R v Wilmott (No 5) - [2025] SASC 106

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v WILMOTT (No 5)
Criminal Trial by Judge Alone
[2025] SASC 106
Reasons for Ruling of the Honourable Justice McDonald
30 June 2025
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE
EVIDENCE - PROOF - STANDARD OF PROOF - STANDARD OF SATISFACTION - PROBATIVE VALUE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE
Jenni Gaye Wilmott has been charged with the offence of manslaughter and in the alternative with the offences of criminal neglect, failing to provide food, failing to provide accommodation, and two counts of aggravated assault causing harm. The alleged victim of each of these offences was Jasmine Da-Eun, Ms Wilmott’s 15-year-old adopted daughter.
As part of the prosecution case, the Director proposes to call SM to give evidence. SM is now 22 years of age. Between 2013 and 2016, SM lived with the Wilmott family in the foster care of Ms Wilmott. SM has an intellectual disability, and, due to a history of sexual and emotional abuse and neglect, had been under the guardianship of the Minister since 10 February 2012.
Both the prosecution and Ms Wilmott have filed interlocutory applications in respect of the evidence of SM.
The prosecution has filed a Notice of Intention to Adduce Discreditable Conduct Evidence from SM, pursuant to s 34P(4) of the Evidence Act 1929 (SA). Section 34P(1) of the Evidence Act provides that evidence of discreditable conduct is inadmissible subject to the decision of a trial judge to admit the evidence pursuant to s 34P(2) of the Evidence Act.
The prosecution contends that the evidence of SM is admissible for both a propensity purpose and a non-propensity purpose. It is therefore necessary for the prosecution to prove that the evidence has strong probative value having regard to the particular issue or issues arising at trial and that the probative value of the evidence outweighs its prejudicial effect.
The first use of the discreditable conduct evidence relied upon by the prosecution is to rebut the improbability that Ms Wilmott would have engaged in such conduct due to the protective parental bonds that ordinarily exist in such a relationship. This is a non-propensity use of the evidence and therefore falls under s 34P(2)(a) of the Evidence Act.
The second use to be made of the discreditable conduct is to provide an explanation for why Jasmine conducted herself in the manner in which she did, which on its face appears inconsistent with the allegations that the prosecution makes about Ms Wilmott’s behaviour towards her. This is a non-propensity use of the evidence and therefore falls under s 34P(2)(a) of the Evidence Act.
The third use to be made of the discreditable conduct is to assist in the proper evaluation of SM’s narrative of witnessing abuse against Jasmine by Ms Wilmott, including an assessment of her credibility in circumstances in which it is known that this will be a live issue at trial. This…

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 5)

Details

AGLC: R v Wilmott (No 5) [2025] SASC 106
Case: [2025] SASC 106
Decision Date: 30 June 2025

CaseChat Overview and Summary

In R v Wilmott (No 5), the accused was charged with the murder of her foster daughter, Jasmine, and with engaging in a continuing criminal enterprise. The prosecution sought to introduce evidence of the accused’s prior mistreatment of another child, SM, who had lived with the accused. The admissibility of this evidence was contested under s 34P of the Evidence Act 1929 (SA), which governs the use of discreditable conduct evidence in criminal trials. The legal issues before the court were whether the probative value of the discreditable conduct evidence outweighed its prejudicial effect and whether it had strong probative value for a particular issue in the trial.

The court held that the assessment of the admissibility of discreditable conduct evidence under s 34P(2)(b) requires the court to consider the inherent capacity of the evidence to establish facts in issue, accepting the evidence as true for the purpose of this assessment. The court must determine whether the evidence has strong probative value for a particular issue, not whether it aligns with or is undermined by other evidence in the case. The court found that the evidence of the accused’s prior mistreatment of SM was directly relevant to the issue of her propensity to mistreat children, which was a central aspect of the prosecution’s case. The court concluded that the probative value of this evidence outweighed any prejudicial effect, as it directly correlated with the alleged actus reus in the current charges.

The court allowed the admission of the discreditable conduct evidence under s 34P(2)(b) of the Evidence Act, noting the strong probative value of the evidence in establishing the accused’s propensity to mistreat children. The court emphasised that the assessment was made on the basis of the evidence being accepted as true and without engaging in a fact-finding exercise that would compare it with other evidence in the case. The final orders of the court reflected this decision, permitting the introduction of the discreditable conduct evidence in 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

The prosecution seeks to rely on evidence of Ms Wilmott’s misconduct towards SM, whilst SM was living at her house. As the evidence of this conduct constitutes discreditable conduct, it attracts the operation of s 34P of the Evidence Act 1929 (SA) (‘Evidence Act’), which relevantly reads:34P—Evidence of discreditable conduct(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and (b) is inadmissible for that purpose (impermissible use); and(c) subject to subsection (2), is inadmissible for any other purpose.(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.… Section 34P(1) of the Evidence Act provides that evidence of discreditable conduct is inadmissible subject to the decision of a trial judge to admit the evidence pursuant to s 34P(2) of the Evidence Act. The question of whether to admit evidence pursuant to s 34P(2) is one of law. Section 34P mirrors the common law exclusionary rule, namely:[6]… evidence that reveals that the accused is a person of bad character is not admissible if it proves no more than that he or she has a general disposition or propensity to commit crime or crime of a particular kind.[6] Pfennig v The Queen (1995) 182 CLR 461 at 512 per McHugh J. As Kourakis CJ explained in R v MJJ; R v CJN,[7] it therefore follows:[8]The impermissible use identified in s 34P(1) of the Evidence Act is the drawing of an inference of guilt from the fact that the accused has engaged in other conduct which has no relevant connection to the offence other than to share the epithet discreditable. Evidence of discreditable conduct of that kind may, admittedly with some imprecision, be described as evidence of a mere, or general, propensity. Section 34P(2)(b) expressly provides for the admission of discreditable conduct evidence which shows a particular propensity or disposition of the defendant. The particular propensity or disposition must be strongly probative of the offence charged, and outweigh its prejudicial effect. Discreditable conduct which has a permissible use, other than by way of demonstrating a particular propensity, need only have a probative value, whether weak, moderate or strong, which substantially[9] outweighs its prejudicial effect.At the core of the assessment of the probative value of discreditable conduct evidence are two analytical steps. The first is to identify the particular fact which is in issue. The second is to consider how, if at all, the discreditable conduct evidence circumstantially increases, as a matter of human experience, the probability of the existence of that fact. … (Footnote omitted)[7] (2013) 117 SASR 81.[8] Ibid at [18]-[19].[9] Section 34P2(a) has since been amended. It was previously necessary for the prosecution to establish that the probative value of the evidence “substantially” outweighed its prejudicial effect.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mrs Shaw KC explained the impact of that inaccuracy on the overall reliability of SM. She said:[150]What is disturbing about that allegation is not just the fact that there was an adopted father but - who, if he had been there when she arrived, would have been her foster father - but also the fact that she puts forward that: ‘The kids were given the illusion that their adopted father had abandoned them, but I learned later this was not the case.’ What kind of contamination and misunderstandings have led to that falsehood? Again, we’re dealing with someone who, as I’ve submitted, has an intellectual disability and the difference between what she actually recalls and what she actually did, as compared to what she might have learnt from another source, is of grave concern.[150] Ibid.Consideration of the admissibility of the discreditable conduct for a propensity purpose It was the prosecution submission that the evidence of SM satisfies the test for admissibility under s 34P(2)(b). The evidence of SM is direct evidence. It follows that for the purpose of determining the question of admissibility, the correct way to assess the capability of that evidence to establish the relevant facts in issue, is to consider what the witness says and proceed on the basis that it is accepted. In determining the question, the probative value of the discreditable conduct evidence is to be determined by considering it in the context of the prosecution case taken as a whole, and on the assumption that the prosecution case is accepted. It was Ms Litster’s submission that the process is a simple one, in which the Court must proceed on the basis that what SM has said will be accepted. The focus must be on the inherent capacity of the evidence, or inherent limitations of that evidence. It is not a question of considering whether the evidence of SM lines up with, or is potentially undermined by other evidence in the case, or evaluating the quality of SM’s evidence against other evidence. It was submitted that in adopting this approach, the evidence of SM is capable of establishing a clear propensity on the part of Ms Wilmott to engage in mistreatment of the type alleged to have taken place in relation to Jasmine. Ms Litster submitted to the Court:[151]That is a very precise propensity, as it’s framed by the Crown, which is something that bears on its probative value and which is something which minimises its prejudicial value. It squarely lines up against the actus reus as it’s alleged in respect of Jasmine, so the precise correlation, as is self-evident, is another matter which lifts its probative value or which informs its probative value …[151] T1411. As I have said, Mrs Shaw KC accepted that in determining whether it has been established that the probative value of the permissible use of the evidence outweighs any prejudicial effect, and that the evidence has a strong probative value, the Court should not engage in a fact finding exercise. However, she submitted that is a different exercise to a proper evaluation of the evidence, which necessarily involves ascertaining what the evidence is “capable” of proving; that is, taking the prosecution case on its face.