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[2025] VSC 105
General information, not legal advice.
Supreme Court of Victoria
2025-03-14
Beale J
Original judgment source is linked above.
[2025] VSC 105 (First Revision 20 March 2025)
EVIDENCE - Admissibility - Alleged incriminating conduct - Whether evidence relevant - Whether probative value outweighed by danger of unfair prejudice to the accused - Whether evidence capable of being viewed as incriminating conduct - R v Lynn [2024] VSCA 62 - Evidence Act 2008 (Vic), ss 55, 56, 137 - Jury Directions Act 2015 (Vic), ss 18, , , .
18 Definitions
In this Division -
conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;
incriminating conduct means conduct that amounts to an implied admission by the accused -
(a) of having committed an offence charged or an element of an offence charged; or
(b) which negates a defence to an offence charged;
19 Prosecution notice of evidence to be relied on as evidence of incriminating conduct
(1) The prosecution must give notice of evidence of conduct that it proposes to rely on as evidence of incriminating conduct by serving on the accused and filing in court at least 28 days before the day on which the trial of the accused is listed to commence -
(a) a notice of intention to rely on evidence of incriminating conduct, in the form required by rules of court, if any; and
(b) a copy of the evidence on which the prosecution intends to rely.
(2) A notice under subsection (1) must be served in accordance with Part 8.3 of Chapter 8 of the Criminal Procedure Act 2009.
20 Evidence of incriminating conduct
(1) The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless -
(a) the prosecution has given notice in accordance with section 19; and
(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
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(2) Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.
21 Mandatory direction on use of evidence of incriminating conduct
(1) If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that -
(a) the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that -
(i) the conduct occurred; and
(ii) the only reasonable explanation of the conduct is that the accused held that belief; and
(b) even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
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114. ...the judge must determine whether the evidence is reasonably capable of being viewed by the jury as evidence of an implied admission by the accused of having committed an offence charged, an element of an offence charged or negating a defence to an offence charged. That determination must be based on the whole of the evidence. It involves no determination of whether the jury would so view the evidence, only whether the jury could do so.
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116. The combination of these provisions indicates that the JDA contemplates that post- offence conduct evidence may be presented to the jury as evidence of incriminating conduct of the offence charged that ultimately may not be able to be treated as such by the jury because there are other reasonable explanations for that conduct. In other words, evidence of conduct explicable by more than one reasonable argument will, usually, pass through the gateway in s 20(1)(b).
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121. Thus the s 20(1)(b) question is not whether the only reasonable explanation for the conduct is that the accused believed he or she had committed the offence charged, but, rather, is another explanation one which the jury could accept or reject as reasonably possible. If so, the evidence must pass through the gateway. It is then for the jury to determine whether, on the evidence as a whole and bringing its collective life experience, wisdom and common sense, it accepts or rejects the reasonable possibility of the non-incriminating or alternative explanation.
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126. Hence s 20(1)(b) means that the trial judge must make a determination, based on the whole of the evidence, that the conduct evidence was such that the jury could rationally conclude that the only reasonable explanation for it was that the accused held the belief that he or she committed the offence charged. That the jury might not so conclude, because the conduct evidence might be reasonably explicable of a belief that the accused had committed a different offence (or for any other reason) is, generally, a matter for them.
(a) ON 29 JULY 2023, THE ACCUSED DISPOSED OF UNKNOWN ITEM(S) AT LOCAL TIP
(a) That on 29 July 2023, at 3:29pm (less than an hour after the lunch concluded), the accused attended the Koonwarra Transfer Station and Landfill and disposed of unknown item/s and a small amount of cardboard, despite her home 'wheelie' bins being relatively empty.
299. In approximately March, April and May 2023, the accused started posting messages in the Keli Lane group chat about dehydrating mushrooms. She shared that she had purchased a food dehydrator and posted a few messages and photos about it in the chat, including a photograph of the dehydrator sitting on her kitchen bench. The accused explained that she had been dehydrating mushrooms, blitzing them into powder and hiding powdered mushrooms in everything. This included putting powdered mushrooms into chocolate brownies without her children knowing. She also shared with the group that the dehydrator reduces mushroom mass by 90 per cent.
300. The accused had in fact purchased a Sunbeam Food Lab Electronic Dehydrator, model DT6000, from Hartley Wells Betta Home Living in Leongatha at 12.17pm on 28 April 2023...
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322. On 29 July 2023 at 3.29pm, less than an hour after the lunch concluded, the accused drove her red 4WD bearing registration 1XZ4OZ477 to the Koonwarra Transfer Station and Landfill. The accused deposited an unknown item/items and a small amount of cardboard at 3.30pm, which the records indicate fell within the categories '120 L bin' and '.5 m pap/card'. At 3.51pm, the accused made a payment of $9.50 to 'Damsa Environmental', the waste management company operating the Koonwarra Transfer Station. The accused's mobile service data suggests she departed the Leongatha area between 3.23pm to 3.45pm, consistent with heading southwest. (See Notice of Incriminating Conduct).
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326. On Wednesday 2 August 2023, ...she drove her red 4WD bearing registration 1XZ4OZ to the Koonwarra Transfer Station and Landfill for a second time, at 11.34pm. The accused dropped off a large black box at the e-waste bin. She made a payment of $13.50 to the Koonwarra Transfer Station at 11.29am on this date. The Koonwarra Transfer Station registration records indicate that vehicle 1XZ4OZ deposited items at 11.34am, under the categories 'bag ( >
...328. On 4 August 2023, police made contact with the Koonwarra Transfer Station. Employee Jean Meunier was sent to check the e-waste bin. The only item inside the bin which matched the description of the large black box which had been deposited two days earlier was a black Sunbeam dehydrator with six trays inside, which police subsequently photographed and collected. The dehydrator was examined by forensic officer Ben Goodwin. Mr Goodwin collected various samples of possible vegetative matter/debris from inside the dehydrator, which were placed into a sealed bag, and then conveyed to AgriBio for forensic examination. (See Notice of Incriminating Conduct).
(b) BETWEEN 30 JULY 2023 AND 7 AUGUST 2023, THE ACCUSED FEIGNED ILLNESS AND LIED ABOUT BEING UNWELL
(b) That between 30 July 2023 and 7 August 2023, the accused feigned illness and lied to multiple persons by falsely representing that she was unwell as a result of the lunch and/or experiencing symptoms of nausea and severe diarrhea, as follows:
○ [REDACTED];
○ [REDACTED];
○ Simon Patterson;
○ Dr Chris Webster;
○ Kylie Ashton;
○ Dr Veronica Foote;
○ Mairim Cespon;
○ Cindy Munro;[5]
○ Darcy Cummins;
○ Eleyne Spencer;
○ Dr Varuna Ruggoo;
○ Tanya Patterson;
○ SallyAnn Atkinson;
○ Katrina Cripps;
○ Professor Rhonda Stuart;
○ Dr Jon Low;[6]
○ Dr Laura Muldoon;
○ Naomi Schroder;
○ Jenny Hay.
112. [On 29 July 2023], [t]he accused made no mention of feeling unwell to [REDACTED] during the afternoon or evening.
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159. On the morning of Sunday 30 July 2023, the day after the lunch, [REDACTED] came downstairs and found the accused drinking coffee at the dining table. The accused said she was sick with diarrhoea, and that they may not be able to go to church that morning. This was the first that [REDACTED] had heard that the accused was unwell. The accused also told [REDACTED] she had diarrhoea and her stomach was sore. [REDACTED] remembers seeing the accused going to the toilet multiple times. (See Notice of Incriminating Conduct)
160. [REDACTED] had a flying lesson scheduled at 2.00pm at the Peninsula Aeroclub. His lessons were scheduled to last two hours. [REDACTED] told the accused they did not need to go if the accused was feeling sick, but she was persistent in saying they should go. [REDACTED] then went and played computer games in the computer room. At around 11.00am or 11.30am, [REDACTED] came out and assured the accused that they did not have to go to the flying lesson, but the accused wanted to go.
161. The accused's phone records show that Simon Patterson called the accused at 11.08am, and again at 2.23pm.
162. Over the phone, Simon informed the accused that Donald, Gail, Ian and Heather were sick and in hospital. He asked how she was. The accused responded that she had felt unwell from 4.30pm on Saturday afternoon, and felt like diarrhoea was coming. She said she then experienced diarrhoea later that evening, occurring every 20 minutes lasting all night. She stated it was difficult to take [REDACTED] home to Korumburra [on the 29 July 2023 at approximately 7pm[7]] because she was worried she would have an accident. She also said that on the way back from dropping[REDACTED] home she stopped at Leongatha Subway so [REDACTED] could have a roll for dinner, but she had not gone inside the store as she feared she would have an accident if she got off the seat. This was the first that Simon had heard of the accused being unwell. (See Notice of Incriminating Conduct).
163. At 12.11pm, [REDACTED] flight instructor, Ulysses Villalobos, rang the accused to let her know that he was running late, and asked to push [REDACTED] flying lesson back from 2.00pm to 4.00pm. The accused agreed.
164. Sometime during the early afternoon, most likely shortly after 2.30pm, the accused left her home in Leongatha to drive [REDACTED] to his flying lesson in Tyabb, over an hour away. [REDACTED] came along, although she does not remember going. They drove without any indication from the accused that she needed to stop to use the toilet. At 3.20pm, they stopped at the BP service station in Caldermeade and purchased a 'blister strap' (type of sour confectionary), a ham, cheese and tomato sandwich and a sweet chilli chicken wrap. The accused is captured on CCTV entering the public toilet at the service station, and exiting nine seconds later, before she selects products from the store.
165. About 10 minutes before they arrived in Tyabb, [REDACTED] flight instructor, Ulysses Villalobos, called the accused and cancelled the lesson due to poor weather. The accused's phone records indicate this call took place at 3.48pm. The accused was unhappy with the late cancellation and complained it was unfair she had to drive a whole hour. The accused turned the car around and they drove home to Leongatha. They stopped on the way home and bought some food and a coffee from a donut van in Kee Wee Rup. At no stage during the whole trip did the accused use a toilet or indicate she needed to use a toilet.
166. When they arrived home, the accused went to the toilet. The children played on their computers until dinnertime. [REDACTED] did not notice the accused going to the toilet after that, but [REDACTED] remembers the accused going back and forth to the toilet. At around 5.00pm or 5.30pm, the children and the accused ate dinner which consisted of mashed potato, beans and meat which the accused told the children was left-over from the lunch, and which [REDACTED] remembered seeing the day before. The prosecution asserts that the children's meal was not contaminated with death cap mushrooms. (See Notice of Incriminating Conduct).
The Accused's First Presentation to Leongatha Hospital
167. On Monday 31 July 2023, two days after the lunch, the accused woke [REDACTED] for school. [REDACTED] came downstairs and saw the accused drinking coffee at the dining table. The children got ready for school and the accused dropped them at the bus stop at 7.20am.
168. At 7.31am, the accused rang Simon Patterson. She asked to talk. Initially Simon asked if they could speak later as he had barely slept the night before due to being with his parents at hospital until the early hours of the morning, but agreed to talk when he realised it was a medical issue. The accused told him she had been having diarrhoea every 20 minutes and thought she should go to hospital. She said she was worried she would have an accident walking from the car to the hospital, and asked Simon to take her (see Notice of Incriminating Conduct). Simon told her to go to hospital, and see how she managed by herself.
169.The accused presented herself to Leongatha Hospital shortly after 8.00am, carrying a handbag and backpack. She pressed the doorbell to the Urgent Care Centre, which was answered by Dr Webster. Dr Webster's shift as the on-call doctor ended at 8.00am, and he was in the process of completing some final tasks and handing over to the next on-call doctor on duty, Dr Veronica Foote. At the same time, staff were busy urgently arranging the transfer of the Wilkinsons to Dandenong Hospital, having just been informed that the patients were suffering death cap mushroom poisoning.
170. Dr Webster opened the door to the Urgent Care Centre and told the accused that she had been kept waiting because there were two critically unwell patients. He asked why she had come to hospital. The accused replied that she had gastro. Dr Webster immediately asked her name and the accused told him she was Erin Patterson. Realising she was the fifth lunch attendee, Dr Webster immediately let the accused into the Urgent Care Centre.
171. The accused took a seat in the Urgent Care Centre, where nurse Kylie Ashton was also working by that stage. Ian and Heather Wilkinson were in beds a few metres away.
172. Kylie Ashton spoke to the accused in the Urgent Care Centre. She asked what the accused's involvement in the lunch had been, and the accused responded that she cooked and ate the meal. Dr Webster explained to the accused that there was a high level of concern regarding possible death cap mushroom poisoning. He made it clear that the accused had been exposed to a potentially lethal dose of death cap mushroom toxin, and asked the accused where she had obtained the mushrooms used in the beef wellington. The accused replied that she had bought them at Woolworths. Dr Webster said they needed to commence emergency intravenous medical treatment. The accused was told she would need a full assessment and transfer to Dandenong Hospital.
173. Ms Ashton asked the accused to come to a bay in the Urgent Care Centre for assessment, however the accused declined. She said she was not prepared to come and stay in hospital. She sat on a chair opposite the nurse's station. Ms Ashton took the accused's observations there, which showed that her heart rate was high and was 'extremely tachycardic'. Her blood pressure was also on the high side. The accused told Ms Ashton that she was advised to present to hospital as the fifth member of the lunch on Saturday 29 July. She reported diarrhoea and nausea but no vomiting and said she had eaten the meal at 1.00pm, with symptoms starting that evening. Amongst this discussion, the accused repeatedly stated that she needed to go. She said, 'I haven't come prepared to be admitted to hospital' and 'I was just coming to be checked'. She said she needed to go sort her kids and that she needed to go home to pack for hospital. The accused was adamant that she could not stay.
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177. Ms Ashton and Dr Foote intercepted the accused as she was leaving. They advised her against leaving. The accused said she was not prepared to stay at the hospital and needed to go home to sort out things for her children and animals. Ultimately, the accused signed a discharge against medical advice form and left at around 8.10am, saying she would return in around 20 minutes. (See Notice of Incriminating Conduct).
The Accused's Second Presentation to Leongatha Hospital
183. At 9.48am [on 31 July 2023] , the accused re-presented to the Urgent Care Centre at Leongatha Hospital. She pushed the buzzer at the triage counter, and told nurse Mairim Cespon that she had been told that she had to be assessed. She told Mairim Cespon that she had diarrhoea and nausea, but was not vomiting. Ms Cespon alerted Dr Webster who came to the triage window and spoke to the accused...
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186. Ms Cespon also took the accused's observations shortly after 10.00am. The accused complained of pain when opening her bowels. Her heart rate and blood pressure were elevated, though her heart rate came down a bit. The accused reported that she started experiencing nausea on 29 July (the day of the lunch), and that she had diarrhoea all day on Sunday 30 July, but it had started to resolve in the evening. She said she had diarrhoea again on the morning on 31 July, and could not count how many times she had opened her bowels. (See Notice of Incriminating Conduct).
187. The accused went to the toilet three times in close succession shortly after 10.00am. On each occasion she reported that she had opened her bowels. There was a pan in the toilet, so that staff could monitor her output. After each trip, Ms Cespon went in to look at the accused's stool. On each occasion, Ms Cespon observed a liquid that looked clear yellow like urine with brownish sediment. Her observations were documented as:
a. 10am - liquid, medium
b. 10.04am - liquid, medium
c. 10.06am - liquid small
188. When Ms Cespon first saw the brown sediment, the accused said without prompting that she knew it looked like wee, but that it was actually stool. (See Notice of Incriminating Conduct). Ms Cespon took a sample from one of the three trips to the toilet.
189. The accused went to the toilet twice more during the morning, at 10.15am and 11.50am. Both times she reported that she had opened her bowels, and both times the collection in the pan looked the same as the earlier samples - liquid and clear yellow with brownish sediment.
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194. At approximately 10.30am, Dr Foote reviewed the accused, who stated:
a. She was feeling unwell, and had some generalised abdominal pain but no vomiting. (See Notice of Incriminating Conduct).
195. Dr Foote assessed the accused. She formed the impression that the accused was moderately dehydrated and appeared to have a gastrointestinal-type illness. Blood tests did not reveal any metabolic acidosis or electrolyte disturbance.
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201. At around 11.45am, nurse Cindy Munro entered the plaster room to cannulate the accused, at Ms Cespon's request. Ms Munro introduced herself to the accused. After sourcing some additional N-acetylcysteine (NAC), Ms Munro started cannulating the accused. The accused was stating 'I don't want this' and 'why do I need all these fluids'. She said she did not want these interventions and was resisting treatment. Ms Munro explained the medication was to protect her liver after ingesting poison. (See Notice of Incriminating Conduct).
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207. Shortly after 12.30pm, paramedics arrived at Leongatha Hospital to convey the accused by ambulance to Monash Medical Centre. They were also asked to take the leftover beef wellington to Monash Medical Centre for testing. On arrival, paramedics were advised of the suspected poisoning by death cap mushrooms, and given some relevant history of the accused's presentation. By this stage, Donald, Gail, Heather and Ian had all been transferred to Dandenong Hospital. Paramedics were taken into the cubicle and introduced to the accused. They observed her sitting in a hospital bed, attached to an IV pump. She appeared well: good colour, warm and dry. She was alert and talking, saying she had just returned from the toilet and had another loose bowel motion. On examination, the accused had ongoing complaints of nausea and diarrhoea. (See Notice of Incriminating Conduct). She was mildly tachycardic and on auscultation of bowel sounds they were hyperactive in nature. All other vital signs were normal.
208. The accused was conveyed to Monash Medical Centre by ambulance, leaving at about 1.00pm. The Woolworths bag containing the leftover meal was also taken by paramedics. During the transport the accused complained of nausea and a sudden onset headache and was given medication. She did not complain of abdominal pain and did not experience diarrhoea or indicate she needed to use the toilet during the 90-minute drive from Leongatha Hospital to Monash Medical Centre. The accused asked paramedic Darcy Cummins about her care and the treatment for death cap mushroom poisoning. She told the paramedics that she had cooked beef wellington, which they had all eaten, and that this was the meal the hospital staff thought had caused the illnesses...
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210. The accused appeared calm and nonchalant throughout the transport, chatting to both paramedics.
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212. The accused arrived at Monash Medical Centre on Monday 31 July at 2.40pm and was handed over to a triage nurse.
213. Simon and the children also arrived at Monash Medical Centre at 2.40pm. They met the accused in the triage area. [REDACTED] were examined at Monash Children's Hospital. They exhibited no symptoms and were found not to be ill. While they were waiting to be tested, Simon sent the accused a text message, inquiring how she was. She responded, 'I feel nauseous and sore tummy but they gave me ondansetron and saline and fentanyl' (see Notice of Incriminating Conduct).
214. The accused was seen by toxicology registrar Dr Laura Muldoon in the emergency department at around 4.00pm. Clinically, the accused appeared well with normal vital signs and blood gas parameters. She told Dr Muldoon that she had developed nausea and diarrhoea on the evening of 29 July 2023, which continued to the morning of 31 July 2023, and which she attributed to possible food poisoning from the lunch of beef wellington she had prepared and consumed. (See Notice of Incriminating Conduct).
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216. At approximately 6.00pm, Professor Rhonda Stuart, the Director of Public Health and Infection Prevention at Monash Health, attended Monash Medical Centre. She had been asked to speak to the accused in her capacity as Director of the South-East Public Health Unit to ensure there was no public health risk. Professor Stuart found the accused in a resus bay in the emergency department of Monash Medical Centre, together with Simon and the two children. Professor Stuart spoke to the accused alone. Upon questioning, the accused said she had made lunch for her ex-husband's relatives and described making the beef wellington. She said she made a mushroom paste using a packet of fresh mushrooms bought from the supermarket plus some dried mushrooms that she said she had bought from a 'Chinese food shop a few weeks' prior. The accused said she had taken the dried mushrooms out of the packet and put them into a plastic container a few weeks prior, and stated she had chopped all the mushrooms and used them all. She said she had not used any of the dried mushrooms prior to preparing the lunch. The accused said she could not remember if the Chinese food shop was in Oakleigh or Glen Waverley. (See Notice of Incriminating Conduct).
217. Upon questioning by Professor Stuart, the accused denied picking or finding any other mushrooms or using any other mushrooms in the meal. She told Professor Stuart she ate half her meal, that her father-in-law had eaten his plus some of his wife's, and that there were leftovers from the lunch which she had fed her children on the Sunday but with the mushroom paste and pastry scraped off. (See Notice of Incriminating Conduct). The accused reported developing symptoms of vomiting, diarrhoea and abdominal pain the day after the meal. (See Notice of Incriminating Conduct). She asked Professor Stuart why she was asking her questions, and Professor Stuart reiterated that she was making sure there was no public health issue, trying to check that the mushrooms the accused bought were not the cause of everyone's symptoms, in case other people might be at risk. The accused said she thought it was terrible that people could be poisoned from mushrooms bought in a shop.
218. At 4.52pm, the accused's sister-in-law, Tanya Patterson, sent the accused a message offering to visit her in hospital. The accused said she would love a visit the following morning, if she was still at Monash. Tanya asked how the accused was feeling, and the accused replied, 'I feel nauseous and tired and dizzy and sore tummy. I've had many medicines. Yes, I'm at Clayton. I don't think I need anything thanks.' (See Notice of Incriminating Conduct)
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220. In the evening of 31 July 2023, Child Protection became involved in the case. Police had also been notified. The following morning, Tuesday 1 August 2023, Tanya Patterson messaged the accused to arrange a visit. The accused responded. Tanya went into the hospital and saw the accused just before 10.00am. The accused complained of a headache, said she had not slept well and had taken medication for low potassium overnight. She indicated she hoped to be discharged. At 10.00am, Dr Muldoon came in to see the accused. Dr Muldoon clinically reviewed the accused and her blood test results. The accused had no clinical or biochemical evidence of amanita poisoning or other toxicological substance ingestion.
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223. Just after midday, the accused was reviewed by Dr Varuna Ruggoo. The accused appeared clinically well and all of her vital signs were within normal limits. She stated that she felt well, had no abdominal pain and had eaten lunch in the short stay unit without vomiting. She was discharged from hospital at around 1.00pm.
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225. At 1.45pm, Child Protection workers Naomi Schroder and Katrina Cripps attended Monash Medical Centre to review the welfare of [REDACTED]. They first interviewed Simon Patterson, followed by the accused, [REDACTED].
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227. The accused told Ms Cripps and Ms Schroder that she became sick on the Saturday evening, and had already been to the toilet quite a few times before she took her son's friend home at 7.30pm. She said she had loose stools throughout Saturday night. (See Notice of Incriminating Conduct).
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DEPARTMENT OF HEALTH INVESTIGATION
231. On the afternoon on 31 July 2023, toxicologist Dr McDermott made a notification to the Department of Health about this suspected poisoning event under the subcategory of Amatoxin. Dr McDermott spoke with SallyAnn Atkinson, the manager of the Investigation and Response team within the Communicable Disease Prevention and Control Sector of the Department. Dr McDermott relayed some details of the case, including the accused's account of sourcing the mushrooms from Woolworths and an Asian grocery store. The Department of Health commenced an investigation into the events surrounding the lunch.
232. As part of that investigation, Ms Atkinson spoke with Simon Patterson to gather further information. She then had a number of interactions with the accused.
First Conversation with the Accused
233. On Tuesday 1 August 2023 at 8.33am, about four and a half hours before the accused was discharged from Monash Medical Centre, Ms Atkinson called the accused on her mobile phone. The accused said she had started to experience symptoms slightly before midnight on the evening after the lunch, which included explosive diarrhoea continuing through the night every 15 to 20 minutes, but which had slowed down to every 45 minutes throughout Sunday. The accused said she started to feel better by Sunday evening, before the symptoms came back and she started to feel worse. She then took herself to hospital on the Monday morning after she got her children on the school bus. (See Notice of Incriminating Conduct).
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POLICE INVESTIGATION
272. On 3 August 2023, Victoria Police launched an investigation into the circumstances surrounding the lunch, which was ultimately codenamed Operation Hom-Pluto-2023. During the investigation, police executed a number of search warrants, seized items for forensic examination, obtained CCTV, investigated the accused's online activities and reviewed banking and medical records...
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335. Also on 7 August 2023, the accused contacted a member of the Keli Lane Facebook group, Jenny Hay. She asked Ms Hay to call her, and she did. During their conversation on the phone, the accused stated variously:
a. She had purchased the mushrooms she used for the beef wellington from an Asian grocer (see Notice of Incriminating Conduct);
b. She had also been sick (see Notice of Incriminating Conduct);
c. Her two children had also eaten the meal but had not been unwell (see Notice of Incriminating Conduct).
The Accused's Medical Records
338. Police obtained copies of the accused's medical records to investigate:
a. Whether she had suffered amanita poisoning following the lunch;
b. Whether she had been diagnosed with cancer, as she claimed during the lunch; and
c. Whether she had required a needle biopsy on a lump in the months prior to the lunch.
339. The accused's medical files were examined by Professor Andrew Bersten, an intensive care specialist. After reviewing the files, Professor Bersten states:
a. On 30 July 2023, the accused reported symptoms of nausea, diarrhoea and abdominal tenderness. Some test results were consistent with a diarrheal illness, namely a raised haemoglobin level at presentation to Leongatha Hospital and various low levels of potassium; however, there was no elevation of urea to creatine levels, which is inconsistent with the presence of dehydration. Apart from a slightly elevated fibrinogen, which had decreased to within a normal range by the afternoon on 31 July 2023, no other abnormal test results were documented.
b. There is no evidence that the accused suffered an acute illness on 30 July 2023 and no evidence that she developed a liver injury or suffered significant liver damage. Her vital signs and other test results were not suggestive of other acute illness or injury.
Professor Bersten's report of 23 January 2024
Conclusion: There is evidence that supports or is consistent with Erin Patterson becoming ill from a diarrheal illness on 30th of July 2023, and perhaps becoming somewhat dehydrated. There is no evidence that she developed a liver injury.
Erin Patterson reported a history of nausea and diarrhea commencing late evening Saturday 29/7/2023 with multiple loose stools over the next 2 days. This is recorded in the statement of RN CESPON working at Leongatha Hospital, in the notes of that hospital and confirmed by the Ambulance Victoria fluid balance charts where 5 loose bowel actions are documented between 1000 and 1150 on 31/7/2023. There are multiple records of generalized abdominal tenderness which would be consistent with a diarrheal illness.
In a significant diarrheal illness one might expect evidence of dehydration and electrolyte disturbance. Some credence is provided by a raised haemoglobin level at presentation to Leongatha UCC; however, the absence of an elevation of the urea to creatine ratio argues against this. Given the evidence of ongoing diarrhoea and elevated haemoglobin it's likely that there was some mild dehydration present.
Apart from an elevated fibrinogen of 4.9 (reference range 1.5-4.0) various low levels of potassium from Monash Medical Centre, no other abnormal results are documented. The elevated fibrinogen is consistent with an acute illness; the result has decreased to 4.0 when repeated at Monash Medical Centre at 1557 on 31/7/2023. The low potassium result can be seen with a diarrheal illness.
There are no other signs or results of an acute illness, specifically no biochemical evidence of an acute liver injury is found in the information provided. The absence of any change in coagulation (elevated INR), ALT (a relatively specific liver transaminase enzyme), bilirubin and lactate over the period reported is consistent with no significant liver damage. Vital signs and other signs and tests are also not suggestive of other acute illness or injury.
(c) ON 31 JULY 2023, THE ACCUSED REFUSED TREATMENT AND LEFT HOSPITAL AGAINST MEDICAL ADVICE
(c) That on 31 July 2023 (upon her first presentation to Leongatha hospital), upon being advised by Dr Chris Webster that doctors had formed the view that she and the lunch guests may have ingested a potentially lethal dose of death cap mushroom toxin, the accused (prior to being assessed) indicated that she was not prepared to stay in hospital, refused to enter a treatment bay in the urgent care centre for assessment and, within a short period of time, left the hospital against medical advice, prior to receiving any medical treatment.
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(e) That on 31 July 2023, (upon her second presentation to Leongatha Hospital) having been advised that doctors had formed the view that she and the lunch guests may have ingested a potentially lethal dose of death cap mushroom toxin, the accused expressed reluctance to accept medical treatment, stating "I don't want this" and "why do I need all these fluids".
The Accused's First Presentation to Leongatha Hospital
167. On Monday 31 July 2023, two days after the lunch, the accused woke [REDACTED] for school. [REDACTED] came downstairs and saw the accused drinking coffee at the dining table. The children got ready for school and the accused dropped them at the bus stop at 7.20am.
168. At 7.31am, the accused rang Simon Patterson. She asked to talk. Initially Simon asked if they could speak later as he had barely slept the night before due to being with his parents at hospital until the early hours of the morning, but agreed to talk when he realised it was a medical issue. The accused told him she had been having diarrhoea every 20 minutes and thought she should go to hospital. She said she was worried she would have an accident walking from the car to the hospital, and asked Simon to take her (see Notice of Incriminating Conduct). Simon told her to go to hospital, and see how she managed by herself.
169. The accused presented herself to Leongatha Hospital shortly after 8.00am, carrying a handbag and backpack. She pressed the doorbell to the Urgent Care Centre, which was answered by Dr Webster. Dr Webster's shift as the on-call doctor ended at 8.00am, and he was in the process of completing some final tasks and handing over to the next on-call doctor on duty, Dr Veronica Foote. At the same time, staff were busy urgently arranging the transfer of the Wilkinsons to Dandenong Hospital, having just been informed that the patients were suffering death cap mushroom poisoning.
170. Dr Webster opened the door to the Urgent Care Centre and told the accused that she had been kept waiting because there were two critically unwell patients. He asked why she had come to hospital. The accused replied that she had gastro. Dr Webster immediately asked her name and the accused told him she was Erin Patterson. Realising she was the fifth lunch attendee, Dr Webster immediately let the accused into the Urgent Care Centre.
171. The accused took a seat in the Urgent Care Centre, where nurse Kylie Ashton was also working by that stage. Ian and Heather Wilkinson were in beds a few metres away.
172. Kylie Ashton spoke to the accused in the Urgent Care Centre. She asked what the accused's involvement in the lunch had been, and the accused responded that she cooked and ate the meal. Dr Webster explained to the accused that there was a high level of concern regarding possible death cap mushroom poisoning. He made it clear that the accused had been exposed to a potentially lethal dose of death cap mushroom toxin... Dr Webster said they needed to commence emergency intravenous medical treatment. The accused was told she would need a full assessment and transfer to Dandenong Hospital.
173. Ms Ashton asked the accused to come to a bay in the Urgent Care Centre for assessment, however the accused declined. She said she was not prepared to come and stay in hospital. She sat on a chair opposite the nurse's station. Ms Ashton took the accused's observations there, which showed that her heart rate was high and was 'extremely tachycardic'. Her blood pressure was also on the high side. The accused told Ms Ashton that she was advised to present to hospital as the fifth member of the lunch on Saturday 29 July. She reported diarrhoea and nausea but no vomiting and said she had eaten the meal at 1.00pm, with symptoms starting that evening. Amongst this discussion, the accused repeatedly stated that she needed to go. She said, 'I haven't come prepared to be admitted to hospital' and 'I was just coming to be checked'. She said she needed to go sort her kids and that she needed to go home to pack for hospital. The accused was adamant that she could not stay.
174. Ms Ashton explained to the accused that she was at risk, and that the other cases from the lunch were extremely unwell and being transferred out. Ms Ashton told the accused that treatment was time critical, and said she needed to move the accused to a bay for thorough examination, however the accused repeatedly declined. She kept saying she had not come prepared to be admitted to hospital, she was just coming to be checked. (See Notice of Incriminating Conduct).
...
176. Eventually Ms Ashton asked the accused how long she needed, and the accused said 20 minutes. Ms Ashton said that was the most time they could give her without risking her health. Shortly afterwards the accused got up and started walking out. Ms Ashton advised Dr Foote of the situation. During the morning, Dr Foote had received updates about the Wilkinsons and the accused's presentation to hospital as part of hand-over.
177. Ms Ashton and Dr Foote intercepted the accused as she was leaving. They advised her against leaving. The accused said she was not prepared to stay at the hospital and needed to go home to sort out things for her children and animals. Ultimately, the accused signed a discharge against medical advice form and left at around 8.10am, saying she would return in around 20 minutes. (See Notice of Incriminating Conduct).
The Accused's Second Presentation to Leongatha Hospital
183. At 9.48am, the accused re-presented to the Urgent Care Centre at Leongatha Hospital....
...
201 At around 11.45am, nurse Cindy Munro entered the plaster room to cannulate the accused, at Ms Cespon's request. Ms Munro introduced herself to the accused. After sourcing some additional N-acetylcysteine (NAC), Ms Munro started cannulating the accused. The accused was stating 'I don't want this' and 'why do I need all these fluids'. She said she did not want these interventions and was resisting treatment. Ms Munro explained the medication was to protect her liver after ingesting poison. (See Notice of Incriminating Conduct).
(e) ON 31 JULY 2023, THE ACCUSED WAS RELUCTANT TO ACCEPT TREATMENT ON HER RE-PRESENTATION AT LEONGATHA HOSPITAL
(f) ON 31 JULY 2023, THE ACCUSED WAS RELUCTANT TO OBTAIN MEDICAL TREATMENT FOR HER CHILDREN
(f) That on 31 July 2023, (upon her second presentation to Leongatha Hospital) having been advised that doctors had formed the view that she and the lunch guests may have ingested a potentially lethal dose of death cap mushroom toxin (and despite claiming that the children ate leftovers of the same meal), the accused expressed reluctance to accept medical assessment and/or treatment for her children, [REDACTED], stating variously:
○ Is it really necessary; that they don't have symptoms; and that they did not eat the mushroom.
○ That she was concerned about scaring her children.
○ That they were not unwell; that she did not want to worry them; that she did not want the hassle of taking them out of school and that the school was too far away; that she did not want to involve them; and that she did not want to worry or stress them.
The Accused's First Presentation to Leongatha Hospital
167. On Monday 31 July 2023, two days after the lunch, the accused woke [REDACTED] for school. [REDACTED]came downstairs and saw the accused drinking coffee at the dining table. The children got ready for school and the accused dropped them at the bus stop at 7.20am.
...
169. The accused presented herself to Leongatha Hospital shortly after 8.00am, carrying a handbag and backpack...
...
171. The accused took a seat in the Urgent Care Centre, where nurse Kylie Ashton was also working by that stage.
...
175. When the accused identified that she needed to leave, Ms Ashton asked if the accused's children had eaten the same meal. The accused responded that the children had not been present for the lunch, but had eaten some of the leftovers the next day. She said the mushrooms had been scraped off as the children did not like mushrooms. (See Notice of Incriminating Conduct). Ms Ashton told the accused that the children needed to be brought to the hospital as a matter of priority since they had eaten the same food, even with the mushrooms scraped off.
...
177. Ms Ashton and Dr Foote intercepted the accused as she was leaving. They advised her against leaving. The accused said she was not prepared to stay at the hospital and needed to go home to sort out things for her children and animals. Ultimately, the accused signed a discharge against medical advice form and left at around 8.10am, saying she would return in around 20 minutes. (See Notice of Incriminating Conduct)
...
The Accused's Second Presentation to Leongatha Hospital
183. At 9.48am, the accused re-presented to the Urgent Care Centre at Leongatha Hospital. ...Ms Cespon alerted Dr Webster who came to the triage window and spoke to the accused. It was at this stage that the accused informed him that her two children had eaten the beef wellington leftovers. She specified that her two children ate the meat but not the mushroom or pastry surrounding the meat. (See Notice of Incriminating Conduct).
...
185. Shortly before 10.00am, Dr Webster spoke to the accused in the plaster room. Ms Cespon was present and heard their discussion. Dr Webster told the accused that her children needed to be medically reviewed too as they had ingested the meal. The accused responded that the children did not eat the mushrooms. Dr Webster said that because they ate part of the meal they needed to be taken from school and assessed by doctors. Dr Webster reiterated the critical importance of getting the children to a medical facility so that they could be tested and treated for potentially lethal death cap mushroom poisoning. He asked the whereabouts of the children and the accused said they were at [REDACTED]. At that point the accused became emotional and said, 'Is this really necessary? They don't have symptoms' and 'They did not eat the mushroom'. She also said, 'I just don't want them to be panicked or stressed'. (See Notice of Incriminating Conduct). Dr Webster replied bluntly that they could be scared and alive, or dead. He also said he thought the choice was obvious. The accused stated that she would call [REDACTED] and arrange for the children to receive medical attention.
...
202. At some stage, the accused told Ms Munro about her children having ingested the meal but with the mushrooms scraped off. (See Notice of Incriminating Conduct). Ms Munro said the children still may have ingested some mushroom and she responded, "No no I scraped it off." The accused said the children were not unwell and that she did not want to worry them. She said she did not want the hassle of taking them out of school, and also that they are in school in [REDACTED] which was too far away. Ms Munro said the poison could still go into the meat. The accused became teary and said she did not want to involve the kids. She did not appear to be concerned so much about the children's health, but rather about not stressing them out. (See Notice of Incriminating Conduct).
Q. She told you, didn't she, that the kids had eaten the leftovers or some of the leftovers from the lunch on Sunday?
A. Yes.
Q. Informed you that because of that the kids needed to be brought in for testing?
A. Yes.
Q. At that stage there was some sensitivity in the family about getting the kids to hospital because of their previous experience with hospitals. Do you agree with that?
A. Yes. [REDACTED] in particular.
Q. They were your previous illnesses for a start which had been traumatising for the children?
A. Yes.
Q. Particularly your illness in May of 2022 when you'd been in a coma for some days?
A. Yes.
Q. Gail had been seriously unwell, misdiagnosed by Wonthaggi Hospital?
A. I think that's correct.
Q. A year or so earlier?
A. I think that's right.
Q. [REDACTED]had had an experience where the wrong hip had been X-rayed?
A. He had.
Q. [REDACTED] had ovarian cysts which had been diagnosed very late and required an emergency operation?
A. Yes, that happened.
Q. And the kids - - -?
A. Well, emergency operation, needed an operation, yep.
Q. Kids both were apprehensive because of those things about hospitals and family members being ill?
A. Um probably the main thing for [REDACTED] was um severe constipation that she could actually recall. I'm not sure if she could remember most of those. Um some of them she obviously could, um and, yes, she had to have a tube up her nose as part of the treatment, which I think is probably the main thing for her that she was stressed about with attending hospitals.
Q. I suppose as a global thing there was some sensitivity on behalf of the children about hospitals in general because of all of those things. Do you agree with that?
A. Maybe a little bit. I don't think that's a strong issue in terms of the kids getting tested in hospital.
Q. Both you and Erin would have been alive at least to that possibility of their sensitivity about hospitals?
A. Yes, yep.
Q. Obviously in circumstances like this, particularly traumatic for them, it would be important not to scare them or stress them too much in these circumstances?
A. Um I think that's a general policy. It didn't need to specifically be applied here.
Q. Sure, but there are perhaps acute reasons that we've been through why they might be more sensitive than another child in a different circumstance?
A. Maybe slightly, but I wouldn't put that in any significant way.
Q. Nevertheless you were being careful about what information was being passed onto them?
A. Yes.
Q. As a result of what Erin informed you about the kids needing to be taken to hospital for testing, she said to you that she wanted to collect them herself to minimise any stress to them?
A. That's what she said.
Q. Agreed after talking to you that it made more sense for you to collect them?
A. That's right.
(g) BETWEEN 31 JULY 2023 & 4 AUGUST 2023, THE ACCUSED LIED THAT SHE USED DRIED MUSHROOMS FROM AN ASIAN GROCERY
(g) That between 31 July 2023 and 4 August 2023, the accused lied to multiple persons by falsely representing that she had used dried mushrooms purchased from a Chinese Grocer in the beef wellington meal, as follows:
○ Dr Veronica Foote;
○ Darcy Cummins;
○ Eleyne Spencer;
○ Matthew Patterson;
○ SallyAnn Atkinson;
○ Katrina Cripps;
○ Professor Rhonda Stuart;
○ Dr Conor McDermott;
○ Dr Laura Muldoon;
○ Naomi Schroder;
The Accused's First Presentation to Leongatha Hospital
169. The accused presented herself to Leongatha Hospital shortly after 8.00am [on 31 July 2023], carrying a handbag and backpack.
...
172. ... Dr Webster explained to the accused that there was a high level of concern regarding possible death cap mushroom poisoning. He made it clear that the accused had been exposed to a potentially lethal dose of death cap mushroom toxin, and asked the accused where she had obtained the mushrooms used in the beef wellington. The accused replied that she had bought them at Woolworths....
...
177... Ultimately, the accused signed a discharge against medical advice form and left at around 8.10am, saying she would return in around 20 minutes.
The Accused's Second Presentation to Leongatha Hospital
183. At 9.48am, the accused re-presented to the Urgent Care Centre at Leongatha Hospital.
...
193. At 10.23am, the accused received a phone call from Matthew Patterson (who had been present with Donald while speaking to the toxicologist). Matthew asked how the accused was, understanding that she had gone to hospital. The accused gave a fairly generic answer. Matthew explained that he was with Donald in the intensive care unit and the toxicologist had inquired where the mushrooms in the meal had come from. The accused said there were two sources of mushrooms - fresh mushrooms from Woolworths and dried mushrooms from a Chinese grocer or supermarket within the Oakleigh area. (See Notice of Incriminating Conduct). Matthew Patterson thanked the accused and ended the call. He shared what the accused had told him with medical staff.
...
194. At approximately 10.30am, Dr Foote reviewed the accused, who stated:
...
204. Shortly before 12.00pm, toxicologist Dr McDermott rang Dr Foote as he wanted more information about the mushrooms that were used in the beef wellington. Dr Foote handed the phone to the accused so she could speak to Dr McDermott directly and left the room. The accused told Dr McDermott that she had bought sliced button mushrooms from Leongatha Safeways, and that she had bought some dried mushrooms from a Chinese food shop in Oakleigh. When Dr McDermott asked which one, the accused said she did not remember. Dr McDermott offered to name Chinese food stores in Oakleigh to identify which one it possibly could be, but the accused said she would not be able to recall and stated that it may have been in Glen Waverley.293 (See Notice of Incriminating Conduct).
...
208. [On 31 July 2023,][t]he accused was conveyed to Monash Medical Centre by ambulance, leaving at about 1.00pm... She told the paramedics that she had cooked beef wellington, which they had all eaten, and that this was the meal the hospital staff thought had caused the illnesses. Ms Cummins asked the accused where she had sourced the mushrooms used in the lunch. The accused said half had come from the local Woolworths, the other mushrooms were in dried form from a Chinese grocer in Melbourne. (See Notice of Incriminating Conduct). Ms Cummins showed the accused a picture and asked if they had looked similar, but the accused said she could not remember.
Events at Monash Medical Centre
212. The accused arrived at Monash Medical Centre on Monday 31 July at 2.40pm...
...
215. Dr Muldoon asked the accused about the ingredients she had used in the meal, and she responded that she had used dried or dehydrated mushrooms which she had purchased at an unidentified store, possibly a Chinese store in Oakleigh or Glen Waverley. Dr Muldoon asked the accused if she had used foraged or wild mushrooms and she denied this. (See Notice of Incriminating Conduct).
...
216. At approximately 6.00pm, Professor Rhonda Stuart, the Director of Public Health and Infection Prevention at Monash Health, attended Monash Medical Centre. She had been asked to speak to the accused in her capacity as Director of the South-East Public Health Unit to ensure there was no public health risk. Professor Stuart found the accused in a resus bay in the emergency department of Monash Medical Centre, together with Simon and the two children. Professor Stuart spoke to the accused alone. Upon questioning, the accused said she had made lunch for her ex-husband's relatives and described making the beef wellington. She said she made a mushroom paste using a packet of fresh mushrooms bought from the supermarket plus some dried mushrooms that she said she had bought from a 'Chinese food shop a few weeks' prior. The accused said she had taken the dried mushrooms out of the packet and put them into a plastic container a few weeks prior, and stated she had chopped all the mushrooms and used them all. She said she had not used any of the dried mushrooms prior to preparing the lunch. The accused said she could not remember if the Chinese food shop was in Oakleigh or Glen Waverley. (See Notice of Incriminating Conduct).
...
225. At 1.45pm, Child Protection workers Naomi Schroder and Katrina Cripps attended Monash Medical Centre to review the welfare of [REDACTED]...
226. The accused told Ms Cripps and Ms Schroder that she had invited Donald and Gail over for lunch four or five weeks earlier, as she missed them. She then saw Donald, Gail, Heather and Ian at church, and had invited them over for lunch. The accused said she had some health issues she wanted to talk about to them, and she wanted emotional support and advice on how to approach this issue with her children. The accused described the meal she had served, and stated she had purchased the mushrooms from Woolworths pre-sliced, and had some dried mushrooms she had purchased from an Asian grocer in Melbourne. She said she had attended a number of different Asian grocers in Oakleigh and Clayton and could not recall which store she had purchased them from. (See Notice of Incriminating Conduct).
...
DEPARTMENT OF HEALTH INVESTIGATION
231.On the afternoon on 31 July 2023, toxicologist Dr McDermott made a notification to the Department of Health about this suspected poisoning event under the subcategory of Amatoxin. Dr McDermott spoke with SallyAnn Atkinson, the manager of the Investigation and Response team within the Communicable Disease Prevention and Control Sector of the Department. Dr McDermott relayed some details of the case, including the accused's account of sourcing the mushrooms from Woolworths and an Asian grocery store. The Department of Health commenced an investigation into the events surrounding the lunch.
...
First Conversation with the Accused
233. On Tuesday 1 August 2023 at 8.33am, about four and a half hours before the accused was discharged from Monash Medical Centre, Ms Atkinson called the accused on her mobile phone...
234. The accused said the lunch had consisted of beef wellington, mashed potato and beans served with gravy from a reheated packet. She stated that she had purchased the majority of the ingredients from Woolworths in Leongatha but that she had also purchased some dried mushrooms from an Asian shop in either Clayton, Mount Waverley or Oakleigh.. The accused could not be sure of the location of the Asian shop. She also said she did not have the packaging for the mushrooms as they came in packaging that was not resealable, so she had thrown the packaging out and placed the mushrooms in a Tupperware container. She described the mushrooms as smelling funny, but they were ok when she used them so she had stored what was left for several months until she used them again.
235. The accused said that the majority of the mushrooms had come from the Leongatha Woolworths and that the recipe required one kilogram of mushrooms that is simmered down into a paste. She said she decided to use the mushrooms purchased from the Asian grocer which were stored in the Tupperware container, so she rehydrated them before chopping them into pieces and adding them to the rest of the mushrooms. (See Notice of Incriminating Conduct).
...
238. As a result of the information received, the Department of Health made arrangements to start investigating all Asian grocery type stores in the suburbs mentioned by the accused, as well as making other inquiries concerning the meal. The City of Monash Public Health Unit was contacted and asked to assist in the investigation.
239. At 3.50pm the same afternoon, Ms Atkinson sent the accused a text message requesting that she call Ms Atkinson, and outlining a number of questions she wanted answered. By this stage, the accused had been discharged from Monash Medical Centre. Ms Atkinson asked for a description of the packaging of the mushrooms from the Asian grocer, as well as any landmarks or roads near the store. The accused messaged back a short time later and said she would get the information to Ms Atkinson as soon as possible. At 5.22pm Ms Atkinson called the accused, but there was no answer so she left a voicemail asking the accused to call her back.
240. The following morning, 2 August 2023 at 8.56am, Ms Atkinson tried to call the accused again, but there was no answer. Ms Atkinson left a voicemail asking the accused to call back as she had more questions. There was no reply. At 9.29am, Ms Atkinson sent the accused a list of questions via text, and offered to communicate via email if that was preferable. The questions again included queries around the location of the Asian grocer and the packaging of the dried mushrooms, amongst other things. The accused did not respond.
241. At 11.18am, Katrina Cripps called Ms Atkinson. She explained that she was looking after the safety of the children and was attending the accused's address for a home visit at 1.00pm. Ms Atkinson asked Ms Cripps to contact her once she arrived so she could speak to the accused, as she was having difficulty getting hold of her. Ms Cripps agreed.
242. Just after midday on the same day, Troy-Anthony Schonknecht, an Environmental Health Officer employed by Monash City Council was assigned the task of visiting any identified Asian groceries in areas specified by the accused to Ms Atkinson to investigate dried mushroom products, fresh mushroom products, supplier details as well as the packaging and labelling of such products. Mr Schonknecht prepared a list of premises registered under the Food Act in the areas of Oakleigh, Clayton or Mount Waverley that retailed as Asian grocery stores. He started visiting the stores where he questioned the proprietors about their mushroom product suppliers, inspected the stock and photographed any items of interest.
Second Conversation with the Accused
243. At 1.14pm, Ms Cripps who was present with the accused in her home in Leongatha, called Ms Atkinson. Ms Cripps handed the phone to the accused, who answered some questions about other aspects of the lunch. Contrary to what she had previously said, the accused now told Ms Atkinson that she had not used the mushrooms purchased from the Asian grocer in any other dish, but rather had opened them, noticed their smell, put them into a Tupperware container and not used them at all. She said she had checked her bank card records and could not find any purchases around the day she purchased the mushrooms, and was likely to have paid cash for smaller items. She said she could not remember where she would have gone to purchase the mushrooms, but said it was likely to be strip shopping in and around Oakleigh and Clayton. The accused gave a detailed description of the packaging. She said it was a clear package that looked like it had been repackaged with a white, hand-written label on it and was unbranded. She said the name of the mushrooms and weight was recorded on the white label. The accused described the packaging being smaller in size than a sandwich type ziplock bag, more like a snack size but not resealable. She said it might have been 100 grams in size.
244. Ms Atkinson asked the accused if she had foraged for the mushrooms and picked them herself. The accused denied that she had, and said they had been purchased.
Further Communications with the Accused
245. At 1.44pm, 30 minutes after their previous phone call, Ms Atkinson sent the accused a text message asking what time of day she thought she had purchased ingredients from Woolworths on the Friday before the lunch. An hour later, the accused responded that she had not just purchased all of the ingredients on the Friday before the lunch as originally suggested, but had purchased them on multiple shopping trips that week.
246. At 4.19pm, Ms Atkinson sent the accused pictures of different ziplock bags and labels which were at Ms Atkinson's house, to assist the accused to identify the type of packaging. The accused circled the smaller snack size bag, and returned the picture via sms.
247. At 4.59pm, Ms Atkinson received two follow-up text messages from the accused, stating that the weight of the dried mushrooms was probably 'more like 20g'. Ms Atkinson thanked the accused, before sending some photographs of a shop and dried mushrooms in a clear bag that Mr Schonknecht had taken during the course of his investigations. The accused replied:
Yes, the store doesn't look familiar but that style of packaging and label is exactly what I meant. They weren't whole like those shitaki mushies in the photos, they were sliced. And yes, the packaging was about half the size of that'.346
Third Conversation with the Accused
248. On Wednesday 3 August 2023 at 11.20am, Ms Atkinson spoke with the accused on the phone again...
...
250. Ms Atkinson asked the accused about the appearance of the mushrooms from the Asian grocer, and the accused described them as similar in colour to button mushrooms. Ms Atkinson pushed the accused to think about where she might have gone shopping, and the accused mentioned various roads in Oakleigh, Clayton and Glen Waverley, which she had not mentioned previously.
Monash Council Investigations
251. Between 2 and 3 August 2023, Mr Schonknecht visited 14 stores that were either Asian-style grocery stores, Indian-style grocery stores or fruit and vegetable sellers, across the suburbs of Oakleigh, Clayton and Mount Waverley which had been identified by the accused to Ms Atkinson. He observed and photographed any mushrooms onsite, or noted down stores that did not stock mushrooms. He also filmed the shelves of two stores. Mr Schonknecht also obtained records of the details of the mushroom supplier(s) for the stores. For 13 of the stores, dried mushrooms were only sold in sealed packages with labelling for international suppliers or manufacturers. At one store, Mr Schonknecht observed repackaged mushrooms with a white label, but the mushrooms were whole, not sliced, and the package was not the size indicated by the accused. Nevertheless, Mr Schonknecht photographed these mushrooms and provided the photographs to the Department on the afternoon of 2 August 2024. These were the photographs shown to the accused by Ms Atkinson. Ultimately, Mr Schonknecht's observations from his investigation were that none of the premises had displayed for sale any sliced dried mushrooms in smaller packaging, equivalent to a snack zip lock bag size which had been repackaged and labelled.
...
Outcome of Investigation
255. The Department of Health's investigation concluded around 11 August 2023. They were unable to identify any store (in the suburbs identified by the accused to Ms Atkinson) that sold mushrooms as described by the accused. The Department received no other reports of people falling ill in the same way as the lunch guests. The cluster of illnesses was treated as an isolated incident and no products were recalled.
...
DEATH CAP MUSHROOMS
Introduction to Death Cap Mushrooms
265. Amanita phalloides ('death cap mushroom') is a species of wild mushroom that is highly poisonous. Mushrooms in the Amanita family get nutrition by forming a partnership with forest trees, and are therefore only found in or very close to the root zone of their tree partners. In Australia, most death cap mushrooms grow under oak trees. For this reason, death cap mushrooms are not farmed or produced in commercial settings. Most observations of death cap mushrooms in Victoria have been made in the month of May.
Investigation into Mushroom Production
343. Police investigated the supply chain of mushrooms to the Leongatha Woolworths, to determine whether the mushrooms purchased from Woolworths could have been contaminated with death cap mushrooms. A representative of Woolworths confirmed the suppliers and types of mushrooms sold in Woolworths stores in Victoria. It was established that two farms supplied mushrooms to the Woolworths store in Leongatha - Costa Group Mushroom Farm in Mernda and The Mushroom Place in Reservoir. Investigators took videos of their mushroom production processes at each facility. Joseph Zdrowkewski, the national technical manager at Costa Group, outlined the various procedures undertaken at their processing facility to ensure food safety.
(h) BETWEEN 31 JULY 2023 & 7 AUGUST 2023, THE ACCUSED LIED SHE HAD FED CHILDREN THE SAME MEAL WITH PASTRY AND MUSHROOMS SCRAPED OFF
(h) That between 31 July 2023 and 7 August 2023, the accused lied to multiple persons by falsely representing that she had fed her children the same meal used in the lunch (at times specifying that she had scraped the mushrooms and pastry off), as follows:
○ [REDACTED];
○ [REDACTED];
○ Kylie Ashton;
○ Dr Chris Webster;
○ Mairim Cespon;
○ Cindy Munro;
○ Darcy Cummins;
○ Eleyne Spencer;[23]
○ SallyAnn Atkinson;
○ Katrina Cripps;
○ Professor Rhonda Stuart;
○ Melissa Ridley;
○ DSC Stephen Eppingstall;
○ Naomi Schroder;
○ Jenny Hay.
166. [On 30 July 2023 after returning from Tyabb], the accused went to the toilet. The children played on their computers until dinnertime. [REDACTED] did not notice the accused going to the toilet after that, but [REDACTED] remembers the accused going back and forth to the toilet. At around 5.00pm or 5.30pm, the children and the accused ate dinner which consisted of mashed potato, beans and meat which the accused told the children was left-over from the lunch, and which [REDACTED] remembered seeing the day before. The prosecution asserts that the children's meal was not contaminated with death cap mushrooms. (See Notice of Incriminating Conduct)
The Accused's First Presentation to Leongatha Hospital
169. [On 31 July 2023,] [T]he accused presented herself to Leongatha Hospital shortly after 8.00am, carrying a handbag and backpack.
...
175. When the accused identified that she needed to leave, [Nurse] Ashton asked if the accused's children had eaten the same meal. The accused responded that the children had not been present for the lunch, but had eaten some of the leftovers the next day. She said the mushrooms had been scraped off as the children did not like mushrooms. (See Notice of Incriminating Conduct). Ms Ashton told the accused that the children needed to be brought to the hospital as a matter of priority since they had eaten the same food, even with the mushrooms scraped off.
...
177. Ultimately, the accused signed a discharge against medical advice form and left at around 8.10am, saying she would return in around 20 minutes. (See Notice of Incriminating Conduct).
...
The Accused's Second Presentation to Leongatha Hospital
183. At 9.48am, the accused re-presented to the Urgent Care Centre at Leongatha Hospital. She pushed the buzzer at the triage counter, and told nurse Mairim Cespon that she had been told that she had to be assessed. She told Mairim Cespon that she had diarrhoea and nausea, but was not vomiting. Ms Cespon alerted Dr Webster who came to the triage window and spoke to the accused. It was at this stage that the accused informed him that her two children had eaten the beef wellington leftovers. She specified that her two children ate the meat but not the mushroom or pastry surrounding the meat. (See Notice of Incriminating Conduct).
...
190. At 10.04am, Dr Webster received a phone call from Senior Constable Adrian Martinez-Villalobos of the Mirboo North police. He and Leading Senior Constable Kate Mulry had arrived at 84 Gibson Street to find the gate closed and no vehicles present. Senior Constable Martinez-Villalobos informed Dr Webster that they were at the accused's address but the accused was not there. Dr Webster informed them that the accused had returned to hospital. He asked Senior Constable Martinez-Vallalobos if it would be possible to obtain any leftover beef wellington so that it could be sent for toxicological analysis. The officer replied that they could probably find a way inside the accused's house if the accused gave permission. Dr Webster walked to the plaster room and spoke to the accused. She gave permission for the leftover food to be recovered, and said there were some scrapings from the leftovers in the bin in a Woolies bag as her kids don't eat mushrooms.
191. A few minutes later, Senior Constable Martinez-Villalobos called the ward and was put through to speak to the accused directly. The accused provided the gate code for the front of the property and said the leftovers could be found in a brown Woolworths paper bag either in the red-lidded bin which was located outside the house, or at another location inside the house. Senior Constable Martinez-Villalobos walked to the outside bin, put some gloves on and checked inside. The bin had approximately three bags piled on top of each other. The leftovers, which looked like a meat filled pastry, were in the bottom of the bottom bag. Senior Constable Martinez-Villalobos removed the other rubbish from that bag. He emptied the cleanest of the remaining three bags into the bin, then double-wrapped the bag containing leftovers with that bag. The officers left 84 Gibson Street with the leftovers and took them to Leongatha Hospital.
...
194. At approximately 10.30am, Dr Foote reviewed the accused, who stated:
...
d. Her two children, aged 9 and 14 years, ate the leftover beef wellington on 30 July 2023. However, they did not eat the pastry or mushroom topping. (See Notice of Incriminating Conduct).
199. During late morning, Simon Patterson recalls he received a phone call from the accused as he was en route to Dandenong Hospital to see his parents and had stopped to get petrol. The accused said she had admitted herself to Leongatha Hospital, and had told the hospital that the children had eaten the Saturday lunch leftovers for dinner on Sunday night.
...
202. At some stage, the accused told Ms Munro about her children having ingested the meal but with the mushrooms scraped off. (See Notice of Incriminating Conduct).
...
208. [On 31 July 2023,] [T]he accused was conveyed to Monash Medical Centre by ambulance, leaving at about 1.00pm...The accused asked paramedic Darcy Cummins about her care and the treatment for death cap mushroom poisoning...
209. During their conversation, Ms Cummins asked the accused how much of the lunch she had eaten. The accused responded that she had not eaten too much because she was busy talking with the other guests. The accused also said that her children had eaten a portion of the beef wellington the day before the transport, but that she had scraped off the mushrooms from around the beef because the children were fussy and did not like them (see Notice of Incriminating Conduct).
...
211. Simon collected [REDACTED] at around 12.30pm. Whilst Simon was collecting [REDACTED], he called Dandenong Hospital and was directed to the Monash Children's Hospital. The accused also confirmed that she was being transported to Monash Medical Centre by ambulance. Simon collected [REDACTED] and explained what was happening. He asked what they had eaten for dinner the night before, and they said steak, mashed potato and beans. [REDACTED] volunteered unprompted that they did not have the mushrooms that the adults had the day before as [REDACTED] does not like mushrooms. The prosecution alleges that it may be inferred that the accused told [REDACTED] this. (see Notice of Incriminating Conduct).
Events at Monash Medical Centre
217. Upon questioning by Professor Stuart, the accused denied picking or finding any other mushrooms or using any other mushrooms in the meal. She told Professor Stuart she ate half her meal, that her father-in-law had eaten his plus some of his wife's, and that there were leftovers from the lunch which she had fed her children on the Sunday but with the mushroom paste and pastry scraped off. (See Notice of Incriminating Conduct).
...
225. At 1.45pm, Child Protection workers Naomi Schroder and Katrina Cripps attended Monash Medical Centre to review the welfare of [REDACTED]...
...
228. The accused also told Ms Cripps and Ms Schroder that she had given her children some leftovers the next day but not the mushroom part, as she had scraped the mushrooms off the meat. (See Notice of Incriminating Conduct).
...
DEPARTMENT OF HEALTH INVESTIGATION
231. On the afternoon on 31 July 2023, toxicologist Dr McDermott made a notification to the Department of Health about this suspected poisoning event under the subcategory of Amatoxin. Dr McDermott spoke with SallyAnn Atkinson, the manager of the Investigation and Response team within the Communicable Disease Prevention and Control Sector of the Department. Dr McDermott relayed some details of the case, including the accused's account of sourcing the mushrooms from Woolworths and an Asian grocery store. The Department of Health commenced an investigation into the events surrounding the lunch.
...
First Conversation with the Accused
233. On Tuesday 1 August 2023 at 8.33am, about four and a half hours before the accused was discharged from Monash Medical Centre, Ms Atkinson called the accused on her mobile phone.
...
237. The accused also stated [to Ms Atkinson] that her children had not been present for the lunch, but had consumed leftovers on the Sunday night for dinner. She said she had scraped off the mushrooms and pastry as her children do not like mushrooms. (See Notice of Incriminating Conduct)
...
335. Also on 7 August 2023, the accused contacted a member of the Keli Lane Facebook group, Jenny Hay. She asked Ms Hay to call her, and she did. During their conversation on the phone, the accused stated variously:
...
c. Her two children had also eaten the meal but had not been unwell (see Notice of Incriminating Conduct).
Toxicological Analysis
Exhibit Specimens
349. Dr Dimitri Gerostamoulos, the chief toxicologist at the Victorian Institute of Forensic Medicine, was asked to analyse a number of evidentiary items seized during the investigation, as well as various biological samples taken from the lunch attendees and the Patterson children.
350. Following the DNA examination by Dr Lovelock, the leftover beef wellington and debris from the dehydrator were provided to the Victorian Institute of Forensic Medicine on 29 August 2023.
351 The leftover beef wellington was received in two ziplock biological hazard bags, each containing approximately two portions of food. These were separated into smaller samples comprising, variously, pastry, mushroom paste and meat. Toxicological analysis of the samples revealed that:
a. Beta-amanitin was detected in a mushroom paste sample taken from bag 2;
b. Beta-amanitin was detected in a meat sample taken from bag 2.
75. It is submitted that there is no evidence that this statement is a lie. The submissions advanced and evidence extracted above in response to item (b) (cooking one batch of mushroom paste) and (j) (feigning illness) are re-adopted here.
76. Further, it is noted that if a lie is not inconsistent with the Prosecution's account of the alleged crime, it is unlikely to be 'material'. It is submitted that even if the Accused had lied about this, the lie is not a 'proven lie of a material nature' that would be capable of founding an inference that it is an implied admission to having deliberately poisoned the lunch guests with murderous intent.[25]
(i) ON 2 AUGUST 2023, THE ACCUSED DISPOSED OF THE DEHYDRATOR AT THE LOCAL TIP
(i) That on 2 August 2023, at 11:34am, the accused attended the Koonwarra Transfer Station and Landfill and disposed of a large black box at the e-waste bin. This was later determined to be a black Sunbeam Foodlab DT6000 Electronic Dehydrator, which it is alleged the accused purchased on 29 April 2023.
(j) ON 3 AUGUST 2023, THE ACCUSED LIED THAT SHE HAD COOKED ONE BATCH OF MUSHROOMS
(j) That on 3 August 2023, the accused lied to SallyAnn Atkinson when she told her that she had only cooked one batch of mushrooms.
190. At 10.04am [on 31.7.23], Dr Webster received a phone call from Senior Constable Adrian Martinez-Villalobos of the Mirboo North police. He and Leading Senior Constable Kate Mulry had arrived at 84 Gibson Street [Leongatha, D's home,] to find the gate closed and no vehicles present. Senior Constable Martinez-Villalobos informed Dr Webster that they were at the accused's address but the accused was not there. Dr Webster informed them that the accused had returned to [Leongatha] hospital. He asked Senior Constable Martinez-Vallalobos if it would be possible to obtain any leftover beef wellington so that it could be sent for toxicological analysis. The officer replied that they could probably find a way inside the accused's house if the accused gave permission. Dr Webster walked to the plaster room and spoke to the accused. She gave permission for the leftover food to be recovered, and said there were some scrapings from the leftovers in the bin in a Woolies bag as her kids don't eat mushrooms.
191. A few minutes later, Senior Constable Martinez-Villalobos called the ward and was put through to speak to the accused directly. The accused provided the gate code for the front of the property and said the leftovers could be found in a brown Woolworths paper bag either in the red lidded bin which was located outside the house, or at another location inside the house. Senior Constable Martinez-Villalobos walked to the outside bin, put some gloves on and checked inside. The bin had approximately three bags piled on top of each other. The leftovers, which looked like a meat filled pastry, were in the bottom of the bottom bag. Senior Constable Martinez-Villalobos removed the other rubbish from that bag. He emptied the cleanest of the remaining three bags into the bin, then double-wrapped the bag containing leftovers with that bag. The officers left 84 Gibson Street with the leftovers and took them to Leongatha Hospital.
...
248. On Wednesday 3 August 2023 at 11.20am, Ms Atkinson spoke with the accused on the phone again. The accused gave an account of cooking the beef wellington. She said the Woolworths mushrooms had been processed into smaller pieces, whereas the dried mushrooms had been rehydrated and then chopped by hand. Both types of mushrooms were cooked down into a type of paste, all of which was used to cover the tenderloin steaks, with none left over.
249. Ms Atkinson confirmed that only one batch of mushroom paste had been produced, and the accused was adamant that she had only cooked one (see Notice of Incriminating Conduct).
...
300. The accused had ...purchased a Sunbeam Food Lab Electronic Dehydrator, model DT6000, from Hartley Wells Betta Home Living in Leongatha at 12.17pm on 28 April 2023.
...
326. On Wednesday 2 August 2023, the day after the accused was discharged from hospital,...she drove her red 4WD bearing registration 1XZ4OZ to the Koonwarra Transfer Station and Landfill for a second time, at 11.34pm. The accused dropped off a large black box at the e-waste bin. She made a payment of $13.50 to the Koonwarra Transfer Station at 11.29am on this date. The Koonwarra Transfer Station registration records indicate that vehicle 1XZ4OZ deposited items at 11.34am, under the categories 'bag ( >
328. On 4 August 2023, police made contact with the Koonwarra Transfer Station. Employee Jean Meunier was sent to check the e-waste bin. The only item inside the bin which matched the description of the large black box which had been deposited two days earlier was a black Sunbeam dehydrator with six trays inside, which police subsequently photographed and collected. The dehydrator was examined by forensic officer Ben Goodwin. Mr Goodwin collected various samples of possible vegetative matter/debris from inside the dehydrator, which were placed into a sealed bag, and then conveyed to AgriBio for forensic examination. (See Notice of Incriminating Conduct)....
345. The black Sunbeam dehydrator seized from Koonwarra Transfer Station was examined for fingerprints by senior fingerprints specialist Sonia Geremia. Latent fingerprint impressions were lifted from the rear of the dehydrator, and later compared to fingerprints taken from the accused. Ms Geremia compared the impressions and concluded that the fingerprints lifted from the dehydrator matched the left index, middle and ring fingers of the accused.
Plant Pathology (DNA)
346. Dr David Lovelock, a virology and bacteriology diagnostician with Agriculture Victoria Research, was asked to analyse a number of evidentiary items seized during the police investigation. These included:
a. The leftover beef wellington taken from the accused's bin; and
b. The vegetable matter/debris taken from the black Sunbeam dehydrator seized from the Koonwarra Transfer Station.
347. These items were provided to Dr Lovelock for the purpose of identifying any species of mushroom that may be present. Mushroom species identification was undertaken by extracting and analysing DNA from the various samples. That DNA was analysed using barcoding and metabarcoding sequencing techniques and/or mushroom species-specific endpoint polymerase chain reaction (PCR) and real-time PCR (qPCR) assays.528 Control samples of mushrooms, including the species amanita phalloides, were provided by the National Herbarium of Victoria for the purpose of comparison with the evidentiary items.
348. DNA was extracted from a number of the samples, as well as the control samples. Specific PCR and qPCR testing revealed that two samples taken from the Sunbeam dehydrator tested positive for amanita phalloides. Barcode sequencing and genome sequencing of the items also indicated the presence of amanita phalloides in the same two samples, as well as the presence of agaricus bisporus (white button mushrooms). The remaining samples tested negative for amanita phalloides.
Toxicological Analysis
349. Dr Dimitri Gerostamoulos, the chief toxicologist at the Victorian Institute of Forensic Medicine, was asked to analyse a number of evidentiary items seized during the investigation...
350. Following the DNA examination by Dr Lovelock, the leftover beef wellington and debris from the dehydrator were provided to the Victorian Institute of Forensic Medicine on 29 August 2023.
351. The leftover beef wellington was received in two ziplock biological hazard bags, each containing approximately two portions of food. These were separated into smaller samples comprising, variously, pastry, mushroom paste and meat. Toxicological analysis of the samples revealed that:
a. Beta-amanitin was detected in a mushroom paste sample taken from bag 2;
b. Beta-amanitin was detected in a meat sample taken from bag 2.
352. Toxicological analysis of debris taken from the Sunbeam dehydrator revealed that both Alpha-amanitin and Beta-amanitin were detected in four of the seven items. The four items included the two samples that returned positive DNA results for amanita phalloides, as well as two that did not.
Q. So self-evidently then even though there was no detection of either of those compounds in say for instance the mushroom paste which is the is not evidence that it's not there, it's simply that it doesn't reach the reporting threshold?
A. Yes it's not present in that particular sub-sample that was analysed in this instance but it is present in other sub-samples so for example Z16.
Q. Can I just take issue with the use of the word present, it's not detected?
A. Not detected, yes. Presence (sic) because it's not detected - - -
Q. Because it might be present?
A. That's correct.
Q. But it doesn't reach the threshold for detection?
A. I would agree with that, yes.
(k) ON 5 AUGUST 2023, THE ACCUSED DID NOT PROVIDE HER USUAL PHONE (PHONE A) TO POLICE
(k) On 5 August 2023, the accused did not provide her usual phone (Phone A) to police;
(l) On 5 August 2023, the accused provided an alternative phone (Phone B) to police;
(m) On 5 August 2023, the accused lied to police that her mobile number was 0480 535 835;
(q) Between 2 August 2023 & 6 August 2023, the accused reset Phone B multiple times.
(k) That on 5 August 2023, upon being requested by police to surrender her mobile phone pursuant to a lawful search warrant, the accused did not provide police with, or inform police of the existence of her "usual" mobile phone, which from 12 February 2023 up to and beyond 5 August 2023, was a Samsung Galaxy phone IMEI: 35322082402137 [Phone A], which had a SIM card inserted which utilised the mobile phone number 0468 331 783 ('SIM Card A').
(l) That on 5 August 2023, upon being requested by police to surrender her mobile phone pursuant to a lawful search warrant, the accused provided an alternative mobile phone, a black Samsung Galaxy phone IMEI: 354491512082762 [Phone B] ...
(m) That on 5 August 2023, the accused lied to police when she told them that her phone number was 0480 535 835.
...
(q) That between 2 August 2023 and 6 August 2023 the accused conducted three factory resets on the black Samsung Galaxy phone IMEI: 354491512082762 ('[Phone B]'), both before and after she provided it to police pursuant to a lawful search warrant, namely:
○ On 2 August 2023, at 11:09am, the accused conducted a factory reset on [Phone B].
○ On 5 August 2023, at 1:20pm, the accused conducted a second factory reset on [Phone B] (whilst police were executing a search warrant at her home address in Leongatha, during which the accused was permitted to retain the phone to call her lawyer and make childcare arrangements).
○ On 6 August 2023, at 5:16am, after it had been seized by police, the accused conducted a third remote factory reset on [Phone B].
326. On Wednesday 2 August 2023, the day after the accused was discharged from hospital, she conducted a factory reset on ...'PHONE B' (which she had been using prior to 12 February 2023) at 11.09am.
329. On 5 August 2023 at 11.40am, police executed a search warrant at the accused's home address of 84 Gibson Street, Leongatha. During the search, a number of items were seized, including various electronic devices. Of particular note, police seized: ...
...
g. A black Samsung mobile phone from the wardrobe in the second bedroom on the upper floor (exhibit 71), which was later found to contain messages between the accused and various other people (described above);
...
i. A black Samsung mobile phone being used by the accused at the dining table on the ground floor (exhibit 75). Prior to being seized by police, the accused was permitted to retain and use her mobile phone to seek legal advice and make childcare arrangements. When police seized the phone from her, they asked if it required a passcode for access. The accused responded it did and provided the code, however upon attempting to access the device, investigators found it did not require a passcode.
330. The accused's phone records reveal that during the execution of the search warrant at her home, the accused was still utilising her SIM for number ending 783 in 'PHONE A' (IMEI 35322082402137). This is the phone and phone number the accused had been using since 12 February 2023 and throughout the period immediately preceding and during the lunch. This phone and sim card have never been recovered by investigators. (See Notice of Incriminating Conduct)
331. Unbeknownst to police, the mobile phone which the accused eventually provided to police during the execution of the search warrant was 'PHONE B', connected to the SIM for number ending 835, which the accused had set up on 3 August 2023. During the execution of the search warrant and prior to handing it over to police, the accused conducted another factory reset of 'PHONE B'. (See Notice of Incriminating Conduct)
332. On 5 August 2023, the accused was conveyed to Wonthaggi Police Station where she participated in a recorded police interview. During the interview, she told police: Her phone number was 0480535835 (see Notice of Incriminating Conduct) and her email address was esh301430@gmail.com (Q/A 29-32)
...
333. On 6 August 2023 at 5.16am, the accused conducted a third factory reset of 'PHONE B', this time carried out remotely as the handset had been seized by police (see Notice of Incriminating Conduct). From 6 August 2023, the accused's phone records reveal that the SIM for number ending 783 was utilised in a different handset, namely a Nokia handset (IMEI 35422410202489). The accused continued to use the SIM for number ending 783 in the Nokia in the days that followed. (See Notice of Incriminating Evidence).
...
336. On 2 November 2023 at 8.00am, police executed a further search warrant at the accused's home address of 84 Gibson Street, Leongatha. Various items were seized, including:
...
b. An empty Samsung mobile phone box (exhibit 129), which belonged to ... 'PHONE A'. The phone itself was not located (see Notice of Incriminating Conduct);
Erin advised that [REDACTED] had returned home from school upset as the year level co-ordinator had spoken with after Simon had called the school and asked what was going on about the concerning regarding the poisoning and that the children were not safe with their mum. [REDACTED] has also talked about when Simon collected the kids from school on Monday that he was supposed to collect them from reception but went to the year 9 centre to get [REDACTED] and was talking really loudly in the classroom about how everyone was sick and in hospital and [REDACTED] needed to go with home.
Erin stated that this isn't the first time that Simon had called the school being difficult and that in June/July this year he was calling reception and giving them a hard time and she was worried that this would impact the children's enrolment.
Erin appeared to be quite rattled on the phone and advised that was worried about how Simon was acting and she was not feeling safe. She spoke about seeing a legal rep on Monday to discuss a Intervention order and family court orders. Erin also advised that she was planning to upgrade there (sic) security at home with cameras, change the locks and her phone number as "Simons behaviour has rattled me". Erin stated that she feels that she needs to take these measures to feel safe in her own home. Erin also discussed [REDACTED] feeling unsafe as well with regard to Simon and had asked her if Simon could just turn up and take him.
I asked Erin if she had heard any updates regarding how people were and she stated that she hadn't heard anything and she was finding this distressing. Erin stated that she does not feel comfortable to ring Simon, nor does she feel comfortable to ring the family given the allegations Simon has being saying. *** Please note I did not advised Erin of the Paternal Aunts death as it was Friday afternoon, she has no support network and I did not feel that this was my place to advise her due to the possible police investigation**
I provided Erin with the CP AHS number and advised that should she be worried about the children's safety over the weekend that she should call this number. I also advised her that we would follow up with the school on Monday as well and speak with the principal. (underlining added)
Q. 28 Are you of Aboriginal or Torres Strait Islander descent?
A. No.
Q. 29 O.K. Well, what's your mobile number, Erin?
A. 0480 535 835.
Q. 30 Do you have an email address?
12 June [2021][28] - 14 January 2023:
SIM card utilised in Samsung Galaxy (IMEI ending in 113492) - mobile phone seized by police (see Exhibit 264, Deps 19691)[29]
Usual phone and usual SIM used together to exchange hundreds of phone calls and over 1,000 text messages between 12 February 2023 and 5 August 2023
Alternative phone and alternative SIM used together to make 3 phone calls in total (all around 2.00pm on 5 August 2023, when accused given privacy to contact lawyer)
(l) ON 5 AUGUST 2023, THE ACCUSED PROVIDED POLICE HER ALTERNATIVE MOBILE PHONE (PHONE B)
(l) That on 5 August 2023, upon being requested by police to surrender her mobile phone pursuant to a lawful search warrant, the accused provided an 'alternative' mobile phone, a black Samsung Galaxy phone IMEI: 354491512082762 ('Alternative Phone') which:
○ On 2 August 2023, at 11:09am, the accused conducted a factory reset on.
○ On 3 August 2023, the accused inserted a SIM card into, which utilised the mobile phone number 0480 535 835 ('Alternative SIM Card'), which was not the accused's usual phone number prior to that date.
○ On 5 August 2023, at 1:20pm, the accused conducted a second factory reset on (whilst police were executing a search warrant at her home address in Leongatha, during which the accused was permitted to retain the phone to call her lawyer and make childcare arrangements).
○ On 5 August 2023, the accused falsely represented to police was her regular or usual mobile phone.
(m) ON 5 AUGUST 2023, THE ACCUSED LIED TO POLICE THAT HER MOBILE NUMBER WAS ...835
(m) That on 5 August 2023, the accused lied to police when she told them that her phone number was 0480 535 835.
(n) ON 5 AUGUST 2023, THE ACCUSED LIED TO POLICE THAT SHE NEVER FORAGED FOR MUSHROOMS
(n) That on 5 August 2023, the accused lied to police when she told them that she never foraged for mushrooms.
(o) ON 5 AUGUST 2023, THE ACCUSED LIED TO POLICE THAT SHE NEVER DEHYDRATED FOOD
(o) That on 5 August 2023, the accused lied to police when she told them that she had never dehydrated food.
(p) ON 5 AUGUST 2023, THE ACCUSED LIED THAT SHE DID NOT OWN A DEHYDRATOR ETC
(p) That on 5 August 2023, the accused lied to police when she told them initially that she did not own a dehydrator or 'know anything about a dehydrator in her house', and then, later, that she might have owned a dehydrator 'years ago'.
(q) BETWEEN 2 AUGUST 2023 & 6 AUGUST 2023, THE ACCUSED RESET PHONE B MULTIPLE TIMES
(q) That between 2 August 2023 and 6 August 2023 the accused conducted three factory resets on the black Samsung Galaxy phone IMEI: 354491512082762 ('[Phone B]'), both before and after she provided it to police pursuant to a lawful search warrant, namely:
○ On 2 August 2023, at 11:09am, the accused conducted a factory reset on Phone B.
○ On 5 August 2023, at 1:20pm, the accused conducted a second factory reset on [Phone B] (whilst police were executing a search warrant at her home address in Leongatha, during which the accused was permitted to retain the phone to call her lawyer and make childcare arrangements).
○ On 6 August 2023, at 5:16am, after it had been seized by police, the accused conducted a third remote factory reset on [Phone B].
[1] DPP v Lynn [2024] VSCA 62.
[2] As SPO [191] indicates, police attended the accused's home on 31 July 2023 whilst she was at Leongatha Hospital and with her permission searched her bins for the Beef Wellington leftovers.
[3] Prosecution Written Incriminating Conduct Submissions (PWICS) [11]; Prosecution's Oral Submissions (POS) Consolidated Pre-Trial Transcript (CTB), 1146-1448.
[4] Defence Written Incriminating Conduct Submissions (DWICS) [9-15]; Defence Oral Submissions (DOS), CTB 1490-1496.
[5] I note that there is no reference in the amended Summary of Prosecution Opening dated 25 February 2025 (SPO) to the accused telling Cindy Munro, a nurse at Leongatha Hospital who interacted with her on 31 July 2023, that she was unwell. Nor is there any such reference in Munro's statement (D324) but at [40] of that statement Munro says: 'Just before Erin was transferred out the paramedics gave her a chance to go to the toilet. But the paramedics told me that they hovered around the toilet door while she was in there and that they did not hear any flush or handwashing and that there was no smell after she had used the toilet.'
[6] Dr Jon Low is not mentioned in the SPO and there is no statement of his in the Depositions. There is a Notice of Additional Evidence dated 11 October 2024 which contains a statement by Dr Low dated 10 October 2024 in which he indicates that he was involved in the accused's treatment in Emergency at the Monash Medical Centre on 31 July 2023. He 'obtained a history from [D] who reported nausea and vomiting'. He 'examined the accused which indicated no abdominal tenderness'.
[9] Statement of Mairim Cespon, dated 25 October 2023, [27].
[11] PWICS [19-20]; POS (CTB:1466-1478, 1511-1512).
[12] DWICS [49-55]; DOS (CTB:1503-1505).
[13] Consolidated s 198 Hearings Transcript (CTA) 439 (XXN): CTA (530-532).
[14] PWICS [21-22]; POS (CTB:1478-1481).
[19] PWICS [27]; POS (CTB:1482-1484).
[21] PWICS [28]; POS (CTB:1484-1486, 1512-1514).
[22] DWICS [72]-[74]; DOS (CTB:1506-1507).
[23] Ms Spenser is a paramedic who was working with paramedic Darcy Cummins on 31 July 2023. Her statement appears at D269.
[24] PWICS [29]; POS (CTB:1486-1487, 1508).
[25] DWICS [75-76]; DOS (CTB:1506-1507).
[28] The prosecution's original table wrongly said 2020, not 2021.
[29] My understanding is that this is the same Samsung Galaxy mobile which is referred to in [329(g)] of the SPO.
[31] PWICS [14-18], [34-35]; POS (CTB:1451-1465, 1510-1511).
[32] R v Russo [2004] VSCA 206; (2004) 11 VR 1, [6].
[33] And consequently not capable of being considered a lie.
R
Patterson
(2004) 11 VR 1