Appeal hearing opens

Erin Patterson's bid to overturn her murder convictions began on Wednesday before three judges of the Victoria state Court of Appeal, nearly 12 months after her legal team flagged the appeal. Patterson was convicted last year of murdering Don Patterson, Gail Patterson, and Heather Wilkinson, and of attempting to murder Ian Wilkinson, by serving them death cap mushrooms in a beef Wellington lunch at her home in Leongatha in July 2023. She was sentenced to life in prison with a non-parole period of 33 years, meaning she could be released in 2056.

Prosecutors have lodged their own appeal, arguing the sentence was 'manifestly inadequate' and seeking life without parole. Prosecutor Brendan Kissane said they would argue on Thursday that Patterson should be sentenced to life without the possibility of parole.

The hearing, expected to run two days, was moved to the Supreme Court building in Melbourne due to public interest. Patterson did not attend in person, watching via video link from prison. The three judges presiding are Justices Stephen McLeish, Lesley Taylor, and Peter Kidd.

Key grounds of appeal

Defence lawyer Richard Edney opened with the first ground: that jury members were sequestered in the same hotel as a police witness and members of the prosecution team. 'This was a very serious breach of sequestration,' Edney told the court. He said the defence had no idea what happened in the hotel during the overlap. Kissane responded that there was no evidence to support the ground, stating, 'There was no actual contact between any juror and any other person.'

Another defence lawyer, Veronika Drago, argued there was no evidence Patterson had read online posts about death cap mushroom sightings near the towns of Loch and Outtrim. The trial heard from a telecommunications expert that Patterson's phone connected to towers near Outtrim and Loch. Drago said the evidence only showed her phone had possibly been in the area, illustrating 'just how dangerous and unfair that evidence was' on Patterson's trial. Prosecutor Jeremy McWilliams countered that the evidence showed Patterson had the opportunity to deliberately source death cap mushrooms shortly before the lunch.

A further ground concerned prosecutor Nanette Rogers' cross-examination of Patterson over five days, which the defence described as 'unfair and oppressive.' The defence also argued that trial judge Christopher Beale (also reported as Bale) caused 'unfair prejudice' by allowing evidence from Patterson's Facebook 'friends' into the trial.

SD card evidence and the right to silence

A central ground centred on an SD card found in Patterson's home during a police search. The card contained photos taken with a Samsung A7 phone, dated to April and May 2020, showing various mushrooms and Patterson's children. At trial, defence lawyer Colin Mandy SC argued the photos showed Patterson was in the habit of foraging wild mushrooms, making accidental poisoning more likely. Trial judge Christopher Beale initially ruled the photos inadmissible on May 29, then reversed his ruling on June 2, deeming them relevant to a tendency of foraging.

Patterson's appeal lawyers argued that this change left her defence with no choice but to call Patterson herself, waiving her right to silence, which they said was a substantial miscarriage of justice. The judges reportedly suggested Patterson was likely always going to give evidence. The defence contended that the removal of choice was the issue, not what happened during the trial.

Motive and other arguments

Drago also argued that a miscarriage of justice occurred when the prosecution shifted its case: opening with no evidence of a motive, then closing by suggesting Patterson's animosity toward her husband's parents and the broader Patterson family was the motive. Questioned by Justice Lesley Taylor, Drago said she was not accusing prosecutors of deliberate professional misconduct.

Patterson has maintained that the poisonings were an accident. Her estranged husband, Simon Patterson, was invited to the fatal lunch but did not attend. Ian Wilkinson, Heather's husband, survived after spending several weeks in hospital. He attended the appeal hearings, sitting in the front row of the public gallery. Simon Patterson did not attend.

Patterson's legal team in the appeal consists of barristers Richard Edney and Veronika Drago, assisted by Bill Doogue and Ophelia Hollway. The prosecution is led by Brendan Kissane KC and Jeremy McWilliams.

Possible outcomes

If Patterson's appeal succeeds, the judges could overturn her convictions and order a retrial. If the prosecutors' appeal succeeds, her non-parole period could be extended. The judges were expected to reserve their decisions, with a ruling possibly taking weeks or months.

Perspectives

The defence argues that the trial was marred by procedural errors—including the jury's hotel sequestration, the admission of phone tower and Facebook evidence, and the handling of the SD card photos—that collectively amount to a miscarriage of justice. The prosecution maintains that the verdicts are sound, dismissing the sequestration claim as 'far-fetched' and arguing that the phone tower evidence showed Patterson's opportunity to source the mushrooms deliberately.