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A hotel bungle is at the centre of death cap mushroom killer Erin Patterson’s fight for freedom as her new legal team fleshes out seven reasons it says she was wrongly convicted of murdering her in-laws.
The 51-year-old’s new barrister, Richard Edney, told a panel of three Court of Appeal judges in Melbourne on Wednesday that an “inexplicable failure” to separate the jury from the public, prosecution and police during deliberations created a potential miscarriage of justice.
In the days after an 11-week-long trial wrapped up in Morwell in Victoria’s east in mid-2025, the court heard, jurors were sequestered for their deliberations in the same Traralgon hotel as prosecution and police involved in the case, which Edney said was a catastrophic and fundamental failure to comply with the rules.
He also raised concerns that members of the media seemed to know more about potential interactions between the jury and others at the Latrobe Valley hotel than the prosecution did, with no CCTV to ease concerns when jury keepers reported no contact had occurred with anyone outside the jury pool.
It was the first time in the state’s history, he said, this was believed to have occurred.
“Something has gone wrong,” Edney said.
“This wasn’t the case where the only possible accommodation was this hotel.”
Director of Public Prosecutions Brendan Kissane, KC, dismissed the claim, saying it had no substance.
He said while it wasn’t ideal and was perhaps nothing more than an accident, jurors had been housed on a separate floor and ate in a separate conference room to other hotel guests.
Kissane said he agreed with a July 2025 email from the trial judge that the bungle had occurred due to a shortage of accommodation in the district and that the arrangement was undesirable.
“No interaction [occurred]. If something went on … we would know,” Kissane said.
On September 8, now retired Supreme Court judge Christopher Beale sentenced Patterson to life in prison, with a non-parole period of 33 years, after she was convicted of the murder of her in-laws, Don and Gail Patterson, and Gail’s sister, Heather Wilkinson.
She was also convicted of the attempted murder of Baptist pastor Ian Wilkinson. The four had been fed beef Wellington laced with death cap mushrooms during a lunch at Erin Patterson’s Leongatha home in July 2023 but Ian Wilkinson survived.
Simon Patterson, the killer’s estranged husband, had also been invited to the lunch but cancelled the evening before.
In October, the DPP launched an appeal against Erin Patterson’s 33-year jail sentence, arguing it was “manifestly inadequate” for her crimes.
A month later, Patterson’s legal team filed an application to appeal her convictions and submitted there were seven reasons to quash the verdicts.
These included claims that Patterson had been unfairly grilled by Crown prosecutor Nanette Rogers, SC, during eight days in the witness box, that 35 errors had occurred in Rogers’ closing address, that large amounts of evidence should not have been put before the jury, and evidence from Facebook friends and Facebook messages was not relevant.
These reasons, the defence team told the court, caused Patterson a substantial miscarriage of justice. If the judges rule in her favour, Patterson could be retried.
Edney labelled the hotel bungle and other issues Patterson’s legal team has with the trial as catastrophic miscarriages of justice. The defence lawyers argued that while the killer had been asked too many repetitive and improperly phrased questions, other witnesses had not been grilled enough.
The defence said Patterson had been forced to testify because of the prosecution’s submission that she had lied to police. She testified for eight days, during which she tried to explain to the jury why her story had changed.
“She was compelled at that point in time. It compromised her right to silence,” junior defence barrister Veronika Drago said.
On Wednesday, Ian Wilkinson arrived at the court with his two daughters, Ruth and Elizabeth, by his side.
Seven members of the Patterson and Wilkinson families sat across two rows, with Wilkinson sitting in the front wooden court pew between senior homicide squad detectives Nigel L’Estrange and informant Stephen Eppingstall.
Seated closely behind Wilkinson was Don Patterson’s brother Colin, who took scrupulous notes, as he did every day of the murder trial in Morwell last year.
They appeared composed, as they were during the Morwell trial, as they listened to the defence argue that Erin Patterson had been treated unjustly.
Wilkinson rested his head in his right hand at times just behind Kissane, the state’s most senior Crown prosecutor and the man tasked with ensuring Patterson stays behind bars. On Thursday, Kissane will make the case that Patterson should die in prison.
If her current sentence is upheld, she will remain in jail until she is in her 80s.
Documentary makers, authors and podcasters joined mainstream print and television media in the crowd of observers in Melbourne’s Supreme Court building, alongside dozens of members of the public, some of whom had travelled to Morwell to watch the original trial.
Notably absent from the prosecution team on Wednesday were Nanette Rogers, SC, and junior barrister Jane Warren, who has since resigned from the OPP and is now a barrister in private practice.
The court heard Heather Wilkinson and Gail Patterson died on August 4, 2023, from multiple organ failure and altered liver function, with a diagnosis of amanita mushroom poisoning. Don Patterson died the following night from multiple organ failure.
Medical staff had determined the illnesses suffered by the three victims were unsurvivable, leading to their deaths from mushroom poisoning. Ian Wilkinson survived after spending several weeks in an induced coma.
In the end, it won’t be a country jury but three esteemed Court of Appeal judges – Stephen McLeish, Leslie Taylor and Peter Kidd – who will decide Patterson’s fate.
The appeal continues on Thursday.
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