Erin Patterson has launched a last-ditch legal effort in the Supreme Court of Appeal in Melbourne to overturn her convictions for murdering three relatives with poisoned Beef Wellingtons at her Leongatha home.
The 51-year-old appeared via video link on Wednesday from the Dame Phyllis Frost Centre wearing an oversized jumper, messy long brown hair, and glasses, while blinking at a furious pace throughout the hearing.
Supreme Court of Victoria Justice Christopher Beale sentenced Patterson to life in prison on September 8 with a non-parole period of 33 years following her conviction for the murders of Don Patterson, Gail Patterson, and Gail's sister Heather Wilkinson. She was also convicted of the attempted murder of Pastor Ian Wilkinson, who survived after being critically ill following the July 29, 2023 lunch.
Justices Stephen McLeish, Lesley Taylor, and Peter Kidd are determining Patterson's future over coming days after listening to evidence in the main Supreme Court of Victoria building, where proceedings were relocated due to high public interest.
Death cap mushrooms, known scientifically as Amanita phalloides, contain lethal toxins that attack the liver and kidneys. Leongatha is a rural town in the Gippsland region of Victoria, Australia, located roughly 135 kilometres south-east of Melbourne.
Jury sequestration claims
Patterson had reportedly been expected to be represented by barrister Julian McMahon SC, a Companion of the Order of Australia who previously represented the ringleaders of the Bali Nine heroin smuggling ring. Instead, barrister Richard Edney appeared for Patterson alongside barrister Veronika Drago, instantly calling for her release from prison.
Opening ground one of the appeal, Mr Edney claimed that a fundamental irregularity occurred while the jury was sequestered in a hotel alongside journalists, police officers, and prosecutors.
"I'll start with ground one, and your honours will see that that ground is expressed that a fundamental irregularity occurred while the jury were sequestered, that has fatally undermined the integrity of the verdicts and requires the quashing of the convictions and an order for a retrial so that justice can not only be done but be seen to be done," Mr Edney said.
Describing the sequestration as catastrophic, Mr Edney submitted that there had been a fundamental failure to comply with established legal dictums. Although the court heard there was no evidence jurors came into contact with anyone involved in the case, Mr Edney argued that because the hotel contained windows and common areas, the reasonable possibility could not be excluded that jurors sighted the police informant or prosecutors.
Justice Peter Kidd questioned the significance of the assertion during arguments, asking: "If they did view or see the practitioners, so what?"
Mobile tower and website evidence
Addressing the court on further grounds of appeal, Ms Drago challenged the prosecution's reliance on data from the foraging website iNaturalist and mobile phone tower records. Prosecutors had alleged during the trial that Patterson used iNaturalist to track down death cap mushrooms.
Ms Drago argued that mobile tower evidence and records regarding death cap mushroom sightings in the nearby Victorian towns of Loch and Outtrim caused unfair prejudice and should not have been admitted. She claimed prosecutors framed innocuous information to turn nothing into something.
Ms Drago also attacked the expert testimony of Dr Matthew Sorell, who provided hours of evidence regarding mobile tower records. Submitting that call-charge records were unreliable and that subjective opinion was presented as objective evidence, Ms Drago asked: "The question has to be asked how such speculative evidence.. how could it go to a fact in issue?"
Turning to Patterson's third ground of appeal, Ms Drago argued that photos of foraged mushrooms should not have been shown to the jury by the prosecution. She noted that the defence had previously sought to use the same photographs to prove Patterson had a long-standing interest in foraging, but the prosecution objected on the grounds of irrelevance.
"By the time that very same evidence is sought to be relied upon.. by defence, the prosecution objected on the basis of the evidence being irrelevant," Ms Drago said.
Ms Drago submitted that a substantial miscarriage of justice occurred because Patterson was effectively forced to testify about her previous mushroom foraging. "That she was compelled at all.. arises to the level of a substantial miscarriage of justice," she said, adding: "The truth is that in our submission she was compelled, and that amounts to or offends one of the cardinal principles or fundamentals of criminal law that is an accused's right to silence."
Prosecution cross-examination challenged
Returning to argue ground six, Mr Edney complained that Patterson was subjected to unfair cross-examination by Crown prosecutor Dr Nanette Rogers. He submitted that repetitive questioning asking Patterson if other witnesses were wrong, incorrect, or mistaken diverted the jury from their proper duty.
"What this repeated questioning about whether other witnesses were wrong, mistaken, or incorrect was that the jury might have had or formed the impression that the applicant had to provide a reason as to why those witnesses were saying the things that they were saying," Mr Edney said.
Trial counsel decisions
As arguments unfolded, the Court of Appeal noted that Patterson's trial defence counsel, Colin Mandy SC, was fully aware of the issues now raised under ground six. While the defence team had formulated at least 35 complaints about the prosecutor's closing speech during the original trial, Mr Mandy chose to raise only a handful in his final address.
Justice Lesley Taylor highlighted that trial counsel had made deliberate strategic choices rather than overlooking potential errors. "The defence counsel was very alive to the complaints that you're now making under ground six. So alive was he to them that he raised most of them in his final address," Justice Taylor said.
Justice Taylor added: "When one looks at the final address delivered by a very experienced trial counsel, the complaints that you are now raising, they were on the table at the time. Nothing was being overlooked here, and rather than pursue other remedies, such as the prosecutor's address has led to a mistrial, a forensic decision was made to capitalise on these issues in order to maximise the applicant's prospects of an acquittal. So nothing's been overlooked here. And what can be inferred from that is that defence counsel not only made a forensic decision, but did not perceive at that stage that the trial was irrevocably unfair."
Prosecution appeals non-parole period
In addition to Patterson's conviction challenge, prosecutors from the Office of Public Prosecutions have launched a cross-appeal demanding that Patterson be stripped of any chance of parole. Director of the Office of Public Prosecutions Brendan Kissane KC arrived at the Supreme Court on Wednesday as prosecutors argued that Justice Beale's sentence was manifestly inadequate given the severity of the crimes.
Justice Beale's original order set a non-parole period of 33 years, which would allow Patterson eligibility to apply for release in 2056 when she reaches age 81. Prosecutors had called for a life sentence without parole, which would keep her imprisoned until death.
Melbourne criminal lawyer George Balot, of Balot Reilly Criminal Lawyers, told Daily Mail that Patterson faces distinct risks to her liberty by pursuing the appeal. "So if she puts in an appeal against conviction and she's successful.. and a retrial is ordered, some of the evidence will be played on video for a new jury," Mr Balot said. "So not all the witnesses will have to go through the same process. In addition to that, evidence that might have been excluded in previous trials might not be excluded on this trial. So it's very important to keep that in mind and, you know, be careful as to what you wish for."
Patterson had benefited during her original trial from crucial police evidence being withheld from the jury, which could be re-admitted if a retrial is granted. Lead investigator Detective Leading Senior Constable Stephen Eppingstall and Detective Sergeant Luke 'Faz' Farrell, to whom Patterson handed over a mobile phone after the lunch, gathered the extensive police case against her.
Mr Balot added that if Patterson wins her conviction appeal, she could potentially re-enter a guilty plea in the Supreme Court to receive a sentence discount for saving the community a trial, potentially securing a non-parole period shorter than 33 years.
The appeal hearing continues over the coming days, with the full scope of the police investigation expected to be revealed once the Court of Appeal issues its decision.
