11.00am
False clarity, ambiguous situations and the ‘seductive trap’ of hindsight
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To begin the third day of his closing statements, Erin Patterson’s defence lawyer, Colin Mandy, SC, cautioned the jury against the seductive trap of hindsight reasoning.
The prosecution, he told the jury, will determine his client’s fate, and on Monday asked them to imagine what they would do if the death cap poisoning was a “horrible accident”.
It was, Mandy continued, a “dangerous and seductive” exercise. He said that kind of hindsight reasoning shifted the burden of proof onto the defence, despite it being the prosecution’s job to prove what the accused did, and not to engage in hypotheticals on what others might do in that situation.
“What they should be really relying on should be the evidence that ... they say establishes the guilt of the offending,” Mandy said. “Hindsight reasoning can create a false clarity about ambiguous situations.”
Mandy said things seemed obvious in retrospect, adding that the pattern of someone’s behaviour and personality did not determine guilt.
“You just don’t know what you would do if you were confronted in that situation,” Mandy said.
Mandy said Patterson was not on trial for being a liar. He said the analysis by the prosecution undermined the presumption of innocence and may make guilt seem more probable.
“It corrupts the reasonable doubt standard,” Mandy said.
Mandy said that nothing that Patterson did after the lunch changed her intent when she served the meal.
11.15am
A question of what Erin Patterson knew - and when
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As Erin Patterson’s lawyer continues his closing arguments, he slowly weaves in questions about what his client knew, and when.
This morning, Colin Mandy, SC, is questioning Patterson’s alleged knowledge of her in-laws, Don and Gail Patterson, being in a coma on the Tuesday morning after the fateful lunch.
“How was Erin Patterson ever going to find out that Don and Gail were in a coma on that Tuesday morning? The doctors weren’t telling her, we know that. That’d be breaching doctor confidentiality if they did. [Leongatha Dr Veronica] Foote told you about that.”
As with health professionals, Mandy continued, family members were also limiting medical updates. “So, how was Erin going to find that out?”
Mandy said one way she could have found out was to ask someone how they are, but the prosecution’s case was that she never asked that.
“In our submission, there isn’t evidence in this trial that Don and Gail were in comas at that time. Notwithstanding all of that, the impression that’s being painted to you is that Erin Patterson is wrong or lying ... and that’s incorrect,” Mandy said.
Tanya Patterson provided evidence that she recalled Patterson telling her she knew they were in a coma when she visited her in hospital that Tuesday.
Mandy suggested that the possibility was that his client’s sister-in-law could have a mistaken recollection of that conversation.
11.29am
A portrait of affection: Enduring family love after separation
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The Patterson family was anchored by deep affection - the kind of affection that can persist even through separation.
This is the picture Erin Patterson’s defence lawyer, Colin Mandy, SC, is painting in courtroom four in Morwell.
Patterson, on trial for the alleged murder of Don and Gail Patterson and Heather Wilkinson, was the kind of daughter-in-law who wanted to be close to her relatives, Mandy told the jury.
He reminded them of Patterson’s estranged husband’s evidence that in 2012, the family decided to move back from Perth because Patterson wanted to be closer to her in-laws.
“Simon Patterson gave a fair bit of evidence about that,” Mandy told the jury.
Mandy said that included Simon agreeing during his evidence that Don and Gail loved Patterson, and Patterson loved Don and Gail, and telling the court Patterson was particularly close to Don.
Mandy said Patterson and Simon had a respectful relationship and that even when they separated, there were no lawyers involved and assets were split down the middle.
“Consider that for a moment. Pause and think about that. In seven years since the official separation, dealing with two children in a respectful way with each other, and if there were the occasional disagreement ... they were resolved really smoothly and respectfully and that’s a significant thing for people who are separated,” Mandy said.
“It says a lot about the relationship.″
11.42am
How a lockdown hobby helped unlock a passion for mushrooms
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Erin Patterson’s interest in wild mushrooms started as a hobby that blossomed during the quietude of the COVID-19 lockdown.
Patterson’s defence lawyer, Colin Mandy, SC, told a jury in Morwell that foraging was a common hobby in Europe that had become more popular during the pandemic.
Photos recovered from an old SD card found by the police at Patterson’s home demonstrated “categorically” and “without question” that the mother of two was interested in wild mushrooms at that time.
One of the images shows Patterson’s daughter on a scooter alongside her brother during a walk with their mother in 2020.
“This is evidence and confirmation that Erin Patterson had an interest in mushrooms at the same time [as mycologist Dr] Tom May says that interest in mushrooms was [becoming] popular. [Her children] were there with her that day,” Mandy said.
Mandy said Patterson’s son had provided evidence that he remembered going for walks with his mother and looking at mushrooms in the botanic gardens in Korumburra.
“We say these photos demonstrate to you that when people are on walks like that, their kids often go and do their own thing,” Mandy said.
He said it was possible the kids did not notice or remember Patterson picking the mushrooms at the time, and that as years rolled on, and the children were back at school, she might have gone on a walk by herself and picked wild mushrooms.
“Erin loved mushrooms. Not only the wild mushrooms. Also eating them. There’s evidence of that. It’s not made up. She told people that,” Mandy said.
He reminded the jury that Patterson’s online friend Jenny Hay had told the court the 50-year-old had shared her love for mushrooms with the group. He said Patterson had tried field and horse mushrooms she had found.
“They were OK to eat. Tasted better. More flavourful,” Mandy said.
Mandy said he was not suggesting that Patterson was “she was out in the forest each day scrambling around looking for mushrooms,” adding that it happened a few times each season.
He said death cap mushrooms were notorious for their toxicity, and so anyone picking wild mushrooms would likely come to hear about them at some stage. He then noted Patterson had been interested to know if they grew in South Gippsland.
“So, on the 28th May 2022, there is little doubt that it was Erin Patterson looking up that very question on the Cooler Master computer,” Mandy said. “There is no argument from us that you should find that it was someone else.”
12.03pm
Death caps and the comfort of absence
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The jury that will decide the fate of Erin Patterson is being offered an alternative interpretation of her online activities, particularly her brief foray into the world of iNaturalist.
Colin Mandy, SC, painted a picture of an occasional forager checking to see if deadly death cap mushrooms were present in her local area, a search on May 28, 2022, that would have, at the time, yielded comforting news: no confirmed sightings.
“There’s a number of possibilities open on this evidence. Including the possibility that Erin was not previously familiar with iNaturalist,” Mandy said.
He said the reason for that interaction was to make sure that death cap mushrooms did not grow in South Gippsland and reminded the jury of Dr Tom May’s evidence that there were no sightings of death caps in Gippsland at that time.
“What would have stayed with her was the knowledge that there were no death cap mushrooms in Gippsland as a result of a search that she did,” Mandy said.
He said that for an occasional forager that had become aware of death cap mushrooms, “you would think that would be comforting information”.
Mandy said a user might have wondered what they looked like, and gone to an observation page about death caps in Moorabbin. He said this interaction was out of curiosity, just minutes before ordering dinner.
“This was not a person carefully studying this information. Doing research about it. This was not a deep and abiding interest in this subject matter. It was a passing attention,” Mandy said.
Mandy said thousands of varieties of mushrooms grow in Victoria and not all of them have been identified and not all have been the subjects of a post. He said new varieties are identified all the time.
“In terms of death cap mushrooms in South Gippsland, they have only been observed twice ever as I stand here right now. Once by Christine McKenzie and one by Tom May as far as iNaturalist is concerned,” Mandy said.
He said those two people were very familiar with death cap mushrooms.
“You might think remarkably, extraordinarily, Erin Patterson observed and acted on the only sightings of death cap mushrooms ever in South Gippsland, that’s [the Crown’s] case,” Mandy said.
“Like she was sitting there waiting for them ... Refresh. Still not there. Refresh. Still not there.“
Mandy said there was not one scrap of evidence that Patterson saw those posts. He questioned how familiar Patterson may have been with iNaturalist when she had spent only a few minutes on the site 14 months before the lunch.
“The simpler explanation, as it’s often the case, is the more likely one,” Mandy said.
12.14pm
‘A little spat’ not cold blood: Defence talk about Gail’s 70th birthday party
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Colin Mandy, SC, is returning to the portrait of the enduring family love the Patterson family shared even after the separation of Erin and Simon Patterson.
In 2022, his client shared a “good and strong” relationship with her estranged husband and a “loving relationship” with her in-laws, Don and Gail Patterson.
Sometimes that enduring love was tested, he said, and in October that year, there was a misunderstanding about Gail Patterson’s 70th birthday party. Nonetheless, he told the court that the misunderstanding was resolved, and “that’s important”.
Mandy said that following a heated conversation with Simon about the 70th birthday, his client had made the first move to apologise for the way it unfolded.
He described the argument as “a little spat” over one day.
“Totally inconsistent with the way a cold-blooded calculating person would behave. She is the one going in and saying sorry. He is responding, yeah, I know, me too,” Mandy said.
Mandy said Don Patterson had contacted his client to tell her it was an oversight, and she was not being isolated.
She went to the party “all resolved”, he said.
Patterson’s barrister will continue his closing address in Morwell’s courtroom four on Thursday, after the judge warned jurors to expect a long direction from the bench next week.
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