Crown v Accused

1. The prosecution has filed three separate Hearsay Notices.
2. Hearsay Notice 1 dated 13 February 2025 concerns 22 previous representations by Don Patterson.[1] In respect of his previous representations, the accused objects to previous representations 5, 7 and 11.[2] I note that during pre-trial submissions, the accused withdrew her objection to previous representation 2[3] after the prosecution undertook to limit the content of previous representation 2.[4]
3. Hearsay Notice 2 dated 13 February 2025 concerns 21 previous representations by Gail Patterson.[5] In respect of her previous representations, the accused objects to previous representations 10, 13, 15, 21 and 24.[6] I note that during pre‑trial submissions, the accused withdrew her objection to previous representations 2, 7 and 8[7] after the prosecution undertook to limit the content of those previous representations.[8]
4. Hearsay Notice 3 dated 13 February 2025 concerns 17 previous representations by Heather Wilkinson. In respect of her previous representations, the accused objects to previous representation 10.[9] I note that during pre-trial submissions, the accused withdrew her objections to previous representations 3 and 5.[10]
5. As will be made clear below, some of the accused's objections to the previous representations are partial objections: in other words, some parts of some of the impugned previous representations are not objected to.

1. There are three subjects to which the impugned previous representations relate:
   • The self-administration of ondansetron by Don Patterson (previous representations 5, 7 and 11) and Gail Patterson (previous representations 10, 13 and 15) following the lunch;
   • Symptoms reported by Gail Patterson (previous representations 21 and 24) in hospital;
   • Heather Wilkinson's puzzlement (previous representation 10) at the accused having a different coloured plate to her lunch guests.

1. All section references below are to the Evidence Act 2008 (Vic), unless otherwise stated.
2. As the High Court in Sio v R[11] made clear, it is necessary to consider each previous representation individually to determine whether it satisfies the criteria for admissibility.
3. The hearsay exceptions relied on by the prosecution are as follows:

65 Exception - criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation

...

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) was made in circumstances that make it highly probable that the representation is reliable

66A Exception - contemporaneous statements about a person's health etc.

The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.

1. In relation to the self-administration of ondansetron, the relevant previous representations for Don Patterson are previous representations 5, 7 and 11 and the relevant previous representations for Gail Patterson are previous representations 10, 13 and 15.

1. In Hearsay Notice 1, the prosecution described Don Patterson's impugned previous representations (made to two paramedics and a nurse on 30 July 2023) as follows:

5. Donald Patterson, together with Gail Patterson, stated that they had both self-administered ondansetron, however, Donald mentioned that he believed he had vomited the tablet and experienced no relief.

7. Donald Patterson, together with Gail Patterson, stated that they had both self-administered ondansetron prior to the arrival of the paramedics, however Donald said that he had thrown his one back up and it had no to little effect.

11. Donald Patterson stated that on the morning of Sunday 30 July 2023, he took ondansetron for nausea.

1. In Hearsay Notice 2, the prosecution described Gail Patterson's impugned previous representations (made to two paramedics and a nurse on 30 July 2023) as follows:

10. Gail Patterson, together with Donald Patterson, stated that they had both self-administered ondansetron, which had good effect for Gail.

13. Gail Patterson, together with Donald Patterson, stated that they had both self-administered ondansetron prior to the arrival of the paramedics and Gail said she was feeling better and that her gastro symptoms had settled down.

15. Gail Patterson stated that she had taken ondansetron (an antiemetic) sometime in the morning and that she was no longer as nauseated as the ondansetron had worked. She did still have diarrhoea.

1. I refer firstly to the following paragraphs of the amended Summary of Prosecution Opening dated 24 February 2025 ('Summary of Prosecution Opening') for context (footnotes deleted):

118. At 9.15am [on 30 July 2023], an ambulance attended the home of Donald and Gail Patterson. Paramedics spoke with Donald and Gail, who described their symptoms. Paramedics [Barker & Hyde] did a preliminary assessment and transported them both to Korumburra Hospital. Donald and Gail stated to paramedics[12] that they had each self-administered ondansetron (anti-nausea medication) prior to the arrival of the ambulance. Gail said she was feeling better but Donald believed he had vomited the tablet and experienced no relief. (See Hearsay Notice)

Events at Korumburra Hospital

127. Donald and Gail Patterson arrived at Korumburra Hospital by ambulance. At 10.10am, they were assessed by nurse Lisa Shannon in the Urgent Care Centre. They reported that they had been unwell with vomiting and diarrhoea since around 10.00pm the night before, and that they had eaten a beef and mushroom dish for lunch the day prior which they thought had caused the sickness. They said they had taken ondansetron for nausea. (See Hearsay Notice)

1. In his statement dated 19 September 2023,[13] paramedic Mathew Barker states relevantly:

8. Both Donald's and Gail's vital stable signs fell within normal limits for a non­emergency transfer to the nearest appropriate hospital. They have both self-administered ondansetron, which is an anti-nausea medication which had good effect for Gail. However, Donald mentioned that he believed he had vomited the tablet and experienced no relief. Due to the short distance to the hospital and uncertainty surrounding the extent of ondansetron absorption in Donald's case, I decided not to provide additional administration of the medication.

1. In her statement dated 19 September 2023,[14] paramedic Cindy Hyde states relevantly:

10. They stated that they had self-administered ondansetron prior to our arrival. Ondansetron is an anti-nausea (antiemetic) medication. Gail said she was feeling better and that her gastro symptoms had settled down, however, Don said that he had thrown his one back up and it had no to little effect.

1. In her statement dated 1 November 2023,[15] nurse Lisa Shannon stated:

6. At 10:10am on 30 July, I did a triage assessment of the Pattersons. They reported having been unwell with vomiting and diarrhoea since around 10pm the night before. They said they had been out to lunch and had ingested a beef and mushroom dish that caused this sickness. I recall that they said it was a beef and mushroom dish.

7. I recall that Donald seemed much sicker than his wife Gail. Gail had eaten the dish at lunch time. But Donald had taken some leftovers and eaten the dish again at around 8pm. At home both Donald and Gail had taken ondansetron (an antiemetic) sometime in the morning. On arrival Donald was nauseated and was still vomiting and having diarrhoea. Gail stated that she was no longer as nauseated as the ondansetron had worked. She did still have diarrhoea.

1. The prosecution submitted that these previous representations were relevant (ss 55 and 56) as part of the narrative of the trajectory of the Pattersons' illnesses and by way of comparison with the trajectory of the accused's claimed illness following the lunch.
2. The prosecution submitted with respect to previous representations 5, 7 and 11 for Don Patterson and previous representations 10, 13 and 15 for Gail Patterson that they were admissible hearsay under ss 65(2)(b)[16] and (c)[17] or 66A.[18] With regard to ss 65(2(b)), the previous representations to the paramedics were made within 7 or 8 hours of the asserted facts and the previous representation to the nurse within 12 hours of the asserted facts. They were made in circumstances that made them unlikely to be a fabrication and highly probable to be reliable because they were made to medical professionals from whom they were seeking medical assistance. Their previous representations were spontaneous, specific, consistent with other proximate previous representations made by them and they had no motive to make false previous representations.
3. The prosecution submitted that there was no unfair prejudice (s 137).[19]

1. The accused did not submit that the criteria for the application of the hearsay exceptions relied on by the prosecution were not made out. Rather, the accused submitted that the previous representations were irrelevant (ss 55, 56). In the alternative, the accused submitted that they should be excluded under s 135 (as a waste of time) or s 137.
2. As regards relevance and probative value, the accused submitted that, while a comparison of the illness trajectories of the Pattersons and the accused is warranted, the self-administration of ondansetron prior the Pattersons being hospitalised adds nothing to the prosecution's case. It cannot rationally affect the probabilities of the ultimate facts in issue. There is copious and uncontested evidence about the symptoms the Pattersons were experiencing.
3. As regards unfair prejudice, the accused submitted the evidence adds to the risk that the jury may want to punish the accused for what the Pattersons went through.[20]

1. The evidence is part of the narrative of the trajectory of the Pattersons' illnesses. A detailed comparison of their illness trajectories with the accused's illness trajectory is relevant to whether the accused also consumed a poisoned Beef Wellington. If she did not, it increases the probabilities that she deliberately poisoned her lunch guests. The evidence is of brief compass and there is no prospect of the jury being prejudiced against the accused from the knowledge that the Pattersons took ondansetron. The evidence is admissible.

SYMPTOMS REPORTED BY GAIL PATTERSON IN HOSPITAL

1. In relation to the symptoms reported by Gail Patterson in hospital, the impugned previous representations are previous representations 21 and 24.

1. Hearsay Notice 2 describes the relevant previous representations (which were made to Gail Patterson's daughter Anna Terrington) as follows:

21. Gail Patterson represented that she was experiencing intense pain with the diarrhea and was exhausted. She asked "why?" repeatedly as she was experiencing the pain.

24. Gail Patterson stated that when she had been vomiting earlier there was a strong taste of mushroom in her mouth and it was strange.

1. I refer to the following paragraphs of the Summary of Prosecution Opening for context (footnotes deleted):

SATURDAY 29 JULY 2023: THE DAY OF THE LUNCH

101. They said Grace and started the meal. Ian and Heather ate their entire portion. Gail ate approximately half of her serve and gave the rest to Donald, who ate his own as well as some of Gail's...

Events at Dandenong Hospital

142. Donald and Gail Patterson arrived at Dandenong Hospital shortly after 6.30pm on 30 July 2023. They were placed in separate rooms...

...

147 ...The Pattersons' daughter, Anna Terrington, ...arrived at Dandenong Hospital to stay with Gail overnight...

150. Overnight, Anna Terrington remained with Gail. Gail was in intense pain with diarrhoea. Anna helped her to the bathroom a number of times. Gail said that when she had been vomiting earlier there was a strong taste of mushroom in her mouth and it was strange.

Events at Monash Medical Centre

212. The accused arrived at Monash Medical Centre on Monday 31 July at 2.40pm and was handed over to a triage nurse...

...

217. Upon questioning by Professor Stuart, the accused denied picking or finding any other mushrooms or using any other mushrooms in the meal. She told Professor Stuart she ate half her meal, that her father-in-law had eaten his plus some of his wife's...

1. In her statement dated 7 August 2023,[21] Anna Terrington refers to previous representation 21 at [13] and to previous representation 24 at [16]:

13. I went to Mum; she was awake and conscious. Throught the night, she needed to use the bathroom a number of times, and I helped her. She was in intense pain with the diarrhea and exhausted. Whilst she was experiencing the pain, she was saying "why?" on repeat.

16. Also, during the night, Mum had told me that when she had been vomiting earlier, there was a strong taste of mushroom in her mouth and it was strange.

1. As regards previous representation 21, the prosecution submitted that Gail Patterson's repeated 'Why' indicated how much pain she was in which provided a point of comparison with the trajectory of the accused's claimed illness. As for previous representation 24, the prosecution submitted that Gail Patterson's experience of a strange and strong taste of mushrooms in her mouth was also relevant to that comparison.
2. The prosecution submitted that hearsay exception s 66A applied to previous representation 21 and ss 65(2)(b) and (c) and s 66A to previous representation 24.
3. The prosecution submitted the evidence entailed no unfair prejudice.[22]

1. The accused did not submit that the criteria for the application of the hearsay exceptions relied on by the prosecution were not made out. Rather, the accused submitted that the previous representations were irrelevant (ss 55, 56). Alternatively, the accused submitted that the probative value of the evidence was outweighed by the danger of unfair prejudice (s 137).
2. The accused submitted that the meaning of Gail Patterson's 'Why' in previous representation 21 was unclear and therefore irrelevant. The strong taste of mushrooms or the nature of the vomit referred to in previous representation 24 was not relevant to the effects of the poison.[23]

1. As regards the evidence of previous representation 21, it is not clear to me that Gail Patterson expressly stated to her daughter that she was in intense pain, though the description of previous representation 21 in Hearsay Notice 2 suggests she did. I have had recourse to the evidence of Ms Terrington at her s 198B hearing, but it does not touch on the matter. It seems to me that it is the evidence of Gail Patterson's repetition of the word 'Why' that the prosecution relies on as the previous representation by Gail Patterson that she was in intense pain. But the meaning of Gail Patterson's 'Why' is, as the accused submitted, a matter of speculation. As such, it does not rationally make an ultimate fact in issue more probable and is inadmissible.
2. As for previous representation 24, the fact that Gail Patterson may have experienced a strange, strong taste of mushrooms does not facilitate the comparison of the trajectories of Gail Patterson's and the accused's illnesses. Previous representation 24 is also irrelevant and therefore inadmissible.

HEATHER WILKINSON'S PUZZLEMENT AT THE ACCUSED HAVING A DIFFERENT COLOURED PLATE TO HER LUNCH GUESTS

1. In relation to Heather Wilkinson's puzzlement at the accused having a different coloured plate to her lunch guests, the impugned previous representation is previous representation 10.

1. Hearsay Notice 3 describes the relevant previous representation (made to Simon Patterson) as follows:

10. Heather Wilkinson stated that she was wondering why Erin Patterson served herself on a different plate to the rest of the lunch guests and that she was puzzled by it.

1. I refer to the following paragraphs of the Summary of Prosecution Opening for context (footnotes deleted):

SATURDAY 29 JULY 2023: THE DAY OF THE LUNCH

100. The accused plated the meal, which consisted of individual beef wellingtons, mashed potato and green beans. The beef wellingtons were prepared as a piece of steak covered with mushrooms and completely encased in pastry. There were four large grey coloured dinner plates and one smaller plate which was lighter in colour, which Ian Wilkinson describes as tan/orange. Heather and Gail moved the four large plates from the bench to the table and the accused took the smaller lighter coloured plate to her place at the table. Donald, Gail, Ian and Heather each ate from a large grey coloured dinner plate. The accused ate from the smaller plate.

...

HOSPITALISATION OF THE VICTIMS

113. At around midnight on the evening following the lunch (Sunday 30 July 2023), Heather and Ian Wilkinson started to suffer nausea, vomiting and diarrhoea, which went on all through the night. They each utilised their own toilet and stayed in separate rooms most of the time, but did come together to talk a little bit. At around dawn of the morning after the lunch, Heather called Donald and Gail, who said they had similar symptoms and had already called an ambulance.

114. At approximately 8.45am, Donald Patterson rang Simon Patterson. He said that he and Gail were vomiting and had diarrhoea which had started at about midnight for Donald, and about 1.00am for Gail. He told Simon he had called for an ambulance, which was in fact dispatched at 8.34am (see Hearsay Notice). Donald also stated that Ian and Heather were experiencing the same symptoms.

...

119. After speaking with Donald, Simon tried to call both Ian and Heather Wilkinson's mobile phones but neither answered. Simon drove to their house. Ian answered the door, obviously unwell. Both he and Heather were worn out and still vomiting. Simon told Ian that they needed to go to hospital. Ian invited him inside, where Heather was on a couch, also unwell. Simon wanted them to ring an ambulance, but Ian and Heather thought they would be alright and tried to convince Simon to go to church for the streaming service. During his attempts to convince Ian and Heather to go to hospital, Simon told them that he believed his previous illnesses were caused by eating the accused's food, and that this is why he had declined the lunch. It was eventually agreed that Simon would call an ambulance for the Wilkinsons. Ian left the room, seemingly to use the toilet, and Simon sat on the couch to wait for him. Unprompted, Heather said, 'Yeah, I noticed that Erin put her food on a different plate to us. Her plate had colours on it. I wondered why that was.' (See Hearsay Notice)

...

121. Simon Patterson drove the Wilkinsons to Korumburra Hospital, however the hospital was at capacity due to the presentation of Donald and Gail Patterson. Simon then drove the Wilkinsons to Leongatha Hospital. On the way to Leongatha Hospital, Heather said, 'Is Erin short of crockery? I was wondering why she served herself on a different plate to the rest of us. I've puzzled about it since lunch. (see Hearsay Notice). Simon responded that the accused didn't have lots of plates, and maybe ran out of plates.

1. In his statement dated 16 August 2023,[24] Simon Patterson stated:

58. I sat down on the couch to wait for Ian. There wasn't much conversation but unprompted Heather said "Yeah, I noticed that Erin put her food on a different plate to us. Her plate had colours on it. I wondered why that was." I acknowledged that but didn't say much about it. Very shortly after that, Heather asked if Erin was ok and I replied "I'm sure she'll be OK just like she was every other time."

...

60. On the way to Leongatha Hospital Heather said "Is Erin short of crockery? I was wondering why she served herself on a different plate to the rest of us. I've puzzled about it since the lunch." I said "Yeah, she doesn't have heaps of plates so it maybe that she ran out of plates." That was the end of that conversation.

1. I note that Hearsay Notice 3 refers to [58] in Simon Patterson's statement with regard to previous representation 9, to which there is no objection. Hearsay Notice 3 refers to [60] in Simon Patterson's statement with regard to previous representation 10, which is impugned.

1. The prosecution submitted that Heather Wilkinson's puzzlement is an indication that the accused's differently coloured plate struck her, which is especially significant because the accused disputes that the lunch guests all had the same plates and she had a differently coloured plate.[25]

1. The accused's objection to previous representation 10 is a partial objection. The accused's only objection is to the reference to Heather Wilkinson being 'puzzled' by the accused's differently coloured plate because, according to the accused, it is evidence of Heather Wilkinson speculating. The accused submitted that her speculation is irrelevant.[26]

1. The accused confirmed in oral submissions that there is a dispute as to whether the lunch guests all had the same plates and she had a differently coloured plate. In those circumstances, I accept that Heather Wilkinson's puzzlement is relevant because it supports an inference that the difference between the guests' plates, on the one hand, and the accused's plate, on the other, struck her. For that reason, previous representation 10 is admissible.

[1] Allowing for deletions made by the prosecution.

[2] In the accused's written hearsay submissions dated 3 February 2025 (DWHS) at [4], the accused withdrew her objection to Don Patterson's previous representations 3 and 16.

[3] Consolidated Transcript of pre-trial hearings conducted before Beale J in 2025 (CTB) 1438.

[4] CTB 1430. In line with this undertaking, I note that [86] of amended Summary of Prosecution Opening dated 24 February 2025 (SPO) requires amendment to delete the reference to Don Patterson and Gail Patterson being fearful of being ambushed at the lunch.

[5] Allowing for deletions made by the prosecution.

[6] DWHS at [4], the accused withdrew her objection to Gail Patterson's previous representations 3, 17 and 23.

[8] CTB 1430. In line with this undertaking, I note that [86] of SPO requires amendment to delete the reference to Don Patterson and Gail Patterson being fearful of being ambushed at the lunch.

[9] DWHS at [4], the accused withdrew her objection to Heather Wilkinson's previous representations 8 and 9.

[11] Sio v R [2016] HCA 32; (2016) 259 CLR 47.

[12] Paramedics Matthew Barker and Cindy Hyde.

[16] The prosecution only relied on s 66A for previous representation 15 for Gail Patterson.

[17] The prosecution only relied on s 66A for previous representation 15 for Gail Patterson.

[18] Not previous representation 11 for Don Patterson.

[19] The prosecution's written hearsay submissions dated 24 January 2025 (PWHS) Schedules 1 and 2; Prosecution's Oral Submissions (POS), Consolidated Pre-Trial Transcript (CTB), 1421-1427, 1440.

[20] DWHS [5-10]; the accused's Oral Submissions (DOS), (CTB 1432-1437).

[22] PWHS Schedules 1 & 2; POS (CTB:1427-1429, 1440-1442).

[23] DWHS [11-21]; DOS (CTB:1437-1438, 1442).

[25] PWHS Schedules 1 & 2; POS (CTB:1431-1432, 1442-1443).

[26] DWHS [50-53]; DOS (CTB:1439-1440).