R v Lynn (Ruling 7)
[2024] VSC 376
•8 May 2024
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0017
| Between: | |
| THE KING | |
| -and- | |
| GREGORY STUART LYNN | Accused |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 May 2024 |
DATE OF RULING: | 8 May 2024 |
DATE OF PUBLICATION: | 28 June 2024 |
CASE MAY BE CITED AS: | R v Lynn (Ruling 7) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 376 |
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CRIMINAL LAW — Pre‑trial ruling — Charges of murder of two campers — Tendency evidence — Admissibility — DPP proposes to lead, purportedly as tendency evidence, that deceased man was “quiet”, “a bit of a loner”, “secretive” and “private”; “a person who would not upset anyone intentionally”; had not been seen to be “vicious or vindictive”; had no prior criminal history; and had never been the holder of a firearms licence — Evidence said to render it unlikely that deceased man would have removed firearm from accused’s vehicle, loaded it, confronted accused with it, and discharged it, as accused claims — Whether “reasonable notice” given — Whether notice identified any tendency — Whether proposed evidence is relevant — Whether proposed evidence will, either by itself or having regard to other evidence to be adduced by the DPP, have “significant probative value” — Evidence inadmissible as tendency evidence — Evidence that deceased was never a holder of a firearms licence may be admissible as a piece of circumstantial evidence going to whether he knew how to load a firearm, but further argument required — Evidence Act 2008 (Vic), s 97.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Porceddu with Ms K Hamill | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr D Dann KC with Mr M McGrath | Chris McLennan & Co |
HIS HONOUR:
Overview
Gregory Lynn is charged with the murders of Russell Hill and Carol Clay. His trial proper is due to start with empanelment of a jury tomorrow.
Last Friday 3 May, the Director of Public Prosecutions filed and served a tendency notice pursuant to s 97 of the Evidence Act 2008 (Vic). The notice reads in this way:[1]
[1]I have omitted footnotes referencing pages of the witnesses’ statements in the depositions.
[1] Notice is hereby given pursuant to [s 97(1)(a)] of the Evidence Act … that the prosecution proposes to rely on evidence of the character, reputation or conduct of Mr Russell Hill rendering it unlikely that he would have removed a firearm from the accused’s vehicle, loaded the firearm, confronted the accused with it and discharged it.
[2] The prosecution proposes to rely upon the following evidence as rendering such conduct by Mr Hill unlikely:
a.Mrs Robyn Hill described Mr Hill as a quiet person and a bit of a loner.
b.Mr Robin Ashlin described Mr Hill as a secretive and private man.
c.Mr Michael Allan described Mr Hill as a person who would not upset anyone intentionally. He could be cheeky and try and wind people up, but he had not seen Mr Hill being vicious or vindictive.
d.Sgt Brett Florence has examined the LEAP database maintained by Victoria Police and confirmed that Mr Hill has never been the holder of a firearms license and that he had no prior criminal history.
On Monday, I heard submissions from counsel on the admissibility of the evidence identified in the notice as tendency evidence. Mr Porceddu, who appears with Ms Hamill for the Director, submitted that that evidence is admissible as tendency evidence. Mr Dann KC, who appears with Mr McGrath for Mr Lynn, submitted that the evidence is not so admissible.
I reserved my formal decision until today, although I foreshadowed my conclusion to counsel yesterday. In short, I do not think that the evidence identified would, either by itself or having regard to other evidence to be adduced by the Director at trial, have significant probative value, as is required by s 97(1)(b) of the Evidence Act. The evidence is therefore inadmissible as tendency evidence.
However, the evidence that Mr Hill had never been the holder of a firearms licence is, arguably, relevant and admissible as a piece of circumstantial evidence capable of going to whether he knew how to load a firearm, but no more than that. However, I shall not rule on the point until I have heard full argument from counsel.
My reasons follow.
Background
It is unnecessary to summarise the Crown case here, which I have done in earlier rulings.[2] For present purposes, it is sufficient to know that, in his interview with police, Mr Lynn said that Mrs Clay was shot accidentally while he and Mr Hill were grappling over Mr Lynn’s shotgun, and that Mr Hill subsequently accidentally impaled himself on a knife he held as he fell to the ground while attacking Mr Lynn. Mr Lynn’s account of the lead‑up to these accidental deaths involved Mr Hill, following a dispute between the men, surreptitiously taking Mr Lynn’s shotgun from his vehicle, loading it with a magazine that was also in the vehicle, and firing it into the air when Mr Lynn asked for the return of the gun.
[2]See, e.g., R v Lynn (Rulings 1‑4) [2024] VSC 373 and R v Lynn (Rulings 5 & 6) [2024] VSC 375.
The Director proposes to rebut Mr Lynn’s account by “seek[ing] to rely on evidence of the character, reputation or conduct of [Mr Hill] rendering it unlikely that he would have removed a firearm from the accused’s vehicle, loaded the firearm, confronted the accused with it and discharged it”, that evidence being the evidence identified in paragraph 2 of the tendency notice.
Submissions
Accused’s submissions
I turn to counsel’s submissions, commencing with Mr Dann.
First, Mr Dann submitted that, in circumstances where he had foreshadowed last year that issue was taken with the admissibility of what he described as essentially good character evidence in relation to Mr Hill, to file a tendency notice in respect of the same evidence only six days before the jury is to be empanelled is not the “reasonable notice in writing” required by s 97(1)(a) of the Evidence Act.
Second, he submitted that the notice is deficient because it does not identify any tendency. Rather, the evidence identified is said to show it is unlikely that Mr Hill behaved as Mr Lynn alleges but does not assert any tendency said to be revealed by that evidence.
Third, as to the particular pieces of evidence identified in the notice, Mr Dann submitted that evidence from Mrs Hill — that her husband was “a quiet person and a bit of a loner” — could not rationally have any bearing on whether he acted as Mr Lynn says he did. In his submission, the evidence is not even relevant, let alone capable of proving that it was unlikely that Mr Hill acted as alleged. Mr Dann submitted that the same is true of Mr Ashlin’s evidence (that Mr Hill was “a secretive and private man”) and Mr Allan’s evidence (that he was “a person who would not upset anyone intentionally” and that “[he] could be cheeky and try and wind people up, but he had not seen Mr Hill being vicious or vindictive”).
Fourth, submitted Mr Dann, even if any of this evidence had relevance to the issue at hand, its probative value would be only miniscule and could not reach the threshold of having significant probative value.
Fifth, as to the proposed evidence that Mr Hill had no prior criminal history, Mr Dann said that he had never experienced such evidence being given in a criminal trial. (Mr Porceddu’s experience and mine were the same.) Mr Dann submitted that it was no more than good character evidence and did not go to any identified tendency.
Sixth, Mr Dann conceded that the fact that Mr Hill had never had a firearms licence may be of some relevance, but not as tendency evidence, for it says nothing about the unlikelihood of him acting as alleged by Mr Lynn.
Crown submissions
I turn now to Mr Porceddu’s submissions.
First, as for the question of notice, Mr Porceddu submitted that there is no timeframe in the Evidence Act other than “reasonable notice”.
Second, Mr Porceddu relied heavily on the Court of Appeal’s reasoning in Schroeder v The Queen[3] as supporting his argument in this case. The applicant was found guilty of dishonesty offences concerning her alleged creation and forgery of a homemade Will of her friend Ms Hart. At trial, without objection, the Crown led evidence, from others that knew her, that Ms Hart was “quite meticulous in matters that were of importance, or legal matters”, and that she was “very organised” in managing her affairs.[4]
[3]Schroeder v The Queen [2024] VSCA 42 (Priest, Taylor & Kaye JJA).
[4]Schroeder v The Queen [2024] VSCA 42 at [51]‑[53].
No tendency notice was filed by the Crown, and the judge was not asked to rule on the evidence as tendency evidence or at all. The Court considered it plain that the evidence was led to found an inference that, because of her meticulous and organised ways in matters of this nature, Ms Hart was unlikely to have produced a homemade Will. In the Court’s view, had the judge been asked to rule, over objection, on the evidence as tendency evidence, she would have dispensed with the notice requirements under s 100(1) of the Evidence Act and ruled, in accordance with s 97(1)(b), that the evidence had significant probative value and carried with it little or no prejudice.[5]
[5]Schroeder v The Queen [2024] VSCA 42 at [55]‑[59].
Third, in Mr Porceddu’s submission, the evidence that Mr Hill was quiet, a bit of loner, secretive and private, one who would not upset others intentionally, one who lacked viciousness or vindictiveness, and one who had no prior convictions and had never held a firearm’s licence, is capable of proving a tendency in Mr Hill not to have engaged in action of the type alleged against him — namely, removing a gun and magazine from a stranger’s car, loading the gun, confronting Mr Lynn with it, and discharging it.
Consideration
I turn to my consideration of these issues.
First, while the Director has had oodles of time to file a tendency notice in this matter, I would not in this case rule the evidence inadmissible for a failure to give reasonable notice in writing in accordance with s 97(1)(a). Mr Dann did not point to any prejudice to Mr Lynn in addressing the argument, albeit at this belated stage.
Second, however, I accept Mr Dann’s submission that there is no tendency identified in the notice of Mr Hill to act in a particular way or to have a particular state of mind. Rather, it seems that the tendency, such as it might be, is either said to be in the evidence itself or is somehow merged with the fact that the Director seeks to prove by the evidence. Either way, the tendency notice is unhelpful in identifying any tendency that Mr Hill is said to have in his actions or thoughts.
Third, whether or not it is correct to say that no tendency is identified in the notice, or whether or not it matters, I do not think that the pieces of evidence identified in the notice would, either by themselves, together, or having regard to other evidence to be adduced by the Director at trial, have significant probative value, contrary to the requirement in s 97(1)(b). In particular, I accept Mr Dann’s argument that evidence that Mr Hill was a quiet person, a bit of a loner, a secretive and private man, one who would not upset others intentionally, one who was not observed to be vicious or vindictive, and one without prior convictions, does not have significant probative value in proof of a tendency not to do the sort of thing he is said by Mr Lynn to have done on this occasion.
Fourth, even if these items of evidence can be said to have some probative value in this respect, I am not persuaded that the evidence possesses significant probative value.
Fifth, in my opinion, this case is nothing like Schroeder. In that case, evidence was given of a tendency of Ms Hart to behave in a particular way — namely, that she was “quite meticulous in matters that were of importance or legal matters”, and that she was “very organised” in managing her affairs. Evidence of that particular tendency in her behaviour was capable of adding significantly to the Crown case that it was unlikely that Ms Hart would have made a homemade Will.
Here, in contrast, the evidence relied on is, in the main, of a general nature as to Mr Hill’s character and nature. That evidence is not capable of proving any meaningful tendency or, if it has any probative value at all in that respect, it is not of significant probative value. Further, there is no rationally probative link between this general evidence and the fact sought to be proved by the evidence — namely, that it is unlikely that Mr Hill would have acted in the way alleged by Mr Lynn. Again, if it has any probative value in that respect, it could only be slight, and comes nowhere near the required significant probative value.
Sixth, in my view, while it is more specific, the evidence that Mr Hill never held a firearms licence is not of significant probative value in proof of any tendency or of the facts sought to be proved.
Seventh, however, I do think that it is perhaps arguable that the evidence that he never held a firearms licence may be capable rationally of founding an inference that Mr Hill might not have known how to load a gun. That said, it is only potentially a weak inference, because experience shows that many without such licences know how to load and fire a gun. Obviously, these things may be learned — sans a licence — through personal experience or by watching others, whether in childhood or adulthood. Further, even without experience, it would be reasonable to expect that a person of Mr Hill’s age could work out pretty quickly how to put a magazine in a gun. Thus, care would need to be taken by a jury in considering the drawing of the inference the Crown might urge. Nevertheless, to the extent that the inference may be available, the evidence may be capable of use, in a circumstantial way, of rendering an aspect of Mr Lynn’s account less likely. However, as I indicated at the outset of these reasons, I consider that I should await full argument on this point before ruling finally.
Conclusion
Accordingly, I reject the Director’s application, pursuant to s 97, to lead the evidence specified in the tendency notice as evidence “rendering it unlikely that [Mr Hill] would have removed a firearm from [Mr Lynn’s] vehicle, loaded the firearm, confronted [him] with it and discharged it”.
Postscript
I should add this postscript.
I drafted these reasons last night. This morning, I was informed by Mr Porceddu that the Director has just received a statement from Deborah Hill, who is the daughter of Mr Hill. While I have not seen the statement yet, Mr Porceddu informs the Court that Ms Hill disclosed that her father had a shotgun when on a farm, and that he used to hunt with it. The gun was handed in during an amnesty following the terrible shootings at Port Arthur in Tasmania.
Mr Porceddu also advised that, in view of this development, a further statement was being sought on this issue from Robyn Hill, Mr Hill’s wife.
Obviously, this new evidence is likely to have some bearing on the argument to be had about the evidence that Mr Hill never held a firearms licence.
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