Justice Paul Coghlan also called Katia Pyliotis’ murder defence a “red herring calculated to mislead” and told lawyers that’s what he’d tell the jury.
Pyliotis was jailed for 19 years last year for the murder of lonely widower Elia Abdelmessih, whose bludgeoned body was found alongside a tin of mangoes and a Virgin Mary statute.
The former Kew McDonald’s worker was convicted in a fourth murder trial 13 years after his 2005 death.
While prosecutors are appealing her sentence, Pyliotis is appealing against her conviction on the basis that comments made by Justice Coghlan through the trial caused a substantial miscarriage of justice.
Her barrister, Dermot Dann QC, said the judge made a “negative and scathing assessment” of the defence case, which he shared with jurors.
At one point, the judge said the defence case was a “red herring calculated to mislead” and told the lawyers he would later share that view with the jury.
The defence had argued that an early suspect in the case – who has since died – remained a valid suspect.
That woman confessed to the crime in 2005, but an officer told the court she had recanted in the back of his police car in a supermarket car park days later.
His notes of that meeting were lost, he said.
A trio of appeal judges heard on Thursday that while defence lawyer Richard Edney was questioning a witness on DNA, the judge interjected to tell him “this is even more boring than the other parts of your cross-examination”.
He made other remarks in front of the jury, including that they’d “still be here 13 years later” hearing crime scene evidence, that “I’ll have to start answering these questions myself”.
It’s also argued that he told the lawyers without the jury present that “I’ll make what comments I want. It’s my court”.
In defending the accusations, prosecutor Chris Boyce QC said the judge had noted in his opening remarks that he makes comments in cases designed to help jurors reach a decision, but that they are just comments and if jurors disagree they don’t have to listen.
“I should try to keep out of it more,” the judge told them, according to Mr Boyce.
But Justice Phillip Priest said that might be viewed as a consciousness of guilt.
He later described Justice Coghlan’s boring comment as being “unjustifiable”, while Justice Terry Forrest said it impugned Mr Edney’s whole approach to the case.
Mr Boyce also argued that Pyliotis’ sentence was inadequate given the “brutal bludgeoning of a man of advanced years”.
Mr Dann said Pyliotis had been an “unworldly” 23-year-old at the time of the crime, that she suffered a major depressive disorder and had been through four trials before being convicted.
The judges have reserved their decision.