R v Wilmott (No 2) - [2025] SASC 54

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v WILMOTT (No 2)
Criminal Trial by Judge Alone
[2025] SASC 54
Reasons for Ruling of the Honourable Justice McDonald
23 April 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - EVIDENCE
EVIDENCE - ADMISSIBILITY - CREDIBILITY EVIDENCE - WITNESSES - EXPERT EVIDENCE
EVIDENCE - ADMISSIBILITY - OPINION EVIDENCE - EXPERT OPINION - GENERALLY
This is an application made by the accused, for the exclusion of the entirety of the evidence of an expert witness, a paediatric psychiatrist.
The accused challenges the admissibility of the evidence on the grounds that the expert’s opinions are based on factual findings made by him, and that he relies on methodology outside of his expertise or any recognised scientific fields of expertise.
The accused contends that, even if the expert evidence is admissible, the Court should exercise its discretion and exclude the evidence due to procedural unfairness, arising from the expert’s reliance on material provided by police, compromising the independence of his opinion, and on the ground that his report was in breach of the Joint Criminal Rules 2022 (SA).
The Director contends that the manner in which the evidence of the expert is proposed to be led does not raise any issues concerning the expert making findings of fact. Further, that the evidence is admissible and should not be excluded in the exercise of the discretion.
Held: application partially dismissed:
The evidence of the expert falls into three categories; general observations about matters that may lead to a child developing a suicidal ideation; intermediate findings of fact; and the ultimate opinion that the conduct of the accused was the primary determinant cause of death.
1.The evidence of the expert regarding matters that may lead to a child developing a suicidal ideation is to be admitted and will not be excluded in the exercise of the discretion.
2.The evidence of intermediate findings of facts made by the expert is not to be admitted.
3.The ultimate opinion of the expert that the conduct of the accused was the primary determinant cause of death will not be admitted.

Criminal Law Consolidation Act 1935 (SA) ss 14, 14A; Development Act 1993 (SA) s 44(1); Evidence Act 1995 (NSW); Joint Criminal Rules 2022 (SA) rr 1.5(1), 47.1(c), 47.1(o), referred to.
R v Bonython (1984) 38 SASR 45; Makita (Aust) Pty Ltd v Sprowles (2011) 52 NSWLR 705; Lang v The Queen [2023] HCA 29; Honeysett v The Queen (2014) 253 CLR 122; Velevski v The Queen (2002) 26 ALJR 402; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; Taub v The Queen (2017) 95 NSWLR 388, applied.
The Corporation of the City of Unley v Crichton [2021] SASC 17, distinguished.

R v WILMOTT (No 2)
[2025] SASC 54
CRIMINAL: Ruling re admissibility of expert evidence
McDONALD J.

Jenni Gaye Wilmott has been charged with the offence of manslaughter[1] 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.[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.
[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] Ms Wilmott was also previously charged with the offence of deception, however a nolle prosequi was entered in relation to that charge during the course of the voir dire.
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.
An application has been made for the exclusion of the evidence of Professor Jonathan Jureidini.[7] Professor Jureidini is a psychiatrist who has specialised in paediatric psychiatry. He is currently a Professor of Psychiatry at the University of Adelaide. He is also the Head of the Paediatric Mental Health Training Unit at the University of Adelaide and a Research Leader in the Critical and Ethical Mental Health research group at the Robinson Research Institute at the University of Adelaide.
[7] FDN 356, to amend FDN 317.
Professor Jureidini’s role in this matter has been to provide an opinion addressing the issue of causation.
Expertise
By way of formal qualifications, in 1980 Professor Jureidini obtained his Bachelor of Medicine and Surgery. In 1986, he received a fellowship from the Royal Australian and New Zealand College of Psychiatrists and in 1987, through that same professional body, was accredited as a child psychiatrist. In 1998, Professor Jureidini obtained a PhD from the Philosophy Department at Flinders University.
Professor Jureidini has considerable clinical experience in paediatric psychiatry which commenced in 1981 when he undertook his training at the CAFHS Psychiatry Services, which was, at that time, the child mental health service. In that role Professor Jureidini worked with children and families, assessing and treating psychiatric conditions. He subsequently undertook specialist child psychiatry training in Adelaide, Sydney, Edinburgh and London before returning to Australia to work in a consultant position in Adelaide. Throughout that time, Professor Jureidini worked and trained in psychiatry, predominantly involving adolescents.
Over the course of his training, much of Professor Jureidini’s focus has been on psychotherapeutic work with adolescents, which has involved understanding the circumstances that have led to the mental health difficulties in young people “rather than just diagnosing and labelling it”.[8] That approach would result in psychotherapeutically informed treatment, which could range from medication through to intensive psychotherapy.
[8] T188.
Once qualified as a consultant, in 1988 Professor Jureidini commenced a position as the South Australian Director of Adolescent Psychiatry at the Women’s and Children’s Hospital. In that role he had the responsibility of working with adolescents who “did not really fit into the system”;[9] he dealt with young people who presented to the medical health system with mental health or psychiatric issues. A large part of that role was working in the Children’s Hospital[10] Emergency Department with young people who had attempted suicide. Professor Jureidini’s work in that role involved both assessment and therapy. This involved a consideration of the circumstances that had led individuals “to resort to suicidal behaviour as their perceived best option and trying to ameliorate the circumstances that led to that either in terms of working with the individual and their understanding and attitude towards their life circumstances or working with the family or the broader system”.[11]
[9] Ibid.
[10] Now the Women’s and Children’s Hospital.
[11] T189.
Distinct from, and in addition to his clinical roles, Professor Jureidini’s career has had a particular emphasis on looking beyond what occurred and looking to the cause of the suicide or attempted suicide. In assessing the circumstances that had led to a youth attempting suicide, Professor Jureidini would attempt to gain an understanding of their predicament, centred around their relationships and social circumstances,[12] in order to minimise the risk of further suicide attempts.
[12] Ibid.
Professor Jureidini explained that his role in the Emergency Department of the Women’s and Children’s Hospital evolved over the years. In the early days the Emergency Department staff, mainly paediatricians, would be responsible for the initial management of the patients who came in following an attempted suicide.[13] Professor Jureidini would work with the Emergency Department staff, support them and assist them in making decisions about admitting the patient and considering appropriate follow ups. Over time that changed with the introduction of an emergency mental health nursing service. Professor Jureidini clinically managed that service. As a consequence, although he continued to see children, it was less direct than previously, and his role became more focussed on supporting and supervising the frontline nursing team.
[13] T190.
Professor Jureidini worked in this role in the Emergency Department for at least five years and was involved in approximately 150 attempted suicide cases (indirectly through supervision) each year.
Between 1995 and 2000 Professor Jureidini was the Director of the SA Child and Adolescent Psychiatry Training Program and overlapping with this, between 1994 and 2012, he held the position of the Head of Psychological Medicine at the Women’s and Children’s Hospital. Over that time, between 1988 and 2021, Professor Jureidini continued to work as a Senior Child Psychiatrist at the Women’s and Children’s Hospital.
Throughout Professor Jureidini’s work as a paediatric psychiatrist, there has been a focus on managing the risk of suicide. He explained how he approached that task:[14]
… So, really, the emphasis, when somebody presents with suicidal behaviour, an unsuccessful suicide attempt or threats of suicide, the best way of conceptualising that is that that’s telling you that something is not right in this person’s life and our focus shouldn’t be primarily on stopping them from killing themselves, our focus should be on trying to help to make their life better or more bearable. So the task - when I see somebody who has attempted suicide, I don’t set myself the task of stopping them from killing themselves. I certainly don’t want them to kill themselves and I do what I can to help them to find other ways of coping, but preventing suicide is not productive as an end in itself on an individual patient-by-patient basis. That’s a public health issue, it’s a political issue about addressing inequality and unemployment and all of those kinds of things. When I’m - and I would argue when any clinician is - entrusted with the care of a person who has been suicidal, our task is to try to ameliorate their suffering and if there are bad things happening in their life that can be prevented, to stop them from happening, whether that’s abuse or violence or bullying or whatever, and where it’s - where they’ve been bereaved and they’re struggling to cope with that, to help them to make sense of and to validate their distress, and my conviction is that, by doing that with a population of young people, then, in the process, I may be contributing to somebody who would have suicided not suiciding. But I’ll never know which one of the people I worked with that was and I’ll never be able to demonstrate that what I do has prevented suicide.
[14] T215-216.
An essential component of the various roles that Professor Jureidini has held involve the skills that he has developed in undertaking “psychological autopsies”. Professor Jureidini explained that to conduct a “psychological autopsy” is to “attempt to go back over the circumstances that lead up to the suicide and discern what might have been the cause or contributions to it”.[15]
[15] T213.
This form of analytical approach has underpinned the clinical, advisory and academic roles that Professor Jureidini has held. It is his ability and experience in conducting psychological autopsies that the prosecution relies heavily upon in support for the admission of the evidence of Professor Jureidini’s ultimate opinion that Ms Wilmott’s conduct towards Jasmine was the primary cause of her death.
Professor Jureidini has also published extensively on the topic of adolescent suicide in peer-reviewed journals and has researched and published about the relationship between antidepressants and suicide.[16] Professor Jureidini has acted as a reviewer for psychiatric and paediatric journals, and has been involved in public debates and academic contributions in relation to the causes and understanding of suicide.[17]
[16] T193.
[17] Ibid.
In addition to this, Professor Jureidini was a longstanding member of the Women’s and Children’s Hospital Mortality Committee for about 10 years and for a period was the Acting Chair. Professor Jureidini was also the Chair of the Child and Adolescent Mental Health Mortality Committee for about five years which was also within the Women’s and Children’s Hospital. In that role he was involved in reviewing all youth suicides. Both committees answered to the State Death and Serious Incident Review Committee, which had the responsibility of investigating adverse events that occurred at the Women’s and Children’s Hospital. Professor Jureidini explained that when such an adverse event occurred, a decision was made about the level of investigation that was required and who would be involved in that investigation.[18]
[18] T255.
It was in the context of discussing Professor Jureidini’s role in the Adolescent Mental Health Mortality Committee that the topic of Professor Jureidini’s involvement in conducting “root cause analyses” was first raised. Ordinarily, the Mortality Committee would be restricted to considering and examining case notes. However, on occasions it was determined by the committee that a more in-depth root cause analysis was necessary. In those circumstances a request would come from the Serious Incident Review Committee asking that appropriate experts/professionals be identified to lead a root cause analysis.
Professor Jureidini explained that a root cause analysis is a systematic way of looking at critical incidents that have taken place in a medical setting.[19] The analysis involves a deep investigation of all of the circumstances leading up to a young person’s suicide. Those experts involved have a mandate to go out and interview people rather than being limited to a review of the paperwork. The idea behind conducting such an analysis is to attempt to determine what caused the suicide and then put in place recommendations to prevent those same events occurring in the future. Professor Jureidini explained that root cause analysis is a methodology that is used in a wide variety of settings. They are undertaken in both private medical health settings as well as public health settings.
[19] T193.
In order to be selected for involvement in a root cause analysis, it is necessary for the participants to have received the relevant training and it is not uncommon for the team to be cross-disciplinary.
Professor Jureidini has been trained in conducting this form of analysis. He had undertaken a training program that had run for at least two days and has been required to undertake periodical refreshers either every two or five years.[20] It was Professor Jureidini’s evidence that he has led approximately five root cause analyses, at least four of which related to youth suicide.
[20] T461.
Professor Jureidini was also involved in a statewide committee, the Child Death and Serious Incident Review Committee, which was set up by the coroner to conduct a review of 10 consecutive suicides. The purpose of this review was to consider the coroner’s case notes in relation to 10 young people who had suicided and submit a report of the findings to the coroner. For the purpose of the review Professor Jureidini had available to him a mixture of medical records, police interviews, witness statements and other relevant documents.
Professor Jureidini is currently involved in a National Health and Medical Research Council research project looking at the policies and activities surrounding suicide prevention and, in particular, the impact of unemployment. Although this research is not directly related to adolescents, it again involves Professor Jureidini undertaking a form of psychological autopsy, looking behind suicides.
Based on Professor Jureidini’s academic qualifications and considerable experience, I find that he is a well-qualified, experienced, paediatric psychiatrist with considerable specialist expertise in understanding and determining the psychological, social, and situational factors that contribute towards suicidal ideation in juveniles.
Reports
Professor Jureidini has provided five reports in various forms. There was an initial report setting out his various observations and conclusions based on the materials that the police had provided to him which was subsequently converted into a police affidavit format.[21] There were also three letters, two addressed to South Australia Police[22] and one to the Director of Public Prosecutions,[23] clarifying or expanding on aspects of the opinion that Professor Jureidini provided in the initial reports.
[21] VDP10.
[22] VDP11 and VDP12.
[23] VDP13.
Process undertaken to prepare the reports
In order to understand the approach that Professor Jureidini has adopted in this case, as well as the competing submissions made by counsel, it is necessary to have an appreciation of the circumstances in which Professor Jureidini came to prepare his reports.
On 14 January 2021, Detective Sergeant Erin Vanderwoude sent an email to Professor Jureidini asking whether he could spare some time to discuss the case. It would seem that the background to this email was that the police had already been in contact with Dr Janine Tee, Staff Specialist Paediatrician, Paediatric Forensic Medical Service at the Women’s and Children’s Hospital, who had advised that she was not qualified to provide an opinion about psychological harm. She instead recommended that the police approach Professor Jureidini, who was known to have some specific expertise in this area.
At the time that the police first contacted him, Professor Jureidini was made aware that Ms Wilmott had been arrested and charged with assault and criminal neglect. He understood that the police wanted him to examine the material on the brief and provide an expert opinion as to what circumstances may give rise to suicidal thinking in an individual.
The initial email was followed by a case meeting that took place on 22 January 2021. As a result of that meeting, Professor Jureidini agreed to look at the case to see whether he could be of any assistance. At around this time Professor Jureidini was provided with a 157 page report prepared by the police, setting out the case against Ms Wilmott.
Accompanying this report was a handwritten note that reads:[24]
Thank you for agreeing to have a look at this matter for us. Sorry it took so long to get this report to you. Obviously as we discussed it is for your eyes only.
I am looking forward to discussing it further with you once you have had a chance to read it and make an assessment about whether you are able to assist us with a report about Jasmine’s psychological health.
Kind Regards
Erin
[24] VDD24.

I pause there to observe that it was apparent from the tenor and nature of the cross-examination about the report, and the reference to “for your eyes only”, that there was implied criticism of the police for forwarding the report to Professor Jureidini for his consideration. I do not accept that there was any issue with the police providing an expert witness with a summary of their case. In circumstances in which the police were seeking an indication from Professor Jureidini, about whether he thought he could assist in the provision of an expert opinion, it was a pragmatic and sensible approach to adopt. It should be assumed that given the independence of an expert witness, their views will not be coloured by receiving a summary of the allegations prepared by the police as a preliminary means of ascertaining whether the expert is of the view that they may be able to assist. This was also an unusual situation, and the nature of the report that was sought was not of a type commonly obtained by the police.
On 5 April 2021, Professor Jureidini sent an email to Detective Vanderwoude advising that he had looked at the material and believed that he could help. Professor Jureidini explained that by saying he could “help”, he meant no more than that he could provide a report. For that purpose, he sent the police a contract for his services, under the hand of his development business manager.[25]
[25] T449.
On 30 April 2021, Detective Vanderwoude sent Professor Jureidini a further email advising that the police had received approval to secure his services and that they were in the process of identifying a list of questions that they would like answered. In that email it was also explained that to proceed with the charge of criminal neglect, the prosecution would need to prove the elements of s 14 and s 14A of the Criminal Law Consolidation Act 1935 (SA).
On 11 May 2021, Detective Vanderwoude attended at Professor Jureidini’s office and dropped off a USB. In a subsequent email sent that same day, Detective Vanderwoude provided some further information about the nature of the information that the police were seeking. It relevantly read:[26]
I met with other members of my team today and we’ve come up with some questions, parameters, which we hope can help you to focus your report. As I told you when we spoke a couple of weeks ago, the charges against Jenni have not been proceeded with at the instruction of the DPP. We, as an investigation team, do not agree with their decision and the matter is currently being reviewed by another DPP solicitor. We have looked at where the DPP has stated the case is lacking and, although we disagree, we want to try and firm up the issue of "harm" caused to Jasmine … particularly in the last month of her life, this is because the criminal neglect legislation changed a month before her death on 7 September 2018, she died on 6 October 2018.
…
In the final month of her life we have a few reported incidents that we would like you to consider the effect this may have had on Jasmine.
…
These are just some of the things that we’ve identified but please do not be bound solely within these parameters. What we are hoping is that you’re able to provide an expert opinion that Jasmine did, in fact, suffer harm at the hands of Jenni as a result of her treatment from birth to death.
[26] T451-452.
In cross-examination it was suggested to Professor Jureidini that this email contained his “instructions” from the police. Professor Jureidini took issue with the word “instruction” and said:[27]
I didn’t take that as an instruction, I took that as an expression of what they were hoping would come out of my report and I certainly, at no point, took it upon myself to produce a document that was supportive of one position or another. And I do find this a little bit offensive, that you seem to be suggesting that my opinion was available for hire rather than that I was offering to provide my honest professional opinion based on the information that was available to me. And I can point to a number of cases in which I’ve provided opinions that are not sympathetic to the lawyers or legal team that have asked me to provide a report.
[27] T452-453.
He went on to repeat:[28]
No, it wasn’t my instruction. My instruction was to take the information that was available to me and provide a psychiatric opinion about the circumstances of Jasmine’s death.
[28] T453.
It was plain from these exchanges that Professor Jureidini takes considerable pride in his independence and professional integrity, and unsurprisingly took offence to any suggestion that he was being requested to provide a report deliberately tailored to assist the police case.
Although there was no evidence on the topic, I assume that the USB provided to Professor Jureidini contained the various affidavits, materials and exhibits as set out in VDP8.[29] Those documents were reviewed by Professor Jureidini and become the basis of his first report.
[29] Appendix 1: Index of Statements and Miscellaneous Documents (VDP8).
Professor Jureidini commenced his report[30] by identifying the 209 police statements, 17 directories of miscellaneous documents and a police interview with Ms Wilmott (dated 29 October 2020), to which he had regard in arriving at his opinion.
[30] Report of Professor Jureidini dated 27 September (VDP10)
At the outset of the report Professor Jureidini made the observation that there had been a challenge in preparing the report, as it appeared on the materials available to him, that Ms Wilmott, Jasmine and SM were unreliable in their reporting. The accounts of these individuals were often at odds with other material that Professor Jureidini had received in the brief of evidence. In addition, there were inconsistencies between other witnesses who provided differing accounts. Some of the differences were more significant than others.
As a consequence of the task that Professor Jureidini was required to undertake, it was necessary for him to make intermediate findings of fact, which involved preferring the accounts of some witnesses over others.
Professor Jureidini structured his report by setting out the various propositions that the police had asked him to comment on. Under each heading Professor Jureidini identified the materials upon which he was reliant in responding to those propositions. He also identified the evidence that was contradictory to the matters he relied upon. In his evidence, Professor Jureidini explained “throughout my reports I was careful to point out where contradictory information was present and where that caused me to temper my conclusions”.[31] On that basis, it was submitted by the prosecution that Professor Jureidini has been transparent in his approach.
[31] T227.
The ultimate opinion expressed by Professor Jureidini in his report was that Ms Wilmott’s conduct was the primary determinant of Jasmine’s death.
In the course of his investigations into suicides and attempted suicides, Professor Jureidini has routinely been charged with the responsibility of determining questions of fact, applying his expertise. That is what he did in this case. It is important to note that whilst the methodology utilised by Professor Jureidini is a proper and legitimate approach to adopt in a root cause analysis, a psychological autopsy or in the more informal circumstances in which Professor Jureidini has undertaken enquiries or investigations into the cause of suicide in young people, his role in the context of a criminal trial is necessarily different.
In a criminal trial it is for the trier of fact, whether that be a judge or jury, to make both intermediate and the ultimate finding of facts. That exercise can be assisted by the knowledge and expertise of an expert witness, but the factual conclusions remain the exclusive purview of the trier of facts.
It follows that for the purposes of this trial, the opinion of Professor Jureidini as contained in his reports is expressed in a manner that is plainly inadmissible.
Evidence on the voir dire
It was no doubt in recognition of this issue that Ms Litster chose to abandon reliance on Professor Jureidini’s reports (given the form in which they had been drafted) and endeavoured instead to lead Professor Jureidini’s evidence in a more orthodox fashion, attempting to obviate the need for Professor Jureidini to make any intermediate findings of fact.
In order to do this, and in advance of the voir dire, the prosecution prepared a table of “Assumptions/Conclusions”,[32] which set out over 200 factual conclusions which Professor Jureidini had arrived at in his report. In the table, and in Professor Jureidini’s evidence, these conclusions were described as assumptions.
[32] VDP9.
Next to each assumption Professor Jureidini was asked to indicate whether the removal of the assumption changed his opinion about Ms Wilmott’s primary responsibility for Jasmine’s death. Next to the vast majority, Professor Jureidini noted that the removal of that individual assumption would not change his overall opinion.
As I have mentioned, during the course of his evidence in chief, Ms Litster did not ask Professor Jureidini to make any findings of fact, but rather invited him to make assumptions and then provide an opinion on the basis of those assumptions being made good.
It is useful to set out the manner in which Professor Jureidini’s evidence was structured and the topics that were led.
Having qualified Professor Jureidini, Ms Litster asked him a series of questions about particular causes of suicidal ideation. Under that rubric, Professor Jureidini gave evidence on the following topics:
·Hopelessness and powerlessness.
·Solitary confinement.
·The significance of the behaviour of a parent towards a child.
·Psychological harm caused by physical assaults by a parent on a child.
·Inadequate socialisation of a child.
·The contribution of mental illness towards suicidal ideation.
·Autism Spectrum Disorder and the extent of Professor Jureidini’s expertise.
·Reactive Attachment Disorder and the extent of Professor Jureidini’s expertise.
·Restrictions and controls i.e. preventing a child from going to birthday parties and other normal social activities.
·The impact of sub-standard accommodation.
·The deprivation of the opportunity to attend school.
·The impact of requiring a child to eat food and do homework outside.
·Excessive punishments and physical abuse.
Ms Litster then led Professor Jureidini through a series of questions to explain his involvement in this case.
In that context, Professor Jureidini described that the process that he had undertaken was akin to a root cause analysis, resulting in him arriving at the opinion that the primary determinant of Jasmine’s suicide was her mother’s cruel treatment of her.[33]
[33] T222.
Ms Litster then embarked on the laborious task of taking Professor Jureidini through the table of assumptions asking him to comment on how each assumption would impact Jasmine and the risk of her committing suicide.
As Ms Litster engaged in this process, it became apparent that there was little utility in the exercise that was being undertaken, and the matter was adjourned to afford Ms Litster with the opportunity to consider whether there was a more efficient and effective means to present the evidence of Professor Jureidini.
On the resumption of Professor Jureidini’s evidence, Ms Litster attempted to take a more broad-brush approach, however it became apparent that in attempting to streamline the evidence with the use of the table, some of the information contained within the footnotes from the original report had not carried through. On that basis Ms Litster tendered Professor Jureidini’s reports in order for that additional material to come before the Court.
Ms Litster made plain the basis upon which she had tendered Professor Jureidini’s reports. She explained:[34]
The Crown tendered the statements for the purpose of exposing the methodology of process of reasoning Professor Jureidini engaged in with reference to the evidence he gave at particular points of his evidence.
At transcript 241 he referred to his report in respect of physical abuse by the accused. At 242 he referred to the components that led to his ultimate conclusion that Jenni Wilmott’s excessive punishments were the primary determinant in Jasmine’s suicide.
Reference to that report assists an understanding of which evidence he was referring to underpinning that conclusion. At 245 Professor Jureidini referred to his report and his methodology, setting out where there was contrary information to a conclusion he reached.
At 259 he again referred to his report. That particular reference can only be understood by having regard to the report when understanding his answer in court.
He referred to the references in his report at 277 of the transcript. There is a reference to footnotes and a difference between footnotes in the letter and the report. It was tendered for that purpose also.
I’ve also indicated the Crown’s position to my learned friend in terms of how the evidence would be adduced in the trial itself. The Crown proposes to adduce the evidence orally, not by way of statement. I have made that clear. Again, the purpose of tendering his reports is to explain his methodology as he referred to his reports continuously throughout his evidence on the voir dire.
I say he will have to give evidence orally at the end of the trial, also with reference to the fact that the evidence is yet to be given in the trial which would underpin any opinions he gives.
[34] T364-365.
Ms Litster expressly disavowed any reliance on the factual findings made by Professor Jureidini in his report.
As is apparent from this overview of Professor Jureidini’s evidence, it falls into three categories. There is, what I will refer to as, the general observations made about the impact of various maltreatments and life experiences on a child and the manner in which that may lead to a suicidal ideation.
The second category of evidence is the intermediate findings of fact made by Professor Jureidini. This is encapsulated in the schedule of “assumptions” proposed by the prosecution.
The final aspect of Professor Jureidini’s evidence is his ultimate opinion as to the impact of Ms Wilmott’s conduct on Jasmine’s decision to commit suicide.
It is important to bear in mind, when I come to consider the admissibility of this evidence, that there are these separate layers to Professor Jureidini’s evidence.
Legal principles – admissibility of expert evidence
The starting point in determining the admissibility of evidence of expert opinion is relevance; what is the fact in issue that the party tendering the evidence asserts that the opinion proves or assists in proving. The fundamental principle is that the admissibility and purpose of expert opinion evidence is to assist the Court to form a sound judgment on matters requiring specialised knowledge or expertise. It follows that the expert must have the relevant knowledge and expertise and be capable of expressing an opinion on a matter on which the Court requires assistance.
Once the threshold of relevance is satisfied, expert opinion evidence is only admissible if it satisfies the common law requirements relating to its admissibility.
In R v Bonython,[35] King CJ summarised the common law requirements for the admissibility of expert opinion evidence in the following passage:[36]
The general rule is that a witness may give evidence only as to matters observed by him. His opinions are not admissible. One of the recognized exceptions to this rule is that which relates to the opinions of an expert. This exception is confined to subjects which are not, or are not wholly, within the knowledge and experience of ordinary persons. On such subjects a witness may be allowed to express opinions if the witness is shown to possess sufficient knowledge or experience in relation to the subject upon which the opinion is sought to render his opinion of assistance to the court. Before allowing a witness to express such opinions, the judge must be satisfied that the witness possesses the necessary qualifications, whether those qualifications be acquired by study or experience or both. But when it is established that the witness is an expert in the relevant field of knowledge, he will be permitted to express his opinion, however unconvincing it might appear to be subject always, of course, in a criminal trial to the discretion to exclude evidence whose prejudicial effect is disproportionate to its probative value. The weight to be attached to his opinion is a question for the jury.
(Footnotes omitted)
[35] (1984) 38 SASR 45.
[36] Ibid at [46].
The conditions governing the admissibility of evidence tendered as expert opinion were more recently explained by Heydon JA in Makita (Aust) Pty Ltd v Sprowles:[37]
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of specialised knowledge; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on assumed or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v The Queen, on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise.”
[37] (2001) 52 NSWLR 705 at [85].
In Lang v The Queen,[38] Jagot J cited with approval the identification of seven criteria for the admissibility of expert opinion evidence at common law in Cross on Evidence. Those were:[39]
(a)the existence of a field of specialised knowledge;
(b)an aspect of that field in which the witness is, by training, study or experience, an expert;
(c)the expert opinion is wholly or substantially based on the witness’s expert knowledge;
(d)the assumptions of primary fact on which the opinion is based are identified;
(e)evidence has been or will be admitted to prove those primary facts, or sufficiently like facts to make the opinion useful;
(f)demonstration that the facts on which the opinion is based form a proper foundation for it; and
(g)demonstration of the scientific or other intellectual basis of the conclusions reached.
[38] [2023] HCA 29.
[39] Ibid at [431].
As to (g), the final criteria, Jagot J observed that the extent to which the reasoning process can and should be exposed will vary dependent upon the field of the expertise and the evidence. Her Honour observed:[40]
Another reality is that the requirement expressed in Makita that the expert’s evidence must “fully” expose the expert’s reasoning process does not involve an absolute standard, even in a case where admissibility is governed by the terms of s 79 of the uniform evidence legislation. Much will depend on the field of expertise and the nature of the opinion given. Accordingly, in Dasreef Pty Ltd v Hawchar, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said that, for example, “a specialist medical practitioner expressing a diagnostic opinion in [their] relevant field of specialisation is applying ‘specialised knowledge’ based on [their] ‘training, study or experience’, being an opinion ‘wholly or substantially based’ on that ‘specialised knowledge’, will require little explicit articulation or amplification once the witness has described [their] qualifications and experience, and has identified the subject matter about which the opinion is proffered”.
The point being made in Dasreef is that, while satisfaction of the requirement that an expert opinion must be based on the expert’s expertise determines the admissibility and not just the weight of the evidence, it is not necessarily the case that, if all matters underlying the opinion expressed are not “made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge”. Depending on the field of expertise and the expert opinion given, some matters may be properly assumed or inferred as forming part of the foundation of the expert’s opinion. In Hannes v Director of Public Prosecutions (Cth) [No 2] this reality was expressed in the observation that “the need to demonstrate the process by which an inference was drawn is less likely to be insisted upon with strictness in the case of a well-accepted area of expertise, than in other cases”. In Honeysett v The Queen, French CJ, Kiefel, Bell, Gageler and Keane JJ expressed this criterion as requiring not so much that every foundation for the opinion is to be “fully expose[d]” or “made explicit”, but that the expert evidence “must be presented in a way that makes it possible for a court to determine that it is [substantially] based” on the person’s training, study, or experience.
To these realities must be added another observation. It is that no expert evidence is based exclusively on the expert’s training, study, or experience. All fields of specialised knowledge assume “observations and knowledge of everyday affairs and events, and departures from them”, it being the “added ingredient of specialised knowledge to the expert’s body of general knowledge that equips the expert to give [their] opinion”.
(Footnotes Omitted)
[40] Ibid at [433]-[435].
The challenge to the evidence of Professor Jureidini

Ms Wilmott has filed an interlocutory application seeking an order that the entirety of the evidence of Professor Jureidini be excluded. The grounds relied upon in support of that application are:[41]
1.1The opinions of Professor Jureidini engaged in fact finding based on the statements of witnesses and other material supplied by the South Australia Police (SAPOL) where such fact finding is the exclusive domain of the Court;
1.2The methodology of Professor Jureidini in arriving at his expert opinions is not within his area of expertise nor is it a recognised field of expertise;
1.3The engagement by SAPOL of Professor Jureidini as an expert did not comply with the Joint Criminal Rules and was productive of a lack of independence in the expression of his expert opinions, and further that Professor Jureidini made impermissible factual findings based on the statements, records and summary that he received from SAPOL;
1.4The methodology and expressions of opinion of Professor Jureidini were not within a recognised area of scientific knowledge nor were they within the expertise of Professor Jureidini;
1.5The evidence ought to be excluded in the exercise of discretion.
[41] FDN 356, an amended application to FDN 317.
There is a degree of overlap between these grounds. They relate to both the question of the admissibility of the evidence and, if the evidence is admissible, whether the Court should exercise the discretion to exclude the evidence. The onus is on the prosecution to establish the admissibility of the evidence, and it is for Ms Wilmott to establish a basis upon which to exercise the discretion for the evidence to be excluded.
Given the position taken by the Director about the manner in which the evidence of Professor Jureidini is to be led, ground 1.1 can readily be disposed of.
Whilst it is unfortunate that the reports of Professor Jureidini were requested in a manner that required him to make findings of fact, and at times credibility, the prosecution do not propose to lead that evidence. It is for the prosecution to choose how they present their evidence in the trial. The evidence that they seek to lead is the evidence given by Professor Jureidini on the voir dire hearing. It is that evidence about which I am required to rule, and not that contained in the reports.
On that basis, the complaint underpinning ground 1.1 falls away. A similar observation can be made about the second limb of ground 1.3, which is “that Professor Jureidini made impermissible factual findings based on the statements, records and summary that he received from SAPOL”.
The admissibility of the evidence
The remaining grounds can be grouped together on the basis of those complaints that go to the question of admissibility and those that are advance in support of a submission that I should exercise my discretion to exclude Professor Jureidini’s evidence.
I will deal firstly with those grounds that relate to the issue of the admissibility of the evidence. These are:
1.2The methodology of Professor Jureidini in arriving at his expert opinions is not within his area of expertise nor is it a recognised field of expertise;
…
1.4The methodology and expressions of opinion of Professor Jureidini were not within a recognised area of scientific knowledge nor were they within the expertise of Professor Jureidini;
In order to consider these objections, it is convenient to utilise the seven criteria set out in Cross on Evidence:
a) The existence of a field of specialised knowledge
The first criteria requires proof of the existence of an area of ‘specialised knowledge’, which is to be distinguished from matters of common knowledge. In Honeysett v The Queen,[42] the High Court explained what is meant by the term ‘specialised knowledge’:
Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person’s training, study or experience must result in the acquisition of knowledge.
(Emphasis in Original)
[42] (2014) 253 CLR 122 at [23].
In respect of Professor Jureidini, Paediatric psychiatry is the relevant field of specialised knowledge. There is no dispute that Professor Jureidini is a qualified paediatric psychiatrist.
b) An aspect of that field in which the witness is, by training, study or experience, an expert
Based on a combination of training, study and experience, particularly arising from Professor Jureidini’s clinical practice and participation in psychological autopsies and root cause analyses, he has a particular expertise, which goes beyond standard psychiatry. An area of Professor Jureidini’s particular expertise is in the understanding and evaluation of the psychological, social and situational circumstances that may contribute to a youth developing a suicidal ideation.
Ms Litster succinctly summarised Professor Jureidini’s experience in the following terms:[43]
He’s working as a psychiatrist, it’s really psychological work that he undertakes in terms of the psychological autopsies, but he’s working as a psychiatrist, he’s qualified as a psychiatrist. The limits of his expertise in terms of what he can talk to are defined by his experience. As I’ve set out at some length now, it’s what he has done around suicide, psychological autopsies, adolescents and root cause analyses, more broadly, looking to the causes, even where that edges into an adult sphere. So he is qualified by virtue of his profession, his clinical experience and his capacity to speak to this topic is defined and gifted to him by his precise experience in this area.
[43] T479.
The combined effect of the various positions that Professor Jureidini has held, the training that he has undertaken and the academic research that he has been involved in are such that it is unlikely that any other expert within South Australia could equal his level of expertise.
During the course of her submissions, Mrs Shaw KC put to the Court that to speak of the uniqueness of Professor Jureidini’s expertise merely highlights “that he does not belong and is not giving evidence that is based on specialised knowledge, namely knowledge that belongs to a particular area of expertise that has been validated”.[44]
[44] T498.
I do not accept that submission. It does not follow as a matter of logic or law that just because an expert has a unique expertise, or experience that sits at the cutting edge of a particular science, means that they are not giving evidence based on a specialised knowledge.
Aspects of the evidence given by Professor Jureidini could be given by any properly qualified and experienced psychiatrist. Between that psychiatrist and Professor Jureidini, would sit a whole spectrum of psychiatrists with varying degrees of experience in, and exposure to, youth suicide. The extent to which they are equipped to provide an opinion, and the nature of that opinion, will be coloured by where they sit in that spectrum. It is the very nature and extent of Professor Jureidini’s experience that makes him particularly well placed to give evidence on this specialised area of knowledge.
In support of her argument, Mrs Shaw KC relied on the judgment of Nicholson J in The Corporation of the City of Unley v Crichton.[45] In that case, the issue at trial[46] was whether the respondent had committed the offence of tree‑damaging activity,[47] in relation to regulated trees. The conduct that was the basis of the charge was that the respondent had arranged to have limbs removed from two River Red Gum trees, that were encroaching on his property. The Council attempted to rely on the opinion of an expert botanist to establish the percentage of the crown[48] of the two trees that had been removed. The expert had reached an opinion on the amount of the crowns that had been removed by comparing the circumference of the final cuts in the trees, with the circumference of the remaining branches with leaves intact.
[45] [2021] SASC 17.
[46] The Corporation of the City of Unley v Crichton [2019] SAERDC 43.
[47] Development Act 1993 (SA) s 44(1).
[48] The leaves and living branches of the tree ([2021] SASC 17 at [29]).
Whilst the trial Judge found that the expert was highly skilled in his field and gave evidence in a truthful manner, he was not persuaded that the botanist’s approach or methodology on the assessment of the extent of the crowns that had been removed, was a matter in relation to which expert evidence could be given. The trial Judge expressed particular concerns about the fact that the expert did not examine the site until after the work had been undertaken, the various prunings removed and the site had been cleaned up. In addition, that the expert did not physically measure the diameter of the pruning cuts, rather, he made a visual estimate from standing on the ground. As to the basis of this approach, the expert relied on his general knowledge of the biology of trees, however, was unable to identify any scientific text or articles in which this methodology had been utilised. On that basis, the trial Judge declined to accept the opinion of the expert on this topic.
On appeal, the Council contended that the trial Judge was in error in rejecting the evidence on the basis that an absence of scientific support for the expert’s opinion was a matter of weight rather than admissibility.
On appeal, Nicholson J was prepared to accept that the expert possessed a field of specialised knowledge, however went on to make the following observation:[49]
… it does not follow that every opinion expressed by such an expert is necessarily one that derives from that field of specialised knowledge. It is this truism that underpins Heydon J’s second requirement – there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experiences, the witness has become an expert. …
[49] The Corporation of the City of Unley v Crichton [2021] SASC 17 at [96].
Nicholson J applied that general principle to the facts of the case and said:[50]
Dr Nicolle purported to have expertise in being able to assess the quantity of the crowns of T1 and T2, what those crowns were comprised of and whether or not or the extent to which, mistletoe existed throughout the crowns by simply reviewing from the ground the remaining stubs of the pruned limbs and estimating from the ground the diameters of those pruned stubs. Whilst this was a common practice of Dr Nicolle’s he did not offer anything, nor did the complainant on his behalf, to support a finding that this practice of Dr Nicolle’s represented an identified aspect of the field of expertise (the practise of arboriculture) of which Dr Nicolle was an exponent. Dr Nicolle, in effect, performed a mathematical calculation based on his observations of the pruned eucalyptus taken by way of estimation from the ground and on his experience of how healthy eucalyptus of the age in question might have been expected to develop. There was simply no capacity to test the accuracy of Dr Nicolle’s estimations on this occasion, nor, importantly, on any previous occasions when he may have performed a similar exercise. For all that is known, he might have been repeatedly in error on any such previous occasions. I mean no disrespect to Dr Nicolle in any way whatsoever. As the Judge found, he clearly is a very competent, credentialed and experienced arborist. Such estimations may be of use in other contexts. However, for the reasons given, I am not satisfied that they have a sufficient basis or support from within Dr Nicolle’s field of expertise to qualify as expert opinion.
[50] Ibid at [97].
Nicholson J went on to say that even if the expert’s opinion was strictly admissible, there were other considerations that meant that little weight could be given to the evidence. These were that the expert had only examined the trees after the event, the manner in which he had estimated the size of the pruning cuts, and other limitations to the information that he had about the condition of the trees at the time that they were pruned.[51]
[51] Ibid at [98].
As is apparent from the reasoning of both the trial Judge and Nicholson J, in Crichton there was a clear disconnect between the expert’s field of expertise and the opinion that he provided to the Court, which was exacerbated by the absence or inadequacy of an appropriate factual basis upon which to found that opinion. The same cannot be said about the evidence of Professor Jureidini. The evidence that he purports to give and the opinion that he provided are clearly the product of his vast experience and training.
c) The expert opinion is wholly or substantially based on the witness’ expert knowledge
Psychiatry is a hybrid scientific discipline that combines methods from both the natural sciences and social sciences, which respectively provides a medical model of illness and an understanding of psychiatric abnormalities as variations of human experience. It follows that it will often be difficult to separate from the body of specialised knowledge upon which an expert’s opinion depends, observations and knowledge of everyday affairs and events.
Expert opinion evidence is admissible if it is wholly or substantially based on specialised knowledge. The latter reflects the artificiality in attempting to completely excise the human experience of the expert from their professional opinion. As Gaudron J explained in Velevski v The Queen:[52]
The concept of “specialised knowledge” imports knowledge of matters which are outside the knowledge or experience of ordinary persons and which “is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience”. So to say, however, is not to say that an expert witness cannot have regard to matters that are within the knowledge of ordinary persons in formulating his or her opinion. …
(Footnotes omitted)
[52] (2002) 76 ALJR 402 at [82].
A similar view was expressed by Gummow and Callinan JJ in discussing the test under the Evidence Act 1995 (NSW):[53]
… Training, study or experience”, the words used in the section, necessarily include, as they must in all areas of expertise, observations and knowledge of everyday affairs and events, and departures from them. It will frequently be impossible to divorce entirely these observations and that knowledge from the body of purely specialised knowledge upon which an expert’s opinion depends. It is the added ingredient of specialised knowledge to the expert’s body of general knowledge that equips the expert to give his or her opinion. …
[53] Ibid at [158].
In the circumstances of this case, it is not outside the realm of a lay person to consider the circumstances leading up to Jasmine’s death and come to their own view about the cause of her suicide. However, that does not mean that Professor Jureidini’s evidence cannot be of assistance. The expert evidence is capable of explaining the impact of various circumstances and events in Jasmine’s life and in assisting the Court in the context of considering all of Professor Jureidini’s experience.
d) The assumptions of primary fact upon which the opinion is based are identified
As explained previously there are three components to Professor Jureidini’s evidence. The first in which he articulates, the possible causes of suicidal thinking in children, is general evidence to be given based on the factual matrix of the prosecution case. This evidence is founded on Professor Jureidini’s overall experience and training.
The fourth criteria from Cross only applies to the second two categories of evidence that the Director proposes to lead from Professor Jureidini, those being his intermediate factual findings and his ultimate opinion as to the primary cause of Jasmine’s death.
It is the Director’s submission that the evidence will be led by asking Professor Jureidini to make a number of assumptions based on the evidence that was led at trial. The assumptions upon which Professor Jureidini’s report is based upon are set out in the table VDP9. In addition to that, the impact of the removal of any one of those assumptions is also identified in the table.
e) Evidence has been or will be admitted to prove those primary facts, or sufficiently like facts to make the opinion useful
Although Cross identifies that the need for the evidence to be capable of proving the primary facts or sufficiently similar facts to make the opinion useful as a criterion for admissibility, there is authority to suggest that this factor goes to weight and not admissibility.[54] It is however not necessary to determine this issue as there is a practical difficulty for the prosecution attempting to satisfy this criterion given the number and nature of the assumptions relied upon.
[54] Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [41-42]; Taub v The Queen (2017) 95 NSWLR 388 at [30]-[32].
As I have mentioned, the table relied upon by the prosecution contains over 200 assumptions/conclusions which, if established, underpin the opinion of Professor Jureidini’s intermediate and ultimate opinions. Whilst Professor Jureidini has been asked to consider the impact of individual assumptions not being proved, that is the only variation that he has been required to consider.
Even if Professor Jureidini is the last witness to give evidence on the prosecution case, it goes without saying that even at that point in proceedings the prosecution will have no knowledge of the findings of fact that I may make. I may accept all, some, or none of the prosecution witnesses. I may accept some aspects of the evidence of a witness and reject others. I may place limited weight on a witness, absent independent evidence from another source. The permutations are innumerable.
Given the number of assumptions and variations on the combinations of the assumptions, the task that the prosecution seeks to embark upon is highly impractical. Very limited weight could be placed on any opinion provided, given the malleability of the various assumptions. In such circumstances, the prosecution has significant difficulty in satisfying the criteria that the evidence has been, or will be, admitted to prove those facts such as to make the opinion useful. It is the number of factual permutations that result in Professor Jureidini’s opinion/s being of very limited assistance to the Court.
It also highlights how closely the opinion of Professor Jureidini comes to usurping the role of the Court in making factual findings. Professor Jureidini will not have seen and heard the witnesses give evidence and the detail of that evidence. At the most, Professor Jureidini may be asked to assume some of the salient features of the evidence. The exercise would necessarily be devoid of any qualitative assessment of the evidence. How then does the Court factor that opinion into the determination on the question of causation?
For all of these reasons, I have come to the view that the factual foundation of any opinion arrived at by Professor Jureidini would be so tenuous and subject to so many caveats and qualifications, that it would, at most, be of negligible assistance to the Court.
Even if the evidence is technically admissible, I would exercise my discretion to exclude it. In these circumstances, to admit the evidence brings with it an unfairness to Ms Wilmott. She is entitled to know the case that she has to meet. Can she, through her counsel, be expected to meet the myriads of scenarios that the prosecution would need to present in order to meet the various factual findings that could be made? Presumably that would also necessitate a further report being obtained from Professor Jureidini which would again need to be revisited at the end of the trial, before he gave evidence. Such a state of affairs is untenable and is unfair to Ms Wilmott.

The evidence of Professor Jureidini’s opinions on the intermediate findings of fact and the ultimate question of the primary determinant cause of Jasmine’s death will not be admitted.
That does not however impact on the general evidence that the prosecution proposes to lead from Professor Jureidini. This evidence does not falter at the same hurdle. In her submissions, Mrs Shaw KC accepted that an expert could speak within their science as to what might be, according to studies, a likely outcome based on a number of relevant considerations. There is a sufficient evidentiary basis for Professor Jureidini to give this general evidence.
f) Demonstration that the facts on which the opinion is based form a proper foundation for it
The factual foundation upon which the general evidence of Professor Jureidini is based is very limited. It includes only very broad factual propositions upon which Professor Jureidini will provide opinion evidence as to whether these matters could lead or contribute to a child deciding to commit suicide. There is no issue with the evidence satisfying this criteria.
g) Demonstration of the scientific or other intellectual basis of the conclusions reached
The basis of Professor Jureidini’s evidence is his training both generally and more specifically in relation to psychological autopsies, his knowledge from the vast body of literature and his experience and practice, all of which was set out in his evidence and in his curriculum vitae.
The general discretion to exclude the evidence
It was submitted by Mrs Shaw KC that even if Professor Jureidini’s evidence is admissible, there are a number of matters that when considered together amount to a proper basis upon which to exercise the discretion to exclude the evidence.
Procedural unfairness
The first was that to admit the evidence results in a procedural unfairness to Ms Wilmott; that is, that she will not know the precise parameters of Professor Jureidini’s evidence until the conclusion of the prosecution case.
This will always be a matter that arises in a trial in which an expert is required to provide an opinion based on a number of assumptions. It will not be known whether those assumptions can be made good until all of the evidence has been heard. That of itself does not necessarily lead to procedural unfairness for an accused.
Given the evidence that I have already indicated that I will not admit, the foundation for the argument about procedural unfairness in large part falls away. Professor Jureidini will not be asked to make the assumptions of the type complained of by Ms Wilmott.
Breach of the Joint Criminal Rules 2022 (SA)
It was Mrs Shaw KC’s contention that there has been a breach of the Joint Criminal Rules 2022 (SA) (the Rules) and that breach, combined with the other matters raised, is a proper basis for excluding the evidence.
It is alleged that the reports of Professor Jureidini are in breach of r 47.1 of the Rules. That rule sets out matters to be included in an expert’s report, including “an acknowledgment that the expert has read this Part and agrees to be bound by its provisions”,[55] and “attach copies of documents that record instructions given to the expert”.[56] The Director does not dispute that the reports of Professor Jureidini do not address all of the matters raised in r 47.1 of the Rules.
[55] Joint Criminal Rules 2022 (SA) r 47.1(c).
[56] Ibid r 47.1(o).
The object of the Rules is “to facilitate the just, efficient, timely and cost-effective determination of proceedings”.[57] It is noteworthy, however that r 1.5(3) provides:
(3)These Rules are not intended to defeat a proper prosecution by or frustrate a proper defence of a party who is genuinely endeavouring to comply with the procedures of the Court.
[57] Ibid r 1.5(1).
To that end, r 12.1 provides the Court with a broad power to “make any order that it considers appropriate in the interests of justice”. In particular, and relevant to this argument, that includes orders that the Rules do not apply or to dispense with compliance.
The Rules reflect the need to balance timeliness and procedural adherence, with a flexible approach to ensure that the interests of justice are best met.
There has been no suggestion that the prosecution have not been genuinely endeavouring to comply with the procedures of the Court. To the contrary, it would seem the breach of the Rules is inadvertent and technical or procedural in nature; there has been no prejudice or disadvantage caused to Ms Wilmott.
A breach or breaches of the Rules of this nature are not a proper basis to exercise the discretion to exclude Professor Jureidini’s evidence.
Absence of independence
The third complaint raised by Ms Wilmott in support of the exclusion of the evidence, is that as a consequence of Professor Jureidini’s reliance upon the summary provided by the police, and the fact finding exercise that he embarked upon, there is at least an apprehension that he lacks independence. That is said to be particularly so in circumstances in which he has formed views about the honesty and credibility of Ms Wilmott. It was submitted that as a consequence of the manner in which Professor Jureidini has come to provide and express his opinions, he no longer carries with him the appearance of independence, that is fundamental to the role of an expert before the Courts. Mrs Shaw KC went as far as to submit that Professor Jureidini has disqualified himself from any involvement in the trial by arriving at a “very strong view” about the role of Ms Wilmott in Jasmine’s death. Mrs Shaw KC asked rhetorically how the situation must appear to Ms Wilmott.
Although Mrs Shaw KC generally tended to deal with them compendiously during her submissions, it is important to separate the concepts of bias as compared to apparent or apprehended bias.
Generally, the question of the independence or impartiality of an expert witness is a matter of weight as opposed to a discretion to exclude the evidence. I accept however, that there may be extreme instances in which an expert is so lacking in independence that it is appropriate to exclude the evidence of that witness. That is on the basis that absent any independence, it cannot be said that their experience and opinions are of assistance to the Court in resolving the relevant issues.
This is not such a case. As I have said, in my view there was no issue with the police providing Professor Jureidini with their summary of the case against Ms Wilmott to ascertain whether this was a matter in which he could assist by furnishing a report. Professor Jureidini did as requested in making factual determinations in order to arrive at his ultimate determination. It cannot and should not be assumed that on that basis he now has a closed mind or a fixed view. To the contrary, throughout the course of his evidence he made it plain that his opinion was only as strong as the facts that underpinned it and in the event that any of those facts were not proved, his opinion would be modified accordingly. As he explained during cross-examination, when it was suggested that he had rejected some of the witness affidavits:[58]
I didn’t reject any statement, what I did was to take all the information that was available to me and come up with what I thought was the most plausible account and explanation of Jasmine’s suicide. So the degree to which my opinion is accepted depends on whether the judge agrees with the way that I have analysed the information. That’s all available in my report.
[58] T435.
I also do not accept that Professor Jureidini’s evidence should be excluded on the basis of a perception of bias. Mrs Shaw KC’s submission about the discretion to exclude the evidence on that basis was more nebulous. Whilst it has long been accepted that an apprehension of bias is a proper basis for a trier of fact to recuse themselves from presiding over a matter, Mrs Shaw KC did not provide any authority in support of an extension of these or related principles to expert witnesses. I do not accept that a perception of impartiality by an accused is a basis upon which to exercise the discretion to exclude evidence, that is otherwise relevant and admissible.
In my view none of the matters raised by Ms Wilmott individually or in combination found an appropriate basis upon which to exclude the evidence of Professor Jureidini that I have otherwise not already excluded.
Conclusion
1.I decline to admit the evidence of Professor Jureidini’s findings of intermediate facts or of Professor Jureidini’s ultimate opinion that the conduct of Ms Wilmott was the primary determinant cause of Jasmine’s death.
2.I decline to exclude Professor Jureidini’s general evidence about matters that may lead to a child developing a suicidal ideation.