The prosecution must start again: Greg Lynn retrial explained

Former Jetstar pilot Greg Lynn will face a new trial for the murder of missing camper Carol Clay in March 2020 after three Court of Appeal judges on Thursday found elements of the trial had caused Lynn to suffer a serious miscarriage of justice.

Lynn has been ordered to reappear in court in January, where a timetable for a new trial is expected to be discussed.

Experts say a retrial can be granted by the Court of Appeal in various circumstances.

There are generally three options before the bench of judges, the first being to dismiss the appeal, the second to grant a retrial and the third to quash the conviction and grant a stay, meaning the person is freed.

Retrials can also occur if a jury cannot come to a unanimous decision.

What happens at a retrial? Is it the same judge, prosecutor and defence barristers?

Greg Barnes, SC, a spokesperson for the Australian Lawyers Alliance, said a retrial effectively meant the prosecution against a person started again.

Every month in Australia, Barnes said, appeal courts grant retrials. This can be because there was some sort of miscarriage of justice, errors of law, or because evidence was admitted that should not have been.

He said sometimes legal teams for the prosecution and defence could change. They could also look at the way the previous trial was run and make decisions on how they run the case.

Barnes said that as well as a new jury, there would be a new judge for the retrial.

“They are not bound by the way in which the first trial was won,” he said.

“A retrial effectively means a new trial, so you start again. It’s a wholly new proceeding before jury trial in the same way that it previously had.

“The criminal process starts again.”

Can prosecutors or police introduce extra evidence at a retrial? Can the defence ask for evidence the jury heard the first time to be left out of a retrial?

In the lead-up to a retrial, Barnes said, legal arguments could occur over the admissibility of evidence, which could mean evidence presented in the first trial being ruled out, and fresh evidence ruled in.

This can be based on the formation of new strategy on both sides of the bar table.

“With a retrial, you’ve got the benefit of seeing the way in which the first trial was run,” Barnes said. “You’ve got the benefit of seeing how a court ruled on the admissibility of evidence and how that argument might be presented again.

“And there will be some elements of a retrial very similar. It’s not uncommon for a person to simply give the same evidence at the trial.

“There are occasions where there is fresh or new evidence brought in. It’s as though the first trial did not exist.”

Will Lynn face a jury or a judge only retrial?

Victoria does not allow for judge-alone trials, as is seen in other states. This was temporarily introduced into the state during the pandemic to help address the backlog of cases and associated delays, but is no longer an option for an accused person. Lynn will face another jury.

Does Lynn have to give evidence again?

No. An accused person never has to give evidence in their own trial. It’s up to the prosecution to prove the case against them, and it’s up to the accused person if they want to give evidence.

“I am disappointed and perplexed by the jury verdict, as I have not killed anyone,” Lynn wrote in a letter to the court after testifying in his first trial.

Lynn was found not guilty of Russell Hill’s murder. Can he face trial again for that?

No. When a person is found not guilty by a jury of a criminal offence, that charge cannot be reheard.

It is possible Lynn will be charged with manslaughter over Hill’s death, which was not a charge he faced at the first trial. When asked whether the prosecution would consider a manslaughter charge, Director of Public Prosecutions Brendan Kissane left it open, saying that it would be a matter for the trial judge and parties at the time.

When will the retrial be heard?

A date for the new trial is yet to be set. That’s expected to occur in the new year.

Are the witnesses in a retrial the same?

In the retrial of sex offence cases, Nick Papas, KC, said there were provisions in place that meant evidence adduced at a first trial, such as a complainant’s evidence, could be recorded and replayed on a tape to a second jury.

“In murder trials it is not as common,” Papas said. “There may be witnesses whose evidence will be played to a new jury.”

Why was Lynn’s conviction overturned?

The Court of Appeal judges found there was a substantial miscarriage of justice that occurred during the trial that required the court to set aside Lynn’s conviction.

What were the key ‘serious irregularities’ during the trial?

Court of Appeal president Karin Emerton said there were two central issues, in combination, that formed the basis for the court’s conclusion.

This included the prosecution making a number of submissions to the jury that challenged the credibility of the evidence given by Lynn without ever putting those matters to him. This occurred, Emerton said, despite repeated objections by defence counsel and warnings from the trial judge.

In doing so, she said, counsel breached a rule of fairness.

Emerton also that said in its closing address, the prosecution unfairly attacked the reliability and credibility of its own firearms and tool mark expert witness, Paul Griffiths. This occurred, she said, without having put the relevant matters to Griffiths to give him a chance to respond.

What happens next?

Lynn was remanded to reappear in the Supreme Court on January 28. It is unclear if he will apply for bail before any retrial.

Start the day with a summary of the day’s most important and interesting stories, analysis and insights. Sign up for our Morning Edition newsletter.