Court resumes
Patterson’s trial has resumed in the Victorian court of appeal.
While we are waiting for court to resume, here is a short video about Patterson’s appeal:
Court adjourns for lunch
The court has adjourned and will resume at 2.15pm AEST.
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Patterson's legal team raises 35 complaints about prosecution's closing address
Edney has turned to ground six of his client’s appeal.
Patterson’s legal team is arguing the prosecution’s closing address caused a substantial miscarriage of justice.
Justice Peter Kidd says Patterson’s legal team has raised 35 complaints under its sixth ground of appeal, but the defence did not raise many of these during the trial with Justice Christopher Beale.
Edney says he is seeking to establish that on “close analysis” multiple features of Nanette Rogers SC’s closing address equate to a substantial miscarriage of justice.
He says the matters were raised by Patterson’s defence lawyer, Colin Mandy SC, in his closing address and some in objections during the trial.
Kidd says the defence could have argued the prosecution’s closing address should have led to the jury being discharged.
He says instead they made a “forensic” decision to capitalise on these issues and use the points in the defence’s closing address, the court hears.
• This post was amended on 19 August to correct the number of complaints Patterson’s legal team has raised under its sixth ground of appeal. It is 35, not 36.
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Edney: Patterson's cross-examination neither fair nor proper
Patterson’s barrister, Richard Edney, has skipped ahead to ground five of her appeal and is now arguing that Patterson’s cross-examination was neither fair nor proper.
He says under cross-examination, the prosecution asked Patterson whether a witness’s evidence was truthful or wrong.
Edney says it is for the jury to make findings about the reliability and credibility of a witness’s evidence.
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Inadmissibility of mushroom photos and videos compromised Patterson's right to silence, court hears
Drago is now turning to ground three of her client’s appeal.
Patterson’s lawyers argued that the trial judge, Justice Christopher Beale, erred in ruling that photos and videos of mushrooms found on an SD card at her home were inadmissible.
Drago says the SD card was found in Patterson’s study and contained photos of mushrooms taken in 2020. Some photos were posted on Facebook.
Drago says some of the mushrooms appear to be foraged mushrooms.
She says the prosecution wanted to use the photos in their case to show Patterson had an “enduring interest” in wild-growing mushrooms. But Beale ruled that the photos were inadmissible because they were too temporally remote from the circumstances of the case.
As a reminder, the beef wellington lunch occurred in July 2023.
Drago says Beale’s ruling that the photos of mushrooms were inadmissible meant Patterson was compelled to give evidence, compromising her right to silence as a defendant.
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Phone tower evidence was so ‘technical’ it could be used to mislead jury, Patterson’s lawyers say
Kidd says the limitations of the cell tower evidence provided by Sorell were laid out.
Drago says the evidence was “so complicated and technical” and had so many limitations that attempts to simplify it were prone to being misleading.
She adds that the “artificialness of the process that needed to be undertaken” for Sorell’s evidence to be admissible should not have occurred in the trial.
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‘Dangerous’ and ‘unfair’ phone tower evidence should not have been permitted, court hears
Patterson’s barrister, Veronika Drago, says the mobile phone tower evidence and the death cap mushroom sightings posted to the citizen science website iNaturalist should not have been permitted in the trial.
She says “objective evidence” about cell towers was turned into “subjective evidence” by expert witness Dr Matthew Sorell.
Sorrell, a digital forensics science expert, analysed Patterson’s mobile phone records for police and testified at the trial.
Drago says the judge, Justice Christopher Beale, ruled that the cell tower evidence did not prove that Patterson visited Outtrim and Loch – where sightings of the lethal death cap mushrooms were posted online to the platform iNaturalist. Drago says Beale said it only showed the possibility she visited the locations on the dates raised in the trial.
She says the cell tower evidence was “dangerous” and “unfair”.
During the trial, fungi expert Dr Thomas May told the court that he uploaded a post on iNaturalist on 21 May 2023 identifying death cap mushrooms in Outtrim. Christine McKenzie, a retired pharmacist and former poisons information specialist at the Victorian Poisons Information Centre, told the court she discovered death cap mushrooms in Loch, and posted them on iNaturalist on 18 April 2023.
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Court about to hear second of Patterson’s seven grounds of appeal
Just a reminder that Patterson is appealing against her conviction on seven grounds.
Patterson’s legal team is now moving to the second ground for appeal. This argues that the evidence about cell towers and death cap mushroom sightings should not have been heard in the trial.
Last year, the court heard that analysis of Patterson’s mobile phone records revealed she may have visited two locations soon after death cap mushroom sightings were reported online.
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DPP’s response to sequestering issue
Richard Edney, Patterson’s barrister, says the DPP has argued it is not reasonable to expect that in a trial held in a regional area the jury can be kept away from the “world at large”, including those with a connection to the case.
But Edney says it is reasonable to expect that jurors are removed from anyone who has an interest in the trial while they deliberate. He says the DPP’s argument places costs and convenience over ensuring “justice is done and seen to be done”.
Edney says there was other accommodation available in the broader region.
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How two days of hearings are expected to unfold
Just to go back a step to a timetabling matter which may help you understand how the next two days could play out: Justice McLeish said that Erin Patterson’s appeal against her conviction will be heard first, with an expectation that her legal team will make their arguments until Wednesday afternoon.
The prosecution will then respond to those submissions.
After submissions are heard regarding the conviction appeal, the court will turn to the DPP’s appeal against Patterson’s sentence. This argument relating to sentence is not expected to be heard until Thursday afternoon.
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Limited accomodation during sequestering ‘issues of convenience’, Patterson’s barrister says
Kidd says Patterson’s case must be considered in the context of other cases where jurors had unsupervised access to “outsiders”. He says in this case the jurors were under the supervision of the jury-keeper at all times.
Edney says it’s not the same as other cases where the jury had contact with outsiders but says it should not have occurred.
Edney says if the defence’s legal team had been staying at the same hotel as the jurors it would raise integrity questions about the deliberations.
He argues that the police informant, Det Leading Sen Const Stephen Eppingstall, and two prosecutors remained at the hotel days after they realised they were sharing accommodation with the jury. He acknowledges the limited accommodation availability but says these are “issues of convenience”. He says:
They are not, in our submission, a principled response.
Edney says the police informant, who was in charge of the investigation, was staying at the same hotel as jurors for the duration of deliberations. He says the prosecution never raised this at the time.
Sequestering argument continues
Edney says the jury should have been sequestered entirely separately from all parties in the trial.
Justice Peter Kidd asks if there is evidence that a breach of the communication embargo, which jurors must adhere to, has occurred. He says jurors are supervised to “protect the integrity of their deliberations and communications.”
He says:
If there has been no breach, then where’s the fundamental irregularity?
Edney says there was a “reasonable possibility” that jurors saw the presence of police and prosecutors at the hotel where they were sequestered. He also says “this was a hotel with windows”.
Kidd says even if non-verbal communication occurred, it would need to be something beyond just seeing members of police and the prosecution at the hotel for a breach to have occurred. He says:
There’s no evidence that that’s occurred here.
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Sequestering issue enabled possible ‘subconscious’ influence, court hears
Justice Peter Kidd asks Edney about what “contact” the jury had with the parties.
Edney says “contact” should have a broad meaning in this case as the jurors could still see the lead investigator in the hotel.
Justice Lesley Taylor says the jurors take an oath not to discuss the trial with outside parties.
But Edney says the sequestering issue allowed the “potential for communication or even subconscious influence” on the jury.
He acknowledges there is no evidence of any “direct communication” between the jurors and parties.
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‘Fundamental irregularity’ over sequestering of jury raised
Patterson’s barrister Richard Edney has begun talking about the “fundamental irregularity” that occured around sequestering the jury in the same hotel as police and media representatives.
He says justice must not just be done but be “seen to be done”.
Edney says the sequestering issue was an “inexplicable” and “still unexplained” failure that occurred in one of Victoria’s most high-profile criminal trials.
Edney says sequestering didn’t work because parties with a vested interest in the case were staying at the same accommodation as the jury. He acknowledged an email from a court-appointed jury keeper stating there was no interaction between the jury and the parties.
But he says the jury still had an opportunity to see “participants from one side of the case”.
Edney describes the incident as “catastrophic”.
Patterson appears via video link
Patterson is being beamed into the court via video link from Melbourne’s Dame Phyllis Frost Centre – the state’s maximum security women’s prison.
She is wearing a blue jumper, blue jeans and reading glasses and appears to be typing on a laptop.
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The three judges that will hear the appeal arguments are Justices Stephen McLeish, Lesley Taylor and Peter Kidd.
The prosecutors for the appeals hearing are the director of public prosecutions for Victoria, Brendan Kissane KC, and crown prosecutor Jeremy McWilliams.
Patterson’s legal team now includes barristers Richard Edney and Veronika Drago.
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The sole surviving lunch guest, Ian Wilkinson, is in the courtroom this morning.
Wilkinson is joined by his daughter, Ruth Dubois.
He is seated next to Det Leading Sen Const Stephen Eppingstall, the detective who was in charge of the murder investigation.
At a pre-sentencing hearing last year, Wilkinson said he had forgiven Erin Patterson for trying to murder him but could not offer her forgiveness for killing three other people with poisoned beef wellingtons.
He told the court:
I make an offer of forgiveness to Erin.
In regards to the murders of Heather and Gail and Don, I am compelled to seek justice.
Now I am no longer Erin Patterson’s victim, and she has become the victim of my kindness.
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Director of public prosecutions appealing against Patterson's sentence
The DPP is appealing against the sentence handed down to Patterson, arguing it is “manifestly inadequate”.
The DPP argues the trial judge erred in finding she was likely to spend “years to come” in solitary confinement when allowing for the possibility of parole.
Patterson’s sentence means after 33 years behind bars she’ll be eligible to apply for parole. During a pre-sentence hearing, the prosecution had submitted that, because of the horrendous nature of her crimes, Patterson should never be released.
While handing down Patterson’s sentence last September, Justice Christopher Beale found the triple murdered had effectively been held in solitary confinement for the past 15 months for her own protection due to the notoriety of her crimes. He said there was a substantial chance she would continue to be held in those condition for years to come for her own protection.
Beale said because of Patterson’s “harsh prison conditions” she was likely to continue facing for the “foreseeable future”, he had to consider these in sentencing and fix a non-parole period.
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Patterson appealing on seven grounds
Erin Patterson, 51, is appealing against her convictions but not her sentence.
If successful, the court of appeal will quash her convictions and could order a retrial or acquit her.
The grounds include what her lawyers argue is a “fundamental irregularity” around sequestering the jury in the same hotel as police and media representatives, and that her cross-examination during the trial was “unfair and oppressive”.
While considering the verdict, the jury was sequestered in a hotel in a regional town where police and members of the media also stayed. According to media reports, the matter was raised with authorities by Patterson’s lawyers at the time, but no concerns about the process were raised during the trial.
Patterson is also appealing on the grounds that mobile tower evidence – along with evidence of death cap mushroom sightings near her home – should not have been heard in the trial. The court last year heard that analysis of Patterson’s mobile phone records revealed she may have visited two locations soon after death cap mushroom sightings were reported.
She is also arguing evidence from her Facebook “friends”, who met Patterson through a true-crime group, should not have been allowed as it was not “relevant”. Patterson told a Facebook group chat that she wanted “nothing to do” with her parents-in-law, according to messages shown in court.
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Good morning
Welcome to our live coverage of Erin Patterson’s appeals.
It’s been more than a year since a Victorian jury found Patterson guilty of murdering three of her estranged husband’s elderly relatives and attempting to murder a fourth.
Today, three judges of Victoria’s highest court will begin hearing two appeals, one brought by Patterson and another by the state’s director of public prosecutions (DPP).
They will be considering whether her convictions should be quashed, and if she should remain in prison for life without the possibility of parole.
Patterson is appealing against her convictions while the DPP is appealing against her sentence, arguing it is “manifestly inadequate”.
Last September, Patterson was sentenced to life imprisonment, with a non-parole period of 33 years, for the murders of her estranged husband’s parents – Don and Gail Patterson and his aunt, Heather Wilkinson. She was also convicted of the attempted murder of Heather’s husband, Ian Wilkinson, who survived the lunch after spending weeks in hospital.
It’s expected to be a two-day appeals hearing. We are expecting today’s hearing to begin at 10.15am.
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