Erin Patterson, 51, who is serving a life sentence for murdering three of her relatives with death cap mushrooms, has returned to court to appeal her convictions.
She was convicted of murdering her estranged husband’s parents, Don and Gail Patterson, and Gail’s sister, Heather Wilkinson and attempting to murder Heather’s husband, Ian Wilkinson, who survived after becoming seriously ill.
Patterson’s lawyer today argued that the jury sequestration was fundamentally flawed because jurors were housed in the same hotel as the police, media and others connected to the trial.
Richard Edney argued in court that even if the jury did not actually interact with anyone involved, they had the opportunity to encounter people from one side of the case.
He called the court’s failure to prevent this an “inexplicable” and “catastrophic” error in such a high-profile trial.
However, the prosecution has rejected the defence team’s argument. Director of public prosecutions Brendan Kissane, KC, said there was “no substance” to the defence claim.
The case centres on a July 2023 lunch at Patterson’s home at Leongatha in Victoria, where she served beef Wellington containing poisonous death-cap mushrooms.
Key Points
- Patterson is appealing conviction on seven grounds
- Director of public prosecutions says ‘no substance’ to defence complaint about shared hotel
- Erin Patterson’s lawyer says jury’s sequestration arrangements were ‘catastrophic’
- Defence says ‘dangerous’ phone evidence unfairly prejudiced Patterson’s trial
- What happened at today’s appeal hearing
We are pausing the live coverage of the Erin Patterson appeal hearing for today. We’ll resume tomorrow. Have a good day.
Defence and prosecution argue over jury sequestration
08:45 , Maroosha MuzaffarErin Patterson’s defence argued today that the jury’s hotel arrangements created a serious risk to the fairness of Patterson’s trial, describing the shared accommodation with police and prosecutors as a “fundamental irregularity” and “catastrophic”.
However, the defence team accepted that there was no evidence jurors actually spoke to prosecutors or police.
The Crown prosecution rejected that.
Director of public prosecutions Brendan Kissane KC said there was “no substance” to the complaint and called the suggestion of a “catastrophic” failure unsupported.
“There is actually no substance to it,” Kissane said.
“Far from being some sort of catastrophic failure ... there’s no evidence in our submission to support this ground.”
Kissane said the evidence showed there was “no social contact between any juror and any other person”.
He said the jurors stayed on a separate floor and used a separate dining room, while jury keepers were responsible for preventing any improper communication with them.
In Pictures: Lawyers and mushroom lunch sole survivor attend court
08:19 , Maroosha Muzaffar
What happened at today’s appeal hearing
07:58 , Maroosha MuzaffarThe defence said excluding photos and videos of mushrooms compromised Erin Patterson’s right to silence by forcing her to testify about her previous foraging.
Richard Edney argued Patterson was questioned repetitively and unfairly, potentially diverting jurors from the prosecution’s burden of proof.
The defence raised 35 complaints about prosecutor Nanette Rogers SC’s closing submissions.
Edney said the appeal court could still intervene despite no application to discharge the jury at trial, citing the Greg Lynn case.
The defence challenged Facebook evidence and accused prosecutors of introducing a motive involving a child-support dispute that had not been properly put to the jury, calling it a “trial by ambush”.
Director of public prosecutions Brendan Kissane KC rejected claims that jurors staying at the same hotel as prosecutors and police was a fundamental irregularity, saying there was no evidence of improper contact.
Jeremy McWilliams defended the evidence, saying it helped establish Patterson had an opportunity to source death-cap mushrooms before the fatal lunch.
The hearing wrapped at 4.14pm local time. The Crown will continue its response tomorrow.
That’s it for the day
07:26 , Maroosha MuzaffarThat’s a wrap for today’s appeal hearing.
The Crown has begun responding to Erin Patterson’s grounds of appeal, with prosecutor Jeremy McWilliams today defending the use of cell tower and iNaturalist evidence at her trial.
The hearing will resume tomorrow before Justices Leslie Taylor, Stephen McLeish and Peter Kidd, with the Crown continuing its response to the defence arguments.
Prosecutor defends phone tower and iNaturalist evidence in Patterson appeal
07:09 , Maroosha MuzaffarCrown prosecutor Jeremy McWilliams is addressing Erin Patterson’s second ground of appeal, which challenges the admission of mobile phone tower data and death cap mushroom sightings published on the citizen science platform iNaturalist during her trial.
McWilliams argued that the evidence should be considered alongside other material presented to the jury, saying it helped establish that Patterson had an opportunity to obtain death cap mushrooms before the fatal lunch.
McWilliams also went through some of this evidence in detail as he argued it was used appropriately in Patterson’s trial.
“No such argument was made in relation to the iNaturalist evidence in the trial,” McWilliams said.
“The response is that this evidence was part of a collection of evidence which, taken together, demonstrated that the applicant had opportunity to deliberately source death cap mushrooms at a time close to the lunch, and on the prosecution case, did so.”
Director of public prosecutions says ‘no substance’ to defence complaint about shared hotel
06:45 , Maroosha MuzaffarThe prosecution has rejected Erin Patterson’s defence team’s argument that housing jurors in the same hotel as police and prosecutors compromised her trial.
Director of public prosecutions Brendan Kissane, KC, said there was “no substance” to the defence claim and no evidence that any juror had social contact with police, prosecutors or other people connected to the case.
“There is actually no substance to it,” Kissane said.
“Far from being some sort of catastrophic failure ... there’s no evidence in our submission to support this ground.”
Kissane said the evidence showed there was “no social contact between any juror and any other person”.
He said the jurors stayed on a separate floor and used a separate dining room, while jury keepers were responsible for preventing any improper communication with them.
Sole survivor of fatal mushroom lunch attends Patterson’s appeal in court
06:35 , Maroosha MuzaffarIan Wilkinson, the sole survivor of the mushroom lunch, attended the Supreme Court hearing with members of his family as Erin Patterson’s appeal against her murder convictions began.
Patterson appeared via a video link from prison.
Wilkinson said he had forgiven Patterson for trying to kill him, but could not forgive her for the deaths of his wife Heather, Gail and Don Patterson.
At Patterson’s sentencing hearing, Wilkinson said he wanted justice for the three people who died.
“I make an offer of forgiveness to Erin.
“In regards to the murders of Heather and Gail and Don, I am compelled to seek justice.
“Now I am no longer Erin Patterson’s victim, and she has become the victim of my kindness.”
Defence accuses prosecution of changing case: ‘Trial by ambush is not permitted’
06:20 , Maroosha MuzaffarErin Patterson’s defence argued that the prosecution changed its case “surreptitiously” during closing arguments by suggesting she had a motive for the murders that wasn’t outlined at the start.
The defence lawyer Veronika Drago says prosecutors relied on Facebook messages showing Patterson’s frustration with her estranged husband’s family and a child support dispute to imply she was angry with them.
“A trial by ambush is not permitted,” Drago said.
The judges, however, questioned why Patterson’s lawyers did not raise this issue during the original trial.
Patterson’s lawyers complain of ‘unfair’ cross-examination
05:53 , Maroosha MuzaffarErin Patterson’s defence lawyer Richard Edney has argued that prosecutors subjected her to unfair and oppressive cross-examination during her trial in Morwell last year.
Presenting the fifth ground of appeal, Edney said the prosecution’s questioning of Patterson was repetitive.
“But also asking the applicant whether another witness was wrong, mistaken, or incorrect, in our submission, really diverted the jury from their proper task,” he said.
“The jury might have impermissibly thought or wondered why the applicant didn’t give an explanation, despite those directions that the jury got in relation to standard of proof and the burden of proof.”
Defence argues there was ‘selectivity’ of the evidence during trial
05:47 , Maroosha MuzaffarErin Patterson’s defence argued that the prosecution did not properly challenge medical evidence and that there was “selectivity” of the evidence.
Her lawyer, Richard Edney, said there was evidence Patterson had at least a mild diarrhoeal illness, but prosecutors largely dismissed her symptoms as self-reported and argued during the trial that she had faked being sick to conceal her role in poisoning her relatives.
Edney argues the prosecution should have questioned medical experts more thoroughly about evidence that could have supported Patterson’s claim that she was genuinely unwell.
However, Justice Peter Kidd pushed back, saying the defence may be mischaracterising the prosecution’s case and noting that the trial judge had already considered and rejected several of these arguments.
Defence says ‘dangerous’ phone evidence unfairly prejudiced Patterson’s trial
05:25 , Maroosha MuzaffarErin Patterson’s defence argued this morning that mobile phone tower evidence and online reports of death-cap mushroom sightings near Outtrim and Loch should not have been admitted at her trial because they were potentially “dangerous” and unfairly prejudicial.
Defence barrister Veronika Drago said expert evidence from digital forensics specialist Dr Matthew Sorell turned objective cell tower data into a more subjective interpretation.
She noted that trial judge Justice Christopher Beale had found the phone evidence did not prove Patterson visited either location, but only indicated the possibility that she may have been there on the dates in question.
The locations were significant because death-cap mushrooms had been reported there on iNaturalist – in Outtrim by fungi expert Dr Thomas May on 21 May 2023 and in Loch by former poisons information specialist Christine McKenzie on 18 April 2023.
The defence says presenting the two sets of evidence together risked creating an unfair impression about Patterson’s movements and her alleged access to death-cap mushrooms.
Patterson is appealing conviction on seven grounds
05:07 , Maroosha MuzaffarErin Patterson, 51, is challenging her convictions for the deaths of three relatives, but is not appealing her life sentence.
If the appeal succeeds, the convictions could be overturned, with the court able to order a new trial or acquit Patterson.
Her lawyers have put forward seven grounds of appeal. Among them is a claim that the jury’s sequestration was seriously flawed because jurors stayed at the same regional hotel as police and media representatives while considering their verdict.
The defence also argues Patterson faced an unfair and oppressive cross-examination during her trial.
Another ground concerns evidence about Patterson’s movements and death-cap mushrooms.
Her lawyers say mobile phone tower data and reports of death-cap sightings near her home should not have been presented to the jury.
Prosecutors had used phone data to suggest Patterson may have travelled to two locations after mushrooms were reported there.
The defence is also challenging evidence from people who knew Patterson through a Facebook true-crime group.
Her lawyers argue their evidence was irrelevant, including messages in which Patterson said she wanted “nothing to do” with her parents-in-law.
Defence says evidence ‘compromised’ Patterson’s right to silence
04:35 , Maroosha MuzaffarErin Patterson’s defence has argued that a trial judge’s decision to exclude evidence about her interest in mushrooms effectively forced her to testify about it.
Defence barrister Veronika Drago told the appeal court that photos and videos found on an SD card at Patterson’s home showed she had previously foraged for mushrooms.
The defence wanted to use the material to challenge the prosecution’s suggestion that Patterson’s claims about innocently picking mushrooms were untrue.
But the trial judge ruled the evidence inadmissible.
Drago argued this left Patterson having to testify that she had foraged for mushrooms before in order to explain her interest in them.
She said this “compelled” Patterson to give evidence and compromised her “right to silence”.
The defence also argued the ruling effectively shifted the burden of proof onto Patterson, rather than requiring the prosecution to prove its case.
Erin Patterson’s lawyer says jury’s sequestration arrangements were ‘catastrophic’
04:09 , Maroosha MuzaffarErin Patterson’s defence has argued that a decision to house jurors in the same hotel as police and prosecution figures during her murder trial was a serious failure that could have affected the verdict.
Defence barrister Richard Edney described the jury’s sequestration arrangements as a “fundamental irregularity” and called what happened “catastrophic”.
Patterson’s lawyers have acknowledged there is no evidence that jurors actually spoke to prosecutors or police at the hotel. But they argue that simply being around key figures from the prosecution could have created a risk of improper communication or subconscious influence.
Patterson is appealing her convictions for murdering three relatives and attempting to murder another relative using poisonous death cap mushrooms.
