Mushroom Lunch: Prosecution argue sentence ‘manifestly inadequate’

Day two of Erin Patterson's appeal saw the prosecution arguing for triple murderer Erin Patterson never to be released. Kristian Silva explains how her sentenced was debated, as well as the remainder of Patterson's broader appeal grounds, which she claims led to a miscarriage of justice. We also answer your questions and address some feedback we've received in our inbox. Listen back to every episode of Mushroom Case Daily here https://www.abc.net.au/listen/programs/the-case-of/mushroom-case-daily/106846580 If you have any questions you'd like Kristian and Stocky to answer in future episodes, please email [email protected] mailto:[email protected]. The Case Of is the follow-up to the hit podcast Mushroom Case Daily, and all episodes of that show will remain available in the back catalogue of The Case Of.

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

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  Who gets what when someone dies and who decides?

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  The difficulty with undue influence often is proving it.

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  The person felt like they had no option, but it's difficult to prove that.

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  To hear, search for The Law Report and look out for Over My Dead Body. Find it on ABC Listen or wherever you get your podcasts.

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  ABC Listen, podcasts, radio, news, music and more.

• 0:45Stephen Stockwell?

  Justice Christopher Beale has made a mistake, according to the prosecution, who want Erin Patterson to spend the rest of her life in prison. I'm Stephen Stockwell, welcome back to Mushroom Case Daily.

• 0:56Speaker 04

  Just a week after four people sat down for a family lunch in rural Victoria, three of them were dead.

• 1:03Stephen Stockwell?

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

• 1:07Speaker 05

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

• 1:12Speaker 06

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

• 1:18Speaker 05

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

• 1:29Stephen Stockwell?

  After hearing the arguments for why Erin Patterson's conviction should be overturned, today we've had the arguments about why she should be locked up for the rest of her life. And there for this appeal, as both of these arguments have been made, has been ABC Court reporter, Christian Silver. Welcome, Christian.

• 1:43Speaker 07

  Thank you, Stocky.

• 1:44Stephen Stockwell?

  It's my pleasure, Christian. It's lovely to have you back to talk us through the appeal, the second day of Erin Patterson's appeal. Can you wrap up the day for us in 60 seconds or so?

• 1:54Speaker 07

  Sure. Well, we continued on from yesterday, so you'll remember that the prosecution was responding to Erin Patterson's seven grounds of appeal, and I think they were only up to ground two yesterday. So we got through the rest of that. In a nutshell, the prosecution defended the way it acted during the trial of Erin Patterson. Then we got on to the second appeal, which was the prosecution calling for Erin Patterson to not only be sentenced to life in prison, but to have no parole. And the prosecution basically said that this triple murder and attempted murder was in the worst category of offending. And that warranted the most serious penalty.

• 2:37Speaker 07

  They also had some comments to make about Erin Patterson's conditions in prison, but I'm sure we'll get on to that in a minute.

• 2:48Stephen Stockwell?

  We absolutely will, Christian. Thank you for talking through the day quickly like that. We've now had two days of this appeal. And something I've noticed in the Supreme Court, which is for all intents and purposes here, the Court of Appeal with the three judges sitting at the front, that this is very different to a trial, like we've talked about before and like we've covered on the case of, there are no witnesses. This is just kind of like lawyers on lawyers.

• 3:11Speaker 07

  It is, and it's a lot more open in terms of the language that's used. What I mean by that is there's no jury in front where people have to be careful with what they say or make sure they don't slip some sort of comment about a piece of evidence that's inadmissible or break some sort of rule by committing a legal faux pas. And the judges in the Court of Appeal, they're not mucking around either. They get to the point and ask fairly direct questions and expect direct answers back. So it's a pretty different environment. I quite like it, actually.

• 3:45Stephen Stockwell?

  Oh, I've really enjoyed it. It's a, you know, after doing the case of or Mushroom Case Daily for a period of time and then into the case of, I really kind of enjoyed learning about this process and the style of questioning. And I mean, I would not want to be any of these barristers because the appeal judges, as we talked about yesterday, have some very cutting questions at what seem like the least opportune times.

• 4:06Speaker 07

  Yeah, and these are the most senior judges in the state. They've been doing it for a long time. And their role on the Court of Appeal is to scrutinise previous cases. So yeah, the questions are tough.

• 4:20Stephen Stockwell?

  Yeah, absolutely. I will say, you know, while we had a very big crowd for the first day of Erin Patterson's appeal, that had thinned quite significantly today, far fewer members of the public, fewer journalists as well. Maybe the technical aspect has thinned the herd somewhat.

• 4:35Speaker 07

  Or maybe the realisation that Erin Patterson's on a link and you won't get to see her in the flesh.

• 4:41Stephen Stockwell?

  Exactly, yeah. We had still members of the families who'd been affected by Erin Patterson's crimes in the courtroom as well, though. Christian Ian Wilkinson was there today, other members of the Patterson extended family too. Erin Patterson on the link, she sat quietly for most of the day yesterday, but Christian, as the prosecution was kind of pushing back on some of the appeal grounds that her defence had mentioned, she got kind of animated at times.

• 5:06Speaker 07

  There was more emotion from Erin Patterson today. There were times when Jeremy McWilliams was on his feet for the prosecution, making submissions. And I could see Erin Patterson shaking her head and saying, no, no, no. She was on mute, so we didn't get to hear the audible outbursts. And then later on, there were some reactions as well, when there were some descriptions about her conditions in prison. So I guess after two days, she couldn't keep a straight face anymore.

• 5:35Stephen Stockwell?

  Yeah, with the reaction that we saw from Erin Patterson, it seemed to be around the prosecution's response to the admission of the photos from an SD card that was found in Erin Patterson's house. And basically the prosecution kind of pushing back on the defence's claims that that kind of took away Erin Patterson's right to silence.

• 5:54Speaker 07

  Yeah, we went into quite a lengthy description about this in yesterday's episode. But basically it was around the notion that Erin Patterson had a tendency to forage for mushrooms. Now, initially the judge ruled this out in terms of the prosecution being allowed to introduce the evidence. And it meant that it fell to the defence to introduce it if they wanted to. And the defence was upset about this for various technical, legal reasons. But the key point that the prosecution was making in response today was the jury doesn't care how this evidence comes before them. The jury doesn't mind whether the prosecution introduces the evidence or some other witnesses does it.

• 6:39Speaker 07

  It's all about the contents of the evidence and the jury's not fussed about these sort of formal legal mechanics and also perceptions that might be gleaned from who does it. And I think it was kind of Jeremy McWilliams's way of saying that not everybody thinks like lawyers. So yeah, good point.

• 7:00Stephen Stockwell?

  I think that's a very fair assessment of people. Not everyone does think like a lawyer, so I can understand where he's coming from there. I mean, yeah, we had the prosecution response kind of continuing to these defence appeal grounds throughout the morning today and actually kind of moving into the afternoon as well. There were challenges in Erin Patterson's appeal to the conduct of Dr Nanette Rogers, who was a prosecutor for The Crown during Erin Patterson's trial, challenges to the way that she had cross-examined. Erin Patterson also challenges to her closing address as well. And we saw Ms McWilliams really kind of going into bat for Nanette Rogers.

• 7:36Speaker 07

  He did. And Nanette Rogers during the cross-examination, this was the famous, you know, correct or incorrect line of questioning, and it was extremely thorough. I mean, it went for days and Nanette Rogers put just about every single allegation or theory to Erin Patterson during that cross-examination. The defence claimed that it was onerous and unfair, went a bit too far, a bit over the top. But Jeremy McWilliams called Nanette Rogers' performance thorough and fair. And he said, we reject the suggestion that the prosecutor acted as anything other than a model administrator of justice.

• 8:20Speaker 07

  And the key legal concept here is something called Brown and Dunn. And you might hear it in various cases. Basically, it's the notion that if the prosecution wants to make an allegation about an accused person and the accused person is in the witness box, you've got to put that allegation directly to them. And this is where this whole notion of correct or incorrect comes from with Nanette's questioning.

• 8:46Stephen Stockwell?

  Right, okay.

• 8:47Speaker 07

  And so the prosecution's saying this is a strict adherence to Brown and Dunn, defence saying went a bit too far.

• 8:52Stephen Stockwell?

  And Christian, that was the cross-examination by Dr Nanette Rogers of Erin Patterson. What about the closing and the challenges that Erin Patterson's defence team put to that? How did Jeremy McWilliams respond?

• 9:04Speaker 07

  The defence has picked out, would they say, 35 problems with the prosecution's closing address. And this is centring around the entire narrative that Nanette Rogers told the jury, along with specific allegations that were made about Erin Patterson at the mushroom lunch. Look, some of these topics included the way that Nanette Rogers described Ian Wilkinson, the sole survivor of the lunch, as a reliable witness. The defence had a disagreement with that. They had issues with the way Nanette Rogers described Erin Patterson's infamous bush poo on the side of the road, which happened after the fatal lunch, when Erin Patterson claimed that she too was sick.

• 9:50Speaker 07

  And it was the way that Nanette Rogers described the timeline of Patterson going and washing her hands at the service station in the days afterwards. The defence said there's no proof, no evidence that she washed her hands in the service station, which is a bit gross, but anyway, the prosecution was unimpressed with this criticism. Jeremy McWilliams said that the defence had put forward a collection of matters that at the time of the trial were thought to be unobjectionable. Or there were complaints about things that were raised to the judge and settled by Christopher Beale, or matters where Erin Patterson had actually been successful.

• 10:34Speaker 07

  So another key thing that the prosecution wanted to make clear was that at no stage was Erin Patterson diagnosed with death cap mushroom poisoning.

• 10:48Speaker 07

  Um. And they said that there's no proof of a negative diagnosis. So now we'll remember that the defence has pointed to um Erin Patterson's presentation at hospital and various things that happened to suggest to the jury that at the very least she was suffering milder symptoms to that of Don Patterson and Gail Patterson and Heather and Ian Wilkinson.

• 11:13Stephen Stockwell?

  Hmm. I recall as well in the um kind of defence response to the prosecution response, the kind of circle of responses, um the the defence saying, well, look, you know, you can actually test for this, you know, you could do a blood test quite soon, you could do a urine test quite soon. And the defence saying those tests weren't done within a kind of reasonable timeframe, basically.

• 11:33Speaker 07

  Well, it seems that maybe because the way Patterson presented to hospital and the seriousness of her illness or the apparent seriousness of it was really different. Um the lunch guests were vomiting violently and appeared really sick from the moment they presented to hospital. Erin Patterson turned up and then bailed to go home. So I think maybe you can understand how the way she was treated and perhaps the tests that were conducted were different.

• 12:04Stephen Stockwell?

  Yeah, absolutely. Uh Christian, the the final point that the prosecution was responding to today to the defence appeal was this idea of motive. You know, we've heard from Erin Patterson's defence team that the prosecution said they wouldn't rely on a motive. And then in their closing arguments, they did rely on a motive. How did the prosecution respond to that uh appeal ground?

• 12:25Speaker 07

  The defence was saying that the prosecution implied there was a motive despite explicitly saying to the jury there was no motive. And Jeremy McWilliams got his chance to respond to this today. And what he said was some of the Facebook messages that the prosecution had put forward to the jury, these were messages where Patterson was sort of making disparaging comments about her um strange husband, Simon, and as well um the the broader Patterson family. Um this was in reference to messages Erin Patterson had sent her Facebook friends in the months before the lunch, where she described the Patterson uh broader Patterson family as a lost cause.

• 13:05Stephen Stockwell?

  Yep.

• 13:06Speaker 07

  So anyway, Jeremy McWilliams, the prosecutor, said, we brought this up, but it was not um to show that Erin Patterson had a motive to murder these people. What it was was to show that the relationship that Patterson had with the family was different to the one that she described in her police interview. Now, in the police interview, she said she loved the family and all this sort of thing. And what McWilliams was saying was that, no, actually, Erin's story about um about them is not as rosy. He said that the judge gave clear instructions on how the jury was to use this evidence um when they were assessing it and coming to their verdicts as well. And and the prosecution said that it was

• 13:50Speaker 07

  um what he described as relationship evidence. And he said it was not a miscarriage of justice. And um he he denied that the prosecution ever changed its case.

• 14:02Stephen Stockwell?

  Yeah. Okay. Thank you, Christian. Um just a question on the kind of process when we're going through these grounds and we've got the the various parties delivering their submissions, which is basically just their presentation, for lack of a better word. Um I noticed that the appeal judges, you know, we've talked about the kind of very cutting questions they're asking. Have they got basically the script that these barristers are going to work from and they're making notes and kind of ready to jump in at points? Or are they really just thinking on their feet and responding very quickly and very smartly?

• 14:30Speaker 07

  Mostly the first. Um both parties had to file written submissions, some months in advance, actually, before today. And um the judges have had this in front of them. And um just having a look at the the written documents ourselves, we got them yesterday. The lawyers have kind of been going through um their written submissions in the order that they were written in.

• 14:53Stephen Stockwell?

  Mm hmm.

• 14:53Speaker 07

  Um. So there is a bit of a script to work off. But um um make no mistake, these appeal judges have been poring over the transcripts from the trial. They were bringing up, making references to all sorts of things that I'd forgotten about.

• 15:10Stephen Stockwell?

  Hmm.

• 15:10Speaker 07

  Um. So they really um do know what went down in Morewell.

• 15:15Stephen Stockwell?

  I noticed one of the appeal judges today, Christian, Lesley Taylor, who um was sitting on the kind of left hand side, stage left uh of the bench uh from where I was in the in the in the media gallery. Uh at one point, there was a reference to a transcript and she pulled out a huge ring binder and leafed through it and knew exactly where she was going to and then followed along with the reference in the transcript as well. So yeah, really, you know, quite well marked, very well prepared, the appeal judges. Um, you know, we had the first part of the day prosecution responding to the uh the basically the appeal grounds raised by the defence, the reasons that the defence say Erin Patterson's conviction should be overturned. Then we got into the second part of the day. Uh Christian, now this is the appeal by the prosecution to Erin Patterson's sentence. Erin Patterson was sentenced to life in prison with the possibility of parole after thirty three

• 16:00Stephen Stockwell?

  years. That was what Justice Beale handed down. The prosecution is saying he got that wrong. Why?

• 16:07Speaker 07

  Because the prosecution says that three murders and an attempted murder puts a crime in the worst category of offending. And that something this bad should not get parole under any circumstances.

• 16:23Stephen Stockwell?

  Yeah. Um. There was a point as well, a kind of conversation point I noticed, there was the prosecution challenging the the way that Justice Beale made the decision to apply a non-parole period of thirty three years, you know, saying that, you know, the decision based on the conditions in Erin Patterson's prison wasn't correct. You couldn't possibly know how her prison sentence would unfold in the future.

• 16:44Speaker 07

  Well, this was the reason why Patterson did get the parole period. It wasn't that Justice Beale thought the crime wasn't bad. He obviously did. But he was acutely aware of the immense media attention that Patterson had received ever since this fatal lunch. And and one of the heads of corrections, Victoria, was actually called to testify about Patterson's conditions in prison because they're different to most other women in the women's prison. Um she's basically in solitary confinement. She's in her cell for like twenty two, twenty three, twenty four hours a day.

• 17:22Stephen Stockwell?

  Hmm.

• 17:22Speaker 07

  Um. While technically she does have access to things like a library and an exercise yard and a treadmill, um even this officer admitted that sometimes that doesn't actually happen. So most of the time Erin Patterson is is in her cell. Um she's got a TV, she's got her um equipment to do crocheting, um and she's got herself. So it's it's a pretty lonely existence in there. And Justice Beale took this into account. And he said that because of Patterson's notoriety, um she was at risk of being um attacked by other prisoners and she's in those conditions for her own safety. So he had to factor that

• 18:06Speaker 07

  in um with the sentence. And he said because she's so famous or infamous.

• 18:11Stephen Stockwell?

  Hmm.

• 18:12Speaker 07

  In his mind, there's just kind of no end in sight for when this will change and when she would be able to return to a quote unquote normal prison existence.

• 18:22Stephen Stockwell?

  Yeah. And I I found it interesting, basically, the prosecution argument here for, you know, why Justice Beale got that wrong, being that Justice Beale can't predict the future. You know, while that was the evidence of um the woman from Corrections, you know, that is just her evidence, you're saying foreseeable future, you know, we don't know how long that would continue for. And kind of without, I guess, that certainty, um that wasn't something that Justice Beale was kind of able to do. Uh I did note, Christian, that the defence, when they were responding to the um the the prosecution uh appeal on the sentence, provided a glowing endorsement of Justice Beale.

• 18:55Speaker 07

  Correct. So just to be clear, obviously, the defence um is saying that Erin Patterson is innocent. But if we're to just take the theoretical um analysis of what Justice Beale did, Justice Beale sentenced someone who was convicted of three murders and an attempted murder and gave them the possibility of walking free one day, thirty three years into the future. Um when Patterson's defence looked at that, they said, um.

• 19:25Speaker 07

  Justice Beale has taken everything into account when he's passed this sentence. And the sentencing judge did everything right in this complex sentencing exercise. And Richard Edney, the barrister for Aaron Patterson, said that he was confident that she would remain in confinement for many years to come.

• 19:44Stephen Stockwell?

  Yeah, okay. Thank you, Christian. I want to find out, you know, what happens from here in just a moment. But before we get there, I want to jump into the case of inbox. We've had a bunch of emails coming in over the last 24 hours of return to Mushroom Case Daily kind of pacing. The email address is [email protected] if you want to get in touch. And I want to go to one from Marie Imwadonga here, Christian. It was her understanding that Aaron Patterson had engaged a human rights lawyer called Julian McMahon for the appeal. What happened to him?

• 20:12Speaker 07

  Marie, a great memory, and you're correct. There was a period where Julian McMahon was on the books, but we never actually got to see him in practice. I actually just checked through my old emails where I emailed McMahon's chambers and asked, is he on this case? And they wrote back, yes. But we never saw him in court. And I think we're a bit poorer for it because Julian McMahon is a highly respected barrister. He was involved in the Bali Nine case, I believe. He's also the barrister in the ISIS brides case at the moment. And aside from being a top lawyer, he's a very entertaining, charismatic

• 20:55Speaker 07

  figure in the courtroom. And his descriptions and his quotes captivating. And you're never bored listening to Julian McMahon, which is more than what can be said for some other barristers.

• 21:08Stephen Stockwell?

  Nice to know that he's entertaining, but why wasn't he there?

• 21:11Speaker 07

  We don't know. And look, it's not uncommon for barristers to change behind the scenes. It happens all the time where legal counsel changes for various reasons. Sometimes there may be scheduling issues or cost issues or philosophical differences about the way to take a case. I genuinely don't know. This sort of stuff is covered by legal privilege. So even if we asked Julian McMahon, we probably wouldn't know why he was on the case and then off it again.

• 21:42Stephen Stockwell?

  Yeah, okay. Thank you, Christian. That is a wonderful question as well, Marie. So thank you for writing into [email protected]. Christian, as well as the questions, we've had some feedback. This one is from Christiana. And I will preface this by saying that Christiana says she's a big fan of the pod and is excited to have us both back making Mushroom Case Daily episodes. She was, however, a little bit bothered by your suggestion that the jury should have stayed an hour away when they were sequestered. That would mean a two hour trip each day. And that seems like punishment in and of itself.

• 22:13Speaker 07

  Well, my commute's an hour each way. Most people who live in a capital city have to do that. No.

• 22:21Speaker 07

  Probably to expand on the point that I was trying to make was that in this area, a lot of the people who were in the jury, we don't know their specific personal circumstances. But I'm going to hazard a guess that some of them were from the town of Terrerogan, which is next to Morewell. So the notion that these people would be separated from their local community by putting them in the middle of their local community seemed a little bit strange to me. And I was just trying to make the point that if they were staying some distance away, it would just eliminate any form or significantly reduce the likelihood of contamination.

• 23:02Speaker 07

  I just thought putting them up next door to the town where the trial is being held kind of defeated the purpose of isolating them. So that's, that's what I was trying to make. The other thing is, we know this was a really committed jury. They sat through like 10 or 11 weeks of this trial, through all of the evidence, through the highs and the lows, and the fast moments and the slow moments. And I'm sure they were so committed to doing a good job that I don't know if they would have minded that much about having a bit of a longer commute if it meant that the sequestration process was watertight.

• 23:39Stephen Stockwell?

  Hmm. They seem pretty dialed in, I feel. And yeah.

• 23:42Speaker 07

  Very committed.

• 23:43Stephen Stockwell?

  Yeah, very committed. The feedback is not exclusive to you, Christian. I have been corrected as well. Yesterday, I made the point when the appeal judges came in that we had a nice deep bow to the appeal judges. That was incorrect on my part. Both Kate and Carolyn have emailed to say, you don't bow to the individual judge. You bow to the bench, the idea of justice. It is a way of paying respect. So I feel like I have been corrected on that before, when I've said I like bearing to the judges. But no, it's a, it's a broader premise, a broader, broader idea of who you're bowing to. So I apologize for my mistake there, Carolyn, Kate, I'm sure plenty of other people who were rankled by that suggestion. I do appreciate all the love as well that comes with that feedback, most of the time that we get to [email protected].

• 24:26Stephen Stockwell?

  Christian, the appeal has wrapped up now. What next?

• 24:29Speaker 07

  We're waiting on the judges. So when both sides finished the second appeal this afternoon, the three judges rose, they said, we reserved our decision and will adjourn the court. And so now it's just a matter of waiting to see what they come back with.

• 24:48Speaker 07

  Could be weeks, could be months. Yeah.

• 24:51Stephen Stockwell?

  Bit of a piece of string argument. I was going to ask, how long?

• 24:53Speaker 07

  Yeah, very much so. I mean, we'd all love a decision before Christmas, I think, but there's a lot riding on it, isn't there? Because especially for Aaron Patterson, obviously, if she loses this, it's going to be so hard to come back from. She potentially would have to go to the High Court and then convince the High Court that not only did the jury get it wrong, that Justice Beale made some mistakes with the way he ran the trial, that the Court of Appeal then also got it wrong. It's a pretty tough ask.

• 25:22Stephen Stockwell?

  Yeah, I mean, but a lot of stake for her as well. You know, this, her freedom potentially hinges on these appeals as well. She's saying that these convictions are incorrect and she deserves to be, you know, retried, if not, you know, have these convictions thrown out. So.

• 25:35Speaker 07

  And let's be honest, everyone knows this isn't just a normal case. This is a special case that has had attention that has not been seen in decades. And these Court of Appeal judges will be acutely aware of that and will be very thorough with whatever judgment it is that they come back with.

• 25:53Stephen Stockwell?

  Hmm. I mean, throughout all this, I'm thinking of the family, you know, the, the extended Patterson family who've lost Don and Gail, and also the Wilkinson's who've lost Heather and Ian Wilkinson, who we saw in court again today. You know, he's to live with this for the rest of his life. So that impact, you know, you can't really get that kind of full closure, I don't think, until this process finishes.

• 26:11Speaker 07

  No. And there's also Simon Patterson and their kids, the two children. They've got to live with this too. And every time it gets brought up, you know, reminders that their mum is one of Australia's most notorious criminals. Imagine that's pretty tough to deal with when you're a teenager.

• 26:29Stephen Stockwell?

  Yeah, absolutely. Christian, thank you so much for joining us for these episodes. I really appreciate your insight and the way you've been able to break down what is, you know, has been a kind of pretty opaque process at times in the appeal court.

• 26:39Speaker 07

  No pleasure. It's, it's good to come back and good to, yeah, reconnect with all of the Mushroom Case Daily listeners. It's, it's been a fascinating case, a really harrowing case as well. But it really has been good to be able to chat through the legal process. And we've all learned something through sitting through what has been quite a unique case.

• 27:04Stephen Stockwell?

  Yeah, absolutely. Thank you so much for joining us. Thank you for listening to the case of as well. I'll be back in your feed tomorrow with the case of Alan Jones. We've had some very tense moments as Alan Jones, the barrister, has questioned one of the alleged victims in that case. If you're coming to us from Mushroom Case Day, I think you'd really appreciate that series as well. So have a listen to that one. Thank you so much for listening to Mushroom Case Daily.

• 27:34Stephen Stockwell?

  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 supervising producer is Greg Muller and our executive producer is Claire Rawlinson. This episode was produced on the land of the Wurundjeri people.