How Erin Patterson’s legal team faced a double-edged sword
As global headlines cast Erin Patterson as an evil Shakespearean witch who murdered her relatives, I am left with a sense of unease about just how accurate that is.
A criminal trial is not a search for the truth: The first time I heard this expression was in 1983. I was sitting in the chambers of my mentor John Barnett, later a judge of the County Court of Victoria.
John was often junior counsel to the great Frank Vincent QC who, along with Robert Richter QC, were the leading criminal defence barristers of my generation.
Frank often wandered into John’s chambers and I recall him uttering the phrase after one of their clients was convicted of murder. The phrase emphasises that a criminal trial has but one purpose: to determine whether the prosecution has proved its case beyond reasonable doubt. I was a reader at the Victorian Bar and just beginning my career. Another critical lesson I learnt then was that defence counsel is bound by their instructions. That is, it is the client who provides their account of the events that make up the case against them and it is no role whatsoever of counsel to prepare or formulate those instructions.
These two principles constitute the foundation of the work for a criminal defence barrister.
Allied to these principles is the burden of proof – the prosecution brings the charge against the accused and so the prosecution must prove it with admissible evidence.
The accused doesn’t have to prove a single thing. And generally speaking the accused decides what to contest or put in issue during the course of the trial.
When a trial such as Erin Patterson’s is running, my interest as an observer is through the lens of these principles and the endless bounds of human behaviour.
Common sense plays a role, too, and jurors are directed by trial judges to bring their experience of life to bear in their consideration of the evidence before them.
It was the prosecution case that Patterson had deliberately poisoned her four relatives in her own home with the intent to kill or cause really serious injury to all of them. In these circumstances, plainly her crime would be revealed and the evidence would lead only to her.
I have not read or seen the evidence presented at trial and do not intend to comment on the result. What interests me are the decisions her experienced, skilled and calm defence team had to make during the trial. These so-called forensic decisions are at the heart of defence work and there is rarely one correct approach.
Counsel are frequently faced with double-edged swords. Before the trial began Patterson elected to be tried in the Latrobe Valley. This was her decision and while the Supreme Court and the County Court sit on circuit in regional Victoria, a trial of this complexity and duration ordinarily would be heard in Melbourne.
No doubt her legal team considered all the issues in relation to the trial being conducted in her own community, but the risk of a juror having an opinion of the case not based on the evidence presented at trial is heightened in a regional setting.
This was an example of the difficult decisions her legal team was called on to make. Patterson’s defence at trial was that she did not know that the mushrooms she used in the beef Wellington served to her guests were death cap mushrooms and, in effect, the shocking event was an accident.
If the jury regarded this as a reasonable possibility the prosecution would have failed to prove her guilt beyond reasonable doubt and verdicts of not guilty would follow.
For the most part the key aspects of the prosecution case were not in issue; namely, it was admitted that she cooked the meal that contained death cap mushrooms and served her guests the dishes.
The main body of evidence relied on by the prosecution to prove her guilt were the lies she told investigating police during the course of their investigation. These lies were said to constitute incriminating conduct, together with the disposal by her of the dehydrator used in the preparation of the mushrooms.
Generally speaking, lies said to constitute incriminating conduct have relatively low probative value. It is not strong evidence of guilt. People under pressure questioned by experienced professional investigators often tell lies or give a version of events that is not accurate. This is very common and judges routinely direct juries to consider a range of explanations why a person may lie in this context.
People often lie about things they have done accidentally. How to manage this aspect of the prosecution case was critical to Patterson’s defence and it is unlikely that her guilt was based on any particular lie relied on by the prosecution.
The risk she faced was that the jury, by reason of the body of evidence relied on by the prosecution, simply would brand her a liar. In the event of an appeal, it is likely that the permissible use that the jury could make of each of these lies will be very closely examined.
Perhaps the most fundamental principle underpinning our criminal justice system is the privilege against self-incrimination. An accused cannot be compelled to give evidence in their trial. The decision to do so is theirs and theirs alone. In the event that an accused does not give evidence in their own defence, which is frequently the case, the trial judge is required to explain to the jury that it proves nothing and cannot be used by the jury in proof of guilt. In my experience, this direction is favourable to an accused.
Patterson elected to give evidence in her own defence. This was no doubt the key forensic decision her legal team gave long and hard consideration to.
Faced with a substantial body of evidence relied on by the prosecution as incriminating conduct, the defence realistically had little option but to call Patterson to give evidence. Only she could explain to the jury why she had lied to the investigators and provide an account as to how the death cap mushrooms came into her possession. By electing to give evidence she exposed herself to cross-examination by the senior crown prosecutor that occupied more than five days of court time.
Cross-examination in this context also gives a skilled prosecutor an opportunity to address the jury in well-framed questions.
All of Patterson’s testimony was no doubt surgically examined as she endeavoured to persuade the jury that she was now giving a truthful account of her conduct and raise a reasonable doubt in their minds. Her truthfulness became the key issue in the trial.
It was reported during the trial that it was suggested in the cross-examination of Patterson that she had weighed the death cap mushrooms before using them in the beef Wellington.
Assuming this report was accurate, these questions no doubt were intended to convey to the jury that she had deliberately given her guests a lethal or highly toxic dose of mushrooms and not merely a dose that would have made them sick but not fatally or seriously ill.
In this context it is important to note that guilty of manslaughter was not a verdict available to the jury as there was no evidentiary basis for the jury to conclude that she intended to poison her relatives in a less serious manner and was thereby guilty of manslaughter and not murder. Her defence at all times was that she didn’t know the mushrooms were death caps and the poisoning was an accident.
Had her defence team been able to argue that her acts, if proved, amounted to manslaughter the jury might have had a path available to them that more accurately reflected the intentions of a disturbed isolated personality.
As global headlines cast Patterson as an evil Shakespearean witch who murdered her relatives for reasons residing in her dark psychology, I am left with a sense of unease about just how accurate that is and I am reminded of Frank’s words that day in 1983: A criminal trial is not a search for the truth.
Mark E. Dean KC is a retired judge, writer and farmer.
