R v Wilmott (No 6) - [2025] SASC 168

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v WILMOTT (No 6)
Criminal Trial by Judge Alone
[2025] SASC 168
Reasons for Rulings of the Honourable Justice McDonald
7 October 2025
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE - OTHER MATTERS
EVIDENCE - ADMISSIBILITY - EXCLUSIONS: IMPROPERLY OBTAINED EVIDENCE
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
The accused is 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 prosecution alleges that the accused was physically, mentally and emotionally abusive toward her adopted daughter (‘the deceased’), and that this conduct was a substantial cause of her death.
The prosecution seeks to admit into evidence a prescribed interview with OW pursuant to s 13BA of the Evidence Act 1929 (SA). OW is the younger brother of the deceased and an adopted son of the accused. It follows that the prosecution must establish that the interview was recorded in accordance with Pt 17, Div 3 of the Summary Offences Act 1953 (SA).
On 14 March 2025, the accused filed an interlocutory application seeking the exclusion of the entirety of OW’s evidence. Numerous grounds were submitted in support of that application and a voir dire hearing was sought. The prosecution opposed both the application seeking the exclusion of OW’s evidence, and the application for a voir dire. Upon hearing submissions, this Court granted the application for a voir dire hearing.
The voir dire hearing centred on, but was not limited to, the following particulars:
1.The impugned interview was not recorded in compliance with the relevant provisions of the Summary Offences Act 1953 (SA) and is thus inadmissible;
2.SAPOL engaged in unlawful conduct in collaboration with the Department for Child Protection, and OW was unlawfully removed from the accused’s care as a consequence;
3.The removal of OW from the care of the accused, by the Department for Child Protection pursuant to s 41 of the Children and Young People (Safety) Act 2017 (SA) was unlawful and for an improper purpose;
4.The ongoing guardianship order and the exclusion of a relationship between OW and the accused was unlawful and/or an abuse of process of the Court;
5.The conduct of SAPOL and OW’s psychologist undermined and circumvented the application of s 21 of the Evidence Act 1929 (SA) in relation to OW’s rights under that section, nor was OW provided with independent advice in that respect.

Held:
1. The application to admit the prescribed interview with OW is granted.
2. The application to exclude OW's evidence is refused.
Children and Young People (Safety) Act 2017 (SA) s 41, s 146, s 147; Criminal Law Consolidation Act 1935 (SA) s 13, s 14, s 20, s 30; Evidence Act 1929 (SA) s 12AB, s 13BA, s 21.; Police Act 1998 (SA) s 11 ; Summary Offences Act 1953 (SA) s 74C, s 74D, s 74EA, s 74EB, s 74EC, referred to.
Hughes v Police (2009) 103 SASR 337; Police v Henwood (2005) 92 SASR 15; Police v Hodder [2016] SASC 70; South Australia v Crossley [2020] SASCFC 128, applied.
Lindsay v The King; Rankine v The King; Woods v The King 142 SASR 175, distinguished.
Director of Public Prosecutions (Cth) v Brady (2016) 346 FLR 1; Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325, discussed.

R v WILMOTT (No 6)
[2025] SASC 168
Criminal: Ruling re OW
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.
At the time of her death, Jasmine lived with Ms Wilmott, AP (Ms Wilmott’s partner), AW (Jasmine’s older brother), OW (Jasmine’s younger brother), and EP and KP (AP’s daughters). Like Jasmine, AW and OW had been adopted from Korea as infants by Ms Wilmott and her husband at that time, MW.
OW had been home at the time that Jasmine hanged herself in her wardrobe. OW found the suicide note that Jasmine had pushed out under her bedroom door, which caused him to go into her bedroom, where he found Jasmine unconscious. OW cut Jasmine down and called for an ambulance.
OW has participated in three interviews with the police. The most recent took place on 8 April 2022. The prosecution have made an application for this interview to be admitted pursuant to s 13BA of the Evidence Act 1929 (SA) (‘Evidence Act’). Ms Wilmott opposes the admission of the interview on the basis that it does not satisfy the preconditions for admissibility. In the alternative, it is submitted that, even if admissible, the interview should be excluded in the exercise of the discretion. Ms Wilmott, however, goes further than that and has filed an interlocutory application seeking the exclusion of the entirety of the evidence of OW.[6] The following grounds are relied upon in support of that application:
[6] FDN 375.
1.That the evidence of [OW] was obtained as a consequence of unlawful conduct by the South Australia Police (SAPOL) in conjunction with the Department for Child Protection (DCP).
2.That on the day of the accused’s arrest in October 2020, [OW] (aged 12) was compulsorily removed from the care of the accused, and made subject to Guardianship order. The conduct of SAPOL in that removal and subsequent role of DCP in relation to compulsory care was an abuse of process of the court. This resulted in ongoing psychological treatment and other influences that ultimately led to a change in statements
3.The proposal to lead the third statement of [OW] instead of the earlier two statements, after a long period of compulsory care by DCP, and having had ongoing counselling by a psychologist is contrary to the provisions of the Evidence Act 1929 (SA), and/ or unfair and/ or ought to be excluded in the exercise of discretion
…
5.That the removal of [OW] from the care of the accused pursuant to section 41 of the Children and Young People (Safety) Act 2017 (SA) was unlawful and for an improper purpose.
6.That the ongoing application of the guardianship order and the exclusion of a relationship between [OW] and his mother, and subsequently, a denial of a relationship between [AW] and his mother was unlawful and/or an abuse of process of the Court.
7.The conduct of the SAPOL in conjunction with DCP and of the psychologist in relation to the obtaining of the subject interview (08/04/22) with [OW] was in in breach of the provisions of section 74 of the Summary offences Act and the Regulations and SAPOL General Orders.
7.1 Alternatively, it was unfair and an abuse of process and /or ought to be excluded in the exercise of discretion.
8.The conversations between [OW], SAPOL, staff of DCP and the psychologist that were interviews for the purposes of the Summary Offences Act (sections 74D-74EC) were not recorded in accordance with the provisions of that Act, and / or alternatively, such recordings have not been disclosed.
9.The conduct of SAPOL and the psychologist undermined and circumvented the application of section 21 of the Evidence Act 1929 (SA) in relation to [OW’s] rights under that section, nor was [OW] provided with independent advice in that respect.
10.The engagement of the psychologist as the support person resulted in the subject interview that was tainted and/ or unfair to be admitted against the accused
11.The previous statement of [OW] to SAPOL in 2018 and the content and the circumstances and conduct of SAPOL and DCP in relation to two previous interviews between [OW] and SAPOL in 2020 and 2021, has the result that it is improper and unfair to seek to lead the 2022 interview as the evidence in chief.
12.The evidence ought to be excluded in the exercise of the discretion. The accused will submit that where:
12.1 [OW] at aged 10 suffered the trauma of finding his sister on 04/10/18 in the bedroom,
12.2 was forcibly and unlawfully removed from his mother’s care in October 2020 at aged 12, damaging and destroying his relationship with her,
12.3 was compulsorily placed under the guardianship of the Minister until the age of 18,
12.4 where requests by [OW] to return to live with his mother were denied,
12.5 where only supervised access was initially permitted, and ceased from 15/09/21 and upon the accused’s arrest for manslaughter in April 2023, a condition of her bail precluded contact with her remaining child, [AW],
12.6 the subject interview was given after ongoing psychotherapy and liaison with police, and absent independent advice, and in the presence of section 21 of the Evidence Act,
12.7 where his DCP placement and [OW’s] behaviour had become problematic in the lead up to the interview of [OW] in April 2022,
12.8 where after the giving of the 2022 interview, [OW] expressed his unwillingness or uncertainty about giving evidence against his mother, and
12.9 where the conduct of the authorities whose obligations included the fostering of [OW’s] interests, removed any attachment to or connection with his mother,
the calling of [OW] to give evidence against his mother against that background, will likely result in further irremediable trauma to him, is oppressive, contrary to the public interest, an abuse of process and productive of an unfair trial
In support of this application, Ms Wilmott sought a voir dire hearing. The prosecution opposed both the applications for the exclusion of the evidence of OW, and the application for a voir dire. Having heard submissions from the parties, I determined to grant the application for a voir dire hearing.
The evidence on the voir dire
Before considering the respective applications made by the Director of Public Prosecutions (‘the Director’) and Ms Wilmott, it is convenient to set out a summary of the evidence that was given on the voir dire. As some of the arguments were nuanced and heavily dependent upon the factual matrix of this case, it is necessary to traverse the evidence in some detail.
The prosecution called Detective Senior Sergeant Graham Tomkins, Detective Brevet Sergeant Benjamin Ward, Catherine Wood, Detective Brevet Sergeant Elaine McGilchrist, Brevet Sergeant Vanessa Kelly, and Detective Inspector Erin Vanderwoude[7] to give evidence on the voir dire. The following account of the events surrounding the arrest of Ms Wilmott, and the three interviews conducted with OW, is a composite of the evidence of these witnesses.
[7] At the time of Ms Wilmott’s arrest, Detective Inspector Vanderwoude held the rank of Detective Sergeant. For that reason, I will refer to her as Detective Sergeant Vanderwoude during the course of this judgment, for ease of reference.
The establishment of Operation Veritas
Detective Brevet Sergeant (‘DBS’) Benjamin Ward is the case officer in charge of Operation Veritas. It was his evidence that Operation Veritas officially commenced on 24 June 2020,[8] and was set up to investigate the circumstances of Jasmine’s death.
[8] Based on VDP78 this would appear to be when the administration of the task force commenced, with the task force officially commencing on 29 June 2020.
DBS Ward told the Court that Jasmine’s suicide was initially investigated by Detectives from the Southern Districts Criminal Investigation Branch. DBS Ward described this as a “small investigation” producing a limited number of witness statements. It resulted in a finding that Jasmine’s cause of death was suicide.
In 2019, there was a coronial request for a review of the file, and as the Major Crime Investigation Branch did not take the matter on, it was sent to the Public Protection Branch. At that time, DBS Ward was based in the Special Crimes Investigation Section, which was one of the sections within that branch. He explained that a team was set up to carry out the review. The team was comprised of Detective Sergeant (‘DS’) Erin Vanderwoude, DBS Luke McPhee, DBS Emma Woodhouse, DBS Donna Spark, DBS Zoe Gooch and DBS Elaine McGilchrist. The team was under the management of Detective Senior Sergeant (‘DSS’) Graham Tomkins.
In 2020, DS Vanderwoude was stationed at the Human Source Branch of SAPOL. She was specifically seconded to the Public Protection Branch to take on the role of supervising the Veritas investigation team. DS Vanderwoude was responsible for the daily running of the investigation. Above her was DSS Tomkins, the investigation manager who had general oversight of the task force. He was also responsible for briefing the Assistant Commissioner (‘AC’), Peter Harvey, about the status of the investigation as it progressed.[9] His daily involvement was, however, limited as he was also responsible for running two other sections of the department over that period of time.
[9] T1087.
DS Vanderwoude’s first task was to review the coronial file and identify lines of enquiry for further investigation. Based on that review, DS Vanderwoude established that there were a number of areas in which the investigation had been lacking, and required further exploration.
The investigation team was structured such that each detective had a specific area to investigate. This was referred to as a “silo approach”. Relevantly, DBS Ward was responsible for obtaining statements from the friends and family of Ms Wilmott, DBS McGilchrist was responsible for schooling and education and DBS McPhee was responsible for liaising with the Department for Child Protection (‘the DCP’).
Throughout the course of the investigation, there were weekly meetings during which the Veritas investigators provided updates on the progress of the case. The outcome of these meetings was reported through DSS Tomkins, up through the ranks, to AC Harvey.
The progression from a coronial inquiry to a criminal investigation
During the first eight weeks of the investigation, various inquiries were carried out, resulting in the formation of a suspicion that Ms Wilmott had engaged in criminal conduct, namely assault and withholding food from Jasmine. As a consequence, on 27 August 2020, DS Vanderwoude made the decision to upgrade the status of the investigation from a coronial inquiry to a criminal investigation. It was only upon a review of the statements and other material that had been obtained by the investigators by that date, that DS Vanderwoude formed the view that there was sufficient evidence to establish a reasonable cause to suspect that a criminal offence had taken place. The practical consequence was that the powers available to the police changed from a Coronial Direction, to the ability to use general search warrants.
Early inquiries into the welfare of OW
At an early stage of the investigation concerns were raised by AC Harvey with DSS Tomkins about the welfare of OW. These concerns were based upon the circumstances of the removal of SM (a previous foster child) from the Wilmott home in 2016, and the circumstances of Jasmine’s suicide in 2018. In particular, Jasmine’s weight and physical appearance at the time of her death. This resulted in police surveillance being undertaken and inquiries made with OW’s school about his welfare. The purpose of the surveillance was to make observations of OW in order to determine whether there were any obvious signs of neglect. A request was first made for surveillance to be undertaken on OW on 25 June 2020. The surveillance took place between 25 June 2020 and 29 June 2020.[10] No particular concerns were raised about OW’s welfare as a consequence of the observations made during that period of time.
[10] VDP78.
DBS McGilchrist was the Veritas task force member who was given the role of making the initial enquiries with Blackwood Primary School, the school that OW was attending at that time. DBS McGilchrist first made contact with the principal of Blackwood Primary School, Ms Kris Robson, on 22 July 2020. Ms Robson confirmed that OW had started at Blackwood Primary School at the beginning of 2019 and remained a student at the school. Ms Robson told DBS McGilchrist that although the school did not have any concerns about Ms Wilmott, earlier in the year they had some concerns about OW. These concerns arose out of two incidents that occurred towards the end of the previous term.
The first incident involved OW repeatedly holding his breath until the point of blacking out. Ms Robson told DBS McGilchrist that OW had become quite upset at the time and said that he held his breath because he wanted to see what would happen.
The second incident involved OW removing blades from pencil sharpeners and handing them out to other students, including one who had previous self-harming issues. Ms Robson suggested that an explanation for this behaviour may have been a misconceived attempt by OW to try and make friends with other children in his class.
Ms Robson advised DBS McGilchrist that, as a result of these incidents, the school had a meeting with Ms Wilmott about their concerns, and recommended that OW have some sessions with the school psychologist. Ms Wilmott had indicated that she would obtain a referral from OW’s general practitioner, so that he could see the school psychologist. At the time of the telephone call, Ms Robson was of the belief that they had not yet received the referral.[11]
[11] The principal later advised DBS McGilchrist that she had subsequently found out that Ms Wilmott had signed the form for the school psychologist. T1240.
No issues were raised about OW’s weight, food or school attendance.[12]
[12] T1217-1219; VDP97.
As a result of speaking with the principal, DBS McGilchrist was also put in touch with Angela Auricht, OW’s teacher.
On 23 July 2020, DBS McGilchrist had a telephone conversation with Ms Auricht. Ms Auricht had been present on the occasion OW held his breath until he passed out and when he had handed out the pencil sharpener blades. Ms Auricht provided further details about what had occurred on these occasions. Ms Auricht told DBS McGilchrist that after OW had handed out the pencil sharpener blades, she had spoken to him about his reasons for doing so. When asked specifically about why he handed the blade to the student who had trauma in her background, he said that he knew that she had been self-harming and he wanted to give her a blade to cut herself.

By the time that police went to the school to take Ms Robson’s statement, OW was engaging with a psychologist and a welfare worker at the school.
Concerns about OW leading up to the arrest of Ms Wilmott
It was DSS Tomkins’ evidence that during the course of the investigation, the police received no further information that raised any particular concerns about the welfare of OW. In his view, the information that came from the school about the occasion on which OW had held his breath until he passed out, was “not a massive concern”[13] at that point. DSS Tomkins told the Court that in considering the welfare of OW, he also factored in the information that the police were receiving over the course of the investigation about the male children in the household being treated better than Jasmine. In addition to that, the police had spoken to the school and requested that they keep an eye out for OW, and report back if they noticed anything out of the ordinary.[14]
[13] T1074.
[14] T1077.
From DSS Tomkins’ perspective, the position changed, however, as the investigation moved toward the arrest phase. He explained:[15]
As we moved towards the arrest phase of the operation, my concerns were heightened because we were going to arrest his mother and, given the information I had at that stage, I wasn’t sure - I couldn’t be confident of his safety at home. We weren’t going to oppose bail on Ms Wilmott and I was concerned that she would be going back into the house and [OW] would be there. We spoke to [OW] a couple of times at that point, I think from statements from the victim management team, so she would have been well aware they would have been speaking to her children, [AW] and [OW]. So I had to consider that, was it prudent for me to let Ms Wilmott return home and have [OW] present at the house that day. So we decided to have a strategy meeting with the Department of Corrections - sorry, child protection, and that was discussed at a meeting between myself and the team and a strategy meeting was held with DCP as to what their thoughts and what their intentions would be as to any intervention they might take.
[15] T1075.
It was DSS Tomkins’ evidence that he was concerned about Ms Wilmott’s reaction to being charged, arrested and bailed. He said:[16]
… I couldn’t, in all consciousness, not avert my mind to [OW] being in that house and I had no idea how that - the reaction and the fallout of the arrest was going to be and I wasn’t confident to leave that matter unaddressed.
[16] T1083-1084.
DSS Tomkins elaborated on why he was concerned about OW at the time of the arrest:[17]
I believed that the nature of the arrest at that point in time, young Jasmine having been deceased for two years and there was nothing to suggest that [OW] was in any danger, at the point of arrest it was going to be become very apparent that [OW] was present at the time that Jasmine was found, a lot of stuff that would be quite damning could fall on young [OW’s] shoulders, so we were concerned that in the short term at least, him being present presented an issue for his safety at the time.
[17] T1078-1079.
In cross-examination, DSS Tomkins further explained why his concern for OW was heightened by the prospect of Ms Wilmott’s arrest. He said:[18]
A.The arrest changes everything.
…
A.Because of the seriousness, it’s different to if we are out investigating a matter to then arresting the person for it.
…
A.I have, I have to be mindful of the safety and harm that could fall as a result of our actions and that was where I said to - where we discussed it with the teams that we have to consider [OW’s] wellbeing at the point of arrest, we have to.
[18] T1099.
DSS Tomkins shared his concerns with the other investigators, in particular, the need to consider OW’s safety in the short term.
Other members of the investigation team also gave evidence about their concerns becoming heightened as they moved towards the arrest of Ms Wilmott. It was DBS Ward’s evidence, like that of DSS Tomkins’, that the move towards the arrest phase raised issues about the welfare of OW, and the need to take steps to ensure his safety once Ms Wilmott had been arrested.
In particular, DBS Ward was concerned that, whilst there were many family members living in the Wilmott household, they worked long hours or were often not home.[19] As a result, DBS Ward formed the view that there was no “real presence in the children’s life”.[20] This also gave rise to concerns as to who would care for OW, given that Ms Wilmott was to be arrested on some “very serious charges”.[21]
[19] T961.
[20] T961.
[21] T962.
DS Vanderwoude also gave evidence about concerns for the safety of OW in the lead up to the arrest. She said that because of the behaviour that they were going to allege had occurred, OW was likely to be at risk within the home.[22] When asked to explain what that risk was, DS Vanderwoude said:[23]
Primarily that he was a witness to the allegations that were we putting forward in relation to what had occurred within the home to Jasmine. Also believed that the allegations were of a sufficient seriousness that it posed a risk to his welfare and his ongoing safety should he remain in Ms Wilmott’s custody post her arrest.
[22] T1447.
[23] T1448.
Planning for the arrest of Ms Wilmott and the interview of OW
The decision was made to arrest Ms Wilmott on 29 October 2020, and to interview OW on that same day.
Prior to the interview, DBS Ward researched his obligations for interviewing OW, given that OW was a vulnerable witness.[24] As a consequence, DBS Ward became aware that it was necessary for the interview to be conducted by a prescribed interviewer, that OW was entitled to have a companion present, and that the interview was to be recorded on video. When asked about his understanding of what constituted an interview under the Summary Offences Act 1953 (SA) (‘Summary Offences Act’), DBS Ward said that he understood “That any conversation had with [OW] would be recorded”.[25] He went on to qualify this by saying that it was any conversation about “the content of the investigation”,[26] as opposed to a conversation about welfare or where OW was “going to next”.[27]
[24] T991.
[25] T992.
[26] T993.
[27] T993.
Although the evidence is not clear about when or by whom the decision was first made, on 21 October 2020, a briefing was conducted to commence planning for a prescribed interview with OW. Present at that meeting were DBS Ward, DBS McGilchrist, BS Vanessa Kelly and Sergeant Karin Dayman. BS Kelly and Sergeant Dayman were from the victim management team. BS Kelly was to conduct the prescribed interview and Sergeant Dayman was her supervisor.
As it transpired, BS Kelly ended up conducting all three prescribed interviews with OW.
During the meeting on 21 October 2020, a plan was formulated to interview OW on the day of Ms Wilmott’s arrest at the victim management suites, or if he preferred, at his school. There were also discussions surrounding a possible support person and strategies to assist OW in feeling more comfortable.[28] The school psychologist and a pastoral care worker were identified as possible options to fill the role of a support person. Eliminated as suitable for this role was AP, as he was a potential witness who had not yet been spoken to.
[28] T1221-1222.
At the meeting, the members of the victim management team requested that information be obtained about things like: OW’s favourite subjects, hobbies and food to assist in rapport building.
This resulted in a further approach to OW’s school and a meeting with staff from the DCP.
DBS McGilchrist again had responsibility for contacting the school. The purpose of the contact was to obtain information about OW’s caregivers, what other supports there were in the Wilmott household and who was conveying him to and from school, all of which were relevant to ensuring that appropriate measures were in place at the time of Ms Wilmott’s arrest.
For that reason, DBS McGilchrist again made contact with the principal of Blackwood Primary School. Ms Robson identified potential support persons, namely the school counsellor or the school psychologist and suggested suitable spaces at the school for conducting the interview. In addition, she provided the information that DBS McGilchrist requested about OW’s favourite subjects, food allergies and how he travelled to and from school.[29]
[29] T1224.
In her evidence, BS Kelly did not make reference to the meeting that took place on 21 October 2020. Her memory was that she was officially requested to interview OW on 23 October 2020, however, she had been generally aware of the investigation because of its nature and the number of resources involved. Brevet Sergeant Kelly explained the situation:[30]
I was made aware that the investigation was underway, which is really common practice, we’re all in the same office, and so it’s not uncommon to hear about jobs, know what’s going on amongst your team members and just this was - this involved a lot of members, police, and so we are often given the heads-up when there’s a big job going on.
[30] T1281.
BS Kelly first commenced making notes in this matter on 28 October 2020, when she attended the briefing that took place that day in preparation for Ms Wilmott’s arrest.
I will come to that briefing in due course.
The involvement of the Department for Child Protection
Catherine Wood gave evidence on behalf of the DCP. Ms Wood has worked for the DCP for 27 years, most recently as a supervisor of one of the assessment and protective intervention teams. That role involves supervising a team of social workers who are responsible for child protection investigations, working with families to address child protection concerns, working with children who have been removed from their parents’ care and working towards addressing concerns to enable a child to return home. Ms Wood was working in this role at the time that Ms Wilmott was arrested and OW was removed from her care. Ms Wood explained the DCP’s role, and their involvement in OW being removed from Ms Wilmott’s custody.
It was Ms Wood’s evidence that, in 2020, she was working at the St Mary’s DCP office when her manager, Julie Powell, made her aware that an intake had been received on or around 25 September 2020 in relation to OW.[31] From the DCP’s perspective, the intake raised concerns about the emotional and psychological wellbeing of OW.[32] At the time that Ms Wood was made aware of this intake, it remained open, and therefore still under investigation.
[31] VDD41.
[32] T1134.
The evidence is unclear as to who made the report that resulted in this intake. At first, it appeared that DBS McGilchrist had made the report. That proved to be incorrect. DS Vanderwoude was cross-examined on the topic. It was her evidence that, given the passage of time, she cannot now recollect whether SAPOL made the notification. She said it could have been reported by SAPOL, given that they are mandatory notifiers. She explained:[33]
Police officers are obliged, when they believe - or they receive information that they believe a child is at risk, we’re obliged to submit a CARL notification. So if they were speaking to the neighbour and the neighbour provided them with that information, we are obliged to submit it. So it’s not out of the realms that we could have submitted that intake, I just don’t recall which way it came.
[33] T1486.
The evidence was that, at this time, police had received information from Ms Wilmott’s neighbours about hearing her yell inappropriately at OW, albeit they had declined to provide statements.
DS Vanderwoude said that had she received that information as part of the investigation, she personally would have felt that she was mandated to report it.
I am prepared to draw the inference that it was a member of SAPOL who made the report that resulted in the DCP intake. For current purposes, it does not matter who that was.
I am not, however, prepared to draw the inference that there was any malevolent intent behind the making of the report, given that police officers are mandatory reporters and would have been in breach of their duties to not make such a notification once in possession of the information from Ms Wilmott’s neighbours.
In their initial conversation, Ms Powell advised Ms Wood that she had also had some discussions with SAPOL about OW on 19 October 2020. The DCP case file records that on that date DBS Ward had telephoned Ms Powell and left a message for her to return his call. When she returned the call, DBS Ward told her about the plan to arrest Ms Wilmott and to interview OW that same day. The purpose of DBS Ward calling Ms Powell was to make arrangements for the care of OW on Ms Wilmott’s arrest.[34]
The strategy meeting on 27 October 2020
[34] T1153-1154.
A strategy meeting involving members of SAPOL and the DCP took place on 27 October 2020.
Accounts vary as to who was responsible for arranging the strategy meeting.
It was DSS Tomkins’ evidence that, as a result of concerns about OW, there was a decision made between him and the investigating detectives, DS Vanderwoude and DBS Ward, about the need for a strategy meeting to be held with the DCP, to advise them of SAPOL’s intended actions and for them to consider OW’s welfare.[35]
[35] T1083.
Ms Wood’s evidence was that her manager, Ms Powell, wished for her to convene a strategy discussion in relation to the concerns about OW.[36] When Ms Litster asked Ms Wood if she was responsible for calling the strategy meeting, Ms Wood responded with “My recollection is, yes, I made contact with the attendees and requested their attendance”.[37]
[36] T1131.
[37] T1132.
In my view, the likely explanation for these differences in recollections is that there were a number of moving pieces for both SAPOL and the DCP at that time. From the perspective of both organisations, it was necessary that information was shared, and the means by which to do this was a strategy meeting. It was of no moment both then and now, as to the precise genesis of the idea.
Ms Wood explained that strategy meetings are commonly convened in a variety of circumstances. She said:[38]
They can occur in lots of different examples. So if we have an intake, as I explained before, that’s been assessed as requiring a 24-hour response or an urgent response, in all of those matters we need to convene a strategy discussion. So they usually occur with Child Protection Services and SAPOL, but they can - we can include other agencies that may have had a role with the family and have pivotal information to share. We can also convene them in matters which have been assessed as requiring a 10-day response. So they’re the two categories, generally, that require a DCP intervention, a response. If the - if an intake has been assessed as requiring a 10-day response but covers certain areas, say, for example, a situation where there are possible sexual abuse allegations or there’s been some other criminal element to it or there’s injuries to a child, so they’re basically where there’s been either - there could possibly be a role for either Child Protection Services or SAPOL as well in the investigation. So the idea - the purpose of these meetings is to share information that we have on the family and the background information and then create a plan, I guess, for moving forward, as to who will undertake the investigation, what that may look like, what may need to occur if a child needs to have a medical assessment, like a forensic medical or a forensic interview, making arrangements for those things to occur. So they’re quite a usual process in our work.
[38] T1139-1140.
Although the participants at strategy meetings may vary depending on the situation, members of SAPOL, Child Protection Services (‘CPS’) and the DCP are always in attendance.
The meeting between members of the Veritas task force and the DCP took place on 27 October 2020. It was DBS Ward’s evidence that the purpose of the meeting was to advise the DCP of what the police had learned through their investigation and in doing so, to alert them to the need to put a safety plan in place for OW. DBS Ward was very clear in his evidence that the police were not seeking the removal of OW, but wanted another agency, DCP, to ensure that OW was cared for.
DSS Tomkins gave similar evidence about the reason that the police sought the involvement of the DCP in relation to OW. He said:[39]
The role of DCP is effectively the role of his care, safety, welfare, child protection, as is ours. We are child protection officers under the Act. We all have a duty of care to make sure all kids don’t suffer harm and are protected. The role in this particular case and the reasons for a strategy meeting was we believed that the DCP would need to be involved at that stage to offer ongoing support and protection to [OW] that the police wouldn’t be able to provide after we left the house.
[39] T1081-1082.
Ms Wood made contact with the attendees in advance of the meeting to request that they be present. Those in attendance at the meeting were: Catherine Wood - Supervisor DCP; Julie Powell – Manager DCP; Geneveive Bowyer – Senior Practitioner DCP (Case worker allocated to OW); Marion Brown – DCP Adoption Services (in attendance because Jasmine and OW had been adopted); Kayla Curtis – DCP Adoption Services (in attendance because Jasmine and OW had been adopted); Rachel McCulloch – Manager CARN (Supervisor of Marion Brown and Kayla Curtis); Senior Sergeant Erin Vanderwoude – SAPOL; Brevet Sergeant Elaine McGilchrist – SAPOL; and Brevet Sergeant Ben Ward – SAPOL. Ms Bowyer took minutes, which were subsequently converted into the DCP case note of the strategy meeting.[40]
[40] VDD45.
The case note records that inter alia the following was discussed:[41]
[41] VDD45.
·The background and history of the Wilmott family, including the details of SM’s removal after a serious care concern was substantiated in 2016.[42]
[42] It would appear that this was incorrect in that the allegation involving SM was not substantiated.
·Concerns from all parties regarding the care that OW was being afforded by Ms Wilmott and his previous experiences in her care.
·That SAPOL’s investigation had commenced as a coronial investigation, however, had changed to a criminal investigation, with SAPOL planning to charge Ms Wilmott with criminal neglect.
·That SAPOL planned on arresting Ms Wilmott on Thursday, 29 October 2020.
·Concerns about the impact that the arrest would have on OW’s safety.
·DCP adoption services advised that the South Korean government were aware of Jasmine’s death, had raised concerns for OW and were expecting an update on the situation.
·SAPOL provided some of the details of the allegations that formed the basis of the case against Ms Wilmott, and discussed the difficulty in proving the offence.
·The DCP advised that “further consideration will need to be given for a Section 41 removal to determine if the DCP have grounds to do this if [OW] does not disclose, discussed difficulty of proving psychological harm. DCP significantly concerned regarding [OW]’s safety in Jenni’s care given the charges being placed on Jenni in relation to Jasmine’s death and the serious care concern that led to [SM] being removed from Jenni’s care in 2016”. The DCP were to consult with the Crown regarding evidence.
·Placement options available for OW. SAPOL advised that if OW was placed with family, that could be reflected in Ms Wilmott’s bail conditions so that she could have no contact with him.
·The plan for 29 October 2020, was for SAPOL to attend OW’s school and interview OW, preferably at the Wakefield Police Station, however, the interview may need to take place at the school if that was OW’s preference. A pastoral care worker was to be the support person for OW. Ms Wilmott was to be arrested at the same time that OW was being interviewed.
·SAPOL was to be in close contact with the DCP on 29 October 2020, to provide updates of proceedings in relation to Ms Wilmott’s arrest and interviews with the family members and OW.

Significantly, there is no evidence to suggest that during the strategy meeting the police recommended to the DCP that OW be removed from Ms Wilmott’s care. To the contrary, Ms Wood was very clear in her evidence that the responsibility for determining what was to happen with OW was that of the DCP. Speaking of SAPOL, she said:[43]
… They don’t have the ability to recommend, that decision sits with DCP. So even if they had a view, which I don’t recall them stating, a view one way or another, that decision doesn’t sit with them.
[43] T1159.
By the end of the strategy meeting, no decision had been made about what was to happen with OW when Ms Wilmott was arrested. Ms Wood explained the position:[44]
I think at the time we were very clear that we weren’t in a position to make that decision, about whether we had sufficient evidence to remove [OW] and that the outcome of the strategy discussion was that we were seeking further - we would do some further consultation and seek some further information.
[44] T1159.
Members of SAPOL also gave evidence about what occurred at the strategy meeting.
DBS Ward told the Court that the information provided to the DCP at the meeting included allegations of Ms Wilmott assaulting Jasmine and depriving her of food. In addition, the police told the DCP that they had evidence from neighbours who described OW as being present and involved in assaults against/towards Jasmine. The police also provided information about Jasmine’s weight at the time of her death, and the circumstances in which SM came to be removed from the Wilmott household, which held some similarities to the allegations made about Jasmine.
The police also provided the DCP with information specific to OW. DBS Ward explained:[45]
Then specifically to [OW], there were statements provided from the teachers of [OW], the concerns to his behaviour at school and their view of Jenni’s lack of care to him and the lack of psychological support.
[45] T961.
DBS Ward said that the police provided the DCP with information about the particular occasion on which OW had held his breath until he passed out and that when the school asked Ms Wilmott to collect him, she said, “he’s fine, he can catch a bus” and did not appear to be overly concerned.
It was DBS Ward’s evidence that an important focus of that meeting was to provide information about what the police knew of the family dynamic in the household. He summarised the nature and purpose of the information in the following exchange:[46]
A.Yes, we tried, as best as we could, to provide the family dynamics of the Wilmott household and what we understood of it. I had personally taken the statements of [KP] and [EP], which was Ms Wilmott’s boyfriend’s children. So I had got a picture from them as to what the dynamics of the household were like and it was my understanding that [AP] worked long hours and would quite often leave the house before the children even woke and when he came home, quite often, the children would be asleep. So, then from our records and statements we understood that the children would go - sorry, that [OW] and Jasmine were going into respite care on the weekends, so we didn’t feel like [AP] had a real presence in that house. We knew of an uncle that lived at the rear of the premises but we didn’t really feel like that person, either, was a real presence in the children’s life.
Q.Who was that.
A.Can’t remember if that was Neil or Dennis Rayner.
Q.Who was Neil or Dennis related to.
A.Brothers of Ms Wilmott, I think it was Neil. So, in the absence of - sorry, and one other person in the household was [AW], … but it was also our understanding - and I had personally spoken to [AW] several times - that he very much wasn’t present in the house a lot, that he was quite often at his girlfriend’s house. So, because the police had no objections to bail, we knew that Ms Wilmott on would be getting bailed back to that house, we had concerns as to who was going to look after [OW], given what we were about to arrest Ms Wilmott on, which were very serious charges.
Q.You communicated that information and those concerns to DCP.
A.Yes.
[46] T961–962.
The police provided the DCP with the details of when they proposed to arrest Ms Wilmott. When asked whether arrangements were made by the DCP at the strategy meeting for the day of the arrest, DBS Ward responded:[47]
So we had that meeting with them and by no means did they say what they were going to do at that meeting, our role was to go down there and provide them information and then they would then make a decision as to what they were going to do with [OW], either in the immediate future or long-term future, we walked away from that meeting. I understand then that there was correspondence from the DCP to Erin Vanderwoude asking some more questions, which Erin then answered relative to our investigation etc. And then, at some point, I’m pretty sure we were clear by the time we did go to the arrest that the DCP would get involved and remove [OW] on that day.
[47] T962.
As set out previously, it was DSS Tomkins’ evidence that as the investigation progressed towards the arrest phase, concern about OW’s welfare escalated and it was for that reason that the strategy meeting was arranged with the DCP to discuss their thoughts and intentions in relation to any possible intervention.[48]
[48] T1075.
DSS Tomkins gave evidence about his understanding of the role that the DCP played in relation to OW. He said:[49]
The role of DCP is effectively the role of his care, safety, welfare, child protection, as is ours. We are child protection officers under the Act. We all have a duty of care to make sure all kids don’t suffer harm and are protected. The role in this particular case and the reasons for a strategy meeting was we believed that the DCP would need to be involved at that stage to offer ongoing support and protection to [OW] that the police wouldn’t be able to provide after we left the house.
[49] T1081-1082.
DSS Tomkins was cross-examined about whether police recommended the removal of OW to the DCP and he was emphatic in his response, that it “Definitely wasn’t a recommendation, no”.[50]
Police briefing on 28 October 2020
[50] T1109.
On 28 October 2020, there was another SAPOL briefing in preparation for the planned arrest of Ms Wilmott the following day. The briefing was conducted by DBS Ward and was to ensure that everyone knew their roles and expected outcomes. Everyone who was to be part of the tactical operation the next day attended the briefing.
As part of her preparation for the interview of OW, BS Kelly was present at the briefing. When asked whether there was a plan to interview OW the following day, BS Kelly responded, “Yes, we can never be sure but we always go prepared if that’s the case”.[51]
Communications between SAPOL and the DCP leading up to the arrest
[51] T1283.
At 7.41am on 28 October 2020, DS Vanderwoude sent an email to Ms Powell and Ms Wood in which she said that she was: [52]
… happy to facilitate any provision of evidence (statements etc) that you will require for any removal process if that is the way you decide to go tomorrow. We will probably just need to decide what statements etc best suit the purpose …
(Emphasis added)
[52] VDP84 and VDP84a.
At 4.51pm, Ms Bowyer responded, advising that the DCP had consulted with the Crown that afternoon in relation to the potential removal of OW. Ms Bowyer advised that at that point in time they were struggling for evidence and requested that SAPOL provide them with further information, including specific examples of Ms Wilmott’s treatment of Jasmine, and any specific examples of the manner in which Ms Wilmott had started treating OW in a similar manner to Jasmine.
DS Vanderwoude replied to that email at 7.40am the following morning. In the response, she provided details of evidence obtained by SAPOL implicating Ms Wilmott in the mistreatment of Jasmine and OW, and her alleged criminal offending.
That information included details of the following:
·Occasions on which Ms Wilmott had demonstrated a lack of care in relation to a failure to provide OW with psychological support when he had demonstrated extreme behaviours at school.
·Assaults by Ms Wilmott on Jasmine.
·A particular assault of Jasmine by Ms Wilmott, which involved her kicking and punching Jasmine and cutting her hair.
·Observations made by a neighbour of OW being forced to assault Jasmine.
·An intake in which concerns were raised about the manner in which Ms Wilmott speaks/yells at OW.
·An intake in which it was reported that OW was sent to school with inadequate food.
Attached to the email were a selection of statements said to demonstrate Ms Wilmott’s mistreatment of Jasmine as observed by friends, family and respite carers.
In the lead up to the arrest, there was also further surveillance of Ms Wilmott. The purpose of this surveillance was to gain intelligence about the movements of members of the household, to assist in making operational decisions about when it was best to safely arrest Ms Wilmott. The plan was to attend at Ms Wilmott’s house at a time when she was likely to be the only person present. This would avoid the need for OW to witness his mother’s arrest.
Unfortunately, matters did not go to plan, as OW was home from school that day because he was sick. Consequently, he was present when the police attended to arrest Ms Wilmott.
The arrest
On 29 October 2020, police first became aware that OW was not at school when DBS McGilchrist and BS Kelly turned up at Blackwood Primary School at about 9.00am for the purpose of interviewing him.[53]
[53] T1230.
Upon receiving that information, at 9.20am, DBS McGilchrist contacted DS Vanderwoude and advised her of the situation. DS Vanderwoude told DBS McGilchrist that they would go ahead with the plan to arrest Ms Wilmott and would ask for her to arrange for someone to come and be with OW. DS Vanderwoude requested that DBS McGilchrist make contact with the DCP and clarify whether they proposed to remove OW.
At 9.30am, DBS McGilchrist contacted Ms Wood and received confirmation that the DCP were intending to remove OW from Ms Willmott’s custody that day. DBS McGilchrist advised Ms Wood that there would need to be a change of location for the prescribed interview because OW was home from school as he was unwell.
Although Ms Wood had no memory of this conversation, she did not dispute that it took place. She reiterated however, that no final decision was to be made about the removal of OW until they arrived at the Wilmott house. Ms Wood said:[54]
I think it would be fair to say that we, at that point in time, would have had an idea about what way we were proceeding, but, again, that final decision can’t be made and wasn’t made until such a time as we were actually present in the home and Gen had undertaken an assessment and then that final decision was made. So even if we’ve done a whole pile of background reading and information and sourced other information, we can’t make a final decision until we are physically there doing the investigation.
[54] T1168-1169.
It was Ms Wood’s evidence that no final assessment could be made of the information received until present at the house. She explained:[55]
I could have still got there and said ‘Actually, no, none of this information is correct and we’re not going to follow through with the removal’, at which point, if I changed - after the assessment was done, if I had changed my mind, we would have informed police of that and the reasons for that.
[55] T1169.
At 9.32am, DBS McGilchrist called DS Vanderwoude back and advised that the DCP were intending to remove OW. There was also some discussion about postponing the prescribed interview, subject to assessing how unwell OW was.
At 10.57am, DBS McGilchrist and BS Kelly attended at Ms Wilmott’s home address, and once DBS McGilchrist confirmed that OW was at the house, she made contact with Ms Wood to advise her of the situation.
At 11.22am, BS Kelly called Sergeant Dayman to discuss whether, if the interview was to occur, she should conduct it at OW’s home address, or in the Victim Management suites. The advice that she received was to adopt whatever course OW was more comfortable with.[56]
[56] T1285.
At 11.34am, Ms Wood and Ms Bowyer arrived at Ms Wilmott’s home address and received a briefing from the police who were in attendance. [57] They then left the premises prior to the police embarking on the prescribed interview.
When was the decision made to carry out a s 41 removal of OW?
[57] Although Ms Wood did not recall this attendance, based on the other evidence, I find that she did attend at Ms Wilmott’s home address at about 11.34am. This finding does not impact on Ms Wood’s creditability as it appeared to be a genuine lapse of memory, no doubt as a product of the passage of time.
As is apparent from this brief chronology of events, there was some conflict between the evidence of the various witnesses about when the DCP made the decision to remove OW from the Wilmott household.
For reasons that will become apparent, when I come to consider Ms Wilmott’s application to exclude OW’s evidence, the circumstances in which this decision was made, in particular by whom and when, are central to Mrs Shaw KC’s argument. It is, therefore, necessary to consider the evidence on this topic in some detail.
There was no suggestion by any witness that it was anyone other than the DCP who was to make the decision about whether OW was to be removed. It was very clear across the evidence of all of the witnesses that, whilst SAPOL played a role in providing information and assistance, that was the extent of their involvement. In particular, it was apparent to me, from the evidence of Ms Wood, that she is experienced in her role and takes the making of decisions, such as these, very seriously. I gained the impression from Ms Wood that even if SAPOL had attempted to transgress into the role of the DCP and influence the decision, they would have been met with fierce resistance. There is, however, no evidence to suggest that SAPOL made any such attempt.
The evidence about when the decision to remove OW was made is not so clear. Read literally, the evidence of some of the SAPOL witnesses is inconsistent with that of Ms Wood.
Before considering that evidence, and the apparent inconsistencies, it is helpful to consider the regime in place for the removal of a child under s 41 of the Children and Young People (Safety) Act 2017 (SA) (‘CYPS Act’) and how that took effect in this case.
Section 41 of the CYPS Act relevantly provides:
41—Removal of child or young person
(1)Subject to this section, if a child protection officer believes on reasonable grounds that—
(a)     a child or young person has suffered, or there is a significant possibility that a child or young person will suffer, serious harm; and
(b)     it is necessary to remove the child or young person from that situation in order to protect them from suffering serious harm or further serious harm; and
(c)     there is no reasonably practicable alternative to removing the child or young person in the circumstances,
the child protection officer may remove the child or young person from any premises, place, vehicle or vessel using such force (including breaking into the premises, place, vehicle or vessel) as is reasonably necessary for the purpose.
…
(4)A child protection officer who is an employee of the Department may only remove a child or young person from the custody of a parent or guardian of the child or young person with the Chief Executive’s prior approval.
(5)Subsections (3) and (4) do not apply if the child protection officer believes on reasonable grounds that the delay involved in seeking prior approval would significantly increase the risk of serious harm, or further serious harm, being caused to the child or young person.
Section 146 provides the Minister or the Chief Executive with the power to delegate any function or power under the CYPS Act to a specified person or body.
Section 147 identifies those who fall into the category of “child protection officers”. It includes “an employee of the Department authorised by the Chief Executive by instrument in writing as a child protection officer” and “police officers”.[58]
[58] Children and Young People (Safety) Act 2017 (SA) s 147(1)(b)-(c).
It follows that s 41 is to be utilised in circumstances in which a child is at imminent risk of suffering serious harm. There are two roles involved in making this assessment, namely, the Chief Executive or the Chief Executive’s delegate who approves the decision, and the child protection officer who makes the decision or forms the intent to remove.
Ms Wood was the delegate who approved the decision of Ms Bowyer, who was the child protection officer.[59] I have received a copy of a delegation made pursuant to s 146 of the CYPS Act which includes supervisors of a child protection/guardianship office,[60] amongst those delegated the power under s 41(4). Ms Wood, therefore, falls within that delegation.
The evidence of Ms Wood
[59] T1142.
[60] VDP107.
As I have said, the effect of Ms Wood’s evidence was that, whilst the plan was in place to remove OW, no final decision was to be made until all available relevant information had been received. Ms Wood went on to further elaborate about what needed to occur before the DCP could make a decision to effect a s 41 removal. She explained that any disclosures made by OW during the prescribed interview would be a relevant consideration. However, the question to be determined on all of the available evidence, was whether there was sufficient information to suggest that OW was at risk of serious harm if he remained in Ms Wilmott’s care.
Ms Wood went on to explain that if she was satisfied that a child has been abused or neglected, or is at significant risk of abuse or neglect, the child may need to be removed from their parents’ care in order to mitigate that risk.[61]
[61] T1163.
In relation to the assessment that was conducted before any such determination is made, Ms Wood further explained that the DCP will consider whether they can manage the risk with the child remaining in the home or whether the risk is significant enough that the child needs to be removed.[62] Ms Wood concluded that, in this particular case, the DCP found no factors that would mitigate the risk and that the only option the DCP had was to invoke a removal under s 41 of the CYPS Act.[63]
[62] T1165.
[63] T1165.
As to the timing of the decision to remove OW, in her evidence in chief, Ms Wood explained that it was only once they were present in the Willmott home on 29 October 2020, that Ms Bowyer provided her with the relevant information and she made her final assessment that OW should be removed.[64]
[64] T1142.
In cross-examination, Ms Wood was asked about whether the decision to remove OW had in fact been made at, or by the time of, the strategy meeting. It was her evidence that, at that time, no decision had to be made, as the DCP needed to undertake their own assessment of whether the grounds for a s 41 removal could be established.[65] Ms Wood explained that it was necessary for the DCP to undertake their own investigation:[66]
… the intake alone is just information that suggests that there is a risk to the child. We still need to conduct our own investigation and be satisfied, as the delegate I need to be satisfied that the child is considered to have been - to have either been abused or neglected or to be at significant risk of abuse or neglect and that that - and that child needed to be removed from their parents’ care in order to mitigate that.
[65] T1157.
[66] T1163.
Consistent with that approach, on 28 October, the DCP sought legal advice from the Crown. At 4.51pm, Ms Bowyer sent DS Vanderwoude an email referring to a “potential removal” of OW, requesting additional information, further reflecting that by that time, no decision had been made.

In cross-examination Ms Wood was asked whether at about 9.30am on 29 October the DCP confirmed to DBS McGilchrist that it was intended to remove OW that day. She responded:[67]
I think it would be fair to say that we, at that point in time, would have had an idea about what way we were proceeding, but, again, that final decision can’t be made and wasn’t made until such a time as we were actually present in the home and Gen had undertaken an assessment and then that final decision was made. So even if we’ve done a whole pile of background reading and information and sourced other information, we can’t make a final decision until we are physically there doing the investigation.
[67] T1168-1169.
When asked whether she disputed that she had told the police that they were still intending to remove OW that day, Ms Wood again attempted to explain the situation:[68]
No, I’m saying that there is a possibility that I had said that that was our intention and that that was the view that we had. However, we still would - I could have still got there and said ‘Actually, no, none of this information is correct and we’re not going to follow through with the removal’, at which point, if I changed - after the assessment was done, if I had changed my mind, we would have informed police of that and the reasons for that.
[68] T1169.
Ms Wood was also asked about whether at 11.05am, she advised DBS McGilchrist that she planned on having members from the DCP attend at the home address and carry out the removal process. She repeated, yet again, that whilst that may have been their intention, it was still necessary to make the assessment and arrive at a final decision once they were present at the house.
The basis of the removal of OW is set out in the affidavit relied upon in the guardianship proceedings in the Youth Court. It relevantly reads:[69]
The department was concerned regarding the care [OW] has been afforded by Ms Wilmott, Ms Wilmott has been arrested and charged with criminal neglect and two counts of aggravated assault in relation to the death of Jasmine. [OW] has witnessed and experienced Ms Wilmott’s manipulative, controlling, neglectful and abusive care towards her children and is at significant risk of physical, emotional and psychological harm in the care of Ms Wilmott. [OW] is showing some indicators of emotional harm, such as recently purposely holding his breath until he passed out and providing blades of sharpness to classmates. [OW’s] ongoing experiences of being cared for by Ms Wilmott place him at risk of continued emotional harm. At the time, [OW] does not have any relationship with [MW]. The department require the proposed order to make assessments of [MW’s] willingness and/or capacity to provide care for [OW].
And there is a significant child protection history relating to Ms Wilmott’s care of children. These notifications, in conjunction with information from SAPOL’s ongoing investigation, display a serious pattern of Ms Wilmott’s abuse and neglect towards children in her care.
[69] T1140-1142.
It was Ms Wood’s evidence that although the affidavit was drafted subsequent to the removal of OW, it accurately reflected the basis of her decision on 29 October 2020.
The evidence of DBS Ward
It was DBS Ward’s evidence that the purpose behind making contact with the DCP was to formulate a safety plan for OW for after Ms Wilmott’s arrest.[70] DBS ward explained that although he had never previously been involved in the removal of a child, he was aware that under s 41 of the CYPS Act, a police officer has the power to remove a child if there is imminent danger to that child. However, he said “These weren’t the circumstances to do that and it wasn’t the case that we were wanting a removal, for example, we just wanted another agency to look after the welfare of [OW] once the arrest had been finished”.[71]
[70] T958.
[71] T959.
In cross-examination, when DBS Ward was pressed on the topic of SAPOL’s involvement in the removal of OW, he remained firm and said “And, again, I’ll reiterate, SAPOL did not advocate for a removal. It was our responsibility to report to the DCP our concerns”.[72] When it was suggested to him that the purpose of the meeting with the DCP on 27 October 2020 was to arrange to obtain a statement from OW in the absence of Ms Wilmott, DBS Ward refuted the suggestion. He said:[73]
I would doubt it, because it wasn’t a motivation, it wasn’t the reason. Our whole purpose of that meeting was the safety concerns, no strategy, nothing to do with how we’re going to get [OW] to talk or anything like that. It was safety, because we had that responsibility.
[72] T1016.
[73] T1017.
DBS Ward was also asked whether the issue about OW’s welfare was really about concerns that he would not “disclose” whilst he remained in the care of Ms Wilmott. DBS Ward denied that this was the case and explained that whilst that may have been discussed as an outcome that could occur, it was not the motivation for having OW removed.[74] When asked directly about whether he had recommended a removal of OW under the CYPS Act on the day of the arrest, DBS Ward replied “I don’t recall doing that, I’m not saying that we didn’t do that but at the end of the day DCP are responsible for that decision”.[75]
[74] T1017.
[75] T1053.
DBS Ward was cross-examined about a passage in a statement that he had prepared shortly before giving evidence,[76] in which he had said “From discussions with [AP’s] daughters, it was obvious he couldn’t be relied upon to be present within the household to ensure the safety of [OW]. Therefore, the investigators advised the DCP of our obligations under the Children and Young People (Safety) Act 2017 and recommended the removal of [OW] on the day of the accused’s arrest”.[77] Whilst DBS Ward accepted that he had used those words, he suggested it was a poor choice of words, that did not accurately reflect the situation. He explained “That is what I have written, in reflection that is probably a bad choice of words because I don’t recall recommending to the DCP that we remove the child”.[78]
The evidence of DS Vanderwoude
[76] 27 March 2025.
[77] Affidavit of Benjamin Philip Ward dated 27 March 2025 at [35].
[78] T1055.
It was DS Vanderwoude’s evidence that prior to her attending Ms Wilmott’s house to effect her arrest, she understood that the DCP were to carry out a removal.[79] In cross-examination, she clarified that it was her understanding that at some point on 29 October 2020 it was likely that OW would be removed.[80]
The evidence of DBS McGilchrist
[79] T1455.
[80] T1492.
DBS McGilchrist was one of the Operation Veritas team members who attended at the strategy meeting with the DCP. She made some “dot point” notes during the course of the meeting. She explained that her notes did not reflect the entirety of the discussion. One of the dot point notes made by DBS McGilchrist was “need to make an assessment as to whether they can remove [OW]”.[81] Written next to that was “DCP”, meaning that comment could be attributed to the DCP.
[81] T1228-1229.
It was the recollection of DBS McGilchrist that during the meeting there was reference to an application to remove OW. She said:[82]
There was consideration for an application to apply for removal. That is also by DCP. Ultimately any application to remove a child under s.41 of the Child and Young Person (Safety) Act, there’s obviously certain strict criteria s to when a child protection officer can remove a child. So obviously that is done by DCP and they have to establish whether it meets a criteria and they make the application decisions in relation to that.
[82] T1229.
DBS McGilchrist was asked what the DCP said about that with reference to her notes. She responded:[83]
I do have a dot point consider application to apply for removal as I didn’t think [OW] would feel safe to disclose while still in the care of Jenni. Again, that’s a dot point, that’s not to say that the entirety of what DCP said.
[83] T1229.
The actual note made by DBS McGilchrist reads:[84]
Consider application to Crown for removal as they don’t think [OW] would feel safe to disclose whilst still in the care of Jenni.
[84] VDD46.
When cross-examined about who she meant by “they”, DBS McGilchrist said that whilst it was five years ago and she could not say with certainty who made the statement, the use of the word “they” would tend to suggest that it was someone from the DCP or the adoption services.[85] That view was reinforced by DBS McGilchrist’s understanding that it was only the DCP who could make an application to the Crown for the removal of OW.[86]
[85] T1250.
[86] T1250.
It was DBS McGilchrist’s evidence that at 9.20am on 29 October 2020, she telephoned DS Vanderwoude and in that conversation DS Vanderwoude asked her to clarify with the DCP “whether they were going to remove [OW]”.[87] As a consequence, at 9.30am, she contacted Ms Wood “and they confirmed they were still intending to remove [OW] from Jenni Wilmott’s custody that day”.[88] At 9.32am, DBS McGilchrist contacted DS Vanderwoude “and advised DCP were still intending to do the removal of [OW]”.[89]
[87] T1231.
[88] T1231.
[89] T1231.
After attending at Ms Wilmott’s home address, at 11.05am, DBS McGilchrist again made contact with Ms Wood to advise her that OW was at home. She said “[o]nce I confirmed that Catherine advised she was going to send members to attend the home address to carry out the removal process in relation to [OW]”.[90]
[90] T1232.
At 2.16pm, at the conclusion of the interview with OW, DBS McGilchrist contacted the DCP. Her note of the conversation reads “agreed to bring [AP] in to speak to him first to explain what is going to occur and to see if he is willing to explain that Jenni has been arrested, explain removal process to [OW] with police and DCP”.[91]
[91] T1267.
In cross-examination, DBS McGilchrist agreed that it was her understanding that the DCP would speak with AP first to explain what was happening.
Findings about the circumstances in which the decision was made to remove OW from Ms Wilmott’s care
I reject any suggestion that the investigators in the Veritas task force attempted to, or did in fact, influence the DCP staff in their decision to remove OW from Ms Wilmott’s care. There is no support in the evidence for that contention. The evidence was consistent across all of the witnesses, that whilst SAPOL had a role in assisting the DCP and providing information to them, that was the extent of their role.
It was the DCP who were required to make the decision about whether to remove OW from the Wilmott household.
In my view, whilst superficially there may appear to be inconsistences about when that decision was made, on a deeper analysis, it is apparent that those differences are illusory.
The strategy meeting on 27 October 2020, came about as the result of a desire on the part of SAPOL and the DCP to look out for the care and wellbeing of OW. I accept the evidence that, as the date of arrest approached, police concerns about the risk posed by Ms Wilmott to OW increased. There is a degree of artificiality in approaching the situation faced by the police on the basis of the suggestion that, historically, Ms Wilmott had treated the boys in her household differently to the girls, and that there was only limited evidence of abusive behaviour by Ms Wilmott towards OW. The police were armed with allegations (supported by witness statements) of serious and prolonged mistreatment of Jasmine by Ms Wilmott. No doubt being arrested and charged would place significant pressure on Ms Wilmott, in circumstances in which it would be obvious that OW was potentially an important witness as to what had taken place in the family home. It is unsurprising that, as a consequence, police concerns about the risk posed to OW were heightened. I would go so far as to say that it would have been negligent for them to not have taken steps to ensure OW’s safety.
I accept the evidence that the strategy meeting was not a means by which the police were attempting to effect a removal of OW to further their investigation. It was about ensuring that those best equipped to make the decision about OW had the most current, relevant information to do so.
By the end of the strategy meeting, the DCP were left considering the most appropriate, available options for OW, given his mother’s imminent arrest.
The fact that they sought legal advice from the Crown, and further information about OW and Jasmine from the police, supports the suggestion that genuine efforts were being made to come to a decision about what was in OW’s best interests.
I accept the evidence of Ms Wood that, whilst plans were being put in place so that the removal of OW could be carried out from some time after the strategy meeting, no final decision was to be made until they arrived at the Wilmott home on 29 October 2020. Such an approach accords with commonsense and the practical reality of the situation that the DCP were confronted with.
The DCP had been provided with information about previous allegations made about Ms Wilmott, and the limited options available for alternative carers within the household. Despite whatever tentative views were arrived at between 27 October and 29 October 2020, no final decision could be made until their arrival at the Wilmott household. The situation was at least potentially dynamic. The police may have changed their position and determined not to arrest Ms Wilmott that day, or there may have been a relative, of whom they had been unaware, who was at the home and was an appropriate alternative carer for OW. Either of these events, or any other number of exigencies, may have resulted in the DCP coming to a different decision about the need to remove OW from the household. For that reason, it was not only sensible, but entirely appropriate, to make a final determination once present with OW in the house.
I also find that the decision made by the DCP was motivated solely by their belief of what was in OW’s best interest. To make it plain, I reject any suggestion that the DCP were influenced in their decision making process by a desire to assist the police in obtaining evidence against Ms Wilmott. That conclusion is supported by Ms Wood’s evidence, that right up until the time that she came to court to give evidence, she was unaware of whether or not the police had in fact interviewed OW. Had assisting the police been her motivation, that was a matter she would have been acutely aware of.
The first interview with OW
The first interview with OW commenced at 12.13pm on 29 October 2020. As mentioned, each of the police officers in attendance at Ms Wilmott’s home that day had pre‑allocated roles. DBS Ward was responsible for Ms Wilmott’s arrest and conducting an interview with her. He therefore played no role in OW’s interview, as he was occupied in dealing with Ms Wilmott.
DBS McGilchrist and BS Kelly were responsible for dealing with OW. BS Kelly gave evidence about her state of mind when she arrived at the Wilmott home to interview OW. She explained:[92]
I was going there to meet him because I had been allocated the task to conduct a vulnerable witness interview if he chose, so I went there prepared if he chose to conduct the interview. If he didn’t choose to conduct an interview, victim management is still or witness management is still required in investigations like this and so I - that would have remained with me even if he didn’t proceed with an interview.
[92] T1320.
When they first arrived at the house, there were a number of other police in attendance and OW was in the lounge room. At 11.45am, BS Kelly had an initial conversation with OW in the lounge room in the presence of DBS McGilchrist. BS Kelly introduced herself to OW, and commenced attempting to build rapport with him to break down any uncomfortable barriers.[93] She described her role at that point in the following terms:[94]
My job is, straightaway when I go to a house, such as an example like this investigation, is to - my job is to - it’s called victim management but it can be witness, like a subject, whoever the person I’m dealing with, is to be that point of contact for them, to communicate with them, to build rapport with them, to - he was just a child and so I was there to try and make him feel as comfortable as possible because there was a lot going on for a kid in the house and my job is to try and make him feel as comfortable as possible.
[93] T1233.
[94] T1286.
This initial conversation was not recorded on video. Both DBS McGilchrist and BS Kelly were asked about this. DBS McGilchrist said it was not normal practice to record conversations of this nature. She explained:[95]
… If you were to put a video straight on in front of a child, that’s going to break down any trust, it’s more about introducing yourself, what your role is, you’re not discussing any of the criminal investigation itself, just whether they’re willing to partake in an interview and giving the options so there was no requirement to put a video on at that stage.
[95] T1234.
BS Kelly explained that, in her view, she was not required to video record this conversation, as it was about rapport building and making OW feel comfortable. She went on to elaborate:[96]
I - my - a big part of my job is victim/subject/witness welfare and if I’m trying to look after a child in really stressful circumstances, where I’m just having general conversation, rapport building, trying to make him feel comfortable, having a big - having a camera in his face is doing the exact opposite.
[96] T1287.
BS Kelly did, however, make some handwritten notes of the conversation.[97] She made these notes when she returned to base after the interview.[98] Relevantly, these notes record the following:[99]
Came into front loungeroom where piano is, introduced myself, he showed me the piano, inside the piano, played some tunes on piano.
Explained I’m police + explained Elaine’s police as well.
[OW] said “Is this what happens when someone dies” We are here in relation to your sister.
I went on the explain to [OW] that I wanted to ask him some Q’s about his family. W/S ok but didn’t want to talk about Jasmine’s death – didn’t want to go over that detail. I agreed + said I won’t have him need to talk then finding Jasmine.
I explained he can ask Q’s anytime + I’ll be transparent if 1) allowed to answer 2) don’t know answer 3) I will answer.
[OW] happy with this.
Option given for [OW] to have P.C in I/V. He asked for his mum – advised if can’t be mum – suggested Brenton (chaplain at school) – [OW] declined to have anyone else. Was happy to proceed w/o any support person.
I gave [OW] option of doing I/V at VMT suites – lunch on way, comfy space – OR – we can do I/V @ home – he preferred home.
[97] VDP98.
[98] T1311.
[99] VDP98.
In recounting the detail of that conversation, BS Kelly emphasised that OW made it very clear that he did not want to go over Jasmine’s death in any detail and she agreed that she would not require him to do so.
BS Kelly explained to OW that he could have a person present during the interview “to support him, be of emotional help, to check in with him”.[100] OW asked for his mother to be present, however, it was explained to him that she would not be suitable. As an alternative, it was suggested that “Brenton”, the school chaplain, could be present. OW said that he did not want Brenton and was happy to proceed without a support person.[101]
[100] T1290.
[101] T1291.
It was BS Kelly’s evidence that OW agreed to participate in the interview and said that if he had not agreed, she would not have proceeded. She explained that, in her role, the focus was on OW. She said “I am not part of the investigative team, so my whole role is victim focussed, witness focussed and protecting their welfare, basically”.[102]
[102] T1292.
BS Kelly gave evidence that the initial conversations with OW were important because she had been trained that there was no utility in attempting to force someone to participate in an interview when they did not want to. She explained:[103]
That there was a big focus on there is no point in pushing someone to be part of a prescribed interview because it doesn’t give the best reliable account of what’s happened and so we wouldn’t dream of trying to push someone into an interview if they’re not ready, because it doesn’t achieve anything.
[103] T1293.

Whilst acknowledging that a permanent stay of proceedings in a criminal trial is an extraordinary step and “should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial”,[185] the appeal was allowed and a permanent stay was granted.
[185] Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 at [106].
In explaining the basis for arriving at that position, the plurality observed that there is:[186]
… a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, therefore, a recognition that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute.
(Emphasis in original)
[186] Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 at [106], Emphasis in original.
Although in dissent on the outcome of the appeal, Gageler J made some apposite observations on the purpose of the power of a Court to stay proceedings:[187]
As I have emphasised from the outset, the power of a superior court to stay its own proceedings as an abuse of process is a power to protect the integrity of its own processes. It is not a power to discipline or to punish those who might bring those proceedings or those who might stand behind them. Its focus is on prevention of the court’s procedures being used in a manner that is inconsistent with the due administration of justice by the court. In a case where use of the court’s procedures would be substantially unfair, the inconsistency lies in the administration of justice by the court being converted into an instrument of that substantial unfairness. In a case where use of the court’s procedures would bring the administration of justice into disrepute, the inconsistency lies correspondingly in the tendency of the court, in permitting that use of its procedures to occur, to erode public confidence in the court’s administration of justice in that and other cases.
[187] Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 at [154].
The application of Strickland to the facts of the case
It was Mrs Shaw KC’s submission that the transgressions of the police in this case, in conjunction with the conduct of the DCP, are such that to permit the evidence of OW to be led, would bring the system of justice into disrepute. It was however conceded that unlike in Strickland, there is an alternative remedy available to the Court, falling short of staying the prosecution case in its entirety. That is to deprive the police and prosecution of the “poisoned fruit” and exclude the evidence of OW.
It was Mrs Shaw KC’s submission that the conduct of the police in the investigation of Ms Wilmott was similar to that engaged in by the Federal Police and the ACC in Strickland. She submitted that the police had deliberately conspired with the DCP, for the purpose of effecting the removal of OW from his mother to ensure that the maternal bond was broken, resulting in her having no influence over OW.
Mrs Shaw KC set out a chronology of events in support of that submission. She emphasised that the police had the power to remove OW pursuant to s 41, and the fact that they did not do so prior to the involvement of the DCP highlights that they believed there were insufficient legitimate concerns about OW’s safety to warrant his removal from Ms Wilmott.
It was contended that the arrest and removal were deliberately scheduled to maximise the potential of obtaining an incriminating account from OW, and that the only real reason for OW’s removal was to destroy OW’s relationship with his mother, to facilitate the police investigation.
It was Mrs Shaw KC’s submission that there was no lawful basis for the DCP to have removed OW from Ms Wilmott’s care and the information that they purported to rely on was incorrect or lacking in substance. In addition, the information, at its highest, was capable of establishing a risk of harm, not serious harm.
In support of the application, Mrs Shaw KC relied upon the purported breaches of the Summary Offences Act and of the Evidence Act that I have already dealt with, together with what she referred to as the Strickland complaints.
Mrs Shaw KC summarised her argument in the following terms:[188]
That is a matter that does fall within the principles of Strickland that the police should not be encouraged or further encouraged to liaise with DCP, or any other entity, knowing that they are performing a role in breach of their section and, indeed, the police section, because they were all child protection officers, and be able to come along and say ‘That was their decision, not ours’, they were not at arm’s length, they worked hand in hand. SAPOL called police to come down when the interview was finished, SAPOL checked with DCP ‘Are you going to remove today?’, and the answer was ‘Yes’.
[188] T1800.
Conclusion re: Interlocutory application to exclude the evidence of OW
In order for this application to succeed it is necessary for me to make a finding that SAPOL engaged in unlawful or improper conduct in collaborating with the DCP. Further, that it was as a consequence of this collusion that OW was unlawfully removed from Ms Wilmott’s care.
For reasons that I have already provided, I do not come to that view. To the contrary, I find that, at all times, SAPOL and the DCP behaved conscientiously, within the parameters of their respective roles and with a focus on the best interests and welfare of OW.
Although those findings necessarily mean that this application must be dismissed, it is appropriate to say something further about some of the additional particulars relied upon by Mrs Shaw KC.
That the removal of OW from the care of the accused pursuant to s 41 of the Children and Young People (Safety) Act 2017 (SA) was unlawful and for an improper purpose
One of the complaints made by Mrs Shaw KC related to the adequacy of the information relied upon by the DCP to carry out the s 41 removal. In particular, that the DCP mistakenly believed that the allegations in relation to SM had been substantiated and that the arrest of Ms Wilmott was to be for the offence of manslaughter, when it was in fact, at that stage, for the less serious offence of criminal neglect.
It was Mrs Shaw KC’s submission that, considered objectively, the information in the possession of the DCP was insufficient to form the basis for a s 41 removal of OW.
Assuming for the argument that Mrs Shaw KC is correct about that contention, absent collusion with or influence from SAPOL, that would not be a basis upon which to exclude the evidence. At worst, the DCP in making a judgment call, got it wrong. It should be noted however, that if they did so, it was in the context of seeking legal advice from the Crown and in circumstances in which, when the matter came before the Youth Court, the Judge confirmed the decision based on the same information.
That the ongoing application of the guardianship order and the exclusion of a relationship between OW and his mother, and subsequently, a denial of a relationship between AW and his mother was unlawful and/or an abuse of process of the Court
There is no evidence to support the suggestion that SAPOL played any role in the ongoing arrangements for the guardianship of OW. There is also very limited evidence about the role that the DCP played and the basis upon which they made various decisions about the care arrangements for OW.
It is also important to note that the ultimate decisions about guardianship were made by the Court in proceedings in which all parties, including OW, were legally represented.
The conduct of SAPOL and the psychologist undermined and circumvented the application of section 21 of the Evidence Act 1929 (SA) in relation to OW’s rights under that section, nor was OW provided with independent advice in that respect
Section 21 of the Evidence Act relevantly provides:
21—Competence and compellability of witnesses
(1)A close relative of a person charged with an offence is competent and compellable to give evidence for the defence and, subject to this section, is competent and compellable to give evidence for the prosecution.
(2)If a person is charged with an offence and a close relative of the accused is required by law (whether by subpoena or other process) to give evidence against the accused in any proceedings related to the charge (including proceedings for the grant, variation or revocation of bail, or an appeal at which fresh evidence is to be taken), the prospective witness may apply to the court for an exemption from the requirement to give evidence against the accused in the proceedings.
(3)If, on an application under subsection (2), the court considers that—
(a)     if the prospective witness were to give evidence, or evidence of a particular kind, against the accused, there would be a substantial risk of—
(i)serious harm to the relationship between the prospective witness and the accused; or
(ii)serious harm of a material, emotional or psychological nature to the prospective witness; and
(b)     having regard to the nature and gravity of the alleged offence and the importance to the proceedings of the evidence that the prospective witness is in a position to give, there is insufficient justification for exposing the prospective witness to that risk,
the court may exempt the prospective witness (wholly or in part) from the requirement to give evidence against the accused in the proceedings before the court.
(4)A court may, on its own initiative, grant an exemption under subsection (3) where no application has been made under subsection (2) if—
(a)     the prospective witness who is required by law to give evidence against the accused is a young child or is cognitively impaired; and
(b)     the court is of the opinion that such an exemption should be granted.
…
It is plain that the section relates to the right of a close relative of an accused to be exempted from giving evidence. The point at which that right may be exercised is at trial.
The section has no application to the provision of witness statements or the participation of witnesses in interviews. That logically must be so, because otherwise, how could a Judge undertake the necessary balancing exercise, as required under s 21, absent knowledge of the details of the evidence that a witness may give.
It was Mrs Shaw KC’s argument that because the account provided by OW was in the form of a prescribed interview, that alters the situation, in that the interview may be presented as the evidence of the witness.
That submission however, overlooks two relevant considerations: one that is applicable to all cases in which there is a prescribed interview, and the other that arises on the facts of this case.
For a prescribed interview to be admissible under s 13BA of the Evidence Act, a witness must be available, if required, for further examination. It follows that in the event that a family member wishes to avail themselves of their s 21 rights at trial, that option remains open. In the event that the Judge provides them with an exemption from giving evidence, they are no longer “available” and the prescribed interview cannot be relied upon.
In addition to this, during the course of the evidence I heard on numerous occasions that the police had told OW that the decision as to whether he was to give evidence against Ms Wilmott was to remain his. I accept that OW was given this advice and that advice was genuine. I have also been told by Ms Litster that checks have been made with OW and his position remains that he wishes to give evidence. Ms Litster has also told the Court that OW will be given an opportunity to obtain independent legal advice before he gives evidence.
It follows that the conduct of the police and prosecution have in no way undermined OW’s right to request an exemption from giving evidence. I also accept the Director’s assurance that OW will have an opportunity to obtain legal advice prior to trial and should OW have a change of heart, and no longer wish to give evidence, that decision will be respected.
Conclusion
I refuse the application to exclude the evidence of OW.
Annexure 1: Leading questions

Page /Line

The question and answer

BS KELLY’s evidence (if any) about where that information (‘I heard’) came from

Was the information in the first or second interviews

Was the information earlier in the third interview

Observations

1

Page 7, line 27

And when she went back to her room, um we’ve talked a lot about Jasmine being alarmed in her room-

Yeah.

Cf second interview

Topic of alarm introduced

Line 159:

Q. I heard there was an alarm in jasmines room

There is no dispute about there being an alarm to Jasmine’s bedroom door.

2

Page 8, line 6

Q. Okay. And who told you to lock her in the bedroom.

A. Mum.

Her evidence (T1391-1392) was that the question was aimed to cover off ‘who, what, where, when, why’ and that the way the question was phrased gave him the opportunity to equally say ‘it was just me’.

No.

Not directly on point, but OW had already introduced the fact that the accused would lock Jasmine in her bedroom.

Page 3, Lines 21-25:

Q. Yep yep. Okay. So tell me what you’d like to share about the way mum treated Jasmine.

A. Um, it wasn’t that good.

Q. Mmhm.

A. Used to, like, hit her a lot and-

Q. Yeah.

A. Er, would lock her in her room.

OW had already volunteered to a very open question that Ms Wilmott would lock Jasmine in her bedroom. Considering OW’s age at the time that Jasmine was being locked in her bedroom, it is not unreasonable to suppose that OW was undertaking this role at someone’s request. The question did not however lock OW into an answer in that it was open for him to respond that no-one had told him to lock the door.

3

Page 17, line 22

Q. No, that’s okay. So I heard sometimes Jasmine pleaded not to be hit. Is, is that true.

A. Yeah.

Discussed at T1378. Disagrees with it being a leading question; explains that ‘I heard’ was used to elicit more information.

No.

No.

This appears to be one of the occasions on which BS Kelly used the “I heard” technique to take OW directly to a topic that had come up in other witness affidavits. By this time, OW had already spoken of Ms Wilmott hitting Jasmine. Of note, the question is immediately followed by an open question of “Could you talk me through a time which that happened”.

4

Page 21, line 32

Q. Why do you think Jasmine hoarded food.

A. So she wouldn’t get hungry.

N/A

1^stinterview (29/10/2020):

•   OW says that Jasmine would sometimes take food from the fridge. When asked why: “maybe Mum said no to her so and she was just hungry and she really wanted it or she was kind of craving it” (Line 859).

•   Jenni told OW that Jasmine would steal food (Page 51, Lines 1186-1189).

2^ndinterview (3/3/2021):

•   Kelly asks “are you aware of any issues in the house around Jasmine and food” –

•   Response is that she would hoard food (Line 490).

At Page 4, Line 29 of the third interview, OW described Jasmine hoarding food in her bedroom.

There is no dispute that Jasmine hoarded food.

5

Page 22, line 15

Let’s start with meal times, ‘cos I, you said she sometimes didn’t eat meals with you, yeah.

Cf earlier interview no 2

Contrary to earlier answer

Line 37: Mhmm Well like I heard Jasmine didn’t always eat with the family at dinner time

Line 38: Yeah sometimes she um, yeah I don’t really remember too well. I do remember that we most the time ate dinner together. Don’t remember anything else really

In the second interview, after the passage already identified at line 38, OW went on to elaborate about the circumstances in which Jasmine would not eat dinner with the family. He said that Jasmine “might be reading a book, she might be cleaning her room up umm she might just like want some alone time” (Line 44). OW subsequently returned to the topic “Um Jasmine normally you know she she’d um you know maybe she would eat in her room if she wanted some alone time or like maybe if um Mum was doing like cleaning the dishes or cleaning the table she might eat in her room” (Line 62).

6

Page 23, line 21-23

Yeah, and I, I understand that. Yeah, I understand that. Like I said, I’m, I’m asking lots of questions and if you don’t know the answer, that’s, that’s okay. What would Jasmine say about food.

Er, I don’t know. She didn’t say anything about, like, wanting more, but I don’t know.

In my view, this is not a leading question.

7

Page 23, line 25

Q. Yeah. Yeah. We um – Now, I heard that you told Miranda about how you would have to punish Jasmine sometimes.

A. Yeah.

T1365-66: Kelly is questioned by HH about what information (if any) was provided by Willet:

Q. So you knew in a general sense he’d disclosed to her –

A. Yes.

Q. - but not the details of what the disclosure was.

A. Yes, yeah.

No.

No.

This is a leading question which refers specifically to the information having come from Ms Willet. The “I heard” form of questioning could have occurred without reference to Ms Willet. That question is immediately followed by the very open question of “Tell me, tell me about that” and a series of open, non-leading questions in response to which OW recounts in some detail the manner in which he was required to punish Jasmine.

8

Page 31, line 6

Q. So I just wanna let you know that ok. Now that you’re here to talk and tell me a few more things about what happened, I, I heard you told Miranda a bit more detail of um what happened that day. Tell, tell me what you talked to Miranda about.

A. Um, so it was about, like, er, knocking on the door.

N/A.

No.

This question is referrable to the previous question which was “Yeah. Of course. Yeah. Yep. Um so we did, we have touched on the day that Jasmine died, all right, yeah, and you, you always do really well, okay. I’m not saying it’s easy, but you’ve done really well talking me through some of those things -”. The question that is the subject of the complaint is not a leading question. The issue that arises in relation to this question is the reference to Ms Willet when she was present during the interview as the prescribed companion.

9

Page 44, line 3

Q. We, you sort of touched on [SM] just very briefly in previous interviews. As you know, [SM] did come forward about-

A: Yeah.

T1386-7: Kelly does not recall whether OW already knew that SM had made allegations.

T1388: Kelly was aware of the allegations (from SM) before the interview.

1^st interview: Line 1136. 2^nd interview only mentioned insofar as she used to live with them; OW thought she was “mean” and they didn’t really get along.

OW introduces the subject of SM very briefly on Page 3, Lines 21-24:

Q. Okay. So I, I’ll just start with-, yeah, tell, tell me what you’d like to share with me.

A. Um, that, the way we treated Jasmine and, like, how mum treated Jasmine.

Q. Yeah.

A. And how we treated, like, [SM] as well.

In order to properly assess this question it is necessary to consider it in the context of the question that follows. After being interrupted by OW, BS Kelly continued “You know, some things, and just wondering if you could give us a, an outline of some of the things of what happened when [SM] was living with you”. OW went on to recount details of what would happen when Ms Wilmott would collect SM from OSCH.

Although the relevant question is leading, in that it introduces the notion that OW knows that SM has “come forward”, it then develops into a broad, open-ended question that provided OW an opportunity to provide an account of anything that he recalled about when SM lived with the Wilmott family. Of note, BS Kelly did not recall whether OW already knew that SM had made allegations, however she was aware of SM’s allegations before the third interview.

10

Page 45, line 15

Q. Yeah. Okay. So I heard, you know, things did happen, your mum, you know, did some things to [SM] and, and, between Jasmine and [SM], could you tell me a little bit about that.

A. Um, I don’t really remember much about [SM] and what mum did to [SM].

T1390.

Kelly says the phrase “some things” is broad enough to not be leading.

No.

See directly above (Page 3, Lines 21-24), although not directly on the subject matter introduced by Kelly.

At the outset of the third interview, in response to a question of “Okay. So I, I’ll just start with, yeah, tell, tell me what you’d like to share with me”, OW introduced the topic of Ms Wilmott treating SM like she treated Jasmine. In that context, this question is not leading but is referring back to the earlier answer given.

11

Page 46,
line 1-27

Yeah. Yeah. So I, I’m sort of, ‘cos I wasn’t there for that, I’m trying to understand, sort of, the tone of your mum’s voice, like, what, so you heard your mum tell [SM] to take a knife into Jasmine’s room.

Yeah, but she told me that it was kind of off her own accord.

But you knew otherwise.

Not what OW told Kelly:

Page 45, Lines 22-29:

A. Er, yeah, um, I do remember, I think, mum told [SM] to bring a knife down into Jasmine’s room before.

A. And then, er, we, like, we, mum talked to me about it before, she kind of said, oh yeah, [SM] brought a knife down into Jasmine’s room and I just kind of thought to myself, you told her to-

It would seem that in this exchange, BS Kelly had not picked up on some of the detail in an answer provided by OW at Page 45 of the transcript.

In response to a very open question about what OW had seen Ms Wilmott do to SM, OW responded “… I do remember, I think, mum told [SM] to bring a knife down into Jasmine’s room before”.

OW went on to further clarify “… mum talked to me about it before, she kind of said, oh yeah, [SM] brought a knife down into Jasmine’s room and I just kind of thought to myself, you told her to”.

Although in the first answer it appears that OW is recounting something he saw or had heard, it becomes apparent by the end of the second answer that he made an assumption that Ms Wilmott had told SM to bring the knife into Jasmine’s room.

That answer is followed immediately by the impugned question in which it appears that BS Kelly has acted on the mistaken belief that OW actually heard Ms Wilmott tell SM to take the knife to Jasmine’s bedroom. That mistaken belief then infects the remainder of the questions on that topic in that it becomes unclear as to whether OW is relying on memory or supposition

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Page 47, line 1

Q. So your mum kept, sort of was intimating that [SM] was fat and piggy farm, or something.

A. Yeah. Yeah. Er, yeah, I don’t really remember. I think she had, like, the same amount of food as us.

T1393: Kelly was referring to information given by OW earlier in the (3rd) interview when OW says that Jenni would say “we’ve gotta get there before, like, feeding time at the funny farm because they fatten her up” (Page 44, Line 11).

No.

See Kelly’s answer.

In this answer, BS Kelly was attempting to pick up on a topic that had been raised by OW earlier in the third interview. Whilst she has not repeated the answer previously given by OW in a manner that is word perfect, she has captured the gist of what OW had said previously. In my view this may be a clumsy question, it is not a leading question. It also does not impact on the response provided by OW in that he replies in a non-committal fashion.

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Page 47, line 16

Q. Yeah. Yeah. Um so I heard that [SM] and Jasmine sometimes hurt each other.

A. Yeah.

T1390.

A. Yes, so this question is being more specific and in our training – this is towards the back end of our interview and in our training we are advised that in order to elicit information and cover off on elements of offences, we can put more specifically things to the witness and I’ve made a decision, on the back end as it’s closer, because I’ve started broad, broad, broad, I’ve done depth, specific, broad, broad, depth, specific and so I made a choice to put that in there to elicit and give him an opportunity to relay what he wanted to in relation to that”.

No.

No.

This is a leading question. That topic had not arisen prior to this when asked about this question, BS Kelly gave the following response: (T1390)

A. Yes, so this question is being more specific and in our training - this is towards the back end of the interview and in our training we are advised that in order to elicit information and cover off on elements of offences, we can put more specifically things to the witness and I’ve made a decision, on the back end as it’s closer, because I’ve started broad, broad, broad, I’ve gone depth, specific, broad, broad, depth, specific and so I made a choice to put that in there to elicit and give him an opportunity to relay what he wanted to in relation to that.

It would appear from this answer that in order to direct OW’s attention to a topic that had arisen in the affidavits of other witnesses, and to ensure that OW had the opportunity to comment, BS Kelly made a considered decision to ask OW a direct question leading him into the topic. It is important that she immediately followed that question with a completely open question of “Tell me about that”.

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Page 47-49, line 24-11

Did anyone tell [SM] what to do to Jasmine.

I don’t know.

My mum might just egged her on, I guess.

Yeah. Yeah. So your mum egged [SM] along.

Yeah. Okay. And what kind of things would she egg [SM] on

Um, maybe, I think she pushed her down the stairs once, [SM] to Jasmine

…

I think my mum was kind of, like, yeah, you should do that, and [SM] just kind of like did it, I guess.

But I don’t remember exactly. This was at Gleneagles.

And how was Jasmine when she got pushed down the stairs.

Um, I’m not sure. I think she had, she had a blood nose, or something

And did you see that happen

Er, no. No.

I guess, and also, I don’t know how, but I just remember it, I guess.

I don’t know where from. Just, I do.

This question follows an answer from OW, that he remembers SM punching Jasmine once.

It is arguable as to whether this is a leading question. Whilst it introduces the suggestion that someone may have asked SM to punch Jasmine, it does not presuppose the answer. It does however lead to an exchange that continues for about a page and a half, during which OW appears to speculate about Ms Wilmott “egging [SM] on”.

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Page 49, line 27

So [SM], you know, has told, you know, people outside of the home about things that happened anything else that you can share with us

Whilst the question suggests that SM had provided the police with information, it does not disclose what that information was.

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Page 51-52, line 21-8

And what about, how [MW] treated Jasmine. Do you have any memory around that

Yeah. Okay. Okay. And I hear you’re seeing him soon.

Tomorrow, actually.

Oh I’m excited, nervous as well.

It is not clear to me why this question has been included in the table, as it is clearly not a leading question.

17

Page 55,
line 19

Yeah. Thanks for sharing that, [OW]. Is there, sort of, anything else you wanna share around that.

It is not clear to me why this question has been included in the table, as it is clearly not a leading question.