Court to decide Erin Patterson’s fate this Friday

SHOULD Erin Patterson be released after 33 years in prison for the triple murder of her in-laws, and the attempted murder of another in one of the state’s worst cases of mass murder?

Or, as the Victorian Director of Public Prosecutions Brendan Kissane KC told the Court of Appeal in August this year, setting a non-parole period of 33 years was manifestly inadequate in such heinous circumstances.

All will be revealed when the appeal judges Stephen McLeish, Lesley Taylor, and Peter Kidd hand down their decision this Friday, October 30.

They will also rule on an appeal by Erin Paterson against her murder and attempted murder convictions with a wide range of options open to the court, including:

• Setting aside the convictions, with acquittal and immediate release an option
• Ordering a retrial
• Confirming the decisions of the trial judge Justice Christopher Beale
• Resentencing the accused to life without parole.

The reasons why they might set aside the convictions and either acquit or order a new trial include:

• Error of law: A legal mistake made during the trial that affected the outcome.
• Substantial miscarriage of justice: A significant failure to do justice, such as juror misconduct or improper conduct by the Crown.
• Irregularity: A significant irregularity in the trial process that affected the fairness of the proceedings.
• Insufficient evidence: The trial judge's decision to convict was based on insufficient evidence to support the conviction.
• Resentence: The Court of Appeal may also consider whether the sentence imposed is manifestly inadequate and add years to the penalty imposed.

Ms Patterson listed seven grounds for her appeal including:

• A fundamental irregularity occurred while the jury were sequestered at a hotel in Traralgon, together with the principal informant in the case, members of the prosecution team and members of the media. Her legal team said at appeal that this fatally undermined the integrity of the verdicts and requires a quashing of the convictions and a re-trial to be ordered “so that justice cannot only be done but be seen to be done”.
• They also said that cell tower evidence and evidence of death cap mushroom sightings in Loch and Outtrim posted to iNaturalist should not have been used as evidence because the probative value of that evidence was outweighed by its unfair prejudice.
• Other evidence in the case was also disputed at appeal including a ruling in relation to photos of mushrooms found on an SD card at the applicant’s home and the evidence of Facebook friends, while claims were also made about the unfair nature of the cross-examination of the accused at trial.
• Ms Patterson's legal team also argued at the two-day appeal hearing that the prosecution misled the court about whether or not there was a motive in the case.

Meanwhile, the Court of Appeal judges are also being asked to increase Erin Patterson’s sentence, saying the trial judge made an error in taking into account Ms Patterson’s likely conditions in prison when he attached a non-parole period of 33 years to the series of life sentences for the murders of three Korumburra family members, and the attempted murder of a fourth.

The appeal decision will be handed down at a hearing starting at 10am this Friday, October 30.