R v WILMOTT (No 9) Criminal Trial by Judge Alone [2026] SASC 110

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: 19/05/2026 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 9) Criminal Trial by Judge Alone [2026] SASC 110 Judgment of the Honourable Justice McDonald 30 July 2026 COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - NOTICE AND DISCLOSURE TO ACCUSED CRIMINAL LAW - PROCEDURE - WITNESSES - POWERS OF JUDGE - LEAVE TO REOPEN CASE AND CALL WITNESSES - GENERALLY CRIMINAL LAW - PROCEDURE - WITNESSES - CROSS-EXAMINATION CRIMINAL LAW - PROCEDURE - DISCLOSURE OBLIGATIONS The accused is charged with the offence of manslaughter, and in the alternative, criminal neglect, failing to provide food, failing to provide accommodation, and two counts of aggravated assault causing harm. The prosecution alleges that the accused’s alleged physical, mental and emotional abuse towards her adoptive daughter was a substantial cause of her death. The accused has made two applications: an application for recusal on the basis of apprehended bias, and an application for a mistrial on the basis of the prosecution’s non-disclosure. The application for recusal arises from the ruling that granted the prosecution leave to reopen the evidence-in-chief of MW, the deceased’s adoptive father. The prosecution had not raised an important issue in the evidence-in-chief, which had been mentioned in MW’s affidavit. The accused argued that alerting the prosecution to this oversight and then permitting the prosecution to reopen evidence-in-chief gave rise to a perception of apprehended bias. -- 1 of 26 -- The application for a mistral arises from the prosecution’s non-disclosure and how this non- disclosure informed the conduct of the defence case. The non-disclosure revolved around an incident where the police attended at the home of the deceased’s friend. There are inconsistencies between the lay witnesses and police officers who were present on that day. The accounts varied as to whether the attending police officers entered the home or stayed in the doorway. In evidence-in-chief, one of the police witnesses described entering the home when her affidavit had been silent on the topic. In a proofing with the prosecution, the witness had given an account consistent with her evidence in court, however an addendum affidavit had not been obtained disclosing this information. The accused brought the application for mistrial on the basis that the defence was running its case on the assumption that full disclosure had been made. It was argued that, had there been appropriate disclosure, the defence would have cross-examined the police officers differently. Cumulatively, the accused contended that the difficulties were compounded for the defence in the allowing of MW’s evidence to be reopened, and the non-disclosure by the prosecution. Held: 1. The application for recusal is refused. 2. The application for a mistrial is refused. Criminal Law Consolidation Act 1935 (SA) ss 13, 14(1), 30, 20(4)(b); Crimes Act 1900 (NSW) ss 61O(2), 61M(2), 86(1)(b), referred to. Al-Bayati v The Queen [2022] NSWCCA 2, distinguished. Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 218; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; Johnson v Johnson (2000) 201 CLR 488; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 (2021) 284 FCR 455; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509, discussed. -- 2 of 26 -- R v WILMOTT (No 9) [2026] SASC 110 Criminal: Ruling re application for a mistrial and recusal 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 accommodation4 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.6 Each of the charged offences arise out of allegations about Ms Wilmott’s conduct towards Jasmine, up until Jasmine’s death by suicide. The Information particularises that the offences took place between 1 May 2013 and 7 October 2018, the former being the date on which Jasmine’s adopted father left the household. 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, verbal abuse, social isolation, sustained humiliation and the deprivation of food, liberty and suitable accommodation. It is said that these acts and omissions amounted to a failure on the part of Ms Wilmott to provide the standard of care required from a reasonably competent carer. It is the prosecution case that Ms Wilmott’s conduct towards Jasmine was a substantial cause of Jasmine’s death. 3 Ms Wilmott has made two applications. These are an application that I recuse myself from continuing to preside over the trial and an application for a mistrial.7 Recusal application 4 It is convenient and logical to deal with the application for recusal first. Ms Wilmott has elected that the trial be heard by a judge alone without a jury. It follows that I will be required to determine if the prosecution have proved the case against Ms Wilmott. 1 Criminal Law Consolidation Act 1935 (SA) s 13. 2 Criminal Law Consolidation Act 1935 (SA) s 14(1). 3 Criminal Law Consolidation Act 1935 (SA) s 30 (Version 13.8.18-5.9.18 as at the date of the offence). 4 Criminal Law Consolidation Act 1935 (SA) s 30 (Version 13.8.18-5.9.18 as at the date of the offence). 5 Criminal Law Consolidation Act 1935 (SA) s 20(4)(b). 6 Ms Wilmott was also previously charged with the offence of deception, however a nolle prosequi was entered on 6 March 2025 in relation to that charge during the course of the voir dire. 7 Made orally by Mrs Shaw KC in Court on 27 January 2025, T4987. -- 3 of 26 -- [2026] SASC 110 McDonald J 2 5 The basis of the application for recusal comes from a decision I handed down on 23 January 2026,8 to permit the prosecution to reopen the evidence-in-chief of Jasmine’s adopted father, MW. 6 For current purposes I do not propose to repeat in detail the reasons that I provided in support of that decision. 7 Instead, I set out the salient points that are necessary in order to understand my ruling on the application for recusal. 8 As part of the prosecution case, evidence has been led that Jasmine told people, and documented in a journal, that she was the subject of various forms of abuse by MW. As I understand it, it is the prosecution case that the claims were false and resulted from Ms Wilmott feeding Jasmine misinformation about her father. 9 MW is a prosecution witness who commenced giving evidence on 21 January 2026. He is an important witness for both parties. 10 During his evidence-in-chief no questions were asked of MW about whether he had ever been violent or abusive towards Jasmine. There was however a body of evidence capable of establishing that MW had a positive relationship with Jasmine, namely: a. They had a great relationship. b. She was a beautiful little girl. c. It was a normal father-daughter relationship. d. MW did not approve of the punishments that Ms Wilmott imposed – he thought that they were too harsh. e. MW did not approve of the different treatment of the boys compared to the treatment of Jasmine. f. MW and Jasmine played hide and seek. Jasmine responded well to hide and seek. g. MW took a photo of Jasmine at Cobbler Creek as a souvenir of her, as he knew that he would leave soon. h. MW and Jasmine played chasey. She responded well to chasey. 11 Mrs Shaw KC commenced her cross-examination of MW shortly before the morning break on 22 January 2026. Between that time until the luncheon 8 T4858, FDN 778. -- 4 of 26 -- [2026] SASC 110 McDonald J 3 adjournment, Mrs Shaw KC made significant progress into her cross-examination, covering a number of topics. 12 During the course of the cross-examination, it occurred to me that Ms Litster had not raised the issue of whether MW had ever abused or been violent towards Jasmine. 13 Given the importance of this evidence, and the fact that from the outset of the trial Ms Litster made it plain that the prosecution case was that the allegations were false, I acted on the assumption that it was an oversight of counsel in failing to raise this topic, and consequently that it was inevitable that at some point, realising the oversight, there would be an application by Ms Litster to ask further questions of MW. The later that the application came, the more likely it would cause disruption, inconvenience and potentially prejudice to Ms Wilmott. 14 Shortly before the luncheon adjournment, I raised the issue with Ms Litster. I did so in the following terms:9 This witness has not been asked about those matters. On what basis will you be inviting me to find that those things did not happen absent this witness denying them? I’ll just leave that for you to consider. 15 When the Court resumed after lunch, Ms Litster made an application to reopen the evidence-in-chief of MW to ask questions about whether he had ever mistreated or abused Jasmine. 16 The particular passage that Ms Litster sought to lead from MW’s affidavit was: “I never maltreated Jasmine. I never abused her. I never physically punished her or spoke to her aggressively, manipulatively or punitively”.10 17 Ms Litster was candid about the basis upon which she made the application in that she did not suggest that it was a complete oversight, as I had assumed. It would seem that she had erroneously come to the view that the evidence of MW had been left in such a state that it inferentially refuted the allegations. On reflection, she realised that it did not and sought to remedy the situation at the first reasonable opportunity. There was no suggestion that this was some sort of tactical decision on the part of the prosecution. 18 In opposing the prosecution’s application to reopen MW’s evidence-in-chief, Mrs Shaw KC suggested that the approach that I had adopted in alerting Ms Litster to her apparent oversight raised the spectre of apprehended bias. That is, that it had the potential to take on the appearance that I was endeavouring to assist the prosecution by “filling the gaps” in their case. 9 T4834-4835. 10 T4838. -- 5 of 26 -- [2026] SASC 110 McDonald J 4 19 At that point Mrs Shaw KC was not instructed to make the application that I recuse myself, but rather relied upon the issue as a basis for me to rule against the prosecution on their application. 20 In determining to allow the application to reopen MW’s evidence-in-chief, I observed that if, in due course, there was an application for me to recuse myself from hearing the remainder of the trial on the basis of my ruling in favour of the prosecution, I would determine that issue at the time that the application was made.11 21 Mrs Shaw KC then made such an application. That application was made in the context of an application for a mistrial based on the combination of the sequence of events that took place during the course of MW’s evidence, as well as the issue that I will come to, involving the prosecution failing to comply with their duty of disclosure in relation to the evidence of a former police officer Constable Holden. The test for apprehended bias 22 As I have said, the basis of the application that I recuse myself is apprehended bias. 23 It is well settled that the test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issues to be decided. 24 As the High Court explained in Ebner v Official Trustee in Bankruptcy:12 … That principle gives effect to the requirement that justice should both be done and seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. (Citations omitted; Emphasis in original) 11 T4844. 12 (2000) 205 CLR 337 at [6]-[7]. -- 6 of 26 -- [2026] SASC 110 McDonald J 5 25 The application of the criterion was identified to involve a three-step process that has been reiterated in the most recent High Court exposition of the principles applying to a consideration of the question of apprehended bias in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.13 It requires:14 … (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair- minded lay observer. 26 In their joint judgment, Kiefel CJ and Gageler J emphasised the importance of the analysis being undertaken from the perspective of a lay person. Their Honours explained:15 … In undertaking that assessment, “it is the court’s view of the public’s view, not the court’s own view, which is determinative”. The hypothetical fair-minded lay observer is a deliberate and necessary construct which tethers the court’s analysis to the ultimate purpose of maintaining public confidence in the impartiality of the judicial system. The construct provides the “standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system”. (Citations omitted) 27 Attributes of a hypothetical fair-minded observer have been the subject of much judicial consideration. 28 The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made,16 as well as to have knowledge of the circumstances leading up to the decision.17 The observer is assumed to have knowledge of the relevant legal framework, the identity and nature of the decision maker, the nature of the decision and issues in question, the relevant facts and circumstances leading to the decision and the impugned conduct.18 29 The observer is necessarily reasonable and neither complacent or unduly sensitive or suspicious.19 13 (2023) 279 CLR 148. 14 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 at [38]. 15 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 at [45]. 16 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at [68]. 17 Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 519. 18 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 (2021) 284 FCR 455 at [91]. 19 Johnson v Johnson (2000) 201 CLR 488 at [12], [53]. -- 7 of 26 -- [2026] SASC 110 McDonald J 6 30 A finding of apprehended bias is not to be reached lightly; it must be firmly established.20 A vague sense of unease or disquiet is insufficient.21 31 Applying those considerations to the circumstances of this case, the starting point is firstly the identification of the factor which it is said might lead a trier of fact to resolve the question other than on its legal and factual merits. 32 Here, that factor must be that I raised an obvious omission or oversight by the prosecution in the evidence that was led from MW, and permitted the prosecution to reopen his evidence-in-chief. 33 The second step in the process is to identify the logical connection between that factor and the apprehended deviation from deciding the question on its merits, that is, the question of whether the prosecution has proved its case against Ms Wilmott beyond reasonable doubt. The assessment of the reasonableness of that apprehension must be made from the perspective of a fair-minded lay observer. 34 It cannot be the case that in a trial by Judge alone, particularly in a trial of a lengthy duration, there cannot be scope for a Judge to raise with counsel an apparent oversight or obvious mistake in the approach adopted. Equally at times a Judge may ask a question, the answer to which favours one or other of the parties. 35 The hypothetical fair-minded observer would appreciate that counsel, although striving to do their best, will on occasions make a mistake and it is in the interests of justice, if at all possible, for that to be remedied with a minimum of delay and interruption. The overall interests of justice may require a trial Judge to raise the issue albeit that it may result in one of the parties losing a forensic advantage that they may otherwise have obtained. 36 The hypothetical fair-minded observer would consider not only the particular judicial conduct in question, but also that conduct in the context of the manner in which the Judge has generally presided over the trial, and consider whether there has been an overall pattern of involvement that disadvantages or prejudices one of the parties. No such complaint has been made. 37 The fair-minded observer would also be endowed with an understanding that, on occasion, the interests of justice will require making a decision that will favour one party over another. Al-Bayati v The Queen 38 During her submissions, Mrs Shaw KC made reference to and drew an analogy between the decision of New South Wales Court of Criminal Appeal in 20 Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at [90]. 21 Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 218 at [40]. -- 8 of 26 -- [2026] SASC 110 McDonald J 7 Al-Bayati v The Queen22 and the current application. Given the reliance placed on this decision, it is necessary that I say something about it. 39 Mr Al-Bayati had been charged with offences arising out of his conduct in relation to a three-year-old child. He had faced trial twice. At the first trial the jury was unable to agree on their verdicts, resulting in the need for a second trial. 40 At the commencement of the second trial, Mr Al-Bayati was charged with the offences of taking a child under the age of 16 years, with the intention to obtain an advantage,23 and aggravated committing an act of indecency towards a child under the age of 10 years.24 41 It was only during the course of legal argument, after it was repeatedly suggested by the trial Judge, that the prosecution sought to lay a third charge of indecent assault.25 The trial Judge granted leave to the prosecution to amend the indictment to include the new charge. It was this sequence of events that was the basis of a complaint of apprehended bias. 42 The background to the amendment of the indictment provides important context to the concerns raised about the conduct of the trial Judge in Al Bayati v The Queen. 43 Although this was the second trial, the prosecution had never previously charged the offence of indecent assault. The new indictment contained the same charges upon which the jury had been unable to reach a verdict in the first trial.26 44 The empanelment of the jury was preceded by a legal argument about the admissibility of evidence that Mr Al-Bayati touched the child on the bottom. Central to the argument was the fact that the offence of indecent assault had not been charged. Mr Al-Bayati’s counsel argued that, in those circumstances, the evidence was “inadmissible, irrelevant and prejudicial”.27 It was in that context that the trial Judge raised the option of laying a charge of indecent assault, which would result in the impugned evidence becoming relevant. His Honour first introduced the topic by saying:28 I don’t think that’s a problem here. In theory, the Crown could shove an indecent assault on you right now, subject to leave of the Court. (Emphasis in original) 22 [2022] NSWCCA 2. 23 Crimes Act 1900 (NSW) s 86(1)(b). 24 Crimes Act 1900 (NSW) s 61O(2) (Repealed in version 01.12.2018). 25 Crimes Act 1900 (NSW) s 61M(2) (Repealed in version 01.12.2018). 26 Al-Bayati v The Queen [2022] NSWCCA 2 at [4]. 27 Al-Bayati v The Queen [2022] NSWCCA 2 at [37]. 28 Al-Bayati v The Queen [2022] NSWCCA 2 at [38]. -- 9 of 26 -- [2026] SASC 110 McDonald J 8 45 The trial Judge then asked the prosecutor to identify how the evidence was otherwise relevant. In the course of that exchange, his Honour said:29 … I don’t decide what charges are put on an indictment, your office does. The mere fact that you prosecuted a trial before on this indictment doesn’t mean you can’t change it. The DPP changes indictments day in day out, last second, three years later, four year[s] later. You don’t need matters to go through committal. (Emphasis in original) 46 There were other exchanges resulting in the trial Judge raising the option of laying the additional charge on four separate occasions. His Honour also referred to the absence of such a charges using intemperate language such as “weird” and “seems bizarre”.30 47 The following day the prosecutor made an application to amend the indictment to include the additional charge. The Court of Criminal Appeal observed:31 A review of the record leaves no room for doubt that his Honour’s interactions with the parties led to the Prosecutor’s application to amend the indictment and seek a direction from the Director for an ex officio charge of indecent assault. 48 The trial Judge granted the prosecution application and provided reasons. During the course of which, his Honour said:32 It is not really in the interests of justice to penalise incompetency of bill finding – which to be perfectly frank, it seems to me that there was a degree of incompetent bill finding for a long time … inevitably the evidence of the indecent assault strikes me – in the way it was argued yesterday, it would have been inadmissible. … rather than prosecute the matter incompetently, the Crown have made the correct decision to find a bill for what should have been found probably years ago and certainly a long time prior to yesterday. … … … It results in the matter being prosecuted properly and the evidence being admitted properly and saving the artificial decision that I was about to make of excluding evidence that should have been admitted in the trial but was not going to be because the bill and the indictment was incorrectly pleaded. … (Emphasis in original) 29 Al-Bayati v The Queen [2022] NSWCCA 2 at [40]. 30 Al-Bayati v The Queen [2022] NSWCCA 2 at [42]-[43]. 31 Al-Bayati v The Queen [2022] NSWCCA 2 at [48]. 32 Al-Bayati v The Queen [2022] NSWCCA 2 at [50]. -- 10 of 26 -- [2026] SASC 110 McDonald J 9 49 The effect of the trial Judge’s conduct was to suggest the laying of the additional charge, which would have the effect of legitimising the prosecution’s attempts to lead the impugned evidence. As the Court observed:33 It is clear beyond dispute that the choice of charges to be laid against an accused person lies with the prosecuting authority and not with the court. It is open to a Judge to express an opinion as to the appropriate charges although to do so is fraught with danger. … 50 The Court found that the combined effect of the conduct of the trial Judge was such that the reasonable observer aware of the facts, circumstances and background of the case might have apprehended that his Honour might not bring an impartial mind to bear upon the issue of whether leave should be granted to allow the application to amend the indictment.34 The Court explained:35 … the interventions of the trial Judge “crossed the line” and departed from his role to adjudicate impartially upon the evidentiary dispute that was presented by the adversaries to the litigation. He provided advice to the Prosecutor as to what his Honour perceived to be an easy remedy to the valid and well-founded objection taken to the evidence. The result was that the decision to grant leave to amend the indictment, and to add the indecent assault charge on the applicant’s re-trial, many years after the proceedings were commenced, was tainted by an apprehension of bias on the part of the decision maker. 51 Although each determination of the question of apprehended bias must be considered on the unique factual matrix of an individual case, it is instructive to draw a comparison between Al-Bayati and the matters relied upon by Ms Wilmott. 52 In Al-Bayati it was the trial Judge who introduced the suggestion/remedy of the laying of an additional count many years after the charges had been laid, after the first trial, and in circumstances in which it was accepted that it was only as a consequence of the trial Judge’s persistence that the prosecutor sought instructions from the Director to lay the charge. 53 Ms Litster opened on MW not behaving abusively towards Jasmine, and that has remained the prosecution case throughout. This was not a suggestion that had the effect of directing the prosecution down a path that they might not have otherwise contemplated. 54 In considering the fair-minded lay observer’s perception, the manner and context in which the judicial officer conducted themselves is also a relevant consideration. In Al-Bayati there were repeated exhortations to the prosecution, in circumstances in which there appears to have been a reluctance to adopt the suggested course. It is also apparent that in making the suggestion the trial Judge was motivated to cure what he saw as an impediment to the prosecution leading the impugned evidence. There is no suggestion that there is any such alternative purpose was present in this case. 33 Al-Bayati v The Queen [2022] NSWCCA 2 at [51]. 34 Al-Bayati v The Queen [2022] NSWCCA 2 at [61]. 35 Al-Bayati v The Queen [2022] NSWCCA 2 at [64]. -- 11 of 26 -- [2026] SASC 110 McDonald J 10 55 Finally, the nexus between the relevant judicial conduct and the “decision” which it may be perceived is tainted by bias, was far stronger in Al-Bayati. This relates to the second step of the QYFM three-step process. That is “[the] articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits”.36 56 In Al-Bayati the decision in question was the decision to permit the application to amend the indictment. In circumstances where effectively the application was made at the trial Judge’s instigation, the logical connection is clear. The conduct relied upon in this case does not have the same obvious logical connection with the decision that is said may be perceived to be infected by bias, namely the decision as to whether the prosecution have proved the case against Ms Wilmott. 57 In my view the test for apprehended bias has not been satisfied. There is no logical connection between the conduct relied upon and a suggestion that it might lead a fair-minded lay observer to perceive that the case may be determined on anything other than its merits. 58 I decline to recuse myself from presiding over the trial. Mistrial application 59 I turn then to the application for a mistrial. This application is primarily based on evidence that relates to what has loosely been referred to as ‘the JH incident’. In summary, the basis for the application for a mistrial is non-disclosure by the prosecution and the manner in which the non-disclosure informed the conduct of the defence case. 60 It is necessary for me to provide a brief synopsis of the evidence to put this application and the submissions advanced by the parties into their proper context. The evidence of JH, Danielle Giuretis and DH 61 In 2018 Jasmine attended at Aberfoyle Park High School where she was befriended by JH, another student attending the school. 62 It is prosecution case that over time, as a friendship developed between the girls, Jasmine began to confide in JH. Amongst other things she told JH about being forced to do chores at home to the point that she felt like she was being “treated like a slave”37 and that she was worried that, as her younger brother became older, he would be treated like her. Jasmine told JH that whilst the police had undertaken welfare checks, she had not said anything about what was going on because Ms Wilmott would watch her. 36 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 at [38]. 37 T3978. -- 12 of 26 -- [2026] SASC 110 McDonald J 11 63 JH also described seeing Jasmine with injuries and bruises. She said that she saw bruises on her face, on her arms and legs and at one stage on her stomach. JH gave evidence that she would sometimes ask about the injuries and initially Jasmine would say that she had just bumped herself or it was an accident. Subsequently, over time, Jasmine would tell her that Ms Wilmott had grabbed or scratched her, but she would not go into any details of why or how this happened. 64 It was JH’s evidence that although she saw Jasmine with bruises a number of times, the last was the worst. On this occasion, on 26 June 2018, she saw Jasmine before school in the toilets. Jasmine was very upset. She started crying and told JH that Ms Wilmott had punched her and cut her hair very short. 65 JH said that it was obvious that Jasmine’s hair had been recently cut and she also noticed a bruise to Jasmine’s right cheek, which covered the whole side of her face. It appeared that Jasmine had attempted to cover it up with makeup and by the way in which she had styled her hair. 66 JH gave evidence that Jasmine told her that she was scared to go home and wanted to leave school. A plan was hatched that involved the girls meeting up and leaving school together at lunch time. 67 They followed through with that plan and went to an address that JH believed to be the home address of Danielle Giuretis, who at that time was JH’s father’s girlfriend.38 68 It was JH’s evidence that when they arrived, Ms Giuretis was already home and she made a telephone call to JH’s father, DH. In due course DH joined them at the house, and eventually the four travelled from there to DH’s unit in Salisbury. 69 I pause here to observe that there are significant differences between the witnesses about the chronology and timing of events, and the details of what took place at Ms Giuretis’ house and DH’s unit. For current purposes it is not necessary that I canvass or resolve these inconsistencies. 70 Each of the witnesses gave evidence about observing Jasmine with injuries and described her making complaints about Ms Wilmott’s behaviour towards her. 71 In addition to the evidence that JH gave about seeing injuries to Jasmine at school, she said that she had a further opportunity to observe the injuries at Ms Giuretis’ house. She described seeing bruising to Jasmine’s leg, hips and stomach. She said that it looked like Jasmine had been kicked or stomped. JH went into considerable detail in describing the bruising that she saw on Jasmine. She recalled Jasmine removing aspects of her clothing to show the bruising to 38 The evidence was that it was not in fact Ms Giuretis’ home address, however she led others to believe that it was. For ease of reference, I will refer to it as Ms Giuretis’ house. -- 13 of 26 -- [2026] SASC 110 McDonald J 12 herself, DH and Ms Giuretis, although at some stage DH absented himself for privacy reasons. 72 JH gave evidence that during the course of these events, she took photographs of the injuries using her iPad. 73 JH also gave evidence about what Jasmine told her about how she sustained the injuries. Although this evidence was the subject of a s 34KA application, it was agreed that I should hear the evidence de bene esse. 74 In summary, JH said that Jasmine told her that Ms Wilmott had found out that she had accessed social media which led to her hitting and punching her and cutting her hair. Jasmine said that she was scared to go home because she always got into trouble for the smallest things, and she no longer felt safe. 75 Ms Giuretis also gave evidence about seeing Jasmine with injuries, and of Jasmine providing an account of how she came to have the injuries. The injuries that she described seeing was bruising to the left side of Jasmine’s face, around her jaw and on her right side from her cheekbone around by her temple to her jawline. She said that this side of her face was quite extensively bruised and there was a lot of swelling around the cheekbone. In addition to this, Ms Giuretis said that when Jasmine took her jumper off, she saw that both of Jasmine’s upper arms were bruised and when Jasmine lifted her school skirt she saw that her thighs, and the lower part of her torso, were completely covered in bruises. Ms Giuretis described the bruises on her back and stomach as being clustered. 76 It was Ms Giuretis’ evidence that Jasmine told her that her mother had beaten her the night before and she did not feel safe going home. Jasmine explained that Ms Wilmott had repeatedly punched her in the face, punched her to the arm and had hit her that many times that she had fallen onto the floor, whereupon Ms Wilmott had proceeded to kick her on her legs and all over her body. Jasmine told Ms Giuretis that the catalyst for this had been Ms Wilmott finding out that she had a secret Facebook account. She said that whilst Ms Wilmott had been violent before, it had not been to this extent. Again, this evidence was the subject of a s 34KA application, and it was agreed that I hear it de bene esse. 77 The third and final witness to describe observing injuries to Jasmine was DH. He said that he drove to Ms Giuretis’ house after he had received a telephone call from his daughter. 78 DH described seeing a bruise to the side of Jasmine’s face. He described that it covered part of her eye and there was a bruise on the right side of her face. He said it was on her cheek and extended to the eye. 79 DH also described seeing bruises around Jasmine’s hip. He said it stood out more than the bruises on her face because the skin in that area was a lighter colour. He said there were a couple of bruises that were the size of a cricket ball. DH was -- 14 of 26 -- [2026] SASC 110 McDonald J 13 conscious of not making Jasmine feel uncomfortable and left the room for a period to enable Jasmine to show other bruising to the two females. 80 DH gave evidence of the explanation that Jasmine gave for the bruises. She said that they were caused by Ms Wilmott after she found out that Jasmine had social media on her phone. She described Ms Wilmott kicking her to the torso and upper thighs whilst she was on the ground. As with the evidence of what Jasmine told JH and Ms Giuretis, this account is the subject of a s 34KA application, and I heard the evidence de bene esse. 81 The evidence of JH, Ms Giuretis and DH is obviously important evidence on the prosecution case. If accepted, it is evidence that is capable of establishing that a little more than three months prior to Jasmine’s death, Ms Wilmott had violently assaulted her and put her in such fear that she was too frightened to return home. It is the only occasion in 2018 when Jasmine is said to have been observed with bruising. 82 It goes without saying that an assessment of the credibility and reliability of these three witnesses will be central to a determination of whether some or all of their evidence can be relied upon. 83 That assessment will not only involve a consideration of the inconsistencies between the three witnesses, but also of the inconsistencies between these witnesses and the two police officers who attended at DH’s unit later that evening. 84 Let me turn then to the evidence of the events at DH’s unit. 85 Although there are some differences in their accounts of how they got there, it is common ground that DH, Ms Giuretis, JH and Jasmine all ended up at the unit. 86 It was JH’s evidence that when they got there, her father put on a movie and they were all in the loungeroom watching the movie when the police arrived a short time later. She said that when the police arrived one of them entered through the front door, although no further than the first step, to see if Jasmine was there and to take Jasmine with them. The police were saying that they were looking for Jasmine because she was the subject of a missing person’s report. She described the police taking Jasmine out to the car with them. At one point she heard the police say that Jasmine was in the police car. This caused her to move closer to the front door. She could not hear anything that Jasmine said to the police once Jasmine was out of the unit. 87 It was Ms Giuretis’ evidence that when she and the others arrived at the unit, they put some K-Pop songs on the television for Jasmine to listen to and then they telephoned the police. The police arrived shortly thereafter. Ms Giuretis described that upon their arrival the two police officers entered the unit. At that stage Jasmine was still seated on the lounge. She said that they attempted to explain the situation to the police – saying that Jasmine wanted to stay there that night and the two girls could go to school together in the morning. Ms Giuretis said that they -- 15 of 26 -- [2026] SASC 110 McDonald J 14 also attempted to draw the bruising on Jasmine’s face to the attention of the police. Ms Giuretis described one of the police officers looking briefly at Jasmine’s face and saying words to the effect of “I can’t see anything” or “I don’t see anything”.39 She said they went as far as telling Jasmine to take off her jumper to show the police the bruising to her arms, to which one of the police officers responded “that’s not necessary”.40 From there the police took Jasmine outside to have a private conversation with her. 88 Ms Giuretis described the police as coming all of the way into the loungeroom. She said that whilst they were in the loungeroom, before they took her outside, Jasmine told them her mum had beaten her up, had hit her in the face and kicked her on the body, that she had bruising and that she didn’t feel safe going home. She said that the response of the police was that it was a family matter. 89 Ms Giuretis could not see Jasmine once she was outside with the police, given where she was seated. 90 In cross-examination it was put to Ms Giuretis that the police did not come into the house, that she and the others did not point out the injuries to Jasmine’s face to the police and Jasmine did not make any allegations about her mother. Ms Giuretis remained firm that all of those things took place. 91 DH also described sitting in the loungeroom with the others prior to the arrival of police. He described Jasmine as appearing to be in fear and not saying much. He said that there was a knock at the door and he answered it and saw that it was the police. The police asked if Jasmine was at the house and said that they were there to pick her up. 92 It was DH’s evidence that he attempted to explain to the police that they were concerned about Jasmine’s safety, however the police did not appear to listen. They took Jasmine outside and spoke to her by herself. DH described that Jasmine briefly came back into the house. At the time she was distraught. The police accompanied her in but only took one to two steps inside of the house. The police then took Jasmine away. 93 Again, there are clear differences between the evidence of JH, Ms Giuretis and DH. 94 No doubt Ms Wilmott will ultimately rely on these differences of accounts in support of a submission that the evidence of these witnesses should not be accepted. However, more significantly, the evidence of each of the witnesses is at odds with the evidence of the two police officers who attended on the missing person’s report and removed Jasmine from the house. 39 T4151. 40 T4151. -- 16 of 26 -- [2026] SASC 110 McDonald J 15 The evidence of Senior Constable Dominic Hodges and Constable Roslyn Holden 95 The two police officers who attended at DH’s unit were Senior Constable Dominic Hodges and Constable Roslyn Holden.41 96 In September 2020, both witnesses provided affidavits about the events of 26 June 2018. They were both proofed by lawyers from the DPP in the presence of Detective Brevet Sergeant Ward. Senior Constable Hodges was proofed on 28 January 2025, and Constable Holden was proofed on 29 January 2025. Arising from his proofing, a further affidavit was obtained from Senior Constable Hodges. A further affidavit was not however obtained from Constable Holden. 97 Senior Constable Hodges gave evidence on Friday, 23 January 2026. Constable Holden commenced her evidence-in-chief immediately following Senior Constable Hodges, however, was still part way through her evidence when the Court adjourned for the weekend. When the matter resumed on Tuesday, 27 January 2026, Constable Holden completed her evidence-in-chief and was then stood down at the request of Mrs Shaw KC, at which time she made an application for a mistrial.42 98 In order to appreciate the basis of this application it is necessary to understand the difference between the evidence that it was anticipated that the two police officers would give, as compared to the evidence that was ultimately given. 99 Neither of the police officers had made notes of these events, although it was apparent from their evidence and their ability to nominate times and dates that they must have had recourse to some form of police records. The affidavits 100 I have been provided with copies of the original affidavits of both Senior Constable Hodges and Constable Holden, and neither are particularly detailed. 101 In his first affidavit, Senior Constable Hodges described arriving at the unit and Jasmine presenting at the door. He said that he had no recollection of any conversation with any adults at the premises. Jasmine came outside and had a conversation with him and Constable Holden. He described Jasmine as withdrawn, shy and quietly spoken. 102 Senior Constable Hodges said that he facilitated a telephone conversation between Jasmine and Ms Wilmott, as a consequence of which Jasmine agreed to return home. He then made arrangements for Jasmine to be transported home. 41 Constable Holden has since resigned from SAPOL, however I will continue to refer to her as Constable Holden for ease of reference. 42 T4988. -- 17 of 26 -- [2026] SASC 110 McDonald J 16 103 In this affidavit Senior Constable Hodges provided no further details of his movements or interactions with those present at DH’s unit. 104 On 29 January 2025, Senior Constable Hodges provided an addendum affidavit subsequent to a proofing. In that affidavit he provided the following additional details: • That although he could not recall any conversations that he had with the adults at the unit, he would have told them the reason for being at the premises and the need for him to take Jasmine. • Before attending at the unit, he would have undertaken checks on the occupants of the unit. These checks would have assisted him in determining whether to take Jasmine from the premises. Whilst he could not recall the results of the checks, he made the decision that it was more appropriate to take Jasmine to the police station. • Upon his arrival he initially spoke with “the occupants and Jasmine” at the front door of the premises and then remained in the driveway/front yard of the premises. He cannot recall if he used his torch whilst there. • When he facilitated the telephone call between Jasmine and Ms Wilmott, he did so by putting the telephone on loud speaker. • He cannot recall inspecting Jasmine for injuries – if he had done so, he believes that he would have remembered. 105 As I have mentioned, Constable Holden only provided one affidavit, which was dated 11 September 2020. Constable Holden’s affidavit is even more bereft of detail than that of Senior Constable Hodges. In her affidavit, Constable Holden described attending at the unit and then provided the following account of what took place once they arrived there:43 I can recall [Jasmine] saying she was staying the night with her friend and would attend school the next day. I cannot recall if I spoke to [Jasmine’s] mother on the phone or if HODGES did explain we had located her daughter and that she would attend school the next day. [Jasmine’s] mother wanted Jasmine to return home immediately. I cannot recall Jasmine having any visible facial bruising that evening. I believe if she had visible bruising or she had made allegations in relation to her being abused or assaulted by her mother I would not have allowed her to return home and I would have investigated those allegations accordingly. 43 Affidavit of Roslyn Holden, 11 September 2020 at [5]-[6]. -- 18 of 26 -- [2026] SASC 110 McDonald J 17 The proofing note 106 Constable Holden was proofed at the ODPP on 29 January 2025. The proofing note made by Detective Brevet Sergeant Ward at that proofing has now been disclosed. It relevantly recorded Constable Holden saying: It was winter, so Jasmine might have been wearing long sleeves. Girls were in bedroom watching TV. It was a straight forward missing persons’ job. From memory less than half an hour at the house. Remember sitting in an interview room w Jasmine, communicating with her like getting blood out of a stone. 107 I note that there is no record of Constable Holden having said that she went into the house in her affidavit, nor is there any indication of whether she was specifically asked about that in the proofing. Having said that, during submissions Ms Litster conceded that although there was no specific reference in the notes to Constable Holden having entered the unit, that was the gist of what she had said in proofing and that, given the configuration of the unit, it would have been necessary for her to enter the house to see the girls in the bedroom watching television. The evidence 108 The evidence of each of the witnesses was considerably more detailed than their affidavits. 109 It was Senior Constable Hodges’ evidence that upon his arrival at the unit he spoke with a male person at the front door, and he did not recall any other people being present. He remained outside and the male remained either still inside the house or just outside of the doorway. Although he could not recall any of the specifics of the conversation, he said that he would have spoken to the male. He described the male as confrontational and displeased with the police presence. 110 Senior Constable Hodges said that Jasmine was inside the house when he first arrived and after he asked the male about whether she was there, Jasmine came outside. It was after this that he facilitated a telephone call between Jasmine and her mother using his mobile phone. 111 At the end of the telephone conversation Jasmine agreed to go home. 112 Senior Constable Hodges gave evidence that at some point he became aware of the presence of a female school friend, who requested that Jasmine stay at the unit. That request was made quite early on. 113 Jasmine was subsequently conveyed to the Salisbury Police Station where she was collected by a family friend. 114 Mrs Shaw KC cross-examined Senior Constable Hodges about his evidence that he did not go inside the unit during the time that he was there. Her approach was to firm up that evidence and suggest that there were operational considerations as to why he would not go into the unit, namely for safety reasons. In addition, a -- 19 of 26 -- [2026] SASC 110 McDonald J 18 general search warrant would have been required to authorise entry, absent the consent of the householder. 115 Constable Holden gave evidence immediately after Senior Constable Hodges. She described their arrival:44 I can’t recall who knocked on the door or we knocked on the door, explained why we were there. The gentleman that answered the door stated that Jasmine was present and I proceeded to a bedroom where I located Jasmine and had a quick chat with her to say that we needed to return her home at the wishes of her mum and if she would come with us. 116 It was Constable Holden’s evidence that the male allowed them access into the house and showed them where Jasmine was. Jasmine was in the bedroom with a school friend. It was Constable Holden’s memory that to get to the bedroom they walked straight into the living room, and the male pointed them towards the bedroom door. Her recollection was that both she and Senior Constable Hodges entered the unit. She stood at the bedroom doorway and told Jasmine that she needed to come with her as they were going to take her home. Jasmine told her that she was going to stay at her friend’s house for the night and her friend’s father would take them to school the next day. Constable Holden told Jasmine that her mum wanted her home so they would be taking her home and they left the premises and went to the Salisbury Police Station. 117 Importantly, on the defence case, neither police officer described seeing any injuries on Jasmine nor do they say that she or any of the others present made any complaint about Ms Wilmott assaulting or behaving violently towards Jasmine. The prosecution’s duty of disclosure 118 During the course of submissions much was said about the prosecution’s duty of disclosure. There is no dispute about the nature of that duty, or that the prosecution failed in that duty in relation to the evidence of Constable Holden. The extent and consequence of that breach however remain a live issue. 119 In her affidavit, Constable Holden made no reference to entering the unit. Her evidence in Court was plain in that it was her recollection that both she and Senior Constable Hodges entered. 120 It is however not uncommon for a witness to give evidence that is at odds with, in addition to, or materially inconsistent, with the account that they have provided at an earlier point in time. That is one of the exigencies that will commonly confront cross-examining counsel. That in and of itself cannot be a basis for a mistrial, particularly in circumstances in which the trial has been underway for over 12 months. The issue that arises here is whether there has been a breach of the prosecutorial duty as such that Ms Wilmott’s right to a fair trial has been irretrievably, adversely impacted so she cannot now receive a fair trial. 44 T4973. -- 20 of 26 -- [2026] SASC 110 McDonald J 19 121 When determining whether there has been a miscarriage of justice arising from a failure to comply with the prosecution’s duty of disclosure, the reason for non-disclosure is irrelevant. Similarly, in assessing whether such a failure has caused an unfairness that can only be cured by aborting the trial, the explanation behind the shortcoming is not a relevant consideration. The argument in support of the mistrial application 122 The central theme to Mrs Shaw KC’s submissions was that the prosecution’s compliance with their duty of disclosure ensures that an accused can make forensic decisions without any fear of being ambushed at trial.45 It was submitted that Mrs Shaw KC had adopted a particular forensic approach to the JH incident based on an assumption that she was entitled to make, namely that there had been full disclosure of the witnesses’ accounts. 123 Given the conflict between the lay witnesses and the police, the approach adopted by Mrs Shaw KC was unsurprisingly to maximise the likelihood that the evidence of the two police officers would be accepted in preference to that of JH, DH and Ms Giuretis. 124 Mrs Shaw KC contended that to accept the lay witnesses, the evidence of the police witnesses must be rejected and realistically the only basis upon which that could occur would be based on inconsistencies in the police evidence. 125 On that basis, it was important for the defence to attempt to shore up, insofar as they could, a consistency of account between the two police officers. 126 It was submitted that, as a consequence of the failure by the prosecution to disclose that Constable Holden would say that she went into the house, the effect of the cross-examination has been to “drive a wedge” between the two police witnesses.46 Had there been appropriate disclosure, the defence would have cross- examined differently, potentially to suggest that both police went into the house where they would have had a better opportunity to observe any injuries to Jasmine. 127 It was Mrs Shaw KC’s contention that it is now impossible to “unscramble the egg” or to have Senior Constable Hodges walk away from his evidence that he did not go into the house.47 128 I make the observation that there is an assumption underpinning Mrs Shaw KC’s submissions, that by cross-examining the witnesses differently she could have influenced the account that they gave. It is to state the obvious to say that just because a matter is put to a witness, it does not make the proposition that witness’ evidence. For it to become the witness’ evidence, it is necessary for them 45 FDN 775 at [4]. 46 FDN 775 at [23]. 47 FDN 775 at [26]-[28]. -- 21 of 26 -- [2026] SASC 110 McDonald J 20 to agree to the proposition. There is no reason to assume that Senior Constable Hodges would have done so. 129 In both of his affidavits Senior Constable Hodges made no reference to going inside of the unit. In his first affidavit he described Jasmine presenting at the front door and then coming outside to have a conversation with himself and Constable Holden. In his second affidavit he elaborated and said that he initially spoke with Jasmine and the occupants at the front door “and then remained in the driveway/front yard of the premises”.48 Senior Constable Hodges did not resile from this position and his evidence remained clear that at no stage did he go into the unit. There is no basis upon which to assume that had he been challenged on this, that he would have changed his evidence, in fact, all of the indicators are to the contrary. 130 Similarly, Mrs Shaw KC suggested that she would have approached the evidence of Ms Giuretis differently. Ms Giuretis gave evidence that the police came into the house. Mrs Shaw KC put to her that the police did not come inside. Ms Giuretis was emphatic in her response, “That’s incorrect. They definitely came into the house”.49 Despite what was put to her, Ms Giuretis remained firm on the topic and her evidence did not change. This evidence is consistent with that of Constable Holden. It is difficult to therefore see what forensic disadvantage Ms Wilmott has suffered in relation to this witness. In a trial without a jury, it could not be suggested that Ms Wilmott will suffer some form of prejudice because her counsel challenged evidence that was subsequently made good by another witness that she relies upon. Further, if there is a need for some alternative form of attack on the credibility of Ms Giuretis, she can be recalled for that purpose. Consideration – Mistrial application 131 It is not open to grant a mistrial application to punish the prosecution. The application may only be granted on the basis that, as a consequence of a lack of compliance with the prosecutorial duty, it has resulted in an unfair trial that cannot otherwise be cured. 132 In considering the submissions made in support of the application, it is important to bear in mind that the critical dispute central to this chapter of the prosecution case is whether Jasmine had injuries and whether she complained about Ms Wilmott’s conduct towards her. 133 Whether or not the police went into the house is of no great moment, other than the possibility that inconsistencies between witnesses may impact on findings of credibility and reliability. I note that although Mrs Shaw KC suggested that it may also be relevant to the issue of the opportunity for the police to observe injuries to Jasmine in the artificial light of the unit. Given the police spent time 48 Affidavit of Dominic Hodges, 29 January 2025 at [5]. 49 T4168. -- 22 of 26 -- [2026] SASC 110 McDonald J 21 with Jasmine once back at the police station, I place limited weight on this submission. 134 In evaluating the impact of the failure to disclose Constable Holden’s evidence about going into the house, it is necessary to consider and compare the evidence that it could reasonably be anticipated would have been given by the police officers based on the materials that had been disclosed. Attendance at DH’s unit in Salisbury 135 Both police officers described attending together at DH’s unit in Salisbury on 26 June 2018. Constable Holden described being tasked to attend there at 8.23pm, whist Senior Constable Hodges described attending there at 7.52pm. Who was present at the unit? 136 The only person that Constable Holden made reference to in her affidavit was Jasmine. She did not refer to anyone else being present at the unit, although she did make reference to Jasmine saying “she was staying the night with her friend”.50 137 Although Senior Constable Hodges made reference to other “occupants” of the unit, he did not describe who they were, how many people were present or where they were positioned. Whether the police went inside the unit 138 Constable Holden’s affidavit is silent on whether she went inside of the unit. Although she described that she “located” Jasmine at the premises, she did not say whether she went inside or not. 139 In his initial affidavit Senior Constable Hodges also did not identify whether he went into the unit, he did however say, “On arrival, I do not recall any conversations I had with adults at the address. WILMOTT presented at the door and came outside to have a conversation with myself and HOLDEN”.51 Senior Constable Hodges further clarified the situation in his second affidavit when he said, “I initially spoke with the occupants and Jasmine at the front door of the premises and then remained in the driveway/front yard of the premises”.52 What the police did at the unit 140 Other than describing attending at the unit, Constable Holden did not provide any details of what she did whilst there. On the topic of a telephone call to Ms Wilmott, Constable Holden said, “I cannot recall if I spoke to WILMOTT’s mother on the phone or if HODGES did to explain we had located her daughter and that she would attend school the next day”.53 50 Affidavit of Roslyn Hodges, 11 September 2020 at [5]. 51 Affidavit of Dominic Hodges, 12 September 2020 at [5]. 52 Affidavit of Dominic Hodges, 29 January 2025 at [5]. 53 Affidavit of Roslyn Holden, 11 September 2020 at [5]. -- 23 of 26 -- [2026] SASC 110 McDonald J 22 141 In his first affidavit Senior Constable Hodges described facilitating a telephone conversation between Jasmine and Ms Wilmott on loudspeaker so that he could hear the nature of the conversation. He said that as a result of this conversation, Jasmine agreed to go home. 142 In his second affidavit Senior Constable Hodges provided additional details of this telephone conversation. He described taking Jasmine away from the other occupants of the premises. He said that he might have put the phone on the bonnet of a car in the driveway. He explained that he would have done this so that Jasmine could speak freely with no influence from the occupants of the premises. Injuries 143 Constable Holden said:54 I cannot recall Jasmine having any visible facial bruising that evening. I believe that if she had visible bruising or she made allegations in relation to her being abused and or assaulted by her mother I would not have allowed her to return home and I would have investigated those allegations accordingly. 144 Senior Constable Hodges said that he could not recall inspecting Jasmine for any injuries and if he had done so, he believes that he would remember it. Departure from the unit 145 Both police officers described driving Jasmine from the unit to the Salisbury Police Station, where arrangements were made for her to be collected by a family friend. 146 On this brief analysis of the affidavits, it is apparent that the police officers were inconsistent on a number of topics. That is unsurprising given the nature of the job they were attending and the passage of time. Additionally, it was unclear from Constable Holden’s affidavit what she would say in evidence about whether or not she went into the house. Given Senior Constable Hodges was called to give evidence first, and the highly inconsistent evidence of the lay witnesses on this topic, any forensic decision made by the defence must necessarily have allowed for Constable Holden’s evidence to have gone either way. 147 In my view it has not been established that the failure by the prosecution to disclose that Constable Holden said that she went into the unit has rendered the trial irrevocably unfair. This reflects a small and relatively unimportant aspect of the witness’ evidence and, given the alignment and misalignment of various aspects of the evidence of both the lay and police witnesses in relation to the JH incident, it is unlikely to be of any great moment in resolving the issues in the trial. In that respect I accept the submission made by Ms Litster that:55 54 Affidavit of Roslyn Holden, 11 September 2020 at [6]. 55 T45-46, 19 May 2026. -- 24 of 26 -- [2026] SASC 110 McDonald J 23 The more significant component of the [JH] evidence is obviously the evidence of bruising that’s observed and the 34KA statements that are made by Jasmin [sic]. In the context of there being inconsistencies across all of the witnesses about inside or outside the house, in my submission, that is not just a minor amount of evidence, but a minor body of evidence in terms of its significance. … In my submission, it may have some work to do on reliability in a peripheral way, but it’s my submission that it is peripheral because your Honour won’t be able to find the central anchor point in the evidence because it all moves around. 148 As I have said, the critical parts of the evidence is whether or not bruises were observed, and whether Jasmine complained about Ms Wilmott. The evidence about whether the police went into the house is a relatively inconsequential matter in the evidence and is likely to have negligible impact on the resolution of the issues. The impact of MW’s evidence on the application for a mistrial 149 It was contended by Mrs Shaw KC that the difficulties relating to the JH incident were compounded for the defence by granting the prosecution leave to reopen the evidence-in-chief of MW and it is a relevant consideration that both issues were the product of errors by the prosecution. It was Mrs Shaw KC’s submission that she would have taken a different approach to the cross- examination of MW had she been aware that he was going to give the additional evidence that the prosecution have been permitted to lead. 150 I do not accept that the matters relied upon by Ms Wilmott accumulate in the manner suggested. These are two completely separate bodies of evidence that do not in any way impact on each other. 151 As I said in the context of the recusal application, the defence have always been on notice of the tenor and details of MW’s evidence. There have been no surprises. The prosecution opened on the allegations about MW being “stage lines”.56 The evidence led from him in chief, before the commencement of cross- examination, portrayed a loving and caring relationship between MW and Jasmine. Although the specific questions that the prosecution have been granted leave to ask were not in fact asked, they are consistent with the overall import of MW’s evidence. 152 I do not accept that in a trial by Judge alone, the defence suffers any form of prejudice or embarrassment in changing their approach to, and manner of, cross- examining MW. There is also no issue as to time constraints or lack of opportunity to reconstruct the plan for the cross-examination of MW. 153 In my view the matters that have been raised individually or in combination, are not a sufficient foundation for declaring a mistrial. They do not create an 56 T1879. -- 25 of 26 -- [2026] SASC 110 McDonald J 24 insurmountable prejudice or unfairness to Ms Wilmott that would warrant the trial being aborted. 154 I decline to exercise my discretion to declare a mistrial. Orders 155 I make the following orders: 1. The application for recusal is refused. 2. The application for a mistrial is refused. -- 26 of 26 --