Australia - 3 dead after eating wild mushrooms, Leongatha, Victoria, Aug 2023 #5 *Arrest*

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EP's (<--- purportedly) Stmt. If Offered at Trial, Hearsay or Exception?
SouthAussie said:
Sorry, @al66pine. It was an austlii link so I didn't realise it was state specifc - missed the state header.
Here is the link to info about the Vic Act. See their Sec 65 for the same info.
Click to expand...
@SouthAussie
No worries. Like most of us, I've done the same numerous times.
And you :) provided a source that's easier on the eyes, for reading. Thx
https://www.judicialcollege.vic.edu.au/media/68/file

BTW
"Section 65 (Exception – criminal proceedings if maker not available)
"(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact."

^ Imo, Sec. 65 does NOT apply, because EP (hypo. def't who is the purported maker of the stmt) is available at trial to testify. But as always, ICBWrong.

ETA: If EP is charged and at trial does not take the stand in the def't's case, does that make her "unavailable" at trial? IDK.
 
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al66pine said:
EP's (<--- purportedly) Stmt. If Offered at Trial, Hearsay Or Exception?

@SouthAussie
No worries. Like most of us, I've done the same numerous times.
And you :) provided a source that's easier on the eyes, for reading. Thx
https://www.judicialcollege.vic.edu.au/media/68/file

BTW
"Section 65 (Exception – criminal proceedings if maker not available)
"(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact."

^ Imo, Sec. 65 does NOT apply, because EP (hypo. def't who is the purported maker of the stmt) is available at trial to testify. But as always, ICBWrong.

ETA: If EP is charged and at trial does not take the stand in the def't's case, does that make her "unavailable" at trial? IDK.
Click to expand...

If you are reading the Vic link, it is Sec 66 ... "Section 66 (Exception – criminal proceedings if maker available)".
Follows on from Sec 65.

I didn't do such a good job with clarity! Would have helped if I gave you the correct Sec.
 
"Foundation Witness." Necessary?
SouthAussie said:
If you are reading the Vic link, it is Sec 66 ... "Section 66 (Exception – criminal proceedings if maker available)".
Follows on from Sec 65.
I didn't do such a good job with clarity! Would have helped if I gave you the correct Sec.
Click to expand...
.
@SouthAussie No prob. What would help is getting my head straightened out on this issue.
At trial, if EP takes the stand, can prosecutor simply hand to her the doc. (hardcopy or print-out of elec. version) as an exhibit & ask her Q's about it in cross-exam?

In US, ordinarily a party would need to lay the foundation for an exhibit like this by calling as a witness, the person who took the stmt and created the document from the speaker's oral narrative.

Would VIC. prosecutor need to lay the foundation for the exhibit by calling as a witness, the atty or law firm employee who wrote the stmt of EP's narrative of events?

That would seem to be, hmm, well, hmm, a sticky wicket?

Maybe I'm looking at this from the wrong angle? It's doing my head in and somehow I can't move past it to get to the Hearsay-or-Exception Q.

IDK.
 
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al66pine said:
"Foundation Witness." Necessary?
.
@SouthAussie No prob. What would help is getting my head straightened out on this issue.
At trial, if EP takes the stand, can prosecutor simply hand to her the doc. (hardcopy or print-out of elec. version) as an exhibit & ask her Q's about it in cross-exam?

In US, ordinarily a party would need to lay the foundation for an exhibit like this by calling as a witness, the person who took the stmt and created the document from the speaker's oral narrative.

Would VIC. prosecutor need to lay the foundation for the exhibit by calling as a witness, the atty or law firm employee who wrote the stmt of EP's narrative of events?

That would seem to be, hmm, well, hmm, a sticky wicket?

Maybe I'm looking at this from the wrong angle? It's doing my head in and somehow I can't move past it to get to the Hearsay-or-Exception Q.

IDK.
Click to expand...
INAL but IMO the prosecution cannot at any time call EP’s lawyers to testify about anything she discussed with them, written or oral. Attorney client privilege.

They (prosecutors) could ask EP about it, assuming that 1) she testifies and 2) that the statement is entered into evidence. Again JMO there would be motions brought before the judge way before the case goes to trial. At issue might be whether or not her statement was a deposition, signed and sworn to, among other issues.

That could occur even if her statement is 100% truthful as another issue could arise concerning self incrimination since she admitted to lying to LE. I don’t know how Australian law reads as opposed to the US though.

IOW I can see lots of wiggle room on both sides and only a judge can decide what’s admissible. If she’s charged it may take quite a while before the case even reaches a jury.

Again all MOO
 
Attorney-Client Privilege?
MsMarple said:
INAL but IMO the prosecution cannot at any time call EP’s lawyers to testify about anything she discussed with them, written or oral. Attorney client privilege.

They (prosecutors) could ask EP about it, assuming that 1) she testifies and 2) that the statement is entered into evidence. Again JMO there would be motions brought before the judge way before the case goes to trial. At issue might be whether or not her statement was a deposition, signed and sworn to, among other issues.

That could occur even if her statement is 100% truthful as another issue could arise concerning self incrimination since she admitted to lying to LE. I don’t know how Australian law reads as opposed to the US though.

IOW I can see lots of wiggle room on both sides and only a judge can decide what’s admissible. If she’s charged it may take quite a while before the case even reaches a jury.

Again all MOO
Click to expand...
@MsMarple Thank you for your response, w one of the points I was trying to make in my post just above & in an earlier (vaguely, poorly worded) post.*

Yes, atty-client privilege applies to most or virtually all atty-client communications.
The catch is if EP was the one who supplied to either LE or to a media outlet ("exclusive" or not), then seems SHE herself may have WAIVED waived atty-client PRIVILEGE, imo
At least as to the sections of her narrative contained in that document.
ETA. Yes, evidentiary issues like these and A-C privilege issues would be ironed out w motions on a pre-trial basis. Totally magreeing.


BTW, the term RECUSAL (in US usage, AFAIK) relates to a judge or administrative official** not to an atty from counseling a client who has not been arrested or charged w a crime. But then again, OZ may use the term to apply to atty's. IDK


___________________________________

* snipping from my post, now #752:
".... Identity of person providing written stmt to LE may be critical to question of admissibility at trial...."
Australia - 3 dead after eating wild mushrooms, Leongatha, Victoria, Aug 2023 #5

** Judicial disqualification - Wikipedia
"Applicable to most countries" lists eight "nearly universal grounds" for recusal or disqualification of a judge.
 
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Too late to edit my ETA two posts up, which said:
"ETA. Yes, evidentiary issues like these and A-C privilege issues would be ironed out w motions on a pre-trial basis. Totally magreeing."

@MsMarple I'm totally agreeing, not magreeing.

And again thank you very much for your post :) prompting me to further explain my post, clarifying that yes, ordinarily, imo, there would be attorney-client privilege re their communications w each other.

Here come the Cows.
But if EP actually provided that written stmt/document of her oral narrative to the atty, to third persons, such as/including LEy or media outlets, moo, imo, moo, jmo, moo, EP herself may have waived the atty-client privilege. ICBWrong.
If she is arrested, as you said, a judge will rule.
 
Firstly, I like that you abbreviate many of your words, that’s fun…

Secondly, I agree, I think she’s waived her attorney-client privilege by putting the statement out to the media (imo)…..

You can’t have it both ways. You can’t share a statement regarding [potentially] your involvement or lack of involvement in a homicide or accidental death crime with the ABC and then claim privilege.

Moo



al66pine said:
If EP actually provided that written stmt/document of her oral narrative to the atty, to third persons, such as/including LEy or media outlets, moo, imo, moo, jmo, moo, EP herself may have waived the atty-client privilege.
Click to expand...
 
Just to clarify my previous post regarding attorney client privilege, I was referring to EP’s lawyers.

What I meant was that the prosecutor can’t subpoena EP’s attorneys in order to question them about the statement or anything else said in confidence apart from possibly to ask if they leaked the statement. And even that would probably need a ruling. IMO

EP waived her rights once a third party (LE or the media) was involved. I don’t think it was ever an issue of privilege.

I’m not sure the statement would play an important part if charges are brought other than pointing out any discrepancies in EP’s story.
 
Ellery84 said:
Firstly, I like that you abbreviate many of your words, that’s fun…

Secondly, I agree, I think she’s waived her attorney-client privilege by putting the statement out to the media (imo)…..
You can’t have it both ways. You can’t share a statement regarding [potentially] your involvement or lack of involvement in a homicide or accidental death crime with the ABC and then claim privilege. Moo
Click to expand...
@Ellery84 Thanks for your reply. And you expressed my thought more succinctly than I did: Can't have it both ways.

OT
My abbreviations, well IDK about fun, but I am the world's

s---------l-----------o------------w------------e----------------s-------------t

on the keyboard. Abbrev's help to speed things up a bit.

And I make more keying errors than anyone on the planet.
Do you know any other ppl who misspell their own names when typing?
LOL, but N/K.

Back to EP & the mushrooms now.
 
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al66pine said:
snipped for focus. @MsMarple Thanks for posting this follow up. :)

I wish we could see entire stmt & any accompanying doc's or memos.
Click to expand...
Yeah, it would help. In fact I’m kind of surprised as very often media outlets release full statements provided to them. I don’t know if this statement was truncated at the request of the person who supplied it to the media.

What I do know is that it’s unusual for a statement supposedly specifically intended as an official statement submitted to LE to somehow find its way into the media. JMO it smacks as a publicity stunt, perhaps as a way for EP to “explain” the circumstances. Why else would she tell LE:

"I am hoping this statement might help in some way. I believe if people understood the background more, they would not be so quick to rush to judgement.

Why would she (and her lawyers) imagine LE would even release her statements to the public? It’s laughable IMO.

In any case IMO it’s much ado about nothing. POIs change their stories all the time. EP’s statement might have some merit in a probable cause document if charges are brought but it won’t determine guilt or innocence in a trial. MOO of course.

www.abc.net.au

Woman who cooked suspected poisoned meal details where she bought mushrooms

The woman who cooked a meal that is believed to have contained poisonous mushrooms and led to the deaths of three people gives a lengthy written statement to police detailing her account of what happened, and revealing she was hospitalised after the incident.
www.abc.net.au www.abc.net.au
 
Publicity Stunt?
MsMarple said:
....JMO it smacks as a publicity stunt, perhaps as a way for EP to “explain” the circumstances. Why else would she tell LE:
"I am hoping this statement might help in some way. I believe if people understood the background more, they would not be so quick to rush to judgement.
Why would she (and her lawyers) imagine LE would even release her statements to the public? It’s laughable IMO. ....
www.abc.net.au

Woman who cooked suspected poisoned meal details where she bought mushrooms

The woman who cooked a meal that is believed to have contained poisonous mushrooms and led to the deaths of three people gives a lengthy written statement to police detailing her account of what happened, and revealing she was hospitalised after the incident.
www.abc.net.au www.abc.net.au
Click to expand...
snipping again for focus. @MsMarple Glad you pulled that quote out, which I had sailed past in originally reading article.

Yes, why direct an explanation to help "people" understand, presumably the public, but provide it to LE?
Still wondering who released stmt to media.
 
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MsMarple said:
Just to clarify my previous post regarding attorney client privilege, I was referring to EP’s lawyers.

What I meant was that the prosecutor can’t subpoena EP’s attorneys in order to question them about the statement or anything else said in confidence apart from possibly to ask if they leaked the statement. And even that would probably need a ruling. IMO

EP waived her rights once a third party (LE or the media) was involved. I don’t think it was ever an issue of privilege.

I’m not sure the statement would play an important part if charges are brought other than pointing out any discrepancies in EP’s story.
Click to expand...
And it doesn't make me any less suspicious of her. If that was the intention, it failed, at least with me.
 
al66pine said:
@Ellery84 Thanks for your reply. And you expressed my thought more succinctly than I did: Can't have it both ways.

OT
My abbreviations, well IDK about fun, but I am the world's

s---------l-----------o------------w------------e----------------s-------------t

on the keyboard. Abbrev's help to speed things up a bit.

And I make more keying errors than anyone on the planet.
Do you know any other ppl who misspell their own names when typing?
LOL, but N/K.

Back to EP & the mushrooms now.
Click to expand...
Lol.

Back to the mushrooms!

AB2CE450-5D7F-4746-823E-D22541C5C5D0.jpeg
al66pine said:
Publicity Stunt?

snipping again for focus. @MsMarple Glad you pulled that quote out, which I had sailed past in originally reading article.

Yes, why direct an explanation to help "people" understand, presumably the public, but provide it to LE?
Still wondering who released stmt to media.
Click to expand...
I’m going to hazard a guess and just suggest Erin got one of her online friends to DM a reporter, or maybe she just sent it directly to the Masthead email tips addy.

IMO
 
katydid23 said:
I think that might part of the motive, for serving toxic mushrooms.

At one point Gail was like a mother to her. But at this point, divorce is looming, and Gail and her husband are probably taking SP's side in crucial issues. EP may feel like they have turned on her and may feel resentment at this time.

Maybe SP has a new girlfriend and they are embracing her and EP feels betrayed? I don't know, but I think it is important that they did have a very close relationship at one point. JMO
Click to expand...
Further to this, I suggest that some conflict arose as follows: Erin more or less tacitly made a relationship with herself part of the package for the grandparents seeing their grandchildren. That's where mediation came in. (All speculation on my part.)
 
katydid23 said:
If the document was taken by and prepared by her attorneys, and given, by them, to the mainstream press, and apparently, the police, then I don't think EP will be able to walk away from those statements that easily.

The facts were all about the source of dangerously lethal poisons, and she gave her account about where they came from.
If these were incorrect statements by her attorneys, why wouldn't she correct them, in order to protect others?

I don't think she is going to be able to easily walk away from those statements if she goes to trial. JMO
Click to expand...
Suppose EP prepared the statement for the benefit of her lawyer and to solidify her memory. Then somebody took it from a computer and sent it the police and media. It would be possible to raise the question whether the version that was leaked was EP's final version or whether it was a draft containing inadvertent errors. Or even, whether the somebody could have made changes before sending it on.
 
JLZ said:
Suppose EP prepared the statement for the benefit of her lawyer and to solidify her memory. Then somebody took it from a computer and sent it the police and media. It would be possible to raise the question whether the version that was leaked was EP's final version or whether it was a draft containing inadvertent errors. Or even, whether the somebody could have made changes before sending it on.
Click to expand...

We just had a discussion about this on the prior page. On a radio show, the Deputy Police Commissioner of Victoria confirmed that they received the statement directly from Erin's attorneys.

Here's the quote which comes from this article:
She stressed it was not an official police statement, but a document taken by and provided by Patterson’s legal team.
...
Steendam said she was uncertain if the statement was handed to the media before it was given to police.

(bolding mine)

And I should also add that communications between a lawyer and their client are privileged (at least in the U.S. and I assume in Australia as well). If the police were investigating a document that was purloined from the attorney's computer it would be a gross violation that would likely doom any future prosecution.
 
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