Erin Patterson murder trial day 38: Justice Christopher Beale continues judge’s charge

Welcome to our coverage of day 38 of the triple murder trial of accused mushroom cook Erin Patterson in Morwell, in which Justice Christopher Beale is continuing his judge’s charge for a third day.

In a criminal jury trial, a judge’s charge is their final instructions to the jury about what they need to consider when they begin their verdict deliberations. They also summarise the main arguments of the defence and prosecution, highlighting key evidence used.

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’s husband, Ian Wilkinson, survived after weeks in hospital.

Clockwise from left: accused killer Erin Patterson and her guests who died after the 2023 lunch, Heather Wilkinson and Gail and Don Patterson.Credit: Matthew Absalom-Wong

The judge’s instructions cover a range of topics, including relevant law, the jury’s responsibilities, and the elements of an offence that must be met in order to reach a guilty verdict.

In the case of murder, the legal bar the prosecution must reach is beyond reasonable doubt.

Beale said there would be three parts to his charge.

“First, I will give you directions regarding the principles of law which apply to this case. Some you have heard already, others will be new to you. You must apply all these principles of law carefully,” he said.

“Secondly, I will tell you the issues that you need to decide and will summarise: (a) the evidence that relates to those issues, and (b) the arguments made by the prosecution and defence in relation to those issues.

“Now, as you more than anyone will appreciate, there has been a great deal of evidence in this case and a lot of arguments made to you by the prosecution and defence.”

Beale said his summary would not cover all the evidence and arguments, reiterating to the jury that the fact he does not mention certain evidence does not mean that that evidence is unimportant. “Similarly, the fact that I include certain evidence does not make that evidence more important than other evidence. You must consider all of the evidence, not just the parts of it that I mention.”

“In part three of my charge, I will give you further directions regarding the requirement that your verdicts must be unanimous and the procedure that will follow when receiving your verdicts.”

At the end of part three of the charge, Beale will reduce the number of jurors from 14 to 12 using a ballot system.

Justice Christopher Beale began his charge on Tuesday, after the prosecution and defence teams made closing addresses to the jury last week.

The jury has been told the judge’s charge will continue for a few more days.

“I’ll be completing my charge prior to lunchtime on Monday,” Beale said.

Beale said the jury will not be sequestered until then.

From Monday, they will stay in accommodation after hours until they reach a verdict.

Welcome to our coverage of day 38 of the triple murder trial of accused mushroom cook Erin Patterson in Morwell, in which Justice Christopher Beale is continuing his judge’s charge for a third day.

In a criminal jury trial, a judge’s charge is their final instructions to the jury about what they need to consider when they begin their verdict deliberations. They also summarise the main arguments of the defence and prosecution, highlighting key evidence used.

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’s husband, Ian Wilkinson, survived after weeks in hospital.

Clockwise from left: accused killer Erin Patterson and her guests who died after the 2023 lunch, Heather Wilkinson and Gail and Don Patterson.Credit: Matthew Absalom-Wong

The judge’s instructions cover a range of topics, including relevant law, the jury’s responsibilities, and the elements of an offence that must be met in order to reach a guilty verdict.

In the case of murder, the legal bar the prosecution must reach is beyond reasonable doubt.

Beale said there would be three parts to his charge.

“First, I will give you directions regarding the principles of law which apply to this case. Some you have heard already, others will be new to you. You must apply all these principles of law carefully,” he said.

“Secondly, I will tell you the issues that you need to decide and will summarise: (a) the evidence that relates to those issues, and (b) the arguments made by the prosecution and defence in relation to those issues.

“Now, as you more than anyone will appreciate, there has been a great deal of evidence in this case and a lot of arguments made to you by the prosecution and defence.”

Beale said his summary would not cover all the evidence and arguments, reiterating to the jury that the fact he does not mention certain evidence does not mean that that evidence is unimportant. “Similarly, the fact that I include certain evidence does not make that evidence more important than other evidence. You must consider all of the evidence, not just the parts of it that I mention.”

“In part three of my charge, I will give you further directions regarding the requirement that your verdicts must be unanimous and the procedure that will follow when receiving your verdicts.”

At the end of part three of the charge, Beale will reduce the number of jurors from 14 to 12 using a ballot system.

Justice Christopher Beale started his instructions on Tuesday by clarifying with the jury that the defence relies on the fact that there is no evidence that accused killer Erin Patterson accessed iNaturalist, the citizen scientist website, in April or May 2023.

Beale turned to the evidence from digital forensics officer Shamen Fox-Henry, employed by Victoria Police, regarding information downloaded from a Cooler Master computer allegedly connected to Patterson that was found in her son’s bedroom.

Digital forensics expert Shamen Fox-Henry outside court on May 21.Credit: Jason South

Beale said Fox-Henry extracted data from the computer, using the words death cap, mushrooms and poison as part of his investigation. Fox-Henry agreed he did not have training on one particular piece of software he used (Magnet Axiom), instead turning to instructions from his colleagues.

Beale said Fox-Henry “selected all” contents for download but did not investigate them himself, instead handing a copy of his find to homicide squad detectives.

Fox-Henry also gave evidence about finding the device had accessed the iNaturalist website in May 2022, around the same time it also accessed a website for the Korumburra Middle Hotel.

Beale said that while Patterson was under cross-examination, she agreed that Fox-Henry gave evidence about the Cooler Master computer accessing an iNaturalist map for death cap mushrooms. The accused said she did not remember doing it, but agreed it could be her, and also maintained she did not use the browsers Internet Explorer or Bing, which were allegedly used to access the website.

Beale said Fox-Henry’s team also extracted data from a Samsung tablet seized from Patterson’s house. On it were images of mushrooms and a dehydrator, but Fox-Henry said he was unable to say on what device the photographs were taken or if the user received them from others, or how long they’d been associated with the device.

Phone evidence given by the prosecuction regarding a missing phone that was never found

PHONE 1: Samsung Galaxy – called the “A23” phone – found in son’s bedroom cupboard during August 5, 2023 search warrant.

PHONE 2: Samsung Galaxy – called “Phone A” – seen with Erin Patterson in footage taken from CCTV cameras at Leongatha Hospital. Pink case. Never found.

PHONE 3: Samsung Galaxy – called “Phone B” – physically handed to police during a search warrant on August 5, 2023. Orange/red case.

PHONE 4: Nokia smartphone. The SIM card from “Phone A” was allegedly put into this phone during the house raid on August 5, 2023 – at 1.45pm – and used afterwards. 

A third device allegedly connected to the accused which Fox-Henry analysed, known as phone B, was found to have been reset four times in 2023: on February 23, August 2, August 3 and August 6. The first three resets were done physically and the fourth remotely, Beale said. He confirmed that no data was obtained from that phone.

“You are not required to accept the opinions of [phone tower expert] Dr [Matthew] Sorell or Mr Fox-Henry. Or, indeed, expert opinions of the other experts who gave evidence. You are the judges of the facts,” Beale said.

“When assessing an expert’s opinion, you should consider their qualifications and experience.”

This concludes our coverage of court proceedings for the day.

The trial continues.

Justice Christopher Beale is continuing his final instructions to the jury, a process known as the judge’s charge, on day 37 of Erin Patterson’s murder trial in Morwell.

The Supreme Court judge began giving his instructions – which are expected to take at least two days – on Tuesday, after the prosecution and defence teams made closing addresses to the jury last week.

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’s husband, Ian Wilkinson, survived after weeks in hospital.

Don Patterson, Gail Patterson, Heather Wilkinson and Ian Wilkinson.

The jury has heard from more than 50 witnesses throughout the nine-week trial.

On Tuesday, 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,” he 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.

Read reporter Erin Pearson’s report of yesterday’s court proceedings here.

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.”