IT’S the law that the defence gets the last say in a criminal trial, the last ‘bite of the cherry’ if you will, as Crown Prosecutor Dr Nanette Rogers SC meant to say during her closing address on Tuesday this week.
Oh, Dr Rogers wasn’t moaning about it.
She was simply explaining to the jury why she was trying to anticipate some of the arguments her counterpart, Colin Mandy SC, might broach in his closing submission.
Mr Mandy followed Dr Rogers’ final remarks with a nibble or two before the lunch break, also using the cherry analogy himself, claiming the prosecution was “cherry picking convenient fragments of the case while discarding inconvenient truths” in an effort to support an assumption that his client was already guilty.
But he took a few bites of the cherry after lunch, and will continue with his final defence submission on Wednesday.
It was Day 33 of the marathon mushroom murder trial in the Supreme Court at Morwell, with as few as three more sitting days before the jury retires to consider its verdict.
The stakes could not be higher.
In the dock, awaiting the outcome, is 50-year-old Leongatha mother of two, Erin Patterson, who has been charged with three counts of murder and one of attempted murder, arising out of a family lunch of beef Wellington including death cap mushrooms at her home on Saturday, July 29, 2023.
Mrs Patterson has pleaded not guilty to all charges.
Dr Rogers tried to anticipate a number of points Mr Mandy might make.
The jury was shown a photo of a pink phone used by Erin Patterson in the Leongatha Hospital on July 31, 2023, two days after the lunch, claiming it was Mrs Patterson’s primary phone. Dr Rogers said the jury should reject any suggestion Mr Mandy might make that the accused had permanently changed from that phone with the number ending in 783 to what Dr Rogers later termed a “dummy phone” with a number ending in 835 by the time police executed a search warrant at her Gibson Street home on August 5, 2023.
Dr Rogers said the jury members would also need to keep in mind that police were never able to “interrogate” the primary phone or “Phone A” because it was never found, if Mr Mandy tried to mount a case there should have been more computer or more mobile phone evidence in this case.
Dr Rogers also tried to anticipate that Mr Mandy might have something to say about motive, correctly as it turned out.
“Why would the accused deliberately do this?” was the rhetorical question from Dr Rogers to the jury.
“She loved Don and Gail, and they loved her. Her children were close to her. She hardly knew Ian and Heather, so she could hardly have an axe to grind with them, and even if she wanted to poison Simon, why would she go through with it after he pulled out of the lunch?”
Dr Rogers said it was only natural to wonder about these things, but she urged the jury not to become distracted by the question of motive.
The question, they needed to resolve, said Dr Rogers, was not why she did it but whether the prosecution had proved beyond reasonable doubt that the accused put the death cap mushrooms in the food deliberately with the intention of killing or causing really serious harm.
Dr Rogers also suggested Mr Mandy might have some criticism about the evidence given by some of the expert witnesses, for example digital forensic scientist, Dr Matthew Sorell, after he wasn’t provided with EBM data for every day of the four years of mobile phone records he reviewed.
Mr Mandy might also be critical of the methods adopted by Victoria Police digital forensics officer Shamen Fox-Henry, said Dr Rogers, going on to say however that he was a trained digital forensic officer, experienced in data recovery and forensic software.
Dr Rogers reminded the jury that motive is not an element of the crime of murder or the crime of attempted murder,
“It is only the elements of the offence that you must find proven beyond reasonable doubt,” Dr Rogers said.
But Mr Mandy did indeed focus on the issue of motive, among other things, when he began.
“What the prosecution said, of course, is absolutely correct, and his Honour will say it again. The prosecution doesn't have to prove a motive. They only have to prove the elements of the offences,” said Mr Mandy.
“But one of those elements is intention. Intention to kill or cause really serious injury,” he continued, saying that proof of a motive or the fact that there is a motive, can be very important to the proof of intent.”
Mr Mandy went on to probe claims that the relationship between separated husband and wife, Simon and Erin Patterson, might have provided a motive, especially in a discrete period between December 6 and 9, 2022, when Simon referred to some communication from his estranged wife as being extremely aggressive and inflammatory, saying these claims weren’t backed up under cross-examination by Simon.
In any case, according to Mr Mandy, the dispute over child support and payment for school fees and the like was largely over by the time Erin returned with the children from a holiday in New Zealand.
This, he said, was six months ahead of the family lunch in July 2023.
“At the time, in the middle of 2023, she was in a good place,” Mr Mandy submitted to the court.
“Erin was in a good place. She had a big beautiful house, she had just landscaped the garden, she had her children, who she loves deeply, with her most of the time. She was very comfortable financially. Her body image wasn't great; it hadn't been for a long time, but she was planning to do something about that.
“She was looking forward to returning to study. All things considered, she was in a good place and, in that context, we submit to you that she is most unlikely to have planned to murder people, especially if it is inevitable that it would be discovered,” he said.
He went on to question how realistic it was that someone would set about to kill four people in such a way, inevitable that it would be noticed, even as an incident of mass poisoning.
He said there was no secret the lunch invitations had gone out, that the food dehydrator was purchased with her own credit card at a local store, and that she had posted photos with her Facebook Messenger friends about trialling the dehydrator, and not just any friends, but with people who thought they were investigators of crime.
He also addressed the disposal of the food dehydrator, posing the question whether someone who thought they were guilty of murder would do it in such a way, taking it to their own local tip and paying for it with their own Bankcard.
“If you are planning a murder, what is the one thing you really should plan to dispose of? That's the murder weapon and she would have disposed of it months before and not told anyone she had one, surely.”
Mr Mandy said what she did spoke volumes about her own state of mind, that she was in a deep shock to hear how sick her husband’s family members were as a result of the meal she served.
“It was a deep shock to her because she never intended it to happen and if that's a reasonable possibility, then she must be found not guilty,” said Mr Mandy.
Moment of light relief
It’s hard to imagine humour being generated during a trial into the dire circumstances surrounding the terrible tragedy referred to by Mr Mandy in his remarks.
But it’s human nature and there have been such moments of light relief along the way.
Mr Mandy produced one on Tuesday when describing a case where motive wasn’t important when explaining intention.
“I'll give you another example. If an accused person says, 'I'm going to kill that person over there', I'm not pointing to anyone in particular,” he said, waving his hand in the form of a gun in the direction of the public gallery, and producing a general laugh.
“And then he walks over to that person with a gun and shoots them, you don't have evidence of a motive, but you've got evidence of an intention, the perfect evidence of intention.”
The remainder of Mr Mandy’s closing address, on behalf of the accused, Erin Patterson, is expected to continue for much of the day on Wednesday, after which the court will take a break while the judge, Justice Beale, prepares his charge for the jury.
This is expected to be delivered across two days, on Monday and Tuesday next week, with the jury retiring to consider its verdict on Tuesday evening, June 24.
