July 13, 2025 • 52 mins
In this episode of Real Crime with Adam Shand, Adam sits down with veteran barrister Philip Dunn KC to unpack the verdict in one of Australia's most shocking criminal trials: the mushroom lunch murders. Erin Patterson has been found guilty of killing her former in-laws and attempting to murder a fourth guest using deadly mushrooms. But behind the headlines lies a web of circumstantial evidence, unanswered questions, and courtroom drama. Philip shares expert insights into the trial’s key moments, the risks of calling a defendant to the stand, and the dangerous role of public perception in high-profile cases.
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Speaker 1 (00:05):
Appoche production.
Speaker 2 (00:13):
Welcome to Real Crime with Adam Shann I'm your host
Adam Shand Last week one of the most sensational criminal
trials in Australian history came to a verdict.
Speaker 3 (00:23):
Three people have now died and another is fighting for
life after being poisoned by wild mushrooms at a lunch
with friends in Gippsland.
Speaker 2 (00:32):
Erin Patterson has been found guilty of murdering her former
parents in law, Don and Gail Patterson, and Gail's sister
Heather Wilkinson, the.
Speaker 4 (00:40):
Jury finding her guilty of deliberately serving her relatives at
beef Wellington Lace with deadly death Cap mushrooms.
Speaker 2 (00:48):
And also of the attempted murder of Gail's husband, Ian Wilkinson,
the sole survivor of that deadly lunch. On July twenty ninth,
twenty twenty three.
Speaker 4 (00:59):
Aaron Patterson a convicted triple murderer.
Speaker 2 (01:03):
It's a case that's captured the world's attention because of
its central plot. Erin serves up a lunch of homemade
beef Wellington's laced with death cap mushrooms and then claimed
the fatal consequences were just a tragic accident.
Speaker 1 (01:18):
Yeah, I didn't do anything. I love them, but I'm devastated.
I just can't tell them what has happened.
Speaker 2 (01:25):
The fifty year old has captured the attention of the media,
but let's not forget the victims, good people, pillars of
their community, who did not deserve to die. Having been
caught up in the breakdown of the marriage between Erin
and her husband, Simon Patterson, the son of Don and Gale.
Simon skipped a lunch because he felt uncomfortable, but Erin
(01:46):
did put aside a portion of the deadly meal in
case he changed his mind, a wise decision to skip
that meal. When first charged with the murders, Erin Patterson
turned to one of Australia's most distinguished barristers, Philip DUNNKC,
to defend her. Later, she turned to Colin Mandy sc
to represent at the trial. But Philip done had a
(02:07):
chance to assess the police case and her likely defense
to the charges, and he's kindly agreed to have a
chat today. That's my pleasure to welcome Philip to the
Real Crime studio.
Speaker 1 (02:16):
Can I phil thank you very much?
Speaker 4 (02:18):
Adam that I should say I can't really discuss I
discussed with there in Patterson, But I'm more than happy
to talk about generalities of the case.
Speaker 2 (02:28):
Of course, Yeah, that's right, there's client confidentiality here. But
what was your reaction to the verdict?
Speaker 4 (02:33):
I was intrigued by the fact that the jury didn't
ask a question, and a number of colleagues and number
of friends who knew that I did have some connection
with the case. Rangmon kept asking me, and I said,
the thing that surprises me is that there has not
been one question, and that would rather indicate than in
(02:54):
a trial that went over two months, that the jury
will methodically going through the evidence witness by witness, as
the judge had directed them to. And so at the
end of the day, the Crown put their jigsaw together
to the satisfaction of the twelve good people and.
Speaker 2 (03:10):
True because when you're the defense barrister and the jury
doesn't ask a question, is that a good or a
bad sign?
Speaker 4 (03:16):
That's a worrying sign. The best possible question you can get, Adam,
is would you please redefine reasonable doubt for us? Or
what happens if we've got some doubts. They're the sort
of questions you want, but juries these days they're given
a transcript which tends to slow things down a bit.
You'll notice that most jurors will take notes and so
(03:38):
it's a bit of a jury trial as a raffle.
Defense lawyers in circumstantial evidence cases would often prefer to
have judge alone. For example, in the case of Lloyd
Rainey over in wa charged with murdering the proformatory of
the Supreme Court, you'd rather have a judge alone because
they'll put a motion to one side and be very technical.
(03:59):
Juries are swayed by other factors. It's pretty hard to
get twelve people who can agree, but it's also very
hard to get to twelve people will apply themselves.
Speaker 2 (04:09):
Indeed, in the case of Lloyd Rainey, he was acquitted
of the murder of his wife Koren, and that case
is still a mystery to many people.
Speaker 4 (04:16):
Especially after the Western Australian Police publicized on the front
news of the Perth newspaper that he was there suspect
and only suspect prior to his arrest.
Speaker 1 (04:24):
Yeah don't know.
Speaker 2 (04:25):
So as you watched this case go through, you had
some knowledge of the case the background to it, but
you're seeing it play out on the court and you've
got how many years from twenty years fifty or more
than that. It's ninety sixty nine you've begun this, so
that's the thirty one plus fifty six years at the bar.
Speaker 1 (04:44):
How did you assess the conduct of this trial?
Speaker 4 (04:47):
That's impossible for me to say because I wasn't there
on a day to day basis, and that defense council
and prosecuting council will make different decisions based upon the
mood or, as they say in the Castle, the vibe.
Speaker 1 (05:01):
You will change and shift where you're going.
Speaker 4 (05:03):
I mean, I just finished a trial other day, and
we're going to call four or five defense witnesses. We
called our first witness, who went like a train, so
we didn't call the others. And I can't really comment
on the running of the trial except circumstantial evidence. Trials
are difficult because you have a matrix of evidence, and
here you had conduct, did certain things. Here, You've got lies. Here,
(05:29):
you've got possible movements towards outrom or lock with the
car or the phone. Now all of them on their
own don't amount to anything much and are all explainable.
Particularly conduct, either conduct which the Crown was assuming was
sort of consciousness of guilt, conduct or post offense, conduct
(05:50):
or lies. These things are all explainable by one hundred
and one different reasons, and it's the combination. So you'll
find that the cases that cause the greatest controversy if
you look back over our time, Adam, yours and mine
in the criminal law, their circumstantial evidence cases Lindy Chamberlain,
(06:10):
the spear throw over the Rocks in Sydney tied up
with all sorts of fits and pieces. These cases where
the prosecution of putting their case together and they convince
a jury often leave in the minds of reasonable people
considerable doubts as to the hell is another circumstantial evidence case.
Speaker 2 (06:32):
Indeed, and George pell was initially found guilty but ultimately
exonerated because of the I guess the reasonable doubt that existed.
Speaker 4 (06:40):
And he hadn't given evidence. He hadn't given evidence. Once
you give evidence, then the court of appeal will say,
but the jury had the chance to assess and way
the accused. So the calling of your client in a
circumstantial evidence case for a defense lawyer is a question
which any lawyer, and I'm sure the very skilled legal
(07:03):
team that were down more or would have really tossed
and turned on as to which way are they going
to go, because the minute you call your client in
a circumstanced levians case is you're going to shut out
the court weighing the crown case and only the crown case,
because they will then say the three wise men. The
jury evaluated the accused and formed.
Speaker 2 (07:23):
A view because when I saw that she was going
to give evidence, and she gave evidence, I thought that
it reflected the fact that defense felt that the prosecution
was struggling with actus raya mensraya guilty mind guilty act?
Where was the motive? Was this actually a tragic accident?
Is that what you felt?
Speaker 1 (07:42):
No, I think that they the first thing.
Speaker 4 (07:45):
I don't know what the events thought, and I didn't
do the trial, and they were very skilled and experienced operators.
But in a trial, if we can talk about a
circumstanced levance case, and in a trial where your clients
told porky pies in this case, no foraging for mushrooms
or whatever it might be, you've really got a weigh
it up.
Speaker 1 (08:06):
And sometimes you'll think the jury really.
Speaker 4 (08:09):
Wore to hear her side of it or his side
of it. But this is a critical decision and it
all goes back. Probably there are two or three steps
when you read the brief and you will map out
the chronology, the timeline. You'll map out what is the
objective or real evidence that implicates the client in the crime.
(08:32):
Then what are the circumstantial evidences, what are the bits?
And in this case they relied on lies or post
offense conduct. Now what explanations are there for this conduct?
So sometimes you feel that you've got to do it.
But the calling of the client's always a big, big decision.
And these days barristers in Victoria have been trained in
(08:55):
the Australian School of advocacy and they're trained to be cautious,
so it's uncommon to call your client in Victoria.
Speaker 2 (09:03):
I felt it showed a certain confidence to things. But
I guess also could be interpreted as a moment where
they were trying to what you call look for.
Speaker 1 (09:11):
The rat the rather alternative theory.
Speaker 2 (09:14):
Exactly that could explain these facts in a different way,
rather than just leading to the inevitable conclusion that if
somebody lies and their post defense conduct is so revealing,
they can only be guilt.
Speaker 4 (09:25):
That's right, So that in any case, the calling of
your client is a very weighty decision because the jury
will judge the client and the client's story, and as
Rumphol very wisely said, nothing sinks faster than a cast
iron alibi. You run your defense and they don't like it,
(09:46):
though the judge will tell them put that to one
side and look at the evidence. You're up against it.
You're up against it. So these are This trial will
be one that will be like the Lindy Chamberlain trial,
will be one that will be analyzed backwards and forwards,
and the prosecution their evidence.
Speaker 1 (10:06):
The order in which they lead their evidence is up
to them.
Speaker 4 (10:08):
They did it in a way that they would thought
would be effective, and the way that defense cross examined
and what they cross examined on, and what decisions they made.
Young lawyers and older lawyers and academics and people like
Adam Shand will be examining it for quite some time
to come and then being wow, maybe we should have
done this, or maybe they should have done that. Because
(10:31):
a circumstantial evidence case, and one of the very first
of them you learn in law school is the first
conviction of a murder trial where there was no body
the body that would overboard the boat. And so they
had to convince the jury when they didn't have a body,
and murder trials usually don't have the added complication that
this trial had. And this trial when you attempted murders
(10:56):
and rapes are much more complicated for a defense council
to run his case, to think of his rival alternate theory.
But in a murder trial, you're usually missing the eye witness,
so the road is open for a lot of interpretation, right,
But in this case you had a survivor, Ian Wilkinson,
(11:19):
somebody who sat at the table as each person cutting
to their beef Wellington and took a spoonful and chatted.
And the demeanor of the people around the table. And
if you picture that table, and I've seen that table,
I've sat at that table. But as the meal is
being consumed, as pleasantries are being exchanged, trifle Colty are
(11:40):
fit warm today? How's Auntie Nelly?
Speaker 1 (11:44):
Oh?
Speaker 4 (11:44):
What do you think of the vief Wellington? It's a
picture which I'm sure the prosecution would probably have painted
in the minds of the jurors, which paints once you
find that she put the mushrooms in there, a fairly
chilling portrait of the accused.
Speaker 2 (11:58):
It really is, and the circumstantial evidence certainly weighed against her.
Things like on that table he served the deadly beef
Wellington's to her guests on the white plates, and her
own plate was a tan colored plate. Could just be
mismatching crockery. But in the hands of the prosecution, it
looks like somebody who's avoiding eating the deadly beef Wellington that.
Speaker 4 (12:21):
Came from the survivor. And I would think that the
problem always was here, what's the motive to kill, Not
the motive to hurt, not the motive to annoy them,
not the motive to literally give them the shits right,
but what is the motive to bump them off? And
anybody with half a brain would say that if you
(12:43):
sit down with five guests and yourself minus the children,
and one person walks away, there's going to be questions asked,
And any half logical person would say, well, how come
you didn't perish as well? And this is the problem
for the Crown case. The Crown case picked its skirts
(13:05):
up and skipped lightly along. When they had a survivor
who could talk about mismatched plates, I'd have thought it
was unlikely that she would have mismatched the plates to
give herself, because it's not the plate that's the problem,
it's what's on the plate, right, So I think that
was color and movement, and I think that's been misportrayed.
(13:27):
She made individual beef Wellington's and she wouldn't have had
ticks or crosses on them, but you would have been
able to distinguish. You wouldn't need to have a plate.
It's what's on the plate, not the plate.
Speaker 2 (13:38):
Very interesting, good point, but I'll be checking carefully if
I having get served beef Wellington and the plate's different,
that's for sure. But most of us are trying to
work out did she do it or did she not
do it? But the barris for the defense barrister's job
is very different. It's about whether there's any doubt. Explain
that difference.
Speaker 4 (13:55):
In any criminal trial, the judge will tell the jury
right at the outset that the fundamental difference between our
system and say North Korea Iran is that the accused
person is presumed to be innocent. They don't have to
prove the innocent. The prosecution has to prove their guilt.
The jury actually is the safety valve in the legal system.
(14:19):
Police come at it with police think, please commit these
cases with police think. So a police officer will conduct
they conduct interviews in very much the same way, and
they will conduct things in the same way, and they
have their They're like a one eyed football supporter.
Speaker 1 (14:35):
I know.
Speaker 4 (14:35):
They are very very good and industrious and terrific investigators
in Victorian police, and there's some pretty average ones. But
police have a police view about the case. So what
they will do is they will be interpreting through that lens.
What the defense counsel has to do is to say,
(14:56):
I don't have to prove black is white. I don't
have to prove my client is innocent. What I've got
to show is there is a reasonable doubt about the
prosecution view. And so the standard line of attack will
be the police have been a bit one eyed and
how they've gone about their investigation. They started out thinking
she was guilty in it. They've tried to fit Cinderella's
(15:18):
slipper on the ugly sister. What they've done. But here
in a circumstantial case. And I can think of a
ripper actually that I was involved in. A fellow called
Peter Beatos, the silver gun rapist. He charged with eighteen rapes.
The man was attired in a balaklava and had a
silver gun and nothing much else, and he raped women.
(15:43):
And in those days they didn't have DNA, so they
had eighteen different rape cases, and nowhere were saying the
coincidence is that the one person did the same, and
they pointed to various things in a circumstantial case. In
the offense case, all he had to do is find
have a reasonable doubt about one of them, because then
(16:04):
if you had a doubt about that, a doubt about
the lot. So in a circumstantial case where you're relying
on post defense conduct, wearing white trousers, which is part
of the theory, why would you get.
Speaker 1 (16:16):
Diary would you wear white trousers.
Speaker 2 (16:20):
That they're in Patterson who claimed she was ill, also
having eaten some of the beef. Wellington also and that
she claimed that she'd had gastro and wore white pants.
Speaker 1 (16:28):
But these are arguments.
Speaker 4 (16:31):
They're arguments, and their arguments made by people who have
seen that through the lens that she's guilty. The fact
is there is no real definable motive, right, There is
no motive.
Speaker 1 (16:41):
These are good people. I mean, there's no personal beef whatsoever.
Speaker 4 (16:44):
Is the most no motive. There's no motive, and if
you apply ordinary common sense and the plate thing are furfy.
Therefore panicking afterwards when people have died. I mean all
of us have got children, in my case grandchildren. You know,
you'll see how quickly people who took the chocolate biscuits
are not me. This is little Johnny wiping the RUMs
(17:05):
from you think, because their first reaction is to avoid
the conflict. So I'm not so hypnotized by post defense
livest and I think an intelligent jury and you need
a Monday morning jury.
Speaker 1 (17:18):
What's the difference.
Speaker 4 (17:19):
Well, you need a Monday morning jury. That is, you
need the brightest of the bright to run a case
like this. You don't need a Wednesday jury. We've got
the dregs of all the ones and the others that
knock back right, So you need an astute jury.
Speaker 1 (17:32):
You need a trial by a judge alone.
Speaker 2 (17:34):
I was going to say, was that a potential risk
choosing a jury trial, or was that.
Speaker 4 (17:39):
They had no choice way because in Victoria, unlike other
states in Australia, we don't have that possibility of having
a trial by a judge alone. And a trial by
judge alone works excellently. When you have a person who's
been subject to a lot of bad publicity, so people
have preconceived views on the photos. Aaron Patterson was always
(18:00):
portrayed as an overweight, fat, mean looking woman. You don't
know Aaron Patterson, whether she's a charming woman or not.
But you see those photos and the photos that are
constantly played, I mean, are they kindly far from it?
This woman was blackguarded right from the start, right from
the start, and it's.
Speaker 2 (18:20):
Really a feature of Australian trials involving women where their
demeanor is disproportionately held up as evidence of guilt.
Speaker 4 (18:29):
Why were the Northern Territory Police so focused on Lindy
Chamberlain And if you go back and analyze that case,
they thought that she didn't react in a way that
a mother would because she sat down and prayed quietly,
and therefore they did there's something dodgy about that, just
like the doctor in this case who thought there was
(18:49):
something dodgy about her reaction.
Speaker 1 (18:51):
Well, doctor Chris Webster.
Speaker 4 (18:53):
Yeah, at the hest of light embarrassment and upset and
all the rest of it, and somebody jumping to conclusions
Lindy Chamberlain was prejudged, and the photos of her and
the way she was portrayed and Aaron Patterson was blackguarded
in the press.
Speaker 1 (19:08):
If you look at the photos now, they're horrible. They
are horrible, And.
Speaker 4 (19:12):
The reality is there's always a real chance here at
them that a real misjustice has happened.
Speaker 2 (19:18):
Because we've also seen the normal body language experts come
out and they're analyzing her medio appearances and the police
interview and so forth.
Speaker 1 (19:26):
And they don't know, they don't they don't know. It's
pseudo science, isn't it real? Pseudo science? It's crap.
Speaker 4 (19:32):
And somebody jump into conclusion, you know, and I know
that when you jump to conclusion that doesn't mean you're right.
You're often wrong when you jump to them like somebody
who forms an impression. The reality is that one of
the people survived, and the elderly person survived, a much
younger person would have a greater chance of survival. And
(19:55):
if you start thinking in those ways rather than saying, well,
how comes you wore white pants?
Speaker 1 (20:01):
Oh, that's a bit more. Ah, that's very dodgy. Well
that's right.
Speaker 2 (20:06):
And I think the August five police interview really forms
the bulk of the Crown case where they tied her
to a story which was riven with lies. And I
take your point about how people panic, and she was
certainly panic and is that about that? But you see
it in the movies where people say, oh, we should
go to the police.
Speaker 1 (20:23):
Oh, they won't believe us.
Speaker 2 (20:24):
So they make up a silly story which actually brings
them undone. So the police were very very good in
the interviewer in tying her to a story which had
these falsehoods. They began with what she said to doctor
Chris Webster at the hospital that she bought the mushrooms
at Woolworths. It continued with do you own a dehydrator?
Speaker 1 (20:42):
No.
Speaker 2 (20:43):
There was also lies about foraging for mushrooms and really
in her relationship with Simon's family. There's a bunch of
things there, but they're all circumstantial.
Speaker 4 (20:51):
I don't really want to comment on the case because
I did have some involved in It would be wrong
of me. Sure, I do say this, I said to
you a moment ago. Police approach things in a police
interview and skilled interviewers start, they will have in their
mind the reasons why they're suspicious, so they will ask
the accused person to give them a version. Then they
(21:12):
will go through that version and pick it to pieces,
and then they'll put their version. Now that's how they
do it, but they're doing it as a skeptic, as
a skeptic, and what they're doing is then they're latching
onto something, whereas people's reactions and in your ordinary everyday life.
(21:32):
Just last night, my wife said to me to put
the bins out, and I knew she was in a
bad mood, and I said, of course, they thought bugger.
I had to wait until she went to bed to
sneak out and put the bins out right, because sometimes
it's easier to avoid a problem. And I think, Adam,
(21:56):
what will happen in this case, has happened in Lindy Chamberlain,
has happened in these other circumstantial evidence cases, as will
happen in Dawson and so on, is that people will
go over and over, they will chew the bone on this.
And I think you'll find that once the kind of
mass mob hysteria of the evil erin Patterson with the
(22:18):
horrible photos and the liar and she was nasty to
a mother, but all these terrible things they're saying about it,
Once that dies down, Lawyers and people like yourself will
start revisiting the carcass of the crime, and I think
there's going to be more questions and answers.
Speaker 2 (22:35):
Personally, I always felt on the way through the evidence
that the motivation was weak, although I've seen people get
murdered for less, but in this case, he was a
person with no history of this sort of stuff with.
She doesn't have prior convictions, none, none, And here were
these nice, decent people coming for lunch and this event
takes place. But where was the moment where you go Aha,
(22:57):
that's the reason why. And I felt this way all
the way through until the jury then retired for its verdict.
I thought, I reckon, they're going to find her guilty.
How did you feel?
Speaker 1 (23:08):
Well?
Speaker 4 (23:08):
I hadn't followed the trial in that sort of detail.
But the thing that I was extremely curious about. In fact,
I made an inquiry as to the occupations of the jurors.
I wondered what they were, because I was intrigued by
the fact that they weren't asking questions. And you don't
know what goes on inside the jury room, and the
(23:29):
only way you'll find out, I mean, the judge has
a bit more intelligence because his staff will report on
the vibe. But it's the questions that give you the answers.
But there was stony silence from the jury room as
they are apparently were methodically going through their task. Had
there been division within the ranks or worrying about an
(23:49):
aspect of proof, that have asked a question, and the
longer it went without the question. And I had a
number of my colleagues, because I did have some preliminary
involvement in the matter, ringing up and saying what do
you think? And I said, hmmin, this jury's very methodically
going about things. It looks dangerous for the defense. I
(24:11):
didn't know, but that's was my hunch.
Speaker 2 (24:13):
It's your experience tells you that. But it was also
noted that the judge spent a long time directing the
jury on what was admissible, what was not, and how
they should regard evidence. And it could be said that
he did his job very very well. Therefore there weren't
those critical questions left.
Speaker 4 (24:31):
Adam, most people you have a lifelong not only history
involved in the criminal lord, but a lifelong interest in this.
Most people find it very difficult, whether they're a university
professor or a tram driver to sit in one seat
for day after day and listen to people talking. Now,
when the witnesses are giving evidence, there's a certain theater
(24:53):
about that. But when the barristers are talking, or when
the judge is methodically going through the jury charge book,
in going through each post offense conduct edward's lies, whatever
it might be, explaining all these things, it's hard work
and most people, untrained people don't pick that stuff up
(25:13):
at first. Go what's normal to you is not normal
to the jurors. That's why their occupations are kind of
important to me, to any defense lawyer, rather to understand
what their capacities are. If you pick an average jury,
not this jury. I mean, I just finished a rape
trial on Monday.
Speaker 1 (25:32):
How's it go? Hung? Jury?
Speaker 4 (25:34):
Believe it that it was an interesting case. But on
that jury, like many jurors, there were three or four
jurors who after one or two days sort of weren't
that interested. That's what it did over and done with.
They didn't make notes. They had a jury book with
the exhibits and things. They didn't bring that in when
they said please look at exhibit five, just looking up
(25:56):
at the ceiling. So you start with a number of
passengers in your average jury, there were some passengers then
you're going to have.
Speaker 1 (26:05):
And you don't know who they are.
Speaker 4 (26:06):
The dominance usually red faced men or something like that,
but they could be red faced women. The dominance. They
can easily annoy the others because they'll jump to conclusions.
And then you have the studious note takers, so you
want to know what the occupations aren't and you will
actually tailor your presentation of the defense to your jurors
(26:30):
because you will talk to the jurors. So if this
one's a school teacher, or this one is a social
worker in aged care, you might say to them, well,
you know how people may get a little bit funny
when they get old and they don't always remember things
and they misinterpret things. Oh, you know, you'll tailor your
case a bit how you present it. These are all acquired, teachable,
(26:53):
learnable skills that defense and prosecution lawyers have, as the
prosecution will tailor their case.
Speaker 2 (26:59):
Yes, and do you find in a high profile case
like this, where there has been a lot of meeting,
almost impossible to find a jury that has not had
some exposure to the facts. Do you find that they
walk in there with preconceived ideas, and you've got to
change them.
Speaker 4 (27:13):
Of course they do, each and every one of us,
no matter how fair minded you are. We have conscious
and subconscious preconceptions and biases. And if you are a
union psychologist, you'd go back to the archetypes, the evil,
(27:33):
which the vestal virgin, the wise old man. These are
common archetypes which come from ancient Rome Esop's fables to
modern psychology. And these are all inherent and they are
inherent no matter what culture you come from. So the
archetypes and these are all light, lurk and lie in
(27:55):
our preconceived, sometimes unconscious bises. So how do you deal
with that as defence council too, Well, that's why you're
looking at the type of makeup of your jury becomes
very important. But also you have to deal with it.
Sometimes you've got to embarrass the jury into being independent.
Speaker 1 (28:14):
How do you do that without risking losing them?
Speaker 4 (28:17):
Well, you say to the jury, when you sat in
court you heard the accused man charged with rape, or
when you came to the court and you saw the
accused man of the lot, you'd say, I wonder what
he did? And then you heard rape, thought, oh, my god,
I'm in a rape case and this man's a rapist.
You say to the jury, if you were thinking that line,
(28:39):
you'd already made your mind up subconsciously. But you were
given an option by the judge to excuse yourself at
the start of the trial if you couldn't deal with
this sort of case. So the court assumes that you
were independent, even though you might have a prieve conceived
view that you have said, I volunteer by not asking
(29:02):
for an exception. It's particularly right. It used to be
more in cases you'd have to work harder. I'm an
older barrister. When you had my Italian migrants, they all
carry knives these day, guys. You know that these preconceived
that the old skippies had. So you have to sometimes
embarrass durors into being independent, and do you have to
(29:22):
remind them? And it starts and begins with the presumption
of innocence. The prosecution has to prove its case beyond
a reasonable doubt. Forget try to prove your clients innocent.
The jurors have to understand what their role is and
if you don't tell them, then you've failed in your job.
Speaker 2 (29:37):
I've seen more than one defendant who's got en off
say thank God for the jury system, and that the
jury system gets.
Speaker 1 (29:44):
It right more than it gets it wrong.
Speaker 4 (29:45):
Would you agree with that, Yes, I do those who
work within the system. No, it's not perfect, but it's
better than the alternative. And as I described it before,
the juris system is the safety valve in the administration
of justice that don't always get it right. And I
think the jurors in a high profile case, whether it's
(30:07):
a biky, whether it's a cardinal or the Catholic Church,
whether it's a fat woman who's being poisoned, having the
juror's potential jurors poisoned daily by photos of her and
pictures of her, these people have a harder road to
travel and harder road to get an independent dura. I'm
(30:27):
not saying these jurors weren't independent her trial. Of course,
there's no evidence that at all. In fact that there's
been so much scrutiny that there are a couple of
farcical moments where it was discovered that the media was
in the same hotel as the jurors. But apart from that,
I think they were sequested well and they've done their
job beyond approach. Absolutely, absolutely, and nobody would say to
the otherwise.
Speaker 1 (30:47):
But they have a hard job. Their job is harder.
Speaker 4 (30:50):
I mean if they're acting for the head of the
common Sharos or that vers's the cardinal and the Catholic Church.
When everybody's saying, well, you will know these priests are pedophiles,
and they're all saying we all know, and Patterson's are
poisoner and look at it, fat older which woman.
Speaker 2 (31:06):
Yes, you know what it's like to have unpopular clients.
You represented Mick Howie of the Commentary as you mentioned
that in the Sydney Airport melee.
Speaker 1 (31:13):
How is that?
Speaker 4 (31:14):
Well, you know these cases, aren't I've represented McMurray in
the These people aren't. They're not your best friends, you
don't want them are your best friends. In fact, it's
harder for the barrister if you like the client. It
best to keep well neutral of the client. But acting
for in a notorious case presents its own special problems
and they have to be dealt with.
Speaker 1 (31:34):
They can't be ignored. I can't be ignored in this case.
Speaker 2 (31:40):
What would those special You've actually mentioned it, the preconceived
ideas about Aaron Patterson and the archetype that's right.
Speaker 4 (31:47):
And then the constant portrayal of it. And I think
the defense did a very good job in trying to
limit the damage the press were doing prior to the trial.
And obviously wasn't at the trial, so I can't comment
on the trial.
Speaker 2 (32:01):
But we go back to that critical moment where they
decided to put Aaron Patterson on the stand to tell
her story.
Speaker 1 (32:06):
Big decision, big.
Speaker 2 (32:07):
Decision, and I think by all accounts, she did reasonably well.
She certainly didn't collapse in the box and provide the
coupdigraph of the prosecution.
Speaker 1 (32:15):
Did she.
Speaker 4 (32:16):
I'm lucky in the sense that I'm an older barrister
and therefore I've seen a bit more and I really
when I started, one of the great criminal trial lawyers
who had spectacular success was Frank Galbi. He wasn't embarrassed
her sister. Mister Frank, as we all called him. We
used to go and watch him. Mister Frank said, you
(32:36):
should always called your client. That should be a starting
point because the jury would like to hear their story.
Barristers are trained by the Australian skill of advocacy in
barrister training to be far more cautious these days, But
mister Frank said, it doesn't matter how they go, as
long as they hold the line. They're not actors, they're
(32:57):
just ordinary people. And that's why there's a lot of
wisdom there.
Speaker 1 (33:02):
I mean.
Speaker 4 (33:03):
But mister Frank practiced in a very different day to
the days now. I mean, he used to talk about
our Lord and Savior Jesus Christ was taken by the
police of Jerusalem and interrogated.
Speaker 2 (33:13):
You also learned at the feet of a great criminal solicitor,
Bob Vernon here in Melbourne. A few of his cases
were very and he was a guy, that very dashing
individual ran with the hounds and the hairs at times.
Speaker 4 (33:25):
Oh very much, say, with the black leather overcoat and
the little Clark gable mustache. But he was an old
fashioned blood and thunder barrister. This was in the days
when you're doing robbery and murder trials, where every hand
was turned against you. There were no signed records of it,
of you, no tape records of interview. Police verbals were
very common. Police those days were very different to the
(33:45):
way they are now. And in those days, when you failed,
you went to John for twenty five years, and those days.
I mean murder trials lasted four or five days. I
did murder trial at the murder trial.
Speaker 1 (33:55):
In a week, and this lasted weeks and nine weeks
I think in total.
Speaker 4 (33:59):
And the judge was so careful, you know, everything's in
those days. It was just up and at them, you know.
Speaker 1 (34:05):
Yeah.
Speaker 2 (34:05):
I did hear one story, maybe apocryphal, about Bob Vernon
where one of his junior solicitors was being threatened by
one of the clients who was unhappy with the service
and had assaulted him, and Vernon turned up at this
client's door and shot him in the foot.
Speaker 1 (34:18):
I don't know if it's sure or not, but it's
a good story.
Speaker 4 (34:20):
Bob Vernon deserves a book. Bob Vernon was a very
complicated and unusual character. And somebody was talking to me
about a case that I was in with Bob Vernon
only yesterday, which involved the fixing of race meetings at
Mornington and Flemington, and Vernon ran with the hairs and
(34:41):
hunted with the hounds. He was a very different and
complicated man.
Speaker 2 (34:44):
Do you find you have to do that as a
barrister where you're where it's not your role to either
be a friend of the client, or determine their guilty
or innocence, but to represent them, how do you approach
that whole question.
Speaker 4 (34:57):
Well, these days it's a little bit more complicated than
it was. Nowadays, the idea is always to keep the
desk between you and the client. Keep the desk between
you and your client. That's it. They're not my friends.
I don't have to go to dinner with them. I
don't have to like them. They don't have to like me.
These days, clients expect a bit more client management, a
(35:18):
bit more hand holding. But you've got to be very
careful because clients are treacherous their charge with the criminal offense.
This dominates their life. They're not going to the dentist
to get a filling. They might be going to job
for the next eight years or ten years, or twenty
years or thirty five in this case, or thirty five
in this case. So you can't say, oh, the clients
are friend of mine. You've got to treat them very professionally.
(35:40):
You've always got to keep the desk between yourself and them.
And I always get my clients to write their instructions.
I asked them to read the record of video and
comment or ask them to tell their side of the
story and under theatic legal instructions to Philip Dunnan's on,
so you get their version, so you're always sort of covered.
Nine out of ten people changed, or more than nine
(36:00):
out of ten people charge at criminal offenses plead guilty
more than nine more than ninety percent of the less
than ten percent who pleaded not guilty. A number of
them clearly have real problems, but for all sorts of reasons,
they won't even contemplate a plea a guilty, and the
Crown can be realistic in plea bargaining and negotiation, so
(36:24):
that's always something that should be explored. But there are people,
particularly grandparents charged with sexually enlisting their granddaughters. They'll never
plead guilty. They'd burn on the cross rather than say
they did it. So you've got to manage your client.
You had to point out the pitfalls and then act
on their instructions.
Speaker 2 (36:45):
It certainly is a high stakes moment because running to
trial is expensive and if you take up the court's time,
they're not going to look so kindly upon you when
it comes to sentencing. Aaron Patterson is looking at thirty
five to forty years at the moment, which is what
Carl Williams got for murdering eight or ten people. And
(37:05):
I guess there's a moment when you're dealing with your
client and you obviously you can't speak for Aaron Patterson.
That was a client confidential conversation, but there must be
moments when you've got a client where the circumstantial evidence
is so great in a murder trial that a manslaughter
plea with the crown makes sense.
Speaker 4 (37:22):
Always, always has to be discussed. I remember one of those.
It's what do I call Plan AM Plan B? And
I remember when I was acting for Carmen Lawrence, who
was then the Minister for Health and the Keating government,
and she was charged with perjury and we sat in
my chambers and she was full of fight and confidence
and she gave her instructions and then I said, well
(37:43):
we should also think about plan B. And she said
what's out? I said, what happens to if you get
fan guilty? Well she just about passed out at the table,
and she said, why don'd be fan guilty? And I said,
because I can see immediately these problems in what you're
telling me. And she was a very clever woman. Carden
Lawrence a very clever. It is a very clever one.
And I said to her, you formed a view on
(38:06):
your recollection, but the human memory is not a tape recorder.
The human memory is not a camera. I'd be greatly
assisted if you could go away and do a little
paper from me on human memory. Because she's an academic.
She came back with one hundred and eighty page document
and she said, you know, maybe I can't rely on
(38:28):
my memory. I said, nay, you're talking. Don't lock yourself
into a position where you might think, because you're so
horrified by the allegation of telling lies, that you're being
adamant on the rest is history. I'm mean, there's a
cigarette verdict. The jury went out, had a cigarette three minutes,
came back and I quit it. So clients that have
(38:51):
to be managed and sometimes but.
Speaker 2 (38:54):
It's a hard discussion, particularly when the police case, as
in Aaron Patterson's trial, seems to be very strong. The
circumstantial evidence is there. I thought, well, listen to the layman,
it was, I mean to you, you're seeing the rational alternative,
the rat You see the rat the rival alternative theory.
Most of us see the archetype that you're talking about
(39:15):
where she looks guilty the post conduct.
Speaker 4 (39:17):
Therefore she wore a white pad, she must be guilty
because she wouldn't wear that if she had diarrhea, or
she wouldn't tell a lie about the dehydrator.
Speaker 1 (39:27):
It's kind of nuts.
Speaker 4 (39:29):
It's almost proof of innocence, the fact that she'd lied
about the dehydrator. How so, because it's such a silly lie,
it's a nonsensical lie. It's a panic you eye, and
she kept the manual that if she had mixed the
death cap mushrooms into the dehydrator, and then she hid
(39:50):
the dehydrator, didn't hide the manual. And when did she
hide the dehydrator when the balloon went up? Right, It's
something you could turn to your advantage rather than it's
such a silly lie. It shows in a way she's innocent,
because if she is the evil, conniving person, she'd got
rid of all of this stuff a long time ago,
(40:11):
and it would be very simple thing to say, Actually,
I'm a forager, and I went out in my forage
just around those oak trees over there, and I found
these mushrooms, and I thought they'll be just wonderful, natural,
not polluted not made with chemicals, not made in a
factory somewhere, because I wanted my guests to have a
(40:32):
wonderful dinner, and I gave the natural mushrooms. The fact
that she told her live about the dehydrator, I would
say as an indicator of innocence.
Speaker 1 (40:40):
Very interesting.
Speaker 2 (40:41):
I think good way putting it, because really, when you
look at it, it would have to be one of
the dumber murder plots if you were to put one together,
because there's only one possible coproate.
Speaker 1 (40:50):
Nay, you're cooking.
Speaker 2 (40:52):
You should have been on the juror because all the
evidence pointed towards her, the lies seemed to point towards her,
And I think it was a very difficult assignment for
the defense in this case.
Speaker 1 (41:04):
And therefore they were very careful.
Speaker 4 (41:06):
Analysis was and would have been made by a highly
skilled and competent legal team.
Speaker 2 (41:11):
And she spent a fortune on this. I mean was
she inherited something like three million dollars? I think you
wouldn't get much change in this sort of a murder
trials say.
Speaker 1 (41:19):
Is that was that right?
Speaker 4 (41:19):
I'll tell you what, in a case like this, money
doesn't matter. You'd do it anyway. Barristers would climb over
broken rocks to do this case right.
Speaker 2 (41:28):
I remember I did a story and a guy called
rober John Adams, who'd murdered a woman called Mary Louise
Wallace back in only eighty three. He posed as a
police officer, met her in a nightclub, took her out,
raped her, murder, to dispose of the body, and he
for many, many years maintains his innocence. He was finally
convicted and got a last sentence, and the question now
(41:49):
came up of where is the body?
Speaker 1 (41:51):
Can you show us where the body is? You can
get parole. You aren't that old.
Speaker 2 (41:53):
I went to visit him at Sessnock Jail and I
sat for two or three hours with him, trying to
get this question out of him. The answer out, where
is Mary's body? Because her family wants to bury her.
And you know you'll get out of here if you'll
say where the body is. And he said to me, listen,
I'm not going to change my story, but look at
it this way. I met a woman shortly after Mary disappeared.
I married her, I had children with her. They've spent
(42:15):
their whole lives in the knowledge of my innocence. I
spent their entire inheritance on the defense. Do you think
I'm going to turn around now and say yes, I
did it.
Speaker 4 (42:24):
It's like when that fellow who was alleged to have
kill Dol Mackay was on his deathbed. It was I
think Rondol's or Charlie Bisin. One of those bokes went
to scene and they said, the grandchildren of Mackay and
the family need to know. Tell us now who We
won't say anything till after you're gone. And he said
(42:45):
it wasn't me that that little job was now the
side of town.
Speaker 1 (42:49):
James Baisley, I believe Jimmy machine Gun Baisley. Yeah, we
went over the wall with Ryan and Walker. That's right.
Speaker 2 (42:55):
And we've got the same situation with Bradley John Murdock
with the murder of Peter Falconio.
Speaker 1 (42:59):
It's interesting too.
Speaker 2 (43:00):
He's on his deathbed now palliative care and he's not
opening up either.
Speaker 4 (43:04):
There's some pretty unusual stuff in that case. Don't worry
about that. There's some big question marks there really is.
There is about Murdock and the drug running and the
connection with falconions on.
Speaker 1 (43:14):
But anyway, there you go.
Speaker 2 (43:15):
And Derek Ernest Percy he killed numerous children. He went
to his grave not admitting to what he did. Why
don't defendants make these deathbed confessions?
Speaker 1 (43:26):
What's in it for them? What's in it for them?
Speaker 4 (43:30):
And when you talk about Percy or duw passing, these people,
they're psychopaths so anyway, so you can't You can't evaluate
them by any common sense reasoning or russianing nationale. You
know these guys, well, I've only met a few, but
you've probably met a few more. But you can't apply
ordinary logic to them.
Speaker 2 (43:48):
You can't. And with Aaron Patterson, this lack of motive
was troubling for the media as much as it was
for the prosecution, because there was a lot of time
spent now going back through her history to show.
Speaker 1 (44:00):
Make Cinderella's slippet fit on the ugly.
Speaker 2 (44:02):
Says correct, the irrational behavior, the nonsense call, the lying,
and so on and so forth.
Speaker 4 (44:06):
But if you stop and talk about it and you
say it like that, Adam, don't you see the problem
and all of that? Of course you see that she's guilty.
She's the archetypal, fat, ugly ole witch. Huh over the caldron,
She's the evil witch. Oh, she was nasty to a mother.
H Oh, she swore at somebody at the air traffic control.
Oh really, well, I adam shand and I feel it done.
(44:29):
I'd never sworn anybody at work, not.
Speaker 1 (44:32):
This week anyway. So the archetype comes to play.
Speaker 2 (44:36):
Yeah, it's like my grandfather Jack Shan Casey. He defended
a woman called Shirley Beeger back in the fifties who
had a cheating, nasty boyfriend, Arthur Griffiths. She went up
to the Checker's nightclub and sat there in a cab
outside with her mother with a twenty two rifle. He
walks out shoots him between the eyes. And my grandfather
saw her as that she was the vestal virgin. She
(44:56):
was a model. She was the one that people couldn't convict,
And over time he was able to introduce this little
bit of element of doubt that perhaps Arthur reached in,
grabbed the gun and caused his own demise and she walked.
Speaker 4 (45:10):
What about Gloria cropeh When mister Frank went on the
view of Miss Australia's household where her mother and another
move family were charged with murdering the father and delisted
his daughters and they're walking around looking at the house.
The locus and quo was pointed out from the peepholes
(45:33):
that he bored. The father had bored into the girl's
bathroom so he'd watch his daughter's showering and masturbate. And
mister Frank said Terrence to Terry forest Nast, judge the jury.
When the jury see this, our client will be acquitted.
Speaker 1 (45:47):
And he was.
Speaker 2 (45:49):
And what about one of the early cases, Margaret Francis
Glashen Do you remember that one.
Speaker 4 (45:54):
Oh, Margaret Francis Glasheen, that's a long time ago that
you've done your homework.
Speaker 1 (45:59):
I have, yes. That was actually the very first criminal
trial I.
Speaker 2 (46:04):
Did, because she was a prostitute who was accused of
luring a punter in a situation where her mind could
rob him.
Speaker 4 (46:09):
The badger game it's called, and the defense was identity.
And I was a young barrister and I asked far
to him and equipped. But the victim had been to
the factory breakup and drunk an enormous amount of beer
and cognac and whiskey, and he drunk as a lord,
and on his way he thought, just killed her to
get a woman what he wanted a woman for.
Speaker 1 (46:30):
In that state.
Speaker 4 (46:30):
Nobody was quite sure, but he finished up in Fitzroy
with Margaret Francis Klasheen, and I thought, I was cooking
with gas. How could you identify this up for all
that and you're sek and you're vomiting and the add
and you went to the He said, well, I don't
know about this, but all when I walked into the room,
I saw the black Virgin of Kracker on the mantelpiece,
quick fumbling through the papers, and there on the mantelpiece
(46:53):
in her room in the boarding house in orphics Roy
was the black Madonna. The defense suddenly had to do
a bit of a U turn then and went from
identification to duress. We were coerced into.
Speaker 2 (47:03):
Doing this, right because you inadvertently put on the scene
and they yet to change.
Speaker 1 (47:07):
Tack up up good identification. Gage. If I kept asking,
are you're sure about that? Yes, I couldn't be. And
then so yes, that's a long time ago in a
different galaxy, that's right.
Speaker 2 (47:19):
And she was finally quitted. So you did your job,
and you pivoted magnificently. Now I think all eyes are
now on the appeal for Aaron Patterson. She's not been
sentenced yet, so she'll have twenty eight days from that
moment to lodge and appeal. People are already fumbling around
to find grounds for appeal. What's the process from here?
Speaker 3 (47:38):
For Aaron Patterson, the process is that the legal tea
will have already had a view as to whether the
judge is misdirected or left something out, or overemphasized something
or for illegal they need to establish a legal error
and they will already have a checklist of things that
they These are very.
Speaker 4 (47:57):
Experienced people and so they'll have a checklist. On the
other hand, there's a problem because this judge is a
very experience judge and a very thorough judge and a
very careful judge. Doesn't mean he won't make a mistake.
But his wig is gray, not white. You know, he's
been around the block, so he knows what he's doing.
(48:17):
But that doesn't mean he didn't make a mistake.
Speaker 1 (48:19):
But they'll be.
Speaker 4 (48:19):
Looking for one. But they will go against the weight
at the evidence. But with the client having given evidence,
when you run that as an argument, you have some
problems because the court will said the jury formative view
of the witness. So it all plants course.
Speaker 2 (48:35):
Because in the movies, there's that moment of aha, fresh
and compelling new evidence. How often does it actually come
up between a trial and an appeal.
Speaker 1 (48:44):
Hardly ever.
Speaker 4 (48:45):
Actual dream it's like the dream of every young footballer
to kick the winning goal in the last fifteen seconds
of the Grand final.
Speaker 1 (48:54):
It's the dream to find the nugget of gold, the rat.
Speaker 4 (48:59):
The rat's always there, but you need a compelling piece
of evidence. It happens rarely. It always happened for Perry Mason.
He was able to pluck it out of the sky.
But in real life, in the daily grind of the
administration of justice, a sausage machine of the justice system,
that's very rare.
Speaker 2 (49:19):
Sometimes it's about limiting the damage in the sentencing. You
make some mitigating argument. It might be around mental health
or some aspect of the trial.
Speaker 1 (49:27):
I don't really know.
Speaker 4 (49:27):
But when you look at the offense and then the offender,
they're the starting points in time.
Speaker 1 (49:33):
But this is a complicated and difficult plan because right
now things look pretty black. She'll need be yes. It
is it's they're going to earn their money now.
Speaker 2 (49:43):
A premeditated case where which has been proven. But she
set out, she did the research, she foraged for the mushroom,
she got all the gear, she made the beef Wellingtons.
She tried to lure her husband there as well, apparently
so there could have been another victim as well. And
at the end of all this, how on earth do
you try.
Speaker 4 (50:00):
These words to show how conditioned you are? You see,
I'm a journalist. Yeah, but lu husband, you know this
is the grand case. I mean, why not have your
family and friends around?
Speaker 1 (50:10):
Why not? Why not the dinner?
Speaker 2 (50:14):
I don't think that beef Wellington will behind on the
list of most people's menus from here on in. But overall,
do you think this is one of those cases that
will make law? Are we going to see something that
goes like pell.
Speaker 4 (50:26):
But it'll make it will make controversy. And what will
happen because just like Lindy Chamberlain, just like we'd like
the rest of them, people will in a more cold
blooded way analyze the disadvantages that this unfortunate woman had
in running a trial. She didn't come independently before the
(50:47):
court and be judged independently of prejudice or bias. And
I often tell juries, if you look at the courts
throughout Victoria, they often have the statue of justice. Who's
a woman who's blindfolded, so she has no preconceived ideas,
and she has the scales of justice mone and the
sword of punishment. The other this woman justice wasn't blindfolded.
(51:11):
This woman was vilified on day one, very heart verd
to get a fair trial. And so you will find,
I think, just like a linear Chamblain, time will pass
and that's the dust settles. People will look at this
a bit more dispassionately, like a couple of things which
are independent of any conversation or instructions I had in
(51:32):
this trial. But I point out it to you, like
it's not the color of the plate, it's what's on
the plate. It's like the dehydrator. The timing of that
is an indicator of innocence, not an indicator of guild.
Speaker 2 (51:43):
Fascinating, philm Would you hazard a prediction as to the appeal?
Speaker 1 (51:48):
I know I can't. I wouldn't think you would. Philip.
Thank you so much up your inquiries and your good works.
Speaker 2 (51:54):
You brought a fascinating viewpoint to this because I think
there's barely a person in Australia or internationally who would
have thought there was any alternative or that she had
been vilified. So I think it's a really valuable point
and it really goes to the heart about justice system
that reasonable doubt is a very good.
Speaker 1 (52:09):
That's why the jury is the safety help. They sometimes
get it wrong, though.
Speaker 2 (52:12):
Fantastic. Well, thank you Philip Dunn. That's Philip donecasey fascinating case.
I don't know what you thought going through the trial,
but I always felt the Crown was struggling for a
motive and that the overwhelming circumstantial evidence of Aaron Patterson's
guilt would wagh against her, and particularly when it came
down to the final deliberation of the jury, I thought
she was cooked.
Speaker 1 (52:32):
I don't know what you thought.
Speaker 2 (52:33):
Maybe you'd like to share your thoughts with it you
give me an email Adam Shand writer at gmail dot com.
This has been real crime with Adam Shann. Thank you
for listening.
Appoche production.
Speaker 2 (00:13):
Welcome to Real Crime with Adam Shann I'm your host
Adam Shand Last week one of the most sensational criminal
trials in Australian history came to a verdict.
Speaker 3 (00:23):
Three people have now died and another is fighting for
life after being poisoned by wild mushrooms at a lunch
with friends in Gippsland.
Speaker 2 (00:32):
Erin Patterson has been found guilty of murdering her former
parents in law, Don and Gail Patterson, and Gail's sister
Heather Wilkinson, the.
Speaker 4 (00:40):
Jury finding her guilty of deliberately serving her relatives at
beef Wellington Lace with deadly death Cap mushrooms.
Speaker 2 (00:48):
And also of the attempted murder of Gail's husband, Ian Wilkinson,
the sole survivor of that deadly lunch. On July twenty ninth,
twenty twenty three.
Speaker 4 (00:59):
Aaron Patterson a convicted triple murderer.
Speaker 2 (01:03):
It's a case that's captured the world's attention because of
its central plot. Erin serves up a lunch of homemade
beef Wellington's laced with death cap mushrooms and then claimed
the fatal consequences were just a tragic accident.
Speaker 1 (01:18):
Yeah, I didn't do anything. I love them, but I'm devastated.
I just can't tell them what has happened.
Speaker 2 (01:25):
The fifty year old has captured the attention of the media,
but let's not forget the victims, good people, pillars of
their community, who did not deserve to die. Having been
caught up in the breakdown of the marriage between Erin
and her husband, Simon Patterson, the son of Don and Gale.
Simon skipped a lunch because he felt uncomfortable, but Erin
(01:46):
did put aside a portion of the deadly meal in
case he changed his mind, a wise decision to skip
that meal. When first charged with the murders, Erin Patterson
turned to one of Australia's most distinguished barristers, Philip DUNNKC,
to defend her. Later, she turned to Colin Mandy sc
to represent at the trial. But Philip done had a
(02:07):
chance to assess the police case and her likely defense
to the charges, and he's kindly agreed to have a
chat today. That's my pleasure to welcome Philip to the
Real Crime studio.
Speaker 1 (02:16):
Can I phil thank you very much?
Speaker 4 (02:18):
Adam that I should say I can't really discuss I
discussed with there in Patterson, But I'm more than happy
to talk about generalities of the case.
Speaker 2 (02:28):
Of course, Yeah, that's right, there's client confidentiality here. But
what was your reaction to the verdict?
Speaker 4 (02:33):
I was intrigued by the fact that the jury didn't
ask a question, and a number of colleagues and number
of friends who knew that I did have some connection
with the case. Rangmon kept asking me, and I said,
the thing that surprises me is that there has not
been one question, and that would rather indicate than in
(02:54):
a trial that went over two months, that the jury
will methodically going through the evidence witness by witness, as
the judge had directed them to. And so at the
end of the day, the Crown put their jigsaw together
to the satisfaction of the twelve good people and.
Speaker 2 (03:10):
True because when you're the defense barrister and the jury
doesn't ask a question, is that a good or a
bad sign?
Speaker 4 (03:16):
That's a worrying sign. The best possible question you can get, Adam,
is would you please redefine reasonable doubt for us? Or
what happens if we've got some doubts. They're the sort
of questions you want, but juries these days they're given
a transcript which tends to slow things down a bit.
You'll notice that most jurors will take notes and so
(03:38):
it's a bit of a jury trial as a raffle.
Defense lawyers in circumstantial evidence cases would often prefer to
have judge alone. For example, in the case of Lloyd
Rainey over in wa charged with murdering the proformatory of
the Supreme Court, you'd rather have a judge alone because
they'll put a motion to one side and be very technical.
(03:59):
Juries are swayed by other factors. It's pretty hard to
get twelve people who can agree, but it's also very
hard to get to twelve people will apply themselves.
Speaker 2 (04:09):
Indeed, in the case of Lloyd Rainey, he was acquitted
of the murder of his wife Koren, and that case
is still a mystery to many people.
Speaker 4 (04:16):
Especially after the Western Australian Police publicized on the front
news of the Perth newspaper that he was there suspect
and only suspect prior to his arrest.
Speaker 1 (04:24):
Yeah don't know.
Speaker 2 (04:25):
So as you watched this case go through, you had
some knowledge of the case the background to it, but
you're seeing it play out on the court and you've
got how many years from twenty years fifty or more
than that. It's ninety sixty nine you've begun this, so
that's the thirty one plus fifty six years at the bar.
Speaker 1 (04:44):
How did you assess the conduct of this trial?
Speaker 4 (04:47):
That's impossible for me to say because I wasn't there
on a day to day basis, and that defense council
and prosecuting council will make different decisions based upon the
mood or, as they say in the Castle, the vibe.
Speaker 1 (05:01):
You will change and shift where you're going.
Speaker 4 (05:03):
I mean, I just finished a trial other day, and
we're going to call four or five defense witnesses. We
called our first witness, who went like a train, so
we didn't call the others. And I can't really comment
on the running of the trial except circumstantial evidence. Trials
are difficult because you have a matrix of evidence, and
here you had conduct, did certain things. Here, You've got lies. Here,
(05:29):
you've got possible movements towards outrom or lock with the
car or the phone. Now all of them on their
own don't amount to anything much and are all explainable.
Particularly conduct, either conduct which the Crown was assuming was
sort of consciousness of guilt, conduct or post offense, conduct
(05:50):
or lies. These things are all explainable by one hundred
and one different reasons, and it's the combination. So you'll
find that the cases that cause the greatest controversy if
you look back over our time, Adam, yours and mine
in the criminal law, their circumstantial evidence cases Lindy Chamberlain,
(06:10):
the spear throw over the Rocks in Sydney tied up
with all sorts of fits and pieces. These cases where
the prosecution of putting their case together and they convince
a jury often leave in the minds of reasonable people
considerable doubts as to the hell is another circumstantial evidence case.
Speaker 2 (06:32):
Indeed, and George pell was initially found guilty but ultimately
exonerated because of the I guess the reasonable doubt that existed.
Speaker 4 (06:40):
And he hadn't given evidence. He hadn't given evidence. Once
you give evidence, then the court of appeal will say,
but the jury had the chance to assess and way
the accused. So the calling of your client in a
circumstantial evidence case for a defense lawyer is a question
which any lawyer, and I'm sure the very skilled legal
(07:03):
team that were down more or would have really tossed
and turned on as to which way are they going
to go, because the minute you call your client in
a circumstanced levians case is you're going to shut out
the court weighing the crown case and only the crown case,
because they will then say the three wise men. The
jury evaluated the accused and formed.
Speaker 2 (07:23):
A view because when I saw that she was going
to give evidence, and she gave evidence, I thought that
it reflected the fact that defense felt that the prosecution
was struggling with actus raya mensraya guilty mind guilty act?
Where was the motive? Was this actually a tragic accident?
Is that what you felt?
Speaker 1 (07:42):
No, I think that they the first thing.
Speaker 4 (07:45):
I don't know what the events thought, and I didn't
do the trial, and they were very skilled and experienced operators.
But in a trial, if we can talk about a
circumstanced levance case, and in a trial where your clients
told porky pies in this case, no foraging for mushrooms
or whatever it might be, you've really got a weigh
it up.
Speaker 1 (08:06):
And sometimes you'll think the jury really.
Speaker 4 (08:09):
Wore to hear her side of it or his side
of it. But this is a critical decision and it
all goes back. Probably there are two or three steps
when you read the brief and you will map out
the chronology, the timeline. You'll map out what is the
objective or real evidence that implicates the client in the crime.
(08:32):
Then what are the circumstantial evidences, what are the bits?
And in this case they relied on lies or post
offense conduct. Now what explanations are there for this conduct?
So sometimes you feel that you've got to do it.
But the calling of the client's always a big, big decision.
And these days barristers in Victoria have been trained in
(08:55):
the Australian School of advocacy and they're trained to be cautious,
so it's uncommon to call your client in Victoria.
Speaker 2 (09:03):
I felt it showed a certain confidence to things. But
I guess also could be interpreted as a moment where
they were trying to what you call look for.
Speaker 1 (09:11):
The rat the rather alternative theory.
Speaker 2 (09:14):
Exactly that could explain these facts in a different way,
rather than just leading to the inevitable conclusion that if
somebody lies and their post defense conduct is so revealing,
they can only be guilt.
Speaker 4 (09:25):
That's right, So that in any case, the calling of
your client is a very weighty decision because the jury
will judge the client and the client's story, and as
Rumphol very wisely said, nothing sinks faster than a cast
iron alibi. You run your defense and they don't like it,
(09:46):
though the judge will tell them put that to one
side and look at the evidence. You're up against it.
You're up against it. So these are This trial will
be one that will be like the Lindy Chamberlain trial,
will be one that will be analyzed backwards and forwards,
and the prosecution their evidence.
Speaker 1 (10:06):
The order in which they lead their evidence is up
to them.
Speaker 4 (10:08):
They did it in a way that they would thought
would be effective, and the way that defense cross examined
and what they cross examined on, and what decisions they made.
Young lawyers and older lawyers and academics and people like
Adam Shand will be examining it for quite some time
to come and then being wow, maybe we should have
done this, or maybe they should have done that. Because
(10:31):
a circumstantial evidence case, and one of the very first
of them you learn in law school is the first
conviction of a murder trial where there was no body
the body that would overboard the boat. And so they
had to convince the jury when they didn't have a body,
and murder trials usually don't have the added complication that
this trial had. And this trial when you attempted murders
(10:56):
and rapes are much more complicated for a defense council
to run his case, to think of his rival alternate theory.
But in a murder trial, you're usually missing the eye witness,
so the road is open for a lot of interpretation, right,
But in this case you had a survivor, Ian Wilkinson,
(11:19):
somebody who sat at the table as each person cutting
to their beef Wellington and took a spoonful and chatted.
And the demeanor of the people around the table. And
if you picture that table, and I've seen that table,
I've sat at that table. But as the meal is
being consumed, as pleasantries are being exchanged, trifle Colty are
(11:40):
fit warm today? How's Auntie Nelly?
Speaker 1 (11:44):
Oh?
Speaker 4 (11:44):
What do you think of the vief Wellington? It's a
picture which I'm sure the prosecution would probably have painted
in the minds of the jurors, which paints once you
find that she put the mushrooms in there, a fairly
chilling portrait of the accused.
Speaker 2 (11:58):
It really is, and the circumstantial evidence certainly weighed against her.
Things like on that table he served the deadly beef
Wellington's to her guests on the white plates, and her
own plate was a tan colored plate. Could just be
mismatching crockery. But in the hands of the prosecution, it
looks like somebody who's avoiding eating the deadly beef Wellington that.
Speaker 4 (12:21):
Came from the survivor. And I would think that the
problem always was here, what's the motive to kill, Not
the motive to hurt, not the motive to annoy them,
not the motive to literally give them the shits right,
but what is the motive to bump them off? And
anybody with half a brain would say that if you
(12:43):
sit down with five guests and yourself minus the children,
and one person walks away, there's going to be questions asked,
And any half logical person would say, well, how come
you didn't perish as well? And this is the problem
for the Crown case. The Crown case picked its skirts
(13:05):
up and skipped lightly along. When they had a survivor
who could talk about mismatched plates, I'd have thought it
was unlikely that she would have mismatched the plates to
give herself, because it's not the plate that's the problem,
it's what's on the plate, right, So I think that
was color and movement, and I think that's been misportrayed.
(13:27):
She made individual beef Wellington's and she wouldn't have had
ticks or crosses on them, but you would have been
able to distinguish. You wouldn't need to have a plate.
It's what's on the plate, not the plate.
Speaker 2 (13:38):
Very interesting, good point, but I'll be checking carefully if
I having get served beef Wellington and the plate's different,
that's for sure. But most of us are trying to
work out did she do it or did she not
do it? But the barris for the defense barrister's job
is very different. It's about whether there's any doubt. Explain
that difference.
Speaker 4 (13:55):
In any criminal trial, the judge will tell the jury
right at the outset that the fundamental difference between our
system and say North Korea Iran is that the accused
person is presumed to be innocent. They don't have to
prove the innocent. The prosecution has to prove their guilt.
The jury actually is the safety valve in the legal system.
(14:19):
Police come at it with police think, please commit these
cases with police think. So a police officer will conduct
they conduct interviews in very much the same way, and
they will conduct things in the same way, and they
have their They're like a one eyed football supporter.
Speaker 1 (14:35):
I know.
Speaker 4 (14:35):
They are very very good and industrious and terrific investigators
in Victorian police, and there's some pretty average ones. But
police have a police view about the case. So what
they will do is they will be interpreting through that lens.
What the defense counsel has to do is to say,
(14:56):
I don't have to prove black is white. I don't
have to prove my client is innocent. What I've got
to show is there is a reasonable doubt about the
prosecution view. And so the standard line of attack will
be the police have been a bit one eyed and
how they've gone about their investigation. They started out thinking
she was guilty in it. They've tried to fit Cinderella's
(15:18):
slipper on the ugly sister. What they've done. But here
in a circumstantial case. And I can think of a
ripper actually that I was involved in. A fellow called
Peter Beatos, the silver gun rapist. He charged with eighteen rapes.
The man was attired in a balaklava and had a
silver gun and nothing much else, and he raped women.
(15:43):
And in those days they didn't have DNA, so they
had eighteen different rape cases, and nowhere were saying the
coincidence is that the one person did the same, and
they pointed to various things in a circumstantial case. In
the offense case, all he had to do is find
have a reasonable doubt about one of them, because then
(16:04):
if you had a doubt about that, a doubt about
the lot. So in a circumstantial case where you're relying
on post defense conduct, wearing white trousers, which is part
of the theory, why would you get.
Speaker 1 (16:16):
Diary would you wear white trousers.
Speaker 2 (16:20):
That they're in Patterson who claimed she was ill, also
having eaten some of the beef. Wellington also and that
she claimed that she'd had gastro and wore white pants.
Speaker 1 (16:28):
But these are arguments.
Speaker 4 (16:31):
They're arguments, and their arguments made by people who have
seen that through the lens that she's guilty. The fact
is there is no real definable motive, right, There is
no motive.
Speaker 1 (16:41):
These are good people. I mean, there's no personal beef whatsoever.
Speaker 4 (16:44):
Is the most no motive. There's no motive, and if
you apply ordinary common sense and the plate thing are furfy.
Therefore panicking afterwards when people have died. I mean all
of us have got children, in my case grandchildren. You know,
you'll see how quickly people who took the chocolate biscuits
are not me. This is little Johnny wiping the RUMs
(17:05):
from you think, because their first reaction is to avoid
the conflict. So I'm not so hypnotized by post defense
livest and I think an intelligent jury and you need
a Monday morning jury.
Speaker 1 (17:18):
What's the difference.
Speaker 4 (17:19):
Well, you need a Monday morning jury. That is, you
need the brightest of the bright to run a case
like this. You don't need a Wednesday jury. We've got
the dregs of all the ones and the others that
knock back right, So you need an astute jury.
Speaker 1 (17:32):
You need a trial by a judge alone.
Speaker 2 (17:34):
I was going to say, was that a potential risk
choosing a jury trial, or was that.
Speaker 4 (17:39):
They had no choice way because in Victoria, unlike other
states in Australia, we don't have that possibility of having
a trial by a judge alone. And a trial by
judge alone works excellently. When you have a person who's
been subject to a lot of bad publicity, so people
have preconceived views on the photos. Aaron Patterson was always
(18:00):
portrayed as an overweight, fat, mean looking woman. You don't
know Aaron Patterson, whether she's a charming woman or not.
But you see those photos and the photos that are
constantly played, I mean, are they kindly far from it?
This woman was blackguarded right from the start, right from
the start, and it's.
Speaker 2 (18:20):
Really a feature of Australian trials involving women where their
demeanor is disproportionately held up as evidence of guilt.
Speaker 4 (18:29):
Why were the Northern Territory Police so focused on Lindy
Chamberlain And if you go back and analyze that case,
they thought that she didn't react in a way that
a mother would because she sat down and prayed quietly,
and therefore they did there's something dodgy about that, just
like the doctor in this case who thought there was
(18:49):
something dodgy about her reaction.
Speaker 1 (18:51):
Well, doctor Chris Webster.
Speaker 4 (18:53):
Yeah, at the hest of light embarrassment and upset and
all the rest of it, and somebody jumping to conclusions
Lindy Chamberlain was prejudged, and the photos of her and
the way she was portrayed and Aaron Patterson was blackguarded
in the press.
Speaker 1 (19:08):
If you look at the photos now, they're horrible. They
are horrible, And.
Speaker 4 (19:12):
The reality is there's always a real chance here at
them that a real misjustice has happened.
Speaker 2 (19:18):
Because we've also seen the normal body language experts come
out and they're analyzing her medio appearances and the police
interview and so forth.
Speaker 1 (19:26):
And they don't know, they don't they don't know. It's
pseudo science, isn't it real? Pseudo science? It's crap.
Speaker 4 (19:32):
And somebody jump into conclusion, you know, and I know
that when you jump to conclusion that doesn't mean you're right.
You're often wrong when you jump to them like somebody
who forms an impression. The reality is that one of
the people survived, and the elderly person survived, a much
younger person would have a greater chance of survival. And
(19:55):
if you start thinking in those ways rather than saying, well,
how comes you wore white pants?
Speaker 1 (20:01):
Oh, that's a bit more. Ah, that's very dodgy. Well
that's right.
Speaker 2 (20:06):
And I think the August five police interview really forms
the bulk of the Crown case where they tied her
to a story which was riven with lies. And I
take your point about how people panic, and she was
certainly panic and is that about that? But you see
it in the movies where people say, oh, we should
go to the police.
Speaker 1 (20:23):
Oh, they won't believe us.
Speaker 2 (20:24):
So they make up a silly story which actually brings
them undone. So the police were very very good in
the interviewer in tying her to a story which had
these falsehoods. They began with what she said to doctor
Chris Webster at the hospital that she bought the mushrooms
at Woolworths. It continued with do you own a dehydrator?
Speaker 1 (20:42):
No.
Speaker 2 (20:43):
There was also lies about foraging for mushrooms and really
in her relationship with Simon's family. There's a bunch of
things there, but they're all circumstantial.
Speaker 4 (20:51):
I don't really want to comment on the case because
I did have some involved in It would be wrong
of me. Sure, I do say this, I said to
you a moment ago. Police approach things in a police
interview and skilled interviewers start, they will have in their
mind the reasons why they're suspicious, so they will ask
the accused person to give them a version. Then they
(21:12):
will go through that version and pick it to pieces,
and then they'll put their version. Now that's how they
do it, but they're doing it as a skeptic, as
a skeptic, and what they're doing is then they're latching
onto something, whereas people's reactions and in your ordinary everyday life.
(21:32):
Just last night, my wife said to me to put
the bins out, and I knew she was in a
bad mood, and I said, of course, they thought bugger.
I had to wait until she went to bed to
sneak out and put the bins out right, because sometimes
it's easier to avoid a problem. And I think, Adam,
(21:56):
what will happen in this case, has happened in Lindy Chamberlain,
has happened in these other circumstantial evidence cases, as will
happen in Dawson and so on, is that people will
go over and over, they will chew the bone on this.
And I think you'll find that once the kind of
mass mob hysteria of the evil erin Patterson with the
(22:18):
horrible photos and the liar and she was nasty to
a mother, but all these terrible things they're saying about it,
Once that dies down, Lawyers and people like yourself will
start revisiting the carcass of the crime, and I think
there's going to be more questions and answers.
Speaker 2 (22:35):
Personally, I always felt on the way through the evidence
that the motivation was weak, although I've seen people get
murdered for less, but in this case, he was a
person with no history of this sort of stuff with.
She doesn't have prior convictions, none, none, And here were
these nice, decent people coming for lunch and this event
takes place. But where was the moment where you go Aha,
(22:57):
that's the reason why. And I felt this way all
the way through until the jury then retired for its verdict.
I thought, I reckon, they're going to find her guilty.
How did you feel?
Speaker 1 (23:08):
Well?
Speaker 4 (23:08):
I hadn't followed the trial in that sort of detail.
But the thing that I was extremely curious about. In fact,
I made an inquiry as to the occupations of the jurors.
I wondered what they were, because I was intrigued by
the fact that they weren't asking questions. And you don't
know what goes on inside the jury room, and the
(23:29):
only way you'll find out, I mean, the judge has
a bit more intelligence because his staff will report on
the vibe. But it's the questions that give you the answers.
But there was stony silence from the jury room as
they are apparently were methodically going through their task. Had
there been division within the ranks or worrying about an
(23:49):
aspect of proof, that have asked a question, and the
longer it went without the question. And I had a
number of my colleagues, because I did have some preliminary
involvement in the matter, ringing up and saying what do
you think? And I said, hmmin, this jury's very methodically
going about things. It looks dangerous for the defense. I
(24:11):
didn't know, but that's was my hunch.
Speaker 2 (24:13):
It's your experience tells you that. But it was also
noted that the judge spent a long time directing the
jury on what was admissible, what was not, and how
they should regard evidence. And it could be said that
he did his job very very well. Therefore there weren't
those critical questions left.
Speaker 4 (24:31):
Adam, most people you have a lifelong not only history
involved in the criminal lord, but a lifelong interest in this.
Most people find it very difficult, whether they're a university
professor or a tram driver to sit in one seat
for day after day and listen to people talking. Now,
when the witnesses are giving evidence, there's a certain theater
(24:53):
about that. But when the barristers are talking, or when
the judge is methodically going through the jury charge book,
in going through each post offense conduct edward's lies, whatever
it might be, explaining all these things, it's hard work
and most people, untrained people don't pick that stuff up
(25:13):
at first. Go what's normal to you is not normal
to the jurors. That's why their occupations are kind of
important to me, to any defense lawyer, rather to understand
what their capacities are. If you pick an average jury,
not this jury. I mean, I just finished a rape
trial on Monday.
Speaker 1 (25:32):
How's it go? Hung? Jury?
Speaker 4 (25:34):
Believe it that it was an interesting case. But on
that jury, like many jurors, there were three or four
jurors who after one or two days sort of weren't
that interested. That's what it did over and done with.
They didn't make notes. They had a jury book with
the exhibits and things. They didn't bring that in when
they said please look at exhibit five, just looking up
(25:56):
at the ceiling. So you start with a number of
passengers in your average jury, there were some passengers then
you're going to have.
Speaker 1 (26:05):
And you don't know who they are.
Speaker 4 (26:06):
The dominance usually red faced men or something like that,
but they could be red faced women. The dominance. They
can easily annoy the others because they'll jump to conclusions.
And then you have the studious note takers, so you
want to know what the occupations aren't and you will
actually tailor your presentation of the defense to your jurors
(26:30):
because you will talk to the jurors. So if this
one's a school teacher, or this one is a social
worker in aged care, you might say to them, well,
you know how people may get a little bit funny
when they get old and they don't always remember things
and they misinterpret things. Oh, you know, you'll tailor your
case a bit how you present it. These are all acquired, teachable,
(26:53):
learnable skills that defense and prosecution lawyers have, as the
prosecution will tailor their case.
Speaker 2 (26:59):
Yes, and do you find in a high profile case
like this, where there has been a lot of meeting,
almost impossible to find a jury that has not had
some exposure to the facts. Do you find that they
walk in there with preconceived ideas, and you've got to
change them.
Speaker 4 (27:13):
Of course they do, each and every one of us,
no matter how fair minded you are. We have conscious
and subconscious preconceptions and biases. And if you are a
union psychologist, you'd go back to the archetypes, the evil,
(27:33):
which the vestal virgin, the wise old man. These are
common archetypes which come from ancient Rome Esop's fables to
modern psychology. And these are all inherent and they are
inherent no matter what culture you come from. So the
archetypes and these are all light, lurk and lie in
(27:55):
our preconceived, sometimes unconscious bises. So how do you deal
with that as defence council too, Well, that's why you're
looking at the type of makeup of your jury becomes
very important. But also you have to deal with it.
Sometimes you've got to embarrass the jury into being independent.
Speaker 1 (28:14):
How do you do that without risking losing them?
Speaker 4 (28:17):
Well, you say to the jury, when you sat in
court you heard the accused man charged with rape, or
when you came to the court and you saw the
accused man of the lot, you'd say, I wonder what
he did? And then you heard rape, thought, oh, my god,
I'm in a rape case and this man's a rapist.
You say to the jury, if you were thinking that line,
(28:39):
you'd already made your mind up subconsciously. But you were
given an option by the judge to excuse yourself at
the start of the trial if you couldn't deal with
this sort of case. So the court assumes that you
were independent, even though you might have a prieve conceived
view that you have said, I volunteer by not asking
(29:02):
for an exception. It's particularly right. It used to be
more in cases you'd have to work harder. I'm an
older barrister. When you had my Italian migrants, they all
carry knives these day, guys. You know that these preconceived
that the old skippies had. So you have to sometimes
embarrass durors into being independent, and do you have to
(29:22):
remind them? And it starts and begins with the presumption
of innocence. The prosecution has to prove its case beyond
a reasonable doubt. Forget try to prove your clients innocent.
The jurors have to understand what their role is and
if you don't tell them, then you've failed in your job.
Speaker 2 (29:37):
I've seen more than one defendant who's got en off
say thank God for the jury system, and that the
jury system gets.
Speaker 1 (29:44):
It right more than it gets it wrong.
Speaker 4 (29:45):
Would you agree with that, Yes, I do those who
work within the system. No, it's not perfect, but it's
better than the alternative. And as I described it before,
the juris system is the safety valve in the administration
of justice that don't always get it right. And I
think the jurors in a high profile case, whether it's
(30:07):
a biky, whether it's a cardinal or the Catholic Church,
whether it's a fat woman who's being poisoned, having the
juror's potential jurors poisoned daily by photos of her and
pictures of her, these people have a harder road to
travel and harder road to get an independent dura. I'm
(30:27):
not saying these jurors weren't independent her trial. Of course,
there's no evidence that at all. In fact that there's
been so much scrutiny that there are a couple of
farcical moments where it was discovered that the media was
in the same hotel as the jurors. But apart from that,
I think they were sequested well and they've done their
job beyond approach. Absolutely, absolutely, and nobody would say to
the otherwise.
Speaker 1 (30:47):
But they have a hard job. Their job is harder.
Speaker 4 (30:50):
I mean if they're acting for the head of the
common Sharos or that vers's the cardinal and the Catholic Church.
When everybody's saying, well, you will know these priests are pedophiles,
and they're all saying we all know, and Patterson's are
poisoner and look at it, fat older which woman.
Speaker 2 (31:06):
Yes, you know what it's like to have unpopular clients.
You represented Mick Howie of the Commentary as you mentioned
that in the Sydney Airport melee.
Speaker 1 (31:13):
How is that?
Speaker 4 (31:14):
Well, you know these cases, aren't I've represented McMurray in
the These people aren't. They're not your best friends, you
don't want them are your best friends. In fact, it's
harder for the barrister if you like the client. It
best to keep well neutral of the client. But acting
for in a notorious case presents its own special problems
and they have to be dealt with.
Speaker 1 (31:34):
They can't be ignored. I can't be ignored in this case.
Speaker 2 (31:40):
What would those special You've actually mentioned it, the preconceived
ideas about Aaron Patterson and the archetype that's right.
Speaker 4 (31:47):
And then the constant portrayal of it. And I think
the defense did a very good job in trying to
limit the damage the press were doing prior to the trial.
And obviously wasn't at the trial, so I can't comment
on the trial.
Speaker 2 (32:01):
But we go back to that critical moment where they
decided to put Aaron Patterson on the stand to tell
her story.
Speaker 1 (32:06):
Big decision, big.
Speaker 2 (32:07):
Decision, and I think by all accounts, she did reasonably well.
She certainly didn't collapse in the box and provide the
coupdigraph of the prosecution.
Speaker 1 (32:15):
Did she.
Speaker 4 (32:16):
I'm lucky in the sense that I'm an older barrister
and therefore I've seen a bit more and I really
when I started, one of the great criminal trial lawyers
who had spectacular success was Frank Galbi. He wasn't embarrassed
her sister. Mister Frank, as we all called him. We
used to go and watch him. Mister Frank said, you
(32:36):
should always called your client. That should be a starting
point because the jury would like to hear their story.
Barristers are trained by the Australian skill of advocacy in
barrister training to be far more cautious these days, But
mister Frank said, it doesn't matter how they go, as
long as they hold the line. They're not actors, they're
(32:57):
just ordinary people. And that's why there's a lot of
wisdom there.
Speaker 1 (33:02):
I mean.
Speaker 4 (33:03):
But mister Frank practiced in a very different day to
the days now. I mean, he used to talk about
our Lord and Savior Jesus Christ was taken by the
police of Jerusalem and interrogated.
Speaker 2 (33:13):
You also learned at the feet of a great criminal solicitor,
Bob Vernon here in Melbourne. A few of his cases
were very and he was a guy, that very dashing
individual ran with the hounds and the hairs at times.
Speaker 4 (33:25):
Oh very much, say, with the black leather overcoat and
the little Clark gable mustache. But he was an old
fashioned blood and thunder barrister. This was in the days
when you're doing robbery and murder trials, where every hand
was turned against you. There were no signed records of it,
of you, no tape records of interview. Police verbals were
very common. Police those days were very different to the
(33:45):
way they are now. And in those days, when you failed,
you went to John for twenty five years, and those days.
I mean murder trials lasted four or five days. I
did murder trial at the murder trial.
Speaker 1 (33:55):
In a week, and this lasted weeks and nine weeks
I think in total.
Speaker 4 (33:59):
And the judge was so careful, you know, everything's in
those days. It was just up and at them, you know.
Speaker 1 (34:05):
Yeah.
Speaker 2 (34:05):
I did hear one story, maybe apocryphal, about Bob Vernon
where one of his junior solicitors was being threatened by
one of the clients who was unhappy with the service
and had assaulted him, and Vernon turned up at this
client's door and shot him in the foot.
Speaker 1 (34:18):
I don't know if it's sure or not, but it's
a good story.
Speaker 4 (34:20):
Bob Vernon deserves a book. Bob Vernon was a very
complicated and unusual character. And somebody was talking to me
about a case that I was in with Bob Vernon
only yesterday, which involved the fixing of race meetings at
Mornington and Flemington, and Vernon ran with the hairs and
(34:41):
hunted with the hounds. He was a very different and
complicated man.
Speaker 2 (34:44):
Do you find you have to do that as a
barrister where you're where it's not your role to either
be a friend of the client, or determine their guilty
or innocence, but to represent them, how do you approach
that whole question.
Speaker 4 (34:57):
Well, these days it's a little bit more complicated than
it was. Nowadays, the idea is always to keep the
desk between you and the client. Keep the desk between
you and your client. That's it. They're not my friends.
I don't have to go to dinner with them. I
don't have to like them. They don't have to like me.
These days, clients expect a bit more client management, a
(35:18):
bit more hand holding. But you've got to be very
careful because clients are treacherous their charge with the criminal offense.
This dominates their life. They're not going to the dentist
to get a filling. They might be going to job
for the next eight years or ten years, or twenty
years or thirty five in this case, or thirty five
in this case. So you can't say, oh, the clients
are friend of mine. You've got to treat them very professionally.
(35:40):
You've always got to keep the desk between yourself and them.
And I always get my clients to write their instructions.
I asked them to read the record of video and
comment or ask them to tell their side of the
story and under theatic legal instructions to Philip Dunnan's on,
so you get their version, so you're always sort of covered.
Nine out of ten people changed, or more than nine
(36:00):
out of ten people charge at criminal offenses plead guilty
more than nine more than ninety percent of the less
than ten percent who pleaded not guilty. A number of
them clearly have real problems, but for all sorts of reasons,
they won't even contemplate a plea a guilty, and the
Crown can be realistic in plea bargaining and negotiation, so
(36:24):
that's always something that should be explored. But there are people,
particularly grandparents charged with sexually enlisting their granddaughters. They'll never
plead guilty. They'd burn on the cross rather than say
they did it. So you've got to manage your client.
You had to point out the pitfalls and then act
on their instructions.
Speaker 2 (36:45):
It certainly is a high stakes moment because running to
trial is expensive and if you take up the court's time,
they're not going to look so kindly upon you when
it comes to sentencing. Aaron Patterson is looking at thirty
five to forty years at the moment, which is what
Carl Williams got for murdering eight or ten people. And
(37:05):
I guess there's a moment when you're dealing with your
client and you obviously you can't speak for Aaron Patterson.
That was a client confidential conversation, but there must be
moments when you've got a client where the circumstantial evidence
is so great in a murder trial that a manslaughter
plea with the crown makes sense.
Speaker 4 (37:22):
Always, always has to be discussed. I remember one of those.
It's what do I call Plan AM Plan B? And
I remember when I was acting for Carmen Lawrence, who
was then the Minister for Health and the Keating government,
and she was charged with perjury and we sat in
my chambers and she was full of fight and confidence
and she gave her instructions and then I said, well
(37:43):
we should also think about plan B. And she said
what's out? I said, what happens to if you get
fan guilty? Well she just about passed out at the table,
and she said, why don'd be fan guilty? And I said,
because I can see immediately these problems in what you're
telling me. And she was a very clever woman. Carden
Lawrence a very clever. It is a very clever one.
And I said to her, you formed a view on
(38:06):
your recollection, but the human memory is not a tape recorder.
The human memory is not a camera. I'd be greatly
assisted if you could go away and do a little
paper from me on human memory. Because she's an academic.
She came back with one hundred and eighty page document
and she said, you know, maybe I can't rely on
(38:28):
my memory. I said, nay, you're talking. Don't lock yourself
into a position where you might think, because you're so
horrified by the allegation of telling lies, that you're being
adamant on the rest is history. I'm mean, there's a
cigarette verdict. The jury went out, had a cigarette three minutes,
came back and I quit it. So clients that have
(38:51):
to be managed and sometimes but.
Speaker 2 (38:54):
It's a hard discussion, particularly when the police case, as
in Aaron Patterson's trial, seems to be very strong. The
circumstantial evidence is there. I thought, well, listen to the layman,
it was, I mean to you, you're seeing the rational alternative,
the rat You see the rat the rival alternative theory.
Most of us see the archetype that you're talking about
(39:15):
where she looks guilty the post conduct.
Speaker 4 (39:17):
Therefore she wore a white pad, she must be guilty
because she wouldn't wear that if she had diarrhea, or
she wouldn't tell a lie about the dehydrator.
Speaker 1 (39:27):
It's kind of nuts.
Speaker 4 (39:29):
It's almost proof of innocence, the fact that she'd lied
about the dehydrator. How so, because it's such a silly lie,
it's a nonsensical lie. It's a panic you eye, and
she kept the manual that if she had mixed the
death cap mushrooms into the dehydrator, and then she hid
(39:50):
the dehydrator, didn't hide the manual. And when did she
hide the dehydrator when the balloon went up? Right, It's
something you could turn to your advantage rather than it's
such a silly lie. It shows in a way she's innocent,
because if she is the evil, conniving person, she'd got
rid of all of this stuff a long time ago,
(40:11):
and it would be very simple thing to say, Actually,
I'm a forager, and I went out in my forage
just around those oak trees over there, and I found
these mushrooms, and I thought they'll be just wonderful, natural,
not polluted not made with chemicals, not made in a
factory somewhere, because I wanted my guests to have a
(40:32):
wonderful dinner, and I gave the natural mushrooms. The fact
that she told her live about the dehydrator, I would
say as an indicator of innocence.
Speaker 1 (40:40):
Very interesting.
Speaker 2 (40:41):
I think good way putting it, because really, when you
look at it, it would have to be one of
the dumber murder plots if you were to put one together,
because there's only one possible coproate.
Speaker 1 (40:50):
Nay, you're cooking.
Speaker 2 (40:52):
You should have been on the juror because all the
evidence pointed towards her, the lies seemed to point towards her,
And I think it was a very difficult assignment for
the defense in this case.
Speaker 1 (41:04):
And therefore they were very careful.
Speaker 4 (41:06):
Analysis was and would have been made by a highly
skilled and competent legal team.
Speaker 2 (41:11):
And she spent a fortune on this. I mean was
she inherited something like three million dollars? I think you
wouldn't get much change in this sort of a murder
trials say.
Speaker 1 (41:19):
Is that was that right?
Speaker 4 (41:19):
I'll tell you what, in a case like this, money
doesn't matter. You'd do it anyway. Barristers would climb over
broken rocks to do this case right.
Speaker 2 (41:28):
I remember I did a story and a guy called
rober John Adams, who'd murdered a woman called Mary Louise
Wallace back in only eighty three. He posed as a
police officer, met her in a nightclub, took her out,
raped her, murder, to dispose of the body, and he
for many, many years maintains his innocence. He was finally
convicted and got a last sentence, and the question now
(41:49):
came up of where is the body?
Speaker 1 (41:51):
Can you show us where the body is? You can
get parole. You aren't that old.
Speaker 2 (41:53):
I went to visit him at Sessnock Jail and I
sat for two or three hours with him, trying to
get this question out of him. The answer out, where
is Mary's body? Because her family wants to bury her.
And you know you'll get out of here if you'll
say where the body is. And he said to me, listen,
I'm not going to change my story, but look at
it this way. I met a woman shortly after Mary disappeared.
I married her, I had children with her. They've spent
(42:15):
their whole lives in the knowledge of my innocence. I
spent their entire inheritance on the defense. Do you think
I'm going to turn around now and say yes, I
did it.
Speaker 4 (42:24):
It's like when that fellow who was alleged to have
kill Dol Mackay was on his deathbed. It was I
think Rondol's or Charlie Bisin. One of those bokes went
to scene and they said, the grandchildren of Mackay and
the family need to know. Tell us now who We
won't say anything till after you're gone. And he said
(42:45):
it wasn't me that that little job was now the
side of town.
Speaker 1 (42:49):
James Baisley, I believe Jimmy machine Gun Baisley. Yeah, we
went over the wall with Ryan and Walker. That's right.
Speaker 2 (42:55):
And we've got the same situation with Bradley John Murdock
with the murder of Peter Falconio.
Speaker 1 (42:59):
It's interesting too.
Speaker 2 (43:00):
He's on his deathbed now palliative care and he's not
opening up either.
Speaker 4 (43:04):
There's some pretty unusual stuff in that case. Don't worry
about that. There's some big question marks there really is.
There is about Murdock and the drug running and the
connection with falconions on.
Speaker 1 (43:14):
But anyway, there you go.
Speaker 2 (43:15):
And Derek Ernest Percy he killed numerous children. He went
to his grave not admitting to what he did. Why
don't defendants make these deathbed confessions?
Speaker 1 (43:26):
What's in it for them? What's in it for them?
Speaker 4 (43:30):
And when you talk about Percy or duw passing, these people,
they're psychopaths so anyway, so you can't You can't evaluate
them by any common sense reasoning or russianing nationale. You
know these guys, well, I've only met a few, but
you've probably met a few more. But you can't apply
ordinary logic to them.
Speaker 2 (43:48):
You can't. And with Aaron Patterson, this lack of motive
was troubling for the media as much as it was
for the prosecution, because there was a lot of time
spent now going back through her history to show.
Speaker 1 (44:00):
Make Cinderella's slippet fit on the ugly.
Speaker 2 (44:02):
Says correct, the irrational behavior, the nonsense call, the lying,
and so on and so forth.
Speaker 4 (44:06):
But if you stop and talk about it and you
say it like that, Adam, don't you see the problem
and all of that? Of course you see that she's guilty.
She's the archetypal, fat, ugly ole witch. Huh over the caldron,
She's the evil witch. Oh, she was nasty to a mother.
H Oh, she swore at somebody at the air traffic control.
Oh really, well, I adam shand and I feel it done.
(44:29):
I'd never sworn anybody at work, not.
Speaker 1 (44:32):
This week anyway. So the archetype comes to play.
Speaker 2 (44:36):
Yeah, it's like my grandfather Jack Shan Casey. He defended
a woman called Shirley Beeger back in the fifties who
had a cheating, nasty boyfriend, Arthur Griffiths. She went up
to the Checker's nightclub and sat there in a cab
outside with her mother with a twenty two rifle. He
walks out shoots him between the eyes. And my grandfather
saw her as that she was the vestal virgin. She
(44:56):
was a model. She was the one that people couldn't convict,
And over time he was able to introduce this little
bit of element of doubt that perhaps Arthur reached in,
grabbed the gun and caused his own demise and she walked.
Speaker 4 (45:10):
What about Gloria cropeh When mister Frank went on the
view of Miss Australia's household where her mother and another
move family were charged with murdering the father and delisted
his daughters and they're walking around looking at the house.
The locus and quo was pointed out from the peepholes
(45:33):
that he bored. The father had bored into the girl's
bathroom so he'd watch his daughter's showering and masturbate. And
mister Frank said Terrence to Terry forest Nast, judge the jury.
When the jury see this, our client will be acquitted.
Speaker 1 (45:47):
And he was.
Speaker 2 (45:49):
And what about one of the early cases, Margaret Francis
Glashen Do you remember that one.
Speaker 4 (45:54):
Oh, Margaret Francis Glasheen, that's a long time ago that
you've done your homework.
Speaker 1 (45:59):
I have, yes. That was actually the very first criminal
trial I.
Speaker 2 (46:04):
Did, because she was a prostitute who was accused of
luring a punter in a situation where her mind could
rob him.
Speaker 4 (46:09):
The badger game it's called, and the defense was identity.
And I was a young barrister and I asked far
to him and equipped. But the victim had been to
the factory breakup and drunk an enormous amount of beer
and cognac and whiskey, and he drunk as a lord,
and on his way he thought, just killed her to
get a woman what he wanted a woman for.
Speaker 1 (46:30):
In that state.
Speaker 4 (46:30):
Nobody was quite sure, but he finished up in Fitzroy
with Margaret Francis Klasheen, and I thought, I was cooking
with gas. How could you identify this up for all
that and you're sek and you're vomiting and the add
and you went to the He said, well, I don't
know about this, but all when I walked into the room,
I saw the black Virgin of Kracker on the mantelpiece,
quick fumbling through the papers, and there on the mantelpiece
(46:53):
in her room in the boarding house in orphics Roy
was the black Madonna. The defense suddenly had to do
a bit of a U turn then and went from
identification to duress. We were coerced into.
Speaker 2 (47:03):
Doing this, right because you inadvertently put on the scene
and they yet to change.
Speaker 1 (47:07):
Tack up up good identification. Gage. If I kept asking,
are you're sure about that? Yes, I couldn't be. And
then so yes, that's a long time ago in a
different galaxy, that's right.
Speaker 2 (47:19):
And she was finally quitted. So you did your job,
and you pivoted magnificently. Now I think all eyes are
now on the appeal for Aaron Patterson. She's not been
sentenced yet, so she'll have twenty eight days from that
moment to lodge and appeal. People are already fumbling around
to find grounds for appeal. What's the process from here?
Speaker 3 (47:38):
For Aaron Patterson, the process is that the legal tea
will have already had a view as to whether the
judge is misdirected or left something out, or overemphasized something
or for illegal they need to establish a legal error
and they will already have a checklist of things that
they These are very.
Speaker 4 (47:57):
Experienced people and so they'll have a checklist. On the
other hand, there's a problem because this judge is a
very experience judge and a very thorough judge and a
very careful judge. Doesn't mean he won't make a mistake.
But his wig is gray, not white. You know, he's
been around the block, so he knows what he's doing.
(48:17):
But that doesn't mean he didn't make a mistake.
Speaker 1 (48:19):
But they'll be.
Speaker 4 (48:19):
Looking for one. But they will go against the weight
at the evidence. But with the client having given evidence,
when you run that as an argument, you have some
problems because the court will said the jury formative view
of the witness. So it all plants course.
Speaker 2 (48:35):
Because in the movies, there's that moment of aha, fresh
and compelling new evidence. How often does it actually come
up between a trial and an appeal.
Speaker 1 (48:44):
Hardly ever.
Speaker 4 (48:45):
Actual dream it's like the dream of every young footballer
to kick the winning goal in the last fifteen seconds
of the Grand final.
Speaker 1 (48:54):
It's the dream to find the nugget of gold, the rat.
Speaker 4 (48:59):
The rat's always there, but you need a compelling piece
of evidence. It happens rarely. It always happened for Perry Mason.
He was able to pluck it out of the sky.
But in real life, in the daily grind of the
administration of justice, a sausage machine of the justice system,
that's very rare.
Speaker 2 (49:19):
Sometimes it's about limiting the damage in the sentencing. You
make some mitigating argument. It might be around mental health
or some aspect of the trial.
Speaker 1 (49:27):
I don't really know.
Speaker 4 (49:27):
But when you look at the offense and then the offender,
they're the starting points in time.
Speaker 1 (49:33):
But this is a complicated and difficult plan because right
now things look pretty black. She'll need be yes. It
is it's they're going to earn their money now.
Speaker 2 (49:43):
A premeditated case where which has been proven. But she
set out, she did the research, she foraged for the mushroom,
she got all the gear, she made the beef Wellingtons.
She tried to lure her husband there as well, apparently
so there could have been another victim as well. And
at the end of all this, how on earth do
you try.
Speaker 4 (50:00):
These words to show how conditioned you are? You see,
I'm a journalist. Yeah, but lu husband, you know this
is the grand case. I mean, why not have your
family and friends around?
Speaker 1 (50:10):
Why not? Why not the dinner?
Speaker 2 (50:14):
I don't think that beef Wellington will behind on the
list of most people's menus from here on in. But overall,
do you think this is one of those cases that
will make law? Are we going to see something that
goes like pell.
Speaker 4 (50:26):
But it'll make it will make controversy. And what will
happen because just like Lindy Chamberlain, just like we'd like
the rest of them, people will in a more cold
blooded way analyze the disadvantages that this unfortunate woman had
in running a trial. She didn't come independently before the
(50:47):
court and be judged independently of prejudice or bias. And
I often tell juries, if you look at the courts
throughout Victoria, they often have the statue of justice. Who's
a woman who's blindfolded, so she has no preconceived ideas,
and she has the scales of justice mone and the
sword of punishment. The other this woman justice wasn't blindfolded.
(51:11):
This woman was vilified on day one, very heart verd
to get a fair trial. And so you will find,
I think, just like a linear Chamblain, time will pass
and that's the dust settles. People will look at this
a bit more dispassionately, like a couple of things which
are independent of any conversation or instructions I had in
(51:32):
this trial. But I point out it to you, like
it's not the color of the plate, it's what's on
the plate. It's like the dehydrator. The timing of that
is an indicator of innocence, not an indicator of guild.
Speaker 2 (51:43):
Fascinating, philm Would you hazard a prediction as to the appeal?
Speaker 1 (51:48):
I know I can't. I wouldn't think you would. Philip.
Thank you so much up your inquiries and your good works.
Speaker 2 (51:54):
You brought a fascinating viewpoint to this because I think
there's barely a person in Australia or internationally who would
have thought there was any alternative or that she had
been vilified. So I think it's a really valuable point
and it really goes to the heart about justice system
that reasonable doubt is a very good.
Speaker 1 (52:09):
That's why the jury is the safety help. They sometimes
get it wrong, though.
Speaker 2 (52:12):
Fantastic. Well, thank you Philip Dunn. That's Philip donecasey fascinating case.
I don't know what you thought going through the trial,
but I always felt the Crown was struggling for a
motive and that the overwhelming circumstantial evidence of Aaron Patterson's
guilt would wagh against her, and particularly when it came
down to the final deliberation of the jury, I thought
she was cooked.
Speaker 1 (52:32):
I don't know what you thought.
Speaker 2 (52:33):
Maybe you'd like to share your thoughts with it you
give me an email Adam Shand writer at gmail dot com.
This has been real crime with Adam Shann. Thank you
for listening.
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