R v Wilmott (No 6)

Case [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…

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AGLC
R v Wilmott (No 6) [2025] SASC 168
Case
[2025] SASC 168
Decision Date

CaseChat Overview and Summary

In the case of R v Wilmott (No 6), the parties involved were Ms Wilmott, the accused, and the prosecution. The dispute centred around the admissibility of evidence obtained through allegedly improper means and the application of statutory provisions relating to evidence provided by children. The case was heard in the Supreme Court of Australia. The primary legal issues were whether the evidence obtained by the police was improperly obtained and thus inadmissible, and whether the statutory provisions concerning the admissibility of children’s evidence were applicable in this context.

The court was required to determine if the evidence obtained from the child, OW, should be excluded due to the police's alleged misconduct. It was argued that the police conspired with the Director of Public Prosecutions (DPP) to remove OW from his mother’s care, which was deemed improper. The court had to consider whether this conduct would bring the administration of justice into disrepute, thereby warranting the exclusion of the evidence. Furthermore, the court had to examine whether the statutory provisions relating to children’s evidence were applicable and if they supported the exclusion of OW’s testimony.

In its reasoning, the court examined the evidence presented during the voir dire hearing and found that the police conduct did not undermine OW’s right to request an exemption from giving evidence. The court also accepted the DPP's assurance that OW would have access to legal advice before the trial and that his decision to testify would be respected. The court concluded that the conduct of the police and prosecution did not warrant the exclusion of OW's evidence, thus refusing the application to exclude the evidence.

The final orders of the court were to refuse the application to exclude the evidence of OW and to proceed with the case as scheduled.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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.