How to judge Erin: Justice Beale weighs in

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Charging into the final days.

I'm ABC Investigative Reporter Rachel Brown.

And I'm Stephen Stockwell.

It is Tuesday, the 24th of June, and we have just finished day 35 of this trial.

Welcome to Mushroom Case Daily.

The small small town mystery that's gripped the nation and made headlines around the world.

On the menu was Beef Wellington, a pastry filled with beef and a pate made of mushrooms.

At the heart of this case will be the jury's interpretation of Erin Patterson's intentions.

Erin Patterson has strongly maintained her innocence.

It's a tragedy what happened.

I love them.

All right, Rach.

Day one of week nine, and I like what you've done at the start there.

Charging into the final week, we've got Justice Beale giving his charge to the jury, the kind of final act of this trial before the jury heads off to consider a verdict.

They've had their second Easter, so have we.

I noticed one came back with a lovely haircut, so they've had a nice break.

Excellent.

We did get through quite a lot today.

Justice Beale kind of explaining to the jury how they should be thinking about evidence, how they should be applying the law.

And before we get into all the different bits and pieces, can you give us a run-through of the day, please?

Sure.

Justice Beale started the day by laying out his role.

Basically, he's going to be taking the jury through principles of law and summarising key bits of evidence from both the prosecution and the defence.

He gave them all a present today.

They got fresh binders, a chronology of the river of evidence that they've heard from all the witnesses, starting with Simon Patterson, all the way to Erin Patterson, who bookended the witnesses at witness number 53.

Justice Beale went on to tell the jury what they should make of her taking the stand.

He went through good character evidence and what to make of her children's evidence.

He also talked them through certain types of evidence like hearsay and tendency, which we'll talk through in this episode and how to assign that different weight.

Then finally, they got an early mark today for more legal argument.

Thank you, Rach.

A lot, yeah, when you put it like that, we did go through quite a bit today.

And before we get going,

this is a really important important part of a trial, basically the judge explaining kind of, you know, the law and how to assess all this stuff.

Can you just, you know, 30,000 foot view, explain to me,

you know, let's assume that I don't know what's going on, what a judge's charge is.

So this is really important, even though bits of it might be quite technical and heavy.

Remember, Stocky last week, he said to the jury, now I know you're probably all impatient to get to that final and most critical juncture, which is deliberations.

But he says it's important not to just get to that stage, but to do things right every step of the way and this the judge's charge is a critical part of that process he explained to them straight up the three parts of that charge so first he'll be directing them on principles of law some of those we'll take you through today secondly he said he'll be summarizing the evidence that relates to those issues and the prosecution and defence argument interestingly he said my summary won't cover all of the evidence couldn't possibly if i don't cover it doesn't mean that it's not important and if i do cover it that doesn't mean you should assign that that more weight.

Okay.

And then thirdly, he said the verdict must be unanimous.

And he reminded them that they'll be having a ballot before deliberations to bring the number, which is currently 14, down to 12.

So 12 people, 12 jurors will be the people making this very critical decision.

Yeah.

Thank you, Rach.

The part that I enjoyed, I'm not going to say the most because today was a very important day, but a moment that I did enjoy particularly,

you know, I like to enjoy all the moments equally, equally, was the chronology, which you've mentioned.

This was, you know, most of the time they work at an iPad.

This is this like basically a binder that had, you know, all of these little dividers getting them from, you know, kind of like 2020 or whatever through to the lunch, right, Rach?

Yeah, confession.

This excited me too, Stocky, because I love stationery.

I love post-its.

Usually my house is covered in them because they help.

put cases in chronological order for me.

And that's exactly what Justice Beale has presented the jury with.

So they all got a white binder, very old-fashioned hard copy of a chronology that's managing the river of information that they've heard over the past eight weeks.

They were all distributed by the tip staff, Stuart Hastings, and I tried to catch his eye to see if I could ask for a copy because, my God, that would be amazing.

I saw some of their faces, though, when they were given the binder, the jurors, and I think Justice Beale realised and said,

oh, this was to help you manage the info, but yeah, you're probably looking at this 86 pages thinking, oh, not more.

but he said look it's not homework you don't have to plow through it just dip into it when you know but you might think oh may 2022 i think something happened there you can dip into this binder and find out i um i like that he's gone hard copy because yeah they have the ipads and they'll be like looking at exhibit on the ipad they can flick through the hard copy to have a look at that um he's also divided it to like kind of key moments you know the the days after lunch had their own little divider and i loved that he was like look you know there's 10 dividers and then there's these four post-it notes um and the four post-it notes aren't special.

It's just the dividers only come in a pack of 10.

So you've only got 10 of them.

Necessity is the mother of invention and post-its solve that problem.

It's a wonderful little nugget for them.

And once that was distributed, we started getting into what the jury should and shouldn't be doing as they're going through and making the decision.

Basically, like ignoring the sympathies, ignoring the prejudices.

And it's the facts are up to them.

So they've been presented with all this evidence.

They are now deciding what facts that they are taking on board to make the decision and what facts they're leaving to one side.

You know, they're not supposed to listen to the questions that were asked of people.

That reminded me somewhat of how Nanette Rogers was questioning Erin Patterson through the cross-examination, asking questions, you know, and just getting an agree or disagree from Erin Patterson.

And then also just thinking about, you know, kind of, I guess, the character of people, referring particularly as well to the character of Erin Patterson at that point as well.

Yeah, the jury heard what to make of her good character evidence, and we have heard a lot of it.

You know, Simon Patterson, her estranged partner, gave evidence that she had a great relationship with his parents over the years.

We heard again about the loans that she gave Simon Patterson's siblings that ranged between $250,000 to $400,000.

They could pay it back when they liked, interest-free, just, you know, adjusted to indexation, but on their own terms.

We were reminded of certain evidence from witnesses that gave evidence about her as a mother.

attentive, devoted, that her life revolved around her two children.

We heard that the informant, Stephen Eppenstall, said she had no criminal history.

So in summary, said Justice Beale, she was a good daughter-in-law, a good in-law to her,

you know, to Simon's siblings and a good mother.

And he said, so this is something that you can use when determining the likelihood that she committed the offences charged, because he said, a person of good character is unlikely to commit criminal offences.

So that might make you, jury, less likely to accept the prosecution's allegations.

But then he went on to say, it doesn't mean you should find her not guilty.

It only helps you determine if those facts are proved.

He said, you know, a person of good character can commit a crime for the first time.

There was a line as well.

He was talking about, you know, if they do have, you know, some doubt or they don't think that Aaron Patterson is telling the truth, they just need to put that to one side and then still look at whether or not the prosecution can prove the case against her.

That's right.

He He put these into four broad conclusions after talking about the accused giving evidence and what weight they should give that.

He reminded the jurors she didn't have to do that.

Erin Patterson has the right to remain silent.

It's not for her to prove her innocence.

That's the onus is on the prosecution in Australia's legal system.

He said she submitted to cross-examination.

and that she's no different to any other witnesses.

So you have to assess her information, her testimony in the same way.

And interestingly, he said to them, you shouldn't give less weight to her testimony because she is the accused, reminding them again, she's presumed innocent unless and until proven guilty.

So he basically put these four broad conclusions, as he put it, to the jurors.

If you believe her evidence, you'll have to find her not guilty.

If you're not sure, but you think it might be true, so there's reasonable doubt.

you'll have to find her not guilty.

He said, look, it's not enough to prefer the prosecution case over the defence case, you know, over Erin's evidence.

You know,

you can't just say, oh, well, I prefer that.

We talked about this last week, Stocky.

The prosecution, Justice Speal says, must establish her guilt.

And then fourthly, if you don't believe her, Justice Beale said, just put that aside.

But that's still not enough to make your verdict on.

You have to make sure that the prosecution has proven her guilty beyond reasonable doubt.

Yeah.

We then got into tendency evidence.

And this is kind of the reasoning that someone has, just because someone has done something before, they're kind of more likely to do it again.

And I bring this up now because it's relating specifically to Erin Patterson.

And it's kind of, it was talked about in the context of her foraging and putting mushrooms into food, right?

Like that's that's obviously pretty relevant here.

That's right.

And the defense has been arguing that she did have this tendency, that she foraged in the past.

She started around 2020 when everyone was going stir crazy in COVID and were allowed out for an hour a day.

So we heard more about that.

Evidence from people during the trial and from Erin herself saying that she'd like to put mushrooms in things like curries or pastas or soups to enhance the flavour, to make it more interesting.

We were reminded of text messages with her Facebook friends.

Remember the prosecution said, look, there might be a picture of the dehydrator, but none of them talk about foraging wild mushrooms.

Her answer to that was, well, you know, that was only, those messages only covered a December and that's not the season for mushrooms.

I'm not going to take you through all of them, but we basically went into this history of whether she was or wasn't a forager.

And that is to get to an important point that Justice Beale made, but before he made that, we went through some of the defence arguments that she was a forager.

You know, pictures of her along the rail trail with her children in the COVID years.

We were reminded of the defence argument that she likely visited the iNaturalist site, that's the citizen science website, but that her interest was not sinister, just to confirm that there were no observations of death cat mushrooms in South Gippsland.

And back then, there wasn't, says the defence.

And then you kind of ran through some of the prosecution challenges to that, right?

Correct.

And Dr.

Rogers, SC, as we remember, said the only evidence that Erin foraged came out of her own mouth,

out of the mouth of a self-confessed liar, says Dr.

Rogers.

And we were reminded of evidence that, you know, her children say that they don't remember their mum foraging.

Simon Patterson, who also used to live with her, said he had no knowledge of her foraging, things like that.

And her denials of being a forager in that police interview, which she has since admitted that she was lying.

So this took up a large part of the day, Stocky,

but it was to make a point about tendency.

And Justice Beale said, if you find she had a tendency to forage,

which included putting the mushrooms in meals, you may consider that that increases the possibility that death cat mushrooms ended up in the Beef Wellingtons accidentally rather than deliberately.

It's interesting the kind of facts side of it, the way that he's asking the jury to be the judge of the facts.

And I mean, you know, it's not him specifically asking the jury, that is the jury's job, is to be a judge of the facts in this this case.

And he's basically saying, look, you assess which facts you think are true and which you think aren't.

And then once you've made that assessment, this is how you apply it around this tendency evidence and what that should kind of lead you to.

Also,

you mentioned the children talking about their memory of Aaron Patterson foraging for mushrooms.

We've also heard in this trial about what plates Aaron Patterson's son saw following the lunch.

And also, you know, from both of her children, how sick she was following the lunch.

And they were kind of like, that evidence today was sort of qualified by Justice Beale being like, look,

kind of treat this to the jury, just telling them to kind of treat that kind of carefully.

Yeah, and the caution is because at the time of their video evidence, which we spoke about very early, Erin's son and daughter were 14 and 9 at the time they gave their video statements.

The court heard today, the jurors heard from Justice Beale, that children can remember, like they're capable of remembering past events, but just keep in mind their language and mental skills develop as they get older, which means that as they're older, they, you know, that can affect a more detailed and complete account.

And because of varying language and mental skills, it affects how they understand and respond to questions.

So he said, you know, some children might struggle with hypotheticals or multi-parted questions or double negatives or they mightn't understand certain concepts yet or they might be reluctant to, if they don't understand a question, ask for more information.

So they might answer what they think they understood it to be, even if it wasn't that, and then not ask for clarification.

So there's kind of all these permutations with evidence from children that Justice Speal said the jurors should be mindful of.

And further to that, both parties agreed that her children shouldn't have to give evidence in the courtroom.

Like they spared them the potential trauma of that.

Yeah, that's why we saw the videos instead of them being actually in the room, right?

That's right, which Justice Beale said is a very sensible approach.

But because of that approach, you have to treat it with caution because most witnesses, as we've watched during this trial, are put under cross-examination.

And that's where mistakes, even honest mistakes, can kind of be sifted out through that probing.

Any mistakes can be brought to light, but of course

the children weren't cross-examined.

And this is kind of a similar way to what Justice Beale told the jury to think about when it comes to hearsay evidence as well.

Now, hearsay evidence, as I learnt today, is where someone who is a witness repeats something that they have heard from someone else.

And we had a couple of really specific examples of this.

One was from Simon Patterson.

This is Erin Patterson's estranged husband.

When he went to Heather and Ian Wilkinson's house to pick them up following the lunch to take them to the hospital,

he says that Heather Wilkinson asked him about the plates, saying that Erin had a different coloured plate, asking him if she was short of crockery.

So that's one of them.

And the other one, again, from Simon Patterson, was talking about, was passing on or relaying information that he says he was told by his father, who was another guest at the lunch, Don Patterson, saying that they were invited to the lunch to talk about a cancer diagnosis that Erin Patterson told the guests that she had at that lunch.

That's the evidence, according to Simon, who was relaying it from Don.

And Justice Beal kind of making the point.

very similar to the children's evidence being like look you know this is basically secondhand information and we can't interrogate that.

You need to make the decision on whether or not you trust this, you know, this being repeated to you.

Spot on.

So this is essentially witnesses giving evidence about what they heard someone else say.

So room for error in certain gaps that that can fall into.

Justice Beal said, you know, these statements have been made out of court, so keep that in mind.

These people haven't been cross-examined and of course can't be, sadly.

He said that errors can be made when the statement's made initially, when it's heard, or when it's repeated.

I was reminded when he said that of something that Colin Mandy said last week, the Defence Barrister.

It's like the whispers game.

It used to be called something else.

It's now called the telephone game.

You know, when you whisper something to someone and then down the chain, it sounds very different.

So I've been thinking about hearsay like that, and you have to be careful where errors could potentially be made.

Yeah.

There were, I will admit, some slower moments in the courtroom today.

Justice Speal spent a good two or three kind of sections, like we have breaks throughout the day, a good two or three sections talking through disputed evidence where he would basically say, look, here's a few things that, you know, the defense have said are disputed.

Here's a few things that the prosecution have said are disputed.

And then in each of these examples, he would effectively read the transcript of both of those accounts to the jury.

As you can imagine, gripping stuff in the courtroom.

And we worked our way through that for what felt like days.

But during the process of that,

as Justice Beale is talking through this, the day was brought alive by a new witness that he introduced us to.

Yes, Dr.

Mushrooms.

I wonder whether Tom May will be a bit jealous.

Funky Tom.

Dr.

Mushrooms, he was talking about...

I mean, this brought me back into the room too.

Justice Beale was talking about Dr.

Muldoon

from Monet Health.

So, Dr.

Muldoon became Dr.

Mushrooms

and then he caught himself and he said, Look, I'm just doing it to check you're still awake.

The jury had a laugh.

He got a big laugh.

So, yeah, it brought me back into the room as well.

And, Rach, as the jury was being sent out of the room, it seemed like they were kind of all stood up and had started leaving.

And he kind of just offered this like final moment of, Hang on, just before you go, just you're not going to need to bring your toothbrush tomorrow.

Where is he going with that?

That's right.

Remember, last week he said if the wind is at his back, he might be finished on day two of his charge, which would be Wednesday.

But it seems like, no, they won't be sequestered tomorrow night.

That his charge looks like going to Thursday.

So bring your toothbrush on Thursday.

Yeah, the jury, while they're deliberating, will be sequestered somewhere, put up in a hotel.

We don't know where, to isolate them from the big bad world while they deliberate on their verdict.

And we've brought our toothbrush already because we're not going anywhere waiting for this verdict.

We'll be here hanging out, bringing you all the information

as it comes in.

When the jury is back, you know, they're not going to go out for a couple of days, but while they're out, we'll keep bringing you updates.

When they have a question, we'll come to you with what their question was and what the answer was.

And if you have any questions, you can get in touch with us.

Mushroomcasedaily at abc.net.au is our email address.

Love hearing from you.

Love hearing your questions.

There are so many that we haven't thought of, so please send them to us because they are giving us lots to think about and lots to discuss in here.

And Rachel, I want to start with one from Lena today.

Lena says, hey, Rachel and Stocky, thank you both for your continued incredible work on the pod.

I'm currently on maternity leave, and each day I look forward to listening to the latest updates from court while at home with my gorgeous six-month-old baby and toddler.

Oh, that's lovely, Lena.

Lena says, I think you mentioned that after the evidence is finished, Justice Beer will summarise the evidence from both sides, which is what we're doing at the moment.

Yes.

Is this normal practice in Australia?

I've watched a lot of trials, but all of them American, and I've never seen a judge or magistrate provide a summary of the evidence.

I would have thought that each side would summarise their case during their closing arguments.

No, I believe that's the case also in the American system that the judge instructs the jury on the relevant laws and the standards that they must apply to reach a verdict.

But I don't know, maybe you haven't seen it on TV because it's no offense, Justice Beale, but it's not

the most exciting parts of a trial.

I would assume so maybe that's why she hasn't seen it televised, those certain

chapters.

Yeah, and it's not a full recap.

You know, he's going through the kind of contentious bits as we've spoken about here.

So Lena, hopefully that helps you understand why this is going on and what's going on there.

And Rachel, another question here from David in Tokyo.

He asks, are jurors able to take into account Erin's past proven history of lying?

Example about the cancers and not owning a dehydrator when assessing her truthfulness as a witness?

Do they receive instructions from the judge about this?

They did today, actually, David.

Perfect timing.

So, yes, we've heard that Erin Patterson told lies about disposing of the dehydrator.

She told police she never foraged.

Justice Beale said today to the jurors, don't be prejudiced against her because of this, because of the lies.

This is a court of law.

not a court of morals.

So you have to resist these kind of biases or prejudices.

And this goes to what we were learning last week about sympathy and prejudice.

On that also, Justice Beale said to the jury, don't let sympathy for the extended Patterson or Wilkinson families cloud your judgment.

He said, I'm not asking you to be inhuman.

You're not robots.

Any decent person would feel sympathy for them, but you have to scrupulously guard against that forming any part of your judgment because as we said, you know, as we always say, feelings don't.

have any place in the courtroom.

So he said, resist any bias, any prejudice.

And he said to them, if you don't believe her, so because of the lies, if you don't believe her, he said, just put her testimony aside.

And as we spoke about today, Stockie, the prosecution still has to prove her guilt beyond reasonable doubt.

Yeah.

Thank you, Rach.

Thank you, David, in Tokyo.

If you have a question you'd like us to answer on the pod, please get in touch.

Mushroomcase Daily at abc.net.au.

I realise as the jury is about to head away to consider the verdict, you may have a lot of questions about the jury, how they work, what's going on, what do they eat, all these things.

Please send them to us.

We're going to try and do an app, you know, depending on how long they've gone for, might have a bit of time to knock out a few of these.

So send us your questions and we'll do our best to answer any that you've got.

Mushroomcase Daily at abc.net.au.

Rach, back again tomorrow for

the continued charging of Justice Beale.

Back again, like every day.

Living the dream.

Mushroom Case Daily is produced by ABC Audio Studios and ABC News.

It's presented by me, Rachel Brown, and producer Stephen Stockwell.

Our executive producer is Claire Rawlinson and our supervising producer is Yasmin Parry.

Shout out to our commissioning executive producer Tim Roxborough as well.

This episode was produced on the lands of the Gunai Kunai people.

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