Pod Insights The Case Of Mushroom Lunch: Why Erin Patterson is appealing & what next About this episode Erin Patterson’s appeal against her three murder convictions has been scheduled for August 19. Why? We thought you might need a refresher.
In this episode we revisit the grounds of appeal with Melbourne Court reporter, Kristian Silva – taking you into the Mushroom Case Daily archives to remind you of the grounds Patterson is appealing her conviction on.
The prosecution’s appeal for a longer sentence will also begin on August 19 at the Court of Appeal.
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.
Transcript 0:00 Speaker 00 Jack McLennam was 27, fit and visibly strong.
0:04 Speaker 01 He was trained well. He knew how to hit and I was gobsmacked.
0:08 Speaker 00 He seemed ready for anything, but then he suddenly vanished.
0:12 Speaker 02 I was just talking to him last night, like, how the hell does that happen?
0:16 Speaker 00 I'm Rob Bergen. Join me as I investigate what became of Jack in the new season of Unravel.
0:22 Speaker 03 There has to be something more nefarious going on.
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0:45 Speaker 00 On this day last year, late in the afternoon, Erin Patterson was called to the witness box in her triple murder trial. I'm Stephen Stockwell and I remember that moment like it was yesterday. She spent almost two weeks talking to the jury with new twists and turns to the story about the meal that killed her in-laws, but not her. Everyone wanted to hear what Erin Patterson had to say, captured the attention of the world and then five weeks later, a jury found her guilty for the murder of Dawn and Gail Patterson, Heather Wilkinson and the attempted murder of Ian Wilkinson. She's appealing that verdict though, and now the Victorian Court of Appeal has confirmed it will be heard later this year on August 19 with Erin Patterson's appeal for her convictions
1:26 Speaker 00 to be overturned heard alongside the prosecution's appeal for a longer sentence. And we will absolutely follow this story as it unfolds. Before then, because I know you've probably seen a lot of reporting about this, we thought a refresher on the grounds for this appeal would be handy. And to do that, we're bringing you an episode from when it was lodged with Christian Silver breaking it down for us. I hope you enjoy this. I really liked listening back because there were things I had forgotten in here and don't go too far from the Case of Feed. We've got a special episode for you on Thursday and then next week we're bringing you a whole new case. We're going to take you inside the murder trial of Raymond Reddington, a man in Perth accused of murdering his wife Sharon Fulton in 1986. That case was cold for decades. It was reopened
2:11 Speaker 00 partly because of an anonymous tip, but before then, enjoy this episode from November last year.
2:17 Speaker 05 Just a week after four people sat down for a family lunch in rural Victoria, three of them were dead. Homicide detectives are still piecing together... Together what exactly happened at the lunch. It's certainly looking like, you know, the symptoms are consistent with death cap mushrooms. Erin Patterson said she bought the dried mushrooms at a supermarket and an Asian grocery store months earlier. I cannot think of another investigation that has generated this level of media and public interest.
2:48 Speaker 00 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. 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.
3:07 Speaker 05 Thanks, Stocky. Nice to see the return of the name Mushroom Case Daily.
3:11 Speaker 00 Look, we're bringing it back. You know, we thought we'd, you know, 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. We've got the grounds of Erin Patterson's appeal. We have seven grounds that have been in that, and this is my first appeal. So I'm very keen to understand and learn how all this will unfold. First, though, I mean, can you quickly run us through what those seven grounds are?
3:37 Speaker 05 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. We'll get into that later. Defence has also taken issue with some of the cell tower evidence and sightings of death cap mushrooms in Locke and Outram. So these were areas that were close to Patterson's house. So they've had issues with that being included in the trial. 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.
4:20 Speaker 05 And they say there's a substantial miscarriage of justice there. They've got problems with some of the Facebook evidence, which was included in the trial. And this was some of the testimony from Patterson's Facebook friends and other messages which flowed from that. And I'm sure we'll get into that as well. Then they've taken issue with Erin Patterson's
4:43 Speaker 05 Cross examination, which did go for several days.
4:45 Speaker 00 Hmm.
4:46 Speaker 05 They've called it unfair and oppressive. And then point six and seven seem to be tied together. I'm not really sure what the difference is there. Um. But they say that there was a substantial miscarriage of justice because um. The defence 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.
5:09 Speaker 00 Yeah, and I mean, all of this, um, 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. Um. What's the purpose of this, this point? Like, what are we trying to do here?
5:24 Speaker 05 Well, this is just the notice to the court saying, we're lodging an appeal. Here's what it is. Um. 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. They'll go to specific paragraphs in the transcripts. Um. So it's crystal clear exactly what they're referring to. And they'll also um. Look at case law as well. Um. If they say there was a miscarriage of justice, they'll explain why and then probably refer to some old cases. Um. Yeah.
5:58 Speaker 00 Yeah, yeah, cool. Um. And seven grounds is, is that a lot? It feels like a lot.
6:03 Speaker 05 I guess they can uh file as many as they want. Um. Recently, in the Greg Lynn appeal, which is another big high profile case, there was four in that one.
6:12 Speaker 00 Hmm.
6:12 Speaker 05 Um. But even out of those four, it became really um dense. And and there were a lot of, a lot of paragraphs contained within each. So um, I don't know how this one will be structured.
6:24 Speaker 00 Yeah.
6:25 Speaker 05 But um, you know, while it is seven, it's kind of really six.
6:29 Speaker 00 Um. With the closing ones at the end.
6:31 Speaker 05 Yeah, yeah, yeah.
6:33 Speaker 00 Okay, cool. Well, we'll get to all of this as we go through the app. Uh. Thank you for kind of giving us the, the speed run uh of all of it and we can we can dive in and unpack of the, unpack all of them now. Um. Let's start at the, the end, the end of the trial, I mean, so to the first ground of the appeal. This was the, the fact that the jury, when they were sequestered, was, it ended up in a hotel with. The prosecution, the police and some of the media. And this is, you know, just kind of emerged in the squeeze of the the mobile accommodation and Tarragon accommodation at the time with everything that was going on. What is the issue here? What is the kind of the Aaron Patterson's defence pointing out or or saying happened?
7:09 Speaker 05 Well, the whole point of sequestering the jury, you know, taking them away from their family, away from their community and putting them in an isolated hub is to keep them separate from contamination. So the fact that they ended up in the same place as the prosecution, the media and some police witnesses is clearly a failing in in an attempt to separate them. However, the question has to be asked, was the jury's mind contaminated by seeing the prosecutor possibly in the hallway or Stephen Eppenstall, the informant in the reception
7:50 Speaker 05 or seeing some of the reporters who they've seen in the courtroom for for weeks, you know, seeing them around? That's that's really what the Court of Appeal is going to have to decide. Now, looking back a few months ago, we were told that kind of nothing untoward happened. But has Patterson's lawyers, have they uncovered something? Is there more to the story other than just some really bad logistical planning? And what Patterson's lawyers say here is that they want the convictions and a retrial to be ordered so that justice cannot only be done but be seen to be done.
8:31 Speaker 05 And I guess you've got the most high profile case in decades in Victoria. And if the defence is saying to the court, well, there were problems with it, it's not a good look for you. Maybe that's that's where they're heading.
8:46 Speaker 00 Do you have any idea how they'll check this? Will they get the jury in and ask them questions about it? Will they just sort of go through the the various documents and what they already know and review that and make a decision based off of that?
8:56 Speaker 05 I'm sure they've got the ability to gather new evidence and they could potentially take statements from people. So. I'm really fascinated by this. Are they 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 I, I think this is a very interesting ground and I'm very keen to see if there's more substance to it.
9:28 Speaker 00 Hmm. 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. 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.
9:44 Speaker 05 And the interesting thing is, and you'll know this as well, during the trial, we were in Morewell, a very small town. 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. Sometimes you'd have in, in one of the big cafes, you'd have the defence sitting at one table, the other end the cops and, and, you know, Ian Wilkinson's come in to, to get a takeaway and maybe even a couple of jury members. And, and, and of course, everyone kept their distance. I didn't see any examples of interaction. And no one's taken issue with that and that was going on for weeks.
10:27 Speaker 00 Yep.
10:27 Speaker 05 So the fact that this jury sequestering issue, which is, you know, probably happened over the course of a few days, has been seen to be such a big issue is, is interesting.
10:40 Speaker 00 Yeah, yeah, yeah. There's a lot of other grounds to get through, Christian, so we'll run through some of them as well. I mean, there's kind of a few bits of evidence or issue that the, the defence has taken with some of the evidence presented during the trial. And, 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 I naturalist post. And the, the suggestion here, this is my reading of it, so I'll let you kind of correct me, is that, that it was too incriminating and that outweighed the value of the evidence. Is that, is that what's being written there? Is that what they're saying?
11:09 Speaker 05 Yeah. So I think where they're going with this is when they're talking.
11:13 Speaker 00 About evidence of death cap mushroom sightings in Locke and Outrim. This is the post by Tom May, um, by the other mushroom expert, I forget her name. Um, about seeing mushrooms in this area. And remember, the defence said that there was no evidence that Patterson ever saw these posts. Hmm. Um, so maybe what they're hinting at is prosecution made a big deal about these people posting stuff online. Um, but if Patterson, if there's no evidence that Patterson saw them. Hmm. Was that unfair to her? Yeah. Um, did they ask the jury to make a mental leap that was a step too far?
11:54 Speaker 00 That, that seems to be the argument to me. Uh, in terms of cell tower evidence. Um, this seems to be questioning the evidence of Matthew Sorrell and him placing Erin Patterson's phone in the areas of Locke and Outrim around the time that these um, online posts of were made to our naturalists where um, death cap mushrooms were cited. You know, are they saying that Patterson, there's no evidence that Patterson went to these areas? Hmm. I think that's where this is going. Yeah, right. Yeah. Um, 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. And I mean, this is all kind of discussed in pre-trial as well.
12:38 Speaker 00 Um, whether or not evidence will or won't be excluded or so. So it's interesting to kind of have these discussions again now. And, and yeah, Christian, the kind of challenge of working out, um, you know, what they're actually meaning uh, with these grounds. Again, we've got, you know, we're working off kind of a couple of sentences for each one, right? I'm sure the Director of Public Prosecutions and all the prosecutors involved are also going through this same exercise. They will be preparing um, their response to this. Of course, they'll be waiting.
13:07 Speaker 05 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 poring through all the transcripts, trying to make sense of where this is going.
13:19 Speaker 00 Um, yeah, and I mean, we've got a few grounds related to evidence here as well. I mean, the next one is basically around, you know, some, an S D card, some photos and videos that the defence wanted to include. And I mean, the ground basically says here that, you know, the learned judge, the learned trial judge, that's Justice Christopher Beale, heard in ruling that they, you know, couldn't be included. I mean, you know, Christian talking about, you know, kind of how little detail we have in these grounds. Do we, do we know exactly what that's referring to?
13:49 Speaker 05 It sounds like 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. That's, that's what it sounds like and a substantial miscarriage of justice has occurred. Looking through the transcripts, I did find an exchange, which I think this relates to. And if memory serves me right, after this material was excluded from the trial during the pre-trial phase, the defence tried to reintroduce it.
14:31 Speaker 00 Right.
14:32 Speaker 05 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, you know, knew this was going to be back in, we would have led evidence about more stuff that Patterson had on her phones. 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. 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.
15:14 Speaker 05 So that when she went and, you know, picked some mushrooms in twenty twenty three, this is part of an innocent habit that she has. Um. But the prosecution's saying, no, she didn't have this habit. So um I think that is what this relates to. It will be interesting to see how it's explained in detail.
15:31 Speaker 00 Yeah, yeah. Um. And I mean, speaking of the Facebook friends, that's that's another one of the grounds uh in this appeal is that, you know, the the evidence from the Facebook friends, some of the Facebook messages um shouldn't have been included, um that, you know, wasn't wasn't kind of relevant to the case. Is that right?
15:46 Speaker 05 That's right. And it feels like the defence is rehashing something that they tried in the pre-trial. They tried to have a lot of this stuff knocked out. Because they felt that Erin Patterson's conversations with her friends um weren't relevant to the actual crime itself. And 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. So this feels like a very similar vibe again. Um. They're saying that the Facebook evidence was not relevant. And that it caused unfair prejudice to Erin Patterson. And to sort of flashback to what this was.
16:31 Speaker 05 This was messages where Patterson was um fairly frustrated with her in-laws. Um. I think she said, uh, this family, I swear to effing God in one of the messages. She was angry about. How uh Don and Gail Patterson weren't intervening um in a financial dispute that Erin was having with their son and her husband. Simon. Um. So the defence again saying that this should never have been in the trial, it was irrelevant.
16:59 Speaker 00 Yep.
16:59 Speaker 05 And caused another miscarriage of justice towards their client.
17:03 Speaker 00 Hmm. And I mean, this is interesting as well. Um. And I'm trying not to lean too hard on the word interesting because don't worry, I'm getting your emails. Um. But we had this conversation a lot during the trial that there was no motive being presented. Um. For the murders that Erin Patterson committed. So, you know, there was no, nothing that the prosecution could show as to why she had committed these acts. But then they also included these messages that showed this kind of frustration and disquiet between Erin Patterson and the broader Patterson clan. And, you know, there's this, in the grounds, there seems to be one of them, which is basically saying prosecution said they weren't going to present a motive. And then, you know, they kind of presented these messages and in their closing kind of started suggesting a motive. Um. Is that something that's not allowed?
17:46 Speaker 05 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. Um. Nanette Rogers repeatedly says, we're not suggesting a motive. However, um, the defence says that she implied that there was a motive.
18:07 Speaker 00 Right.
18:07 Speaker 05 And, um, looking through some of this text, um, again, I'm, I guess I'm trying to put two in two together. Um. There are some passages where Nanette Rogers refers to Erin Patterson sending bitter, angry messages about her in-laws. Um. Calling them a lost cause, saying, I don't need anything from these people, this family, I swear to God. Um. I'm sick of this shit. I want nothing to do with them. Um. So F them. Um. So maybe this is where the defence is heading, that Nanette Rogers has hinted at a whole bunch of things despite.
18:46 Speaker 05 Explicitly saying that's not what she's doing.
18:49 Speaker 00 Hmm. 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 and the defence has kind of gone, well, actually, there's a line between them.
18:58 Speaker 05 Yeah, yeah, that's the argument. Anyway, I'm sure the prosecution would disagree.
19:03 Speaker 00 Yeah. Another ground related to the closing in the appeal is that there was a substantial miscarriage of justice in that. 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?
19:19 Speaker 05 I think that's probably tied to the point we just discussed. Maybe there's some more to it.
19:25 Speaker 05 I don't really know. And on that, Colin Mandy repeatedly in his closing argument
19:32 Speaker 05 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, 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.
19:53 Speaker 00 Yeah, yeah, yeah. And finally, the remaining ground of the appeal, a substantial miscarriage of justice has occurred because of unfair and oppressive cross-examination of the applicant. Christian, was the cross-examination of Aaron Patterson by Dr Nanette Rogers too mean?
20:08 Speaker 05 That's kind of what it sounds like they're claiming. I mean, she wasn't waterboarded or anything like that. It was, she was questioned for days. And that's definitely true.
20:19 Speaker 00 Yep.
20:20 Speaker 05 But the thing is, you can't really have it both ways. And in another case, 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 argument, said a whole, you know, a whole lot of things about him, which Greg couldn't respond to.
20:40 Speaker 00 Right.
20:40 Speaker 05 Nanette's basically done the opposite in this case. She meticulously went through everything. And you remember this. Do you agree or disagree? Correct or incorrect?
20:51 Speaker 00 Yeah.
20:51 Speaker 05 It went on and on and on and on and on. And it was very thorough. But in the eyes of the defence, it went a little bit too far and was oppressive. But I mean, Patterson also seemed to take issue with anything that was slightly off the mark and wanted to correct the prosecutor and.
21:13 Speaker 05 Um. She also extended the length of of her time on the stand as well. 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.
21:28 Speaker 00 Yep.
21:29 Speaker 05 Um. But but I guess, um, and you'll remember right towards the end, after like seven or eight days on the stand, Patterson was pretty cranky.
21:39 Speaker 00 Hmm.
21:40 Speaker 05 And I I wasn't in the room for this bit. I was away, but I I guess the jury probably picked up on the fact that she was was sick and tired of it all by that point.
21:51 Speaker 00 Hmm. Yeah, yeah. No, it was, um, you know, it would have been a grueling cross examination for the the days that it continued on. And
21:56 Speaker 05 Exhausting.
21:57 Speaker 00 You could see her, yeah, getting getting more and more tired throughout throughout all of that. Um, Christian, since we've last spoken, since we've last done an episode episode on Aaron Patterson, we have had a prosecution appeal as well. Um, what's going on there?
22:09 Speaker 05 Yeah, yeah. So it's a double appeal, which is going to be great fun when we eventually get to the Court of Appeal. So Patterson was sentenced to life in prison with a non-parole period of thirty three years, but the prosecution wanted her locked up for life with no chance of parole.
22:25 Speaker 00 Mm hmm.
22:25 Speaker 05 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. Um, you know, how she's in isolation, how that's likely to continue for ages because she's this notorious criminal. Um, and the prosecution says there's no evidence to suggest that Patterson will be in isolation forever and ever. Um, obviously, that will go for some time, but they say that Justice Beale made that ruling with insufficient evidence. Um, and and they would say that it was a manifestly inadequate sentence for someone who committed a triple murder and attempted murder as well.
23:08 Speaker 00 Yep. Um, 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. How does this unfold? What does this look like from here?
23:21 Speaker 05 Well, over the next few months, those submissions will be developed by both Patterson's team. The OPP will no doubt be drafting a response to that and I'm sure preemptively working on it as well. But then they'll also be doing it for the prosecution appeal, which is the sentence appeal. So everyone will be busy putting together detailed submissions, poring over the transcripts, finding all the references in all the old cases. 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
24:03 Speaker 05 what happens. But it's a very high bar to get a retrial. The Court of Appeal, they're not just looking at whether something bad happened or something wrong happened. 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? 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 where it corrupted the jury or made it unfair. So sometimes they might even tinker with a sentence. They might say, yeah, okay, you're a little bit hard done by here. We'll drop the sentence by a bit. Or maybe vice versa, they'll say, actually, you know what, the judge didn't
24:46 Speaker 05 take this seriously enough. We'll boost your sentence by a couple more years. But to actually overturn an order or retrial is a really big step. So it's going to be a massive task for Patterson. 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.
25:05 Speaker 00 Yeah. And you're saying this is going to be a few months away. 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.
25:16 Speaker 05 The ball might get rolling, but I think, you know. Six to 12 months before having a full blown argument in the Court of Appeal.
25:24 Speaker 00 Yeah, right. Um, a long time, you know, to just kind of like drag this out. You know, we, we talk about the victims a lot um on this pod, you know, thinking of Ian Wilkinson, thinking of the, you know, the Patterson families and all of this. You know, it's just going to mean longer for them to, to reconcile and, and kind of wait for closure, I guess.
25:41 Speaker 05 Absolutely, and I, I'm sure they were warned that this was likely to happen. I mean, Erin Patterson has to roll the dice, doesn't she? Otherwise, it's a minimum of 33 years behind bars, if not the rest of her life. Um, 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. They've got to live with this, it's going to be back in the media.
26:08 Speaker 05 It's got to be really, really difficult um for, for everyone involved in this.
26:20 Speaker 00 That's our episode from November last year when Erin Patterson filed her appeal. The Victorian Court of Appeal has now confirmed it will hear it alongside the prosecution's appeal for a longer sentence on August 19th. We will be there for that and to bring you all the details as it unfolds. Next week, we're diving into a new case, the murder trial of Raymond Reddington accused of murdering his wife Sharon Fulton more than 40 years ago. We'll have that for you next Tuesday and this Thursday. A special episode to dive a little bit deeper into another story that you might have been following.
26:55 Speaker 00 The Case of 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 Rollinson. This episode was produced on the land of the Wurundjeri people.
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