Crown v Accused

(a) SPO [12] - THE ACCUSED'S INTEREST IN TRUE CRIME

1. The amended Summary of Prosecution Opening dated 24 February 2025 ('Summary of Prosecution Opening') states, relevantly (footnotes deleted):

12. From approximately 2019, the accused formed connections with a number of online associates who came to know her through their participation in a Keli Lane true crime Facebook group. Over time, some participants of the group formed closer connections and began separate Facebook groups with one another, with discussions extending to news, current affairs and their personal lives. The accused participated in these groups under the Facebook account names 'Erin Patterson', 'Erin Erin', and 'Erin Erin Erin'.[8]

1. The accused objected to evidence that the accused's online friends came to know the accused through their participation in a Keli Lane true crime Facebook group. The accused submitted that how they came to know her was irrelevant (ss 55, 56). Alternatively, the accused submitted that if the evidence was relevant, its probative value was outweighed by the danger of unfair prejudice (s 137).[9]

1. The prosecution submitted that the evidence is relevant as context evidence. It explains how the accused came to know witnesses Barkley, Hay and Hunt and form a close online friendship with them. The prosecution submitted there was no danger of unfair prejudice.[10]

1. I consider that the impugned evidence is relevant for context. The accused is alleged to have made certain admissions in late 2022[11] to her online friends regarding her animus towards Simon Patterson, Don Patterson and Gail Patterson,[12] all of whom were invitees to the fateful lunch. Understanding how the accused's relationship with Barkley, Hay and Hunt began and developed will assist the jury in assessing the reliability of those admissions.
2. The accused did not indicate the precise nature of the alleged unfair prejudice, but the fact that the primary Facebook group was a true crime group does not in my view create any danger of unfair prejudice. It will be readily appreciated by the jury that many, many people have an interest or even a fascination with true crime; that does not mean they are more likely to commit crime. If requested, a direction can be given to the jury to emphasise the point.

(b) SPO [26] - THE ACCUSED'S ATTITUDE TOWARDS SIMON PATTERSON

1. The Summary of Prosecution Opening states, relevantly (footnotes deleted):

26. The accused discussed issues she was having with Simon Patterson in the Keli Lane Facebook group chat, in which she painted him in an unfavourable light and expressed her unhappiness about issues such as the payment of child support. The accused described herself as an atheist in this group, and expressed frustration that Simon's religion was preventing them from getting a divorce.

1. The accused submitted that this evidence was irrelevant (ss 55, 56). The accused submitted that the assertions of Barkley and Hunt regarding the accused's criticisms of Simon Patterson are not borne out by the messages recovered by investigators and disclosed to the accused. The accused submitted that Barkley, Hunt and Hay are hostile towards the accused. Barkley admitted in her s 198B hearing that she was writing a book about, amongst other things, her association with the accused and had been communicating with at least one journalist about the proceedings. The accused submitted that these witnesses are vague about the timing and actual content of the accused's criticisms of Simon Patterson and that, in any event, the criticisms postdate Events 1, 2 and 3 which concern Simon Patterson. Relying on Moreno v R,[13] the accused submitted that the circumstances surrounding the evidence of witnesses Barkley, Hunt and Hay should inform the assessment of whether the evidence passes the test of relevance. At one point during oral submissions, the accused asserted that the quality of the evidence was so poor that it was comparable to the 'foggy night hypothetical' discussed by the High Court in IMM v R[14] but the accused subsequently withdrew that comparison.
2. Alternatively, the accused submitted that the probative value of the evidence was low and was outweighed by the danger of unfair prejudice (s 137). The accused submitted that there was a risk of the jury overvaluing the evidence given that there is no evidence of motive for the accused to murder Simon Patterson or her lunch guests.[15]

1. The prosecution submitted that the evidence is relevant as evidence of the nature of the relationship between the accused and Simon Patterson. It demonstrates that the accused harboured resentment towards Simon Patterson in the lead up to the fatal lunch to which Simon Patterson was invited. The prosecution hypothesised that the inability of investigators to recover messages consistent with Barclay and Hunt's assertion of the accused criticising Simon Patterson was due to the accused having removed the messages. The prosecution submitted that the impugned evidence - which is consistent with messages sent by the accused in December 2022 - rebuts evidence that the prosecution anticipates the accused will adduce from some of the prosecution's witnesses (including Simon Patterson) to the effect that the relationship between the accused and Simon Patterson was harmonious in the lead up to the fateful lunch.[16]

1. I consider that the accused's criticisms of the quality of the evidence of the accused's online friends goes to the weight, not the admissibility of the evidence. The evidence must be taken at its highest. The fact that messages have not been recovered to support the assertions of Barclay and Hunt is a matter going to the credibility and reliability of their evidence. IMM v R[17] indicates that, save in very limited circumstances, credibility and reliability are to be assumed when assessing relevance and probative value. This is not a scenario where no reasonable jury could accept their evidence. Nor is it akin to the foggy night hypothetical, as the accused ultimately conceded during oral submissions.
2. Although the accused's expressions of unhappiness with Simon Patterson postdate Events 1-‍3, they are relevant to Event 4 because Simon Patterson was an invitee to the lunch. Indeed, the evidence indicates that the accused was particularly adamant that Simon Patterson should attend the lunch. The accused's attitude towards Simon Patterson in the lead up to the lunch is consequently relevant.
3. As for the danger of unfair prejudice, the prosecution is not relying on the evidence of the accused's animosity towards Simon Patterson (and Don Patterson and Gail Patterson) as evidence of motive for the accused to kill them. As such, the danger of the jury overvaluing the evidence is minimal. If requested, directions highlighting that the prosecution only relies on the relationship evidence as rebuttal evidence (not as evidence of motive) can be given. Although the probative value of the evidence is modest, it is not outweighed by the danger of unfair prejudice.

(c) SPO [275] - THE ACCUSED'S POST REGARDING MUSHROOMS POISONING CAT

1. The Summary of Prosecution Opening states, relevantly (footnotes deleted):

275. On 5 May 2020, 18 months prior to Simon Patterson's first illness, the accused, utilising her Facebook username 'Erin Erin', posted a number of pictures of a mushroom to a webpage titled, 'Poisons Help; Emergency Identification For Mushrooms & Plants'. The accused posted a message alongside the photographs which read 'My cat chewed on this mushroom just now. He is having a vomit. Was in grassland near trees. I'm in Victoria Australia'. The photographs included in the post were later found on an SD card seized from the accused's home, timestamped 5 May 2020. The accused has never owned a cat.

1. The accused submitted that the evidence was irrelevant, noting that the mushrooms shown in the photographs are not death cap mushrooms. The accused submitted that the provenance of the photos is also uncertain. The accused submitted that if relevant, the probative value of the evidence was outweighed by the danger of unfair prejudice.[18]

1. The prosecution submitted that the evidence is relevant as it shows the accused's continuing interest in poisons. The prosecution submitted that the provenance of the photographs is not uncertain as the same images were found on an SD card seized from the accused's home.[19]

1. This post occurred 18 months prior to Event 1. In my view, even if the evidence of this post shows an interest in poisons, it is temporally remote. I note that in Ruling 1,[20] I excluded evidence regarding the accused downloading articles about poisons - see Summary of Prosecution Opening at [274] and [276] - because they were more than two years or one year prior to Event 1 and were thus temporally remote.[21]

(d) SPO [277], [282], [286], [288], [322-324] - CELL TOWER EVIDENCE REGARDING UNDISPUTED TRIPS BY THE ACCUSED

1. The Summary of Prosecution Opening states, relevantly (footnotes deleted):

277. Between 17 November 2021 and 18 November 2021, the dates on which the accused and Simon Patterson travelled to Wilsons Promontory prior to his first illness, the accused's mobile service data suggests she left the Korumburra area, travelling west of the Sandy Point Exchange, remaining there overnight.

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282. On 24 May 2022, the date on which the accused and Simon Patterson travelled to Howqua before Simon's second illness, the accused's mobile service data suggests she headed to the Victorian alpine area. On 26 May 2022, the phone service data indicates she was in and around Mansfield, before returning to Korumburra on 27 May 2022 and remaining in the Korumburra area during 28 May 2022.

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286. On 29 May 2022, the accused's mobile service data suggests she travelled to Casey Hospital, Berwick. This coincides with Simon Patterson's admission to Casey Hospital.

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288. On 6 September 2022, the date on which the accused and Simon Patterson travelled to Wilsons Promontory prior to his third illness, the accused's mobile service data suggests she travelled from Leongatha towards Wilsons Promontory before returning to Korumburra and Leongatha.

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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).

323. On 30 July 2023, the day after the lunch, the accused's mobile service left Leongatha at around 2.35pm, heading first to Tyabb at around 3.47pm, then returning to Leongatha at around 5.40pm consistent with the trip described by [Redacted]. The accused's phone records indicate she received a phone call from [Redacted] flight instructor at 3.48pm.

324. On 31 July 2023, two days after the lunch, the accused first presented to Leongatha Hospital shortly after 8.00am, before leaving at 8.10am. The accused's mobile service passed through the Outtrim area between 8.55am and 8.58am. There is a gap in records, before the service is back in Leongatha at 9.23am. This was during the period after the accused discharged herself from Leongatha Hospital at 8.10am, and before she re-presented to Leongatha Hospital at 9.48am. The service then departed Leongatha at 1.07pm, headed towards Pakenham, and then to Monash Medical Centre from 2.42pm onwards, remaining there until after 4.42pm the following day, consistent with her movement between hospitals.

1. The accused submitted that to adduce cell tower evidence in relation to the dates and times of undisputed trip would be a waste of time and should be excluded under s 135. The accused indicated that dates and times of travel can be led by agreement.[22]

1. The prosecution submitted that evidence bearing on a matter that is not in dispute is not thereby rendered irrelevant. The prosecution submitted that the cell tower evidence provides time certainty, which is especially relevant in relation to Event 2.[23]

1. In relation to [322] of the Summary of Prosecution Opening, I note that I ruled in Ruling 4[24] that evidence of the accused's disposal of items at the tip on 29 July 2023 is inadmissible as incriminating conduct.[25] Even if the cell tower evidence of this trip has some slight residual relevance, the evidence is excluded by s 137 because its probative value is outweighed by the danger that the jury will engage in impermissible incriminating conduct reasoning.
2. In relation to the other undisputed trips, if there is an agreement of facts between the prosecution and the accused pursuant to s 191 as to the dates and times of these trips,[26] it would be a waste of court time for the prosecution to lead cell tower evidence about those trips. Once that signed agreement of facts is filed, I will exclude the cell tower evidence under s 135(c).

(e) SPO [293]-[295] - THE ACCUSED'S ATTITUDE TOWARDS SIMON PATTERSON, DON PATTERSON AND GAIL PATTERSON

1. The Summary of Prosecution Opening states, relevantly (footnotes deleted):

Relationship between the accused and Simon

24. Following their separation in late 2015, the accused and Simon remained amicable, shared custody of their two children, spoke regularly, and even planned and took holidays together. Despite their separation in late 2015, Simon remained hopeful for some time that he and the accused would one day reunite. They continued to communicate with one another, and with other members of the Patterson family via the Signal messaging application.

25. In 2022, Simon first noticed a sustained change in his relationship with the accused. On one occasion, when Simon was dropping the children home at Gibson Street, the accused expressed concern to Simon over the fact that he had listed himself as separated on his tax return. Simon offered to amend his tax return, but the accused said instead that she would need to seek child support from him. Simon was accepting of this. However, their communication from that point started to decline. Issues arose concerning the payment of child support, including whether Simon should make additional payments outside of child support for expenses such as school fees. The accused expressed these concerns in a Signal group chat between herself, Simon, Donald and Gail. At the start of term 3 in 2023, the accused changed [Redacted], without consulting Simon beforehand.

26. The accused discussed issues she was having with Simon Patterson in the Keli Lane Facebook group chat, in which she painted him in an unfavourable light and expressed her unhappiness about issues such as the payment of child support. The accused described herself as an atheist in this group, and expressed frustration that Simon's religion was preventing them from getting a divorce.

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293. In December 2022, the accused was communicating with her online friends from the Keli Lane Facebook group using the ErinErinErin profile. She wrote about her relationship with Simon Patterson - she was critical of him and described her dislike for him. The accused wrote that Gail has been 'horrified' when she claimed child support from Simon, who she described as a 'deadbeat'. She complained that Donald and Gail would not intervene in the issues between her and Simon and had suggested she and Simon pray. She wrote, 'This family I swear to fucking god' and at one point described Donald and Gail as 'a lost cause'.

294. On 6 December 2022 at 10.44am, the accused posted the following message to the group:

'Don rang me last night to say that he thought there was a solution to all this if Simon and I get together and try to talk and pray together (two upwards looking face emojis) and then he also said Simon had indicated there was a solution to the financial issues if I withdraw the child support claim?! My head nearly exploded and I was like what?? And don goes oh sorry just ignore what I said I don't want to get involved. So anyway I sent a group message to them all last night saying how Simon is behaving is unconscionable and asking me to withdraw the child support claim is wrong and disadvantages me and his children and how dare he etc. Don messaged to say he and Gail don't want to get involved in the financial things but just hope we will pray for the kids (upwards looking face emoji) so I replied this morning saying I understand it's uncomfortable and awkward for them but I want to copy them into this stuff because Simon needs to be accountable for the decisions he is making that are hurting his children and I would hope they care about their grandchildren enough to care about what Simon is doing. That's when don said they tried to talk to him but he refused to talk about it so they're staying out of it but want us to pray together. I'm sick of this shit I want nothing to do with them. I thought his parents would want him to do the right thing but it seems their concern about not wanting to feel uncomfortable and not wanting to get involved in their sons personal matters are overriding that so fuck em.'

'His parents sent me a message yesterday afternoon and Simon sent me one last night but I've read neither and I don't think I will. I don't want to hear it. Simon's will just be horrible and be gaslighting and abusive and it will ruin my day and his parents message will be more weasal words about not geting involved so I think I'm going to just move on. I don't need anything from any of those people. Simons parents say they don't want to take sides but by their very actions they have. If their daughter came to them laying all the same complaints about her husband, that I did about Simon, they would never say to her "oh well we can't believe you until we hear Josh's side, right now it's your word against his". No they would just believe her. If their daughters husband just walked away and refused to support her kids they would have things to say to him. But by refusing to hold Simon to account they've made it clear his word means more than mine so that speaks volumes even if they claim they haven't taken sides. Theyve had Simon for tea every night for three months and never once picked up the phonw to me since the separation and asked if I'm ok and need help. So that tells me their choices. Simon wants to walk away from his responsibilities too, well that's his choice. Maybe it's easier if he's not involved in even paying their school fees, means I can choose their school all by myself and don't have to refer to him. If he wants them to go to a private Christian school then he can help pay for it, if he doesn't want to help pay for it then I don't have to send them there, do I? So maybe it just means I have even more freedom about my choices, a blessing in disguise' (sic).

1. During the s 198B hearings, a number of witnesses including Matthew Patterson and Anna Terrington, Simon Patterson's brother and sister, were cross examined about the positive relationships the accused had with Simon Patterson, Don Patterson and Gail Patterson.
2. At his s 198B hearing, Matthew Patterson was asked the following questions and gave the following answers in cross examination:

Q. After they'd separated, it appeared to you that Simon and Erin had an amicable relationship?

A. That's correct.

Q. Erin continued to be involved with and to attend the family events and functions?

A. Generally yes.

Q. And at those gatherings, after they'd separated, you always observed them to be respectful and amicable to each other?

A. That's correct.

Q. Now, [Redacted], Erin's children, were very close to their grandparents?

A. Yes they were.

Q. Don was tutoring [Redacted]?

A. I'm not sure of that.

Q. But you observed Erin to be a devoted mother to [Redacted]?

A. Yes.

Q. Erin was connected to and had a positive relationship with your parents?

A. I believe so, yes.

Q. And that continued even after her separation from Simon?

A. That's my understanding.

Q. In your opinion, Erin respected your parents?

A. Yes, I believe so.

Q. And was part of their daily or weekly lives?

A. I couldn't comment on the timeframe, but regularly enough.

Q. And you noted that your father and Erin had a special connection?

A. Ah well, a - a - a common ground, I would call it.

Q. And how would you describe that common ground?

A. They both were fairly academic and that meant that they um I think enjoyed the conversations at an academic level.

Q. So they found each other's - or having conversations with each other interesting and stimulating?

A. I believe so, yeah.[27]

1. At her s 198B hearing, Simon Patterson's sister, Anna Terrington, was asked the following questions and gave the following answers in cross examination:

Q. So Erin and Simon have been separated now for a number of years?

A. Yes.

Q But after the separation Erin continued to be involved with and attend family events. Is that right?

A. Yes.

Q. The family communicated together on an application called Signal?

A. Yes.

Q. And you were part of that family chat and so was Erin?

A. Yes.

Q. And that continued even after the separation with Simon?

A. Yes.

Q. Erin and your parents to your observation maintained a good relationship after the separation?

A. Yes.

Q And your parents were very supportive of Erin?

A. Yes.

Q. There was to your observation no animosity between them at all?

A. No.[28]

The accused's police interview of 5 August 2023

1. In her recorded police interview of 5 August 2023, the following passage appears:

Q 163. - - - You've described to me - and it's kinda come across at the start of this interview - it sounds like a frosty relationship with your ex-partner Simon, all right. I'd like to understand why you had his parents and his uncle and auntie over for lunch on the 29th of July.

A. Because I've got no other family so they're the only support I've got - - -

Q 164. O.K.

A. - - - left and they've always been really good to me - - -

Q 165. Yeah.

A. - - - and I want to maintain those relationships with them - - -

Q 166. Yeah.

A. - - - in spite of what's happened with Simon.

Q 167. Yep, O.K.

A. I love them a lot.

Q 168. Yeah.

A. They've always been really good to me, and they always said to me that they would support me with love and emotional support even though Simon and I were separated and I really appreciated that - - -

Q 169. Yeah, O.K.

A. - - - 'cause my parents are both gone.

Q 170. Yeah.

A. My sister's estranged. My grandparents are all gone. They're the only family that I've got.

Q 171. Yeah.

A. And they're the only grandparents that my children have and I want them to stay in my kids' life.

Q 172. Yep.

A. And that's really important to me. And I think Simon hated that I still had a relationship with his parents but I - I love them.

Q 173. Yeah.

A. Nothing that's ever happened between us - nothing he's ever done to me will change the fact that they're good decent people that have never done anything wrong by me ever.

1. The accused submitted the impugned evidence should be excluded under s 137.
2. The accused submitted that some of the disparaging remarks made by the accused about Simon Patterson, Don Patterson and Gail Patterson in the messages could inflame the jury. The accused submitted the messages could also mislead the jury as to the true nature of her relationship with Simon Patterson, Don Patterson and Gail Patterson. Moreover, the jury might treat the relationship evidence as evidence of motive, even though the prosecution does not rely on it in that way.[29]

1. The prosecution submitted the evidence is relevant as relationship and context evidence. It indicates the accused harboured resentment towards Simon Patterson, Don Patterson and Gail Patterson. It rebuts evidence that the prosecution anticipates the accused will adduce that the accused's relationships with Simon Patterson, Don Patterson and Gail Patterson were positive and, thus, she had a motive not to poison them.[30]

1. The impugned evidence seems to me to be of significant probative value with respect to Event 4,[31] to which Simon Patterson was also invited but failed to attend. It demonstrates considerable resentment on the accused's part towards Simon Patterson, Don Patterson and Gail Patterson at a time proximate to Event 4. As occurred in the s 198B hearings with, for example, Simon Patterson's brother Matthew and sister Anna, the accused will probably adduce evidence at trial from several of the prosecution's witnesses of the accused having positive relationships with Simon Patterson, Don Patterson and Gail Patterson: indeed, the accused emphasised her positive relationships with Don Patterson and Gail Patterson in her recorded police interview.[32] The impugned evidence is significant rebuttal evidence.
2. The prosecution will not be submitting to the jury that the accused's resentment towards Simon Patterson, Don Patterson and Gail Patterson amounts to a motive for her to murder them.[33] This minimises the risk of the jury overvaluing the evidence. If requested, I could give the jury directions reinforcing the point that the prosecution only relies on the relationship evidence for rebuttal purposes. Nor do I think the disparaging comments made by the accused about Simon Patterson, Don Patterson and Gail Patterson will inflame the jury. On the spectrum of inflammatory material, this falls at the very bottom end of the spectrum, if at all. The jury can be expected to abide the standard direction not to decide the case based on sympathy or prejudice. I am not persuaded that the danger of unfair prejudice outweighs the probative value of the evidence.

1. It is convenient to deal with [298] and [309] of the Summary of Prosecution Opening jointly. The Summary of Prosecution Opening states, relevantly (footnotes deleted):

283. On 28 May 2022 at 7.20pm, two days after Simon Patterson was discharged from Mansfield Hospital and before he was taken to Casey Hospital by ambulance, the accused, using a computer which was later seized from her home, utilised the online search engine Bing to search for the term 'inaturalist', before navigating to the iNaturalist webpage. At 7.22pm, the accused navigated to a webpage on the iNaturalist site featuring a world map with geographic locations of death cap mushroom sightings. At 7.23pm, the accused navigated to a webpage on the iNaturalist website featuring a purported sighting of death cap mushrooms in Bricker Reserve, Moorabbin on 18 May 2022 (10 days prior) posted by user 'ivan-theaged'. A record of this search and website access was preserved in the computer's data as various artifacts, namely: Windows Timeline Activity artifacts, Parsed Search Queries artifacts, Edge/Internet Explorer 10-11 Daily/Weekly History artifacts, Edge/Internet Explorer Main History artifacts, Potential Browser Activity artifacts, Chrome Web History artifacts, a Chrome Shortcut artifact, Chrome Favicons artifacts, Chrome Web Visit artifacts, Edge Chromium Web History artifacts, Edge Chromium Web Visits artifacts, IE InPrivate/Recovery URL artifacts, Chrome Cookies artifacts, Edge Chromium Cookie artifacts and Chrome Cache Records artifacts.

284. Simultaneously, at 7.23pm, the accused navigated to the website of the Korumburra Middle Pub via the Google search engine. She used the website to order a 'family pack' of food, to be delivered to the accused's address of 46 Shellcot Road Korumburra. The accused's phone number ending 783 and name were entered into the website using Chrome Autofill. The accused's purchase was confirmed by the Korumburra Middle Hotel, who provided a receipt in the name of Erin Patterson for the purchase of meals and a bottle of soft drink, utilising the hotel's online ordering provider, YourOrder.[34]

285. The accused's online activities on 28 May 2022, in navigating to the iNaturalist website and ordering food online from the Korumburra Middle Pub, were also captured as text documents from the AppCache data.

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298. On 18 April 2023, Christine McKenzie, a now-retired pharmacist and Senior Poisons Information Specialist at the Victorian Poisons Information Centre, observed death cap mushrooms under some oak trees during a walk with her husband and grandson in the regional township of Loch in eastern Victoria. She took a number of photographs and collected and disposed of every example that she could find. She did this as she knew how dangerous they were. Ms McKenzie had her daughter put up a post on the Loch community Facebook page warning people about the presence of the mushrooms, as she knew there would be more growing within a few days. She also posted four photographs of this sighting to the iNaturalist webpage under her username 'chrismck', which geo-tagged the discovery location. The images posted by Ms McKenzie have since been positively identified by mycologist Dr Tom May as death cap mushrooms.

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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. In the morning prior to this purchase, at around 9.00am, the accused's mobile service data suggests that she travelled to and remained in the Loch area before returning to Korumburra.

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302. [REDACTED]

303. [REDACTED]

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309. On 21 May 2023 at 2.50pm, Dr May, using his iNaturalist profile 'Funkey Tom' submitted an observation of death cap mushrooms along with a photograph and location of Neilsen Street, Outtrim, to the iNaturalist website. The location that he posted was within roughly 20 metres of the death cap mushroom sighting made by Dr May.

310. On 22 May 2023, the accused's mobile service data suggests that she travelled to and remained in the Loch area at around 10.00am before returning to Leongatha. Later that same day, the accused's mobile service data suggests that (having travelled to Loch between 9 and 10am) she travelled from Leongatha to the Outtrim area at around 11.00am, before returning to Leongatha.

1. The accused submitted it was speculation that the accused sighted the posts in question and therefore the impugned evidence was irrelevant.[35]

1. The prosecution submitted that the impugned evidence passes the test of relevance because it is part of the evidence of opportunity for the accused to have deliberately sourced death cap mushrooms locally.[36]

1. The impugned evidence of the iNaturalist posts summarised in [298] and [309] of the Summary of Prosecution Opening is not to be considered in isolation. In Ruling 1,[37] I noted that the evidence summarised at [283] to [285] of the Summary of Prosecution Opening was not objected to by the accused. In other words, there is admissible evidence from which a jury could infer that the accused was not only familiar with the iNaturalist website but knew how to utilise its worldwide map to find the locations of death cap mushrooms locally. [REDACTED] In Ruling 2,[38] I ruled that cell tower evidence of the accused possibly visiting Loch twice (28 April 2023 and 22 May 2023) and Outtrim once (22 May 2023) was admissible. The possible visit to Loch on 28 April 2023 - 10 days after McKenzie's post - was followed by the accused purchasing a Sunbeam food dehydrator on the same day. The possible visit to Outtrim on 22 May 2023 was a day after May's post on iNaturalist. It is not in dispute that on 29 July 2023, the accused served her lunch guests Beef Wellingtons that were laced with death cap mushrooms. When these pieces of evidence are considered in combination, they pass the test of relevance because, at the very least, they are evidence of opportunity for the accused to have deliberately sourced death cap mushrooms locally, rather than having inadvertently purchased them from an Asian grocery, as she claimed to investigators. I note that a thorough investigation by the Health Department found no support for that claim.

(g) SPO [327] - THE ACCUSED CHANGING SIM CARD FROM SAMSUNG TABLET TO PHONE B & NOT PUTTING OUT BINS ON 3 AUGUST 2023

1. The Summary of Prosecution Opening states, relevantly (footnotes deleted):

327. On Thursday 3 August 2023, the accused removed the SIM for number ending 835 from her Samsung tablet and placed it into 'PHONE B'. No rubbish bins were placed outside the accused's home in Gibson Street for collection that day.

1. The accused submitted the evidence is irrelevant or, in the alternative, excluded by s 137.[39]

1. The prosecution submitted that the evidence about the SIM card is relevant as part of the accused's alleged incriminating conduct in relation to her phones. The prosecution also submitted it is relevant to explain an absence of evidence, namely, the absence of evidence that the accused accessed posts on iNaturalist in April and May 2023 about sightings of death cap mushrooms in Loch and Outtrim. The prosecution submitted that the accused may have accessed those posts on the accused's usual phone - Phone A - which was never found by investigators.[40]

1. In relation to the SIM card, evidence of the accused setting up Phone B on 3 August 2023 is part of the course of conduct regarding the accused's phones which the prosecution relies on as incriminating conduct.[41] In Ruling 4, I ruled in relation to items (k), (l), (m) & (q) that the accused could rely on that course of conduct as incriminating conduct.[42] It follows that the evidence summarised in the first sentence of [327] of the Summary of Prosecution Opening is relevant and admissible.
2. In relation to the accused not putting out her rubbish bins, the prosecution relies on this omission as supporting the inference that the accused's visit to and disposal of unknown items at the tip on 29 July 2023 shortly after the fatal lunch was unnecessary (because she had plenty of space in her bins at home) and amounts to incriminating conduct. In Ruling 4,[43] I ruled that the visit to and disposal of unknown items at the tip on 29 July 23 was inadmissible as incriminating conduct. Accordingly, the fact that the accused failed to put out her bins on 3 August 2023 is irrelevant and inadmissible.

(h) SPO [334] - THE ACCUSED ASKING TANYA PATTERSON TO CARE FOR HER CHILDREN

1. The Summary of Prosecution Opening states, relevantly (footnotes deleted):

334. On Monday 7 August 2023, the accused contacted Tanya Patterson [wife of Matthew Patterson] via email about the involvement of Child Protection with [Redacted], asking her if the children could be placed with her on an interim basis.

1. The accused submitted the evidence summarised in [334] of the Summary of Prosecution Opening is irrelevant. The accused was asking Tanya Patterson for help on 7 August 2023 because of the prospect of protective services taking her children. The accused submitted this request is irrelevant to what happened on 31 July 2023 when the accused left Leongatha Hospital against medical advice. Alternatively, the accused submitted that the probative value of the evidence is outweighed by the danger of unfair prejudice.[44]

1. The prosecution submitted that this evidence is relevant to item (c) of the incriminating conduct relied on by the prosecution. On 31 July 2023, after the accused's first presentation at Leongatha Hospital, the accused ignored strong medical advice that she remain at the hospital, saying she had to leave to, amongst other things, sort out things for her children. The prosecution submitted that Tanya Patterson was someone who had looked after the accused's children before when the accused had gone away on trips with Simon Patterson.[45] The prosecution submitted that Tanya Patterson was someone the accused could have turned to on 31 July 2023 to sort out things for her children and that the accused's email to Tanya on 7 August 2023 confirms that.

1. In Ruling 4, I ruled that the prosecution could rely on evidence of the accused leaving Leongatha Hospital against medical advice as incriminating conduct.[46] This evidence is relevant to that alleged incriminating conduct. It supports the inference, which is open, that she did not have a good reason to leave Leongatha Hospital against medical advice on 31 July 2023 because she had people she could call upon to help with the children, including Tanya Patterson. I do not consider that there is any unfair prejudice associated with this evidence. None was identified by the accused.

(i) SPO [336c & d] - PHOTOGRAPHS OF MUSHROOMS MATCHING THOSE POSTED BY THE ACCUSED ON FACEBOOK IN MAY 2020

1. The Summary of Prosecution Opening states, relevantly (footnotes deleted):

275. On 5 May 2020, 18 months prior to Simon Patterson's first illness, the accused, utilising her Facebook username 'Erin Erin', posted a number of pictures of a mushroom to a webpage titled, 'Poisons Help; Emergency Identification For Mushrooms & Plants'. The accused posted a message alongside the photographs which read 'My cat chewed on this mushroom just now. He is having a vomit. Was in grassland near trees. I'm in Victoria Australia'. The photographs included in the post were later found on an SD card seized from the accused's home, timestamped 5 May 2020. The accused has never owned a cat.

...

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:

...

c. An SD card located in the study (exhibit 130), which was later found to contain numerous photographs of mushrooms taken in 2020, including photographs of mushrooms in the accused's house and photographs matching those posted to Facebook by the accused in May 2020;

d. A Samsung tablet located in the garage (exhibit 148), which was later found to contained images of mushrooms taken in 2020, as well as other material concerning poisons (described above).

1. The accused submitted that evidence that the accused had an interest in poisons is too vague to be relevant.[47]

1. The prosecution submitted that the photographs of the mushrooms, some of which are possibly mushrooms foraged in the wild, support the inference that the accused had a continuous state of mind, namely an interest in poisons.[48]

1. The photos were taken in 2020, some 2.5 to 3 years before the fatal lunch on 29 July 2023. As with the evidence summarised at [275] of the Summary of Prosecution Opening, I regard the evidence as temporally remote and consequently irrelevant.

[1] R v Patterson (Ruling 1) [2025] VSC 102R.

[2] R v Patterson (Ruling 2) [2025] VSC 103R.

[3] R v Patterson (Ruling 3) [2025] VSC 104R.

[4] R v Patterson (Ruling 4) [2025] VSC 105R.

[5] R v Patterson (Ruling 5 ) [2025] VSC 106R.

[6] R v Patterson (Ruling 6 ) [2025] VSC 108R.

1. [7] Following objection by the accused, the prosecution agreed not to adduce evidence of the following matters previously referred to in the amended Summary of Prosecution Opening dated 24 February 2025 (SPO): [12] - the accused owning lots of books on True Crime; [29] - the accused telling her Keli Lane True Crime Facebook Group that she and Simon Patterson were going away on a hiking trip notwithstanding she had swollen feet and ankles; [325] - Following the fatal lunch, the accused deactivating her "Erin Erin Erin" Facebook account; [327] - On 3 August 2023, the accused removed herself from all family and private chats on the Signal Application and rejoined the Keli Lane group chat under the profile 'UnDeuxTrois Croissant'.

[8] [12] of SPO previously began 'The accused harboured an interest in the true-crime genre. She owns a large collection of books on the subject and'. The accused objected to the reference to her owning a large collection of books on the subject of true crime. The prosecution agreed to delete this reference.

1. [9] Defence Written Admissibility Submissions dated 3 February 2025 (DWAS 1) [4]; Defence Oral Submissions (DOS), Consolidated Pre-Trial Transcript before Beale J in 2025 (CTB) 974-‍979.
2. [10] Prosecution Written Admissibility Submission (PWAS) [8]; Prosecution Oral Submissions (POS) (CTB:1032-‍1034).

[11] I note that the prosecution does not rely on these admissions as evidence of motive. Rather, the prosecution relies on the admissions to rebut evidence that the accused had a motive not to kill Simon Patterson, Don Patterson or Gail Patterson because she got on well with all of them.

[12] See the SPO at [26] & [293]-[295].

[13] Moreno v R [2023] VSCA 28.

[14] IMM v R [2016] HCA 14; (2016) 257 CLR 300.

1. [15] DWAS 1 [10]; DOS (CTB:979-987).
2. [16] PWAS [9]; POS (CTB:1034-1043).

[17] IMM v R [2016] HCA 14; (2016) 257 CLR 300.

1. [18] Defence Folder 2 (DF2); DWAS 1 [133 -138]; DOS (CTB:1022-1024).
2. [19] PWAS [65]; POS (CTB:1282-1283).

[20] R v Patterson (Ruling 1) [2025] VSC 102R.

[21] R v Patterson (Ruling 1) [2025] VSC 102R, [139].

1. [22] DWAS [61-68].
2. [23] PWAS [33].

[24] R v Patterson (Ruling 4) [2025] VSC 105R.

[25] R v Patterson (Ruling 4) [2025] VSC 105R, [12]-[16].

[26] I infer from the accused's written admissibility submissions that the accused is willing to enter into such an agreement.

1. [29] DWAS 1 [28-35]; DOS (CTB 989-994, 1080-1082).
2. [30] PWAS [11-13]; POS (CTB:1034-1043, 1047-1061, 1075-1080).

[31] In oral submissions, the prosecution conceded that the evidence of the accused's animus towards Simon Patterson, Don Patterson and Gail Patterson was only relevant to Event 4 as it postdated Events 1-‍3: see CTB 1041.

[32] Recorded police interview with the accused, 5 August 2023, Q & A 163-173 (D10968-10969).

[34] For the avoidance of doubt, I note that, as proof that the accused was the one who conducted the iNaturalist search in relation to death cap mushrooms, the prosecution relies on the computer records that show that, a few minutes later, the accused used the same computer to order food online from the Korumburra Middle Pub.

1. [35] DWAS 1, 139-142; DOS (CTB:1024).
2. [36] PWAS 66-67; POS (CTB:1071-1072).

[37] R v Patterson (Ruling 1) [2025] VSC 102R.

[38] R v Patterson (Ruling 2) [2025] VSC 103R.

[41] I note that [331] of the SPO refers to the accused setting up Phone B on 3 August 203.

[42] R v Patterson (Ruling 4) VSC 105R.

[43] R v Patterson (Ruling 4) VSC 105R.

[44] DWAS 1, [146]; DOS (CTB:1027-1029).

[46] R v Patterson (Ruling 4) VSC 105R, [24]-[33].

1. [47] DWAS1 [87-91]; DWAS 2 (Nil); DOS (Nil).
2. [48] PWAS [64], POS (CTB:1070, 1281-1282).