Mushroom Lunch: Erin Patterson’s appeal explained

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Speaker 2 Erin Patterson has filed an appeal against her triple murder conviction.

Speaker 1 And we're here to try to explain all the details of that application. I'm the ABC's court reporter, Christian Silver, and I'm Stephen Stockwell.

Speaker 2 Just a heads up, there is some strong language in this episode. Welcome to Mushroom Case Daily.
Just a week after four people sat down for a family lunch in rural Victoria, three of them were dead.

Speaker 2 Homicide detectives are still piecing together what exactly happened at the lunch.

Speaker 3 It's certainly looking like the symptoms are consistent with death cap mushrooms.

Speaker 2 Erin Patterson said she bought the dried mushrooms at a supermarket and an Asian grocery store months earlier.

Speaker 3 I cannot think of another investigation that has generated this level of media media and public interest.

Speaker 2 It was just over a month ago now that Erin Patterson's legal team confirmed she would be appealing her conviction for the murder of Don and Gail Patterson and Heather Wilkinson and her attempted murder conviction for Ian Wilkinson.

Speaker 2 We now have the details of that appeal, or at least some details of that appeal. And here with me to explain it all and break it all down is ABC Court reporter Christian Silver.
Welcome, Christian.

Speaker 1 Thanks, Stocky. Nice to see the return of the name Mushroom Case Daily.

Speaker 2 Look, we're bringing it back. You know, we thought we'd got the tile, we've got you.
Why not, you know, celebrate the origins of this podcast? Now, Christian, there is a lot to get to in this app.

Speaker 2 We've got the grounds of Aaron Patterson's appeal. We have seven grounds that have been in that, and this is my first appeal.
So I'm very keen to sort of understand and learn how all this will unfold.

Speaker 2 First, though, I mean, can you quickly run us through what those seven grounds are?

Speaker 1 Let's run through them, Stocky. Number one, and quite interestingly, Patterson's lawyers say that there was a fundamental irregularity when the jury was sequestered.

Speaker 1 We'll get into that later, and definitely there was an irregularity with how that worked.

Speaker 1 Defence has also taken issue with some of the cell tower evidence and sightings of death cap mushrooms in Loch and Outram. So these were areas that were close to Patterson's house.

Speaker 1 So they've had issues with that being included in the trial.

Speaker 1 They've also said that Justice Christopher Beale erred in ruling that photos and videos related to mushrooms that were found at Patterson's house were inadmissible during the prosecution case.

Speaker 1 And they say there's a substantial miscarriage of justice there.

Speaker 1 They've got problems with some of the Facebook evidence which was included in the trial. And this was some of the testimony from

Speaker 1 Patterson's Facebook friends and other messages which flowed from that. And I'm sure we'll get into that as well.

Speaker 1 Then they've taken issue with Erin Patterson's cross-examination, which did go for several days. They've called it unfair and oppressive.
And then points six and seven seem to be tied together.

Speaker 1 I'm not really sure what the difference is there, but they say that there was a substantial miscarriage of justice because

Speaker 1 the defense claims that the prosecution opened the case saying there was no evidence of motive, but then closed the case by implying that there was a motive. Yeah.

Speaker 2 And I mean, all of this, all that we're going through here is kind of contained in like this two-page document that we've got from the Victorian Supreme Court that's been filed by Aaron Patterson's lawyers.

Speaker 2 What's the purpose of this point? Like, what are we trying to do here?

Speaker 1 Well, this is just the notice to the court saying, We're lodging an appeal, here's what it is, but what we know over the coming months, Patterson's lawyers will go through each of these seven points and give the court really detailed written submissions.

Speaker 1 They'll go to specific paragraphs in the transcripts so it's crystal clear exactly what they're referring to. And they'll also look at case law as well.

Speaker 1 If they say there was a miscarriage of justice, they'll explain why and then probably refer to some old cases.

Speaker 2 Yeah. Yeah, yeah, cool.

Speaker 2 And seven grounds, is that a lot? It feels like a lot.

Speaker 1 I guess they can file as many as they want.

Speaker 1 Recently in the Greg Lynn appeal, which is another big high-profile case, there was four in that one. But even out of those four, it became really

Speaker 1 dense.

Speaker 1 And there were

Speaker 1 a lot of paragraphs contained within each. So I don't know how this one will be structured.
But, you know, while it is seven, it's kind of really six.

Speaker 2 With the closing ones at the end.

Speaker 1 Yeah, yeah.

Speaker 2 Yeah. Okay, cool.
Well, we'll get to all of this as we go through the app. Thank you for kind of giving us the speed run of all of it, and we can dive in and

Speaker 2 unpack all of them now.

Speaker 2 Let's start at the end, the end of the trial, I mean, certainly the first round of the appeal.

Speaker 2 This is, Christian, actually something that you highlighted in one of our previous episodes of something that, you know, might be looked at around an appeal.

Speaker 2 This was the fact that the jury, when they were sequestered,

Speaker 2 ended up in a hotel with the prosecution, the police, and some of the media.

Speaker 2 And this is, you know, just kind of emerged in the squeeze of the Maul accommodation, and Turalgan accommodation at the time with everything that was going on.

Speaker 2 What is the issue here? What is the kind of Aaron Patterson's defence pointing out or saying happened?

Speaker 1 Well the whole point of sequestering the jury, you know, taking them

Speaker 1 away from their family, away from their community and putting them in an isolated hub is to keep them separate from contamination.

Speaker 1 So the fact that they ended up in the same place as the prosecution, the media and some police witnesses is clearly a failing

Speaker 1 in an attempt to separate them. However,

Speaker 1 the question has to be asked, was the jury's mind contaminated by seeing the prosecutor possibly in the hallway, or Stephen Eppinstall, the informant, in the reception, or seeing some of the reporters who they've seen in the courtroom for weeks.

Speaker 1 you know, seeing them around.

Speaker 1 That's really what the Court of Appeal is going to have to decide now

Speaker 1 looking back a few months ago we were told that kind of nothing untoward happened

Speaker 1 nothing to see here obviously not ideal but

Speaker 1 Has Patterson's lawyers have they uncovered something?

Speaker 1 Is there more to the story other than just some really bad logistical planning? And what Patterson's lawyers say here is that

Speaker 1 they want the convictions and a retrial to be ordered so that justice cannot only be done, but be seen to be done. And I guess you've got the most high-profile case in decades in Victoria.

Speaker 1 And if the defence is saying to the court, well, there were problems with it. It's not a good look for you.

Speaker 1 Maybe

Speaker 1 that's where they're heading.

Speaker 2 Do you have any idea how they'll check this? Will they get the jury in and ask them questions about it?

Speaker 2 Will they just sort of go through the various documents and what they already know and review that and make a decision based off of that?

Speaker 1 I'm sure they've got the ability to gather new evidence and they could potentially take statements from people.

Speaker 1 So I'm really fascinated by this. Are they

Speaker 1 just going off what is kind of known and making a point kind of on philosophical grounds or have they actually found some damning evidence of contamination of the jury? So

Speaker 1 I think this is a very interesting ground and

Speaker 1 very keen to see if there's more substance to it.

Speaker 2 Yeah, I mean, most of the other grounds to me, again, this is the first appeal that I've kind of reported on or presented this podcast for at least.

Speaker 2 It's, you know, they all seem like the sort of thing you would expect an appeal on. And this one with the issue around the jury sequestering is the one that sort of stands out to me.

Speaker 1 And the interesting thing is,

Speaker 1 and you'll know this as well, during the trial we were in Morwell, a very small town.

Speaker 1 There's like not that many facilities in that place. and it was pretty common even in the lunch break that you'd be at the cafe and you'd see a couple of jury members.

Speaker 1 Sometimes you'd have in one of the big cafes

Speaker 1 you'd have the defense sitting at one table and the other end the cops and

Speaker 1 you know Ian Wilkinson's come in to get a takeaway and maybe even a couple of jury members and of course everyone kept their distance.

Speaker 1 I didn't see any examples of interaction and no one's taken issue with that and that was going on for weeks.

Speaker 1 So the fact that this jury sequestering issue, which has, you know, probably happened over the course of a few days, has been seen to be such a big issue is interesting. Yeah.

Speaker 2 Yeah, yeah. There's a lot of other grounds to get through, Christian, so we'll run through some of them as well.

Speaker 2 I mean, there's kind of a few bits of evidence or issue that the defense has taken with some of the evidence presented during the trial.

Speaker 2 And this is around whether things should have been basically presented to the jury. And one of them is the cell Tower evidence and the iNaturalist post.

Speaker 2 And the suggestion here, this is my reading of it, so I'll let you kind of correct me, is that it was too incriminating and that outweighed the value of the evidence.

Speaker 2 Is that what's being written there? Is that what they're saying?

Speaker 1 Yeah, so I think where they're going with this is

Speaker 1 when they talk about evidence of death cat mushroom sightings in Loch and Outram, this is the posts by Tom May,

Speaker 1 by the other mushroom expert, I forget her name,

Speaker 1 about seeing mushrooms in this area. And remember, the defense said that there was no evidence that Patterson ever saw these posts.

Speaker 1 So maybe what they're hinting at is the prosecution made a big deal about these people posting stuff online,

Speaker 1 but if Patterson, if there's no evidence that Patterson saw them,

Speaker 1 was that unfair to her?

Speaker 1 Did they ask the jury to make a mental leap that was a step too far? That seems to be the argument to me. In terms of cell tower evidence,

Speaker 1 this seems to be questioning the evidence of Matthew Sorrell and him placing Erin Patterson's phone in the areas of Locke and Outram around the time that these online posts were made to iNaturalists where

Speaker 1 death cat mushrooms were sighted.

Speaker 1 Are they saying that Patterson, there's no evidence that Patterson went to these areas?

Speaker 1 I think that's where this is going.

Speaker 2 Yeah, right, yeah. Yeah, really interesting to kind of hear all of this kind of picked apart again at the end of a trial.
And we've already kind of like talked through so much of this at the time.

Speaker 2 And I mean, this is all kind of discussed in pre-trial as well,

Speaker 2 whether or not evidence will or won't be excluded.

Speaker 2 So it's interesting to kind of have these discussions again now. And yeah, Christian, the kind of challenge of working out,

Speaker 2 you know, what they're actually meaning with these grounds. Because again, we've got, you know, we're working off kind of a couple of sentences for each one, right?

Speaker 1 I'm sure the Director of Public prosecutions and all the prosecutors involved are also going through this same exercise they will be preparing their response to this of course they'll be waiting to see exactly what it is that Patterson's lawyers file in a more comprehensive state but I'm sure over the coming weeks they will be pouring through all the transcripts trying to make sense of where this is going.

Speaker 2 Yeah, and I mean we've got a few grounds related to evidence here as well. I mean the next one is basically around

Speaker 2 some SD cards, some photos and videos that the defence wanted to include.

Speaker 2 And I mean, the ground basically says here that the learned judge, the learned trial judge, that's Justice Christopher Beale, erred in ruling that they couldn't be included.

Speaker 2 And I mean, Christian talking about

Speaker 2 how little detail we have in these grounds. Do we know exactly what that's referring to?

Speaker 1 It sounds like

Speaker 1 the defence wanted to try to pick apart something that the prosecution had and weren't given that opportunity and as a result weren't able to disprove something.

Speaker 1 That's what it sounds like and a substantial miscarriage of justice has occurred. Looking through the transcripts, I did find an exchange

Speaker 1 which I think this relates to. And if memory serves me right,

Speaker 1 after this material was excluded from the trial during the pretrial phase, the defense tried to reintroduce it.

Speaker 1 And this led to a discussion when the jury was out of the room. And the prosecution was actually saying, this is really unfair towards us because if we

Speaker 1 knew this was going to be back in, we would have led evidence.

Speaker 1 about more stuff that Patterson had on her phones

Speaker 1 or stuff that Patterson didn't have on her phones because they were saying that that actually had 600 pages of messages between Patterson and her online friends and there was not a single message in there about picking wild mushrooms.

Speaker 1 So I think the defence was trying to say that here we've got evidence that Erin Patterson does like foraging for mushrooms and has a history of it.

Speaker 1 So that when she went and you know picked some mushrooms in 2023, this is part of an innocent habit that she has.

Speaker 1 But the prosecution's saying, no, she didn't have this habit.

Speaker 1 So I think think that is what this relates to. It will be interesting to see how it's explained in detail.

Speaker 2 Yeah, yeah.

Speaker 2 And I mean, speaking of the Facebook friends, that's another one of the grounds in this appeal is that, you know, the evidence from the Facebook friends, some of the Facebook messages shouldn't have been included that, you know, wasn't kind of relevant to the case.

Speaker 2 Is that right?

Speaker 1 That's right. And it feels like the defense is rehashing something that they tried in the pretrial.

Speaker 1 They tried to have a lot of this stuff knocked out because they felt that Erin Patterson's conversations with her friends weren't relevant to the actual crime itself.

Speaker 1 And I remember Colin Mandy making some arguments in the pre-trial that Patterson said some things in anger eight months before the lunch and now the prosecution was turning around and using that against her and twisting it.

Speaker 1 So this feels like a very similar vibe. Again, they're saying that the Facebook evidence was not relevant and that it caused unfair prejudice to Erin Patterson.

Speaker 1 And to sort of flash back to what this was, this was messages where Patterson was

Speaker 1 fairly frustrated with her in-laws.

Speaker 1 I think she said, this family, I swear to effing God, in one of the messages, she was angry about how Don and Gail Patterson weren't intervening in a financial dispute that Erin was having with their son and her husband, Simon.

Speaker 1 So the defense again saying that this should never have been in the trial, it was irrelevant

Speaker 1 and caused another miscarriage of justice towards their client.

Speaker 2 And I mean, this is interesting as well.

Speaker 2 And I'm trying not to lean too hard on the word interesting because don't worry I'm getting your emails.

Speaker 2 But we had this conversation a lot during the trial that there was no motive being presented for the murders that Aaron Patterson committed.

Speaker 2 So, you know, there was nothing that the prosecution could show as to why she had committed these acts.

Speaker 2 But then they also included these messages that showed this kind of frustration and disquiet between Aaron Patterson and the broader Patterson clan.

Speaker 2 And, you know, there's this, in the grounds, there seems to be one of them, which is basically saying, well, the prosecution said they weren't going to present a motive.

Speaker 2 And then, you know, they kind of presented these messages and in their closing kind of started suggesting a motive.

Speaker 2 Is that something that's not allowed?

Speaker 1 It's really interesting because at the start of the prosecution case, they said that they wouldn't be presenting a motive. And then in the closing arguments, and again, this is in the transcripts,

Speaker 1 Nanette Rogers repeatedly says we're not suggesting a motive however the defense says that she implied that there was a motive right and looking through some of this text

Speaker 1 again I'm

Speaker 1 I guess I'm trying to put two and two together

Speaker 1 there are some passages where Nanette Rogers refers to Erin Patterson sending bitter, angry messages about her in-laws,

Speaker 1 calling them a lost cause, saying, I don't need anything from these people, this family, I swear to God, I'm sick of this shit. I want nothing to do with them.

Speaker 1 So F them.

Speaker 1 So maybe this is where the defence is heading, that Nanette Rogers has hinted at a whole bunch of things despite explicitly saying that's not what she's doing.

Speaker 2 Yeah, right. So quite subtle, I guess, in the end.
You know, it's this sort of, you know, we're not doing this, but then there's also all these other things.

Speaker 2 And the defence has kind of gone, well, well, actually, there's a line between them.

Speaker 1 Yeah, yeah, that's the argument anyway. I'm sure the prosecution would disagree.

Speaker 2 Yeah.

Speaker 2 Another ground related to the closing in the appeal is that there was a substantial miscarriage of justice in that.

Speaker 2 That is basically all that ground says. There was a substantial miscarriage of justice in the closing.
Christian, do we know what that is, or do we now need to wait and find out?

Speaker 1 I think that's probably tied to the point we just discussed. Maybe there's some more to it.

Speaker 1 I don't really know. And on that,

Speaker 1 Colin Mandy repeatedly in his closing argument

Speaker 1 really made hay with the fact that the prosecution had no motive. But maybe the defence is saying that he would have gone even harder on that point if he knew that Nanette was going to imply,

Speaker 1 quotation marks there, imply that there was a motive. Maybe Colin Mandy would have emphasised the point even more, even though he did repeatedly say it.

Speaker 2 Yeah, yeah, yeah. And finally,

Speaker 2 the remaining ground of the appeal, a substantial miscarriage of justice has occurred because of unfair and oppressive cross-examination of the applicant.

Speaker 2 Christian was the cross-examination of Erin Patterson by Dr. Nanette Rogers too mean.

Speaker 1 That's kind of what it sounds like they're claiming. I mean, she wasn't waterboarded or anything like that.

Speaker 1 She was questioned for days. And that's definitely true.

Speaker 1 But the thing is,

Speaker 1 you can't really have it both ways. And

Speaker 1 in another case, the the Greg Lynn case, there's an appeal being lodged on the basis that the prosecutor didn't put a bunch of accusations to Greg Lynn and then, in the closing arguments, said

Speaker 1 a whole lot of things about him, which Greg couldn't respond to. Nanette's basically done the opposite in this case.
She meticulously went through everything. And you remember this,

Speaker 1 do you agree or disagree, correct or incorrect? It went on and on and on and on and on. And

Speaker 1 it was very thorough but in the eyes of the defense it went a little bit too far and was oppressive but I mean Patterson

Speaker 1 also seemed to take issue with anything that was slightly off the mark and wanted to correct the prosecutor and

Speaker 1 she also extended the length of her time on the stand as well.

Speaker 1 So I'm interested to see how they're going to argue that it was a miscarriage of justice when Nanette Rogers seemingly was being extremely thorough.

Speaker 1 But I guess,

Speaker 1 and you'll remember right towards the end, after like seven or eight days on the stand, Patterson was pretty cranky.

Speaker 1 And

Speaker 1 I wasn't in the room for this bit. I was away, but

Speaker 1 I guess the jury probably picked up on the fact that she was sick and tired of it all by that point.

Speaker 2 Yeah, yeah. No, it was, you know, it would have been a grueling cross-examination for the days that it continued continued on.

Speaker 2 Exhausting. You can see her, yeah, getting more and more tired throughout all of that.

Speaker 2 Christian, since we've last spoken, since you've last done an episode on Aaron Patterson, we have had a prosecution appeal as well. What's going on there?

Speaker 1 Yeah, yeah. So it's a double appeal, which is going to be great fun when we eventually get to the Court of Appeal.

Speaker 1 So Patterson was sentenced to life in prison with a non-parole period of 33 years, but the prosecution wanted her locked up for life with no chance of parole.

Speaker 1 And what the prosecution has taken issue with is that Justice Beale effectively gave Patterson that parole opportunity because he cited her difficult conditions in prison, you know, how she's in isolation, how that's likely to continue for ages because she's this notorious criminal.

Speaker 1 And the prosecution says there's no evidence to suggest that Patterson will be in isolation forever and ever.

Speaker 1 Obviously, that will go for some time, but they say that Justice Beale made that ruling with insufficient evidence

Speaker 1 and they would say that it was a manifestly inadequate sentence for someone who committed a triple murder and attempted murder as well.

Speaker 2 Yep.

Speaker 2 You were saying at the start of the episode that basically we'll get a lot more detail on these when Aaron Patterson's defence team start writing the sort of written submissions, submitting all that to the Court of Appeal.

Speaker 2 How does this unfold? What does this look like from here?

Speaker 1 Well, over the next few months, those submissions will be developed by both Patterson's team.

Speaker 1 The OPP will no doubt be drafting a response to that and, I'm sure preemptively working

Speaker 1 on it as well.

Speaker 1 But then they'll also be doing it for the prosecution appeal, which is the sentence appeal. So everyone will be busy

Speaker 1 putting together detailed submissions, poring over the transcripts, finding all the references and all the old cases.

Speaker 1 And eventually it'll come before the Court of Appeal next year, maybe in a few months, and we might have a hearing where the lawyers argue it out and then I guess we'll see what happens.

Speaker 1 But it's a very high bar to get a retrial. The Court of Appeal,

Speaker 1 they're not just looking at whether something bad happened or something wrong happened.

Speaker 1 They're looking at was it so bad that it prejudiced the trial to the point where Aaron Patterson didn't get a fair go.

Speaker 1 And often you see this where the Court of Appeal will say, yeah, these things weren't done very well, but it didn't rise to the level of where it corrupted the jury or made it unfair.

Speaker 1 So sometimes they might even tinker with a sentence.

Speaker 1 They might say, yeah, okay, you're a little bit hard done by here. We'll drop the sentence by a bit.

Speaker 1 Or maybe vice versa, they'll say, actually, you know what? The judge didn't take this seriously enough. We'll boost your sentence by a couple more years.
Oh, wow.

Speaker 1 But to actually overturn and order a retrial is a really big step. So it's going to be a massive task for Patterson.

Speaker 1 I sort of think about it how at the start of the trial, it's innocent until proven guilty. Well, now it's kind of flipped the other way.

Speaker 1 It's going to be very hard for her to have another trial.

Speaker 2 Yeah. And, you know, you're saying this is going to be a few months away.

Speaker 2 We'll probably be looking at some kind of conversation in court or something in court, the Court of Appeal early next year, first quarter, first half of next year.

Speaker 1 The ball might get rolling, but I think, you know,

Speaker 1 six to 12 months before we're having a full-blown argument in the Court of Appeal.

Speaker 2 Yeah, right.

Speaker 2 A long time, you know, to just kind of like drag this out.

Speaker 2 You know, we talk about the victims a lot on this pod, you know, thinking of Ian Wilkinson, thinking of the, you know, the Patterson families and all of this.

Speaker 2 You know, it's just going to mean longer for them to reconcile and kind of wait for closure, I guess.

Speaker 1 Absolutely. And I'm sure they were warned that this was likely to happen.
I mean, Erin Patterson has to roll the dice, doesn't she?

Speaker 1 Otherwise, it's a minimum of 33 years behind bars, if not the rest of her life.

Speaker 1 Obviously she's going to give this a crack. So I'm sure the family knew this might be coming but it's got to extend the pain for them.
Patterson's kids, they're only teenagers.

Speaker 1 They've got to live with this. It's going to be back in the media.

Speaker 1 It's got to be really, really difficult for everyone involved in this.

Speaker 2 Yeah, yeah, absolutely. Christian, thank you so much for jumping on the pod and talking us through the appeal grounds.

Speaker 1 Thanks for having me back.

Speaker 2 It is always our pleasure. Don't worry, you're not going to escape when we get more details on the appeal.
When we start heading in, we'll be dragging you back into the studio to talk more about it.

Speaker 2 So, yeah, really, really appreciate you joining us for that.

Speaker 2 And if you are interested in Rach Brown's thoughts on the appeal as well, when we were talking to her yesterday on the pod about the easy street committal process, talking through that, answering some of your questions, I also asked her what she thought on the appeal as well.

Speaker 2 So jump into that app. You can listen through the whole thing.
It's all pretty good. But yeah, Rach at the end talks through her thoughts on on the appeal of Aaron Patterson in that.

Speaker 2 We do have plenty of you coming up on the case of as well. On the weekend, I'll be introducing you to our next case, the case of Toya's murder.

Speaker 2 That is the trial of Rajwinda Singh, who was accused of the murder of Toy accordingly in 2018. It is a huge story in North Queensland.

Speaker 2 And at the time, in 2018, it reverberated around the country as well. Something that I was reporting on while I was working at Hack on Triple J at the time.

Speaker 2 So, yeah, it was something that I remember quite clearly. And, yeah, it was felt all around the country.
So, we're diving into that. Mr.
Singh has pleaded not guilty in that case.

Speaker 2 He said he's not responsible for Toya's death. And we'll be bringing you all the detail on that trial once it starts next week, introducing that case to you tomorrow with a short episode.

Speaker 2 And then, first thing Monday morning, I'll be up in Cairns with ABC reporter Chris Tester, bringing you live coverage of that trial through the case of feed.

Speaker 2 So, jump on the ABC Listen app because that's the best place to grab our episodes. And if you have any questions, please get in touch.
The caseov at abc.net.au. Love hearing from you.

Speaker 2 And if we get a bunch, especially about this, Christian, we'll be back sooner than you expect.

Speaker 1 Very good.

Speaker 2 Thank you very much. Be back in your feed soon.

Speaker 2 Mushroom Case Daily is produced by ABC Audio Studios and ABC News. This episode was reported by Christian Silver and presented by me, Stephen Stockwell.
Our executive producer is Claire Rawlinson.

Speaker 2 And thank you to senior lawyer, our legal queen, Jasmine Sims, for her legal advice, to the Victorian Newsroom and to Audio Studios manager, Eric George.

Speaker 2 This episode was produced on the land of the Rundri people.