R v Lynn (Ruling 7) - [2024] VSC 376

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lynn (Ruling 7)

Details

AGLC: R v Lynn (Ruling 7) [2024] VSC 376
Case: [2024] VSC 376
Decision Date: 8 May 2024

CaseChat Overview and Summary

In the matter of R v Lynn, the appellant faced charges of murdering two campers. The case was before the court to determine the admissibility of certain evidence proposed by the Director of Public Prosecutions (DPP) that was to be led as tendency evidence. The DPP sought to introduce evidence that the 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. The proposed evidence aimed to demonstrate that it was unlikely the deceased would have acted in the manner described by the appellant.

The court had to determine whether the evidence proposed by the DPP was admissible as tendency evidence under the Evidence Act 2008 (Vic). The court examined whether the notice given provided reasonable notice of the tendency evidence and identified any specific tendency. The court also considered whether the proposed evidence was relevant and whether it would have significant probative value either on its own or when considered alongside other evidence to be adduced by the DPP. The court found that the proposed evidence was inadmissible as tendency evidence. However, the court noted that the evidence that the deceased was never a holder of a firearms licence might be admissible as circumstantial evidence to support the inference that the deceased did not know how to load a firearm, subject to further argument.

The court ruled that the evidence proposed by the DPP was not admissible as tendency evidence, as it failed to meet the requirements of the Evidence Act. The court did, however, acknowledge that the evidence regarding the deceased’s lack of firearms licence could potentially be relevant in establishing whether the deceased knew how to load a firearm. Further submissions on this aspect were required before a final determination could be made.

Orders