R v Wilmott (No 4) - [2025] SASC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v WILMOTT (No 4)
Criminal Trial by Judge Alone
[2025] SASC 82
Reasons for Ruling of the Honourable Justice McDonald
29 May 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
CRIMINAL LAW - PROCEDURE - POWERS AND DUTIES OF PROSECUTION AS TO CALLING OF WITNESS AND PRESENTING EVIDENCE - GENERALLY
This is an application for a stay of proceedings until such time that the prosecution advises that they will call AP as a witness.
The prosecution set out a number of matters which, in combination, had resulted in the prosecution determining that AP could not be called as a witness of truth. The first was a material change in AP’s position about a preparedness to give evidence in the case, and in particular, the timing of that change in position. The prosecution further submitted that there also internal inconsistencies within AP’s account. The prosecution submitted that the decision to not call AP has been taken cautiously, with all of the obligations of the prosecution’s duties weighing heavily, and that it is only after careful reflection, having had an opportunity to meet with the relevant witness, that the prosecution had come to the position that AP cannot be held out as a witness of truth.
The accused contends that she cannot receive a fair trial absent the prosecution calling AP to give evidence. The accused contended that any inconsistency between AP and other witnesses had to be considered in the context that the nature of the prosecution case is such that there are many inconsistencies between prosecution witnesses, not just those involving AP. The accused submitted that inconsistencies of themselves are not a sufficient basis upon which to find a witness to be unreliable, and consequently decline to call them to give evidence. The accused further submitted that the inconsistencies had not been of such significance that it had impacted on the decision about whether to call AP to give evidence until a specific date. The accused submitted that if the inconsistencies now relied upon by the prosecution were of such great moment, then surely the decision would have been made well in advance of the specified date.
Held:
1.The prosecution has satisfied the test of establishing identifiable circumstances that clearly establish that the witness is untruthful, unreliable, or at the very least, reluctant to divulge all he knows.

2. The failure by the prosecution to call AP will not result in an unfair trial.
3. Accordingly, the application for a stay of proceedings is dismissed.
Criminal Law Consolidation Act 1935 (SA) ss 13, 14(1), 20(4)(b), 30., referred to.
R v M, RS (2018) 131 SASR 24; Rona v District Court of South Australia (1995) 63 SASR 223, applied.
Richardson v The Queen (1974) 131 CLR 116; Whitehorn v The Queen (1983) 152 CLR 657;

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 4)

Details

AGLC: R v Wilmott (No 4) [2025] SASC 82
Case: [2025] SASC 82
Decision Date: 29 May 2025

CaseChat Overview and Summary

In the matter of R v Wilmott (No 4), the defendant, Ms Wilmott, sought a stay of proceedings against her, arguing that the prosecution failed to call a potential witness, AP, who could provide significant evidence pertinent to the case. The court was tasked with determining whether the prosecution's decision not to call AP as a witness warranted a stay of the proceedings and whether there were justifiable reasons for this decision.

The central legal issue revolved around whether the prosecution had identifiable and compelling reasons to deem AP as unreliable or untruthful, justifying their decision not to call him as a witness. The court needed to assess the credibility of AP's potential testimony and its relevance to the case, weighing the prosecution's reasons for not calling AP against the potential impact on Ms Wilmott's right to a fair trial.

The court thoroughly examined the prosecution's reasons for not calling AP, including inconsistencies in his statements compared to other witnesses and concerns about his reliability. The court found that the prosecution had presented identifiable circumstances that established AP as potentially unreliable or untruthful, particularly in light of discrepancies with other witnesses. Given this, the court concluded that it was within the prosecution's discretion not to call AP and declined to invite the prosecution to reconsider this decision. Consequently, the court refused the application for a stay of proceedings, holding that the prosecution's decision did not, at that juncture, warrant a stay. However, the court left open the possibility for Ms Wilmott's counsel to renew the application if the situation changed as the trial progressed.

The court's decision ultimately hinged on the adequacy of the prosecution's justification for not calling AP and the potential impact on Ms Wilmott's right to a fair trial. The refusal of the stay application indicates that, at the time of the decision, the prosecution's reasons were deemed sufficient, but it also underscores the importance of the ongoing assessment of witness credibility throughout 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 made an application for a stay of proceedings.[6] The basis of the application is the failure by the prosecution to call a potential witness, AP, to give evidence. Before I consider the merits of the application, it is necessary to set out some of the details of the evidence that AP could give if called as a prosecution witness. The evidence of AP [6] FDN 436. Background Jasmine was born in South Korea and adopted by Ms Wilmott and MW in 2003, at the age of four and a half months old. She had an older and younger brother, who had also been adopted from South Korea. Initially, Jasmine and her two brothers lived together with MW and Ms Wilmott at the family home at 4 Gleneagles Circuit, Greenwith. In about 2010/2011, the relationship between MW and Ms Wilmott deteriorated, resulting in MW moving out of the house to live in a shed located on the property. In late May 2013, MW left and moved to Alice Springs. It is the prosecution case that whilst Ms Wilmott had mistreated Jasmine since her adoption, the situation deteriorated after MW left. For that reason, the prosecution have particularised the offences as occurring between 1 May 2013 and 7 October 2018. In late 2017, Ms Wilmott met and commenced a relationship with AP. Within six months, they had purchased a house together at 12 Lilford Way, Flagstaff Hill. For a period of time, whilst Ms Wilmott was selling her house at Greenwith, she and the three children moved into AP’s home at Larkdale Crescent, O’Halloran Hill. At that time, AP’s two daughters, EP and KP, also lived with him on a part-time basis. As there was insufficient room for everyone in the house, Jasmine and her younger brother, OW, slept in a tent in the rear yard. In mid-2018, Ms Wilmott, AP, and the five children moved into 12 Lilford Way, Flagstaff Hill. At this property, AP’s two daughters slept in a granny flat at the rear of the house. Each of Ms Wilmott’s three children had their own bedroom. Jasmine’s bedroom door was alarmed and there was a security screen on her window. It follows from this chronology, that at the time of Jasmine’s death, AP had known Ms Wilmott and her children for approximately 12 months and had lived under the same roof as them for a significant period of time. Affidavits provided by AP AP has provided two affidavits dated 29 October 2020 and 18 February 2025. It would appear that the second came about as a result of a proofing by the prosecution. In his initial affidavit, AP covered a number of topics. Unfortunately, it is often unclear as to whether AP was describing an event that he saw or heard himself, or whether he was relying on hearsay information. The following is a list of topics raised by AP with an indication of the apparent source of that information. ·The history of AP’s relationship with Ms Wilmott, and their families movements between different addresses: (eyewitness evidence).·AP’s understanding of Jasmine’s health issues: (the basis of the evidence is unclear and is potentially hearsay). ·AP’s belief that Jasmine was bullied at school and had behavioural issues that resulted in her stealing food from other children: (the basis of the evidence is unclear and is potentially hearsay).·The behaviour of Jasmine in hoarding food in her bedroom and in garbage bags around the house and in the granny flat: (the basis of the evidence is unclear and is potentially hearsay).·Jasmine sneaking out of her bedroom window in the middle of the night to steal food from bins: (the basis of the evidence is unclear and is potentially hearsay).·Attempts to manage Jasmine’s behaviour by installing a screen on her bedroom window and a sensor attached to an alarm on Jasmine’s bedroom door: (eyewitness evidence). ·Observations of Jasmine eating with the family but throwing up afterwards: (eyewitness evidence). ·The occasion on which Ms Wilmott found out that Jasmine had taken images of herself and put them on a dating site, resulting in her being punished by having her hair cut: (the basis of the evidence is unclear and is potentially hearsay).·Observations that Jasmine acted young for her age and did not relate to other people her own age: (a combination of eyewitness evidence and potentially hearsay evidence). ·An observation that “before Jasmine passed away I thought things were getting better for her. There was some sort of light”: (the basis of the evidence is unclear and is potentially hearsay).·Celebrating Jasmine’s birthday since her death and plans for a plaque to mark the spot where she was buried, as well as a commemorative cherry blossom tree in the yard: (eyewitness evidence).·Marks on the side of the fridge: (the relevance of this evidence is unclear).·AP’s research into adoption practices in South Korea: (irrelevant and inadmissible).·Monitoring what Jasmine watched on the internet and television: (eyewitness evidence).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It was Mrs Shaw KC’s submission that a further relevant consideration in considering the adequacy of the reasons underpinning the decision to not call AP, and the consequences for Ms Wilmott arising from that decision, is the fact that AP is (at least potentially) an eye witness to the actus reus of the alleged offending. As a family living together, AP could give eye witness evidence about the living conditions, social isolation, sensors on the door, the haircut, chores and meal times. It was Mrs Shaw KC’s submission that as an eye witness to the actus reus, AP is a crucial prosecution witness, which increases the magnitude of the adverse consequences for Ms Wilmott in the event that a decision is made to not call him.Consideration AP is a witness who can give material evidence relevant to the resolution of issues that will be in dispute in this trial. Accordingly, I consider that he should be called to give evidence as part of the prosecution case unless good reason exists for not doing so. The prosecution have identified a number of factors that they rely on in combination, to arrive at a conclusion that they cannot hold AP out as a reliable and truthful witness. Whilst one of those considerations are the inconsistencies between AP and other prosecution witnesses, those inconsistencies are not relied upon in isolation, but in conjunction with the other matters identified by Ms Litster. It is also a relevant consideration that, unlike in M, RS, this is not a case in which it is just the accounts of two witnesses that are at odds and cannot be reconciled with one another, but rather aspects of AP’s account are at odds with numerous other witnesses, (some of whom are unknown to each other) across a variety of topics. I also do not accept that there is anything about the timing of the decision to not call AP that undermines the explanation provided by Ms Litster. A decision of this nature must be approached with caution, after careful consideration. I accept that is what occurred here. Whilst the sequence of events is of some utility in understanding the narrative framework that had led to this point, it does not illuminate whether, in accordance with the authorities, it was open for the prosecution to decline to call AP as a witness of truth. In my view the prosecution have satisfied the test of establishing “identifiable circumstances” that “clearly establish” that the witness is untruthful, unreliable, or at the very least, reluctant to divulge all that he knows. In those circumstances, I decline to invite Ms Litster to reconsider her decision to not call AP to give evidence. It follows that I refuse the application for a stay of proceedings. As things currently stand, the complaint raised by Mrs Shaw KC about the failure to call AP falls a long way short from warranting a stay of proceedings. If, however, that situation changes as the witnesses give evidence over the course of the trial, it will be open for Mrs Shaw KC to renew her application at the conclusion, or towards the end, of the prosecution case.