The court process is built on tradition, precedent, the rule of law and a desire for justice. It is not built on logic.
A criminal trial is a giant bubble where facts can be left outside, and only admissible evidence allowed in. The jury is witness to an elaborate magic show and is encouraged to look only at the rabbit, but never inside the hat.
This brings us to former Jetstar pilot and convicted murderer Greg Lynn.
Gregory Lynn’s sketch of Buck campsite for police; Gregory Lynn; Carol Clay and Russell Hill.
Just the other day we returned to the Supreme Court for what is called a pre-sentence mention. This is a legal version that is part discussion, part friendly banter and part shadow-boxing.
First, for anyone who has spent the last month underground prospecting for South African diamonds and hasn’t caught up with the news, Lynn, 57, was charged with the murder of campers Carol Clay, 73, and Russell Hill, 74. He claimed both were killed accidentally and that he was not responsible for either of the deaths.
He said he panicked, then cleaned the crime scene better than in an episode of CSI.
So he was in the wrong place at the wrong time, made some wrong decisions and then was wrongfully charged with murder.
After a five-week trial, the jury found him guilty of the murder of Clay, but acquitted him of Hill’s murder.
Last week, we heard from the razor-sharp and energetic defence lawyer, Dermot Dann, KC. First he did a gentle drive-by on the media, suggesting post-conviction speculative reports on his client had poisoned the well of justice, making it impossible for Lynn to get a fair trial if he won an appeal.
His point was weakened when he used media reports as part of his argument that the jury decision should be set aside.
He said it appeared the jury found Hill was killed unlawfully (lacking the evidence to be satisfied it was murder), and that Lynn murdered Clay to eliminate her as a witness.
Justice Michael Croucher asked Dann how he came to that conclusion (a jury doesn’t give reasons), and the defence barrister said from the media.
The experienced judge said he would be making up his own mind. Quite right too. He doesn’t need help from baggy-arsed reporters who think jurisprudence is a Beatles’ record, sub judice an American-style sandwich, and ipso facto a nursery rhyme about a spider.
Croucher will sentence Lynn on the jury’s guilty verdict. In the usual set of circumstances, defence lawyers produce material to mitigate the person’s culpability, such as mental health issues or an underprivileged background.
But they can’t this time, because Lynn says he didn’t do it.
“In the short term, we have to respect the jury verdicts and have to respect the process your honour is about to enter into in terms of the sentencing process,” Dann told the court.
“Lynn maintains his innocence in respect of the murder charge. He maintains he told zero lies in the section of interview played to the jury. He maintains he’s never killed any person, any place, any time, anywhere.”
At the risk of being a killjoy, we should point out that Lynn is no George Washington admitting that he chopped down the mythical cherry tree. Lynn lied repeatedly, first when questioned at his home and later when formally interviewed by detectives at the Sale police station. But those lies were kept from the jury as that material was considered unfair and inadmissible. Those facts stayed outside the bubble.
“We submit that the long-term future of that guilty verdict must be seen as being in grave doubt,” Dann said.
He then worked on the legal principle that if you don’t ask, you don’t get.
The suggestion appears to be that as the jury apparently lost its collective marbles and got it so wrong, Lynn is a shoo-in to win his appeal.
Dann then put his legal big toe in the water, wondering aloud whether Justice Croucher could sentence the convicted murderer (30 years with a minimum of 20 is around the ballpark), but stay the punishment until the appeal, when his client would be surely freed and probably issued with both an apology and a cab-charge home.
Dann flagged he would argue against a retrial because the post-verdict publicity means Lynn couldn’t get a fair trial.
Croucher was so concerned over a 2016 guilty verdict (in the multimillion-dollar Brett Whiteley art fraud trial), he stayed the sentence and bailed the convicted men, believing they would be acquitted on appeal, and he was right.
In Lynn’s case, there is no chance he could be bailed over a murder charge. Sentenced or not, he is staying in the bin.
Croucher pointed out the odds were about the same as the justice winning the Stawell Gift. Dann helpfully pointed out that in his days as an amateur footballer (a mobile big man), the judge was surprisingly quick off the mark.
Dann got the message that such an application would fail – the legal version of “don’t go there, girlfriend”.
At the mention, the defence barrister flagged two points likely to be the pincers in an appeal. First, the jury went rogue, ignoring the two scenarios presented in court.
The prosecution said there was an argument in that High Country campsite back in March 2020 and Lynn shot Hill, then shot Clay.
The defence said Clay was shot accidentally as the two men wrestled over the gun and then Hill was so enraged that he attacked Lynn with a knife, falling and stabbing himself in the chest, also dying instantly.
But the jury didn’t buy either story completely, convicting Lynn on Clay and acquitting on Hill. Dann argued this meant the jury made up a third version that won’t stand the scrutiny of an appeal.
Appeal courts are loath to overturn jury verdicts. One exception that springs to mind is the High Court’s decision to quash the conviction of sexual assault against Cardinal George Pell, effectively finding the jury got it horribly wrong.
The counter-argument at a Lynn appeal is the jury came to its verdict quite rationally.
The prosecution must prove its case beyond reasonable doubt. The defence puts up a case to show there is an alternative.
If the jury finds the prosecution version is the only reasonable one presented, they convict. It is not required to establish motive. It needs to be convinced of the Four Ws – who, what, when and where, but not the fifth: why.
While the jury was considering its verdict, it reviewed both Lynn’s testimony and the ballistics expert’s evidence.
It seems obvious it overlaid the two to test Lynn’s version. That Hill took Lynn’s shotgun and magazine from the pilot’s open car, managed to load the weapon in the dark and fired a shot in the air; that Lynn crossed the open campsite without cover to try and wrestle the gun from Hill, that they stumbled but somehow managed not to disturb a black guy rope that would have been around knee height; that Hill accidentally squeezed the trigger, then the bullet (a solid projectile) ricocheted off the external mirror on Hill’s vehicle and hit Clay in the head, killing her instantly.
Russell Hill and Carol Clay died in the remote Wonnangatta Valley in 2020. Pictured are Hill’s Toyota LandCruiser and the burnt-out site at Bucks Camp.Credit: Victoria Police
The jury must have found on the evidence it heard in the court – that Lynn’s version was so wildly improbable it should be rejected, leaving the prosecution with the only reasonable case.
While a sliver of bullet residue found in the smashed and burned remains was established to have come from Clay, proving she had been shot, there was no such forensic proof for Hill, leaving the jury with too many unanswered questions to decide what happened beyond reasonable doubt in his case.
The second ground for appeal is more orthodox. That inadmissible material was presented to the jury, which means the guilty verdict should be put aside.
Dann said the prosecution botched its final submission, raising assertions it failed to put to Lynn when he was in the witness box. He said they broke the rules around 25 times.
This may well be true but what was not mentioned was that Justice Croucher – the once mobile ruckman and now experienced judge – warned the jury to ignore those untested assertions. Then, without the jury present, there were discussions about declaring a mistrial and beginning again with a new jury.
The defence talked to Lynn and decided to continue, believing they were so far in front the jury would acquit on both murder charges.
To now say it was a miscarriage of justice is a little like getting a free kick, playing on, hitting the post and then asking for another shot.
To win that point, the appeal court would have to be persuaded that Dann, a brilliant defence lawyer, should have asked for a mistrial and the judge should then have granted the motion.
Dann said there were plenty of examples where the appeal court had done just that. But there are plenty where they didn’t.
In another twist, the defence can appeal a conviction, but the prosecution cannot appeal an acquittal, which means if Lynn wins a retrial it would be for the murder of Carol Clay, not Russell Hill.
What sort of evidence could be presented in those circumstances is anyone’s guess.
Meanwhile, the magic act continues. Just don’t look in the hat.
The Morning Edition newsletter is our guide to the day’s most important and interesting stories, analysis and insights. Sign up here.