A Victorian court of appeal judge has described the prosecution’s conduct during the trial of high country killer Greg Lynn as “extremely unfair”, “indefensible” and “egregious”, as the former pilot tries to overturn his murder conviction.
Lynn, 59, was found guilty in June last year of murdering grandmother Carol Clay but acquitted of murdering her fellow camper and lover Russell Hill.
He was sentenced to a minimum of 24 years in prison for murdering the 73-year-old.
The court of appeal heard on Friday that Lynn was contesting his conviction on four grounds. He is also appealing against his sentence.
According to written submissions filed in the appeal, Lynn argues a substantial miscarriage of justice occurred in circumstances where the prosecutor “launched a sustained attack on the credibility of [Lynn’s] account” without putting that information to the former Jetstar pilot when he was giving evidence. The “jury travelled down an impermissible pathway” in reaching their verdict, his submissions allege.
Lynn submits that the prosecution’s approach to the evidence of a police ballistics expert, Paul Griffiths, was a “further serious departure from the rules that govern the fair conduct of criminal trials”, and that the guilty verdict is unsafe and unsatisfactory.
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On Friday, Dermot Dann KC, for Lynn, told justices Karin Emerton, Phillip Priest and Peter Kidd that the “prosecution broke the rules from start to finish: the start being the police interview, and the finish being the closing address”.
He told the court of two warnings – given by trial judge Michael Croucher to prosecutor Daniel Porceddu – about breaching what is known as the Browne v Dunn rule during the trial. The rule requires the prosecution to question a witness about evidence they intend to rely upon.
Dann also referenced comments, made by Croucher, that Porceddu had seemingly “chickened out” of questioning Lynn about the alleged murders and his subsequent conduct.
He told the court of appeal that Griffiths, a ballistics expert who was a prosecution witness, had found Lynn’s explanation for the deaths was plausible on the evidence.
According to Lynn’s version of events outlined during the trial, he was wrestling with Hill for control of a shotgun when it discharged, shooting Clay. According to Lynn’s version, Hill died after a subsequent struggle resulted in a knife going into his torso.
Priest, one of the judges hearing the appeal, said it was “particularly egregious” that the prosecutor failed to raise the potentially exculpatory gunshot trajectory evidence with Griffiths while he was in the stand.
In relation to the treatment of Griffith’s evidence, Priest said: “I need no persuasion what the prosecutor did there was indefensible”.
He said it was “extremely unfair” that the prosecution suggested, before the jury, that Lynn may have effectively executed Clay at close range, despite there being no evidence to support it.
But Priest also said that even if it was assumed that all Dann’s complaints about Porceddu “are well made, that doesn’t affect the ultimate analysis of whether it was open for the jury to convict your client for Mrs Clay’s murder”.
During Friday’s hearing, Dann acknowledged that, despite such concerns, Lynn had made no application for the jury to be discharged during the trial.
He said there had been previous cases where an applicant had succeeded on appeal despite not having made an application for the jury to be discharged.
“It’s two evils that he’s facing, both of them are unfair,” Dann told the court.
“He’s not saying ‘I’ve got the trial of the century here … why would I even think about a discharge’.
“He’s trying to choose the lesser of two evils that have been visited upon him.”
Brendan Kissane KC, for the prosecution, said that Croucher had been wrong to identify at least 17 breaches of Browne v Dunn rules.
Kissane also said he disagreed with Dann’s analysis it was the “most serious breach of Browne v Dunn that he’s ever seen”.
“Well he may not be alone there, speaking for myself,” Priest quipped.
Kidd asked why Porceddu hadn’t qualified Griffith’s evidence in a less forceful way, such as telling the jury to “keep a sense of proportion when considering it”.
Instead, he said that it was “flawed”, giving the sense it was “no worth at all, at any level”.
Kissane agreed that Porceddu had “over-egged it a bit”.
But Kissane said that Croucher’s directions to the jury alleviated any possible miscarriage of justice that could have arisen from the Browne v Dunn breaches.
The hearing finished before any submissions could be made regarding Lynn’s appeal against his sentence. It is now expected those submissions will be made on Thursday.
