Prosecution ‘mischief’ enough to overturn High Country murder verdict

Accused High Country killer Greg Lynn has won an appeal over his conviction for the murder of Carol Clay, because of prosecution “mischief” during his trial.

One of Clay’s daughters sobbed as Court of Appeal judges Karin Emerton, Phillip Priest and Peter Kidd on Thursday unanimously agreed Lynn’s conviction and 32-year prison term should be quashed, ordering that he face a retrial.

Emerton said that “serious irregularities in the course of the trial were not capable of being remedied” and may have resulted in an injustice to Lynn.

The former airline pilot was found guilty of murdering Clay, 73, at a remote campsite in the Wonnangatta Valley in Victoria’s High Country in March 2020. He was cleared of the murder of Clay’s camping partner, Russell Hill, 74.

Defence barrister Dermot Dann, KC, argued five grounds of appeal, saying the stakes were high for his client, who risked dying in jail.

Dann said prosecutors had broken the rules that govern fair conduct of criminal trials “so thick and fast” that he was unable to keep up. In total, the trial judge noted 17 breaches.

In their judgment, the three appeal judges said there was a “repeated failure to abide by the rules” by the prosecutor during his final address to the jury.

“The trial judge did his best to redress the mischief that he perceived had flown from prosecuting counsel’s final address,” they said.

“Regrettably, we have concluded that the conduct of prosecuting counsel in the present case resulted in an unfair trial.

“It is unrealistic to think that these irregularities could be unscrambled.”

Lynn, 59, arrived in court appearing relaxed, sporting a fresh haircut, suit and hiking shoes. He was supported by his son, Geordie Lynn, who smiled after the judgment was handed down.

The accused killer has been remanded in custody and will return to court next year, where the process of organising his retrial will begin. The appeal judgment notes that prosecutors refused to directly answer if they would now pursue Lynn for the manslaughter of Hill.

Lynn had pleaded not guilty to both murder charges, claiming the elderly pair died accidentally and he had panicked, bundling Clay and Hill’s bodies into the back of his trailer and hiding their remains before later returning and burning them.

The judges said that at the time all three had been staying at Bucks Camp in the Wonnangatta Valley, with Lynn intending to hunt deer and arming himself with two firearms: a 12-gauge Barathrum Arms bolt-action shotgun and a Ruger American Ranch rifle.

They said that while the prosecution case was that a campsite spat led to the deaths of both Clay and Hill, precisely how the campers died is known only by Lynn.

Lynn told the jury Clay had been shot in the head while he struggled for control over a gun with Hill, who later died when he fell on his own knife.

“Notwithstanding his claims that the deaths of Hill and Clay were both accidental and he was innocent of murder, very shortly after the two deaths the applicant set about destroying every piece of evidence that might objectively have supported his innocence,” the Court of Appeal judges said.

This included using a trailer to move the bodies to another remote part of the valley, near Dargo. Lynn placed the bodies there before returning months later to burn them.

“Despite the applicant’s concerted efforts to completely obliterate any evidence that might have permitted an objective assessment of how the deaths occurred, enough evidence remained for it to be established forensically that Clay was shot in the head,” the Court of Appeal judges noted.

A jury later found Lynn not guilty of murdering Hill but guilty of murdering Clay.

Jurors had deliberated for seven days before they rejected Lynn’s claims that Clay had been accidentally shot in the head during a struggle over a firearm.

In October, Lynn’s defence team said prosecutors “chickened out” when grilling him at the trial and played outside the rules so often that his conviction should be quashed.

These breaches, Dann said, might have led the Supreme Court jury down an “impermissible pathway” in arriving at their verdict.

“The prosecutor went mad,” Dann said.

Director of Public Prosecutions Brendan Kissane, KC, told the Court of Appeal that the defence had failed to establish a substantial miscarriage of justice had occurred.

Any departures from the rules of fairness, Kissane argued, were adequately remedied by the trial judge, so much so that his directions to the jury were “favourable to the accused in the extreme”.

But the appeal court found the breaches of the rules by the prosecutor were “too numerous and consequential”.

“We are satisfied that prosecuting counsel persistently and obdurately 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’ — such that there has been a substantial miscarriage of justice.”

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