By Kristian Silva and Stephen Stockwell for Mushroom Case Daily*, ABC
In Erin Patterson's trial, the jury will have to decide whether she is guilty of three counts of murder and five counts of attempted murder. Photo: Screenshot / ABC
The upcoming trial of Erin Patterson is shaping up as the biggest case Victoria has seen in years.
When people hear the ABC is making a podcast about the trial, there's one question they always ask - "Did she do it?"
Were Patterson's relatives deliberately poisoned with death cap mushrooms? Or was the Leongatha mother at the centre of a tragic, unfortunate accident?
Twelve ordinary Victorians will have the chance to provide the definitive answers to those questions, when they hear all the evidence and deliver a verdict.
Patterson has pleaded not guilty, with her Supreme Court trial set to take place in Morwell in mid-2025.
The pressure on the prosecution, defence and jury is likely to be immense. To get a glimpse inside their world, the ABC's Mushroom Case Daily podcast sat down with two leading Victorian barristers and a former jury member.
A case that's 'captured everybody's imagination'
The deaths of three lunch guests, the survival of another, an ongoing police investigation and Patterson's tearful denials outside her home made global headlines.
The alleged weapon of a beef Wellington with poisonous mushrooms added further intrigue to the story.
Barristers Nick Papas KC and Rishi Nathwani KC - who have no involvement in the upcoming trial - say they haven't seen a case quite like it.
"It's using mushrooms. It's almost prehistoric as an allegation," Nathwani says.
"It's just very odd and it'll be interesting to see how it unravels."
Papas, who has worked as a magistrate, prosecutor and defence barrister in a four-decade career, likens the public interest in the Patterson case to that seen when Cardinal George Pell was charged.
"This particular case seems to have captured everybody's imagination beyond what I would have expected," he says.
The opening day
The start of a murder trial can be nerve-racking. There is usually a large group of media at the court precinct, the accused person is placed in the dock and a jury is chosen.
In Patterson's trial, the jury will have to decide whether she is guilty of three counts of murder and five counts of attempted murder.
Nick Papas KC says it is critical for prosecutors to explain their cases clearly to the jury. Photo: ABC News / Kristian Silva
The prosecution team is seeking to prove Patterson is guilty beyond reasonable doubt, and will get the first chance to impress the jury with their opening address.
"Prosecutors are not supposed to be automatons who are dry, boring individuals, but they should not be prone to excessive hyperbole or excessive theatrics," Papas says.
"If I was doing it, there'd be a sense of apprehension, there'd be a sense of concern to ensure that what we say to the jury when we start the case is properly structured and correct … always focusing on the needs of justice."
The job of Patterson's defence lawyers will be to convince the jury that the charges can't be proved.
The defence team does some of its most important work towards the end of the trial, when it delivers a closing address and point out flaws or gaps in the prosecution case.
Nathwani says his bid to win over the jury begins on day one, when he tries to endear himself to the group and build a rapport.
"You want those people to buy into you and like you, and it starts from the beginning," he says.
"So you're trying to get them on board. Charm them, jokes, whatever it is, you've got to pitch it."
The 'rollercoaster' experience of a trial
The Patterson trial is likely to receive blow-by-blow coverage from journalists around the country and the world. But typically, most of what goes on in a murder trial barely makes the news.
Much of it is procedural, and some evidence from witnesses is needed to confirm undisputed facts or highly technical details, such as DNA or mobile phone usage.
Defence barrister Rishi Nathwani enjoys the tactical game of cross-examining witnesses. Photo: ABC News / Kristian Silva
It can be dry, but within seconds things can change if a key witness is called or if someone on the stand goes rogue.
"I tell every single client at the beginning and even on a good day, that a trial's a rollercoaster. And by that, I mean there's ups and there's downs," Nathwani says.
Papas says it's a prosecutor's job to be across the brief of evidence, which could potentially stretch into thousands of pages. The key is to "get it right" in front of the jury, Papas says, otherwise the defence could apply for a mistrial or use a mistake as ammunition for an appeal.
"Make sure all the evidence is led. Make sure we've got all the witnesses available. Make sure that we're able to explain to the jury the concepts and the issues in a way that is manageable and digestible," Papas says.
The art of cross-examination
An important part of a defence barrister's job is to cross-examine witnesses called by the prosecution. It's a tactical game to sow seeds of doubt in the jury's mind.
"Sometimes I'll spend a day just setting up a witness so they think they're winning and being really soft with them. And then just at the end of day one, starting to give them a bit of a tickle, and then by day two, we've destroyed them," Nathwani says.
Prosecutors allege Erin Patterson murdered her relatives using a beef Wellington laced with poisonous mushrooms. Photo: ABC News
Accused killers tend not to give evidence in their own murder trials, but it does happen occasionally.
The notion of a person opening themselves up to a barrage of questioning is a risk, Nathwani concedes, but sometimes clients want to show they have nothing to hide.
For a prosecutor, it means confronting an accused killer in front of the jury and the public. However, that's not how Papas likes to think about it.
"I'm struggling to remember a case where I've nailed an accused witness," Papas says.
"We have to remember that these people were there and we weren't.
"Even if an accused person tells lies and the jury says to themselves, 'I just can't accept a word this person has said', it doesn't matter. The prosecution has to prove its case beyond reasonable doubt."
What goes on inside a jury room?
Once all the evidence is completed and the lawyers have finished closing addresses, the jury retires to consider their verdict.
Sometimes it can be days or weeks until they return.
Under Australian law, jury deliberations must remain secret and jurors are not allowed to publicly discuss the case afterwards.
However the rules are different for jurors in other countries, including the United States.
In 2008, Sven Berger was living in Texas when he was called up for jury duty and picked to serve on a murder trial. The case involved a young man who shot a minigolf club manager during a botched robbery.
"We were given instructions not to talk too much during the breaks and to not discuss the case at all until it was time for deliberation at the end," Berger says.
For two weeks, Berger heard and viewed evidence, some of it graphic and confronting. But unlike in Australia, Berger's jury was tasked with deciding the penalty for the killer. They were given a choice - to sentence him to life in prison or the death penalty.
After 90 minutes, the mood in the jury room was "very depressed", Berger says. After talking it through, they unanimously voted to impose the death penalty for the killer, Paul Storey.
Seventeen years later, it's something Berger deeply regrets.
At the time he was aged 28 and was the youngest member of the jury. He said he lacked the courage to vote for the alternative.
"I'm not proud of it but I didn't have that in me," he says.
Storey hasn't been executed yet and remains on death row. Appeals have been lodged and Berger believes some of the initial evidence presented to the jury was misleading.
"I feel pretty sick about it," he says.
"It's always going to be with me. It's never going to go away. To some degree, I feel like a victim too. I'm not sure exactly how to describe that, but damage has been done probably to more jurors than just myself."
High drama as the jury delivers its verdict
After potentially weeks of evidence, a trial reaches its conclusion in a short, sharp and dramatic fashion.
The jury notifies the court it is ready to announce its decision. Within minutes, lawyers, family members, the judge, the media and members of the public rush in. The accused will either be brought up from the cells or will enter the courtroom like anyone else, if they are out on bail.
"You're on tenterhooks," Nathwani says.
"If we're nervous and anxious, imagine how the accused feels."
Berger remembers the decisive moment when his jury announced its verdict to impose the death penalty.
"The woman seated to my right began crying and I offered her my handkerchief, and that was all I could do. And I felt like she did. I couldn't really look at Paul," he says.
Sometimes, lawyers look for signs that could give away the jury's position. Nathwani says some believe a long deliberation bodes well for an acquittal. Or that laughter heard from the jury room suggests a cheerful group wouldn't deliver a murder conviction. On the flipside, jurors who enter the room looking nervous or avoiding eye contact could signal bad news.
"But who the hell knows?" Nathwani chuckles.
Papas agrees.
"I'm confident, having seen so many juries over my career, that I have no idea what juries are thinking," he says.
Reflections after a case
As a prosecutor, Papas says he tries not to get hung up on what the jury decides. For him, he walks away from a trial happy if he feels that he put forward the best possible case for the panel to consider.
Nathwani says he never likes to lose, but can only think of a few cases where he found it impossible to accept a jury's ruling against his client.
Both barristers say it isn't long before another brief lands on their desk, and it's time to focus on another case.
When Berger reflects on his time serving on a jury, he has some advice for anyone who is ever put in the same position.
"Whichever way you believe, whichever way you feel, you need to speak up if there's disagreement. You can't be quiet," he says.
"It might be intimidating. It might be scary. There might be people who are shouting, but this is someone's entire life at stake."
*The ABC's Mushroom Case Daily is following the trial of Erin Patterson.
-ABC
