain relationship with the accused and school absences. 6. I remember Jasmine being late, probably at least once a week, it was on a regular basis. She was usually around 15 to 30 minutes late, sometimes longer. The latest I can recall her coming in was at about 10am to 10:30am. One morning classes were doubles, starting at about 8:30am. She used to say it was in relation to medical appointments or her little brother (but not what exactly). - To be admitted. 31/1/2015, [8] Suicide/self- harm threats Relevant to explain Jasmine’s relationship with her mother and her state of mind towards the end of her life. 8. Jasmine often referenced suicide or self-harm, but just in the same way other friends joked about it or referenced it, a bit inappropriately but as a joke. However, on that occasion when she said she might as well jump off a bridge, she just seemed absolutely dejected. I remember from what Jasmine said, something had happened with her little brother, she didn’t say what but she and her mum had argued over something to do with him. The family believed her mum was wrong. It was one of the mornings that Jasmine was late. The Defendant submits that the witness is not giving evidence about a statement of Jasmine, but is rather paraphrasing or given evidence of her understanding of the effect of what was being conveyed to her. The Defendant submits that is not a statement admissible pursuant to section 34KA. To be admitted subject to the prosecution identifying the admissible component of the statement. 31/1/2015, [9] Dance Performance Relevant as an explanation of Jasmine’s disappointment, 9. In relation to the performance, Jasmine was in the chorus, but she had a soloist role, a speaking moment that she was especially selected for. Jasmine loved dancing and she was very, very upset that she couldn’t be involved. All our friendship group was - To be admitted. -- 79 of 86 -- [2025] SASC 187 McDonald J 78 state of mind and relationship with the accused right at the end of her life. involved. It was only a couple of days before the performance that her mother told her that. I remember the dance teacher wasn’t very happy when Jasmine told her. All she could say was that mum wouldn’t let me and she didn’t tell me why. 31/1/2015, [11] Dance Performance Relevant as an explanation of Jasmine’s disappointment, state of mind and relationship with the accused right at the end of her life. 11. When Jasmine told me that her mother wasn’t going to let her participate, I remember that she also said that her mum would either not let her participate in extracurricular activities, or would let her but only to a point. I remember her saying something like “she always pulls me out last minute or she never lets me”. Jasmine was angry, it was an angry rant about how her mother treated her in relation to that. She said, “mum never lets me do anything”. Jasmine didn’t do any extracurricular activities while she was at our school. - To be admitted. 31/1/2015, [14] Conversations about family life Relevant to her relationship with Jenni Wilmott. 14. On other occasions, Jasmine would be happy. More often than not though she was quiet and unwilling to talk about things other people were talking about. She would join in if a fun conversation was taking place, but she didn’t join in if people were talking about their family or what they did on the weekends, she was private about those sorts of things. Jasmine used to say, “I’m leaving so I won’t say things I regret” and not comment - The prosecution no longer pursues the application. -- 80 of 86 -- [2025] SASC 187 McDonald J 79 any further. She would also sometimes make that comment in response to light teasing, which she got from all of us at times, we teased each other. She didn’t adjust to light teasing well. I couldn’t say how often she made that comment. SM (‘AM’) 36, 37 SM 15/1/2025, [49] Food/Hunger Relevant to their relationship and food deprivation. I used to hear Jasmine complain about being hungry to Jenni but Jenni didn’t seem to listen. Jasmine would tell me that she was so hungry and she didn’t like hurting me, but she knew that I couldn’t help her and that she had to do what Jenni said. - To be admitted. 15/1/2025, [74] Assaults/ Punishment Relevant to their relationship – that it was marked by violence. I remember the last time I saw Jasmine alive was just before I was removed from Jenni’s care. I remember having a conversation with Jasmine where I asked her why she didn’t ever fight back or try and run away. Jasmine told me that if she fought back she might not make it alive. These are the words I remember her saying. It never occurred to me that Jasmine might take her own life. - To be admitted. 30/1/2025, [6] Eating rotting food because she was hungry Relevant to terms of 6. In paragraph 41 of my original statement, Jenni would call Jasmine a ‘filthy pig’, this started after Jasmine ate rotten food. In paragraph 40 I said ‘rotting food’ which was raw meat, she would do it because she was - To be admitted. -- 81 of 86 -- [2025] SASC 187 McDonald J 80 relationship and food deprivation. hungry, that’s what Jasmine said. Always rotting meat, I could smell it. Jenni would tell me to find the source of the smell and then I would have to find it, this was easy as it stank of death. Jasmine would smell like death because she was eating rotting food or had rotting food in her bedroom. Police 38 MASELLA, Candace 17/8/2020, [41] See also Annexure A (interview 29/7/2014), Tx 113-132, 797- 811 Concerned about her mother not being aware she was being interviewed Relevant to her relationship with her mother – she was controlled and fearful of her. 41. Jasmine was very concerned about her mother not being aware that I was speaking to her. I explained to Jasmine and the school staff that I would speak to her mother as soon as possible to inform her that I had spoken to Jasmine. Interview: Tx 113-132: • A: So is this- Ms Purgacz who organised this? • Q: Okay. It’s the teachers at the school and I’m- I’ll be honest with you, as well, so my job is to tell you the truth, just like it’s your job to tell me the truth, ok. • A: I’m gonna get stressed out. I get--- • Q: Yeah. • A: ---very stressed. • Q: It’s okay and I don’t want to stress you out and you’re not in any trouble. The Defendant submits that there is nothing unusual being concerned that their mother know they are speaking to the Police. Absent any detail as to why Jasmine was concerned in this way invites unfair speculation. In those circumstances, it is submitted that the evidence is more prejudicial than probative. The entire interview is to be tendered by consent. -- 82 of 86 -- [2025] SASC 187 McDonald J 81 • A: (indecipherable) when something like this happens, the way my mum is communicated (indecipherable). • Q: You mum has communicated---- • A: No. • Q: --- did you say? • A: I’m getting very stressed because normally my mum would know that- that something’s happened. Interview Tx 797-811: • Q: Okay. So does anyone ever tell you not to tell people what happened? • A: Well, Ms Purgacz said to me- like, sometimes she- when I have bruising somewhere, she calls me into her room or the red room and says, “Whatever stays in this rooms doesn’t go out- doesn’t go to your mum”, and I feel like that’s very inappropriate because I know that in our family, we not keep secrets. • Q: Okay. No, that’s good. That’s good. • A: And one time, she called me into the red room and I just found it extremely inappropriate and -- 83 of 86 -- [2025] SASC 187 McDonald J 82 embarrassing for me and stressful for me because I came into school. They called me into the room and then they started asking me all these questions like, “How’s things at home? Are you okay at home? Are you safe at home? Is anything wrong at home?”, and I- for the rest of the day, I was extremely stressed. And, like, yesterday, mum knew that I was angry and that I didn’t want to go to school. I had— Family Friends 39 HOFFMAN, Wayne 3/10/2020, [39] Jasmine being forced to do homework outside in the cold Relevant to terms of her relationship and experience of home life. 39. During the same visit [late winter 2013] I could not see Jasmine. I asked Jenni where Jasmine was and she told me that Jasmine was on the balcony as she had not finished her homework. It was a freezing cold day and I went out onto the balcony. Jasmine was wearing a knitted jumper, jeans and shoes. Jasmine said hello and I asked her what she was doing and why she wasn’t doing her homework in her room. She told me she had to do it on the balcony and she was not allowed inside until she had finished. When Jenni served lunch she took Jasmine’s food outside for her to eat. Jasmine did not come inside at all while we were at the house. It was clear that The Defendant submits that the proximity of this statement to Jasmine’s death is so distant that it is of very little probative value. To be admitted. -- 84 of 86 -- [2025] SASC 187 McDonald J 83 Jasmine knew she was not welcome inside. Respite Carers 40 WOODCOCK, Julia 14/8/2020, [17] (see also [56]) Jasmine was not allowed to talk freely about her father. Relevant to show that she was being fed stage lines. 17. She spoke to me once about her step dad I can’t remember the memory but it was happy and she told me so, then cut off saying 1 can’t talk about him. The probative value of this statement is limited absent any further detail or explanation as to why Jasmine ‘can’t talk about him’. There are many reasons as to why she might not want to talk about him (including, for example, that he was abusive towards her). Absent that detail, the evidence invites speculation as to why Jasmine couldn’t talk about him. In those circumstances, the Defendant is prejudiced significantly by her inability to test the evidence in cross- examination, and the statement otherwise has limited value. To be admitted subject to the prosecution identifying the admissible component of the statement. 14/8/2020, [43] Accused being angry Relevant to relationship. 43. Jasmine would talk to me about what was happening at home but not in detail so Jasmine would say things like “mum’s cross” or being angry. She spoke of her new sister and was upset when she left as mum wouldn’t let her see again as “she was too disruptive”. The first time Jasmine came into my care I talked to her about trusting and respecting each other, we did a lot of walking and talking. - To be admitted. -- 85 of 86 -- [2025] SASC 187 McDonald J 84 14/8/2020, [53] Accused being angry Relevant to relationship. 53. I only ever saw Jasmine cry on two occasions. One occasion was when mum was convinced that Jenni had hidden the remote control and was having a meltdown about it, Jasmine later told me she didn’t know where it was and hadn’t hidden it. The second time was when I picked up Jasmine up from school and she was upset about being bullied at school. The Defendant submits that the final sentence of paragraph [53] ought also to be led pursuant to section 34KA. To be admitted. 41 BUTLER, Hillary 16/10/2020, [18]-[19] Respite Care Relevant to relationship. 18. Whilst at the park Jasmine played with 4 year old and pushed her on the swing and helped her with other activities. Jasmine told me she enjoyed coming to my house. During this visit Jasmine had quite a warm and friendly demeanour towards my daughters and I. Jasmine was also talking more and was laughing. 19. I recall asking Jasmine about her family and what she did at home. Jasmine told me she spent most of her time in her room. Jasmine did not really offer much information about her family apart from saying they got along and that she had a step dad. [18]-[19]: - To be admitted. -- 86 of 86 --