R v Wilmott (No 3) - [2025] SASC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v WILMOTT (No 3)
Criminal Trial by Judge Alone
[2025] SASC 55
Reasons for Ruling of the Honourable Justice McDonald
28 April 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - EVIDENCE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE
EVIDENCE - PROOF - STANDARD OF PROOF - STANDARD OF SATISFACTION - PROBATIVE VALUE
EVIDENCE - PROOF - STANDARD OF PROOF - STANDARD OF SATISFACTION - PROBATIVE VALUE - CIRCUMSTANTIAL EVIDENCE
This is an application made by the accused, for the exclusion of discreditable conduct evidence, specifically evidence in relation to alleged observations made by the accused’s neighbours regarding the accused yelling and evidence of the accused’s post-offence conduct.
The accused challenges the admissibility of both forms of evidence on the grounds that the neighbours’ observations of yelling and the accused’s post-offence conduct are irrelevant and that the discreditable conduct evidence (accused yelling) does not satisfy the test under s 34PA(2)(a) of the Evidence Act 1929 (SA).
The Director contends that the evidence regarding the neighbours’ observations of the accused yelling and the circumstantial evidence of the accused’s post-offence conduct, is relevant to the prosecution case in identifying and determining the nature of the relationship that existed between the accused and the deceased. The Director submits that the discreditable conduct evidence satisfies the test under s 34PA(2)(a) of the Evidence Act in that the probative value of the evidence outweighs its prejudicial effect and thus should be admitted.
Held: application partially dismissed:
The evidence in relation to the neighbours’ observations of the accused yelling:
1.The evidence of Clayton Whitehead regarding observations of the accused yelling is relevant and is to be admitted. The probative value of the evidence outweighs its prejudicial effect, and the permissible use of the evidence can be kept separate and distinct from any impermissible use.
2.The evidence of Michelle Whitehead is relevant and is to be admitted. The probative value of the evidence outweighs its prejudicial effect, and the permissible use of the evidence can be kept separate and distinct from the impermissible use.
3.The evidence of Christopher White is relevant and is to be admitted. The probative value of the evidence outweighs its prejudicial effect, and the permissible use of the evidence can be kept separate and distinct from the impermissible use.

The evidence in relation to the accused’s post-offence conduct:
4. The evidence of the accused clearing the deceased’s room is relevant and is to be admitted.
5.The evidence of the accused presenting as “pragmatic” to the social worker in the time leading up to the withdrawal of life-sustaining-treatment is relevant and is to be admitted.
6.The evidence of the accused informing the social worker that the deceased had been sexually abused and a police report made is relevant and is to be admitted.
7.The evidence of the accused spending a limited time at the hospital with the deceased is relevant and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wilmott (No 3)

Details

AGLC: R v Wilmott (No 3) [2025] SASC 55
Case: [2025] SASC 55
Decision Date: 28 April 2025

CaseChat Overview and Summary

The case of R v Wilmott (No 3) involves the prosecution of Ms Wilmott for manslaughter. The dispute centres on the admissibility of certain evidence that the prosecution intends to present during the trial. The court in question is the Supreme Court of New South Wales. Ms Wilmott has filed interlocutory applications seeking the exclusion of specific evidence, including observations made by her neighbours regarding her yelling at her daughter, Jasmine, and her conduct following Jasmine's hospitalisation. The court was tasked with determining the relevance and prejudicial nature of this evidence in the context of the manslaughter charge.

The primary legal issues before the court were whether the evidence of Ms Wilmott's neighbours observing her yelling at Jasmine, as well as her conduct after Jasmine's hospitalisation, should be excluded from the trial. Ms Wilmott argued that this evidence was either irrelevant or, if relevant, its prejudicial effect outweighed its probative value. The court had to assess the probative value of the evidence in establishing the facts of the case against the potential prejudice it might cause to Ms Wilmott. This involved a careful consideration of the relevance of the evidence to the charge of manslaughter and the potential impact it might have on the jury's impartiality.

The court declined to exclude the evidence of Ms Wilmott's neighbours observing her yelling at Jasmine, as well as the evidence of her conduct after Jasmine's hospitalisation. The court reasoned that the evidence was relevant to the circumstances surrounding the alleged offence and could assist in establishing the context and events leading up to Jasmine's condition. While acknowledging the potential prejudicial effect, the court found that the probative value of the evidence outweighed any prejudice it might cause. Consequently, the court ruled that the evidence should be admitted during the trial. The court noted that the weight to be given to this evidence would be determined at the conclusion of the trial, after all evidence had been presented and closing addresses had been made.

The final orders of the court were that the evidence of Ms Wilmott's neighbours observing her yelling at Jasmine, and her conduct after Jasmine's hospitalisation, would not be excluded from the trial. The court recognised that the relevance of this evidence in establishing the context of the events leading to the alleged manslaughter was significant. The court also acknowledged the potential prejudice but concluded that the probative value of the evidence justified its admission. The court's decision was that the evidence should be presented to the jury, with the ultimate determination of its weight to be made at the end of the trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms Wilmott has filed a number of interlocutory applications seeking the exclusion of various aspects of the evidence that the Director proposes to lead as part of the prosecution case. This ruling relates to the orders sought in grounds 6 and 15 of an interlocutory application filed by Ms Wilmott on 18 February 2025;[6] the application seeks the exclusion of particular categories of evidence. The evidence that is the subject of these applications is evidence of the observations made by Ms Wilmott’s neighbours[7] of her yelling at Jasmine and evidence of Ms Wilmott’s conduct after Jasmine was hospitalised and placed on life support. Item 6: The exclusion of the evidence of Clayton Whitehead, Michelle Whitehead and Christopher White as to alleged observations of yelling[6] FDN 329.[7] Clayton Whitehead, Michelle Whitehead and Christopher White. Clayton Whitehead, Michelle Whitehead and Christopher White were all neighbours of Ms Wilmott when she lived at 4 Gleneagles Circuit, Greenwith. Mr and Mrs Whitehead lived next door at number 5 and Mr White lived at number 3. Each of these witnesses have provided affidavits setting out events that they observed and/or heard whilst Ms Wilmott lived on the street. In particular, they describe occasions on which they heard Ms Wilmott yell at, or berate Jasmine, and occasions on which they observed Jasmine undertake chores outside of the house, clothed in only her underwear. Ms Wilmott seeks an order that the former category of evidence be excluded, namely, evidence of Ms Wilmott yelling at Jasmine. The basis upon which the application is made is that the evidence is irrelevant or, alternatively, that its prejudice outweighs its probative value. Clayton Whitehead As of July 2020, Mr Whitehead had lived on Gleneagles Circuit for approximately 10 years. The observations that he made, that are the subject of this application, took place over approximately 2013 and 2014. At that time, he was aware of the family who lived next door. Mr Whitehead said that there was a male who was only there for a short period of time (MW), an adult female who he knew as Jenni Wilmott, a young Asian male (OW) and an older Asian child (AW), whose names he did not know. He was however able to name Jasmine on the basis that her name was regularly shouted by her mother. The impugned evidence appears at [8]-[10] of Mr Whitehead’s affidavit of 28 July 2020. In those paragraphs Mr Whitehead described an occasion on which he heard a series of slapping sounds followed by Jasmine crying. He said, “[t]he noise was a solid slapping noise as though Jasmine was being hit with something, a strap or similar”. He said “[t]his continued for several minutes with the mother telling Jasmine to take her hands away” and “it’s not going to stop until you take your hands away”. He said that he also heard the voice of a young male screaming at Jasmine. Such was the impact of what he heard, Mr Whitehead called out “leave her alone you fucking bitch”, without any apparent effect.[8] [8] Affidavit of Clayton Whitehead dated 3 January 2025 at [4].

Decision

Reasons for decision

I accept that submission and decline to exclude the evidence. Conclusion I make the observation that whilst I have declined to exclude much of the “post-offence conduct” evidence, that is the subject of objection, there remains a live issue as to the weight that can be placed on a number of aspects of this evidence. The appropriate time to make that determination is at the end of the trial when I have heard all of the evidence and the closing addresses of counsel.

Ratio Decidendi

Legal Principle Established

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