source : the age
Thank you for joining our live coverage of the first day of Erin Patterson’s appeal against her conviction for the so-called mushroom murders in Gippsland.
Here’s a quick wrap of what happened today:
- Patterson’s barristers Richard Edney and Veronika Drago outlined their seven grounds for appeal to Justices Stephen McLeish, Lesley Taylor and Peter Kidd.
- Edney said it was “catastrophic” that the jury briefly stayed in same Morwell hotel as prosecution figures and this could have had a “subconscious influence” upon them, constituting a “fundamental irregularity” in Patterson’s trial.
- Drago said cell tower and iNaturalist evidence was “ripe for misuse” and should not have been adduced, while other evidence allegedly showing Patterson’s pre-existing interest in mushroom foraging should have been admitted.
- Patterson’s lawyers also took issue with her cross-examination and trial prosecutor Nanette Rogers’ closing address to the jury. They argued Rogers’ misstated and cherry-picked evidence, but Justice Kidd asked why Patterson’s defence barrister didn’t apply for a mistrial at the time.
- The defence also argued the prosecution changed its case “surreptitiously” in their final address by implying a motive that wasn’t outlined at the start. “A trial by ambush is not permitted,” Drago said.
- Director of Public Prosecutions Brendan Kissane, KC, hit back in the afternoon, telling the court there was no evidence jurors and prosecution figures interacted while they were briefly at the same Morwell hotel.
- Kissane conceded trial judge Christopher Beale would not have allowed the same-hotel arrangement had he known earlier, pointing to an email in which Beale’s associate said it was “obviously undesirable”. But he said it was an accident due to Morwell’s limited accommodation options that was fixed and caused no harm.
- Crown prosecutor Jeremy McWilliams also stood by the OPP’s use of different evidence.
The appeal hearing will reconvene tomorrow to hear the OPP’s challenge to Patterson’s sentence, which included a non-parole period of 33 years. Prosecutors had argued Justice Beale should have sentenced Patterson to life imprisonment with no possibility of parole.
See you tomorrow.
And we are done for the day.
Crown prosecutor Jeremy McWilliams just concluded his submissions in response to Erin Patterson’s complaints about technical iNaturalist and cell tower evidence used at her trial.
McWilliams offered to start his response to another ground, but Justice Leslie Taylor, Justice Stephen McLeish and Justice Peter Kidd had a quick chat and decided it was best to come back in the morning.
Crown prosecutor Jeremy McWilliams is now responding to Erin Patterson’s second appeal ground.
Specifically, her lawyers argue:
The cell tower evidence and evidence of death cap mushroom sightings in Loch and Outtrim posted to iNaturalist should not have been adduced in the applicant’s trial as the evidence was not (i) relevant or (ii) the probative value of that evidence was outweighed by its unfair prejudice and the admission of that evidence occasioned a substantial miscarriage of justice.
McWilliams has just gone through some of this contested evidence in detail as he argued it was used appropriately in Patterson’s trial.
“No such argument was made in relation to the iNaturalist evidence in the trial,” McWilliams said.
“The response is that this evidence was part of a collection of evidence which, taken together, demonstrated that the applicant had opportunity to deliberately source death cap mushrooms at a time close to the lunch, and on the prosecution case, did so.”
Brendan Kissane, the director of public prosecutions, believes trial judge Christopher Beale would have stopped the jury staying at the same hotel as some prosecutors and police in Morwell had he known about it earlier.
But he argued it was unintentional due to limited accommodation options and did not cause any fundamental irregularity as there was no evidence any prosecution figures spoke to jurors.
“I’ve got no doubt that if it was said to the judge, ‘look we want to stay in the same hotel as the jury’ he would have said: ‘No, we need other arrangements,’” Kissane said.
“But the fact of the matter was that it happened accidentally.”
Director of Public Prosecutions Brendan Kissane, KC, is now responding to arguments from Erin Patterson’s lawyers.
He rejected their submission that there was a “fundamental irregularity” in Patterson’s trial as the jury briefly stayed in the same hotel as some prosecutors and police, which the defence argued “fatally undermined the integrity of the verdicts”.
“There is actually no substance to it,” Kissane just said.
“Far from being some sort of catastrophic failure … there’s no evidence in our submission to support this ground.”
Kissane said the evidence showed there was “no social contact between any juror and any other person”.
He pointed out the hotel put jurors on a separate floor with a separate dining room. He jury keepers had sworn to prevent improper communication with jurors too.
Junior barrister Veronika Drago has now taken over proceedings to outline grounds four and seven of Erin Patterson’s appeal.
These are:
- Evidence from Facebook ‘friends’ and Facebook messages were not relevant, or their probative value was outweighed by unfair prejudice.
- The prosecution told the jury it did not have to prove a motive for the murders but then spent substantial time implying Erin was angry at the Patterson family over a child support dispute.
Drago said the prosecution changed its case “surreptitiously” in their final address by implying a motive that wasn’t outlined at the start.
Justice Lesley Taylor, Justice Stephen McLeish, and Justice Peter Kidd are back in courtroom one at the Supreme Court of Victoria.
Erin Patterson’s barrister, Richard Edney, has returned to his client’s sixth ground of appeal: that the prosecutor’s closing address caused a substantial miscarriage of justice.
Edney referred to the verdict in the similarly high-profile case of Greg Lynn to argue the court could grant an appeal even if a discharge of the jury was not sought at trial due to alleged prosecution misconduct.
“That application was not made. [But] it certainly does not stand in the way of this court intervening,” Edney said.
We’re onto Erin Patterson’s sixth ground of appeal, that being:
The prosecutor’s closing address caused a substantial miscarriage of justice.
The written submissions of Patterson’s lawyers have outlined 35 complaints with trial counsel Nanette Rogers’ final remarks to the jury. They argue she went “too far” and misstated evidence.
Justice Peter Kidd, however, pointed out that defence barrister at the trial, Colin Mandy, SC, did not apply to discharge the jury at the time and instead used the prosecution’s “perceived missteps” in his closing address to say the prosecution “cherry-picked” evidence.
Barrister Richard Edney has taken issue with the cross-examination of Erin Patterson during her trial in Morwell last year, labelling it unfair and oppressive.
In outlining Patterson’s fifth ground of appeal in court today, Edney said the prosecution’s questioning was repetitive.
“But also asking the applicant whether another witness was wrong, mistaken, or incorrect, in our submission, really diverted the jury from their proper task,” he said.
“The jury might have impermissibly thought or wondered why the applicant didn’t give an explanation, despite those directions that the jury got in relation to standard of proof and the burden of proof.”
