Bednar v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0054

THOMAS BEDNAR	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, McLEISH and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2024
DATE OF JUDGMENT:	13 August 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 180
JUDGMENT APPEALED FROM:	DPP v Bednar (Supreme Court of Victoria, Tinney J, 29 November 2022) (Conviction); [2023] VSC 67 (Sentence)

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CRIMINAL LAW – Appeal – Conviction – Murder – Where victim applicant’s mother –Where prosecution led evidence of representations made by applicant while involuntarily admitted to psychiatric ward – Where representations revealed deteriorating relationship between applicant and victim – Where judge gave jury ‘sanity’ direction – Whether evidence of representations admissible – Whether judge erred in giving sanity direction – Leave to appeal against conviction refused.

CRIMINAL LAW – Appeal – Conviction – Where clothing worn by killer found at applicant’s premises – Where applicant linked to crime scene by fingerprint and DNA evidence – Where alternate suspect nominated – Whether jury must have had a reasonable doubt – Open to jury to reject alternate suspect hypothesis – Whether judge should have given unreliable witness direction in respect of alternate suspect – Jury well placed to evaluate alternate suspect’s evidence.

CRIMINAL LAW – Appeal – Sentence – Where applicant previously diagnosed with bipolar affective disorder with differential diagnosis of schizoaffective disorder – Where prosecution case that offending motivated by delusional beliefs – Where defence conceded that limbs 1 to 4 of R v Verdins not engaged – Where judge acted on defence concession – Total effective sentence 29 years – Non-parole period 23 years – Whether mental impairment contributed to offending – Leave to appeal against sentence granted – Appeal against sentence allowed – Appellant resentenced – Total effective sentence 25 years – Non-parole period 20 years.

Criminal Procedure Act 2009, s 276(1)(a); Evidence Act 2008, ss 55, 137, 165(1), 191; Evidence Act 1995 (NSW) s 165(1); Jury Directions Act 2015, ss 14(1), 27, 31–2.

M v The Queen (1994) 181 CLR 487, Libke v The Queen (2007) 230 CLR 559, Vinaccia v The Queen (2022) 70 VR 36, Young v The Queen [2015] VSCA 265, R v Verdins (2007) 16 VR 269, applied; R v Fowler (2003) 151 A Crim R 166, Wade (a pseudonym) v The Queen [2019] VSCA 168, Romero v The Queen (2011) 32 VR 486, discussed.

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Counsel
Applicant:		In person
Respondent:		Ms M Mahady with Ms S Locke
Solicitors
Applicant:	In person
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
MCLEISH JA
T FORREST JA:

Introduction

On 15 May 2021, Judy Bednar was found dead on the floor of her bedroom at 19 Drinan Road, Chelsea. She was 78 years old. She died as a consequence of multiple blunt force injuries.
On 29 November 2022, following a trial by jury, the applicant — the deceased’s son — was found guilty of murdering the deceased. On 21 February 2023, Tinney J sentenced the applicant as follows:

Charge on Indictment	Offence	Max Penalty	Sentence
1	Murder, contrary to common law	Life	29 years
Total Effective Sentence:		29 years
Non-Parole Period:		23 years
Pre-sentence Detention Declared:		645 days

The applicant was represented at trial and on the plea. He initially decided to file applications for leave to appeal against both conviction and sentence and to represent himself in both applications. On 21 March 2023, he filed documents purporting to be notices of application for leave to appeal against conviction and sentence, but which were in substance written submissions. On 1 May 2023, he filed another document in the same form.
On 21 September 2023, the applicant obtained legal representation. On 9 November 2023, the applicant’s legal representatives filed notices of application for leave to appeal both conviction and sentence, and written cases.
The notice of application for leave to appeal against conviction contains the following two grounds:
1.A substantial miscarriage of justice was occasioned by the erroneous admission into evidence of the representations of the applicant while he was the subject of orders under the Mental Health Act 2014.
2.A substantial miscarriage of justice was occasioned by the trial judge giving a ‘sanity direction’ where:
a.there was no lawful basis for such a direction; and
b.the giving of the direction entailed a serious departure from the proscribed [sic] processes for trial; and
c.the giving of the direction erroneously precluded the jury from considering relevant evidence in finding that the third element (intention) of the charge of murder was satisfied.
The notice of application for leave to appeal against sentence contains the following proposed grounds:
1.That the judge erred in finding the objective gravity of the offending was increased by reason of the applicant’s campaign of intimidation and harassment.
2.That the judge erred in finding that the applicant’s mental illness had no real part to play in his offending.
3.That the sentence and non-parole period are manifestly excessive.
On 19 January 2024, the respondent filed written cases responding to those filed by the applicant’s legal representatives. On the same day, the applicant’s solicitor advised the Court that the applicant no longer wished for her to act for him. Accordingly, on 22 January 2024, the applicant’s solicitors filed a notice that they had ceased to act.
On 9 February 2024, the applicant filed a revised written case (which he had drafted himself) in his application for leave to appeal against conviction. In written correspondence received by the Court on 18 March 2024, the applicant confirmed that he intended to rely on all written documentation he had filed, or which had been filed on his behalf, including the written materials filed on 21 March 2023 and 1 May 2023.
On 21 March 2024, the respondent indicated that it did not intend to file written submissions in response to the applicant’s original filings.
On 6 May 2024, the applicant represented himself at the hearing of his applications for leave to appeal against conviction and sentence.
The net position is that the Court has received five written cases filed by or on behalf of the applicant, on all of which the applicant relies, and has heard extensive oral submissions made by the applicant himself. The applicant’s submissions, both written and oral, are prolix and often difficult to follow. From these submissions and the written material prepared by the applicant himself, we have distilled the following two further proposed grounds of appeal against conviction:
3.The verdict of the jury is unreasonable or cannot be supported having regard to the evidence.
4.The trial judge erred in ruling that he would not give an unreliable witness direction in respect of the witness Danny Cohen.
For the reasons that follow, we would refuse leave to appeal against conviction. However, we would grant leave to appeal against sentence, allow the appeal against sentence and resentence the applicant.

Background

The applicant, who was born on 3 March 1968, is the only child of the deceased.
For much of his life the applicant had a difficult relationship with his mother. His parents separated in 1974 and he remained with his mother, who was apparently estranged from his father. When he was 15, he went to live with a foster family in Caulfield North. The foster family had a son, Danny Cohen, who was three or four years old at the time.
Some years after the applicant left the foster home, he and Mr Cohen ran into each other and became friends. In 2017, they started a taxi business together, sharing the driving of a ‘depot’ taxi so that it was on the road all day and all night. However, their business relationship ended acrimoniously in about 2018. In around 2020, Mr Cohen formed a friendship with the deceased and became involved in helping her to deal with the applicant’s erratic behaviour, including helping to have him compulsorily admitted to hospital for psychiatric treatment on a number of occasions in the second half of 2020. As a result of a number of instances of harassment by the applicant, Mr Cohen also took steps to help the deceased improve her home security by installing a ‘Ring doorbell camera’ on the front door of her Drinan Road home. Mr Cohen could access the microphone and camera on the doorbell remotely. He was also named on the deceased’s medical ‘pendant’ alarm list in case of misadventure.
The applicant has a significant history of mental health issues going back many years. He was first admitted as an involuntary psychiatric patient in 1993, with further admissions in 1994, 1996 and 1998. He was diagnosed with bipolar affective disorder. However, between 2001 and 2018 or 2019, his mental health was relatively stable.
In July 2019, the applicant moved in to premises at Embankment Grove, Chelsea, a short distance from the deceased’s home. In mid‑2020, he began to send messages to friends and family, including the deceased, that they considered to be aggressive and paranoid. As a result, the deceased, in conjunction with Mr Cohen and others, made efforts to have the applicant assessed by a Crisis Assessment and Treatment Team (‘CAT Team’) and treated.
The applicant was subject to four involuntary admissions in the second half of 2020. During these admissions, the applicant made statements to treating nurses and doctors that were highly critical of his mother. Among other things, he alleged that his mother had provided false information to have him involuntarily admitted to hospital and that she had been vindictive throughout their relationship. The admissibility of these statements is the subject of the first ground of appeal.
The prosecution asserted that a specific motive to kill the deceased lay in the applicant’s resentment of his mother for her involvement in his involuntary admissions to hospital. The applicant had also threatened to sue Mr Cohen for his role in having him involuntarily admitted. He claimed that his success in trading in cryptocurrencies put him in a financial position to follow through with this threat.
The following facts were agreed by the parties in a Notice of Agreed Facts:
(1)On 14 June 2020, the deceased called 000 and requested a welfare check of the accused.
(2)Between 25 and 30 June 2020, the applicant was admitted to the in-patient mental health ward at Frankston Hospital (Peninsula Health). Admission documents from the first admission note a relapse of schizo-affective disorder. The applicant would be admitted again between 28 July and 4 August 2020, and 5 and 9 August 2020.
(3)On 26 August 2020, the deceased contacted clinicians to advise that she had concerns about the applicant’s fitness to drive. On 28 August 2020, a clinician made a notification to VicRoads with respect to the reports that the deceased had made about the applicant’s erratic driving.
(4)On 7 September 2020, the deceased sent an email to her local member of Parliament. She wrote:
I am desperate and need your help.
…
As, what I believe to be, an act of revenge/psychotic behaviour, [my son] reported me to VicRoads as being unfit to drive.
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My son has decided that I am his enemy and [am] trying to kill him.
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Until and unless he does something in public, that the police considers to be a ‘risk to himself or others’, nothing can and will be done to help him. I can only pray that he won’t get himself killed in the process and I worry about my safety as well.[1]
(5)On 2 November 2020, at approximately 4 am, the applicant attended the deceased’s house and emptied rubbish from a neighbour’s bin into her front yard.
(6)On 4 November 2020, at 8:49 pm, the applicant attended the deceased’s house and turned off her power. The deceased called 000 and reported him.
(7)On 5 November 2020, at 3:25 pm, the applicant attended the deceased’s house and kicked in a front window. The deceased called 000 and reported him, as did Mr Cohen.
(8)Between 5 and 19 November 2020, the applicant was admitted to the in-patient mental health ward at Frankston Hospital for the fourth time.
(9)On 15 November 2020, the applicant told treating health workers, ‘the only reason I am here is because I smashed my mum’s window and if you knew the shit she has put me through you would do the same, believe me’.
[1]Emphasis in original.
While this was unfolding, the deceased became increasingly concerned about her own safety. As we have said, Mr Cohen helped the deceased to install the Ring doorbell camera on her front door and in November 2020 the deceased had a CCTV system installed and all of the locks to her house changed. Mr Cohen would receive an alert on his phone when the doorbell was rung and could see and hear what was happening. He could also see what was captured by the CCTV system.
On 13 November 2020, a family meeting was convened by consultant psychiatrist Dhara Perera, attended by the applicant and the deceased. At the meeting, the applicant expressed his grievances against his mother. Although he repeatedly denied any thoughts of hurting himself or his mother, the applicant was reported to be angry towards his mother for telling lies about him and ‘setting him up’.
On 9 January 2021, the CCTV system at the deceased’s home captured the applicant jumping the fence into her front garden and turning off the mains water before jumping back over the fence.
At a review with his outpatient community mental health service case manager on 11 January 2021, the applicant complained that doctors and the mental health service were incompetent for failing to check the allegations made against him. He admitted he had broken his mother’s window, but claimed he was justified in doing so. He described his mother as deranged and accused her of having prevented him from having contact with his father. He also accused his mother of having set him up to be sexually assaulted by a gay friend of hers when he was 15.
On about 13 January 2021, the applicant sent a message to the deceased which read:
Your [sic] nothing more than a test tube to me I rejected your milk because your [sic] such a vindictive person even made my dog disappear at 5 and organised my Rape at 15 by gay friend of yours and then lied all those years and stripped me off [sic] all my family assets by playing dumbno [sic] wont rest til your [sic] in jail for your crimes and if die before that’s okay you don’t believe in god so I know we’re you will end up and you on her side you leech
On 4 February 2021, the applicant stated that the deceased and Mr Cohen had been ‘spreading lies’ about him.
On 17 February 2021, the applicant said of the deceased, ‘She’s no longer my mother’.
A discharge summary prepared by the Peninsula Health Community Mental Health Service dated 19 February 2021 stated:
Tommy consistently expressed frustration and anger towards the service due to his experience from June last year, including the death of one of his cats and losing his driving license [sic]. He’s also expressed anger that his mother and friends had been fabricating details that have negatively impacted him and led to what he believes were unnecessary hospital admissions and treatment.
In a letter to the Health Service on the same day, the deceased expressed her concerns for the applicant’s safety and for her own.
At trial, counsel for the respondent read to the jury statements made by staff at Frankston Hospital describing what the applicant had told them about his mother. They included the following:
(a)Dr Nathan Giavasoglou, a medical officer, recorded the applicant telling a psychiatrist, ‘My mother has already spoken to Dad and poisoned his mind, so I’ve now decided I am an orphan’. The applicant also said that he had performed a Kosher Jewish ritual and that his mother was no longer a part of his life. He asked why there was paperwork at the hospital indicating that she was his next of kin. When asked about threatening texts he had sent to his mother, he said, ‘Well, she’s lying’.
(b)Dr Dhara Perera, a senior medical officer, stated that the applicant told her that he had been in foster care since he was 15 because of issues with his mother. He expressed the belief that he had only been admitted due to misinformation given by his mother. He said he did not get along with his mother, that she had never been supportive, and that she hated him due to his resemblance to his father. He wanted to file a police complaint against her with the hope of her going to jail. He denied any intention of going near her home or confronting her.
Dr Perera also reported that at a meeting with the applicant and his mother, the applicant recounted stories from his youth in which his mother treated him poorly. He said that no-one would go to his mother’s funeral.
In March 2021, the deceased was hospitalised after a fall and needed a knee replacement. Upon discharge from hospital she stayed with her friends, Mr and Mrs Katz, for a number of weeks. She returned home to Drinan Road on 26 April 2021. While staying with Mr and Mrs Katz, the deceased told them several times that she feared for her life.
On the evening of Tuesday 4 May 2021, the applicant again turned up at the deceased’s house and rang the doorbell. The deceased opened the front door but left the wire security door closed. The applicant said to the deceased, ‘Hello Judy, I would love to know why you lied last year to say that I was crazy’. The deceased shut the front door and rang 000. The applicant walked away.
The last proven contact between the deceased and the outside world was at 1:06 am on Thursday, 13 May 2021, when she posted a comment on a group webpage.
The deceased owned a FitBit watch linked to a fitness tracking application on her phone. Data in the application indicated that at 2:40 am on 13 May 2021 she commenced a period of sleep. At 4:47 am, her sleep ended with a sharp burst of activity represented by an elevated heart rate for a short period of time. Shortly afterwards, the application stopped receiving data. It appears that the deceased died at about 4:47 am on 13 May 2021.
During the course of that day, a number of people visited the deceased’s home. When the gardener and window cleaner attended, there was no sign of the deceased. The gardener used a key stored in a key safe to enter the house after she had finished her work. She looked through the house, noticing it to be very cold, but did not find the deceased.
The deceased’s friend, Mrs Katz, tried to contact the deceased by text message and phone throughout 13 and 14 May 2021. All messages went unanswered. When the deceased failed to attend a dinner party at the Katzs’ home on the evening of 14 May 2021, Mrs Katz alerted Victoria Police. Police attended the house on the morning of Saturday, 15 May 2021. They entered through the front door with keys provided to them. There were no signs of damage or forced entry at the front door. Police found the back door closed but unlocked, and blood stains in a number of locations.
The body of the deceased was found lying on the floor of her bedroom between the bed and the built-in robe. There were blood stains on the sheets of her bed and the underside of her pillow. The FitBit watch was found between the bed and the dresser in the room with a broken strap.
A forensic pathologist, Dr Brian Beer, undertook a post‑mortem examination and found the deceased had sustained the following injuries, among others:
(a)two black eyes;
(b)bruising, lacerations and abrasions to the ear, nose and face;
(c)nasal fractures;
(d)moderate subgaleal scalp haemorrhage (that is, bleeding between the skull and bottom of the scalp);
(e)subarachnoid haemorrhage (a type of bleeding in the layers encasing the brain);
(f)acute bruising to the upper chest, torso, flanks, the right groin and upper thigh;
(g)extensive bilateral rib fractures (Dr Beer estimated that 18 ribs had been fractured); and
(h)moderate acute bruising to both arms.

Dr Beer opined that the cause of death was respiratory failure from extensive broken ribs. Lying face down on the floor with so many broken ribs decreased the deceased’s ability to breathe to the extent that she suffered respiratory failure.
An examination for fingerprints revealed the applicant’s left index fingerprint on the doorframe between the kitchen and the garage, and his left palm print on the glass top of the dresser next to the deceased’s bed.
CCTV footage of the front of the deceased’s house in the early morning of 13 May 2021 and the very early morning of 15 May 2021 captured, on the first occasion, a man leaving through the garage, and on the second occasion, a man entering the garage and then leaving through the garage about two hours later. On each occasion ingress and/or egress was effected by raising and lowering the garage roller door.
In the Notice of Agreed Facts, the parties agreed that the CCTV footage from 13 May 2021 captured the deceased’s killer exiting her home at 6:27 am. The deceased’s killer was wearing Merrell hiking boots, a headlamp and carrying a backpack.
The parties also agreed that on 15 May 2021, the deceased’s killer was captured on CCTV entering the deceased’s home at 4:36 am and leaving at 6:27 am.[2] This time he was wearing a dark-coloured jacket and New Balance brand shoes. When leaving, he was wearing black Rhino brand gloves, and carrying a garbage bag. He can be seen placing the garbage bag on the ground beside the garage door and going to the front porch of the house to move a parcel that had been delivered and was visible from the street.
[2]The CCTV captures the killer leaving at 6:02 am on 15 May 2021. This is not consistent with [65] of the Notice of Agreed Facts, which states that the killer is captured leaving at 6:27 am.
The applicant was arrested on 17 May 2021. Police seized a dark-coloured jacket from him. Police also seized Merrell brand hiking boots, a headlamp, a backpack and Rhino brand gloves from the applicant’s house.
In the Notice of Agreed Facts, the parties agreed upon the following facts in relation to those items:
(1)The Merrell brand hiking boots, headlamp and backpack seized from the applicant’s house were worn by the deceased’s killer when the killer exited the deceased’s house at 6:27 am on 13 May 2021, as captured in CCTV footage. Blood staining detected on the right Merrell brand hiking boot was subjected to DNA analysis. A single source DNA profile was obtained. It was 100 billion times more likely that the deceased was the source of the DNA than if she was not.
(2)The applicant was captured wearing the Merrell hiking boots on 5 November 2020 in the Ring doorbell camera footage when he kicked in the front window of the deceased’s house. He was captured wearing the same hiking boots and carrying the backpack on 5 May 2021 at the Chelsea and Frankston railway stations.
(3)Blood was found inside the backpack and subjected to DNA analysis. A mixed DNA profile of (at least) two contributors was obtained. It was 100 billion times more likely that the deceased and the applicant had contributed to the DNA sample than if they had not.
(4)The dark-coloured jacket seized from the applicant upon his arrest was the jacket worn by the deceased’s killer when the killer entered the deceased’s home at 4:36 am on 15 May 2021, as captured in CCTV footage.
(5)The black Rhino brand gloves seized from the applicant’s house were worn by the deceased’s killer when the killer exited the deceased’s house at 6:27 am on 15 May 2021, as captured in CCTV footage.
A mixed DNA profile of (at least) two contributors was obtained from a sample taken from the outer surface of the palm and fingers of the left glove. It was 100 billion times more likely that the deceased contributed to the samples than if she had not.
A mixed DNA profile of (at least) two contributors was obtained from a sample taken from the outer surface of the palm and fingers of the right glove. Again, it was 100 billion times more likely that the deceased contributed to the samples than if she had not.
In both cases, the applicant was a very likely contributor.
In addition, a piece of black plastic found under the deceased’s bed was sampled and subjected to DNA analysis. A mixed DNA profile of two contributors was obtained from the sample. It was 100 billion times more likely that the deceased had contributed to the DNA detected than if she had not. It was 17,000 times more likely that the applicant had contributed to DNA detected on the plastic than if he had not.
During the search of the applicant’s house police found a 2020 diary that contained the following entries (among others):
•24 June 2020: ‘Had not talked to mum trainer for over a week’ and ‘Mum lies’.
•27 June 2020: ‘Continually told staff I wanted nothing to do with the lying person who gave birth to me hated my Dad more than love me as a kid(?)’.
•27 August 2020: ‘False report by (mum?) hadn’t driven since beginning of July because I knew the [sic] would play this card’ and ‘No right to listen to her did not respect my wishes in cutting all ties with mum continually mentioned’.
Police also found an exercise book that contained the following notes:
I asked so many times not to talk to the lying bitch who bore me
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I deffernat [sic] not crazy or manic so you must be one evil bitch in this time
The applicant described his relationship with his mother in his self-published autobiography in 2013. Three extracts from the autobiography were put to the jury as part of the Notice of Agreed Facts, read to them at trial, and tendered as an exhibit:
The day of my birthday on March 3, the one present I wanted didn’t eventuate. I was hoping for a phone call from my father, it was a bitter blow to me. As a consequence of this, I was in a foul mood and took it out on my mother. She had to bear my unhappiness and foul mood. This action of abuse and blaming my mother for my pain continued for many years.
…
I decided to seek retribution from my mother for kicking me out of home, but I think it was more a call for help.
I went to my mum’s place and climbed up the first-story balcony by climbing on a bin. One of the neighbors who didn’t particularly like my mother saw what I was doing and helped me up. He also said good for me as I climbed on the balcony.
The balcony door was unlocked, and as I walked in, my mother got a huge fright to my presence. My mother tried to grab me, but I pushed her away.
…
Diane [Katz] was the only contact I had with my family since the intervention order that my mum wrongly put on me. I had missed my uncle Joe’s funeral since I wasn’t allowed to go because of the intervention order.
Diane still made me laugh and feel good. She desperately wanted me and my mum to patch things up, but the past few years of solitude made me think how selfish my mother was. She wrongly saw my diagnosis as her redemption for all of our arguments even when I was just a kid.
I believed that the problem laid more with my mother than me; she had infuriated me most of my life. I had a strong feeling just before I was kicked out of home, and I told Diane she was more of a trainer than a mother.
Eventually after Diane hounded me over the months, I agreed to meet my mum, but our relationship had always been strained. I know I could never live with her, for we are chalk and cheese and I need my space from her. Some people you just clash with, and you just have to learn to give space and bite your tongue. Something I am not very good at.
The applicant had no relevant prior criminal convictions. Before us, he maintained that while he was angry towards his mother, he had no history of violence and no intention of being violent towards her. He described himself as litigious not violent.
PART A:CONVICTION APPEAL
The defence case at trial was that the applicant was not responsible for his mother’s death, and that circumstantial evidence pointing towards his involvement was effectively manufactured by Danny Cohen.[3]
[3]We deal with this case concept more fully at [86]–[87] of the reasons.

Ground 1: admissibility of representations made in hospital

As discussed, between 25 June 2020 and February 2021, while in contact with the mental health system, the applicant made various statements about the deceased to hospital and community mental health staff. He described the deceased as vindictive and said she lied about him, and that lies told by the deceased and friends led to his admissions.
The applicant contends that a substantial miscarriage of justice was occasioned by the admission into evidence of the applicant’s representations while he was the subject of orders under the Mental Health Act 2014 (‘Mental Health Act’).

Submissions

The applicant submits that statements that he made about his mother immediately preceding and during his hospital admissions (the representations) were irrelevant and therefore inadmissible. The prosecution case at trial was that his involuntary admissions to hospital for mental health reasons were proper but that he was sane at the time of the offending. The applicant submits that representations made by a person in the applicant’s position while in hospital and unwell (as characterised by the prosecution at trial) are not probative of that person’s state of mind when they are well.
According to the applicant, even if the representations had some relevance, their probative value was outweighed by the danger of unfair prejudice to him.[4] First, there was the danger that the jury would misuse the representations to dismiss the defence case theory as the product of paranoid delusion. This prejudice was incapable of cure by direction and no specific direction to ameliorate the prejudice was sought or given. Any attempt to cure the prejudice would only have exacerbated it. Secondly, there was the danger that the jury would reason that the applicant was the sort of person who would kill his mother. While the judge gave directions in respect of this form of prejudice, they were ineffective to avoid unfair prejudice.

Consideration

[4]Citing Evidence Act, s 137.

The evidence of the things that the applicant said about his mother from his first involuntary hospitalisation in June 2020 up to and including his later contacts with community mental health services in early 2021 was clearly capable of rationally affecting the assessment of the probability of the existence of a fact in issue,[5] namely, whether the applicant was motivated to harm his mother. The evidence revealed the deteriorating relationship between the applicant and the deceased, and the level of anger and resentment the applicant felt towards her. In particular, it revealed the applicant’s belief that the deceased told lies in order to have him subjected to involuntary treatment under the Mental Health Act. That that belief, and the anger associated with it, continued up until the time the deceased was killed is apparent from evidence that, some nine days beforehand, the applicant went to the deceased’s house and confronted her about lying about his mental health. The representations were consistent in their nature and tone throughout the relevant period, whether the applicant was hospitalised or living in the community. They reinforced the evidence that the deceased feared that she would be harmed by the applicant.
[5]See ibid s 55.
The Crown case was that the attack on the deceased was born of extreme anger. As the trial judge found,[6] a jury denied information making the nature of the relationship between the applicant and his mother understandable would be unable to sensibly evaluate the prosecution contention that the relationship had sunk to such depths that the applicant had developed a motive to harm his mother, and that he acted on this animus to kill her.
[6]DPP v Bednar [2022] VSC 655, [108].
We agree with the trial judge. We consider the evidence of the representations to be highly probative of the applicant’s relationship with his mother and of whether (and if so, to what extent) he was motivated to harm her. It was an important part of the Crown case. Although there was other evidence of the applicant’s animus towards his mother — the five occasions on which he went to the deceased’s home to torment and frighten her — what he actually said about his mother to others, and what is recorded in text messages and diary and notebook entries about her, was important evidence going to motive.
We are not persuaded that the prejudice identified by the applicant outweighs the probative value of the evidence. As to the possible misuse of the evidence of the representations to dismiss the defence case theory as the product of paranoid delusion, it was common ground, and the jury was told, that the applicant was ‘sane’ at the time of the alleged offending. In any event, the jury was well able to objectively assess the alternative hypothesis that Mr Cohen was responsible for killing the deceased. It was able to look to the lengthy cross-examination of Mr Cohen directed to establishing this possibility and consider the contentions of defence counsel in this regard.
Nor are we persuaded that the fact that the representations were made in the course of undergoing compulsory psychiatric treatment would cause the jury to reason that the applicant was the sort of person who would kill his mother. The judge gave a specific direction that they were not to reason in this way. He did so twice.[7] There is no basis to suggest that the jury did not follow that direction.
[7]See below [64]–[65].
Ground 1 is not made out.

Ground 2: ‘sanity’ direction

The applicant submits that a substantial miscarriage of justice was occasioned by the trial judge giving a ‘sanity’ direction, as there was no lawful basis for such a direction, and giving the direction entailed a serious departure from the prescribed process.
The need for the so-called sanity direction arose most immediately as a result of Mr Cohen confirming in cross-examination that he had described the applicant as a ‘psychopath’ when speaking to the police. However, this was not the only reference the jury heard to the applicant’s psychiatric condition. As discussed, there was extensive evidence of what was said and done while he was receiving psychiatric treatment at Frankston Hospital.
Following a request by the prosecutor, early in the trial, the judge gave the following direction to the jury:
Now, members of the jury, no issue of mental impairment is raised by either side in this case. It’s important to understand that. It is not contended by either the prosecution or the defence, that the accused was suffering from any mental impairment at the time of the alleged crime in this case, to any extent, or in particular, such that he would have the defence of mental impairment available to him. That is a non-issue. A complete non-issue.
…
What use then are you to make of the material that has been or will be led suggesting that at one time or another the accused may have suffered from a psychiatric condition or conditions? What do you make of that? Well, insofar as the prosecution has led or will lead in future, and in fact it’s yet to be led by the Crown this evidence. But insofar as that evidence will be led, it is led or would be led as part of the background, relevant to the alleged murder of Mrs Bednar.
…
[T]he hospital admissions and the previous psychiatric history in the context of which those admissions in 2020 occurred is relevant or may be relevant to an understanding by you of the true nature of the relationship between the accused and his mother at the time of her death; and the question whether or not he is the person who killed her.
Insofar as the defence has led some evidence from Mr Cohen pointing to the possibility of the accused having suffered from a psychiatric condition or conditions or having been considered by Cohen to be delusional or a psychopath or crazy, this has been led simply in the course of cross-examining Mr Cohen as the defence have seen fit to do. It’s in no way asserted on behalf of the defence that the accused was mentally impaired at the time it is alleged he murdered his mother. So that is a non-issue in this case.
…
It’ll be important for you to keep this evidence in perspective. You must not decide the case on the basis of feelings of sympathy or prejudice because of what you know about the accused and his past psychiatric history. The evidence has been led by one side or another for the limited purpose that I have mentioned, and you must not use it for any other purpose when you come to deliberate. To use the vernacular, members of the jury, you must not in any way hold it against the accused that he may have suffered from any psychiatric illness or condition in the past. I’m sure you’d do no such thing, members of the jury, but I need to give the direction nonetheless. And in particular, I direct you that you must not reason that because the accused may have suffered from a psychiatric illness or condition in the recent or more ancient past, or that because people thought he may have done, that he’s therefore the sort of person likely to have committed the offence with which he is charged. To reason in that fashion would be unfair and contrary to law.
The judge repeated this direction in the charge. In the charge, the judge followed that direction by giving a further — separate — direction in relation to the use of ‘other misconduct evidence’.
In the judge’s charge, after confirming that neither side had raised the issue of mental impairment and that it was a ‘non issue’, the judge again directed as follows:
So what use are you to make of the material that is before you suggesting that at one time or another the accused may have suffered from a psychiatric condition or conditions? Well, insofar as the prosecution led any such evidence, it was led as part of the background relevant to the alleged murder of Mrs Bednar. It is the prosecution case, as you know, that the four involuntary admissions of the accused into a psychiatric ward in 2020 caused him to be very angry towards his mother, further worsening what had been a problematic relationship over some years. It is alleged that during and after the admissions the accused said things to a number of doctors and nurses showing his ill feeling towards his mother and the extent to which he blamed her for the admissions into hospital.
Much of that material is canvassed in the notice of agreed facts. On the prosecution case, the relationship further deteriorated in the months that followed that admission, with a number of actions of the accused showing the depths to which the relationship had sunk. And you have got those visits, unwanted visits, intrusions by the accused onto the property of his mother, for example, in that regard. It is alleged that as a result of the accused’s anger and animosity towards his mother there arose in Mr Bednar a motive to kill her. And on the prosecution case the existence of such a motive would be relevant to the question whether the prosecution is able to prove beyond reasonable doubt that Mr Bednar is the person who killed Judy Bednar. In that way the hospital admissions and the previous psychiatric history in the context of which those admissions occurred is relevant to an understanding of that relationship between the accused and his mother at the time of her death and the question whether or not he is the person who killed her.
Insofar as the defence has led some evidence from Mr Cohen, pointing to the possibility of the accused having suffered from a psychiatric condition or conditions or having been considered by Mr Cohen to be delusional or a psychopath or crazy or whatever, this has been led simply in the course of [defence counsel] cross-examining Mr Cohen as he saw fit to do.
As for the playing by [defence counsel] through the informant of the post-arrest conversation between the police and the accused, it was there principally, as I perceive it, to show you the repeated denials made by the accused of involvement in the crime and the repeated assertions or claims he made of having been set up. That material was not led in any way to suggest that the accused was mentally unwell or suffering from any psychiatric condition at the time of those conversations or indeed in the days preceding it.
So it is in no way asserted on behalf of the defence that the accused was mentally impaired at the time it is alleged he murdered his mother. That is a non-issue. So it is important to understand the use that can properly be made of any of this evidence touching on the psychiatric condition of the accused and what you must not do with it. The prosecution relies on this overall evidence in the way I spelt out to you just a short while ago. And as for the defence, the material has been elicited as part of the process of the cross-examining of witnesses and putting before you the statements made by the accused to the police in the aftermath of his arrest.
So it is important for you to keep any of this evidence in perspective. You must not decide the case on the basis of feelings of sympathy or prejudice because of what you know about the accused and his past history. The evidence has been led by either the Crown or the defence, depending on what evidence it was, for the limited purposes I have summarised. And you must not use the evidence for any other purpose. To use the vernacular, you must not in any way hold it against the accused that he may have suffered from any psychiatric illness or condition in the past. I am sure that you would do no such things, members of the jury, but I need to give you the direction, nonetheless. You cannot in any way hold it against him. In particular I direct you that you must not reason that because the accused may have suffered from a psychiatric illness or condition in the recent or more ancient past, or that because people thought that he may have done, that he is therefore the sort of person likely to have committed the offence with which he is charged, the offence of murder. To reason in that fashion would be unfair and contrary to law.
Turning to the other direction that is a repetition really almost completely of a direction I gave you earlier, in this trial through a number of means material has come before you into evidence pointing to criminal or discreditable or questionable conduct by Mr Bednar of a number of types. …

At the conclusion of this part of the charge, defence counsel (incorrectly) complained that the judge had not given the direction in the full form usually given. In other words, the defence was alert to ensure that the direction protected the applicant from having the evidence of his psychiatric treatment misused to his detriment.

Submissions

The applicant submits that this ‘sanity’ direction amounted to a direction made pursuant to s 27(2)(a) of the Jury Directions Act 2015 (‘JDA’) limiting the use of the evidence of the applicant’s psychiatric history. According to the applicant, the judge was wrong to give such a direction, and its repetition in the charge caused the trial to miscarry, for the following reasons:
(a)Evidence of motive is neither context nor tendency evidence, and so is not ‘other misconduct evidence’ for the purposes of the JDA. While evidence of mental illness, in the form of relationship evidence, could technically be context evidence, it could not properly be characterised as ‘misconduct’ evidence.
(b)Even if the evidence qualified as ‘other misconduct evidence’, s 27 of the JDA only applies to evidence ‘adduced by the prosecution’. In this trial, the defence adduced evidence about the applicant’s mental state.
(c)Under s 27(1) of the JDA, only defence counsel can request the direction. However, defence counsel did not do so.
(d)If the admissible evidence raised the issue of mental impairment, the judge had an obligation under s 22 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to direct the jury to consider it. Part 3 of the JDA did not apply by virtue of s 10(1)(b) of that Act.
The applicant contends that there was no legitimate basis for limiting the jury’s findings or use of the evidence to the primary purpose advanced by the parties. If the jury thought that the evidence was relevant to the element of intention, it should have been free to use it and been properly directed as to how.[8] In this regard, the applicant relies on the fact that the Crown asked for manslaughter to be left to the jury; and the defence put the element of intention in issue even though the applicant’s defence was that he did not kill the deceased.
[8]Citing Hawkins v The Queen (1994) 179 CLR 500, 513 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ).
The respondent submits that the judge quite properly gave a direction regarding the applicant’s mental health. The psychiatric evidence was ‘other misconduct evidence’, as it was evidence of other discreditable acts as well as conduct evidence. Even if this was not the case, it was incumbent upon the trial judge to properly craft directions, based on the needs of the case, to avoid the misuse of the evidence by the jury.[9]
[9]Citing Lin v The Queen [2018] VSCA 100; R v Iuliano [1971] VR 412; Wilson v The Queen (1970) 123 CLR 334.
Further, it was submitted, mental impairment was not raised as an issue at trial. In this regard, the respondent noted in the written case defence counsel’s submission that the applicant was well at the time of the alleged offending. The applicant did not argue at trial that the impugned representations could be used to find that his mental state in some way impaired his ability to form the intention to commit murder. Nor was there any evidential basis for the jury to use the representations in such a way.
In oral argument, counsel for the respondent rejected the proposition that intention, as an element of the crime of murder, was put in issue at trial. For it to have been left open, the judge would have had to ‘backtrack’ on his very strong direction.

Consideration

This ground has no substance. The direction did not concern evidence of ‘misconduct’ for the purposes of s 27 of the JDA. The judge gave a separate direction in relation to misconduct evidence.
The ‘sanity’ direction responded to concerns expressed by defence counsel that if the jury learned of the involuntary hospitalisations, they might reason that the applicant was the sort of person who might kill his mother. The sanity direction also responded to Crown concerns that the jury understand that mental impairment was not in issue in the trial.
Unsurprisingly, neither party took exception to the direction. It was entirely unobjectionable. Indeed, defence counsel agitated for the direction to be given in a fuller form.
Furthermore, to suggest that the direction limited submissions the applicant may have wished to make regarding the absence of an intention to kill or cause really serious injury runs counter to the way in which the defence ran its case. In his closing address to the jury, defence counsel emphasised that this was not ‘a mental impairment trial’ and there was no defence of mental impairment. He submitted that the applicant had been well for quite some time. The defence was that the applicant did not kill his mother and it was impermissible for the jury to reason that he was the type of person to have killed his mother because of his mental health history or that it was more likely that he killed his mother because of his mental health. Defence counsel submitted that despite having had a history of mental ill health, the evidence was that the applicant was clear of any presenting mental health symptoms in the three to four months from February leading up to the incident in May, and he was living his life in the community.
Having regard to the way in which the direction came about, and the absence of any exceptions, it ill behoves the applicant to now argue that the direction should not have been given. Insofar as it restricted the use to which the evidence of the applicant’s involuntary psychiatric treatment could be put, it did not impinge on the jury’s consideration of whether the applicant intended to kill his mother or cause her really serious injury. At no point did the applicant assert that his mental health compromised his ability to form any intention or resolve. To the contrary.
Ground 2 is not made out.
PART B:THE ADDITIONAL GROUNDS
In the conviction appeal, the applicant seeks to raise two additional grounds that reflect the defence case that the wrong person was charged with killing the deceased.
The applicant’s principal contention is that the evidence at trial raised as a reasonable possibility that Mr Cohen killed the deceased. The applicant alleges that Mr Cohen murdered the deceased in order to set him up for murder, and then to steal his taxi and/or his cryptocurrency. According to the applicant, the ‘set up’ was also conceived to prevent him from suing Mr Cohen for ‘malicious slander’ and exposing other (alleged) misconduct by Mr Cohen.
The first additional ground (as we have formulated it based on the somewhat disordered written materials) (ground 3) is that it was not open to the jury to be satisfied beyond reasonable doubt that the applicant murdered his mother, given that the evidence disclosed that it was reasonably possible that Mr Cohen killed her.
The second additional ground (ground 4) is that the trial judge ought to have given the jury a warning that Mr Cohen’s evidence might be unreliable.
Both grounds are founded on the applicant’s allegation that Mr Cohen gave untruthful evidence, either in pre-trial hearings or in the trial itself. Those lies, it is alleged, reveal Mr Cohen’s attempts to cover up his crime and the fact that he had both a motive and an opportunity to kill the deceased.

Mr Cohen’s evidence

Mr Cohen was called as a prosecution witness to give evidence about a number of matters: the applicant’s relationship with his mother; the decline in the applicant’s mental health from mid-2020; his role and the role of the deceased in referring the applicant for treatment; the applicant’s paranoid and aggressive behaviour towards his mother from mid-2020; the deceased’s fears for her safety; the installation of the Ring doorbell camera and CCTV cameras at the deceased’s home; and the footage captured by those devices on 13 and 15 May 2021. In his evidence, Mr Cohen identified the applicant as the person who appears in that footage.
Mr Cohen was cross-examined about a number of matters, most relevantly his movements and conduct on Saturday, 15 May 2021, the day the deceased’s body was found. He was asked about text messages he sent on that day that apparently revealed knowledge of matters the police had not yet disclosed, and about the fact that he admitted to sitting outside the applicant’s home for about an hour that same evening. He was also cross-examined about the manner in which he had ‘embedded’ himself in the deceased’s life and his ability to monitor and control the Ring doorbell and CCTV cameras.
The case concept put to Mr Cohen by defence counsel in cross-examination was that Mr Cohen was in a precarious financial position leading up to 13 May 2021; he knew that the deceased had recently sold gold for $1,800 in cash; he entered the deceased’s house in the early hours of the morning to steal the $1,800; the deceased woke up while he was trying to find the cash; he feared loss of reputation and credibility in the deceased’s eyes, and he assaulted her. As part of this plan to steal the cash, Mr Cohen went into the applicant’s house and took shoes, gloves and other items in order to disguise himself as the applicant. It was put to Mr Cohen that he had the opportunity to take the items and then return them to the applicant’s house, as he was in the applicant’s street for over an hour on the night of 15 May 2021.
The applicant’s thesis on appeal about Mr Cohen’s involvement is slightly different: according to the applicant, Mr Cohen killed his mother disguised as the applicant in order to set him up as the murderer, have him incarcerated and then take his taxi and/or his cryptocurrency.
The relevant parts of Mr Cohen’s evidence about events leading up to and including 15 May 2020 may be briefly summarised as follows.
Mr Cohen gave evidence that the applicant appeared to change in March 2020. He developed a ‘very short fuse’ and would argue quite a lot over little things. He was not physical, just angry. However, Mr Cohen said that he ‘never really saw anger between him and [the deceased] at that point’.
Mr Cohen said that he began to receive ‘delusional’ WhatsApp messages from the applicant in June 2020. Shortly afterwards, following discussion with the deceased and two others, he made a report about the applicant to the CAT Team. He believed that the CAT Team acted on the report, with the result that the applicant was hospitalised.
Mr Cohen gave evidence that he commenced a friendship with the deceased in June 2020. He began to assist her with many things. At the deceased’s request, he took her to the doctor and to the city, and installed the Ring doorbell camera. On 10 May 2021, Mr Cohen took the deceased to Cheltenham, and then to a jewellery store in Melbourne’s central business district, where the deceased sold some gold jewellery for approximately $1,800 in cash.
Mr Cohen denied stealing the cash. He acknowledged that, while travelling to the city, he raised the deceased’s will and she responded. He said that he was motivated by a concern for her welfare, or what he called a ‘duty of care’.
Mr Cohen gave evidence that he was able to view footage from the Ring doorbell camera on his phone and would get notifications when the doorbell was pressed. He was also able to hear if someone was at the door, and any conversations that were taking place. He said he was not involved in ordering or the installation of the CCTV system, but was able to access the footage. He denied that he had the ability to pause the cameras or decrease their sensitivity to motion.
Mr Cohen said that the last time he was in the deceased’s house was after the trip to sell gold on Monday, 10 May. He denied that he deliberately framed the applicant for the murder of his mother. In re-examination, Mr Cohen confirmed that he was not in the deceased’s will, and did not receive anything from her estate.
According to Mr Cohen, the police asked him to attend the deceased’s house at some stage on 15 May. He accessed the Ring doorbell system and the CCTV system and provided footage to the police. When played the CCTV footage, Mr Cohen identified the applicant as the killer because of a distinctive sideway limp.
Having regard to the applicant’s allegations about Mr Cohen’s involvement in his mother’s death, there are two parts of Mr Cohen’s evidence that warrant specific attention:
(a)his explanation of text messages he sent to a friend, Mr Freedman, on 15 May 2021 that the applicant contends reveal that he knew about the deceased’s death before he was told anything by police; and
(b)his ability to gain access to the applicant’s home before, on and after 15 May 2021.
We consider this evidence in detail below. It formed an important part of the defence case and received considerable attention in defence counsel’s closing address to the jury.
More generally, defence counsel told the jury that it would be dangerous to accept Mr Cohen’s evidence on the basis that there was no readily identifiable reason why he started to hold what he described as ‘a duty of care’ towards a woman he did not know ‘from a bar of soap’. Counsel alleged that Mr Cohen only did this when his friendship with the applicant was well and truly over and his own livelihood was threatened because the applicant had put an end to the taxi‑sharing business. Counsel asserted that during the cross‑examination, Mr Cohen agreed that he had access to the deceased’s house. Counsel said that it made sense that Mr Cohen would have such access, as he was one of the people on the deceased’s pendant list. And given his acknowledged duty of care towards the deceased, it made no sense that on 13 May, after he had had a conversation with the window washer who told him the deceased was not there and not answering, Mr Cohen did nothing for the next two days.
Furthermore, the jury was told, Mr Cohen had a bias against the applicant. This was described as a ‘vendetta’, based on feelings of animosity and a ‘hatred [that] ran deep’.

Ground 3: jury verdict unreasonable

Submissions

The applicant submitted, in effect, that the jury’s verdict was unreasonable or could not be supported having regard to the evidence.[10] He did so by reference to several matters:
[10]See Criminal Procedure Act 2009, s 276(1)(a).
(a)Mr Cohen could not have learned of the deceased’s death prior to the text he sent at 1:28 pm on 15 May 2021 to Mr Freedman through the Ring camera footage. Mr Cohen himself acknowledged he watched that 24 hours later.
(b)The jacket which the applicant was wearing at the time of arrest was not the jacket worn by the killer in the CCTV footage. Its colour differs and no DNA was found linking it to the scene, as one might expect given DNA was present on other items.
(c)The headlamp worn by the killer was not the lamp police seized from the applicant’s house on 17 May 2021, as asserted in the Notice of Agreed Facts. The lamp seized was a bicycle lamp that could only be attached to the applicant’s bicycle, and not a lamp that could be worn.
(d)It was reasonably possible, if not likely, that Mr Cohen tampered with the boots worn by the killer which were seized from the applicant’s home on 22 May 2021, as he was at the applicant’s house on 18 May 2021.
(e)The shoes seized by the police did not match the partial shoe impression found at the crime scene.
(f)Mr Cohen could have planted (and in fact did plant) incriminating evidence when he attended the applicant’s house on 15 May 2021 without a legitimate explanation. The items later seized by police from the applicant’s house were therefore unreliable evidence, and the judge should have so ruled.
(g)In a portion of the recording of the arrest that was not played to the jury, the applicant said that there was something in one of the pockets that he did not recognise. This demonstrates that Mr Cohen indeed ‘framed’ him.
(h)The DNA evidence was of minimal probative value except for the piece of plastic retrieved from under the deceased’s bed, which Mr Cohen had planted.
(i)As for the fingerprints, Ms Kuruisaru (the cleaner) did not use glass cleaner on the glass top of the dresser. She also only applied light pressure. Further, Ms Kuruisaru’s evidence was that she usually spent two hours cleaning the deceased’s unit, once a fortnight. Of that two hours, only 20 or so minutes were spent outside the kitchen. It was thus possible the fingerprint was old. The applicant also noted, in her police statement, Ms Kuruisaru said that the glass was ‘already clean and sparking’ before she cleaned it.
(j)Mr Cohen made a prior inconsistent statement in his pre-trial examination. In his pre-trial examination, he said he told his wife that ‘Tommy killed Judy’, and that he did not see footage or know what was going on until the police told him at the scene after 2 pm on 15 May 2021. However, in cross-examination at trial, he was taken to the message he sent to Mr Freedman at 1:28 pm on 15 May 2021 claiming that the applicant had killed the deceased.
(k)Mr Cohen made another prior inconsistent statement in his pre-trial examination when he stated that he was home alone on the night of 15 May 2021.
(l)It was not possible for Mr Cohen to make a positive identification from the CCTV footage owing to its short duration and poor quality.
(m)Mr Cohen’s evidence identifying the applicant as the person in the CCTV footage lacked a factual foundation. In particular, Mr Cohen pointed to what he said was the characteristic way the applicant bends because of his short height. However, the difference between his height and Mr Cohen’s height was less than two inches. Further, at the time of giving evidence, Mr Cohen had not seen the applicant in over a year.
(n)Mr Cohen had a motive for killing the deceased. He wanted the applicant’s taxi.
(o)The applicant is not a violent person. He has never had a violent incident.
The applicant also seeks to adduce new or fresh evidence in the form of three traffic fines he says he only learned about on 29 December 2023. Rather than exhibiting the fines to an affidavit, the applicant typed their contents into his written submissions. The fines thus described in the submissions relate to events on 16 July 2021 and are as follows:
(1)At 4:01 am at Stud Road and the intersection with Heatherton Road, Dandenong: owning or using unregistered motor vehicle.
(2)At 4:01 am at Stud Road and the intersection with Heatherton Road, Dandenong: exceeding the speed limit by less than 10 kilometres per hour.
(3)At 8:50 am, north-bound on the Monash Freeway at Glen Iris, approximately 290 metres south of High Street: exceeding the speed limit by 25 kilometres per hour, less than 30 kilometres per hour.
The applicant contends that the timing of these fines demonstrates the falsity of Mr Cohen’s account about what he did with the taxi. Mr Cohen took possession of the applicant’s taxi on 10 June 2021. His evidence at trial was that it remained at his house for at least nine weeks or so. However, the infringements occurred on 16 July 2021, less than nine weeks after 10 June 2021.
The applicant also claims that the council placed a sticker on his car on 2 August 2021, 17 days after the infringements. In his police statement of 19 March 2022, however, Mr Cohen stated that the car remained on the street for three to four weeks after he trolley-jacked it there.
The applicant claims there are records that the car was towed on 27 August 2021. If the car remained on the street for three to four weeks, then — working backwards — Mr Cohen had possession of the car when the infringements occurred.
The applicant contends that the new/fresh evidence supports his submission that Mr Cohen wanted the car, and had a set of keys to the car and his house.

Consideration

In an appeal against conviction on the basis that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’,[11] ‘the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused is guilty’.[12] Put another way:
[T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[13]
[11]Ibid.
[12]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).
[13]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J, Gleeson CJ agreeing at 562 [1], Heydon J agreeing at 597 [117]) (emphasis in original) (citations omitted); [2007] HCA 30. See also Pell v The Queen (2020) 268 CLR 123, 146–7 [43]–[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
The Crown case against the applicant was a strong one. The applicant was linked to the crime scene by fingerprint and DNA evidence. Belongings of the applicant, found at his house bearing the blood of the deceased, were agreed by the parties to be items worn or used by a person captured on CCTV footage leaving the deceased’s home on the morning of her murder. It was also agreed that this was the person who killed the deceased.
Thus, pursuant to the Notice of Agreed Facts:
(a)on 13 May 2021, the deceased’s killer —
(i)was captured on CCTV footage leaving the deceased’s house;
(ii)was wearing the Merrell hiking boots that were seized from the applicant’s house on 22 May 2021; and
(iii)was carrying the backpack that was seized from the applicant’s house on 17 May 2021; and
(b)on 15 May 2021, the deceased’s killer —
(i)was captured on CCTV footage entering the deceased’s house and leaving approximately two hours later;
(ii)was wearing the dark-coloured jacket that was seized from the applicant on 17 May 2021; and
(iii)was wearing black Rhino brand gloves that were seized from the applicant’s house on 17 May 2021.
The applicant was captured on CCTV footage wearing the Merrell hiking boots a week or so before 13 May 2021.
The Merrell hiking boots, backpack and gloves had traces of blood, which contained the DNA of the deceased.
None of the matters raised by the applicant affect this evidence. Those items were worn by the person who killed the deceased. They belonged to the applicant and were found in his house shortly after the deceased was killed. Whatever might be made of evidence about the headlamp, the jacket and the shoes (which were in any event the subject of admissions as well), it was well open to the jury to find that the hiking boots, the backpack and the gloves found in the applicant’s home were worn by the applicant when he killed the deceased.
In these circumstances, in order to raise as a reasonable possibility that Mr Cohen, not the applicant, killed the deceased, the applicant needed to establish as a reasonable possibility that Mr Cohen took the Merrell hiking boots from the applicant’s house some time before 13 May 2021, wore them on the occasion of killing the deceased, and then returned them to Mr Cohen’s house after the second incursion into Drinan Road on 15 May. Likewise, he needed to establish that it was reasonably possible that Mr Cohen placed the backpack and the Rhino gloves in the applicant’s house sometime between 15 and 17 May 2021.
Defence counsel submitted that Mr Cohen had the opportunity to gain entry to the applicant’s house without permission and to take and return the items worn by the offender.
In his closing address to the jury, defence counsel submitted that while the items of clothing found in the applicant’s house that matched the clothing worn by the intruder were in the applicant’s possession as at 5 May, Mr Cohen was in the neighbourhood after that date, which provided an opportunity for him to take possession of those items. Further, he was in the applicant’s street on the evening of 15 May and the reason that he gave for being there made no sense. His attendance at the house on 15 May ‘reeks of suspicion’ regarding his stated reason, namely concern for the safety of his family. Furthermore, defence counsel told the jury, the applicant told police that he had had things stolen from his house, he had noticed things coming and going and it was not possible to secure the house.
Mr Cohen gave evidence that on the night of 15 May, he drove to the applicant’s house and waited on the street nearby for about an hour. He said that he did not attempt to go inside. He did not see the applicant. He went to the applicant’s house because he was concerned for his family’s safety. His motivation was to ‘keep movements on Tommy’ out of a concern for the security of his family. He accepted that he did not mention this in his police statements. This was because it was a ‘non-event’ at which nothing happened. He denied entering the applicant’s house on the night of 15 May. He denied placing the hiking boots, New Balance runners, the headlamp, Rhino gloves and the jacket back in the applicant’s house.
In our view, the fact that Mr Cohen was outside the applicant’s house for about an hour late at night on 15 May does not mean that he was able to enter the house. His reason for being there was not so implausible that the jury was bound to reject it. If the applicant had killed his mother — as Mr Cohen assumed that he had — the applicant represented a danger to the other people who had helped his mother arrange the compulsory treatment that he so resented. It was open to the jury to accept Mr Cohen’s evidence in this regard. We do not consider that the reason given by Mr Cohen ‘reeks of suspicion’.
Mr Cohen acknowledged that he had been inside the applicant’s house before without the applicant’s permission. He explained that the deceased and the applicant’s real estate agent had agreed to meet at the applicant’s house. The deceased wanted Mr Cohen to be there to help find any drugs or weapons. Mr Cohen was unsure if a key was used to gain entry on that occasion. He did not open the door. Mr Cohen said that the front door had a steel door and the side gate was padlocked with a chain. It was open to the jury to accept the evidence that he gave in this regard.
We note that the applicant now contends that it was reasonably possible, ‘if not likely’, that Mr Cohen tampered with the Merrell boots when he was at the applicant’s house on 18 May 2021. However, the jury heard no evidence about any such attendance, so far as we can see. The applicant’s contention is apparently based on a screen shot from Mr Cohen’s phone that records when he took a photograph of the inside of the applicant’s taxi. It was attached to Mr Cohen’s third statement. Mr Cohen was cross-examined on the contents of his third statement, but was not asked about being at the applicant’s house on 18 May. Insofar as this attendance constitutes ‘new’ evidence (as opposed to evidence that was unavailable at trial), it must either show the applicant to be innocent, or raise such a doubt about his guilt in the mind of the Court that the verdict should not be allowed to stand.[14] The evidence in the screen shot plainly does not rise to that standard. The applicant does not say how Mr Cohen might have tampered with the boots and there is no evidence whatsoever that the Merrell boots were in fact ‘tampered’ with. Indeed, it is difficult to imagine how Mr Cohen could have applied the DNA of the deceased to the boots on 18 May.
[14]Vinaccia v The Queen (2022) 70 VR 36, 75 [151] (T Forrest and Emerton JJA); [2022] VSCA 107, citing Bowden v (a pseudonym) v The Queen (2017) 54 VR 135, 144 [36] (Priest JA, Maxwell P and Kidd AJA agreeing at 137 [1]); [2017] VSCA 46; Ratten v The Queen (1974) 131 CLR 510, 517–18 (Barwick CJ).
In any event, putting to one side for the moment whether Mr Cohen might have been able to break into the applicant’s house to take and then return clothing and other items, we consider the scenario that he disguised himself as the applicant in order to rob the deceased to be implausible. He could have broken into the deceased’s house when she was not at home. We also find it to be improbable that Mr Cohen would go to such lengths — dressing up as the applicant and killing the applicant’s mother while so disguised — in order to get hold of the applicant’s taxi and/or his cryptocurrency, or to prevent him from taking legal action against Mr Cohen.
Finally, it is quite unclear what the applicant says may be inferred from the fact that traffic fines were incurred while Mr Cohen was in possession of the taxi. The evidence was that the taxi was not in fact able to be driven when Mr Cohen took it: the front windscreen was broken and covered in opaque plastic. Mr Cohen had the taxi towed to a street near his house. Once parked on the street near Mr Cohen’s house, the numberplates and the steering wheel were stolen. We see no obvious inconsistencies in Mr Cohen’s account of what happened to the taxi. On the evidence, it seems unlikely that the fines were incurred in that vehicle, let alone by Mr Cohen.
There was no evidence that Mr Cohen had a key to the applicant’s house. The fact that Mr Cohen took the applicant’s taxi does not mean that he had a key to the applicant’s house. On the evidence, there is no connection between the taxi and the house key.
We consider that it was open to the jury to reject as a reasonable possibility that Mr Cohen broke into the applicant’s house, not once but twice, in order to take clothing and other items, and then return them.
This is sufficient to dispose of this ground of appeal. It was well open to the jury to reject as a reasonable possibility the hypothesis that Mr Cohen was the person wearing the relevant items who was seen exiting and then entering and exiting the home of the deceased on the relevant dates and was therefore responsible for the deceased’s death.
As much was made of Mr Cohen’s text messages, which were said to show knowledge that only the killer could have had about the circumstances of the deceased’s death, we shall briefly consider that evidence.
Attention focussed on two text messages that Mr Cohen sent to a friend, Derek Freedman, on 15 May 2021. The first text message was sent at 1:28 pm and said ‘Hey Tommy killed judy Thursday morning’. The second text message was sent after 11:05 pm and said, ‘She was in bed’. This was in response to Mr Freedman asking, ‘Have they found her body?’.
It is the applicant’s contention that this information was not available to the public at the relevant times, proving that Mr Cohen must have been involved in the death of the deceased. Even if Mr Cohen concluded from the presence of police at Drinan Road on Saturday, 15 May that the deceased had been killed, this did not explain how he knew that it happened two days earlier, on Thursday, 13 May, or where her body was found.
There was footage from the Ring doorbell camera showing that Mr Cohen used the speaker to speak to police who were at Drinan Road around lunchtime on 15 May. Mr Cohen wanted to know what was going on. Police were guarded in their responses and did not tell him that they had found the body of the deceased. However, the fact that they did not confirm that the deceased was ‘ok’ when asked, must have raised questions in Mr Cohen’s mind.
Mr Cohen was asked by police to come to Drinan Road. His wife drove him there. He arrived at approximately 1:51 pm, that is, about half an hour after he sent the first text message to Mr Freedman.
Counsel put to Mr Cohen evidence that he gave in a pre-trial examination that he did not learn the deceased had been killed until he arrived at Drinan Road. Mr Cohen said that he made ‘assumptions’ that the deceased had been killed from the moment he was asked by police to attend Drinan Road. When asked how he was able to tell Mr Freedman that the deceased had been killed on Thursday morning, Mr Cohen said that he might have seen the video ‘with the police’. The video in question appears to be the CCTV footage from 13 May. Mr Cohen said that, while his wife was driving him to Drinan Road, he was already checking the videos, which were on his phone. He may have seen the relevant video in the car. However, he was unable to remember which videos he saw on that day (15 May).
Mr Cohen explained that the information in the second text — that the deceased was found in bed — had been gleaned from police conversation he had overheard through the Ring doorbell camera. He initially said this occurred close to midday on 15 May. He then said he overheard the conversation 12 or 24 hours later. When asked again when he had watched and heard the portion of the footage in which the police were talking about where the deceased was found, he said it was between 2:30 pm and 7 pm on 15 May. When asked if there was any discussion between him and police that would show he had knowledge that the deceased had been found, discovered or killed, he said: ‘I don’t believe so. Why should I talk to the police about that? The police are the ones that mentioned it’.
It is true that Mr Cohen’s evidence about when and how he learned the details of the deceased’s death is vague. However, it was a matter for the jury to assess that evidence and form a view as to whether Mr Cohen was telling deliberate lies and if so, whether, as a consequence, it was reasonably possible that Mr Cohen was the person who killed the deceased.
As discussed, we consider that it was open to the jury on the evidence to reject as a reasonable hypothesis that Mr Cohen broke into the applicant’s house, not once but twice, in order to take clothing and other items and then return them. More generally, it was open to the jury to reject the hypotheses that Mr Cohen killed the deceased in order to steal her money, or to ‘set up’ the applicant in order to take his taxi and/or his cryptocurrency, or to prevent the applicant from suing him or merely because he hated him. These hypotheses strike us as fanciful. They are certainly not hypotheses that the jury were bound to accept as reasonably possible. Put another way, on all of the evidence, it was open to the jury to conclude beyond reasonable doubt that the applicant was the person responsible for murdering his mother.
Ground 3 is not made out.

Ground 4: unreliable witness direction

Counsel for the applicant at trial sought an ‘unreliable witness’ direction regarding Mr Cohen. The judge ruled that the direction should not be given as he did not think it was reasonably possible to consider Mr Cohen as a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the trial. He perceived Mr Cohen to be a very poor candidate as an alternative suspect and said that the proposition that Mr Cohen was involved in the killing of the deceased ‘could be charitably described as very far-fetched’.

Submissions

The applicant submits that Mr Cohen was an ‘unreliable witness’ for a variety of reasons, mostly (if not exclusively) because of ‘lies’ that he claims to have identified. They are enumerated in the applicant’s written submissions as follows:
(a)Mr Cohen gave evidence in his pre-trial examination that he did not see any footage of the killer until after 2 pm on 15 May 2021. This is inconsistent with the text message he sent to his friend Mr Freedman at 1:28 pm saying that the deceased had been killed. As the police had not informed Mr Cohen about this and the information was not public, Mr Cohen must have watched the footage before 1:28 pm. Therefore, he must have lied in his pre-trial cross-examination.
(b)After saying to Mr Freedman on the night of 15 May 2021 that the deceased was found in bed, Mr Freedman asked Mr Cohen if the police knew where the applicant was. Mr Cohen replied: ‘No idea’. However, Mr Cohen also gave evidence that, on the night of 15 May, he stayed outside the applicant’s house. This demonstrated that Mr Cohen in fact knew where he was.
(c)Mr Cohen’s evidence in his pre-trial examination that he never went to the applicant’s house in 2021 is inconsistent with his evidence at trial that he went to the applicant’s house to help find drugs or weapons, and then one more time after that. It was also inconsistent with his police statement of 19 March 2022 stating that he went to the applicant’s house at least three times.
(d)Mr Cohen’s evidence that he did not suspect something had happened was inconsistent with his evidence that he held assumptions from the moment he was asked to attend Drinan Road that the deceased had been murdered.
(e)There was evidence to suggest that Mr Cohen’s family was not at his home on the night of 15 May 2021. However, Mr Cohen’s evidence was that he went to the applicant’s premises that night to protect his family.
(f)Mr Cohen had lied about his fitness to drive a taxi and participated in a Ponzi scheme.
(g)In his pre-trial examination, Mr Cohen said he was never inside the applicant’s house.
The respondent submits that the judge’s ruling with respect to this issue made it very clear that, despite defence counsel’s rigorous cross-examination of Mr Cohen, there was nothing in there which required an unreliability direction.

Consideration

Pursuant to s 32 of the JDA, ‘prosecution or defence counsel may request … that the trial judge direct the jury on evidence of a kind that may be unreliable’. Section 31 of the JDA defines ‘evidence of a kind that may be unreliable’ to include:
(a)evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) of the Evidence Act 2008 applies; and
(b)evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like; and
(c)evidence given by a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the trial; and
(d)evidence given by a witness who is a prison informer; and
(e)oral evidence of questioning by an investigating official (within the meaning of the Evidence Act 2008) of an accused where the questioning has not been acknowledged by the accused.
This definition is not exhaustive. As this Court in Young v The Queen[15] observed of the forerunner to s 31 of the JDA, s 165(1) of the Evidence Act:
The kinds of evidence set out in s 165(1) are not exhaustive of the categories in respect of which a warning as to potentially unreliable evidence may be given.[16] The question whether a warning should be given in cases not within the specific provisions … depends upon all the circumstances, but especially whether or not the jury would be able, relying on its own knowledge and experience, fully to evaluate or appreciate the subject matter said to call for the warning.[17]
[15][2015] VSCA 265.
[16]Scannell v The Queen [2014] VSCA 330, [15] (Priest JA).
[17][2015] VSCA 265, [69] (Osborn, Beach and McLeish JJA) (emphasis added), citing R v Miletic [1997] 1 VR 593, 606 (Winneke P, Charles and Callaway JJA). See Explanatory Memorandum, Jury Directions Bill 2015, 19.
This passage was quoted approvingly in Hudson (a pseudonym) v The Queen,[18] a case concerning s 31 of the JDA.
[18][2017] VSCA 122, [51] (Ashley, Beach and Kaye JJA).
While the definition of evidence that may be unreliable is not exhaustive, in this case the defence sought the direction on the basis that Mr Cohen might reasonably be supposed to have been criminally concerned in the death of the deceased (s 31(c)).

The judge rejected that proposition. For the reasons set out in ground 3, his Honour was correct to reject the proposition. The evidence that Mr Cohen was criminally concerned in the death of the deceased was negligible, if not non-existent.
In any event, Mr Cohen’s alleged involvement in the death of the deceased was the subject of extensive cross-examination and submissions by defence counsel. The matters identified by the applicant as ‘lies’ fall into a number of categories: in relation to the communications with Mr Freedman; concerning Mr Cohen accessing the applicant’s house; and Mr Cohen’s history as a taxi driver. All of these matters were canvassed in evidence, and Mr Cohen was challenged on his evidence in cross-examination. The jury was well placed to consider and form a view, relying on their own knowledge or experience, about Mr Cohen’s evidence and the extent of his involvement (if any) in the death of the deceased.
In R v Fowler, the New South Wales Court of Criminal Appeal said of s 165(1) of the Evidence Act 1995 (NSW):[19]
Where the issue raised concerns the honesty of the witness’s evidence, a warning will not normally be required unless the witness falls within a category mentioned in s 165(1). As a general rule, the court has no particular advantage over a lay jury in determining whether a witness is telling the truth. General matters used by a tribunal of fact to assess a witness’s credibility, such as demeanour, consistency, recent invention, and the presence of a motive to lie are readily appreciated by members of a jury as part of their normal life experiences. In such a case, if anything needs to be said by the trial judge about the evidence, it would normally be sufficient for the judge to comment on the evidence by reminding the jury of criticisms of it made by counsel during addresses.
[19](2003) 151 A Crim R 166, 205 [188] (Tobias JA, James and Howie JJ); [2003] NSWCCA 321.
If the evidence in respect of which the direction is requested is indeed ‘of a kind that may be unreliable’, then the trial judge must give the jury the direction ‘unless there are good reasons for not doing so’.[20] However, as this Court observed in Wade (a pseudonym) v The Queen, this is ‘a two-stage process’.[21] If, at the first stage, the judge determines that the evidence in question is not truly ‘of a kind that may be unreliable’, then the judge does not progress to the second stage of considering whether there are good reasons for not giving the direction.
[20]JDA, s 14(1).
[21][2019] VSCA 168, [28].
In this case, the judge was correct to conclude that the evidence in question did not warrant an unreliability direction.
Ground 4 is not made out.

Conviction appeal: conclusion

None of the grounds is made out. Leave to appeal the conviction will be refused.
PART C:SENTENCE APPEAL
It will be recalled that the applicant’s notice of appeal contained three proposed grounds.
Ground 1: The judge erred in finding the objective gravity of the offending was increased by reason of the applicant’s campaign of intimidation and harassment.
Ground 2: The judge erred in finding that the applicant’s mental illness had no real part to play.
Ground 3: The sentence and non-parole period are manifestly excessive.
Accompanying the notice of appeal was a comprehensive written case prepared by experienced junior counsel.
At the hearing of this application the self-represented applicant, who steadfastly maintained his innocence, declined to put oral submissions on sentence. He was content, however, to allow the Court to consider the proposed grounds of appeal and the supporting written case.[22]
[22]See [4] and [8] of these reasons.
We have formed the view that there is merit to grounds 1 and 2. It has been unnecessary to consider ground 3. We will grant leave to appeal against sentence, allow the appeal and resentence the applicant. We shall set out our reasons for taking this course.
We have set out the broad factual circumstances at paras 13 to 50 of these reasons. It is unnecessary to repeat them in any detail. This was a brutal sustained and violent attack upon a vulnerable elderly woman. The objective gravity of the offending is high.
The substance of grounds 1 and 2 is that at all material times the applicant was significantly mentally ill. His motive for murder was founded in delusional paranoid beliefs he had long held about his mother, and his pre-offence campaign of intimidation was also infected by mental illness. In these circumstances, despite a concession made by defence counsel on the plea, the judge erred in positively finding on sentence that mental illness had no part to play in the offending.
We shall summarise the judge’s reasons for sentence.

Reasons for sentence

Having considered the applicant’s preparation for the incursion into the deceased’s house, the time at which it occurred, his considerable anger and resentment towards the deceased, the ferocity of the attack and his actions after the attack, the judge correctly found that the applicant had an intention to attack the deceased when he entered.[23] His Honour noted that, when the applicant left the deceased’s house on 15 May 2021, he moved a parcel that had been delivered to the deceased’s house to block its view from the street. The judge said the applicant deliberately did this to delay the discovery of the deceased’s body.[24] This finding was also open to his Honour. The applicant’s conduct in returning to the scene of the crime was a ‘further sign of [his] heartless and extraordinary disregard for [his] mother, and total lack of remorse and regret for what [he] had done to her’.[25] His Honour stated that the applicant’s lack of remorse and regret ‘continues to this day’.[26] Again, these findings were open on the evidence.
[23]DPP v Bednar [2023] VSC 67, [49] (‘Reasons for sentence’).
[24]Reasons for sentence, [64].
[25]Reasons for sentence, [66].
[26]Reasons for sentence, [60].
The judge noted that counsel for the applicant did not invoke limbs 1 to 4 of R v Verdins.[27] Rather, counsel submitted that limbs 5 and 6 were enlivened by reference to Dr Deacon’s opinion that the applicant was likely to experience prison as more onerous than a prisoner with stable mental health, and is at risk of mental deterioration given the constraints of the prison environment. The judge accepted this, but said that the corresponding reduction would not be substantial.[28]
[27](2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
[28]Reasons for sentence, [90]–[95].
The judge also noted that, while limbs 1 to 4 of Verdins were not enlivened, that did not mean that the applicant’s mental functioning in the lead up to the murder was entirely irrelevant. The applicant was not a person of entirely normal mental functioning who developed a hatred for his mother and then acted upon it. He was a person who for many years had experienced mental illness. The judge took this into account in the general sense as one of the surrounding circumstances of the case:[29]
I also note that whilst the first four limbs in Verdins were not enlivened in your case, that does not mean that your mental functioning in the months and years leading up to the murder is entirely irrelevant. The fact is that at the time of your crime, you were a person who for many years had suffered from mental illness, and the evidence of Dr Deacon indicated that your mental health had declined in the year preceding the crime. Whilst there was no evidence to support a view that you were mentally ill when you murdered your mother, less still that such mental illness had any real part to play in your offending, it would seem that for many years of the troubled relationship you had with your mother, and indeed, during the period of the further deterioration in that relationship which occurred in 2020 and early 2021, you did suffer from the bipolar disorder which had previously been diagnosed and intermittently treated, and which was again diagnosed after your incarceration. I take this fact into account in the general sense as one of the surrounding circumstances of your case. You were not a person of entirely normal mental functioning who developed a hatred of your mother and then acted upon it. You were a person who for many years had experienced mental illness.
His Honour treated the offending as a very serious example of murder. The judge said of the applicant:
Having earlier waged a campaign of intimidation and harassment against her, fuelled by the strange hatred and resentment you harboured towards her, you broke into your mother’s home in the early hours of the morning on 13 May 2021 intent upon carrying out some sort of physical attack upon her. This was a planned intrusion which you knew to be in direct defiance of the [family violence intervention order] that had been in place to protect Mrs Bednar.[30]
[29]Reasons for sentence, [96] (emphasis added).
[30]Reasons for sentence, [104].
The judge also had regard to the ferocity of the attack and the applicant’s post-offence conduct. He treated the post-offence conduct as a significant aggravating factor.[31]
[31]Reasons for sentence, [109].
The judge described the applicant’s moral culpability as ‘exceedingly high’.[32] He said:
Your moral culpability for the murder of your mother cannot be viewed as being anything other than exceedingly high. The mental illness from which I am satisfied you have suffered for many years was not causally connected with your crime. You have certainly not been of normal mental health, but the fact is that you were not deprived of a full and complete understanding of the proposition that to attack and kill your mother would be a crime of the highest order of seriousness. You felt anger and resentment. You acted upon these feelings in truly outrageous fashion. You are fully responsible for your actions.[33]
[32]Reasons for sentence, [110].
[33]Reasons for sentence, [110].
The judge characterised the applicant’s prospects of rehabilitation as ‘reasonably poor’.[34] He described the applicant as ‘giving every indication of being a resentful and embittered man who has added to the list of resented or hated individuals or institutions, the criminal justice system and Mr Cohen himself’.[35] It was difficult to be confident that, ‘having taken such a set against [his] mother’, the applicant might not, influenced by his perceived sense of injustice and in denial about his psychiatric illness, ‘take such a set against another person, and again act upon it’.[36]
[34]Reasons for sentence, [123].
[35]Reasons for sentence, [118].
[36]Reasons for sentence, [121].
It was noted that, as the offending took place after 1 February 2018, the standard sentencing regime applied. The standard sentence for murder was 25 years.[37] His Honour concluded that, taking into account only its objective factors, the offending was a very serious instance of murder falling above the middle range of seriousness for murder.[38]
[37]See Crimes Act 1958, s 3(2)(b).
[38]Reasons for sentence, [128].
His Honour took into account the applicant’s onerous conditions of custody since his incarceration which had arisen in response to COVID-19, as well as the uncertainty which still prevailed at the time of sentencing.[39]
[39]Reasons for sentence, [137].
He noted that, given he proposed to impose a head sentence of at least 20 years, he was required by s 11A(4) of the Sentencing Act 1991 to fix a non-parole period of at least 70 per cent of the head sentence unless he considered that it was not in the interests of justice to do so. Having regard to all the circumstances of the case, he did not consider it would be in the interests of justice to fix a non-parole period of less than 70 per cent of the head sentence in this case.[40]
[40]Reasons for sentence, [138], [140].
His Honour considered that just punishment, denunciation, general and specific deterrence, and community protection were important sentencing considerations. In respect of general deterrence, ‘the sentence … must bring it clearly home to any person who might be minded to carry out serious crimes of violence against people — disproportionately women — in domestic settings, extending to violence of such magnitude as to take the life of others, that such conduct will be met with very strong punishment’.[41] The judge held that rehabilitation was subordinate to more prominent sentencing objectives in this case.[42]
[41]Reasons for sentence, [144].
[42]Reasons for sentence, [142]–[144], citing Felicite v The Queen (2011) 37 VR 329, 333 [20] (Redlich JA, Harper JA agreeing at 338 [44], Robson AJA agreeing at 339 [46]); [2011] VSCA 274.

The applicant’s personal circumstances

Many of the applicant’s personal circumstances are evident from the evidence given at trial. We note that, following the jury’s finding of guilt, the applicant’s legal team engaged a psychiatrist, Dr Adam Deacon, to provide a pre-sentence report. Dr Deacon had initially been engaged pre-trial to provide an opinion as to whether the applicant had a mental impairment defence. Relevantly, Dr Deacon made the following findings:
(a)The applicant has a significant psychiatric history. He first had contact with mental health services when he was 25 years’ old. He required approximately a dozen psychiatric in-patient admissions between 1993 and 2000, predominantly for manic relapses, sometimes including psychotic features, including grandiose and bizarre delusions, in the context of an established diagnosis of bipolar affective disorder with a differential diagnosis of schizoaffective disorder.
(b)The applicant’s presentation was confounded by his chronic cannabis use. He appears to have never accepted that he has an enduring mental illness. In this context, he was not consistently compliant with prescribed mood stabilising and antipsychotic medication. He was difficult to manage in the community.
(c)The applicant appears to have felt neglected and abandoned by the deceased. He appears to have formed an ambivalent attachment to the deceased that later led to sustained hostile feelings and acrimony.
(d)The applicant’s diagnosis is likely to be bipolar disorder type 1 with a differential diagnosis of schizoaffective disorder. Whilst there is compelling evidence that the applicant has an enduring but episodic relapsing-remitting mood-psychotic disorder, he has maintained the capacity to remain relatively self-contained, albeit he has consistently presented with an unusually intense and overbearing manner.
(e)The applicant’s persecutory thoughts could be considered to be delusional in quality. These thoughts are importantly circumscribed and centred on his resentment towards the deceased and friends for engaging mental health services, but against the background of persistent ill feelings for the deceased generated from his adverse childhood and the deceased’s historical involvement in engaging mental health services.
(f)The applicant may have been mentally unwell at the time of the alleged offence. However, based on his self-report that he was not mentally ill, and the lack of objective evidence that he was mentally ill, even if he was mentally ill, his judgment was unlikely to have been so impaired that it would have markedly influenced his decision-making to the extent that he did not understand the wrongfulness of the alleged offending behaviour.
(g)The applicant’s underlying mental illness, albeit currently untreated, has posed, and will continue to pose, a challenge to manage in prison. He is likely to experience prison as more onerous than a prisoner with stable mental health. He has experienced his legal proceedings as very stressful. He is markedly disgruntled with the recent verdict. He is at risk of mental deterioration given the likely persistent stress associated with his perceived sense of injustice and constraints of the prison environment.

Grounds 1 and 2

Submissions

Through counsel originally retained for the application for leave to appeal, the applicant submits that, while he might have been able to appreciate the wrongfulness of the offending acts (and therefore did not have a defence of mental impairment), that does not mean his mental illness had no real part to play in his offending as found by the judge. The applicant submitted that the prosecution’s case at trial was that his relationship with the deceased was afflicted by his delusional beliefs, and his motive for offending was his delusional belief that the deceased had told lies about him to have him admitted to hospital.
Further, according to the applicant, it was not open to the judge to find that his offending was aggravated by his conduct in causing the deceased to feel intimidated and harassed. There was strong evidence of a causal connection between his impairment and his prior conduct towards his mother.
Through his former counsel the applicant contends that it was understandable (if wrong) that, on the plea, trial counsel did not seek to rely on a causal connection between his mental impairment and the offending. His concession about the inapplicability of limbs 1 to 4 of Verdins deprived him of a mitigating factor. If error is made out, he would withdraw the concession and argue that:
(a)where the asserted motivation for the murder was the (delusional) belief that the deceased had lied to have him involuntarily admitted, a causal connection between the applicant’s mental impairment and the offending is established even while the evidence is that the applicant must have known what he was doing was wrong; and
(b)the evidence of mental impairment at the time of sentence warrants some moderation of the principle of general deterrence.
Counsel for the respondent accepted that it may have been stern of the sentencing judge to not give some weight to the applicant’s mental illness (though this was not surprising given the defence’s concession on the plea). The judge did not err in this regard. The sentence was in any event within range. There were reasons for the imposition of the head sentence and non-parole period:
(a)The victim was a vulnerable 78-year-old woman, alone in her home (where she was entitled to feel safe) late at night.
(b)The murder involved family violence and a grave breach of trust.
(c)The offending occurred in breach of an intervention order (in the context of repeated breaches).
(d)The applicant was someone whom the victim was particularly afraid of given his actions in the lead-up to the fatal attack.
(e)The murder was a result of a planned physical attack which was particularly sustained, brutal and violent.
(f)The applicant left the victim naked and either dead or dying following the brutal attack.
(g)The applicant took steps to delay the discovery of the body and deflect blame onto another (including returning to the crime scene two days later).
(h)The applicant had poor prospects of rehabilitation.

Consideration

Obviously counsel’s concession that Verdins limbs 1 to 4 were not engaged stands as an obstacle to grounds one and two. In his written submissions on the plea, the applicant’s then counsel, after reviewing psychiatric evidence, stated ‘[t]he defence submit the accused is entitle [sic] to the application of Verdin’s [sic] limbs 5 and 6 based on the opinion of Dr Deacon’. In the plea hearing, counsel in discussion with his Honour put it this way:
HIS HONOUR: No, no, no, of course not. But when some of the limbs of Verdins are enlivened, ones for example that talk — where moral culpability is substantially reduced or the importance of general deterrence is - - -
[Defence counsel]: Well, 1 and 3.
HIS HONOUR: They can have a very powerful effect on the sentence - - -
[Defence counsel]: Well, they - - -
HIS HONOUR: - - - sometimes.
[Defence counsel]: Yes, well, if there’s the nexus - - -
HIS HONOUR: Yes. Whereas in this case there’s - - -
[Defence counsel]: - - - then that person’s got impaired — careful about using the word ‘impaired’. Yes, the judgment - - -
HIS HONOUR: Yes.
[Defence counsel]: - - - can be significantly compromised at the critical time.
HIS HONOUR: Yes and so the — but look, it’s a matter of degree, I suppose, and - - -
[Defence counsel]: But I rely upon 5 and 6 heavily. I don’t have much else. In the circumstances where the accused maintains he’s innocent and there was no mental impairment defence - - -
HIS HONOUR: Yes.

As we have observed, the judge summarised the psychiatric opinions of Dr Deacon,[43] a psychiatrist engaged by the applicant’s solicitors initially to provide an opinion as to whether the applicant could avail himself of the defence of mental impairment.
[43]See [165] of these reasons.
At the risk of repetition, we shall restate a portion of the judge’s reasons central to grounds 1 and 2.
Notwithstanding this, Dr Deacon noted:
Mr Bednar may have been mentally unwell at the time of the alleged offence. However, based on his self-report that he was not mentally ill, and the lack of objective evidence that he was mentally ill, even if he was mentally ill, his judgment was unlikely to have been so impaired that it would have markedly influenced his decision making to the extent that he didn’t understand the wrongfulness of the alleged offending behaviour.
It is unsurprising in light of the opinions of Dr Deacon set out above that [defence counsel] did not assert that any of the first four limbs in R v Verdins & Ors was enlivened in your case.[44]
[44]Reasons for sentence, [90]–[91] (citations omitted).
This court will usually be reluctant to entertain appeal grounds that seek to resile from concessions made below or are a contradiction of submissions previously made.[45] ‘The revivification of arguments abandoned or eschewed on the plea is highly undesirable and should not be countenanced, save where fresh evidence is adduced, or in the exceptional circumstance where it can be shown that there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence.’[46] In this case, for the reasons that follow, we have concluded that counsel’s concession on the plea misunderstood the distinction between the defence of mental impairment and less extreme examples of mental illness and that concession led to a substantial miscarriage of justice arising from the plea and sentence.
[45]Romero v The Queen (2011) 32 VR 486, 489–90 [11] (Redlich JA, Buchanan JA agreeing at 494 [28], Mandie JA agreeing at 494 [29]); [2011] VSCA 45.
[46]Ibid.
Dr Deacon’s opinion above, cited by and relied upon by his Honour, recites one of the tests for mental impairment.[47] It does not provide a foundation to decline to engage Verdins limbs 1 to 4, which, as we shall explain, involve different considerations.
[47]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, s 20(1)(b).
The Verdins limbs are as follows:[48]
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.[49]
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
[48]Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.
[49]See, for example, Payne v The Queen (2002) 131 A Crim R 432, 444 [43] (Steytler J); [2002] WASCA 186.
The engagement of limbs 1 to 4 will be largely determined by whether an accused can demonstrate a causal contribution to the commission of the offence.[50]
[50]Charles v The Queen (2011) 34 VR 41, 70 [162] (Robson AJA, Redlich JA agreeing at 42 [1], Harper JA agreeing at 42 [2]); [2011] VSCA 399; Verdins (2007) 16 VR 269, 275 [26] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.
We consider that the evidence disclosed a substantial causal contribution made by the applicant’s mental impairment to the commission of the offence. In particular, we note:
•The prosecution case was opened on the basis that the applicant, while presumed to be legally sane, harboured delusional beliefs that his mother was falsely alleging that he was mentally ill. This was said to be the motivation for his murderous assault and was central to the prosecution case.
•The prosecutor opened that in mid-2020, the applicant began sending ‘delusional, aggressive, paranoid messages to a number of people’ including his mother.
•Between June 2020 and November 2020, the applicant was admitted as an involuntary patient on four occasions to the psychiatric ward of the Frankston Hospital. The prosecutor opened that ‘[h]e denied there that he was unwell and blamed his mother for having him committed’.
•The preponderance of medical evidence was that the applicant’s beliefs, giving rise to this motive for offending, were delusional. Dr Deacon, whose report was undisputed on the plea, stated:
Mr Bednar’s persecutory beliefs relating to his mother have been considered to be delusional in quality by numerous mental health professionals. I agree that his persecutory thoughts could be considered to be delusional in quality. These thoughts are importantly circumscribed and centred on his resentment towards his mother, and friends, for engaging mental health services, but on the background of persistent ill feelings for his mother generated from his adverse childhood and his mother’s historical involvement in engaging mental health services.
•In his sentencing reasons, the judge stated that after the applicant’s arrest, he exhibited ‘some signs of hypomania, and … also reported persecutory beliefs centred on [his] mother’.[51] The judge said those beliefs could be considered delusional in quality.[52]
•Dr Deacon considered that the applicant’s diagnosis was likely bipolar disorder type 1 with a differential diagnosis of schizoaffective disorder.
[51]Reasons for sentence, [89].
[52]Reasons for sentence, [89].
Mental illness lay behind the formation of the applicant’s motive to kill his mother, namely his delusional belief that she was persecuting him. In that way, the commission of the offence was causally connected to his mental impairment in the relevant sense. It is true that Dr Deacon’s opinion addressed a mental impairment defence only, a much narrower issue.[53] There is no explicit expert evidence that the applicant’s mental condition impaired his ability to exercise appropriate judgment, to make calm and rational choices, or to think clearly, at the time of the murder. It is therefore understandable that the sentencing judge, not faced with any submission to the contrary, did not make allowance for Verdins limbs 1, 3 and 4. But the prosecution case was that the applicant killed his mother while under the delusional belief that she was persecuting him. The jury having accepted that case, the necessary causal connection between the applicant’s delusional state and the commission of the offence must be taken to be established.
[53]Namely, whether the applicant knew the nature and quality of his acts and that the conduct was wrong: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, s 20.
In oral argument, the bench posed the following question to the respondent’s counsel: ‘Is it the [respondent’s] position that absent [the applicant’s] mental illness … that this crime would’ve occurred in any event?’ We understand counsel for the respondent to have conceded that this was a very grey area and that it was difficult to unpick Dr Deacon’s reasoning given that he concluded that the motivating thoughts were delusional, even though not to the point of establishing the defence of mental impairment.
It seems clear from the reasons for sentence that trial counsel’s failure to urge engagement of Verdins limbs 1 to 4 ultimately led his Honour to decline to give the applicant the sentencing benefit of that engagement. The applicant ran his case on the basis that he was not mentally impaired nor was he the killer. The fact that mental impairment was not an issue in the trial did not foreclose the issue of the engagement of Verdins limbs 1 to 4 on the plea. The recent jurisprudential history of mental illness as a mitigating factor on sentence is universally predicated on the proposition that an accused is mentally ill, but not to the extent that they are criminally insane[54] or mentally impaired.[55] Indeed, as we have seen, limb 1 of Verdins commences: ‘The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility’.
[54]In 1997, the common law defence of insanity was replaced with the statutory defence of mental impairment: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
[55]See, eg, R v Anderson [1981] VR 155; R v Mooney (1978) 2 Crim LJ 351; R v Tsiaras [1996] 1 VR 398; Verdins (2007) 16 VR 269; [2007] VSCA 102.
Having regard to our conclusion that the mental illness from which the applicant suffered for many years was directly causally connected to his crime, it bears upon his moral culpability, and the need for general and specific deterrence.
Similarly, to the extent that the applicant’s pre-offending campaign of intimidation and harassment aggravated the objective gravity of the offending (as found by his Honour), there was equally strong evidence that this misconduct was causally connected to his long-standing mental illness.
In these circumstances, if it were open to the judge to conclude that the applicant’s offending was aggravated by prior conduct, the weight given to such a conclusion would necessarily have to be diminished to reflect his causally connected mental illness. It seems that this process did not occur.

Sentence appeal: conclusion

Leave to appeal will be granted on proposed ground 1 and 2 and the appeal will be allowed. It is unnecessary to consider the manifest excess ground.

Resentencing

It is unnecessary to further rehearse his Honour’s findings on sentence. With the exception of the impact of mental illness, we generally agree with his Honour’s conscientious sentencing remarks. In particular, we observe that viewed objectively this was a serious example of the offence of murder with preplanning, a brutal assault upon his mother, a vulnerable victim in a domestic setting, and was intended at least to cause really serious injury. The post offence conduct of attempting to delay discovery of the crime and deflect blame onto another aggravates the offending. Further aggravation can be found in the fact that the murder was committed in breach of an intervention order, and in the context of repeated earlier breaches. We also take into account the standard sentence of 25 years imposed by Parliament, and the maximum penalty of life imprisonment. We agree with his Honour that Verdins limbs 5 and 6 are also engaged.
Against this, we are of the view that the applicant’s moral culpability is reduced as a consequence of his mental illness. Further, we consider, for the same reason, that he is a less suitable vehicle for general and specific deterrence than would otherwise be the case.
We consider that the sentencing consideration of community protection remains a powerful sentencing consideration. The applicant has no insight into his offending and simply does not accept that he is mentally ill. Whilst his paranoid delusions continue the community needs protection from him. The applicant has no remorse, which is an absence of a mitigating factor rather than an aggravating factor, and we agree with the judge that his prospects of rehabilitation are reasonably poor.
Balancing these factors as best we can, we would resentence the applicant on the charge of murder to 25 years’ imprisonment with a minimum term to be served before parole eligibility of 20 years. We would declare 1,184 days by way of pre-sentence declaration.
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[2024] VSCA 180

13 August 2024