R v Wilmott

Case [2025] SASC 44

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v WILMOTT

Criminal Trial by Judge Alone

[2025] SASC 44

Reasons for Ruling of the Honourable Justice McDonald  

18 February 2025

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - PARTICULARS

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY

The accused has been charged with the offence of manslaughter and in the alternative, with the offences of criminal neglect, failing to provide food, failing to provide accommodation and two counts of aggravated assault causing harm.  The alleged victim of these offences was the accused’s 15 year old adopted daughter.

The prosecution relies on both acts and omissions in circumstances in which the accused owed the deceased a duty of care and submits that these acts and omissions amount to a failure on part of the accused to provide the standard of care required from a reasonably competent carer.  It is the prosecution case that the accused’s conduct towards the deceased was a substantial cause of her death.

The accused seeks an order for further and better particulars of the actus reus of count 1 on the Information on the basis that the prosecution outline fails to identify the actus reus and in the alternative, that if the acts and omissions listed in the prosecution outline are said to constitute the actus reus, the particulars are duplicitous and/or vague and uncertain.

There were three issues that arose for consideration on this application, namely; whether the Director could rely on a combination of acts and omissions, whether it is open for the Director to rely on a series of separate acts and omissions that are alleged to have taken place over a five year period and whether the particulars of the offence of manslaughter, provided by the Director, are sufficient for the accused to understand the case that she has to meet.

Held:

1.      The Director can rely on a combination of acts and omissions.

2.The Director can rely on a series of separate acts and omissions that are alleged to have taken place over a five year period.

3.The prosecution are to provide further and better particulars, in relation to count 1 on the Information, in the form as outlined in the reasons for ruling.

Criminal Law Consolidation Act 1935 (SA) ss 13, 14(1), 30; Criminal Procedure Act 1921 (SA) s 123(1), referred to.
Johnson v Miller (1937) 59 CLR 467; R v Pace & Conduit (Ruling No 2) [2008] VSC 308; R v Staker (2001) 110 SASR 274; Daly v Medwell (1986) 40 SASR 281; R v Barrett (No 3) [2019] SASC 93; Sam v The Queen (2011) 206 A Crim R 67; Patel v The Queen (2012) 247 CLR 531, applied.

R v WILMOTT
[2025] SASC 44

CRIMINAL:  Ruling re: particulars

McDONALD J.

  1. Jenni Gaye Wilmott has been charged with the offence of manslaughter[1] and in the alternative with the offences of criminal neglect,[2]…

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AGLC
R v Wilmott [2025] SASC 44
Case
[2025] SASC 44
Decision Date

CaseChat Overview and Summary

The case of R v Wilmott involved the prosecution of Ms Wilmott for the alleged manslaughter of Jasmine. The prosecution alleged that Ms Wilmott physically, mentally, and emotionally abused Jasmine, which amounted to criminal conduct. This abuse included acts and omissions such as physical violence, verbal abuse, social isolation, sustained humiliation, and the deprivation of food, liberty, and suitable accommodation. Ms Wilmott had elected for trial by a judge alone. The Director of Public Prosecutions provided three documents outlining the prosecution's case, including a Prosecution Case Statement, a draft Opening Address, and an outline of argument for a voir dire hearing on the admissibility of discreditable conduct evidence. Ms Wilmott filed an interlocutory application seeking further and better particulars of the actus reus of count 1 on the Information, arguing that the prosecution outline failed to identify the actus reus and was vague and uncertain.

The primary legal issues that the court had to decide were whether the Director could rely on a combination of acts and omissions, whether it was open for the Director to rely on a series of separate acts and omissions over a five-year period, and whether the particulars of the offence of manslaughter provided by the Director were sufficient for Ms Wilmott to understand the case she had to meet. The court examined the manner in which the Director had set out the case in the three documents and considered the evidence relied upon to establish the particulars. The court found that the Director could rely on a combination of acts and omissions and that it was open for the Director to rely on a series of separate acts and omissions over a five-year period. However, the court found that the particulars of the offence of manslaughter provided by the Director were insufficient for Ms Wilmott to understand the case she had to meet. The court ordered the Director to provide further and better particulars of the actus reus of count 1 on the Information.

Orders

Orders of the court

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Background

Background to the litigation

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.Background Ms Wilmott has elected for trial by Judge alone. In advance of the commencement of the trial the Director of Public Prosecutions (‘the Director’) provided three documents that set out the prosecution case against Ms Wilmott. These were the Prosecution Case Statement,[7] a draft Opening Address[8] and an outline of argument for a voir dire hearing on the issue of the admissibility of discreditable conduct evidence.[9][7] FDN 29, filed pursuant to s 123(1) of the Criminal Procedure Act 1921 (SA).[8] It should be noted that there was no obligation on the prosecution to provide a draft opening in advance of the trial.[9] FDN 29. On 10 February 2025, Ms Wilmott filed an interlocutory application[10] seeking an order for further and better particulars of the actus reus of count 1 on the Information.[10] FDN 300. The basis of that application was:1.The prosecution outline fails to identify the actus reus.2.Alternatively, if the acts and omissions listed in the prosecution outline are said to constitute the actus reus, the particulars are duplicitous and/or vague and uncertain. The matter was called on for mention on 11 February 2025, to discuss the timetable for the hearing of various interlocutory applications that had been filed. During that hearing, it became apparent that although the application was for further and better particulars, it was underpinned by a complaint about the manner in which the prosecution has pitched its case, in particular, in relation to the actus reus of the offence of manslaughter. It has become clear that three issues arise for consideration on this application. These are:1.Can the Director rely on a combination of acts and omissions?2.Is it open for the Director to rely on a series of separate acts and omissions that are alleged to have taken place over a five year period?3.Are the particulars of the offence of manslaughter provided by the Director sufficient for Ms Wilmott to understand the case that she has to meet? A convenient starting point for the determination of these issues is the manner in which the Director has set out the case in the three documents that I have identified.The Prosecution Case Statement In the Prosecution Case Statement, the “course of conduct (acts and omissions) of Jenni Wilmott” is described as follows:8.It is alleged that a deliberate course of conduct of acts and omissions by Jenni Wilmott were the substantial cause of Jasmine Da-Eun’s death.9.That conduct reflected a deliberate course of treatment of the deceased intended to cause psychological suffering, along with deliberately failing to provide her the conditions necessary to live and thrive safely as an adolescent in her care.10.Further, this course of conduct reflected negligence in the discharge of her duty of care as Jasmine Da-Eun’s parent and carer to the criminal standard.11.The course of conduct alleged includes the following negligent acts and omissions:a. Failing to provide her with adequate food, shelter and clothing.b. Failing to provide her with adequate access to socialisation within and outside the family home;c. Failing to allow her to move safely and feely within the home (causing her to be locked in her bedroom at Gleneagles Circuit, Greenwith);d. Failing to allow her to move safely and freely within the home at Flagstaff Hill (causing her bedroom door to be alarmed and supervising her exit).e.Failing to provide her with conditions of personal safety by;i.Physically assaulting her, causing others to assault her and causing her to hit herself.ii.Punishing her excessively, including with exercise and chores, physical discipline; cutting her hair; and causing others to punish her gratuitously.iii.Making her falsely admit to dysfunctional behaviours, in person, in writing and on video.

Evidence

Evidence Before The Court

At [134]-[138], the Director set out the evidence relied upon to establish those particulars. By way of example, for the allegation of excessive punishment, the evidence relied upon was described as:i.The accused punished Jasmine Da-Eun with an attitude of cruelty and in a way which would have plainly been deleterious to her psychological welfare.ii.She was made to run on treadmills and jog on the spot (for punishment, not exercise), as well as to undertake an excessive number of chores (cleaning up rubbish, cleaning generally, bringing in groceries from the car which were far too heavy for her). According to [O], she was made to take off her clothes and hit herself in the head with a degree of frequency.iii. Jenni Wilmott cut her hair as a punishment on one occasion in 2018.iv.As referred to above, the accused got her to pen and record false admissions of delinquent and dysfunctional behaviour, including drinking her own urine and admitting to having a criminal record when she had none.Outline of argument for a voir dire hearing on the issue of the admissibility of discreditable conduct evidence The prosecution’s written outline of submissions for the argument about the admissibility of discreditable conduct pursuant to s 34P of the Evidence Act1929 (SA) contains a summary of some of the conduct alleged against Ms Wilmott that is the foundation of the manslaughter charge. It reads:[12] [12] FDN 298 at [6].a. Choresi. Jasmine was made to do excessive chores, both at home and at school, including in her underwear.b. Assaultsi. On 30 May 2018, the accused was observed by a neighbour to grab Jasmine by her hair and punch her to the back of the head at least five times (Count 5).ii. On or about 25 June 2018, the accused punched and slapped Jasmine Da-Eun before she was knocked down to the ground, where the accused kicked and stomped on her stomach and legs (Count 6).1.Jasmine told the witnesses ([G], [H]) that this was not the only time the accused had assaulted her.iii. Jasmine frequently presented with bruises at school.iv. Jasmine made comments to school friends to the effect that:1.The accused had hit her multiple times with a belt, that she was scared of her mother a lot and that’s why she had lied about how she got the bruises.2. Her mother had hit her, resulting in bruises to her legs.c. Malnourishment/Underfeedingi. Janine Tee, a paediatrician, opines that Jasmine was underdeveloped and did not develop at a healthy rate until her death.ii. Numerous witnesses observed Jasmine not eating regular meals with the family and being given less food.iii. Numerous witnesses who attended school with Jasmine observed her to have insufficient food, and food that was poorly suited to consumption at school, such as raw broccoli, loaves of plain bread or pomegranates.iv. Jasmine made comments to several school friends to the effect that she was hungry, her mother had refused to feed her, and she had been sent to bed without any food.d. Confinementi. At the Flagstaff Hill property, in the months leading up to her death, Jasmine was routinely confined to her room. The door was alarmed and Jasmine was supervised by [O].e. Social Isolationi. Jasmine was socially isolated and wouldn’t have friends over or visit friends’ houses.ii. Jasmine was restricted from attending extracurricular activities at school, including being unreasonably prevented from participating in the school dance performance on 26 September 2018 (eight days before she hanged herself).f. Haircuti. Jasmine’s hair was cut by the accused “forcefully”, at the same time as she presented with a bruise on her face.The elements of the offence

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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