"Not on trial for being a liar" - defence closing continues

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The jury is told Erin Patterson is not on trial for being a liar.

I'm ABC Investigative Reporter Rachel Brown.

And I'm Stephen Stockwell.

It's Wednesday, the 18th of June, and we've just finished the 33rd day of this trial.

Welcome to Mushroom Case Daily.

The 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.

Rach, we are getting to the real pointy end of this case.

Third day of closings today, the second day of the Defence's closing.

And despite where we're up to, you know, a reasonably empty courtroom.

Yeah, it was surprising today.

Usually I have to jostle for seats, but no, got in easy today.

Yeah, Colin Mandy SC started his closing yesterday.

This is the defence barrister.

Continued all the way through today.

And there's a lot to talk about with how he has challenged the prosecution's interpretations of the evidence.

Before we start talking through all of that, Rach, can you give us an overview of the day?

It's been a day of the defence spiking down instances instances that the prosecution has lobbed up as deceptions.

This idea that Erin was two-faced and duplicitous during a time of frustration with her in-laws, the defence says that was a minor aberration in an otherwise loving relationship, and the only rift that the prosecution has been able to find after trawling through all her messages.

Another so-called deception was Erin's alleged use of the iNaturalist website, navigating to possible sightings of death caps.

The defence says this was 14 months before the lunch, and she looked at this site site two minutes at most.

Lastly, we heard about Erin's alleged ruse to lure the guests to the lunch with this cancer diagnosis.

To that, the defence says it would have been a pointless ruse as they only found out at the lunch after they'd eaten the meal.

Thank you, Rach.

It was a day of Colin Mandia C challenging the prosecution, going through, you know, a number of different instances.

I mean, when he started yesterday, he did say to the jury, look, I'm going to take you to some things that are going going to seem obvious, but I don't want to leave this to chance.

I want to take you through all these things.

And that's what he was doing today.

But he started with this kind of idea that I had never heard of before, talking about hindsight reasoning.

Yeah,

he was talking about the point that prosecutor Dr.

Nanette Rogers S.C.

made yesterday to the jury.

She asked them, what would you do?

if this was a terrible accident.

Remember, we spoke about that.

Yeah, yeah.

And Colomandi S.C.

says, this is what's called hindsight reasoning.

Now, I haven't heard this spoken about much, so it was interesting hearing this today and what this means.

Colomandy says this is something that shifts the burden onto the defence, which we know it's not their burden.

The onus of proof is on the prosecution.

He says it's wrong to shift this burden because hindsight reasoning can create this false clarity, he says, in which things seem obvious in retrospect, you know, and he said things that might have been explicable then can appear sinister when viewed through the lens of what you know happened subsequently.

And so Columandy said to the jury, it doesn't matter what you may have done.

No one knows what they may have done in a particular situation.

You might think you're going to act a certain way.

You don't know.

You don't know how you behave.

No one knows.

And so he's talking about that.

And he said, it's not a moral trial here.

You know, and she regrets telling lies.

you know, like the elbow lump to keep the family's care and attention going.

But he says, that's what she did.

And these lies have been exposed to the whole world, but you have to look objectively, not with the benefit of hindsight.

And he said very pointedly to the jurors, she's not on trial for being a liar.

This is not a court of moral judgment.

And you cannot leap from this lie to finding her guilty of triple murder.

Those two things are a very long way apart.

It really set a tone for where he was going to go with the day, this line, like she's not on trial for being a liar.

It was one of the, you know, we've spoken about this, where there are these moments in the courtroom that kind of land.

And this was one of those moments that felt like it kind of landed.

The other thing I, you know, I thought about a lot from this moment of Colin Mandy's kind of the start of his day is talking about how you would act in a certain situation.

Like you might think you might act in a certain way, but you don't know that.

And, you know, and Erin Patterson may have thought she would act in a certain way, but this is how she has acted.

And yeah, going through all of that, it was, you know, it was an interesting way of framing this, the hindsight and reasoning.

And again, early in the day, he spent a lot of time talking about the relationship that Erin Patterson had with the lunch guests.

You know, we heard yesterday talking about how she basically had a motive to keep them alive.

And then also about her relationship with her estranged husband, Simon Patterson.

Yeah, we've heard a lot during this trial about her relationship with Don and Gail Patterson, Simon's parents, that they were an amazing support network for her when she had the kids through to most recently, you know, when she moved to Lee and Gather, she wanted to kind of strengthen the connection that she felt it had,

you you know backed off a little bit so Colin Mandy SC was trying to say that the prosecution has been drilling down into that spat and by spat I mean the frustration she had around wanting them to mediate between her and Simon in that issue of you know child support payments and what he should be paying for there was an example of a son's surgeon bill and

Colin Mandy said this was an unremarkable blow-up and it only stands out and this stuck with me it only stands out because these people the Pattersons are eternally polite to one another

you know and he said what kind of tension is that it's not it's not very much at all it only stands out because it's rare because these people never get angry with each other and the prosecution has been trawling through months and months worth of messages and this is the best they can find basically was his argument and he said it's an aberration

and it was such a good and polite and kind relationships that these messages stand out but it wasn't consistent with the

whole of the relationship.

And then he moved on to communication, which really interests me.

He said, you know, she raised it.

She didn't let it fester.

She was raising it in these messages.

She raised it with the people she's upset with.

She's not hiding it.

She's not pretending that everything is okay.

And that's what brought us to Stocky.

Then she raised it also with friends.

She's been criticised a lot for that.

And Colomandi SC amusingly said, friends, and I should put that in inverted commas, these Facebook friends

that she vented with.

And he said, that's a healthy thing to do.

But keep in mind, she, I don't think, ever spoke on the phone to any of them.

It was all online communication in a chat group.

And so he said, that gives you, because that's a different audience, that gives you a kind of different appreciation of what's going on.

But she was venting with them.

It was human.

And he said, you know, you can't compare this long history of a loving relationship with a recollection of online, quote, friends during three days of upset.

Yeah.

There was also a conversation, or there was like, you know, Colin Mendy was reminding the jury of the way that Simon Patterson and Aaron had split.

You know, when they were splitting the assets, they just sat at a table, just kind of put them all on a bit of paper and just kind of 50-50 either way, no lawyers, anything like that.

Kind of pointing out that, you know, to him, that seemed like it might be quite rare as well.

And that they'd had the relationship they'd been separated for something like seven years

correct end of 2015 from memory yeah yeah and so you're pointing to that you know there was you know what was being presented to the jury is very little evidence of kind of you know unrest when you consider it over the length of that time yeah I remember the word venom stuck out to me and he said there was no venom in this in any of in any of these communications it was just

frustration and you know at times feeling isolated.

Yeah.

Speaking of lines of the day, as we were talking about earlier, speaking about the kind of the communication styles of Erin Patterson talking to the Patterson family in the group chat and then her Facebook friends, Inverted Commas,

Colin Mandy made this point that you talk differently to different people.

You might be very polite to your grandma and you might be swearing like a trooper to your friends.

And then he paused briefly and with a wry smile he said, or maybe the other way around if you've got a very cool grandma and nerdy friends, which I thought was a bit of a knock on nerds because I've got a bunch of nerdy friends.

And you you swear to them.

I swear all the time.

Absolutely.

I would never swear in front of my grandparents.

So he got that one right.

He did.

The way Colin Mandy was framing a lot of the arguments he was putting together today as he was going through his closing statements was this kind of chronology, taking people on this kind of trip.

So, you know, talking about Erin Patterson's life with her family was this kind of trip back.

And then he was talking about mushrooms, her interest in mushrooms, and talking about basically taking us back to like COVID times, 2020, 2021, and pointing to evidence that we heard from Tom May that a lot of people developed an interest in foraging around that time.

Yeah, Tom May, Funky Tom, as we know of him from the iNaturalist website, he said, look, a lot of people did this.

We were bored out of our brains, you know, and when we were let out for an hour, we'd go for walks.

And he said that is when a lot of the people who were stuck in these lockdowns developed an interest in foraging.

The jury has previously seen images of her out on a walk along a rail trail with her son and her daughter and a video of that also.

And so Colin Mandy SC said to the jury, you know,

she says this is one of the times that she'd pick mushrooms and the kids mightn't have even have noticed because they're so tiny and they run off and kids like doing their own thing when they're let out of the house.

Yeah, and you know, the opportunities for Aaron Patterson to forage over the period that her interest had developed in this, I think he was saying 2021 was when that had happened.

You know, we've heard that the season for foraging for mushrooms is kind of that like autumnal period, of which there's only been a couple.

And Colin Mandy, SC, was saying it's not like Erin Patterson was out there doing this all the time, she was doing this a couple of times each mushroom season.

Scurrying around in the bush, I believe were his words that she wasn't doing that.

It was just, you know, just an interest every now and then.

Yeah, yeah.

So that takes us to May 2022, when a lot of the focus of this trial has been on

the suggestion that Erin Patterson was looking up the iNaturalist website, that

citizen scientist website, and that

has a world map that you can navigate to work out where death caps are.

Yeah, it has all sorts of flora and fauna on it.

One of the things you can search for on there are different types of mushrooms, fungi.

And yeah, in this instance, they were pointing to, I think it was observations of death cat mushrooms around like the world and then narrowed down to Australia to Melbourne and I think Morabbin.

Is that right?

There was.

There was a sighting in Ricker Reserve and this was in May 2022.

Now, the prosecution says Erin Patterson on the 28th of May 2022

had a look at that site, jumped on, made that pub order at the Corral Borough Middle Pub that you might remember, garlic bread, two palmers and some other things, and then came back and had a look at that place in Morabbin.

Now, Colin Mandy today used this to say,

so hang on a second, this is 14 months before the lunch.

She's had a very brief interaction with the site, you know, that might have been

two minutes at most, I think he said.

And he put it as something like, you know, this interaction was out of curiosity.

She was making sure, because she had started foraging, making sure that death cat mushrooms do not grow in South Gippsland.

And he said, she had a look, she's learned, no, they don't.

And that was that.

And so he says,

the idea that the prosecution has put forward that that happened 14 months before the lunch, he said so what are they saying is she's sitting there studying this site

and

refreshing any death caps no still not there refresh nope still not there refresh nope still not there oh

bingo he's like how likely is that because the posts i think that have shown up um around the gippsland area there's only there's only like a couple of them right almost ever ever two sightings ever in south gipps is what colin mandy told the jurors.

And so he says, how likely is it that she's acted on those only two sightings ever

straight after seeing them?

And he reminded the jury that there is no scrap of evidence that she even saw these posts, you know, not from the guy that studied the devices, the records, or anyone else.

No evidence she returned to the iNaturalist website.

Colin Mandy said, the only...

The only way the prosecution's getting this is because

of these alleged visits to Locke and Outram soon after these posts were made.

But Colin Mandy reminded the jury there's no evidence that she saw these posts.

Yeah, and I mean, the two posts that we heard about today, you're talking about here, Rach,

it's you know, Christine Mackenzie.

That's right.

That was Locke, one of the fields there.

And we heard evidence from her earlier in the trial.

And the other post

around Outram, this was actually made by Dr.

Tom May, Funky Tom.

Yeah, they're the only two that we've heard of.

And, you know, both of those people given evidence in this trial.

That's right.

And Christine Mackenzie told the jury that you know she took them all out, the ones she could see, because they might grow back so she removed them.

Colin Mandy reminded the jury of that.

He reminded the jury of Tom May's evidence that a picture that he was shown by the prosecution

on scales near Erin's dehydrator.

He said, you know, they're consistent with death cat mushrooms, but I can't see the stalk, the colour or the veil, so they also might be something different.

Colin Mandy said, you know, of this visit to Locke, that Dr.

Sorrell,

who our base station guru said that it was only a possible visit to Locke.

And Colin Mandy SC says, this is important for the Crown to tie this date, this visit to Locke, the 28th of April, because that's the day she purchased the dehydrator.

So Colin said the prosecution want to tie it to that date.

But he went on to say, look, if she's already got enough death caps to kill five people, and the prosecution's alleging that because of the photos of the mushrooms on the scales, and we know

we've heard how much it takes to kill someone with death caps, Columandy says, well, why go back to Lock in May?

You know, or alternatively, why not use them at that lunch that she had with Don and Gail?

on the 24th of June when just they were there, not Ian and Heather.

So to that, and this stuck in my head, he said, are we in a world of total speculation?

This is speculation upon speculation upon speculation.

Are there death caps?

We can't reasonably be confident on that.

Did she go to lock?

We can't reasonably be confident on that.

Were there any in lock that day?

Do you want to answer that?

I'm going to assume that he says we can't reasonably be confident of that.

Correct.

Yeah.

I mean, my notes on that period probably aren't as old as yours, Rach.

So I was out on a limb, but I felt like I knew where you were going.

You are correct.

After talking through a lot of this, Colin Mandy took the jury to the reason that the prosecution has said the lunch guests were invited to Aaron Patterson's house on the 29th of July, 2023.

The prosecution has said that the guests were, you know, kind of lured there to talk about a cancer diagnosis or serious health issue.

And

this health issue, as we've discussed a lot in this and as we've heard previously, was

an apparent diagnosis of cancer or an issue around cancer that Aaron Patterson wanted to talk to the guests about.

Colin Mandy really went quite hard on challenging that today in his closing statement.

Yeah, he said to the jury that this alleged ruse to lure the guests to the lunch, he said, well,

not that effective because none of them knew about any worries about cancer or, you know, treatment down the track or diagnosis, any of that.

None of them knew except Simon, and he wasn't there.

Colin Mandy See said, and they didn't get told about the cancer or anything to do with cancer until after they'd eaten the meal.

So this idea that the lie would die with them,

the lie about the cancer, doesn't hold either because they could have told someone in the days following because death caps, it takes a while

for the toxins to really get into your liver

and your kidneys.

So they could have, they had time to tell someone and they did.

Yeah, Don Patterson talking to Simon Patterson's son following the lunch.

That's right.

And he said, you know, if you were going to do individual portions and put them on an oven tray in the oven, you wouldn't really risk knowing or not knowing which one the poisoned one is.

So Colin Mandy offered this idea that you would mark the pastry

in the oven rather than using different coloured plates, which as everyone knows has been a big issue in this trial.

Yeah, again, more conversation about the plates today.

With Ian Wilkinson in the room, Ian Wilkinson is the surviving lunch guest.

With Ian Wilkinson in the room, Colin Mandy basically, you know, kind of tearing apart his recollection of the plates.

We've heard Ian Wilkinson say that he believes he remembers the lunch being served on four large grey plates and then Aaron Patterson eating off of like a reddy, orangey, browny coloured plate.

Colin Mandy today saying, you know, look, that can't be true because, you know, we've seen the video of the search around Patterson's house.

Those plates weren't in that.

We've heard evidence from Simon Patterson as well saying to Heather Wilkinson, Ian's wife, when she asked if Aaron Patterson didn't have much crockery, he was saying no, she doesn't have a lot as well.

So that was what Colin Mandy, you know, basically took the jury to today.

And as well as that, you know, we heard Rach, we spoke about this a lot in our episode on Monday, the different timelines of the guests getting sick following the lunch, you know, how sick Erin was at the same time that the other guests were sick and in hospital and experiencing all sorts of, you know, health impacts from consuming death cat mushrooms.

And also as part of that timeline, you know, Erin Patterson saying she was getting sick earlier than some of the other guests, telling people that she started feeling sick in the afternoon following the lunch, in the evening following the lunch, the guests not feeling sick until overnight.

Colin Mandy's giving a possible explanation for that.

Yeah, and the timeline the prosecution has used to put a lot of suspicion on Erin Patterson, you know, suggesting she was making it up, you know, making herself look sicker than she really was.

Colin Mandy today told the jury, you know, again, she did get sick, but it was milder, but it started earlier.

He said, because in the morning she was stirring and tasting the duck sell.

That's the mushroom paste that she put in the individual portions.

He said she was preparing that part of the meal in the morning.

And he said, you'll remember she was tasting it

and it tasted bland, and that's why she added the dried mushrooms.

So here we have a proposition.

the duck sell and the tasting of it as a possible reason why she became ill on the Saturday afternoon as opposed to midnight when the others fell sick.

Yep.

And as we've spoken about previously as well, you know, there's a range, you know, Colin Mendy took the jury to this sort of like scale of death cat mushroom sickness as well, kind of going, there's a bunch of different grades, and you know, there's a grade one, which kind of appears to be sort of broadly consistent with what Aaron Patterson was experiencing, this kind of gastrointestinal issues.

Yeah, we heard that from Dimitri Gerostomoulos, who's from the Victorian Institute of Forensic Medicine, when he addressed the jury, he talked about about this grade one rating and basically with that

people

have kind of gastro symptoms with the typical delay in symptoms, but they don't develop biochemical signs of liver or kidney dysfunction.

And he went on to say during his evidence that even though other persons who've eaten the same meal might develop higher grades, and there's different reasons for this, age could be a factor, weight could be a factor.

But Colin Manzi Mandy made a big point of this today that Dr.

Nanette Rogers, SC, he says, left this out in summarising this evidence in her closing.

This point, though other persons who've eaten the same meal may develop higher grades.

And Colin Mandy went on and said, you know, The severity can vary depending on some of those factors that we've spoken about today.

And Colin Mandy added his own and said, obviously, throwing up will reduce the amount of toxin that the body absorbs.

Now Dimitri Gerostomoulis wasn't questioned on this.

This never came up but Colomandy says you know that would reduce the amount of toxin.

It obviously depends on how long after the meal that you've thrown up the absorption rate would change.

And he made the point that Erin Patterson has told the jury she can't remember when she threw up, that it was closer to lunch than dinner time, but she can't remember when.

Colomandi SC said, if that was a lie to encourage you to guess that the poison poison had left her body because of this vomiting, she would have just said, I threw up straight after lunch.

But she hasn't said that.

She can't be more precise.

And she also hasn't said that she could see the contents of her stomach because she said she was vague on that.

She couldn't tell what was in the vomit.

Yeah, because we heard when Aaron Patterson was giving evidence that, you know, she had been struggling with binge eating over the years prior to the lunch, often binge eating and then throwing up, making herself sick.

And that was something she did after lunch, eating a cake that was left over and then vomiting afterwards.

And yeah, Colin Mandy, taking the jury to that today.

And Rachel, that basically brought us to the end of what Colin Mandy was taking us to today.

Before we wrap up the pod though, I want to jump into some questions that people have sent us.

You can get in touch, mushroomcase daily at abc.net.au.

We love hearing from you.

Your questions are great.

And I want to start today with one from Hayden in Melbourne.

Hayden says, hi there, Rachel and Stocky.

Congratulations on bringing this impressionist painting of a case case into some sort of clarity.

I have a question I'm hoping you might be able to answer as I begin my own deliberations on the verdict regarding the appointment at the Enrich Clinic.

We know it was for the 13th of September and it was cancelled on the 11th.

Did we ever find out the date on which Erin booked the appointment?

Hayden, we did.

And interestingly, it came up again today, that very matter.

She spoke to the clinic, apparently, according to Colin Mandy, on the 19th of April and the 31st of May, 2023,

in regards to a consultation and then as we know she got a text message on the 11th of September and it said something like you know for theatre patients you should allow three hours

get there early.

You know Columandy says so that that is proof that at that time this clinic offered some kind of in-theatre activity

which may have been liposuction which they did offer at that time.

Erin Patterson now accepts that the clinic never offered gastric bypass surgery but she thought that they might have offered the full range.

And Colin Mandy says she was honestly mistaken.

But as we know, she cancelled that appointment, you know, two days before she was due to have it.

I appreciated Colin Mandy clarifying the theatre point around the liposuction that they were offering at the time, just to make sure that, you know, she wasn't going for a play, something like that.

Thank you for your question, Hayden.

Rachel, another question here from Irene.

Irini writes, hi, Rachel and Stocky from warm and sunny Darwin Northern Territory.

Reni, you'll be pleased to know.

It was like, I don't know, one degree in Morwell this morning.

Yeah, balmy.

Yeah, I'm sure it's not as nice where you are.

She's just finished binge listening to every episode of the podcast over the weekend after Michelle recommended it on the Shameless podcast.

Thank you, Michelle.

Irini is utterly obsessed.

Forgive me if my question sounds a little obvious.

I'm not very familiar with the justice system, but is the jury solely in charge of coming up with the verdict that will determine Erin's fate?

Does the judge have any say in the outcome too?

If so, what proportion of the verdict will come from the judge judge and the jury?

Irini, it's totally up to the jury.

So Erin's fate is entirely in their hands.

They are the judges of the facts.

The judge, Justice Christopher Beale, is in charge of the law.

and explaining to the jury in his charge, which starts on Monday, how to apply certain legal principles and he'll go over the evidence and certain arguments.

But it's entirely their hands.

Thank you, Rach, and thank you, Irini, for that wonderful question.

And our final question for the day comes from Charlotte, who says, love the pod, but I do need to ask a very important question.

Are there any updates on Baby Silver?

Hope all is well.

Now, people who've been listening to Mushroom Case Daily for a little while will remember Christian Silver.

He was the host of Mushroom Case Daily with me for the first five weeks of Aaron Patterson's trial.

And he left at that point because he was going to have a baby.

Rather, his wife was going to have to have a baby.

And Charlotte, incredibly well-timed question because we have a message from Christian Christian today.

Hey, everyone, some wonderful news to share.

On Monday, my wife and I welcomed a beautiful baby boy into the world.

He's a happy, healthy little guy who's keeping his new parents really busy.

Thank you to everyone who's checked in and sent messages of support.

I think we can safely say we've now found the pod's youngest listener.

That is...

It's wonderful news.

Congratulations, Christian.

We are very excited for you and we'll happily welcome any new listeners to Mushroom Case Daily.

Yeah, congrats, Christian.

If you have a younger listener than two days old, please let us know, mushroomcasedaily at abc.net.au.

We also will answer questions as well as just like you talking about your babies.

So, if there is something you are wondering about in this trial, if you have a question as we wrap up the closings and we get to the judge's charge or the jury's deliberations, please get in touch.

Mushroomcasedaily at abc.net.au.

And Christian, I'm sure you have already bought your child a smartphone of some sort and downloaded the ABC Listen app onto that phone because you know it is the best way for your new bub to listen to Mushroom Case Daily.

If you would like to be like Christian's child and also listen to Mushroom Case Daily in the most efficient and best way, I would recommend grabbing yourself the ABC Listen app.

Rach, continuing with Columban DSC's closing tomorrow?

We are.

We'll hear more of that closing tomorrow.

And then as we've heard before, the judge's charge starts on Monday.

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 a huge thanks to our colleagues who continue to help us out, including our commissioning executive producer Tim Roxborough and supervising producer Yasmin Parry.

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

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