Short cut to mushrooms during Erin Patterson murder appeal

THE argument in Erin Patterson’s appeal against her conviction, on three counts of murder and one of attempted murder, inevitably turned back to mushrooms and a little-known piece of non-evidence about a fictitious cat.

Junior Counsel for the Crown, Jeremy McWilliams, continued to probe the seven grounds of appeal brought by the applicant against her conviction on Day Two of the hearing in the Court of Appeal in Melbourne on Thursday, August 20.

Convicted triple murderer, Erin Patterson, again appeared in the court by video link, still dressed in her prison-blue windcheater, hair tied back this time, but sitting noticeably further back from the CCTV camera in the room at the Dame Phyllis Frost Centre.

For much of the day, Ms Patterson rested her arms, crossed on the desk in front of her, although, at times, she clasped her hands in front of her chin, appearing to listen intently to the argument going backward and forward between the three appeal judges; Justice Stephen McLeish, Justice Peter Kidd and Justice Lesley Taylor and the various legal counsel for the Crown and the applicant.

There’s a lot at stake.

Ms Patterson claims there has been a substantial miscarriage of justice with the way key aspects of her case were handled by trial judge, Justice Christopher Beale, so much so that her conviction should be quashed and either a retrial ordered or the charges vacated.

After concluding his response to grounds 2, about the cell tower evidence and its relevance to death cap mushroom sightings at Loch and Outtrim posted to iNaturalist website, Mr McWilliams moved to grounds 3, about mushroom photos found on an SD card, as follows:

“That the learned trial judge erred in ruling that photos and videos related to mushrooms and found on an SD card at the applicant’s home was inadmissible during the prosecution case, such that a substantial miscarriage of justice has occurred.”

He was responding to statements made by Erin Patterson’s legal counsel, Veronika Drago, the day before, that it should have been the prosecution and not the defence, that introduced the SD card evidence, with pictures of mushrooms collected by Ms Patterson.

Instead of simply responding to the prosecution case, Ms Patterson had to introduce the evidence of the mushroom photos herself during her own time in the witness stand, but according to Ms Drago this put the applicant (her client) at a great disadvantage, an unacceptable disadvantage where the fairness of the trial was concerned.

It’s a complicated argument because the prosecution themselves originally wanted the pictures admitted into evidence, because they wanted to show that Erin Patterson had an interest in poisons, not simply mushrooms, but lost their argument during the pretrial when the judge ruled the pictures were more prejudicial than probative, that they lacked relevance to the main issues at hand.

This was at a time when the charges of attempted murder, where her husband Simon Patterson was the alleged victim, were still in play, and while Erin Patterson had not yet introduced the idea that she might have mistakenly put poisonous mushrooms in a cannister of dried mushrooms in her pantry.

“What was the applicants’ interest in foraging for mushrooms according to the trial record,” asked Justice Kidd.

“She denied it in her record of interview,” said Mr McWilliams.

“Asked if it was something you’ve done in the past, she said, no never, he said quoting from the record of her original police interview in November 2023.

“So, she denies ever foraging for mushrooms or using any preserving techniques,” said Mr McWilliams.

He said she had never discussed mushrooms with one of her social-media friends. Her husband Simon Patterson said he had never known the applicant to collect mushrooms. He said her son said he had never known his mother to pick a mushroom and he had never been mushrooming with her.

“Her daughter said she had never seen a mushroom while out walking with her mother.”

Mr McWilliams said the only reference to picking mushrooms came in the defence’s opening address.

It was against that landscape, he said, that the attempt to introduce the evidence of the mushrooms on the SD card was unconnected to any other evidence and did not support the tendency claims.

Justice Kidd took Mr McWilliams back to the efforts by the Crown to introduce the photos on the SD card in the pretrial.

Mr McWilliams said prosecution wanted to use the SD card photos to support a tendency to have an interest in poisons.

“We need to be sure we are comparing apples with apples here,” he said.

He referred to a post by the applicant allegedly about her cat eating a piece of mushroom and becoming sick. The applicant didn’t own a cat, he said, but the prosecution sought to introduce that as a tendency of having an interest in poisons.

But he said the defence sought to introduce the mushroom photos on the SD card as evidence of a tendency to pick mushrooms whereas there was opposition to the Crown introducing the photos of the mushrooms on the SD card as evidence of a tendency to be interested in poisonous mushrooms.

“I rather got the impression that the photographs themselves tended to show an interest in mushrooms, at least in photographing them, but didn’t necessarily support a tendency,” said Justice Kidd.

“Whatever the case, His Honour decided they didn’t support an interest in picking and eating mushrooms,” said Mr McWilliams.

“Ultimately His Honour decided that the photos didn’t meet that relevance test.

“What was sought here was evidence to support a tendency to pick and eat mushrooms but they couldn’t support that tendency on their own.

“There was nothing to support that the mushrooms were being prepared to eat.

“And they were in quite modest quantities, a single mushroom or parts of a single mushroom from a discrete period of time.

“That the evidence lacked sufficient probative value to be introduced into evidence,” he said.

Justice Kidd asked if it was enough to raise the possibility of there being an accident.

But Mr McWilliams disagreed saying the mushrooms were indescript with no evidence they were going to be included in any cooking or preserving process, saying it didn’t support the potential of culinary misadventure versus deliberate poisoning.

“We say the judge was right to say that the tendency wasn’t achieved.”

Justice Lesley Taylor said the position of the defence case was that people were more likely to go out foraging for mushrooms during COVID when they had more time on their hands.

Mr McWilliams denied the applicant had been forced to break her right to silence by having to introduce evidence that she had previously collected mushrooms.

H said she had a had a decision to make if she wanted to bring evidence to support her tendency to forage for mushrooms, she was able to bring that evidence, and use the photos on the SD card to support it.

He said the evidentiary gateway was created by the applicant going into the witness box and giving evidence about picking mushrooms, opening the way for that material to be introduced. It wasn’t a matter of giving up her right to silence, he said.

“She wasn’t compelled to give evidence about the obvious lie (that she ever collected wild mushrooms), it was first introduced by the defence in his opening statement presumably to support an aspect of their case,” said Mr McWilliams.

Ms Drago returned to the issue of admitting the SD card of mushrooms photos into evidence, claiming that the jury may have been left with a completely different impression of the applicant, who had been repeatedly accused of lying about foraging for mushrooms, if the SD card of mushrooms photos, obtained by police during a lawful search of Ms Patterson’s home, had been admitted into evidence during the prosecution case, claiming it contributed to a significant miscarriage of justice against Erin Patterson.

The other seven grounds of appeal were also addressed in detail by Mr McWilliams, and also by the Director of Public Prosecutions himself, Brendan Kissane KC, who specifically defended the Crown over allegations in ground one, “that a fundamental irregularity occurred while the jury were sequestered that has fatally undermined the integrity of the verdicts and requires the quashing of the convictions and an order for a re-trial so that justice cannot only be done but be seen to be done”.

The claim here was that the principal informant in the case, Detective Leading Senior Constable Stepehen Eppingstall, and other parties to the trial, had been staying at the Traralgon motel, Bridges on Argyle, at the same time as the jury was sequestered there during their final deliberations.

The applicants’ legal team argued that even if there was no evidence of any miscommunication or impropriety, that justice not only needed to be done, but it also had to appear to be done.

Setting a non-parole period

The Department of Public Prosecutions legal team then moved on to its application about the sentence being manifestly inadequate, especially in setting a non-parole period of 33 years, largely based on her conditions of confinement in prison.

Mr Kissane KC for the prosecution said that even if the court was against the application on the issue of the prison conditions, the aggravating aspects of the three murders and one of attempted murder required a non-parole period greater than 33 years, making a submission that it should be life without parole.

Mr Edney for the defence said Ms Patterson’s confinement for up to 23 hours-a-day in effective solitary confinement was ongoing.

The Court of Appeal judges are yet to make a ruling either on Ms Patterson’s appeal against her conviction or the DPP’s submission about the adequacy of the sentence.