Erin Patterson murder trial day 36: Judge tells jury not to let feelings of prejudice or sympathy impact decision-making, cautions on hearsay evidence

Supreme Court judge Christoper Beale next reminds the jury that witnesses in criminal trials typically cannot give their opinion – instead, they focus on observations. But experts, Beale said, can do so – and the prosecution in this case relied on two of them, one of whom was cell tower expert Dr Matthew Sorell, who spoke about base station connections, among other things.

Phone tower expert Dr Matthew Sorell.Credit: Joe Armao

Sorrell told the jury that phone handsets usually connect to the base station that provide the best connection, but which is not necessarily the closest base station. Beale said Sorrell gave the example of a phone that may connect to different base stations depending on whether it’s being used at the front or back of a house. Weather and driving can also influence connections. Sorrell also said there were significant limitations on his analysis of this type of evidence, including on time and place.

Beale told the jury that Sorrell noted in his evidence that possible visits by Patterson to the townships of Loch and Outtrim – where death cap mushrooms had previously been observed – were not definitive visits. This applied to the prosecution’s allegations that Patterson visited Loch on April 28, 2023, and both Loch and Outtrim on May 22, 2023

Beale said the jury should consider Sorrell’s evidence alongside other evidence presented during the trial, and regard it as the accused “possibly” visiting those locations, but not evidence that she “actually” did so.

Patterson denies killing or attempting to kill anyone.

This concludes our coverage of court proceedings for the day.

The trial continues.

At the request of the prosecution, Justice Christopher Beale has drawn the jury’s attention to some alleged inconsistent statements made by accused killer Erin Patterson on eight different topics.

Some of the points raised by Beale regarding Patterson’s statements

• Beale said Patterson told police she had never foraged for mushrooms, while she told the jury she had after developing an interest in picking and eating wild mushrooms from about 2020.
• Patterson said she had asked her daughter if she wanted to see a movie instead of attending the lunch, while her daughter said her mother wanted to talk about adult stuff, so the children “were going to go to the movies together”.
• Patterson allegedly told multiple witnesses she had included mushrooms from Woolworths and an Asian grocer in the beef Wellington meal, but she told the jury under cross-examination that she realised on August 1, 2023, that foraged mushrooms may have made their way into the meal.
• Patterson told the jury she ate a quarter or a third of her beef Wellington, but told other witnesses she ate about half.
• Beale said that on the evidence, Patterson said her diarrhoea began sometime between 10pm and midnight on the evening of the lunch on July 29, 2023. Simon Patterson’s evidence was that he recalled being told by Erin that she became unwell about 4pm or 4.30pm, when she raised concerns with him about having to drive her son’s friend home and the risk she may “poo her pants”.

“You should keep in mind the fact that a witness who gives inconsistent accounts is not necessarily lying. While dishonest witnesses are more likely to introduce inconsistencies in their stories, truthful witnesses may make mistakes about details,” Beale said.

Justice Christopher Beale has resumed his judge’s charge after the lunch break.

He is now drawing the jury’s attention to alleged prior inconsistent statements from witnesses, after both the defence and prosecution raised instances where evidence given in the witness box allegedly conflicted with earlier witness statements.

Some examples noted by Beale

Simon Patterson

• In a pre-trial hearing, Patterson said he and his estranged wife remained amicable and their friendship was strong, but at the trial told the jury he’d since learned amicable had two different meanings.
• He told the jury that when Erin Patterson invited him to lunch, she said she had “important” medical news that she wanted to speak about and that it was a “serious” matter. During cross-examination, he agreed he didn’t use either word in his police statement, instead telling officers his estranged wife wanted to talk about “some” medical issues.

Ian Wilkinson (surviving lunch guest)

• During cross-examination, the lunch survivor told the jury that the accused killer had told the lunch guests she had cancer. In his police statement, he told officers she had told them she had suspected cancer.

Tanya Patterson (sister-in-law)

• At one stage, she said she believed the relationship between Simon and Erin began to deteriorate in 2022. She later told the jury it was late January 2023.

Sally Ann Atkinson (Department of Health official)

• Atkinson told the jury Erin Patterson had told her she bought the mushrooms from Woolworths on a Friday, but her notes at the time did not mention a specific date.
• She also told the jury she got the impression Patterson had previously used the dried mushrooms from the Asian grocery store, but later said she was confused by the conversations, which she said were not very clear.

Dr Chris Webster (Leongatha Hospital)

• Webster told a pre-trial hearing it was a constant struggle to free up beds in regional hospitals by sending patients to bigger hospitals, but he told the jury it wasn’t a daily struggle.

The next topic the jury is being taken through is referred to as hearsay evidence.

Supreme Court Justice Christopher Beale said this included things that Erin Patterson’s estranged husband, Simon Patterson, and Ian Wilkinson, the surviving lunch guest, said they heard from the other lunch guests before they died.

This type of evidence includes Simon Patterson’s evidence that Heather Wilkinson spoke to him about the accused woman eating from a different coloured plate, and that his parents, Don and Gail Patterson, said Erin Patterson spoke about having cancer, possibly ovarian cancer, at the lunch.

Erin Patterson and Simon Patterson.

Ian Wilkinson, the judge said, gave evidence about his wife talking about Erin Patterson eating from a different coloured plate at the July 29, 2023 lunch.

“It’s for you to determine if Heather made the alleged statements to Simon and to Ian Wilkinson about Erin having a different coloured plate to the guests at the lunch and whether … Gail [Patterson] made the alleged statement to Simon about the topics of conversation at the lunch,” the judge told the jury in his charge.

“If you find that they did, you can use that fact as evidence that Erin did have a different coloured plate to the lunch guest, and that Erin told her lunch [guests] she had cancer and wanted advice on how to tell [her] kids.

“However, before you do so, I must warn you about the need for caution when considering the hearsay evidence of Simon Patterson and Ian Wilkinson.”

Beale said this warning was necessary because these alleged statements were made outside a court by others.

Errors could occur with out-of-court statements, the judge said, and while they might be truthful, they might not be an accurate account of what was said, as a person might have been mistaken.

Supreme Court Justice Christopher Beale said the jury heard evidence from the accused woman, Erin Patterson, that she had a tendency to forage for edible wild mushrooms from about 2020, and picked and ate what she found.

In summarising Patterson’s evidence to the jury, the judge said the accused said she loved the taste and tried various varieties from places such as grocers, including Asian grocers, and from the wild.

She said she used the mushrooms in curries, pasta dishes and soups and that she thought the exotic varieties tasted better.

Erin Patterson has pleaded not guilty to three charges of murder and one of attempted murder.Credit: Jason South

Mushrooms, the accused said in her evidence, grew at her three-acre property at Korumburra in 2017 to 2018 and also at the local botanic gardens and rail trail. Some were edible, but one had her worried, she told the jury, and she would scroll through Facebook messages as part of her mushroom research.

“Eventually she told you she started consuming them,” Beale told the jury in his charge.

He told the jury that Patterson said in her evidence she became confident enough to fry some foraged mushrooms in butter and put them in her children’s meals, after chopping them up small enough so her son and daughter would be unable to notice them.

“She told you that she accepted that death cap mushrooms were in the beef Wellingtons, she told you that the vast majority of the mushrooms for that meal came from the local Woolworths in Leongatha, although some came from [an] Asian grocery store she purchased from in the 2023 April school holidays,” Beale said.

Beale recapped that Patterson said in her evidence that she bought a dehydrator when she moved to Leongatha, and posted photographs of it to Facebook. She later dehydrated mushrooms picked from the local botanical gardens, but they did not turn out well.

That was more of an “experiment” before Patterson said she went on to dry and eat other mushrooms as she grew in confidence, the judge summarised.

She maintained she did not pick any from under oak trees at the botanical gardens, but did pick them from near three trees there.

In Patterson’s pantry in May and June 2023, Beale told the jury, there was a Tupperware container with different dried mushrooms inside.

Beale said Patterson agreed that she later picked mushrooms from her Leongatha property, and in the lead-up to the fatal lunch, but denied ever seeking toxic mushrooms.

But during her evidence she agreed she lied to others in the aftermath of her lunch about foraging.

When police searched her house, the judge told the jury, Patterson agreed that police didn’t find any books about mushrooms, but noted some books remained in the garage unpacked.

Beale told the jury: “If you find that she had a tendency to pick and eat wild mushrooms, including putting them in meals she served to others, or if you think it is a reasonable possibility that she had that tendency, you may consider that it increases the possibilities that the death cap mushrooms ended up in the beef Wellingtons accidentally, rather than deliberately.”

Arguments made to the jury by the opposing legal teams

Arguments made by the prosecution:

• The only evidence Erin Patterson foraged for edible mushrooms came out of her mouth
• Patterson was a self-confessed liar
• Photos she took didn’t constitute evidence of her eating wild mushrooms
• Before 2022, she had a good relationship with estranged husband Simon Patterson, and he told others he never knew her to forage for mushrooms
• Her children said they had no memory of their mother foraging
• There were no messages to family or online friends regarding foraging
• No books on wild mushroom foraging at her home
• Patterson denied being a forager until the “recent invention” of her story

Arguments made by the defence:

• Erin Patterson loved mushrooms
• More people started foraging during pandemic lockdowns
• That her children didn’t recall her foraging was consistent with them being young children
• Photos of wild mushrooms at her home were found on an SD card seized by police
• Patterson likely visited the iNaturalist website, but her interest wasn’t sinister as she only wanted to know if death caps grew in South Gippsland
• She didn’t hide purchasing the dehydrator or telling her online friends about it
• If Patterson was guilty she would have dumped the dehydrator before the lunch
• She gave consistent evidence
• There was no evidence of a motive to kill her lunch guests
• She is a person of good character

There were witnesses in the trial, including the accused woman’s Facebook friends, who gave what the judge called character evidence.

This, Supreme Court Justice Christopher Beale told the jury, included testimony from Christine Hunt and Daniela Barkley, who told the trial that Erin Patterson’s life appeared to revolve around her children and that she was a devoted, attentive mother.

Detective Leading Senior Constable Stephen Eppingstall outside court on May 27.Credit: Jason South

The lead police investigator, Detective Leading Senior Constable Stephen Eppingstall, also told the trial that Patterson had no criminal history.

Beale told the jurors that if they thought a person was of good character, they could use this to help them when considering Patterson’s evidence and her denials, and also the strength of the prosecution case, as a person of good character can be thought to be more trustworthy than others.

“Generally, it’s believed a person of good character is less likely to commit a criminal offence. But this does not mean you have to find her not guilty, it can only help to determine if facts have been proved,” Beale said. “People of previous good character can commit a crime.”

The accused woman, Erin Patterson, chose to give evidence in her trial, Supreme Court Justice Christopher Beale told the jury.

He said Patterson didn’t have to do that, and it remained up to the prosecution to prove beyond reasonable doubt that she was guilty of the charges.

Prosecutor Nanette Rogers, SC, arriving at court last Wednesday.Credit: Jason South

“It is not for her to prove her innocence, and this has not changed because she chose to give evidence. In choosing to give evidence, she undertook to tell the truth, she also submitted herself to cross-examination, which is the way lawyers test a witness’s credibility and reliability,” Beale told the jury in his charge.

“In this respect, she’s no different to any other [witness]. You must assess her evidence in the same way as you assess the evidence of any other witnesses.”

Beale told the jurors that if they thought Patterson’s evidence was true though, they must find her not guilty of three charges of murder and one of attempted murder.

Defence barristers Sophie Stafford (left) and Colin Mandy, SC, outside court last week.Credit: Jason South

Secondly, if the jurors were unsure whether her evidence was true but thought it might be, then they would have “reasonable doubt” and must find her not guilty of the charges.

“Third, it’s not enough that you prefer the prosecution case to Ms Patterson’s evidence. It’s not sufficient for you to find the prosecution case to be preferable to the defence case,” the judge said.

“It’s not a question of simply balancing one case against the other or choosing which one you prefer. The prosecution must establish her guilt on each charge beyond reasonable doubt.”

Supreme Court Justice Christopher Beale told the jurors they needed to decide the case solely on the evidence, made up of testimony, exhibits and agreed facts.

“In this case it’s alleged by the prosecution that Erin Patterson committed the offence of attempted murder and also three counts of murder. She’s pleaded not guilty, so it’s up to you and you alone to decide if she’s guilty of these offences,” Beale said.

“You do that by deciding what the facts are in this case.

“You then apply the law to the facts you’ve found to decide if the accused is guilty or not guilty.”

Ian Wilkinson, the sole surviving lunch guest, outside court last week.Credit: Jason South

The jurors were told they must not let feelings of prejudice or sympathy for anyone in the case impact their decision-making. This, he said, included not being influenced by the fact Patterson cooked the meal that caused the deaths.

“The issue is not whether she is in some sense responsible for the tragic consequences of the lunch, but whether the prosecution has proved beyond a reasonable doubt that she is criminally responsible,” the judge said.

“Similarly, the fact that, on her own admission, Erin Patterson told lies and disposed of evidence must not cause you to be prejudiced against [her]. This is a court of law, not a court of morals.”

Nor could the jury let sympathy for the extended Patterson or Wilkinson families cloud their judgment, Beale said in his charge.

He told the jurors they must dispassionately weigh the efforts, logically, and with an open mind, not according to their own feelings. The jury was also told to disregard any outside information, including media reports.

“I’m not asking you to be inhuman. None of us are robots,” he said. “Any decent person would feel great sympathy for the Patterson and Wilkinson families, given what has befallen then, but you must scrupulously guard against that sympathy interfering with the performance of your duty, so emotions such as prejudice and sympathy must have no part to play in your decision.”

Supreme Court Justice Christopher Beale has today begun his final instructions to the jury, a process known as the judge’s charge, which is expected to take at least two days, as Erin Patterson’s murder trial enters its ninth week.

Beale’s instructions began day 36 of the trial in Morwell, after the prosecution and defence teams made closing addresses to the jury last week.

Erin Patterson has pleaded not guilty to three charges of murder and one of attempted murder.Credit: Jason South

Patterson has pleaded not guilty to murdering her in-laws, Don and Gail Patterson, and Gail’s sister, Heather Wilkinson, by serving them death cap mushrooms in a beef Wellington lunch at her Leongatha home on Saturday, July 29, 2023.

Her in-laws and Wilkinson died in the days after the meal from the effects of mushroom poisoning.

Heather Wilkinson’s husband, Ian Wilkinson, also ate the meal and survived after weeks in hospital.

From left: Don Patterson, Gail Patterson and Heather Wilkinson died after ingesting poisonous mushrooms. Ian Wilkinson (right) survived after spending months in hospital.

Erin Patterson’s trial has heard from more than 50 witnesses.

Beale told the jury his charge would comprise three parts: directions regarding principles of law, a summary of some of the evidence, and further directions including the requirement for a verdict to be unanimous.

“There’s been a great deal of evidence in this case and a lot of arguments made to you by prosecution and defence. The mere fact I don’t mention certain evidence doesn’t mean that evidence is not important. You must consider all of the evidence,” Beale said.

“You’re the judges of the facts.”

The jury will start deliberations on a verdict at the end of the judge’s charge.

There are still 14 jurors, and two are to be balloted off at the end of the judge’s instructions. Twelve jurors will then deliberate a verdict.