The bins are interesting. The prosecution argued that the bins - at the time the leftovers were retrieved - were unusually empty, and that Erin didn’t put her bins out on bin night, which was August the 3rd. Their inference was that Erin was disposing of evidence in that trip to the dump 45 min after the lunch.Continued from above post
(c) SPO[275] – THE ACCUSED’S POST REGARDING MUSHROOMS POISONING CAT
- TheSummary of Prosecution Opening states, relevantly (footnotes deleted):
- Theaccused submitted that the evidence was irrelevant, noting that the mushroomsshown in the photographs are not death cap mushrooms.The accused submitted thatthe provenance of the photos is also uncertain. The accused submitted that ifrelevant, the probativevalue of the evidence was outweighed by the danger ofunfair prejudice.
The prosecution submitted that the evidence is relevant as it shows theaccused’s continuing interest in poisons. The prosecutionsubmitted thatthe provenance of the photographs is not uncertain as the same images were foundon an SD card seized from the accused’shome.
(d) SPO[277], [282], [286], [288], [322-324] – CELL TOWER EVIDENCE REGARDINGUNDISPUTED TRIPS BY THE ACCUSED
- This post occurred 18 months prior to Event 1. In my view, even if the evidenceof this post shows an interest in poisons, it is temporally remote. I note thatin Ruling 1, I excluded evidence regarding the accused downloading articles about poisons - see Summaryof Prosecution Opening at [274] and [276]— because they were more than two years or one year prior to Event 1 and were thus temporally remote.
- TheSummary of Prosecution Opening states, relevantly (footnotes deleted):
- Theaccused submitted that to adduce cell tower evidence in relation to the datesand times of undisputed trip would be a waste oftime and should be excludedunder s 135. The accused indicated that dates and times of travel can be led by agreement.
- Theprosecution submitted that evidence bearing on a matter that is not in disputeis not thereby rendered irrelevant. The prosecutionsubmitted that the celltower evidence provides time certainty, which is especially relevant in relationto Event 2.
(e) SPO[293]-[295] – THE ACCUSED’S ATTITUDE TOWARDS SIMON PATTERSON, DONPATTERSON AND GAIL PATTERSON
- Inrelation to [322] of the Summary of Prosecution Opening, I note that I ruled inRuling 4 that evidence of theaccused’s disposal of items at the tip on 29 July 2023 is inadmissible asincriminating conduct. Even ifthe cell tower evidence of this trip has some slight residual relevance, theevidence is excluded by s 137 because its probative value is outweighed bythe danger that the jury will engage in impermissible incriminating conductreasoning.
- Inrelation to the other undisputed trips, if there is an agreement of facts between the prosecution and the accused pursuant to s 191 as to the datesand times of these trips, it would be a waste of court time for the prosecution to lead cell tower evidenceabout those trips. Once that signed agreement offacts is filed, I will excludethe cell tower evidence under s 135(c).
- TheSummary of Prosecution Opening states, relevantly (footnotes deleted):
- During the s 198B hearings, a number of witnesses including Matthew Patterson and Anna Terrington, Simon Patterson’s brother and sister, were cross examined about the positive relationships the accused had with Simon Patterson, Don Patterson and Gail Patterson.
- At his s 198B hearing, Matthew Patterson was asked the following questions and gave the following answers in cross examination:
- At her s 198B hearing, Simon Patterson’s sister, Anna Terrington, was asked the following questions and gave the following answersin cross examination:
- Inher recorded police interview of 5 August 2023, the following passage appears:
- The accused submitted the impugned evidence should be excluded under s 137.
- The accused submitted that some of the disparaging remarks made by the accused about Simon Patterson, Don Patterson and Gail Pattersonin the messages could inflame the jury. The accused submitted the messages could also mislead the jury as tothe true nature of he rrelationship with Simon Patterson, Don Patterson and Gail Patterson. Moreover, the jury might treat the relationship evidence asevidenceof motive, even though the prosecution does not rely on it in thatway.
- The prosecution submitted the evidence is relevant as relationship and context evidence. It indicates the accused harboured resentment towards Simon Patterson,Don Patterson and Gail Patterson. It rebuts evidence that the prosecution anticipates the accused will adduce that the accused’s relationships with Simon Patterson, Don Patterson and Gail Patterson were positive and, thus, she had amotive not to poison them.
[Redacted]
- The impugned evidence seems to me to be of significant probative value with respect to Event 4, to which Simon Patterson was also invited but failed to attend. It demonstrates considerable resentment on the accused’s part towards Simon Patterson, Don Pattersonand Gail Patterson at a time proximate to Event 4. As occurred in thes 198B hearings with,for example, Simon Patterson’s brother Matthew and sister Anna, the accused will probably adduce evidence at trial from several of the prosecution’s witnesses of the accused having positive relationships with Simon Patterson, Don Patterson and Gail Patterson : indeed, the accused emphasised her positive relationships with Don Patterson and Gail Patterson in her recorded police interview. The impugned evidenceis significant rebuttal evidence.
- The prosecution will not be submitting to the jury that the accused’s resentment towards Simon Patterson, Don Patterson and Gail Patterson amounts toa motive for her to murder them. This minimises the risk of the jury overvaluing the evidence. If requested,I could give the jury directions reinforcing the pointthat the prosecutiononly relies on the relationship evidence for rebuttal purposes. Nor do I think the disparaging comments made by the accused about Simon Patterson, Don Patterson and Gail Patterson will inflame the jury. On the spectrum of inflammatory material ,this falls at the very bottom end of the spectrum, if at all. The jury can be expected to abide the standard direction not to decide the case based on sympathy or prejudice. I am not persuaded that the danger of unfair prejudice outweighs the probative value of the evidence.
- It is convenient to deal with [298] and [309] of the Summary of Prosecution Opening jointly. The Summary of Prosecution Opening states,relevantly (footnotesdeleted):
- Th eaccused submitted it was speculation that the accused sighted the posts inquestion and therefore the impugned evidence was irrelevant.
- The prosecution submitted that the impugned evidence passes the test of relevance because it is part of the evidence of opportunity for the accused to have deliberately sourced death cap mushrooms locally.
(g) SPO[327] – THE ACCUSED CHANGING SIM CARD FROM SAMSUNG TABLET TO PHONE B &NOT PUTTING OUT BINS ON 3 AUGUST 2023
- Thei mpugned evidence of the iNaturalist posts summarised in [298] and [309] of theSummary of Prosecution Opening is not to be consideredin isolation. In Ruling1, I noted that the evidence summarised at [283] to [285] of the Summary of Prosecution Opening was not objected to by the accused. In other words, there is admissible evidence from which a jury could infer that the accused was not only familiar with the iNaturalist website but knew how to utilise its worldwide map to find thelocations of death cap mushrooms locally. [REDACTED] In Ruling2, I ruled that cell tower evidence of the accused possibly visiting Loch twice (28 April 2023 and 22 May2023) and Outtrim once (22May 2023) was admissible. The possible visit to Lochon 28 April 2023 — 10 days after McKenzie’s post — was followed by the accused purchasing a Sunbeam food dehydrator on the same day. The possible visit to Outtrim on 22 May 2023 was a day after May’s post oniNaturalist. It is not in dispute that on 29 July 2023, the accused served her lunch guests Beef Wellingtons that were laced with death cap mushrooms. When these pieces of evidence are considered in combination, they pass the test of relevance because, at the very least, they are evidence of opportunity for the accused to have deliberately sourced death cap mushrooms locally,rather than having inadvertently purchased them from an Asian grocery, as she claimed to investigators. I note that a thorough investigation by the Health Departmentfound no support for that claim.
- The Summary of Prosecution Opening states, relevantly (footnotes deleted):
- The accused submitted the evidence is irrelevant or, in the alternative, excluded bys 137.
- The prosecution submitted that the evidence about the SIM card is relevant as part of the accused’s alleged incriminating conduct in relation to her phones.The prosecution also submitted it is relevant to explain an absence of evidence,namely, the absence of evidence that the accused accessed posts on iNaturalist in April and May 2023 about sightings of death cap mushrooms in Loch and Outtrim. The prosecution submitted that the accused may have accessed those posts on the accused’s usual phone — PhoneA — which was never found by investigators.
(h) SPO[334] – THE ACCUSED ASKING TANYA PATTERSON TO CARE FOR HER CHILDREN
- In relation to the SIM card, evidence of the accused setting up Phone B on 3 August 2023 is part of the course of conduct regarding the accused’s phones which the prosecution relies on as incriminating conduct. In Ruling 4, I ruled inrelation to items (k), (l), (m) & (q) that the accused could rely on that course of conduct as incriminating conduct. It follows that the evidence summarised in the first sentence of [327] of the Summary of ProsecutionOpening is relevant and admissible.
- In relation to the accused not putting out her rubbish bins, the prosecution relies on this omission as supporting the inference that the accused’s visit to and disposal of unknown items at the tip on 29 July 2023 shortly after the fatal lunch was unnecessary (because she had plenty of space in her bins at home) andamounts to incriminating conduct. In Ruling 4, I ruled that the visit to anddisposal of unknown items at the tip on 29 July 23 was inadmissible as incriminating conduct. Accordingly,the fact that the accused failed to put outher bins on 3 August 2023 is irrelevant and inadmissible.
- The Summary of Prosecution Opening states, relevantly (footnotes deleted):
- Th eaccused submitted the evidence summarised in [334] of the Summary of Prosecution Opening is irrelevant. The accused was asking Tanya Patterson for help on 7August 2023 because of the prospect of protective services taking her children.The accused submitted this request is irrelevant to what happened on 31 July2023 when the accused left Leongatha Hospital against medical advice. Alternatively,the accused submitted that the probative value of the evidence is outweighed by the danger of unfairprejudice.
- The prosecution submitted that this evidence is relevant to item (c) of the incriminating conduct relied on by the prosecution. On 31 July 2023, after the accused’s first presentation at Leongatha Hospital, the accused ignored strong medical advice thatshe remain at the hospital, saying she had to leave to, amongst other things, sort out things for her children. The prosecution submitted that Tanya Patterson was someone who had looked after theaccused’s children before when the accused had gone away on trips with Simon Patterson.The prosecution submitted that Tanya Patterson was someone the accused could have turned to on31 July 2023 to sort out things forher children and that the accused’s email to Tanya on 7 August 2023 confirms that.
(i) SPO[336c & d] – PHOTOGRAPHS OF MUSHROOMS MATCHING THOSE POSTED BY THEACCUSED ON FACEBOOK IN MAY 2020
- In Ruling 4, I ruled that the prosecution could rely on evidence of the accused leaving Leongatha Hospital against medical adviceas incriminating conduct. This evidence is relevant to that alleged incriminating conduct. It supports the inference, which is open, that she did not have a good reason to leave Leongatha Hospital against medical advice on 31 July 2023 because she had people she could call upon to help with the children, including Tanya Patterson. I do not consider that thereis any unfair prejudice associated with this evidence.None was identified bythe accused.
- The Summary of Prosecution Opening states, relevantly (footnotes deleted):
- The accused submitted that evidence that the accused had an interest in poisons is too vague to be relevant.
- The prosecution submitted that the photographs of the mushrooms, some of which are possibly mushrooms foraged in the wild, suppor tthe inference that the accused had a continuous state of mind, namely an interest in poisons.
- The photos were taken in 2020, some 2.5 to 3 years before the fatal lunch on 29 July2023. As with the evidence summarised at [275]of the Summary of Prosecution Opening, I regard the evidence as temporally remote and consequently irrelevant.
I remember there was a discussion on here about the police only finding the wellingtons in the bin, and how that was unusual.
I have to say Colin Mandy did a brilliant job. There was so much he managed to keep out
