Former pilot Greg Lynn has had his conviction for murdering an elderly camper in the Victorian high country overturned in a stunning decision made by the state’s highest court.
Lynn, 59, was found guilty in June last year of murdering 73-year-old grandmother Carol Clay in 2020, but was acquitted of murdering her fellow camper and lover Russell Hill, 74. The former Jetstar pilot was sentenced to a minimum of 24 years in prison for murdering Clay.
The Victorian court of appeal on Thursday ruled that Lynn’s conviction be overturned, and ordered that a new trial should be held in the case.
In their judgment, justices Karin Emerton, Phillip Priest and Peter Kidd: “Unhappily, we have concluded that the conduct of prosecuting counsel so compromised the fairness of the applicant’s trial that a substantial miscarriage of justice resulted.
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“In those circumstances, the applicant’s conviction for murdering Mrs Clay cannot be permitted to stand,” they said in the judgment.
“We would grant [Lynn] leave to appeal against his conviction; allow the appeal; set aside the conviction; and order a new trial.”
Shortly after Emerton handed down the appeal verdict, Lynn stood in the dock and turned to smile at one of his sons, who was in court. His son was sitting immediately behind Emma Davies, Clay’s daughter, who was inconsolable after the verdict.
The short hearing was over in minutes. Lynn, sporting a crew cut, arrived at court shortly before the verdict was handed down, clutching a clear A4 plastic document folder.
During the trial, Lynn told the court that the elderly couple died during a struggle at the campsite: Clay when a shotgun accidentally discharged as he wrestled with Hill, and Hill when a knife he was holding in a bid to attack Lynn accidentally went through his chest.
The prosecution’s case was that Lynn murdered both campers, and that Clay was killed as she was a witness to the murder of Hill, but prosecutors could not prove how Hill was killed.
In the 59-page judgment presented on Thursday, the justices said Lynn’s appeal succeeded on its first two grounds.
The first was that the prosecutor, Daniel Porceddu, repeatedly breached a legal rule known as Browne v Dunn, which is designed “to secure fairness, by requiring a cross-examiner to make plain to a witness that their evidence is not accepted and in what respects it is not accepted when cross-examining them”.
The second ground regarded the prosecution’s handling of the evidence of police ballistics expert, Paul Griffiths.
The court of appeal found the Browne v Dunn breaches occurred when Porceddu cross-examined Lynn and during his final address to the jury.
It said that it was not persuaded that Porceddu breached the rule on 25 occasions – as contended by Lynn’s legal team – or that the breaches were of the same significance.
“[But] we are satisfied that prosecuting counsel persistently … breached the rule, and reversed the onus of proof on at least one occasion – despite repeated objections by defence counsel and continual admonitions by the trial judge to ‘stick to the rules’,” the court of appeal found.
The court found that while a fair trial did not have to be perfect, the errors in Lynn’s case were too numerous to overcome.
“There will be occasions … when a prosecutor’s breaches of evidentiary or procedural rules are so frequent and serious that the conclusion must be reached that they have occasioned a substantial miscarriage of justice. This is such a case,” the court found.
“The multiple irregularities at the hands of the prosecution compounded to give rise to significant unfairness. It is unrealistic to think that these irregularities could be unscrambled.”
The court found the most egregious of these breaches occurred in relation to evidence about a rope, which the prosecution contended that on Lynn’s version of events he must have become entangled in during his struggle with Hill, and about the dismissal of evidence from Griffiths about the trajectory of the shot which may have killed Clay.
It said that justice Michael Croucher, who presided over the trial, did his best to address “the mischief” which arose during Porceddu’s closing address in his directions to the jury, and was “forthright in his criticism” of what had occurred.
“We consider that the approach taken by the prosecutor created a danger of diverting the jury from properly and fairly considering the evidence of … Griffiths and its import.
“It is no part of the duty of a prosecutor to address a jury in language which is intemperate, inflammatory or over-zealous in nature.
“It is clear that a prosecutor should not invite the jury to proceed upon a theory which cannot properly be sustained.”
Lynn’s legal team, including barristers Dermot Dann KC and Michael McGrath, left court without commenting on the possibility that Lynn may apply for bail.
Det Sgt Brett Florence, the officer in charge of the investigation, asked media to respect the Clay and Hill families.
“If everyone can please leave the families alone, they’re devastated,” he said.
Emerton said that, without prejudicing any possible further applications for bail, Lynn would be remanded in custody until an appearance before the supreme court on 28 January.
