Prosecution says no evidence Patterson had ‘innocent’ interest in foraging mushrooms
Crown prosecutor Jeremy McWilliams is arguing against Patterson’s third ground of appeal.
On this ground, Patterson’s legal team argue the trial judge, Justice Christopher Beale, erred in ruling that photos and videos related to mushrooms and found on an SD card in Patterson’s home was inadmissible.
Patterson’s lawyers said the photos from 2020 tended to support her evidence that she had a tendency to forage for mushrooms, which included picking and eating them. They argue the ruling meant she was forced to testify about the photos and hence was denied her right to silence as a defendant.
But McWilliams said none of the photographs had the “hallmarks of culinary use”.
He said some of the photographed mushrooms looked “raggedy”.
He says there is no evidence that Patterson had an “innocent” interest in foraging wild mushrooms.
Key events
DPP on Patterson’s likelihood to remain in solitary confinement
The director of public prosecutions for Victoria, Brendan Kissane KC, says that in fixing a non-parole period the trial judge, Justice Christopher Beale, found there was a “substantial chance” that Patterson would continue to be held in solitary confinement in “years to come”.
Kissane says the finding is “not supported by the evidence that his honour had before him”.
He says this evidence included two affidavits and the cross-examination of Jenny Hosking, from Corrections Victoria, who testified about Patterson’s life behind bars at a pre-sentencing hearing.
Last year, Hosking, the assistant commissioner for the sentence management division at Corrections Victoria, outlined Patterson’s solitary life in prison.
Kissane says the evidence does not show that Patterson will be held in solitary confinement for years to come. He points to Hosking saying Patterson had not been held in the same accommodation during her time in custody. He says:
She moved between units.
DPP begins arguing against Patterson’s sentence
The court is now hearing the DPP’s appeal against Patterson’s sentence.
Last September, Patterson was sentenced to a minimum of 33 years behind bars.
Court resumes
Erin Patterson’s appeal hearing has resumed.
Court adjourns
The court has adjourned for a lunch break.
The hearing will resume at 2.15pm.
Defence returns to phone data evidence
Patterson’s defence barrister, Veronika Drago, returns to the evidence about phone towers and iNaturalist posts. She says the jury heard that expert witness Dr Matthew Sorell had looked at Patterson’s phone data showing her location across 18 months.
But Drago says Sorell did not have access to the entirety of the records because the prosecution only provided data related to dates of interest to their case.
Drago said the phone tower evidence, given by Sorell, was used by the prosecution to draw an inference that Patterson could have attended two locations reported on iNaturalist where death cap mushrooms had been sighted.
Defence rejects argument Patterson was ‘feigning illness’
Touching on ground five, Edney rejects the prosecution’s closing address argument that Patterson was “feigning illness” after the beef wellington meal.
He said there were questions which should have been asked of multiple medical witnesses who examined Patterson in the days after the meal.
He says these questions should have been asked given the prosecution’s claim that Patterson faked illness after the fatal lunch.
Defence turns to arguments about jury sequestering arrangement
Patterson’s defence lawyer, Richard Edney, is now responding to the DPP’s arguments about ground one of his client’s appeal.
This refers to jurors staying in the same hotel as police and the prosecution while they deliberated over their verdicts in the triple-murder trial. Patterson’s legal team has labelled this a “catastrophic” failure of the justice system.
Edney expresses “concern” that the jury sequestering arrangement was not disclosed by Victoria’s office of public prosecutions (OPP).
He says there was “silence” about the arrangement on the OPP’s side. Edney says only the prosecution had knowledge of the jury sequestration issue for numerous days during the deliberations.
Prosecution turns to arguments about Facebook messages
McWilliams has turned to grounds four and seven in Patterson’s appeal.
Ground four argues that evidence from Facebook messages Patterson sent to a group chat with her online friends created an “unfair prejudice” in the trial. The seventh point of Patterson’s appeal argues that the messages were used to imply a motive to kill in the prosecution’s closing submission despite the prosecution maintaining it was not alleging motive during the trial.
McWilliams says there is no “unfair prejudice” because the prosecutor, Nanette Rogers, told the jury the prosecution was not asserting a motive in her closing address.
He says the Facebook evidence was “pure relationship evidence”. McWilliams rejects Patterson’s legal team’s argument that the prosecution’s position on motive changed during the trial.
Prosecution turns to argument Patterson wasn’t severely ill after beef wellington
McWilliams is touching on the prosecution’s argument in its closing address that Patterson was not severely ill after the poisoned beef wellington lunch. Patterson’s lawyers have pointed to evidence heard in the trial, including testimony about her lowered potassium levels.
McWilliams says her potassium levels were “clinically noted” but she did not present as having death cap mushroom poisoning after the meal. He says:
Whatever it was that she presented to medical practitioners with, it was not death cap mushroom poisoning.
Prosecution addresses Patterson’s claim of miscarriage of justice
McWilliams has turned to Patterson’s sixth ground of appeal – that prosecutor Nanette Rogers SC’s closing address caused a substantial miscarriage of justice. Patterson’s legal team has outlined 35 occasions where they argue Rogers misstated the evidence.
McWilliams says none of the 35 points has any substance. He says 20 of the points were not raised during the trial while five were raised “significantly after” the prosecutor’s closing address.
McWilliams says Patterson’s cross-examination required Rogers to “put the question again in a different way to get a responsive answer”.
He says on at least one occasion the trial judge, Justice Christopher Beale, interjected and suggested the point had been taken as far as it could go.
McWilliams says this was not a criticism but an observation.
Prosecutor says Patterson’s cross-examination was ‘fair’ and ‘thorough’
McWilliams has skipped ahead to Patterson’s fifth ground of appeal – the argument that her cross-examination was “oppressive” and “unfair”.
McWilliams says the argument is “unpersuasive”.
He says Patterson’s cross-examination by prosecutor Nanette Rogers SC was “fair”, “thorough” and conducted with the “overarching duty of fairness”.
McWilliams points to the testimony of witnesses, including Patterson’s son, who cannot be named for legal reasons, who told police he had never known his mother to pick mushrooms.
He says the trial heard evidence that runs counter to the defence’s proposition that Patterson had an innocent mushroom foraging habit.
Prosecution says no evidence Patterson had ‘innocent’ interest in foraging mushrooms
Crown prosecutor Jeremy McWilliams is arguing against Patterson’s third ground of appeal.
On this ground, Patterson’s legal team argue the trial judge, Justice Christopher Beale, erred in ruling that photos and videos related to mushrooms and found on an SD card in Patterson’s home was inadmissible.
Patterson’s lawyers said the photos from 2020 tended to support her evidence that she had a tendency to forage for mushrooms, which included picking and eating them. They argue the ruling meant she was forced to testify about the photos and hence was denied her right to silence as a defendant.
But McWilliams said none of the photographs had the “hallmarks of culinary use”.
He said some of the photographed mushrooms looked “raggedy”.
He says there is no evidence that Patterson had an “innocent” interest in foraging wild mushrooms.
Court resumes with Erin Patterson on video link from prison
The appeal hearing has resumed.
Patterson has joined the court via video link from Melbourne’s Dame Phyllis Frost Centre – the state’s maximum security women’s prison.
She is wearing the same outfit as yesterday – a royal blue jumper, jeans and black reading glasses. Her long hair is pulled back in a ponytail.
Surviving lunch guest in court for day two
Ian Wilkinson, the sole surviving lunch guest, has returned to court for day two of Patterson’s appeal hearing.
Wilkinson is accompanied by his daughter, Ruth Dubois.
Prosecution argued yesterday phone tower evidence helped show Patterson had opportunity to source mushrooms
Just a reminder that, before the court adjourned yesterday, we heard from crown prosecutor Jeremy McWilliams, responding to Patterson’s second ground of appeal.
On this point, Patterson’s legal team argues that evidence about mobile phone towers and death cap mushroom sightings on the citizen science website iNaturalist should not have been heard at the trial because it was not relevant, or its value was outweighed by its unfair prejudice to Patterson.
But McWilliams argued that the evidence was part of a collection which “taken together” showed Patterson had the opportunity to deliberately source death cap mushrooms before the fatal lunch.
The phone tower evidence, given by expert witness Dr Matthew Sorell, was used by the prosecution to draw an inference that Patterson could have visited two locations reported where death cap mushrooms had been sighted and reported on iNaturalist.
Good morning
Welcome to day two of our live coverage of Erin Patterson’s appeal. We are expecting today’s hearing to begin at 10.15am.
Yesterday, the Victorian court of appeal heard the seven grounds of appeal Patterson’s legal team is arguing against her convictions for three murders and one attempted murder.
Today, we will also hear legal argument from Victoria’s director of public prosecutions, who is appealing against Patterson’s sentence, arguing it is “manifestly inadequate”.
Last September, Patterson was sentenced to life imprisonment, with a non-parole period of 33 years, for the murders of her estranged husband’s parents, Don and Gail Patterson, and his aunt, Heather Wilkinson. She was also convicted of the attempted murder of Heather’s husband, Ian Wilkinson, who survived the lunch after spending weeks in hospital.
The three court of appeal judges will consider whether Patterson’s convictions should be quashed, and if she should remain in prison for life without the possibility of parole, with a judgement to be handed down at a later date.
