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 is a non-propensity use of the evidence and therefore falls under s 34P(2)(a) of the Evidence Act.
The fourth use to be made of the discreditable conduct relies on propensity reasoning. The issue to which the prosecution submits that the propensity evidence is relevant, is in determining whether Ms Wilmott engaged in the conduct towards Jasmine as alleged by the prosecution. To use the evidence in this manner, the prosecution relies upon a tendency or disposition of Ms Wilmott to act in a particular way. It was the prosecution’s submission that the evidence of SM satisfies the test for admissibility under s 34P(2)(b).
Ms Wilmott’s application was to exclude the evidence of SM. That application was not limited to the discreditable conduct evidence, but relates to the entirety of SM’s evidence. The bases upon which Ms Wilmott seeks the exclusion of the evidence of SM are:
●    That the witness has a long history or trauma resulting in her being the subject of numerous interventions by DCP from an early age, and placed in care.
●    That the witness has a history of dysfunction, violence, threats of violence to herself and others, and disengagement both before and after the three years that she was in the care of the accused.
●    Both Jasmine and the accused reported during the period in the accused’s care, that SM assaulted Jasmine. The absence of Jasmine to meet these allegations by SM results in an unfair trial.
●    The evidence ought to be excluded in the exercise of discretion.
The shortcomings in SM’s evidence relied upon by Ms Wilmott are in the nature of criticisms that are commonly made of witnesses, particularly those who are young, unsophisticated and who suffer from an intellectual disability. That does not mean that these features of the evidence will not be important when it comes time to assess the overall credibility and reliability of SM. That is, however, a very different consideration as compared to a suggestion that the evidence is so unreliable that it should be excluded in its entirety.
Held:
1. The discreditable conduct evidence satisfies the test in ss 34P(2)(a) and 34P(2)(b) and can therefore be relied upon for non-propensity and propensity purposes.
2.   The prosecution’s application Notice of Intention to Adduce Discreditable Conduct Evidence from SM is allowed.
3.   Ms Wilmott’s application to exclude the evidence of SM is refused.
Criminal Law Consolidation Act 1935 (SA) ss 13, 14(1); Criminal Law Consolidation Act 1935 (SA) (Version 13.8.18-5.9.18) ss 30, 20(4)(b); Evidence Act 1929 (SA) s 34P, 34P(1), 34P(2), 34P(2)(a), 34P(2)(b), 34P(3), referred to.
R v MJJ; R v CJN (2013) 117 SASR 81; R v Hillier (2007) 228 CLR 618; Phillips v The Queen (2006) 226 CLR 303; IMM v The Queen (2016) 257 CLR 300; R v M, BJ (2011) 110 SASR 1; Hughes v The Queen (2017) 263 CLR 338; Ribbon v The Queen [2019] SASCFC 130, applied.
Eddy v The King [2024] SASCA 115, discussed.
Pfennig v The Queen (1995) 182 CLR 461, considered.

R v WILMOTT (No 5)
[2025] SASC 106
Criminal: Ruling re SM
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. Each of the charged offences arise out of allegations regarding 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).
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 and assault, 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.
Interlocutory applications – The evidence of SM
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.
The relevance of SM’s evidence is twofold; SM makes observations about Ms Wilmott’s treatment of the other children in the family home whilst she lived there, and she also describes how she was treated by Ms Wilmott. The latter category of evidence amounts to discreditable conduct, whilst the former does not.
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, and Ms Wilmott has made an application for the exclusion of the evidence of SM. That application is not limited to the discreditable conduct evidence, but relates to the entirety of SM’s evidence.
Given that it is for the prosecution to satisfy the Court that the evidence of discreditable conduct should be admitted, it is appropriate to deal with this application first, before considering Ms Wilmott’s broader application for the exclusion of SM’s evidence. Having said that, as will become apparent, there is considerable overlap between the two arguments made on the behalf of Ms Wilmott.
Notice of Intention to Adduce Discreditable Conduct Evidence pursuant to s 34P(4) of the Evidence Act 1929 (SA)
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.
Section 34P(2) allows for the admission of discreditable conduct evidence where it is relevant to a fact in issue. There are a number of ways in which the evidence may be relevant, dependant on the facts of a particular case.
In determining the question of admissibility, the probative value of the discreditable conduct evidence is to be determined by considering the evidence in the context of the prosecution case taken as a whole,[10] and on the assumption that the prosecution case is accepted.[11] The question of admissibility does not involve the weighing of any defence hypotheses and the likelihood of their acceptance. The test directs attention to the capacity of the evidence, rather than the weight to be attributed to it. This involves a consideration of what is open for a trier of fact to conclude, not what they are likely to conclude.[12]
[10] R v Hillier (2007) 228 CLR 618 at 637-638.
[11] Phillips v The Queen (2006) 225 CLR 303 at [63].
[12] IMM v The Queen (2016) 257 CLR 300 at [28].
In IMM v The Queen,[13] the majority explained the approach to be adopted as follows:[14]
The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words “if it were accepted”, which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.
[13] (2016) 257 CLR 300.
[14] Ibid at [39].
The Court went on to discuss the impracticality of an approach that involved attempting to make an assessment of the probative value of the evidence at the point of determining the question of admissibility, and observed:[15]
… A determination of the weight to be given to the evidence, such as by reference to its credibility or reliability, will depend not only on its place in the evidence as a whole, but on an assessment of witnesses after examination and cross-examination and after weighing the account of each witness against each other.
Once it is understood that an assumption as to the jury’s acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise. For the same reason, no question as to the reliability of the evidence can arise. If the jury are to be taken to accept the evidence, they will be taken to accept it completely in proof of the facts stated. There can be no disaggregation of the two – reliability and credibility – as Dupas v The Queen may imply. They are both subsumed in the jury’s acceptance of the evidence.
[15] Ibid at [51]-[52].
Assessing the probative value of the evidence involves a two-stage analysis. The first is to identify the fact in issue. The second is to identify how, if at all, the discreditable conduct increases, as a matter of human experience, the probability of the existence of that fact.[16]
[16] R v MJJ; R v CJN (2013) 117 SASR 81 at [19].
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”[17] and that the probative value of the evidence outweighs its prejudicial effect.
[17] Evidence Act 1929 (SA) s 34P(2)(b).
Before considering the various bases upon which it is said that the evidence is admissible and satisfies the requirements of s 34P, it is useful to identify the evidence that the prosecution proposes to lead from SM.
The evidence
SM was born on 11 April 2003, and was of a similar age to Jasmine.
The effect of SM’s evidence is that during the time that she lived in the Wilmott household, she was regularly subjected to acts of abuse by Ms Wilmott and witnessed acts of abuse towards Jasmine. On SM’s account, whilst there were similarities in Ms Wilmott’s treatment of both Jasmine and SM, generally the abuse of Jasmine was more extreme.
SM’s evidence of Ms Wilmott’s conduct towards SM
It is SM’s account that initially, when she moved into the Wilmott household, she was treated well. However, that changed over time. The following is a summary of the mistreatment that SM described experiencing under Ms Wilmott’s care:
A.Food, Shelter and Clothing
1.     Food
a.SM would be provided with inadequate food.
i.“… she starved me she wasn’t feeding me dinner or lunch or breakfast … and then she started feeding me because I, the teachers were wonder…like getting suspicious, of my weight”.[18]
[18] Record of Interview 18 July 2019 at 14.
ii.SM would steal from other children’s lunch boxes because she was so hungry. Most of the time she was never given breakfast. For dinner she was provided with breakfast cereal, mostly with water.[19]
[19] Affidavit of SM dated 15 January 2025 at [46]-[47].
iii.On one occasion, Ms Wilmott did not feed SM for two to three days and gave her water to attempt to make her lose weight.[20]
[20] Record of Interview 18 July 2019 at 14.
2.     Shelter
a.SM was locked outside for extended periods of time.
i.“Jasmine and I were only allowed inside the house to go to the toilet, ‘do chores’, to sleep or sometimes to fight if Jasmine was already inside doing chores. Any time we were not doing those things we were locked outside”.[21]
[21] Affidavit of SM dated 15 January 2025 at [25].
ii.SM was locked outside with Jasmine by Ms Wilmott making the electric doors come down so that they had no way back inside.[22]
[22] Affidavit of SM dated 15 January 2025 at [28].
b.Requiring SM to wash outside from a plastic tub.
i.From about the age of 12 years, Ms Wilmott made SM and Jasmine wash themselves and their clothes outside from a plastic tub. This happened all year round and the girls were not permitted to use the shower.[23]
[23] Affidavit of SM dated 15 January 2025 at [24].
3.     Clothing
a.SM would make SM and Jasmine undertake chores naked apart from underpants.
i.“Jenni would tell Jasmine and I that we had to strip and do our chores or we would not be allowed to eat”.[24]
ii.“Jenni would tell us that we smelled and that was why we were not allowed to wear any clothes”.[25]
b.Ms Wilmott only provided SM with second hand clothing.
i.“In terms of clothing, I got some hand me down clothes from Jenni’s oldest niece and Jasmine also got hand me downs or clothes from the goodwill. The boys received brand new designer clothes”.[26]
[24] Affidavit of SM dated 15 January 2025 at [18].
[25] Affidavit of SM dated 15 January 2025 at [18].
[26] Affidavit of SM dated 15 January 2025 at [64].
B.Socialisation: Ms Wilmott failed to provide adequate conditions of socialisation
1.     SM was not permitted to socialise with friends
a.“Jasmine and I were never allowed to go anywhere or do anything. We were not allowed to have friends over or even to play or laugh”.[27]
[27] Affidavit of SM dated 15 January 2025 at [18].
b.SM was not allowed to go to any school camps.[28]
[28] Record of Interview 18 July 2019 at 20.
2.     SM was not permitted to interact with any of Ms Wilmott’s family
a.Whenever relatives would come to Ms Wilmott’s house, SM would not be permitted inside.[29]
[29] Affidavit of SM dated 15 January 2025 at [69].
b.On one occasion after SM spoke with a friend of Ms Wilmott’s, when they visited the house, Ms Wilmott beat SM resulting in SM suffering from a black eye. Ms Wilmott told SM to never speak to her friends again or she would beat her more.[30]
[30] Affidavit of SM dated 15 January 2025 at [70].
c.SM would eat outside separate from the rest of the family.
i.“At dinner time Jenni would open the roller door just a crack, enough so that she could slip my bowl under the door and then close it straight up again”.[31]
[31] Affidavit of SM dated 15 January 2025 at [28].
ii.“Jasmine and I were treated like animals and locked outside”.[32]
[32] Affidavit of SM dated 15 January 2025 at [29].
iii.Occasionally, if Ms Wilmott was in a good mood, SM would be permitted to eat inside.[33]
[33] Affidavit of SM dated 15 January 2025 at [30].
C.Personal and psychological safety: Ms Wilmott failed to provide conditions for SM which permitted physical and psychological safety
1.     Physical assaults, discipline and chores
a.Physically assaulting SM
i.Ms Wilmott frequently assaulted SM. After six months, Ms Wilmott began to assault SM like she did Jasmine.[34]
[34] Affidavit of SM dated 15 January 2025 at [21].
1.Ms Wilmott would abuse SM for “nothing”. She hit and kicked SM until she started crying.[35]
[35] Record of Interview 18 July 2019 at 13.
2.Ms Wilmott hit SM with sticks. This happened every day, mostly at night. She hit her with a stick to her back, shoulders and head.[36]
[36] Record of Interview 18 July 2019 at 32-34.
3.Ms Wilmott hit SM with sticks and bricks and threw bricks at her head.[37]
[37] Record of Interview 18 July 2019 at 8.
4.Ms Wilmott pushed SM down the stairs and she twisted her ankle. SM had a fracture but Ms Wilmott said that it would “heal by itself”.[38]
[38] Record of Interview 18 July 2019 at 26.
5.Ms Wilmott would hit and kick SM, she would also hit her with rolling pins and would drag her by the hair,[39] “[s]he was wearing shoes, very very high shoes, like sometimes she would wear high heels, like shoes with points and kick me with them. Or just step on me and literally kick me and like, slap me, punch me, twist my hands back till I like, my arms back like that”.[40]
[39] Record of Interview 18 July 2019 at 12.
[40] Record of Interview 18 July 2019 at 14.
6.On one occasion, SM was knocked out by Ms Wilmott dragging her by the hair and hitting her on the head.[41]
[41] Record of Interview 18 July 2019 at 13.
7.On another occasion, after SM ran away, Ms Wilmott put a small cutting knife to SM’s neck and said “if you run away again or tell anyone that I’m hurting you, it’s easily to move the knife straight across your neck”.[42]
[42] Record of Interview 18 July 2019 at 8, 37.
b.Causing Jasmine and SM to fight
i.Ms Wilmott forced SM to abuse Jasmine “or my foster mum would hurt me ten times worser than she would do to my foster sister”.[43]
[43] Record of Interview 18 July 2019 at 7.
ii.Ms Wilmott forced SM to hit Jasmine, punch her and chase her with a rolling pin.[44]
[44] Record of Interview 18 July 2019 at 15.
iii.If Ms Wilmott was in a good mood she would instruct either SM or Jasmine to be the abuser. She would watch them as they fought. If the person refused to do it – she would abuse both of them physically and mentally.[45]
[45] Affidavit of SM dated 15 January 2025 at [33].
iv.If SM and Jasmine fought each other, they would make noises so Ms Wilmott believed that they were fighting.[46]
[46] Record of Interview 18 July 2019 at 7.
v.If Ms Wilmott was in a bad mood, she would beat SM and Jasmine.[47]
[47] Affidavit of SM dated 15 January 2025 at [33].
vi.When Ms Wilmott hit SM and Jasmine, she would make them bruise and bleed.[48]
[48] Affidavit of SM dated 15 January 2025 at [37].
c.Causing SM to perform chores which were excessive in their duration, quantity and difficulty
i.Both SM and Jasmine were required to do chores – SM’s chores were mostly outside, whereas Jasmine had to do all of the chores both inside and outside.[49]
[49] Affidavit of SM dated 15 January 2025 at [22].
ii.When Jasmine was in Ms Wilmott’s good books, Ms Wilmott would make SM carry out her chores.[50]
[50] Record of Interview 18 July 2019 at 19.
iii.Both Jasmine and SM were made to repeatedly write out lines like “I shall respect mother at all times”.[51]
[51] Affidavit of SM dated 15 January 2025 at [19].
iv.On more than one occasion, Ms Wilmott woke SM and Jasmine up in the middle of the night, took them outside and made them write out lines until the sun came up.[52]
[52] Affidavit of SM dated 15 January 2025 at [72].
v.One of SM’s chores was to lock Jasmine in, however, this was primarily OW’s job.[53]
[53] Affidavit of SM dated 15 January 2025 at [4], [32].
d.Using exercise as a means of punishment
i.SM and Jasmine were required to do star jumps everyday and run in front of, or behind, Ms Wilmott’s car as exercise.[54]
2.     Articulating a narrative that SM was dysfunctional and not to be believed
a.In the context of SM running away, the police or DCP would be in contact with Ms Wilmott. Ms Wilmott would “brainwash them and be sickeningly sweet whilst we were at the police station and then once we got home she would beat me. Physically and mentally”.[55]
b.Ms Wilmott told everyone that SM was a “deceitful liar”, so that when SM tried to tell people, they would believe Ms Wilmott over her.[56]
[54] Affidavit of SM dated 15 January 2025 at [68].
[55] Affidavit of SM dated 15 January 2025 at [71].
[56] Record of Interview 18 July 2019 at 8.

There is also evidence upon which the prosecution relies, from which it is said that the inference can be drawn that Ms Wilmott punished SM by cutting her hair. That evidence is of an occasion when Ms Wilmott took SM into the hairdresser to have her hair cut “because it was a complete mess”. Ms Wilmott told the hairdresser that SM had cut her hair herself, and requested that SM’s hair be cut short. The hairdresser has expressed the view that given the manner in which the hair was cut, SM could not have done it herself.[57]
[57] Affidavit of Sarah Pope dated 20 October 2020. There is a challenge to the admissibility of this evidence.
There is, however, no reference to this or any other haircut in the interview or affidavit of SM.
SM’s evidence of Ms Wilmott’s conduct towards Jasmine
The prosecution also relies on direct evidence of the observations made by SM of Ms Wilmott’s behaviour towards Jasmine. The following references have been extracted from the particulars provided by the prosecution.[58]
[58] FDN 341, Prosecution Particulars on Count 1, filed on 25 January 2025.
A.Food, Shelter and Clothing
1.     Food:
a.Jasmine was sent to school without an adequate amount of food to eat in the school day.
i.[SM]: “I never saw Jasmine have anything to take to school for lunch”.[59]
[59] Affidavit of SM dated 15 January 2025 at [44].
b.Jasmine was deprived of adequate food at home.
i.At 4 Gleneagles Circuit, Greenwith:
1.“By the time we were about both 12 or 13 years old, Jasmine had become a walking skeleton”.[60]
[60] Affidavit of SM dated 15 January 2025 at [23]. See also [30], [47]-[49]; Record of Interview 18 July 2019 at 14.
2.The accused withheld food from Jasmine if she did not do her chores.[61]
[61] Affidavit of SM dated 15 January 2025 at [42].
2.     Shelter
a.May 2013 to 2018, Jasmine was provided a locked modified downstairs laundry at 4 Gleneagles Circuit to sleep in as a bedroom. It was unfit to be a child’s bedroom on account of the fittings and temperature.
i.[SM’s] evidence supports that:
1.Jasmine was often locked in that room for lengthy periods of time.[62]
2.Jasmine was commonly not permitted to eat meals with the family.[63]
3.     Clothing
a.Jasmine was made to clean without overgarments on and only in her underwear.[64] This stopped by the time she was about 15 years old and the accused moved in with [AP].
[62] Affidavit of SM dated 15 January 2025 at [10], [31]-[32]; Affidavit of SM dated 30 January 2025 at [4].
[63] Affidavit of SM dated 15 January 2025 at [29]-[30], [42], [47]-[48].
[64] Affidavit of SM dated 15 January 2025 at [18].
B.Socialisation: The accused failed to provide adequate conditions of socialisation
1.     Jasmine was not allowed to go over to her school friends’ houses and socialise at all
a.[SM]: “Jasmine and I were never allowed to go anywhere or do anything. We were not allowed to have friends over or even to play or laugh”.[65]
[65] Affidavit of SM dated 15 January 2025 at [18], [59]; Record of Interview 18 July 2019 at 30.
C.Personal and Psychological Safety: The accused failed to provide conditions for Jasmine which permitted physical and psychological safety by:
1.     Physical Assaults, Discipline and Chores
a.Assaulting Jasmine physically
i.[SM] observed the accused assault Jasmine on the following occasions:
1.Hit Jasmine with a rolling pin, causing an “air bubble” on Jasmine’s head.[66]
[66] Affidavit of SM dated 15 January 2025 at [51]-[53]; Affidavit of SM dated 30 January 2025 at [7]; Record of Interview 18 July 2019 at 7.
2.The accused pushed [SM] and Jasmine down the stairs.[67]
[67] Record of Interview 18 July 20169 at 7, 31.
3.The accused would grab Jasmine by the hair, sometimes by her limbs, and would throw Jasmine into walls and make her cry and scream in pain.[68]
[68] Affidavit of SM dated 15 January 2025 at [13].
4.When Jasmine and [SM] were about 12 or 13 years old, Jasmine was doing cleaning chores inside the house. The accused didn’t like the way she was doing the chores; the accused charged at Jasmine, punched and kicked her all over her body. Jasmine started coughing up blood. The accused stood over her, calling her a “filthy pig” and other insults.[69]
[69] Affidavit of SM dated 15 January 2025 at [38].
5.There were many times when the accused abused Jasmine to the point where Jasmine coughed up blood.[70]
[70] Affidavit of SM dated 15 January 2025 at [39].
6.The accused would go into Jasmine’s bedroom and would punch Jasmine to the head and body with a closed fist and would call her a “filthy pig” and “disgusting” for hoarding food.[71]
[71] Affidavit of SM dated 15 January 2025 at [40]-[41].
b.Causing others to assault Jasmine.
i.The accused encouraged [SM]:
a.To punch Jasmine.[72]
[72] Affidavit of SM dated 15 January 2025 at [33]-[37] Record of Interview 18 July 2019 at 15.
b.To “hurt” Jasmine.[73]
[73] Record of Interview 18 July 2019 at 8
c.To hit, kick and punch Jasmine; and to chase Jasmine with a rolling pin.[74]
[74] Record of Interview 18 July 2019 at 15.
c.Causing her to perform chores which were excessive in their duration, quantity and difficulty.
i.Chores and cleaning generally - the accused “treated Jasmine like a slave. Jasmine was responsible for all the chores in the house”.[75]
[75] Affidavit of SM dated 15 January 2025 at [9], [42].
ii.Washing, hanging and folding laundry.[76]
[76] Record of Interview 18 July 2019 at 33.
iii.Mopping the floors.[77]
[77] Affidavit of SM dated 15 January 2025 at [31].
iv.Washing the kitchen cupboards and cleaning the stove.[78]
[78] Affidavit of SM dated 15 January 2025 at [21].
v.Mowing the lawn.[79]
[79] Record of Interview 18 July 2019 at 8.
vi.Picking up dog poo in the yard at Greenwith.[80]
[80] Affidavit of SM dated 15 January 2025 at [42].
vii.Writing lines excessively, such as ‘I shall respect mother at all times’ or ‘I shall not disrespect mother’. The accused sometimes woke Jasmine and [SM] up in the middle of the night to do this (on average three times a week).[81]
[81] Affidavit of SM dated 15 January 2025 at [19], [72].
d.Causing her to perform chores in her underwear, inside and outside of the home.[82]
[82] Affidavit of SM dated 15 January 2025 at [18].
e.Causing her to run excessively.[83]
[83] Affidavit of SM dated 15 January 2025 at [68].
f.Verbally abusing her.
i.At the house at 4 Gleneagles Circuit, Greenwith, the accused would get angry and yell at Jasmine.[84]
2.     Articulating a narrative in Jasmine’s presence that she was dysfunctional and subjecting her to unnecessary medical treatment and control as a result
a.Jasmine was frequently confined and locked by herself in her bedroom at 4 Gleneagles Circuit, Greenwith when she was at home.
i.[SM].[85] This room locked from the outside, not the inside.[86]
[84] Record of Interview 18 July 2019 at 9: “saying she is not good enough, and she is worthless”.
[85] Affidavit of SM dated 15 January 2025 at [31]-[32].
[86] Affidavit of SM dated 15 January 2025 at [4].
In addition to the list provided by the prosecution, there are other aspects of SM’s observations of Ms Wilmott’s conduct towards Jasmine that are relevant to the prosecution case. These are: requiring Jasmine to wash from a plastic tub, making Jasmine eat outside separately from the rest of the family and telling Jasmine that no one would believe her.
1.Requiring Jasmine to wash from a plastic tub
a.     From about the age of 12 years, Ms Wilmott made SM and Jasmine wash themselves and their clothes outside from a plastic tub. This happened all year round and the girls were not permitted to use the shower.[87]
2.Making Jasmine eat separately from the family
a.     SM and Jasmine were required to eat outside separately from the rest of the family. Everyone else ate inside. Occasionally, if SM was good, Ms Wilmott would permit her to eat inside, however, SM never saw Jasmine eat inside.
3.Telling Jasmine that no one would believe her
a.     Ms Wilmott would mock and laugh at SM and Jasmine and tell them that no one would believe them and that they were under her control.[88]
[87] Affidavit of SM dated 15 January 2025 at [24].
[88] Affidavit of SM dated 15 January 2025 at [60].
Treatment of OW and AW
In stark contrast to the manner in which SM and Jasmine were treated, SM described that the boys were “treated like kings” and “were allowed to watch TV in the loungeroom, eat inside, play games, have friends over and they never did any chores”.[89]
[89] Affidavit of SM dated 15 January 2025 at [17], [55]-[58].
SM described that “Jenni’s relationship and treatment of [AW] and [OW] couldn’t have been more different to how she treated Jasmine and [SM]”.[90]
[90] Ibid at [55].
Relevance of the discreditable conduct evidence
It is the prosecution contention that the evidence relating to Ms Wilmott’s treatment of SM (the discreditable conduct evidence) is relevant to four issues at trial. These are:
1.Rebutting the improbability that Ms Wilmott would not have engaged in such acts due to the protective parental bonds that ordinarily exist in a parent/child relationship (non-propensity use).
2.Providing an explanation for Jasmine’s conduct, including why she did not run away from home, why she did not complain of the offending earlier, and why she made certain statements that were false or exculpatory of Ms Wilmott (non-propensity use).
3.Relevant to 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 it is a live issue at trial (non-propensity use).
4.In determining whether Ms Wilmott engaged in the conduct towards Jasmine, as alleged by the prosecution (propensity use).
Given that the starting point for the admissibility of the evidence under all four headings is that the evidence is more probative than prejudicial, it is convenient to first deal with the non-propensity uses of the evidence, before giving consideration to whether the evidence has the strong probative value necessary for it to be permitted to be used for a propensity purpose.
1. Rebutting the improbability that Ms Wilmott would have engaged in such acts
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.
In R v MJJ; R v CJN,[91] Kourakis CJ discussed and endorsed this use of evidence of discreditable conduct. His Honour explained that evidence of this nature is capable of rebutting the inferences of innocence, and natural care and protection, that characterises the relationship between (in that case) father and daughter. Focussing in particular on the use of evidence of an abusive parental relationship, Kourakis CJ said the following:[92]
It is a fundamental human instinct of parents to protect and nurture their children. If the evidence on a charge of assault brought against a parent with respect to his or her child was limited to the direct evidence of the assault itself, the tribunal of fact would be entitled to weigh that evidence against the improbability, drawn from an understanding of the human characteristic to which I have just referred, that a parent would so act. If a complainant were to give evidence of a protracted course of offending, that evidence would call into question the validity of so reasoning, even though the human drive to nurture children would remain a reason to doubt that the course of violence was inflicted. Obviously, items of independent evidence of conduct which is inconsistent with that parental characteristic may have an important bearing on the final resolution of the issue.
[91] (2013) 117 SASR 81.
[92] Ibid at [35].
The evidence is not to be used to positively prove that the parent is more likely to have behaved in the manner alleged but rather, to rebut the view which may naturally be taken of the improbability of a parent behaving in such a manner.
Kourakis CJ also observed that evidence of squalid living conditions and a lack of nutrition can be put to a similar use. His Honour explained:[93]
The evidence of the squalid conditions and lack of nutrition … was also relevant … because it showed that [the appellants] were not bound to their children by the protective bonds which are the ordinary incident of parental relationships and which would otherwise found an inference that they did not commit the offences alleged against them. …
[93] Ibid at [34].
It was the prosecution submission that the observations of Kourakis CJ are apposite to this case, in that Ms Wilmott’s conduct towards Jasmine might be thought to be inherently improbable “if one applies a normative lens of the parent-child relationship, in which parental conduct is guided fundamentally by the protective instincts harboured by a mother towards her child”.[94]
[94] FDN 298, ‘Outline of Submissions of Prosecution in Response to Defendant’s Application to Exclude Discreditable Conduct Evidence filed on 10 January 2025 [FDN 171]’ at [110].
It was submitted that the body of evidence relating to Ms Wilmott’s conduct towards SM largely defeats the preconceptions that might ordinarily apply to such a relationship. In doing so, it renders the conduct alleged against Jasmine more plausible.
In response to the prosecution’s reliance on the discreditable conduct evidence rebutting the improbability that Ms Wilmott would have engaged in such acts, Ms Wilmott raised an argument with two limbs.
The first focussed on the nature of Ms Wilmott’s relationship with Jasmine, as compared to her relationship with SM. Mrs Shaw KC drew the comparison between the two relationships on the basis that there is (on the defence case) evidence of a loving and caring relationship between Ms Wilmott and Jasmine. Mrs Shaw KC went on to explain “[t]hat’s to be compared with [SM], who was not her child, she was a foster child. The fact of the matter is that Jasmine was adopted, she was her child …”,[95] in comparison, “by the time [SM] comes into [Ms Wilmott’s] care, … she has already been the subject of serious abuse, she’s already witnessed violence, she’s already been engaging in violent conduct towards her teachers, spitting, biting, she is already absconding from home…”.[96]
[95] T1527.
[96] T1528.
It was Mrs Shaw KC’s submission that whilst Ms Wilmott attempted to promote a loving relationship with SM, that relationship was “poles apart from her relationship with Jasmine and her responsibility to Jasmine”.[97]
[97] T1530.
During the course of submissions Mrs Shaw KC took me through various reports and other documents in considerable detail which establish that SM had suffered a childhood of extreme trauma, abuse and neglect which, in combination with her intellectual disability, had manifested in her becoming a troubled, dysfunctional child with serious behavioural problems. Before, during and after living with Ms Wilmott, SM engaged in violent, risk taking, anti-authoritarian and recalcitrant behaviour that would have been difficult for any caregiver to manage.
It was submitted that whilst Jasmine may have had her own problems, she did not have an intellectual disability and displayed none of the extreme behavioural issues that arose with SM. On that argument it follows that the relationship between SM and Ms Wilmott, as compared to Jasmine and Ms Wilmott, was so fundamentally different that the former cannot be used to rebut the inference that might otherwise be drawn about the nature of Ms Wilmott’s relationship with Jasmine. That is, that Ms Wilmott’s relationship with SM was so complex and fraught with difficulty, that no inference can be drawn more generally about Ms Wilmott’s parenting skills and instincts.
The second limb of Mrs Shaw KC’s argument about why the MJJ reasoning is not open, is related to the extent to which Ms Wilmott was able to effect control over SM, given that she was not SM’s guardian, but rather merely her foster carer. It was submitted that it was therefore not open for Ms Wilmott to make decisions about matters such as which school SM attended, or whether she was to attend a school camp, or what psychological treatment she was to receive. Those were decisions for the Department for Child Protection. It was submitted that in such circumstances, Ms Wilmott was prevented from taking on many of the responsibilities for decision making that are normally associated with motherhood. Consequently, by way of example, an allegation that Ms Wilmott socially isolated SM by failing to allow her to attend school camps is without foundation.
It was submitted by Mrs Shaw KC that given these two factors, the expectations and the analogies to be drawn with a normal parental relationship are not applicable. SM had only been living with Ms Wilmott for a limited period of time. She had arrived there as a child, already damaged by her unfortunate early life experiences, and Ms Wilmott had a limited ability to make or influence decisions about SM’s upbringing. It was submitted that in these circumstances, it would not be open to draw any inference from the nature of the relationship between SM and Ms Wilmott in relation to Ms Wilmott’s relationship with Jasmine, and hence, when relied on by the prosecution for this purpose, the probative value of the evidence is low.
It was Mrs Shaw KC’s submission that this needs to be contrasted with the highly prejudicial nature of the evidence. The prejudice relied upon relates to the manner in which Ms Wilmott will be required to conduct the defence case in the event that the evidence is admitted. Mrs Shaw KC described the prejudice in the following terms: [98]
The prejudicial value includes, in our respectful submission, the importance of the accused, effectively, in terms of the fair trial process, having to engage in a trial where this evidence becomes part of the entire history of [SM] that must be presented to demonstrate that it has no probative value. In other words, if this was a case where there was just one other statement that was in conflict, that might be different. But that’s not this case. This case has a whole history that cannot be contested as to what occurred before my client came into care.
[98] T1578.
The effect of Mrs Shaw KC’s submission was that if the evidence in relation to SM is admitted, Ms Wilmott will have no choice but embark upon a trial within a trial, to put the evidence into its proper context, which becomes all the more onerous given the voluminous material (most of which is not contested) in relation to SM.
In my view there is some force to Mrs Shaw KC’s argument about the probative value of the evidence. Whilst Ms Wilmott voluntarily took on a parental role in relation to SM, which continued for three years, there were very different challenges in this relationship as compared to that which she had with Jasmine. I am not certain that the “natural instinct of care and protection” would necessarily arise to the usual extent in a relationship in which the child was in Ms Willmott’s care for a limited period of time (albeit for three years), and who was so dysfunctional and difficult to control.
I also bear in mind the words of caution expressed by Kourakis CJ in MJJ, in considering the use of discreditable conduct evidence across multiple members of a family. His Honour observed:[99]
… In this case, the relationship evidence extends to all members of the appellant’s family. It is also a matter of common experience that abusive conduct can affect a family as a whole and result in general dysfunction. Greater caution must be exercised when the discreditable conduct extends beyond the accused’s relationship with a single victim. …
(Emphasis added)
[99] R v MJJ; R v CJN (2013) 117 SASR 81 at [44].

However, Kourakis CJ went on to reinforce that even when adopting a cautious approach, the evidence may be relevant and admissible across the various familial relationships. His Honour said:[100]
… the evidence in this case discloses close connections between the forms of abuse practised by the appellants against each of their children. It discloses such a deep-rooted breakdown of their sense of parental duty that it can be relied upon as showing the true terms on which the appellants and all of their children were living. If the evidence were accepted by the jury, it would cause them to give less, or no, weight to the parental relationship as a reason for thinking the offences improbable.
[100] Ibid.
If this was the only basis upon which the prosecution sought to lead the evidence, I may have some hesitancy in finding that on the evidence that is foreshadowed, it satisfies the statutory test of being more probative than prejudicial. However, for reasons that I will come to, the evidence is clearly admissible for other purposes and I therefore leave it open as to whether ultimately I find that it is also admissible on a MJJ process of reasoning. Given the evidence is to be admitted for other reasons, I see no prejudice to Ms Wilmott in adopting this course.
2. Providing an explanation for Jasmine’s conduct, including why she did not run away from home, why she did not complain of the offending earlier, and why she made certain statements that were false or were exculpatory of Ms Wilmott
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 make about Ms Wilmott’s behaviour towards her.
This use of the evidence relates to both acts undertaken and words spoken by Jasmine (e.g. denying Ms Wilmott assaulted her and alleging that MW sexually assaulted her) and the failure of Jasmine to respond or react to Ms Wilmott’s behaviour towards her in a manner that may be expected (e.g. running away or complaining to the authorities). An important issue at trial will be what conclusions or inferences can be drawn from Jasmine’s conduct; in particular, which aspects of her statements or assertions of facts can be relied upon as truthful.
Whilst it will no doubt be the defence case that Jasmine’s denials that she was assaulted by Ms Wilmott, and her failure to complain or take steps to remove herself from the household are consistent with Ms Wilmott’s innocence, the prosecution contend that the alternative explanation is that Jasmine was fearful of Ms Wilmott and effectively did as she was told. That fear arose, not only from Ms Wilmott’s conduct towards her, but also because of what she witnessed happening to SM, despite the fact that SM had the additional protection of being under the guardianship of the Minister.
It is the prosecution’s submission that Ms Wilmott’s behaviour towards SM in Jasmine’s presence is an important consideration in assessing Jasmine’s motivations and the reason why she conducted herself in the manner that she did.
Such use of the discreditable conduct evidence draws directly upon the reasoning of Vanstone J in R v M, BJ,[101] when her Honour said:[102]
The evidence of violence described by all three complainants, all uncharged in respect of D, was in my view admissible in relation to the sexual allegations made by each complainant. In other words, in considering the charges concerning any one complainant, evidence of violence suffered by, or observed by, that complainant was relevant and admissible. In respect of A there was a specific claim by her that she was frightened of her father. In her statement she also expressed fear on account of her mother, because the appellant expressed resentment about his wife’s presence impeding his activities with A, and because A had witnessed his violence towards her mother. Her fears could not but have been informed by violence she repeatedly witnessed to her brother C, and to a lesser extent to D and that she herself suffered. Further, I consider that this evidence was properly before the jury in respect of all the sexual charges. It tended to explain the way in which the appellant exerted control over his children, why they were compliant, in the case of the boys, in allowing him to show them pornography and to remain silent about it, and in his intrusion into their personal development with his own unhealthy and distorted interests. In the case of A, the evidence of violence in the household tended to demonstrate how the appellant could maintain such an exploitative and sometimes violent relationship with his daughter without fear of her exposing his activities. In respect of all three complainants it would be open to the jury to conclude that the assaults committed on each in the presence of one or both of the others had the effect of subjugating, controlling and conditioning each individual. What each child saw of the violence shown by the appellant to the other children was directly relevant to explain why that child tolerated violence and sexual dealings without resistance or complaint.
[101] (2011) 110 SASR 1.
[102] Ibid at [35].
Whilst there will already be evidence capable of establishing the foundation for a submission that Jasmine was in fear of Ms Wilmott, based on Ms Wilmott’s alleged conduct towards Jasmine, the evidence about SM creates an added dimension to that body of evidence. It is contended that in addition to her own treatment as alleged against Ms Wilmott, Jasmine also saw SM subjected to violence and other forms of ill treatment on a regular basis that would have reinforced her fear of Ms Wilmott. If that evidence is accepted, it strengthens the inferences that the prosecution seeks to draw.
Such an approach to the evidence does not involve reasoning from any tendency or disposition and, as such, it engages the test in s 34P(2)(a) of the Evidence Act, that is, that the probative value of the permissible use of the evidence outweighs its prejudicial effect.
Mrs Shaw KC disputed that the evidence used in this manner has the probative value necessary for it to be admitted. It was Mrs Shaw KC’s submission that the evidence has to be considered in the context that Jasmine was a child and, as such, it was not open for her to just ‘up and go’.
Mrs Shaw KC posed rhetorically: [103]
There’s no suggestion or could be no suggestion that the child of a family would take steps to leave home, where is it suggested she - it might be argued that she would go? We don’t really understand how the assumption that it would be argued that, if this was all happening, she would take steps to leave home. You might say that to a wife or an adult, ‘this would explain why she stayed in the relationship’, but that reasoning doesn’t apply to a child. If, for example, at trial I put a question and said ‘Why didn’t you leave home?’, then obviously I’d open that up argument but I can assure your Honour I not going to be putting a question ‘Why didn’t you leave home?’…
[103] T1537.
As to the prosecution contention that the evidence may be relevant to an assessment of whether Jasmine would make false statements at Ms Wilmott’s behest, Mrs Shaw KC submitted it involves circular reasoning. It was said to be circular on the basis that there is no evidence to support that Jasmine was schooled to say things, rather, because what Jasmine said is contrary to the prosecution case, the prosecution reasons that it necessarily follows that Jasmine was schooled to say them and therefore they must not be true.
In terms of prejudicial effect, Ms Wilmott relies on the matters raised at [42]-[43].
In my view, the evidence is relevant to establishing Jasmine’s state of mind, which in turn potentially informed her decisions to do or say certain things. Whilst the manner in which she herself was treated will be relevant to this issue, on the prosecution case, the fact that Jasmine was witnessing similar treatment towards someone who had the protection of the State, has additional weight.
The probative value of the evidence outweighs its prejudicial effect, and I admit the evidence on this basis.
Section 34P(3) of the Evidence Act 1929 (SA)
Pursuant to s 34P(3) of the Evidence Act, in determining whether or not the probative value of the evidence outweighs any prejudicial effect, a judge must consider whether the permissible use of the evidence can be kept “sufficiently separate and distinct” from the impermissible use.
This is a matter that I have taken into account. I have arrived at the view that because of the precise nature of the propensity, and the confined issues in dispute to which it is relevant, there is no risk of misuse of the evidence, or risk of the evidence being conflated with the impermissible use. That is particularly so in a trial by judge alone.
3. The evidence is relevant to 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
SM is an important witness for the prosecution. On the prosecution case, she is an eye witness to conduct engaged in by Ms Wilmott that underpins each of the charges. SM’s observations of Ms Wilmott’s behaviour towards Jasmine is intrinsically interconnected with her account of her own mistreatment by Ms Wilmott. SM will give evidence that on occasions that she was subjected to significant levels of abuse by Ms Wilmott, Jasmine was being abused at the very same time. For that reason, it is contended by the prosecution that the evidence of the discreditable conduct is integral to an assessment of SM’s credibility. In other words, to divorce SM’s account of her own mistreatment from her observations of what happened to Jasmine would be to present her evidence in an entirely artificial light.
In addition to that, the acts of assault against Jasmine performed by SM at the direction of Ms Wilmott form part of the actus reus of count 1. Accordingly, it is relevant when evaluating the plausibility of SM’s account that she complied with Ms Wilmott’s directions to assault Jasmine, that there is evidence that assists in explaining why it was that SM complied.
As I understand it, Mrs Shaw KC accepted that, in so far as the evidence of SM’s description of what happened to her is inextricably linked with her observations of what occurred to Jasmine, the evidence is admissible. The question that will arise is whether the evidence is in fact inextricably linked in the manner contended by the prosecution.
That concession however, is made against Mrs Shaw KC’s overarching application for the entirety of the evidence of SM to be excluded.
In my view, the evidence is admissible and relevant to the proper evaluation of SM’s narrative of witnessing the alleged offending against Jasmine. On that basis, its probative value outweighs its prejudicial effect.
I am also satisfied that the permissible use of the evidence can be kept “sufficiently separate and distinct” from the impermissible use for the reasons that I have set out at [61]-[62].
4. Determining whether Ms Wilmott engaged in the conduct towards Jasmine as alleged by the prosecution
I turn then to consider the basis upon which the prosecution seeks to rely on propensity reasoning. The issue to which the prosecution submits that the propensity evidence is relevant, is in determining whether Ms Wilmott engaged in the conduct towards Jasmine as alleged by the prosecution. That is, whether the actus reus of the offence of manslaughter can be proved.[104]
[104] For the purposes of this argument, I will focus on the use to which this evidence can be put in proof of the offence of manslaughter. However, I acknowledge that the prosecution contends that the discreditable conduct evidence is also relevant to the proof of the alternative offences.
To use the evidence in this manner, the prosecution relies upon a tendency or disposition of Ms Wilmott to act in a particular way. That is, the conduct of Ms Wilmott towards SM evidenced a tendency for her to engage in specific behaviours towards the female children in her care.
It is accepted by the prosecution that as this evidence is to be relied upon for a propensity purpose it must be established that:
(a)the evidence of Ms Wilmott’s conduct towards SM has a probative value in relation to the allegations about her conduct towards Jasmine, that outweighs the prejudicial effect of the evidence;[105] and
(b)the evidence in question must be shown to have a “strong probative value” having regard to the particular issues in the trial.[106]
[105] Evidence Act 1929 (SA) s 34P(2)(a).
[106] Ibid s 34P(2)(b).
The assessment of whether the evidence has strong probative value involves consideration of the extent to which the evidence supports the tendency, and the extent to which the tendency makes more likely the facts making up the charged offence. Tendency evidence depends, for its probative value, on “how persuasively it can be reasoned that the person will behave in a way that is consistent with the tendency”.[107]
[107] Hughes v The Queen (2017) 263 CLR 338 at [20].
In Eddy v The King,[108] in the context of considering sexual offending against multiple complainants, the Court of Appeal observed that, when determining whether the evidence is “strongly probative”, regard may be had to the following features (among others):[109]
a)characteristics common to the complainants themselves (by reference to their age, gender or some other characteristic such as their familial relationship with the accused);
b)similarities in the physical acts comprising the unlawful sexual acts committed against the complainants;
c)the circumstances surrounding the physical conduct, establishing a particular or distinctive method of procuring the opportunity to offend, or of seeking to insulate the offending from detection; and
d)the extent to which the evidence shows an underlying propensity over an extended period of time.
[108] [2024] SASCA 115.
[109] Ibid at [73], [78].
It is the prosecution’s submission that the evidence of SM strongly demonstrates the tendency of Ms Wilmott to mistreat, assault, underfeed, degrade, humiliate, and paint as a “liar”, the female children under her care. If it is accepted that Ms Wilmott’s conduct in relation to SM exhibits this tendency, such a tendency is strongly supportive of her having engaged in the particulars of count 1 on the Information.
Put simply, it is the prosecution contention that if the evidence is accepted, the fact that Ms Wilmott had engaged in precisely the set of behaviours alleged against Jasmine towards another female child of the same age, who was also in her care, is strongly probative of the question of whether she had engaged in such conduct towards Jasmine.
The prosecution also rely on the fact that the allegations made by SM about her treatment at the hands of Ms Wilmott are not general allegations of violence or negligent parenting, but rather involve a precise, particular and specific pattern of mistreatment that sits outside of the normal range of expected parenting behaviours. The prosecution summed up their position in the following terms:[110]
The unique constellation of behaviours above is what gives the propensity its probative weight having regard to the issues at trial. This is not a bare propensity to hit or discipline children. It is a matrix of conduct forming a maladaptive system of parental behaviour towards children for whom the accused harboured no maternal or parental instinct.
[110] FDN 298, ‘Outline of Submissions of Prosecution in Response to Defendant’s Application to Exclude Discreditable Conduct Evidence Filed on 10 January 2025 [FDN 171]’ at [100].
The behaviours relied upon by the prosecution as establishing this tendency include:
·Failing to provide adequate food, both at home and school, and making up false explanations for inadequate lunches (e.g. that they had eaten their lunch before school);
·Requiring SM and Jasmine to eat separately from the family and, on occasions, outside.
·Making disparaging remarks about the weight of SM and Jasmine.
·Requiring SM and Jasmine to undertake excessive household chores.
·Compelling SM and Jasmine to undertake chores wearing only their underpants.
·Using extreme and excessive exercise as a method of punishment.
·Cutting the hair of SM and Jasmine as a means of punishment.
·Requiring SM and Jasmine to remain outside.
·Requiring SM and Jasmine to wash from a plastic tub in the rear yard.
·Providing inadequate/unsuitable clothing.
·Denying SM and Jasmine the opportunity to socialise with other children their own age.
·Physically assaulting SM and Jasmine.
·Requiring SM and Jasmine to assault each other.
·Undermining SM and Jasmie by painting them as compulsive liars, and not to be believed.
It was Mrs Shaw KC’s submission that given the combination of acts and omissions relied upon by the prosecution to constitute the actus reus of the offence, there is a danger of reasoning from allegations of an individual assault that the conduct (the single assault) is capable of being supportive of a propensity to engage in all of the conduct alleged by the prosecution. That is, that there is a risk that a propensity to engage in a single type of discreditable conduct can be elevated to assist in the proof of a multifaceted actus reus. As Mrs Shaw KC asked rhetorically:[111]
… when the issue here is an actus reus that constitutes conduct, as outlined, over five years, how does one single assault or two or three assaults during a period within that five years constitute a specific propensity to commit the actus reus of this offence?
[111] T1525.
It was Mrs Shaw KC’s submission that the acts and omissions alleged in relation to SM do not meet the high bar necessary for the discreditable conduct to be admitted against Ms Wilmott. That is, that the evidence is incapable of proving the specific propensity necessary to prove the actus reus relied upon by the prosecution.
It was contended on behalf of Ms Wilmott that the approach adopted by the prosecution has been to identify a broad specific propensity as a general propensity, and ignore all of the differences in the evidence, that in fact undermine the case advanced by the prosecution. It was submitted that it was not open to the prosecution to rely on a broad propensity because close consideration of the evidence reveals that there are too many differences for the evidence to have strong probative value.
Mrs Shaw KC identified a number of aspects of the evidence upon which the prosecution rely, to make the point that when analysed at a deeper level, the evidence does not in fact establish a specific propensity.
Mrs Shaw KC accepted that in determining the probative value of the evidence the Court should not embark on a fact finding exercise, however she said:[112]
What we submit is required though in terms of the evaluation of probative value which ultimately does implicitly include a question of ascertaining what the evidence is capable of proving, rather than what, in fact, the evidence does prove.
[112] T1576.
It was Mrs Shaw KC’s submission that in inviting the Court to embark on an assessment of the evidence, she was not descending into fact finding but rather was conducting an evaluation of the evidence as relied upon by the prosecution, which is a question of law.[113]
[113] T1577.
It was contended that when properly considered, the evidence relied upon by the prosecution cannot satisfy the test of being more probative than prejudicial and further that when properly analysed, the evidence does not have the strong probative value necessary for it to be admissible pursuant to s 34P(2)(b) of the Evidence Act.

In support of this submission, Mrs Shaw KC relied upon a number of different documents, affidavits and reports that had the potential to undermine the prosecution contention that the conduct engaged in by Ms Wilmott towards SM, was capable of establishing that she had a tendency to behave in a particular manner. In addition, Mrs Shaw KC submitted that there were also a number of inherent problems and deficiencies in the accounts provided by SM, that were also relevant to a consideration of whether the probative weight of the evidence outweighed its prejudicial effect.
1. Evidence said to be incapable of establishing a propensity on the part of Ms Wilmott
During her submissions, Mrs Shaw KC spent considerable time, and tendered a large number of documents in support of her argument that the evidence is incapable of demonstrating the particular propensity that the prosecution seeks to rely on. For current purposes it is only necessary to provide some examples of the approach that Mrs Shaw KC adopted.
Failing to provide adequate food
An important aspect of the prosecution case is that Ms Wilmott not only failed to provide Jasmine with adequate food and nutrition, but that she also had a particular mindset about Jasmine’s weight. The prosecution seeks to rely on evidence that establishes that Ms Wilmott also failed to provide adequate food to SM and demonstrated a similar attitude to her weight.
During her submissions, Mrs Shaw KC tendered and relied upon a number of documents that she suggested undermined the allegation that Ms Wilmott had failed to feed SM.
Amongst those materials was an affidavit from Brenda Marsh, a previous carer of SM.[114] In that affidavit, Ms Marsh described SM as a “compulsive liar”. In providing an example of this, she said that she had knowledge of SM throwing her food away and then subsequently denying that she had been given food. It was submitted that consistent with this, “what the materials show is that it was arranged with St Pius X that [SM] would have a lunchbox and the school would make sure that she did not eat all her food at once or she did not throw it away, because they also witnessed her claiming that her sandwich was soggy and it wasn’t and complaining she had no food”.[115] Mrs Shaw KC explained that this evidence can be found in the St Pius X school records, and that there was a system in place whereby SM’s lunchbox would be given to the school and she would be given her food at recess and lunch time.
[114] VDD106, Tab 9.
[115] T1532.
The prosecution also allege that during the time that SM lived with Ms Wilmott, she lost a lot of weight, in support of the prosecution contention that Ms Wilmott did not provide SM with adequate food. In response to that, Mrs Shaw KC made the point that over the relevant period of time, SM remained under the constant supervision of not only the Department for Child Protection, but also paediatricians and psychologists, with whom she attended appointments. It was Mrs Shaw KC’s submission that the records establish that SM in fact put on weight whilst living with Ms Wilmott, and that the issues relating to SM’s weight must be considered in the context that carers had expressed concerns about the need for SM’s weight to be monitored, because of obesity issues in her family.[116]
[116] T1542.
In response to these submissions and the documents relied upon by Mrs Shaw KC on the issue of whether Ms Wilmott provided SM with adequate food, the prosecution also tendered a volume of materials[117] which contained documents upon which the prosecution relied to put Mrs Shaw KC’s submissions into a proper context.
[117] MFI VDP112.
The prosecution provided affidavits from staff from St Pius X, who made observations that SM had lost weight whilst in the care of Ms Wilmott. By way of example, Deanna Condo, who was SM’s teacher, observed:[118]
When she first started with us [SM] was a healthy weight if more on the slightly chubby side and her uniform fitted well; however I did notice that [SM] had lost quite a bit of weight by the end of year 4 and her uniform was hanging off her. She then continued to lose more weight even when I had her in year 6 [2015].
[118] Ibid, Tab 8, Affidavit of Deanna Condo dated 11 August 2020 at [15].
There were also affidavits from teachers at the school who noticed that SM appeared to have put on weight and looked healthier after leaving Ms Wilmott’s care.[119] Rachel Brzezinski, who was one of the teachers to make that observation, also noted that it was at the request of Ms Wilmott that SM’s lunch box was taken from her, and the distribution of her food was monitored, as opposed to being an initiative of the school.
[119] Ibid, Tab 9, Affidavit of Belinda Burford dated 8 December 2016; Tab 11, Affidavit of Rachel Brzezinski dated 16 December 2016.
In addition to this, the prosecution produced a table with information about SM’s weight as recorded on 22 April 2016, 1 June 2016 and 29 November 2016, extrapolated from various medical records. This table demonstrates that on 22 April 2016, SM fell within the 75^th percentile based on her weight and height. On 1 June 2016, she had dropped to within the 10 to 25^th percentile, and on 29 November 2016, she fell within the 50^th percentile. This accords with SM’s evidence that towards the end of the period of time that she was in Ms Wilmott’s care, she started to be better fed, as people began to notice her weight loss.
Failure to permit socialisation with other children
It is the prosecution case that Ms Wilmott deliberately socially isolated Jasmine. At the extreme level, this included locking her in her bedroom for extended periods of time, however, it also involved depriving Jasmine of the opportunity of normal social interaction that children would expect to experience. Although there is no suggestion that SM was locked in her room, the prosecution rely on evidence that SM was also deprived of normal childhood social exposure.
In response to this aspect of the discreditable conduct, Mrs Shaw KC relied on a general body of materials that related to SM’s intellectual disability, her inability to read social cues, and her generally disruptive and violent behaviour which would have resulted in her inevitably being socially isolated. In particular, Mrs Shaw KC relied upon an undated Department for Education assessment that was prepared when SM was eight years old.[120] The authors of that document reported:[121]
[SM] presents with complex and significant learning needs. Her attention is short, her ability to focus is limited and she is highly distractible. [SM] has significant social, emotional, behavioural difficulties that severely and markedly impact on her learning, as do her corresponding speech and language difficulties. [SM’s] academic skills are therefore severely restricted.
[SM’s] education has been at crisis point for some time. She has experienced numerous exclusions, has attended Beafield Learning Centre and has been unable to be a functional learner within her classroom. She is on part-time attendance that is limiting and impacting on her ability to form friendships or actively participate in school-life.
[120] VDD106, Tab 3.
[121] Ibid at 5.
It was Mrs Shaw KC’s submission that despite the prosecution attempting to draw an analogy between SM not having friends with Jasmine not having friends, it is plain from the materials relied upon that SM was unable to make friends given her lack of social skills, and that she was in fact the victim of bullying by other children.
Again the prosecution produced a number of documents to meet the suggestion that SM lacked the requisite social skills to enable her to make friends.[122] These documents generally related to SM’s schooling and contained references like “[SM] is very sociable and made a number of friends in the class”,[123] and “peers are happy to play with [SM]”.[124]
Cutting the hair of Jasmine and SM
[122] MFI VDP112.
[123] Ibid, Tab 16, Student Profile dated 2 April 2013.
[124] Ibid, Tab 20, Individual Education Plan meeting notes dated 12 March 2014.
On the prosecution case, Ms Wilmott cut the hair of Jasmine and SM by way of punishment. This is one of the features of the conduct relied upon by the prosecution to demonstrate a particular propensity on the part of Ms Wilmott.
It is Ms Wilmott’s contention that, whilst at some point in time both girls received short haircuts, these haircuts occurred in very different circumstances. It was submitted that the differences in those circumstances are such that there is no probative value in the evidence of SM receiving a haircut in relation to the proof of the offence alleged to have been committed against Jasmine. That is, on the basis that although there is no dispute that SM received a short haircut, it cannot be established that the haircut was by way of punishment.
It is necessary to set out the evidence relied upon by the prosecution to understand the point made by Mrs Shaw KC.
On 26 June 2018, Jasmine came to school with her hair cut short and a bruise on her face. At that time, she attended Aberfoyle Park High School. She told a friend, JH, that Ms Wilmott had cut her hair and hit her.[125] Later that day, Jasmine and JH left the school without permission and went to JH’s father’s house. Ms Wilmott called the police and they collected Jasmine and brought her home. Jasmine did not return to Aberfoyle Park High School.
[125] Affidavit of JH dated 12 August 2020. The evidence is the subject of a s 34KA application.
OW has also provided an account of Ms Wilmott cutting Jasmine’s hair. He said “mum chopped most of her hair off, like, like, cut it, because it was, because she got in trouble and so she just cut it shorter”.[126] OW went on to explain that Jasmine had got into trouble at school, so as punishment, Ms Wilmott had cut some of her hair off. He described that it had taken place in the kitchen and that at the time Ms Wilmott was yelling at Jasmine.
[126] Record of Interview 8 April 2022 at 19.
In her interview with police, Ms Wilmott also gave an account of cutting Jasmine’s hair. She said that as a consequence of discovering Jasmine on a dating website, she had cut her hair because Jasmine was sexualising herself.[127] Ms Wilmott denied that she had done so as a punishment. She admitted that she had cut Jasmine’s hair herself, however said that she had “stuffed” up the haircut and as a consequence she had to have it cut at the hairdressers. Ms Wilmott said it was Jasmine’s idea to have her hair cut short.
[127] Record of Interview 29 October 2020 at 185.
It was Mrs Shaw KC’s submission that the evidence surrounding the circumstances of SM’s haircut is very different from that relating to Jasmine’s haircut. As I have mentioned previously, there is no evidence from SM on this topic. Instead, the prosecution relies on inferences to be drawn from evidence from other sources.
As mentioned previously, the primary witness upon whom the prosecution relies in relation to SM’s haircut is Sarah Pope, the hairdresser who cut SM’s hair. In her affidavit, Ms Pope sets out details of an occasion on which Ms Wilmott brought SM to her salon to have her hair cut when her hair was a “complete mess”. Prior to this, Ms Pope had cut SM’s hair once before, however that was for a “normal trim”.[128]
[128] Affidavit of Sarah Pope dated 20 October 2020 at [13].
On the second occasion that Ms Pope cut SM’s hair, Ms Wilmott told her that SM had cut her own hair and had cut chunks of it from the whole of her head. Ms Pope described SM’s hair as “a mess and looked like some people do when they just get out of bed, sticking up and matted”.[129]
[129] Ibid. This evidence remains the subject of objection.
Ms Pope said that at the time, SM’s hair was above her shoulders and she could have kept a lot of the length, however, Ms Wilmott told her to cut it short. Once she had completed cutting SM’s hair, it was apparent to her that SM hated the haircut.
In her affidavit Ms Pope also expressed the opinion that SM had not cut her own hair. She said:[130]
I have been a hairdresser for 25 years and in my opinion [SM] did not cut her own hair. The way the chunks were cut looked as though someone else had held her hair and cut at it, the angles did not match up to how it would look if she had done it herself. In particular the back of the hair also had chunks cut out of it and [SM] would not have been able to do this to the back of her own head. I thought perhaps one of the other children or a child at school had done it.
[130] Ibid at [15].
In addition to this there is reference to a haircut, in the affidavit from SM’s respite carer, Ms March. She said that Ms Wilmott told her that SM’s haircut was the product of the hairdresser getting “scissor happy”.
There is also evidence from a DCP case worker, Michelle Fennell, about an occasion when she picked SM up to take her to an appointment. She said that when she initially picked SM up, SM was wearing a hood in a manner that covered her head and part of her face. After some coaxing, SM reluctantly pulled her hood down, and Ms Fennell could see that her hair had been cut short with “choppy” layers. She said that SM was clearly embarrassed by the haircut.
At a later home visit, Ms Fennell asked Ms Wilmott why SM’s hair had been cut so short. She told Ms Wilmott that in her opinion it was an unprofessional cut and that SM looked like a boy. Ms Wilmott responded by saying that the reason for the haircut was because SM had nits and she would need to find a better hairdresser.
Ms Wilmott has also provided an explanation of the circumstances in which SM’s hair came to be cut in this fashion. She provided that account on 22 March 2017, when she was interviewed in relation to SM, by a Senior Investigator for the Department for Education and Child Development.
On that occasion, Ms Wilmott told the investigators that SM “had a problem with lice”. She also said that she had cut her hair short so that SM did not have to worry about brushing it. Ms Wilmott elaborated:[131]
No, I talked to her about it because she got very distressed about having lice all the time, and so for a child with very thick, curly hair, frequently having lice and having to have that combed through with huge sensory issues was quite distressing for the poor kid.
So I said to her, “The one option we could explore is having some short haircut”. So we went onto the internet together and we saw all these trendy hairstyles and she picked, I don’t have them on my phone anymore, but she really liked, is it Miley Cyrus? She had really cool, short hair. So that’s what she asked for, and that’s not what she got.
[131] Record of Interview 22 March 2017 at 125.
Ms Wilmott said that she had taken SM to the hairdresser and the following occurred:[132]
… she selected the hair style, but we weren’t happy with the cut, so it was done at Golden Grove in a hairdressing salon there, and I wasn’t happy with it, she wasn’t happy with it. It was just a shocking cut. So I’ve had, I don’t know about you, I’ve had the same problem with hairdressers actually understanding curls and the difference in cutting it. So what they do is they go in and they razor or they slice and, curls need to be full and blunt, and it doesn’t matter how many times you, and so she did have some terrible haircuts at times, as I have, all my life.
[132] Record of Interview 22 March 2017 at 123.
Ms Wilmott went on to explain that initially SM had loved the haircut, however, she changed her view when she heard some negative comments made by other students, who said that she looked like a boy.
It was the prosecution’s submission that based on all of the evidence, the inference can be drawn that Ms Wilmott had cut SM’s hair as a form of punishment, just as she had done with Jasmine. It therefore follows, that the evidence discloses a particular propensity on the part of Ms Wilmott, which when considered with the other propensity evidence, meets the legislative test for admissibility.
It was Mrs Shaw KC’s submission that the evidence is incapable of establishing that Ms Wilmott arranged for Jasmine’s hair to be cut short as a form of punishment. In support of that argument, Mrs Shaw KC also relied on a number of documents that suggest that SM had ongoing issues with maintaining and caring for her hair. By way of example, Mrs Shaw KC relied upon entries in the DCP and school records that SM had hair that would knot very badly and this was very distressing for her. It was submitted that the only way in which to manage the situation was to keep her hair very short.
2. Inherent problems and deficiencies in the accounts provided by SM
SM was the subject of a prescribed interview that took place on 18 July 2019. At that time, SM was 16 years old. Details obtained during the course of that interview were subsequently converted to an affidavit that was signed on 15 January 2025. During the course of the legal argument, I was advised that the prosecution did not propose to tender the interview at the trial, but rather would lead SM through her evidence in the usual fashion based on the details contained in the affidavit. As the argument progressed, it became apparent however that there were aspects of the account provided in the interview that had not made their way into the affidavit. For that reason, during the submissions, the prosecution continued to rely on aspects of the contents of the prescribed interview as well as the contents of the affidavit.
It was Mrs Shaw KC’s submission that in considering the probative force of SM’s evidence, it is necessary to take into account some of the inherent problems with SM’s version of events. There were three matters in particular that Mrs Shaw KC relied upon. These were SM’s account of running away to the Salisbury Police Station, a claim that she had not been permitted to see her adopted father and an allegation that Ms Wilmott held a knife to her throat.
Mrs Shaw KC emphasised the point that all of the problems that she identified with SM’s version of events arose from matters that were not in dispute on the prosecution case.
Running away to the Salisbury Police Station
In her affidavit, SM described occasions on which she ran away from Ms Wilmott’s house. In particular, she said:[133]
… I would go to my DCP social worker Lisa with bruises all over my body and I would tell her about all the horrible things Jenni was doing to me. I would also run away and turn up at Salisbury Police Station and tell them about it too, but the police would just end up ringing Jenni. …
[133] Affidavit of SM dated 15 January 2025 at [71].
In the initial prescribed interview, SM said that when she would run away from the Wilmott house she would go to the police station or the social worker’s officer. She made no reference to any particular police station.
It was agreed by the parties that there is no record of SM ever having run away from the Wilmott household and gone to the Salisbury Police Station.
It was Mrs Shaw KC’s submission that this evidence demonstrates that SM is an objectively unreliable witness, which is relevant to a consideration of the probative value of her evidence.
Whilst Ms Litster did not dispute that SM had never run away to the Salisbury Police Station, to put the evidence on this topic into context, she tendered some records in relation to other occasions when SM had run away. In particular, there is record that on 1 August 2016, SM ran away to Salisbury Families SA.[134] In addition, there is a further record that establishes on 8 January 2017, SM ran away and called SAPOL from a phone box in Salisbury before “walking to police station, scared & wanting to go back to placement”.[135]
Threats with a knife
[134] MFI VDP112, Tab 24.
[135] Ibid, Tab 25.
In her affidavit, SM described an occasion on which Ms Wilmott held a knife to her throat. In the context of describing Ms Wilmott buying her a dolls house, SM said the following:[136]
A couple of months after this, Jenni held a knife to my throat and I ran away. A day or so after that I was taken away for good and I never went back into Jenni’s care.
[136] Affidavit of SM dated 15 January 2025 at [63].

The topic of Ms Wilmott using a knife against her was also raised by SM in her prescribed interview. In the interview, it was SM who had introduced the topic of a knife, during the course of a lengthy description of the various ways in which Ms Wilmott would assault her. She said:[137]
… the point that I had enough of her crap was when she put a knife to my neck and said “if you run away again or tell anyone that I’m hurting you, it’s easily [sic] to move the knife straight across your neck like”…
[137] Record of Interview 18 July 2019 at 8.
The topic of the knife came up again later in the interview when SM was asked what had caused SM to run away (on the final occasion). SM responded:[138]
[138] Ibid at 21.
Getting abused – having a knife to my neck.
…
… or having a knife to your back.
The interviewer then sought some clarity about the knife and asked:[139]
Alright. So we’ve talked about a knife to your neck.
…
The knife to your back is that the same incident or a different one?
SM replied:[140]
… She put, only pointed it once to the neck and my back when I didn’t move away.
[139] Ibid at 22.
[140] Ibid at 22.
The interviewer asked SM to tell her everything that happened then, and the following exchange occurred:[141]
SM:I can’t remember that. I, I only remember the knife, the, really, feeling of the knife, the sharp edge of the knife to my back. And then she’d go straight to my neck and like …
Interviewer: So that was the same time as the knife to your neck?
SMYeh.
Interviewer: Right, sorry, I misunderstood you, I thought it was a different time. So what happened before this knife to your neck? What was it that led to that happening?
SM:I don’t know because I did when I was with Jenni and she was, and I was on her good side, I did feel like I was slowly getting brain washed, brain washed, in her crap.
[141] Ibid at 22.
Later in the interview, the interviewer came back to the topic of the knife. SM was asked where she was when Ms Wilmott held the knife to her neck. She said “she was right next to me, behind me”[142] and “I was sitting at the table and she was behind me with the knife”.[143]
[142] Ibid at 35.
[143] Ibid at 36.
SM told the interviewer that the table was in front of the roller door, outside of the house. SM said that she was 12 years old when the incident involving the knife took place.[144]
[144] Ibid at 37.
It was Mrs Shaw KC’s submission that in order to properly assess that evidence, and address its reliability, more needs to be known about SM. In particular, that SM had a long history of making allegations about knives. Mrs Shaw KC relied on a number of documents in support of her submissions on this topic. These took the form of various Department for Child Protection records, and related to the period after SM was removed from Ms Wilmott’s care
Generally, the records demonstrate that at times of high stress, SM would commonly make threats to self-harm or to harm others with a knife. By way of example, on 25 July 2019 the following incident is noted to have taken place:[145]
[SM] comes out of bedroom and into Shania’s yelling at her to “shut the fuck up or I will slit your throat’. Lorna asks [SM] to leave Shania’s room as it’s her safe space. [SM] continues screaming to “go away and die” and that we need to “shut the fuck up”, “I will grab a knife and slit your throat” etc. …
There are multiple records of SM engaging in behaviour of a similar nature.
[145] MFI VDD111, Tab 38.
There is a record of an occasion that took place on 15 February 2018. It would appear that the issue that had led to an outburst from SM was the use of some leftover meat in a pasta sauce. It is noted that this resulted in the following threat being made:[146]
[SM] said “if you make me eat that veggies or the meat I will get a knife and stab my throat as if I hurt myself it will be better than eating that”.
[146] Ibid, Tab 18.
It was Mrs Shaw KC’s submission that the reliability of the evidence about Ms Wilmott threatening SM with a knife has to be evaluated in the context of SM’s preparedness to so readily jump to making threats about knives, cutting her throat or the throats of others. It was submitted that this demonstrates the limitations to the probative value of the evidence.
SM not being permitted to see her foster father
In her affidavit, SM claimed that she had been prevented from seeing her foster father, MW. She said:[147]
Jenni gave the kids the illusion that their adopted dad abandoned them but I learned later this was not the case. Whenever he came to visit, I was either locked outside or hidden in my room. I wasn’t ever allowed to see my foster father.
[147] Affidavit of SM dated 15 January 2025 at [65].
It would appear that this passage is based on the following exchange that took place during the course of the prescribed interview:[148]
[148] Record of Interview 18 July 2019 at 11-12.
Interviewer:   So if I just, every time you’ve said something about foster carer, are we always talking about Jenni or…
SMYes.
Interviewer:   …are we talking about anyone else.
SM:Jenni.
Interviewer:   Just Jenni.
SM:She’s the only one.
Interviewer:   Okay.
SM:But when she – when her was fostering me she was with her partner, but she, they didn’t get married because – they didn’t – I don’t think they got married, I don’t know, but he left her because he found another woman. But I think he – I think there’s more to it. I think he left her because she’s abusive.
Interviewer:   Okay. And do you know what he was called.
SM:No.
Interviewer:   Can you remember, No.
SM:Because I never met him.
Interviewer:   Oh right, okay, so he…
SM:When he came over she locked me in – she locked me in my bedroom or the bathroom.
Although it is not clear upon what SM bases her belief that she was locked in the bedroom or bathroom when her foster father came over, what is plain is that she said that she never met him.
Regardless, it was Mrs Shaw KC’s submission that SM’s claim to have been prevented from seeing her foster father relates to a time at which MW was long gone, and was in no contact with his children.
Mrs Shaw KC put to the Court:[149]
That is completely false at every level because, as your Honour might recall when we had the submissions about the admissibility of [MW’s] statement, he had well and truly left before [SM] was taken on as a foster child. He was gone by at least May 2013 and [SM] did not begin her placement until July 2013. Once he left, he never came back. So there was no occasion when he came to the house and [SM] was there.
[149] T1541.
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.
In essence, it was Mrs Shaw KC’s submission that the differences in the evidence relied upon by the prosecution in relation to SM as compared to Jasmine are such that the inferences sought by the prosecution cannot be drawn and consequently the probative value of the evidence is, at best, limited. The probative value is further diminished when the inherent unreliability of SM is taken into account. Mrs Shaw KC summarised her argument in the following terms.[152]
So in our respectful submission, there is no foundation on the undisputed evidence for the inference that the prosecution seek to draw and that’s why it has no probative value.
In addition it must past the test of probative and prejudicial value. The prejudice is that the prosecution seek to draw an inference that is contrary to what must be regarded as objective independent evidence, and the burden that that necessarily seeks to place on the defence.
[152] T1579.
Mrs Shaw KC went on to conclude:[153]
So, that’s our position, that it is not capable of having the probative value required to be admissible as a question of law, when the onus is on the prosecution to establish it has the probative value necessary to found the inferences that the prosecution seek to establish, and if it does not have that probative value, then it doesn’t meet the high test for admissibility in 34P.
[153] Ibid.
In my view, the evidence of SM satisfies the test in s 34P(2). The proper approach to the evidence in considering the question of admissibility is, as was suggested by Ms Litster, a simple one. It is to work on the assumption that SM’s evidence will be accepted. As Peek J observed in Ribbon v The Queen:[154]
… the way in which the judge proceeds to assess the capability of the proposed item of evidence will vary according to the type of evidence under consideration. The process may be a simple one in the majority of cases involving direct evidence; thus if A says that B did X, and it is objected that the doing of X is irrelevant, then the judge proceeds on the basis that B did do X and adjudicates on the relevancy of the doing of X. If the evidence is admitted it will be for the jury to adjudicate on the question of whether B did in fact do X.
[154] [2019] SASCFC 130 at [209].
Whilst the matters raised by Mrs Shaw KC, both in relation to whether the evidence establishes a propensity, and that point to the unreliability of SM, are relevant considerations, they are relevant to an assessment of what weight, if any, I ultimately give the evidence in the context of the entirety of the prosecution case.
The very fact that both parties were able to rely on a number of documents, records, and witness affidavits in support of their respective contentions, illustrates that there are competing arguments to be made.
The nature of the propensity relied upon by the prosecution is multifaceted, and as the evidence progresses, some aspects may become stronger and some may become weaker. Some may fall by the way altogether.
Having said that, at this point in time it appears to me that there are two components of SM’s evidence that cannot be relied upon for a propensity purpose. The first is the evidence about SM being threatened by Ms Wilmott with a knife. There is no evidence to suggest that Ms Wilmott ever threatened Jasmine with a knife. It follows that whilst the evidence is admissible on a non-propensity basis, in the manner that I have identified, it cannot be used to support a propensity line of reasoning.
The second is the evidence of Ms Wilmott cutting SM’s hair. In order to establish this aspect of the alleged propensity, the prosecution must prove that Ms Wilmott was involved in the initial “rough” haircut and either that haircut, or the latter short haircut, was undertaken for the purposes of punishment. On my assessment of the evidence as it currently stands, even taking the prosecution case at its highest, those inferences cannot safely be drawn. That is particularly so in circumstances in which SM herself has made no reference to any haircut, let alone one that took place in circumstances in which it could be regarded as a form of punishment.
Ms Wilmott’s application to exclude the evidence of SM[155]
[155] FDN 329.
The basis upon which Ms Wilmott seeks the exclusion of the evidence of SM is:
1. …[156]
2.That the witness has a long history of trauma resulting in her being the subject of numerous interventions by DCP from an early age, and being placed in care.
3.The witness has a history of dysfunction, violence, threats of violence to herself and others, and disengagement both before and after the 3 years that she was in the care of the accused.
4.…
5.Both Jasmine and the accused reported during the period in the accused’s care that [SM] assaulted Jasmine. The absence of Jasmine to meet these allegations by [SM] results in an unfair trial.[157]
6.The evidence ought to be excluded in the exercise of the discretion.
[156] Grounds 1 and 4 of [9] in FDN 329 were not pursued.
[157] Although not abandoned, this ground was not developed during submissions. I understand that the issue will be dealt with in the context of the s 34KA application to have statements made by Jasmine admitted into evidence.
As identified in IMM, there may be cases in which “the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury”.[158]
[158] IMM v The Queen (2016) 257 CLR 300 at [39].
During her submissions, Mrs Shaw KC put to the Court that not only was the evidence of SM lacking in probative value, such that it failed to meet the test under s 34P(2), but also that it fell into the exceptional category of cases in which the evidence is fundamentally flawed in the manner described in the above passage from IMM.
In her submissions, Mrs Shaw KC also relied on the observations of Gageler J about the approach to be adopted by a judge assessing the probative value of evidence in a jury trial. His Honour identified that the question to be asked is “how much is that testimony rationally capable of contributing to the jury’s assessment that the existence of a fact in issue is more or less probable?”.[159]
[159] Ibid at [99].
Justice Gageler went on to discuss the approach to be adopted in circumstances in which the credibility of a witness is in issue. His Honour said:[160]
Performance of that assessment necessitates identification of the fact in issue and of the steps by which it would be open to the jury to reason from the testimony to a conclusion that the existence of that fact is more or less probable. The result of the construction I prefer is that, where credibility of the testimony is raised as an issue going to the probative value of the testimony, the judge will have to ask as part of that assessment: would it be open to the jury, as a step in reasoning from the testimony to the conclusion that the existence of the fact in issue is more or less probable, rationally to find that the testimony is credible? If the answer to that question is that the jury could not rationally find that the testimony is credible, the testimony has no probative value. If the answer is that the jury could rationally find that the testimony is credible, the probative value of the testimony (like the probative value of testimony about which there is no issue of credibility) falls to be measured by reference to the highest use to which the jury could rationally put the testimony having found it to be credible.
[160] Ibid.
It was Mrs Shaw KC’s submission that the aspects of SM’s evidence that she relied upon, in particular, a claim to have run away to the Salisbury Police Station and to have been hidden when her foster father came to visit, highlighted the unsatisfactory nature of the evidence of SM. In addition, in a broader sense, Mrs Shaw KC also relied upon SM’s traumatic dysfunctional background, that I have already dealt with, as contributing to the problematic nature of her evidence. She contended that as a consequence, the evidence did not meet the threshold test of whether it is rationally capable of contributing to an assessment of whether there has been proof of the facts in issue. Mrs Shaw KC went so far as to say that not only does other evidence render SM’s account improbable, but impossible for the reasons expounded by Gageler J.
I do not accept that the approach to SM’s evidence, advocated for by Mrs Shaw KC, is that which the Court was suggesting in IMM. In referring to evidence falling into the category of being “so inherently incredible, fanciful or preposterous” such that it could not be accepted by a rational jury, the Court was describing the entirety of that witness’ evidence. Here, Mrs Shaw KC has identified and relied upon certain aspects of SM’s account, that are at best tangentially connected with the facts in issue, that appear to be demonstrably erroneous. It does not necessarily follow, as a matter of logic or law, that the remainder of SM’s evidence is open to be excluded on the basis that it is so unreliable that it has no probative value in the determination of the facts in issue.
To the contrary, in my view, the shortcomings in SM’s evidence relied upon by Mrs Shaw KC are in the nature of criticisms that are commonly made of witnesses, particularly those who are young, unsophisticated and who suffer from an intellectual disability. That does not mean that these features of the evidence will not be important when it comes time to assess the overall credibility and reliability of SM. That is, however, a very different consideration as compared to a suggestion that the evidence is so unreliable that it should be excluded in its entirety.
I refuse the application to exclude the evidence of SM.