R v Lynn (Rulings 1-4) - [2024] VSC 373

IN THE SUPREME COURT OF VICTORIA

Not Restricted

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
DATES OF HEARING:	19, 23‑27 & 30‑31 October, 1, 8, 17, 20 & 22‑24 November and 13 & 14 December 2023
DATE OF RULINGS:	18 December 2023
DATE OF REASONS:	22 December 2023
CASE MAY BE CITED AS:	R v Lynn (Rulings 1‑4)
MEDIUM NEUTRAL CITATION:	[2024] VSC 373

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EVIDENCE — Criminal trial — Murder — Pre‑trial evidentiary rulings — Accused charged with murders of two campers at Bucks Camp, Wonnangatta Valley, in March 2020 — In July 2020, accused made written statement to police, who covertly recorded meeting — DPP alleges accused told lies in statement amounting to incriminating conduct — From December 2020 to May 2021, police covertly recorded accused on listening devices, in which allegedly made references to deceased — Following arrest in November 2021, accused in record of interview (“ROI”) admitted inter alia contact with deceased at Bucks Camp; explained killings there were accidental; and admitted cleaning/burning campsite, disposing of personal items of deceased, and movement of bodies to, and later burning them at, site near Union Spur Track — Acting on accused’s admissions in ROI, police: (i) searched site near Union Spur Track, finding inter alia burnt skeletal remains; (ii) searched Bucks Camp campsite again, finding more forensic evidence; (iii) re‑examined debris/items found at Bucks Camp campsite prior to ROI, disclosing further forensic evidence; and (iv) obtained evidence of gunshot trajectory testing to assess accused’s account in interview of accidental shooting of female deceased — DPP alleges some of accused’s actions following deaths of deceased amount to incriminating conduct.

RULING 1 — Admissibility of accused’s written statement to police in July 2020, and covert recording of meeting at which statement taken — DPP proposes to lead evidence as proving lies amounting to incriminating conduct — Accused neither cautioned nor advised of right to contact solicitor — Whether police “suspected” accused of unlawfully killing deceased — Whether accused “in custody” of police — Whether accused “under arrest” — Whether evidence “obtained improperly or in contravention of Australian law” — Whether “desirability of admitting the evidence outweighs the undesirability of admitting evidence … obtained in that way” — Accused “in custody”, “under arrest” and “suspected” of homicide — Failure to caution and advise of rights improper and in contravention of Australian law — Desirability of admitting evidence outweighed by undesirability of admitting evidence obtained in these ways — Evidence excluded — Crimes Act 1958 (Vic), ss 459, 464, 464A & 464C; Evidence Act 2008 (Vic), ss 138 & 139.

RULING 2 — Admissibility of ROI conducted in November 2021 — Following arrest, accused largely gave “no comment” answers for two‑and‑a‑half days, then admissions made in afternoon of third day and into fourth day — Whether “admission[s], and the making of [them], were not influenced by … oppressive … conduct [of police] towards” accused — Police engaged in “oppressive conduct” towards accused by numerous questions and remarks, including by deliberately undermining solicitor’s advice to remain silent and accused’s expressed intention to follow that advice — Repeated cautions and opportunities given to seek legal advice rendered ineffectual — Making of admissions in ROI influenced by oppressive conduct by police — ROI inadmissible — Evidence Act 2008 (Vic), s 84 — Unnecessary to decide additional potential bases for exclusion of ROI under ss 85 & 138.

RULING 3 — Admissibility of items of evidence obtained or re‑examined following accused’s admissions in ROI — Whether evidence “obtained … in consequence of an impropriety” — Whether oppressive conduct by police in ROI amounting to “impropriety” — Whether evidence obtained in consequence of improper conduct leading to admissions in ROI — Whether some items of evidence might have been obtained in any event — Whether desirability of admitting evidence outweighs undesirability of admitting evidence obtained in this way — Exclusion of evidence of: (a) search and results thereof near Union Spur Track after ROI; (b) expert opinion concerning testing of shot trajectory and unlikelihood of accused’s version in ROI as to accidental killing of female deceased; and (c) search of campground at Kevington — No exclusion of evidence of: (a) search and results thereof at Bucks Camp after ROI; (b) search and results thereof at Bucks Camp before ROI but re‑examined afterwards; or (c) finding of female deceased’s blood on canopy of male deceased’s vehicle — Evidence Act 2008 (Vic), s 138.

RULING 4 — Admissibility of miscellaneous items of evidence — Whether evidence relevant — Whether probative value of evidence outweighed by danger of unfair prejudice to accused — Exclusion of evidence of: (a) accused’s possession of firearms (except one); (b) accused’s possession of hunting knives, daggers, swords, and the like; and (c) listening device recordings of accused’s utterances — No exclusion of evidence of: (a) accused’s possession of 12‑gauge shotgun; (b) paint history of accused’s vehicle; or (c) unsuccessful searches for male deceased’s drone and both deceased’s phones — Evidence Act 2008 (Vic), ss 55, 56 & 137.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J Dickie with Ms K Hamill	Abbey Hogan, Solicitor for Public Prosecutions
For the Accused	Mr D Dann KC	Chris McLennan & Co

HIS HONOUR:

Overview[1]

[1]As a jury trial was imminent at the time of the rulings in this judgment, these reasons were published only in a restricted fashion on 22 December 2023. Now that the jury trial has concluded (with verdicts on 25 June 2024), these reasons may be published to all. In this current version of the reasons, I have also corrected some typographic errors.

On 19 March 2020, Russell Hill, aged 74, and Carol Clay, aged 73, set off together from Melbourne on a camping trip to the Wonnangatta Valley in the Alpine Region of Victoria. They never returned.

In November 2021, police arrested Gregory Stuart Lynn and charged him with the murders of Mr Hill and Mrs Clay at Bucks Camp in the Wonnangatta Valley on 20 March 2020. Mr Lynn was aged 53 at the time of the alleged offending, and is now 57.

Following a five‑day hearing in the Magistrates’ Court, on 25 January 2023, Mr Lynn was committed for trial in this Court on both charges. Presently, the trial is listed to commence on 13 February next year.

In preliminary argument, Mr Lynn objected to the leading of several parts of the evidence on which the prosecution proposes to rely at trial. Over several days, I heard a voir dire to determine these applications.[2] After hearing viva voce evidence from five police officers, and considering numerous statements and other exhibits, I received extensive written and oral submissions from Mr Dickie, who appeared with Ms Hamill for the Director of Public Prosecutions, and from Mr Dann KC, who appeared for Mr Lynn.
[2]On 17, 20 and 22‑24 November 2023, we were able to sit for only an hour each day.

Earlier this week (on Monday 18 December, in fact), I announced my rulings, which I grouped under four headings. In summary, I ruled as follows.

Under Ruling 1, pursuant to s 138 of the Evidence Act 2008 (Vic), I excluded from evidence a written statement Mr Lynn made to police on 14 July 2020 and a covert audio recording of the taking of that statement. This was because the evidence was obtained improperly and illegally as a result of failures by police to caution Mr Lynn and advise him of his right to contact a legal practitioner before any questioning commenced when they were required to do so, and because the desirability of admitting the evidence was outweighed by the undesirability of admitting the evidence in the way it was obtained.

Under Ruling 2, pursuant to s 84 of the Evidence Act, I ruled that evidence of a video‑recorded interview conducted following Mr Lynn’s arrest, from 22 to 25 November 2021, was inadmissible. This was because the making of admissions in the interview was influenced by oppressive conduct by police towards Mr Lynn.

Under Ruling 3, I ruled on several different items of evidence obtained in consequence of, or following, admissions obtained improperly by reason of the oppressive conduct of police during the interview. Pursuant to s 138 of the Evidence Act, I excluded: (a) evidence of searches and the results thereof at a site near the Union Spur Track; (b) opinion evidence concerning testing of gunshot trajectory and the unlikelihood of Mr Lynn’s version given in the interview as to the accidental killing of Mrs Clay; and (c) evidence of the search of a campground at Kevington.[3] However, I did not exclude: (a) evidence of items found at the Bucks Camp campsite following the interview; (b) evidence of items found at that campsite before the interview but analysed (or successfully analysed upon reconsideration) only afterwards; or (c) evidence of the finding and analysis of blood and other matter belonging to Mrs Clay on the canopy of Mr Hill’s Toyota Landcruiser. In each of the latter instances, I was satisfied that, while the evidence was, to a greater or lesser degree, obtained in consequence of the improperly obtained admissions, the desirability of admitting the evidence outweighed the undesirability of admitting the evidence in the way it was obtained, whereas I was not so satisfied in the former cases.
[3]Mr Dickie conceded that, if the interview were excluded, the opinion evidence and the search of the campground at Kevington should be excluded too. See below.

Under Ruling 4, which concerned miscellaneous items of evidence, pursuant to s 56 and/or s 137 of the Evidence Act, I refused to admit: (a) evidence of firearms (except one) possessed by Mr Lynn; (b) evidence that he possessed daggers, swords, hunting knives, and the like; and (c) evidence of his private utterances recorded covertly via listening devices between December 2020 and May 2021. This was because I was not persuaded of the relevance of each of those pieces of the evidence or, in any event, found that, if it had any relevance, its probative value was outweighed by the danger of unfair prejudice to Mr Lynn. However, I ruled as relevant and admissible: (a) evidence that Mr Lynn possessed an operational 12‑gauge shotgun; (b) evidence of the paint history of his Nissan Patrol; and (c) evidence of unsuccessful searches by police for Mr Hill’s drone and for his and Mrs Clay’s phones.

At the time of announcing these rulings, I indicated I would publish detailed reasons today. These are those reasons.

Prosecution case

[1] Evidence

(a) Major planks of evidence in prosecution case

Before addressing each of the rulings in turn, I shall give a sketch of what I understand to be the main planks of evidence in the prosecution case, which is set out in far more detail in the Summary of Prosecution Opening.

(b) Last known contact with Mr Hill and Mrs Clay

At about 3:30 p.m. on 19 March 2020, other campers driving in the Wonnangatta Valley saw Mr Hill and Mrs Clay stop at Bucks Camp.

On 20 March, Robert Williams, who was camped nearby, saw Mr Hill driving his Toyota Landcruiser towards Bucks Camp. At about 5:00 p.m., Mr Williams saw a drone fly over his campsite. Mr Hill had a drone.

Mr Hill’s last known contact with another was with Robert Aishlin via amateur radio between 6:00 p.m. and 6:40 p.m. on the evening of 20 March. To Mr Aishlin, nothing seemed out of the ordinary with Mr Hill at that time.

(c) Discovery of burnt‑out campsite at Bucks Camp

At about 11:00 a.m. on 21 March 2020, Andrew Marquardt found Mr Hill’s Landcruiser at the campsite at Bucks Camp. The campsite had been burnt, and the canopy of the Landcruiser had been singed. There was no sign of Mr Hill or Mrs Clay.

On 26 March, Mr Hill was reported missing by his wife, Robyn Hill. Two days later, Mrs Clay was reported missing by her friend, Vicky Birch.

On 27 March, local police drove into the Wonnangatta Valley looking for Mr Hill, but did not find him or his campsite. Later that day, after being told earlier by police that they were looking for Mr Hill, Colin Boyd came across Mr Hill’s Landcruiser and the burnt‑out campsite at Bucks Camp. As soon as Mr Boyd was able to get phone reception, he rang police about his discovery, gave them the GPS co‑ordinates of the location, and forwarded some photos he had taken of the campsite.

On 28 March, police went to Bucks Camp. They too saw Mr Hill’s Landcruiser and the burnt‑out campsite. There was still no sign of Mr Hill or Mrs Clay. The Landcruiser’s cabin was locked, but the rear canopy was unlocked. There was a wallet in each footwell of the cabin. Cards had been removed from and left near the wallets, which had been emptied of any cash. Also missing were Mr Hill and Mrs Clay’s mobile phones. A search about 100 metres around the campsite did not disclose anything of immediate relevance. Video footage was taken, and items were seized.

On 1 April 2020, forensic scientist George Xydias examined the scene at Bucks Camp. Items and debris were seized, and additional photographs were taken.

Mr Hill’s Landcruiser was removed, and later examined. His radio transceiver, which was on a bracket attached to the front central console, was operating normally. Its use would have permitted communications with other amateur radio stations in Australasia and further afield.

(d) Extensive searches fail to find Mr Hill or Mrs Clay or their bodies

Over the ensuing weeks and months, extensive searches by police failed to find Mr Hill or Mrs Clay or their bodies.

(e) “Proof‑of‑life” checks all negative

From an early stage in the investigation, and thereafter, “proof‑of‑life” checks indicated that Mr Hill and Mrs Clay were deceased.

(f) Movements of Mr Lynn’s Nissan, his trailer, and Mr Hill’s phone, on 21 March 2020

By late‑April 2020, police had the following information from Tom Matthews, who, on the night of 20 March 2020, was camped with his family near where the Wonnangatta Track crosses the Wonnangatta River. At about 2:00 a.m. on 21 March, Mr Matthews awoke to hear a vehicle towing a trailer arrive at his campsite, engage in turning manoeuvre, and then drive away. The vehicle sounded like it had an automatic transmission and a petrol engine. Mr Lynn’s Nissan Patrol had automatic transmission and a petrol engine.

On 1 April 2020, Mr Lynn placed an advertisement on Gumtree to sell his trailer, along with other items. The ad for the trailer was removed on 3 April. The trailer’s registration remined in Mr Lynn’s name until it expired. The trailer has never been found by police.

By early in July 2020, police had evidence from an automatic number plate recognition (“ANPR”) camera showing Mr Lynn driving his Nissan towing a closed trailer over Mount Hotham at about 9:48 a.m. on 21 March 2020. They also had telephone records indicating that, at almost precisely the same time, Mr Hill’s mobile phone connected to a nearby phone tower at Hotham Heights.

(g) Statement and covert recording on 14 July 2020

On 14 July 2020, two police officers went to Mr Lynn’s home in Caroline Springs to speak to him.

Before arriving at his front door, they noticed that his Nissan Patrol, which was parked out the front, had been painted a different colour since it was seen on the ANPR camera on 21 March 2020. (Later in the investigation, police discovered that Mr Lynn had painted the vehicle on 4 June 2020.)

Without cautioning Mr Lynn or advising him of his right to contact a legal practitioner, police took a written statement from him, and one of the officers covertly recorded the entirety of their interactions.

It is alleged that Mr Lynn lied in the statement as to his movements in the Wonnangatta Valley at the relevant time and in his denial of coming into contact with Mr Hill and Mrs Clay.

(h) Collection and analysis of debris/items found at Bucks Camp in October 2020

On 15 October 2020, at the instance of police, rangers from Parks Victoria collected debris and items from the campsite at Bucks Camp. This included camp chairs, a battery, remains of a solar panel, and an awning. The rangers also raked up ground ash and placed it in bags. On 6 January 2021, the bags of debris were forensically examined and found to contain, among other things, heavy glass, solar panel film, bra hooks, other items from clothing, and the drive mechanism of a side‑mounted electric mirror.

(i) Covertly recorded utterances of Mr Lynn from December 2020 to May 2021

Between December 2020 and May 2021, numerous of Mr Lynn’s private utterances were covertly recorded on listening devices. It is alleged that, on the following occasions, his remarks concerned Mr Hill and Mrs Clay:

a) On separate occasions between 15 and 16 December 2020, while camping near Howitt Plains on his own, Mr Lynn said these things to himself:

·Let’s see if the cops turn up. If they do, we know that they can put a tracker on it.
·Fucking white people, that’s all it is who can we annoy now. Who can we annoy?
·Who decides what’s right and what’s wrong? That’s the thing, judgment, judge does, the law does, the community does.
·Ballistics, you’d think they would want samples of my ammo, you would. Until that.
·Little old people, they looked at me like [inaudible words] fair enough, fair enough.

b) At about 11:00 a.m. on 4 May 2021, while alone in his car, Mr Lynn turned up the volume on his radio after a news story came on about the disappearance of Mr Hill and Mrs Clay. He then said this:

I put a fucking trigger lock on it. You’ve gotta get a second set of trigger lock fucking keys and stick them in there. … They’ve just got to keep pushing all the time, don’t they?

c) At about 5:05 p.m. on 4 May 2021, while alone in his car after another radio news story about Mr Hill and Mrs Clay, Mr Lynn said this:

They’re sitting on a beach in fucking Queensland. Nudist beach. Butt naked. Playing on his fucking drone. Running up and down the beach. Taking pictures of the young people. Who’s got the biggest dick?

(j) Awning removed from Mr Lynn’s Nissan Patrol

On 7 November 2021, in an attempt to elicit information from the public, police released an image showing Mr Lynn’s Nissan Patrol and trailer passing through the ANPR site on the Great Alpine Road on 21 March 2020. The image showed a distinctive side‑mounted awning attached to the Nissan. By the time of Mr Lynn’s arrest two weeks later, the awning had been removed from his vehicle.

(k) Covertly recorded utterances of Mr Lynn on 13 November 2021

On 13 November 2021, Mr Lynn was covertly recorded speaking with his wife while they watched a 60 Minutes television feature on Mr Hill and Mrs Clay. Mrs Lynn joked about Mr Lynn having to hide things, how Mrs Clay did not like camping, and how she got “donked” on her head after someone got mad with her. She referred to the drone. Mr Lynn told his wife there were only four hours in the day when he was in the area where the campers went missing, and how it was not funny.

(l) Arrest on 22 November 2021

On 22 November 2021, after leaving his home at about 5:30 a.m., Mr Lynn drove to an area off Doolans Plains Road, Arbuckle, in the Alpine Region, where he arrived at around 12:45 p.m.

Soon after 5:30 p.m., police arrested him. He was cautioned and advised of his rights. Then, in the company of two detectives, he was driven to Sale Police Station, arriving at about 9:16 p.m.

(m) Interview from 22 to 25 November 2021

Mr Lynn was formally interviewed for a total period of over nine hours over the four days from 22 to 25 November. While he made some denials, in the main, and in accordance with legal advice, Mr Lynn initially made “no comment” responses to police questions. He persisted with that approach until the afternoon of the third day of the interview, when he completely changed tack. In summary, he then admitted that Mr Hill and Mrs Clay camped near him at Bucks Camp, that he was involved in their accidental deaths, and that, thereafter, by various means, he sought to cover up these events and his involvement in them. More particularly, he said the following.

From 18 March 2020, Mr Lynn camped at Bucks Camp. On 19 March, Mr Hill and Mrs Clay set up camp beside him. Initially, their interactions were cordial. However, on the evening of 20 March, Mr Hill told Mr Lynn that he had video footage, taken from his drone, of him hunting in an illegal fashion close to the campsite, and that he was going to take the footage to the police. Mr Lynn denied he had done any such thing. Mr Hill retorted, “Well, you know, I could just say that you shot through the camp.” This, Mr Lynn said, was also untrue, but he gained the impression that Mr Hill just wanted him to leave the area. Annoyed, Mr Lynn went back to his camp. His response thereafter, he admitted, was childish, for he sought to annoy Mr Hill in return by playing loud music in his Nissan and by opening its doors to ensure the sound travelled across to his neighbours’ camp.

Later that evening, Mr Lynn noticed Mr Hill walking away from the Nissan. He had taken Mr Lynn’s Barathrum 12‑gauge shotgun from the front seat of the vehicle, along with the magazine. Mr Lynn approached Mr Hill and asked him to give back the gun. Mr Hill said he was going to take it to police. As Mr Lynn moved towards him to retrieve the gun, Mr Hill pulled the action back and fired a couple of rounds into the air. Fearful of what Mr Hill might do next, Mr Lynn first hid beside the Landcruiser. Then, he tried to wrest the gun from him. Mr Lynn’s hand was on the barrel, not the trigger. While they were struggling at the front of the Landcruiser, the gun discharged accidentally. The shot hit the left side‑mirror of the Landcruiser and then struck Mrs Clay in the head, killing her instantly. Mr Hill let go of the gun, and Mr Lynn took it. As there was a round left in it, he fired the gun into the air to make it safe, and then put it in his Nissan and shut the doors, so that Mr Hill could not get hold of it again.

Shortly thereafter, Mr Hill, who was yelling, came at Mr Lynn with a clenched left fist and a kitchen knife in his right hand. He took a swing with his left hand, which Mr Lynn blocked. Next, Mr Hill swung at him with the knife, whereupon Mr Lynn grabbed his wrist. Mr Hill’s momentum caused them to fall to the ground, with him landing on top of Mr Lynn. When on the ground, it became apparent that the knife had accidentally gone into Mr Hill’s chest in the fall. Mr Hill crawled for a moment, then stopped. Mr Lynn checked for a pulse, but he was dead.

Mr Lynn then flew into a panic. He feared he would be wrongly blamed, especially given that his shotgun was involved in Mrs Clay’s death. He thought his career as an airline captain would be over, and that he would never be allowed to pursue his interests as a sporting shooter and a hunter. So, he did a number of things designed to cover up, and conceal his involvement in, the deaths of Mr Hill and Mrs Clay. For example, he cleaned up the campsite, and burned some items, including the broken side‑mirror of the Landcruiser and Mr Hill and Mrs Clay’s tent. He removed cash and cards from their wallets to make it look like a robbery. He put their bodies in his trailer and drove them to a point just off Union Spur Track, which is in another part of the Alpine Region. On his way home to Caroline Springs, he disposed of some personal items belonging to Mr Hill and Mrs Clay, including by throwing their phones in a creek. He burnt the drone and washed out his trailer, which he sold subsequently.

A few months later, Mr Lynn returned to the site near Union Spur Track, where he covered the bodies with sticks and rocks. Later still, in November that year, after the winter snows had melted, he returned to the same site again, this time burning the bodies to ensure the remains stayed hidden.

At the conclusion of the interview on 25 November, which by then had run into a fourth day, Mr Lynn was charged with two counts of murder.

(n) Seizure and examination of Mr Lynn’s Nissan Patrol, guns, other weapons

At the time of his arrest, police found in Mr Lynn’s Nissan Patrol a Ruger rifle in a case, ammunition, a rifle bolt, various hunting knives, an axe, and a hatchet.

On 29 November 2021, the interior cabin of the Nissan was examined for possible bloodstaining, but no blood was detected.

From 2 December 2021, paint samples from the Nissan were examined. In the opinion of a forensic officer, the original colour of the vehicle was white, corresponding with the specification on the engine bay and the car’s registration. A dark grey paint had been applied over the white original topcoat. A beige re‑spray had subsequently been applied over the dark grey paint to the driver side and passenger side panels.

On the day of his arrest, police also seized weapons from Mr Lynn’s home, including his Barathrum 12‑gauge shotgun. That shotgun’s safety mechanism was operable. The only manner by which it could be discharged was the normal method of applying pressure to the trigger, and the trigger pull was above the normal limits.

(o) Evidence discovered or realised after or in consequence of admissions in interview

Between 29 November and 1 December 2021, police searched and examined the site near Union Spur Track, to which Mr Lynn had pointed them in the interview. They found, among other things, a ring belonging to Mrs Clay and burnt skeletal remains of two persons, one of whom was later identified (via dental records) as Mr Hill.

On 11 February 2022, the metal canopy of Mr Hill’s Landcruiser was examined again by forensic officers. They found spattered bloodstains and apparent fatty deposits on the canopy. Forensic opinion is that force, in addition to gravity, had been applied to liquid blood while a person was positioned in the vicinity of the vehicle so as to produce the bloodstains. Mrs Clay’s DNA was detected in those bloodstains and the fatty deposits.

In March 2022, debris collected from the campsite at Bucks Camp back in October 2020 was examined again. Mrs Clay’s DNA was detected on three cranial bone fragments found in that debris.

From 2 March 2022, during a further search of the Bucks Camp campsite, police found:

a) a cranial bone fragment (which did not appear burnt) containing Mrs Clay’s DNA;

b) a fired 12‑gauge projectile of an indeterminate brand containing Mrs Clay’s DNA; and

c) pieces of glass, the writing on which indicated they were from a vehicle’s side‑mirror.

The same expert who examined Mr Lynn’s 12‑gauge shotgun opined that shot trajectory testing performed in February and May 2022 showed that the version given by him in the interview as to how Mrs Clay was shot was most unlikely.

[2] How the prosecution case is put

At present, it is unclear to me precisely how or in what circumstances it is said that Mr Lynn murdered Mr Hill and Mrs Clay. In a sense, the prosecution case involves acceptance of parts of Mr Lynn’s account in his interview, including his upset at Mr Hill’s use of the drone as a motive of sorts, and rejection of other parts of his account (including as to the accidental killings).

What is clearer is that it is alleged that several of Mr Lynn’s actions after Mr Hill and Mrs Clay died amount to incriminating conduct. Thus, the Director has filed a notice identifying the following instances of alleged conduct by Mr Lynn to be relied in that way:

a) eliminating the witness to the first killing;

b) failing to call for assistance;

c) cleaning the area and setting fire to items at the scene at Bucks Camp;

d) removing items from the wallets of Mr Hill and Mrs Clay;

e) removing from the scene their bodies, their telephones, the Landcruiser’s car key, and Mr Hill’s drone;

f) hiding the bodies in the remote wilderness;

g) disposing of the mobile telephones of Mr Hill and Mrs Clay;

h) disposing of Mr Hill’s drone;

i) disposing of the trailer used to carry the bodies;

j) in May 2020, returning to the site of the bodies (near Union Spur Track) to ensure they remained hidden and potentially to take further steps to conceal them;

k) in June 2020, painting his vehicle a different colour;

l) on 14 July 2020, lying to police officers about not having met Mr Hill and Mrs Clay and not having camped at Buck’s Camp;

m) in November 2020, returning to the site of the bodies (near Union Spur Track), burning them, and breaking up and scattering the remains;

n) on 20 December 2020, lying to a police officer by saying that he had not seen Mr Hill and Mrs Clay;[4] and

o) removing the side‑mounted awning of his vehicle.

[4]In the course of the voir dire, Mr Dickie advised that the evidence that would have supported this assertion is no longer to be led.

The notice does not specify which element or elements of murder any one piece of conduct is said to support. That is an argument yet to be had. But it can be assumed that it will be submitted by the Director that all of these instances of alleged conduct go, at least, to implied admissions of unlawful killing, or to negating accident.

[3] Complete defence in Mr Lynn’s interview

Whatever might be said of the prosecution case, it is plain that, if the essence of Mr Lynn’s account in the interview were led in evidence and accepted by a jury, or if it cannot be excluded beyond reasonable doubt by a jury, he must be acquitted of both murder charges (and, for that matter, of the unindicted alternatives of manslaughter too).

Ruling 1: Statement and covert recording of 14 July 2020

[1] Introduction

I turn now to my first ruling, which concerns the written statement made by Mr Lynn to police at his premises on 14 July 2020, and the covert recording of the taking of that statement.

It is said that the alleged lies told in the statement — including as to his movements in the Wonnangatta Valley at the relevant times and his not meeting Mr Hill and Mrs Clay — amount to incriminating conduct.[5]
[5]As noted above, at paragraph 2(l) of the Director’s notice of evidence of incriminating conduct, it is said that Mr Lynn’s “lying to police officers [on 14 July 2020] about not having met Mr Hill and Mrs Clay and not having camped at Bucks Camp” amounts to incriminating conduct, whereas, in the summary of prosecution opening, at paragraph 77, this is said: “It is alleged that, knowing he had murdered them, the accused lied about not having seen Mr Hill and Mrs Clay and falsely put himself one day ahead of their known movements to try to distance himself from them and to avoid his connection with them being discovered by police”.

Mr Dann submits that, by application of s 138(1) of the Evidence Act, the evidence is not to be admitted. Mr Dickie resists that submission.

[2] Applicable statutory provisions

Before turning to the issues, the evidence and counsel’s submissions, I shall set out the statutory provisions to be considered in determining this and other rulings.[6]
[6]Section 138 of the Evidence Act will be considered under the third group of rulings as well. I shall set out s 84 under cover of Ruling 2 and ss 55, 56 and 137 under cover of Ruling 4.

Relevantly, s 138 of the Evidence Act provides as follows:

Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law—

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

…
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account—
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject‑matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

Next, relevantly, s 464A of the Crimes Act 1958 (Vic) is in these terms:[7]
[7]I have also omitted the notes to this provision.

Detention of person in custody
(1)Every person taken into custody for an offence (whether committed in Victoria or elsewhere) must be—
(a)released unconditionally; or
(b)released on bail; or
(c)brought before a bail justice or the Magistrates' Court—

within a reasonable time of being taken into custody.
(2)If a person suspected of having committed an offence is in custody for that offence, an investigating official may, within the reasonable time referred to in subsection (1)—
(a)inform the person of the circumstances of that offence; and
(b)question the person or carry out investigations in which the person participates in order to determine the involvement (if any) of the person in that offence.

(3)Before any questioning (other than a request for the person's name and address) or investigation under subsection (2) commences, an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.
(4)In determining what constitutes a reasonable time for the purposes of subsection (1) the following matters may be considered—

(a)the period of time reasonably required to bring the person before a bail justice or the Magistrates’ Court;
(b)the number and complexity of offences to be investigated;
(c)any need of the investigating official to read and collate relevant material or to take any other steps that are reasonably necessary by way of preparation for the questioning or investigation;
(d)any need to transport the person from the place of apprehension to a place where facilities are available to conduct an interview or investigation;
(e)the number of other people who need to be questioned during the period of custody in respect of the offence for which the person is in custody;
(f)any need to visit the place where the offence is believed to have been committed or any other place reasonably connected with the investigation of the offence;
(g)any time taken to communicate with a legal practitioner, friend, relative, parent, guardian or independent person;
(h)any time taken by a legal practitioner, interpreter, parent, guardian or independent person to arrive at the place where questioning or investigation is to take place;
(i)any time during which the questioning or investigation of the person is suspended or delayed to allow the person to receive medical attention;
(j)any time during which the questioning or investigation of the person is suspended or delayed to allow the person to rest;
(k)the total period of time during which the person has been in the company of an investigating official before and after the commencement of custody;
(l)any other matters reasonably connected with the investigation of the offence.

Relevantly, s 464C of the Crimes Act provides as follows:

Right to communicate with friend, relative and legal practitioner
(1)Before any questioning or investigation under section 464A(2) commences, an investigating official must inform the person in custody that he or she—
…
(b)may communicate with or attempt to communicate with a legal practitioner (whether the term legal practitioner or lawyer is used)—

and …
the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication.

Section s 464 of the Crimes Act is a definitions provision. Section 464(1), which concerns when a person is “in custody”, is in these terms:

(1)For the purposes of this Subdivision [30A] a person is in custody if he or she is—
(a)under lawful arrest by warrant; or
(b)under lawful arrest under section 458 or 459 or a provision of any other Act; or
(c)in the company of an investigating official and is—
(i)being questioned; or
(ii)to be questioned; or
(iii)otherwise being investigated—

to determine his or her involvement (if any) in the commission of an offence if there is sufficient information in the possession of the investigating official to justify the arrest of that person in respect of that offence.

Sections 464, 464A and 464C are in Subdivision 30A (“Custody and investigation”) of Division 1 (“Pleading procedure, proof & c.”) of Part III (“Procedure and punishment”) of the Crimes Act.

Finally, relevantly, s 459 of the Crimes Act (which is in Subdivision 30 (“Apprehension of offenders”) of Division 1 of Part III) is in these terms:

Powers of police officer … to apprehend offenders
(1)In addition to exercising any of the powers conferred by section 458 or by or under any other Act a police officer … may at any time without warrant apprehend any person—
(a)he believes on reasonable grounds has committed an indictable offence in Victoria (including any indictable offence which may be heard and determined summarily); …

[3] Matters in issue

The first issue to be determined in this ruling is whether, for the purposes of s 464A(2) of the Crimes Act, from the commencement of their meeting with Mr Lynn, the police officers “suspected” him of the unlawful killing of Mr Hill and Mrs Clay or whether, as they said in their evidence, he was merely a person of interest.

Another disputed issue is whether, within the meaning in s 464A(2), Mr Lynn was in the officers’ custody at that time. As can be seen from the provisions extracted above, by force of s 464(1)(c), he would be in custody if he was in their company and was to be questioned or was being questioned or otherwise investigated to determine his involvement (if any) in the commission of those offences, and there was sufficient information in their possession to justify his arrest in respect of those offences. As to the latter requirement, we have seen in an extract above that s 459(1)(a) of the Crimes Act provides that a police officer may, without warrant, apprehend a person he or she believes on reasonable grounds has committed an indictable offence in Victoria.

If all of those elements were met, then, before any questioning or investigation commenced, the police were required, pursuant to s 464A(3), to caution Mr Lynn that he did not have to say or do anything but that anything he did say or do may be given in evidence. There is no dispute that the police did not caution him. In addition, on this hypothesis, the police were required, pursuant to s 464C(1)(b), to inform Mr Lynn that he may communicate with or attempt to communicate with a legal practitioner. They did not do this either.

If I made the foregoing findings, it would be open to conclude that, as a result, the statement and the covert recording were obtained improperly and in contravention of an Australian law (namely, ss 464A(3) and 464C(1)(b) of the Crimes Act), within the meaning of s 138(1) of the Evidence Act.

If I reached that conclusion, the final question would be whether, having regard to all the circumstances, including the mandatory considerations in s 138(3), the Director failed to establish that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence obtained in this way.

If they were my conclusions, then, by operation of s 138(1), the evidence would not be admitted at trial.

As I explained in the overview to these reasons, I have reached those conclusions and made that ruling. My reasons for doing so follow.

[4] Viva voce evidence

(a) Introduction

Before turning to counsel’s submissions and my findings of fact and legal conclusions on these issues, I shall set out some of the relevant viva voce evidence.

The police officers who went to Mr Lynn’s premises and took the statement from him were Detective Senior Constable Abbey Justin and Detective Senior Constable Brett Florence. Detective Justin made the covert recording. Both officers gave sworn evidence and were cross‑examined. Also before me were their statements, transcript of their evidence at the committal hearing, their diary notes, and copies of numerous emails between police.

While the evidence of other detectives (and their statements, diary notes, etc) received on the voir dire was also relevant to the matters in issue, I shall not summarise that evidence now, but shall refer to parts of that evidence from time to time.

(b) Detective Senior Constable Abbey Justin

In April 2020, Detective Justin was a member of the Missing Persons Squad. She was allocated the role of informant in this investigation until 31 August 2020, when she was transferred to the Homicide Squad.

At about 3:45 p.m. on 14 July 2020, Detective Justin and Detective Florence attended Mr Lynn’s home address in Caroline Springs.

Detective Justin said that, at the time she and Detective Florence spoke to Mr Lynn, she considered him to be a person of interest, not a suspect. She said that, if she regarded him as a suspect, she would have been required to caution him, and would have done so. But, as he was regarded a person of interest, no caution was given or required. She also said that, if they thought he had committed an offence, he would have been arrested and given a caution.

Before they entered the house, Detective Justin noticed Mr Lynn’s Nissan Patrol parked on the street. They saw that it had been painted a different colour from the colour it was when captured by the ANPR camera on 21 March 2020. When police spoke to Mr Lynn, he told them he painted the vehicle with his children as a lockdown project. As they were leaving the premises nearly an hour later, Detective Justin took a photograph of the Nissan.

When speaking to Mr Lynn, Detective Justin micro‑recorded the conversation, without telling him she was doing so. She said that this is her usual practice when speaking to significant witnesses, persons of interest, or “someone that might be involved in the investigation”. She gave an example of doing this very thing in the same investigation — namely, when she covertly micro‑recorded Mr Hill’s wife during a visit. Another example was on 23 July 2020, when she covertly micro‑recorded a conversation she and Detective Florence had with a person of interest, “DG”, while taking a statement from him. When asked why she did not tell those persons she was recording them, Detective Justin said that people may not be truthful if they knew she was recording things.

The detective was taken to several emails between the police involved in the investigation in the lead‑up to 14 July 2020. In those emails, Mr Lynn was often referred to as a “suspect”. Notwithstanding these references, she maintained that she regarded Mr Lynn as a person of interest on 14 July 2020. She did not tell those who authored the emails that Mr Lynn should not be referred to as a suspect at that stage.

Detective Justin also said that, notwithstanding her receipt, on 15 July 2020, of an email from Detective Sergeant Sally‑Anne Leach saying that Detective Senior Sergeant Anthony Combridge “would like us to get a warrant for [Mr Lynn’s] bank records”, and despite her understanding that, to obtain such a warrant, police would have “to justify … that we believe [he] is involved”, she still regarded him as only a person of interest at that time.

Later in her evidence, however, she said that, when giving that response, she believed she was being asked about her thoughts in the period prior to speaking to Mr Lynn on 14 July. She said that, after a debrief with Detective Florence in the car as they left Mr Lynn’s premises on that day, she felt “really uncomfortable during that encounter [with Mr Lynn]”. I took this as her attempt to convey that she considered him a suspect at that point.

(c) Detective Senior Constable Brett Florence

Detective Florence has been a police officer for 34 years, and has been at the Missing Persons Squad since 2016.

He became the informant in this matter from May 2021. Before him, Detective Senior Constable Candice Robson had been the informant from the time Detective Justin ceased that role and moved to the Homicide Squad.[8]
[8]While nothing appears to turn on this, in her evidence on the voir dire, I understood Detective Robson to say that she was the informant until around October 2021, when “there was a handover of the file to … [Detective] Florence”.

Like Detective Justin, Detective Florence said that, when they went to speak to Mr Lynn on 14 July 2020, he considered him to be a person of interest, not a suspect.

His view did not change when, before speaking to Mr Lynn, he noticed his Nissan had been painted a different colour. He did, however, think it was “strange” that the vehicle had been painted in that way, because “it appeared to [him] that it was an attempt to paint the car in a camouflage type … format”. He recalled Detective Justin photographing the vehicle as they were leaving, but there was no discussion between them about doing this.

Detective Florence did not recall any conversation with Detective Justin when they left Mr Lynn’s premises or during their journey to her home, where he dropped her off. Later in his evidence, he said that, during the journey, they discussed Mr Lynn’s statement, but he could not recall exactly what was said.

He was aware that Detective Justin was covertly micro‑recording their meeting with Mr Lynn. When they arrived at his premises, Detective Justin said she was going to make a micro‑recording, but they had no discussion about it. He was also aware that this was her practice.

Detective Florence, like Detective Justin, was copied into several emails among police involved in the investigation in the lead‑up to 14 July 2020. However, he was not aware that anyone was using the term “suspect” to refer to Mr Lynn.

He said that, amongst “the crew”, between taking the statement on 14 July 2020 and the next day, when there was a request from Detective Combridge to obtain a warrant concerning Mr Lynn’s banking records, Mr Lynn had gone from a person of interest to a suspect. As we shall see later, however, in other parts of his evidence, he gave inconsistent answers about when, in his mind, Mr Lynn became a suspect.

Detective Florence accepted that in his diary notes he used the abbreviation “POI” — i.e., person of interest — even when he regarded Mr Lynn a suspect.

[5] Was Mr Lynn suspected of an offence?

(a) The applicable test

By s 464A(2), a necessary — but not a sufficient — condition of the requirement of a police officer to caution a person (under s 464A(3)) or to inform the person that he or she may communicate with a legal practitioner (under s 464C(1)(b)) is that the person be “suspected of having committed an offence”.

A suspicion is not a belief that a person has committed an offence.[9] But there must be some factual basis for a suspicion. As the High Court said in a unanimous joint judgment in 1990 in George v Rockett:[10]

[S]uspicion and belief are different states of mind ...
Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam, “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’” The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. …

[9]See, e.g., R v Kerr & Anor (Ruling No 1) [2015] VSC 64 at [93] (per T Forrest J).

[10]George v Rockett (1990) 170 CLR 104 at 115 (per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) (footnotes omitted).

In 1992, in R v Heaney (“Heaney”), in their joint judgment, Phillips CJ, Crocket J and O’Bryan J, after referring to George v Rocket and other authorities, held that a suspicion, for the purposes of s 464H of the Crimes Act, is “a state of mind arrived at upon consideration of known facts out of which an apprehension that a person might possibly have committed an offence is created”.[11]
[11]R v Heaney [1992] 1 VR 531 at 548. See also, e.g., R v Laracy (2007) 180 A Crim R 19 at 34[87]‑[90] & footnote 23 (per Osborn J).

Two years later, in their joint judgment in R v Alexander (“Alexander”), which also involved an appeal concerning the application of s 464H, Crockett, Southwell and Cummins JJ said this of the foregoing passage in Heaney:[12]

The words ‘might possibly’ in that passage do not operate so as to include within the principle there stated the mere advertence to the possibility of a person having committed an offence (as distinct from an apprehension created thereof). What is required is a positive apprehension.

[12]R v Alexander [1994] 2 VR 249 at 256.

The operative words of s 464H(1) (“a person who … (a) was suspected [or] (b) ought reasonably to have been suspected … of having committed an offence”) are different from their equivalents in s 464A(2) (“a person suspected of having committed an offence”). In particular, while both provisions employ the term “suspected”, by use of the words “ought reasonably to have been suspected” as an alternative in paragraph (b) to “was suspected” in paragraph (a), s 464H(1) expressly includes what might be described as an objective limb of suspicion, whereas there is no equivalent limb in s 464A(2). That said, it appears that the remarks of each Court in Heaney and Alexander apply to the meaning of “suspected” within each limb of s 464H(1).

In 2015, in R v Kerr & Anor (Ruling No 1) (“Kerr”), in the course of pre‑trial rulings in a murder trial, T Forrest J considered the “suspicion” limb in s 464A(2). In doing so, his Honour noted that the Court in Heaney, in considering the meaning of suspicion for the purposes of s 464H, extracted the following passage from Hampel J’s ruling in R v Redenbach, which (in T Forrest J’s view) explained the rationale for the low threshold:[13]

I don’t think that for the purpose of categorising a person as a suspect one has to go further than to take the view that there are circumstances which tend to arouse suspicion of complicity. It doesn’t have to be supported by objective direct evidence. The Act seeks to protect people who are suspected of committing certain offences from interrogation contrary to the provisions of the section [464H]. The whole purpose of this legislation is to ensure that if the person moves from the position of being a suspect to a position of being an accused, the Court has before it information in the form which renders voir dires unnecessary in most cases.[14]

[13]R v Kerr & Anor (Ruling No 1) [2015] VSC 64 at [93].

[14]R v Redenbach (Unreported, Supreme Court of Victoria, Hampel J, 27 March 1990) at 411.

In T Forrest J’s opinion, those observations applied “equally to the relevant provisions in this case”, and it followed that the question he was to consider was whether the detectives “apprehended that [the accused] might possibly have unlawfully killed the deceased”.[15]
[15]R v Kerr & Anor (Ruling No 1) [2015] VSC 64 at [93]‑[94].

Eight years earlier, in the course of pre‑trial rulings in the murder trial of R v Szitovszky, Whelan J addressed the meaning of “suspected” in s 464H(1) and the possible tension between the foregoing passages in Heaney and Alexander. It is a long extract, but, in my respectful opinion, it repays considering in full:[16]
[16]R v Szitovsky [2007] VSC 69 at [86]‑[94] (my emphasis by underlining).

[86] … [I]t is necessary to address the issue dealt with in the quoted passages from Heaney and Alexander in more detail.
[87] The quoted passage in Heaney follows immediately after the approval of an observation made by Vincent J in Walsh v Loughnan.[17] That observation was to the effect that although a suspicion requires a lesser factual basis than a belief, it must nevertheless be built upon some factual foundation.
[17]Walsh v Loughnan [1991] 2 VR 351.
[88] Walsh v Loughnan did not concern s 464H. It concerned provisions then in the Act dealing with orders directing a person to give a sample of blood. In that context, Vincent J addressed a number of issues including the distinction between suspicion and belief. In relation to suspicion, Vincent J quoted at length from the then recent High Court decision in George v Rockett,[18] in which particular reliance had been placed upon the analysis of what amounted to a suspicion in the earlier High Court decision in the bankruptcycase of Queensland Bacon v Rees.[19] The Appeal Division in Heaney also cited Queensland Bacon v Rees.
[18]George v Rockett (1990) 170 CLR 104.
[19]Queensland Bacon Pty Limited v Rees (1966) 115 CLR 266.
[89] What Kitto J had said in Queensland Bacon v Rees, which Vincent J set out in full in the course of quoting from George v Rockett and to which the Appeal Division in Heaney was clearly referring in the bracketed reference in the quoted passage, was the following:[20]
[20]Queensland Bacon Pty Limited v Rees (1966) 115 CLR 266 at 303.
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’s Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub‑s (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub‑section describes — a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.

[90] That passage from Queensland Bacon v Rees had earlier been considered and relied upon by Ormiston J in Commissioner for Corporate Affairs v Guardian Investments.[21] The issue there, which arose under the Companies (Victoria) Code, was whether the Commission had reason to suspect that a person had committed an offence. Ormiston J’s judgment is instructive in two respects.
[21]Commissioner for Corporate Affairs v Guardian Investments Pty Ltd [1984] VR 1019.
[91] First, Ormiston J drew a distinction between a suspicion that a person may have committed an offence and a suspicion that a person has committed an offence.[22]
[22]Commissioner for Corporate Affairs v Guardian Investments Pty Ltd [1984] VR 1019 at 1023.
[92] Second, Ormiston J considered the authorities in a number of contexts, including criminal contexts, on the concept of “suspect” and expressed a preference for the analysis of Kitto J in Queensland Bacon v Rees. After referring to two decisions of the Australian Capital Territory Supreme Court in the criminal context, Ormiston J said:[23]
[23]Commissioner for Corporate Affairs v Guardian Investments Pty Ltd [1984] VR 1019 at 1025.
Neither of these cases is sufficient reason for me to consider that the expression ‘reason to suspect’ comprehends something as slight as reason to consider whether a particular offence has been committed or not. In particular if the latter two cases were intending to express such an opinion I would not follow them. My conclusion is that the word ‘suspect’ requires a degree of satisfaction, not necessarily amounting to belief, but at least extending beyond speculation as to whether an event has occurred or not. In the present case I am not satisfied that the witness Whitehouse had, adapting Kitto J’s words, any more than reason to consider or look into the possibility of the existence of offences by one or more persons ... .

[93] It seems to me that Ormiston J’s distinction between suspecting something may have happened and suspecting that it had happened, and his conclusion that a suspicion is more than merely considering and looking into a possibility and does require some degree of satisfaction not necessarily amounting to belief, accurately reflects what Kitto J said in Queensland Bacon v Rees and also accurately reflects what was later said by the Appeal Division in Heaney and in Alexander. The clarification of the reference made in Heaney to “might possibly” by the Court in Alexander, and that Court’s emphasis upon what is required as being a “positive apprehension”, seems to me to be an articulation of the same analysis as that of Ormiston J.
[94] Based upon the above I proceed on the basis that:
(1) A suspicion does require a degree of satisfaction, although not necessarily amounting to belief. It must be more than speculation. It must have some factual foundation.
(2) A suspicion that the accused may have committed the offence is not what s 464H provides for. The suspicion must be that he had committed the offence. A very low level of satisfaction is required because it is only a suspicion, but the threshold is not to be further lowered by relating the suspicion to something which may have happened or which is characterised as only a possibility.
(3) It is not sufficient to merely demonstrate that the investigating officer was considering and looking into the possibility that the accused had committed the offence.

In 2013, in the course of a pre‑trial ruling in R v Meade (Ruling No 1) (“Meade”), which was another murder trial, Weinberg JA had occasion to consider the meaning of the term “suspected” in s 464H.[24] After setting out the long‑established meaning of “suspect” in the context of police questioning, including by reference to the Judges’ Rules of 1912 in England, his Honour referred to decisions of superior courts in this State, including Commissioner for Corporate Affairs v Guardian Investments, R v Vollmer,[25] Heaney and Alexander.[26] At the conclusion of his reasons on this issue, Weinberg JA said the following:[27]

At the time of the execution of the general warrant, [the police officer] was simply, and very properly, exploring the possibility that the accused may have been involved in the attack upon his former wife. As Whelan J noted in R v Szitovszky, it is “not sufficient to merely demonstrate that the investigating officer was considering and looking into the possibility that the accused had committed the offence”.[28] I consider that the evidence in this case goes no further than that.

[24]R v Meade (Ruling No 1) [2013] VSC 250.

[25]R v Vollmer [1996] 1 VR 95.

[26]R v Meade (Ruling No 1) [2013] VSC 250 at [55]‑[85].

[27]R v Meade (Ruling No 1) [2013] VSC 250 at [86].

[28]R v Szitovszky [2007] VSC 69 at [93].

Thus, for present purposes, the upshot of the foregoing decisions is manifold. First, in reliance, at least in part, on the reasoning in Heaney and Redenbach concerning “suspected” in s 464H, T Forrest J in Kerr construed the “suspicion” limb of s 464A(2) to require that the police “apprehended that [the accused] might possibly have unlawfully killed the deceased”.[29] Secondly, and on the other hand, the Court in Alexander held that the words “might possibly” in the relevant passage in Heaney “do not operate so as to include within the principle there stated the mere advertence to the possibility of a person having committed an offence (as distinct from an apprehension created thereof)”. Thirdly, and further, in Szitovszky, Whelan J held that “[a] suspicion that the accused may have committed the offence is not what s 464H provides for”, and that “[t]he suspicion must be that he had committed the offence”. Fourthly, in Meade, Weinberg JA referred, with approval, to at least the last of Whelan J’s conclusions in Szitovszky extracted above. Finally, while it does not appear that T Forrest J was referred to or had regard to either Alexander or Szitovszky (for he mentioned neither decision in his reasons),[30] his Honour was the only judge in this series of decisions who squarely considered the meaning of “suspected” in s 464A(2), albeit that he did so, at least in part, by reference to authority on the meaning of that concept in s 464H(1).
[29]In Kerr, the challenge to the admission of the evidence ultimately failed on “the balancing act” question under s 138(1) of the Evidence Act. The accused (Mr Lewis) took an application for an interlocutory appeal to the Court of Appeal (see Hinton (a pseudonym) v The Queen [2015] VSCA 40 (Redlich, Weinberg and Kaye JJA)). In refusing the application for leave to appeal, however, the Court did not say anything about the test T Forrest J had applied in determining whether the accused was suspected of having unlawfully killed the deceased.
[30]His Honour mentioned R v Meade (Ruling No 1) [2013] VSC 250 at [115], but that was a reference directed to s 90 of the Evidence Act. See R v Kerr & Anor (Ruling No 1) [2015] VSC 64 at [139] (footnote 102).

In the circumstances of this case, it is unnecessary to resolve these tensions, if there be any in the end. This is because, as will be seen, whether, for the purposes of the “suspicion” limb of s 464A(2), Mr Lynn must establish that the detectives “apprehended that [Mr Lynn] might possibly have unlawfully killed the deceased” (as T Forrest J held in Kerr) or whether the “suspicion must be that he had committed the offence[s]” (as the reasoning of Whelan J in Szitovszky concerning s 464H, if adapted to s 464A(2), would require), I am satisfied that the test is met here, and more — that is to say, I am satisfied that the detectives both suspected and believed Mr Lynn had committed those offences, and there were reasonable grounds for that suspicion and belief.

(b) Director’s submissions

Mr Dickie submitted that, for several reasons arising from the evidence on the voir dire, I should not be so satisfied.

First, he submitted that only very limited evidence was available to police by 14 July 2020 concerning what had happened to Mr Hill and Mrs Clay. For example, when the Missing Persons Squad took carriage of the matter, they considered four scenarios remained open: double‑murder; murder/suicide; misadventure; and elopement. While proof‑of‑life checks were unsuccessful, the bodies of the missing persons had not been discovered. Police investigated multiple public sightings of Mr Hill and Mrs Clay after 20 March 2020. Detective Florence considered the possibility that Mr Lynn may have assisted them to elope. Searches had been conducted, but had stalled, in part as a result of the remote location and the weather, as well as closure of the park. The source of the fire at Bucks Camp was undetermined and still the subject of active investigative steps. There was little phone data available for Mr Hill and Mrs Clay’s phones.

Secondly, submitted Mr Dickie, several ongoing inquiries concerning other potential persons of interest were underway. As of 14 July 2020, multiple information reports had been received, and they were continuing to come in. A media request was made that any person who had been in the Wonnangatta Valley at the relevant time should contact police, even if they had not seen the missing persons or their vehicle. At the time Mr Lynn was spoken to, police were still continuing to work through the information reports and speaking to people. The relationships between the missing persons and some of their family members were considered, as were their finances. Movements of family members and associates of the missing persons were investigated, including by obtaining call charge records (“CCRs”) and taking statements as to their whereabouts at the relevant times. At the time of speaking with Mr Lynn, other drivers whose vehicles were captured on ANPR cameras on 21 March 2020 had been “eliminated” by camera data, but CCR analysis for those drivers was not complete. Others in the Wonnangatta Valley were considered, including DG and “AV” (known also as “Button Man”). There were reports of unidentified persons (not Mr Lynn) acting strangely or aggressively in the Valley. DG was first identified (at least by name) via information obtained from Parks Victoria, after the identification of Mr Lynn. A statement was obtained in relation to DG after Mr Lynn was spoken to. Covert photographs were taken of DG’s property. Detective Florence had been very concerned that DG was “the person”, and did quite a bit of reading around him. Inquiries into others, including obtaining CCRs to establish persons’ whereabouts, continued after Mr Lynn had been spoken to.

Thirdly, Mr Dickie submitted that I should act on the evidence of the police officers that they considered Mr Lynn to be a person of interest on 14 July 2020, and not a suspect.

As for Detective Justin’s evidence, Mr Dickie emphasised the following matters. She said that the visit with Mr Lynn was micro‑recorded so it could be reviewed, as she was unable to take complete notes. Further, the covert recording of the discussion did not suggest anything different from her usual practice. She took a photograph of Mr Lynn’s Nissan because it was relevant and had been raised during their discussion with him. She did not think the phone data proved Mr Lynn’s involvement in the offence. She could not put the phone in his hand, and, even if she could, that data did not show the circumstances of how he came into possession of the phone. There were other possibilities to explain the apparent correlation between his car’s movement and the phone data. Detective Justin understood the change in “status” in relation to Mr Lynn arose after his statement was reviewed, when inaccuracies in the statement about movements were found. She did not notice those inaccuracies at the time of speaking to him. Neither she nor Detective Florence considered the fact that his phone was turned off at the time his vehicle went through the ANPR camera to be “suspicious”.

As for Detective Florence’s evidence, Mr Dickie made these points. Detective Florence said he understood the purpose of speaking to Mr Lynn was to clarify his movements vis‑à‑vis going through the ANPR camera site. After speaking to him and when driving away from his house, his assessment of Mr Lynn had not changed, other than finding the painting of his vehicle “strange”. Once the detective had done some Google searches and mapping, he had a concern that Mr Lynn, in his statement, had put himself one day ahead of the missing persons, which led him to think he was more a suspect than a person of interest. He did not, however, refer to Mr Lynn as a suspect before he was spoken to, and was unaware of others using that term. The first discussion he recalled in relation to his being considered a suspect was in October or November 2020. He did, however, have suspicions relating to the mobile phone on 15 July 2020.

Mr Dickie submitted that also relevant to the evidence of the two detectives was the evidence of their superior, Detective Combridge. On 14 July 2020, Detective Combridge considered Mr Lynn a person of interest. He defined this as a person who has come into the inquiry whose relevance to the matters under investigation is not clear at that point in time and, therefore, necessarily requires further investigation. That said, by 3 July 2020, he thought Mr Lynn was considered of “highest value for approach” because Mr Hill’s “telephony data” best matched his travel through the ANPR camera.

Mr Dickie also pointed to the evidence that none of the information reports received named Mr Lynn, and that none of the reports of persons acting aggressively in the Valley were linked into him. Prior to 24 August 2020, when Detective Florence spoke to one of the blackberry sprayers, no one who had been spoken to had encountered Mr Lynn or anyone that might have been identified as him. Further, some matters identified were of little significance, including the fact of Mr Lynn’s phone being turned off (given the patchy phone access in the high country) and the fact that he owned firearms (given deer hunting is a popular pastime in the Wonnangatta Valley).

In Mr Dickie’s submission, matters that subsequently became significant — including the observations made by Mr Matthews — were not considered by Detective Florence at the time the statement was taken from Mr Lynn on 14 July 2020. Mr Matthews, it will be remembered, had told police that, during the early hours of 21 March 2020, while camping near where the Wonnangatta Track meets the Wonnangatta River, he was woken by the sound of a vehicle towing a trailer that had driven near his site. The road was closed. He could hear the vehicle turn around. It took quite a few turns to do so. While this information had been provided in late‑April 2020, and went into an information report arising from local police contact with Mr Matthews at that time, this, submitted Mr Dickie, was a period when there was a lot of information coming in and it was “quite hectic”.

Mr Dickie also submitted that, by 14 July 2020, the police had no information suggesting any contact or association between Mr Lynn and Mr Hill and/or Mrs Clay or that he might have had any animus towards them.

As for the request by Detective Combridge of Detective Florence (conveyed in Detective Leach’s email of 15 July 2020) in relation to a warrant for Mr Lynn’s banking records, no such warrant was issued until 13 August 2020. While the evidence was silent as to when the affidavit in support of the application for that warrant was completed, it is likely to have been soon before that date. Further, the suspected offence nominated on the warrant was theft (presumably of Mr Hill’s phone), not homicide.

Finally, Mr Dickie cautioned against reasoning on these issues in the knowledge of what developed after that date, including Mr Lynn’s admissions in the formal interview. Mr Dickie was right to do so.[31] The matters in issue must be considered in light of the information I am satisfied police were aware of at the time they met Mr Lynn at his front door on 14 July 2020.
[31]See, e.g., R v Alexander [1994] 2 VR 249 at 255 (per Crockett, Southwell and Cummins JJ).

(c) Mr Lynn’s submissions

Mr Dann submitted that several factors should persuade me to reject the evidence of Detectives Justin and Florence and, instead, to be satisfied that the information known to the police when they went his front door on 14 July 2020 was such that Mr Lynn was suspected of having committed an offence — namely, that he had unlawfully killed Mr Hill and Mrs Clay. Those factors included the following:

a) The last known communication by Mr Hill was around 6:40 p.m. on 20 March 2020, when he concluded a chat with another on his long‑distance radio.

b) From 21 March, Mr Hill and Mrs Clay’s campsite had been discovered burnt out, and some of their personal items were missing, including the drone, their phones, and cash.

c) By 14 July 2020, they had been missing for nearly four months.

d) The proof‑of‑life checks were negative. Thus, for example, since their disappearance, Mr Hill and Mrs Clay had not been in contact with their family or friends and there had been no activity on their phones or their bank accounts.

e) Mr Lynn had not come forward to eliminate himself despite the police appeals, through the media, for people to come forward if they had been in the Wonnangatta Valley at the same time as Mr Hill and Mrs Clay.

f) Based on the phone analysis, police believed that Mr Lynn was in the same area as Mr Hill and Mrs Clay during the period they went missing.

g) Mr Lynn was the only person who went through the ANPR camera on 21 March 2020 at the same time as Mr Hill’s phone registered on the phone tower nearby.

h) By 14 July 2020, all other vehicles had been eliminated as passing through at that time.

i) The ANPR photo showed that it was Mr Lynn alone in his Nissan, with a trailer, going through the ANPR camera site at that time.

j) Phone analysis showed that Mr Lynn’s phone was turned off at the time he went past the ANPR camera.

k) Phone analysis suggested Mr Hill’s phone was disposed of shortly after moving through that ANPR camera site.

l) Police were in possession of information from Mr Matthews concerning the suspicious movements of a vehicle with a trailer in the Wonnangatta Valley in the early hours of 21 March 2020, which is only a matter of hours after the last known contact with Mr Hill on amateur radio. Further, notwithstanding Detective Florence’s evidence, Mr Dann submitted that I should accept that he was aware of that information, as it was on a spreadsheet to which all investigators had access at that time. I accept that submission.

m) Police also had information from Mr Lynn’s LEAP history. The information included that there was an inquest into the death of Mr Lynn’s ex‑wife; and that, when in the custody of police investigating her death, Mr Lynn had “escaped from custody when attempting to locate items he had hidden in bushland in the Macedon area”. While Detective Florence accepted that that history suggested “something potentially untoward with his first wife”, he said that it was ruled to be an accidental death, and that this information had no impact on the police investigation or his suspicion. Mr Dann submitted that I should reject this part of Detective Florence’s evidence. He submitted that the inference that it did inform his suspicion is reinforced by the fact that, in November 2021, when Detective Florence was conducting the formal interview of Mr Lynn, the notes of his corroborator Detective Senior Constable Daniel Passingham included references to the death of his previous wife. As I shall explain later, I accept Mr Dann’s submission.

n) Police were also aware that Mr Lynn had seven registered firearms.

o) Before going to Mr Lynn’s door, police noticed that his Nissan had been painted a different colour since it had been captured on the ANPR camera on 21 March 2020. Detective Florence admitted that he considered this to be “strange”.

p) Mr Lynn was repeatedly described as a “suspect” in emails between police prior to 14 July 2020, yet no police officer suggested to others that that was an inaccurate description.

(d) Discussion and findings

In short, I accept the thrust of Mr Dann’s submissions. I am satisfied, on the balance of probabilities, that, by the time they reached Mr Lynn’s front door on 14 July 2020, Detective Justin and Detective Florence suspected Mr Lynn of the homicide of Mr Hill and Mrs Clay in the sense that, at the very least, they suspected that he had unlawfully killed them. I reject the detectives’ evidence that they did not suspect him at that point but considered him only a person of interest. (In fact, as I have said, I am satisfied that, at this stage, the detectives believed that Mr Lynn had committed these offences.)

When the facts of the burnt‑out campsite and the missing personal items are combined with the negative results of the proof‑of‑life checks and the fact that Mr Hill and Mrs Clay had been missing for nearly four months, any rational person would be compelled to have strong suspicion — indeed, a belief — that they were dead and had been killed unlawfully by another or others.

That is not to say that other theories — such as death by misadventure or elopement — could not have been entertained at the same time. A police officer — or any reasonable person, for that matter — could reasonably entertain alternative theories or possibilities without excluding his or her principal suspicion (or belief). But, here, on the information known to the detectives, unlawful killing was the most compelling suspicion (or belief) for a rational person to have.

Further, when the following matters are added, I consider that any rational person would be compelled to apprehend the strong suspicion — or, again, a belief — that Mr Lynn was the person responsible for unlawfully killing Mr Hill and Mrs Clay. First, Mr Lynn, when alone in his Nissan towing a trailer, was the only person driving over Mount Hotham on 21 March 2020 at almost precisely the same time as Mr Hill’s phone registered a signal at the nearby phone tower. Second, that phone is likely to have been discarded soon afterwards (and it had not been recovered). Third, a vehicle towing a trailer was noticed moving suspiciously in the Wonnangatta Valley in the very early hours of the same day. Fourth, Mr Lynn’s Nissan had been painted a different colour in the interim, which the detectives noticed before they went to his front door. When those matters are combined, I find it impossible to accept that a police officer would not, at that time, have suspected (or believed) that Mr Lynn was responsible for the unlawful killing of the missing persons.

As to the painting of Mr Lynn’s Nissan, I pause to make the following additional points. While I must be careful to consider matters as they stood then, and not as they might appear now (after other inculpatory information or evidence has been gained), it strikes me as significant that Mr Lynn’s act of painting his car is thought by the Director to be so indicative of his guilt of homicide that it is sought to be relied on at trial as incriminating conduct. Without deciding now whether or in what precise way that evidence may be relied on as incriminating conduct, it is sufficient to say that it seems to me to be perfectly understandable why the Director would seek to take that approach. For, in the context of the other things they knew at that time, it is obvious that the painting of the car is the type of behaviour that must give rise at least to a suspicion (or a belief) that Mr Lynn engaged in that conduct to conceal his involvement in the unlawful killing of Mr Hill and Mrs Clay.

Again, none of this is to say that other theories could not have been entertained while holding the strong suspicion (or belief) that Mr Lynn had unlawfully killed Mr Hill and Mrs Clay. For example, it would have been possible to consider that Mr Lynn might simply have stolen Mr Hill’s phone, or that he found it, or that someone might have placed it in his trailer, and that he later disposed of it to deflect suspicion of theft, whether that suspicion might be misplaced or not. It would also be possible to think that he changed the colour of his Nissan for the same reason, or that it was just a coincidence. But none of these possibilities was such as to exclude a rational person from being compelled to apprehend the strong suspicion (or belief) that Mr Lynn was responsible for the unlawful killings of Mr Hill and Mrs Clay.

Having seen and heard the detectives give evidence in the flesh, I have determined to reject their evidence that, at the relevant time, they did not suspect Mr Lynn of unlawfully killing Mr Hill and Mrs Clay but considered him only a person of interest. I find instead that they did in fact hold the necessary suspicion (or belief). My reasons for those findings include the following.

First, I am satisfied that the detectives were aware of the information I have just listed when concluding that any rational detective would have been compelled to have the necessary suspicion (or belief). There is no reason to think these detectives were acting or thinking irrationally at the relevant time.

Second, in so far as Detective Florence might be thought to have implied that, as of 14 July 2020, he was not aware of the information Mr Matthews gave about the suspicious movements of a vehicle towing a trailer in the Wonnangatta Valley in the early hours of 21 March 2020, I reject that evidence. Well before 14 July (in fact, by 24 April), that information was put into the spreadsheet to which all investigators had access. I am satisfied that he must have known of that information, at least by those means, if not by discussion with his colleagues.

Third, I found Detective Florence to be quite a doubtful witness on other matters of importance too, including in respect of highly relevant information concerning Mr Lynn detailed in emails between investigators. For example, in my opinion, the detective was quite evasive when questioned about an email chain he and others (including Detective Justin) received from an intelligence officer at the Missing Persons Squad between 8 and 12 June 2020 — i.e., about a month before he and Detective Justin went to Mr Lynn’s home. The first email detailed that Mr Lynn appeared to be a shooter; that he had seven registered firearms (“handguns, shotguns, rifles”); that a dossier concerning the death of his former wife “says he escaped from custody when attempting to locate items he had hidden in bushland in the Macedon area”; and that he had recently made gun‑related transactions, which included night vision binoculars and laser sight dot scope. In the second email, the intelligence officer explained that Mr Lynn’s vehicle travelled through the ANPR camera at Mount Hotham “at the same time or very close to the [analysis] for [Mr] Hill’s phone”, and that his (Mr Lynn’s) “CCR has him hitting [Mount] Buller and Hotham Heights towers between [16 and 21] March 2020”, “[s]o he is in the area at the same time as our missing persons”. Obviously, these were highly relevant pieces of information for any investigator. Yet, in my opinion, when giving evidence, Detective Florence did his best to downplay the importance in his mind of the contents of these and other emails as pointing to Mr Lynn as a suspect in — or the one responsible for — the unlawful killing of Mr Hill and Mrs Clay.

Mr Dickie informed the Court, from the Bar table, which I accept, that Detective Passingham resigned from Victoria Police at the completion of his evidence. However, the reason for his resignation was not disclosed. Nor, as I understood Mr Dickie, was it submitted that this amounted to a matter to consider under factor (g) in favour of admission of the impugned evidence. In any event, had that submission been made, I would have rejected it.

As I said when addressing factor (g) under Ruling 1, had there been some sort of disciplinary proceeding or the like taken or in the offing, this is a factor that might have favoured admission of the evidence. But, in the absence of those alternatives to exclusion, I think that deterrence of police misconduct is not a neutral factor but a consideration informing the public interest in not admitting the evidence.

Factor (h): Difficulty (if any) obtaining evidence without impropriety

This is not a case involving the taking of improper or illegal action in circumstances of urgency in order to preserve evidence from loss or destruction. At the time police conducted the interview, Mr Hill and Mrs Clay had been deceased for 20 months.

Consistently with the passage I extracted from Kadir under Ruling 1, I am satisfied that, because the impropriety involved in obtaining this consequential evidence was deliberate, the fact that it would have been difficult — indeed, nigh on impossible — to obtain the evidence without the impropriety weighs against its admission.

Conclusion on balancing of competing considerations

In the result, I am satisfied that the deliberate and grave nature of the improprieties, when combined with the public interest in deterring police conduct of the type that occurred here, the absence of the prospect or fact of any disciplinary proceedings or the like, and the view that this conduct (at least in part) is inconsistent with a right recognised by the ICCPR, are such as to tip the balance in favour of exclusion of the consequential evidence resulting from the post‑interview search of the site near Union Spur Track, notwithstanding its substantial probative value, its importance to the prosecution case, and the gravity of the charges.

More formally, when the foregoing matters are synthesised and weighed, I am not persuaded that the desirability of admitting the Union Spur Track evidence outweighs the undesirability of admitting that evidence given the way in which it was obtained.

(d) Conclusion

Accordingly, the Union Spur Track evidence is not to be admitted at trial.

[4] Searches and results thereof at Bucks Camp after interview

(a) The challenged evidence

As I indicated earlier, following the interview, from 2 March 2022, police conducted a further search of the Bucks Camp campsite. Among other things, they found:

a) a cranial bone fragment (which did not appear burnt) containing Mrs Clay’s DNA;

b) a fired 12‑gauge projectile of an indeterminate brand containing Mrs Clay’s DNA; and

c) pieces of glass, the writing on which indicated they were from a vehicle’s side‑mirror.

These are the main features of the evidence to be considered under this sub‑ruling.

(b) Was the evidence obtained in consequence of the impropriety?

I am satisfied that the improperly obtained admissions Mr Lynn made in the interview caused the police to search the campsite at Bucks Camp again in March 2022. Thus, for the purposes of s 138(1), I am satisfied that there is the necessary causal relationship between the impropriety and consequential obtaining of the evidence set out above.

I shall return to the relevance of this causal relationship below.

(c) Desirability versus undesirability of admitting evidence obtained in this way

Factors (a), (b) & (c): Probative value; importance of the evidence; nature of offences charged

I accept Mr Dickie’s submission that this evidence is of high probative value and is of importance in the prosecution case. Among other things, this evidence is capable of proving that Mrs Clay was killed unlawfully by a shot from a 12‑gauge shotgun. That said, while, absent this evidence (assuming exclusion of the interview and the Union Spur Track evidence), the prosecution case would be weakened, it would not be eliminated.

As to the nature of the offences charged, I refer to what I have said earlier.

Together, these factors tend towards admission of the evidence.

Factors (d) & (e): Gravity of impropriety/illegality & whether deliberate or reckless

On the other hand, for the reasons I gave earlier when addressing the Union Spur Track evidence, I am satisfied that the detectives knew that they were engaging in improper behaviour in questioning Mr Lynn in the ways they did. Thus, I am satisfied that these improprieties were deliberately designed to extract admissions of the type that gave them cause to re‑examine the campsite at Bucks Camp.

Again, for the reasons I gave earlier, which I shall not repeat here, I am also satisfied that these improprieties were grave.

These factors tend towards exclusion of the evidence.

Factor (f): Whether impropriety/illegality inconsistent with ICCPR

For the reasons given earlier, I think factor (f) is another matter tending towards exclusion of the evidence.

Factor (g): Whether disciplinary proceedings likely to be taken

Again, for the reasons given earlier, I think that, in the absence of any disciplinary proceedings or the like, deterrence of police misconduct is a consideration informing the public interest in not admitting the evidence.

Factor (h): Difficulty (if any) obtaining evidence without impropriety, or something else?

In contrast with the Union Spur Track evidence, which was extremely unlikely to be found without the impropriety that caused the making of Mr Lynn’s admissions in the interview, there was at least some reasonable prospect of discovering the evidence obtained by searching the campsite at Bucks Camp after the interview, irrespective of the admissions made in that interview. I say this because, well before the interview was conducted, the campsite at Bucks Camp was, understandably, regarded by police as the crime scene. Thus, it seems to me that there was always a reasonable prospect that that scene would be examined again, even without the prompting that resulted from the improperly obtained admissions. Experience tells that it is not uncommon for police to perform a second or subsequent search of an alleged crime scene. Cold cases are a classic example of where that might occur.

In Kadir, immediately following the passage I extracted earlier, where the High Court pointed out that s 138 does not enact a “fruit of the poison tree” doctrine, their Honours said the following:[147]

The trial judge’s analysis of the admissibility of the search warrant evidence and the admissions did not go beyond satisfaction of the causal link between the evidence and the contravention of the SDA. The causal link engages s 138, but the weighing of the competing public interests under s 138(1) involved considerations which are not the same as those applying to the admissibility of the surveillance evidence.
As the Court of Criminal Appeal also observed, where the misconduct involves the same investigative body, the considerations relevant to weighing the public interests will commonly be the same in respect of evidence obtained under s 138(1)(a) or (b). Here, the surveillance evidence was obtained in contravention of the law by a private body (or persons engaged by it), whereas the search warrant evidence was obtained by a regulator acting lawfully and without prior knowledge of the contravention, albeit that it was procured on the strength of the surveillance evidence. The causal link between the contravention and the admissions was tenuous, a consideration which the Court of Criminal Appeal was right to find was capable of affecting the weighing of the public interest in not giving curial approval or encouragement to the unlawful conduct.

[147]Kadir v The Queen (2020) 267 CLR 109 at 133[40]‑134[41] (footnotes omitted).

Three things should be observed at once. First, there was no private body involved in the improper behaviour here. Instead, Victoria Police were the ones who both engaged in the impropriety that resulted in the admissions and, in consequence, undertook the search of the campsite at Bucks Camp. Secondly, I do not find that the causal link between the improperly obtained admissions and that further search was tenuous. It was stronger — more direct — than that. Thirdly, however, given the reasonable prospect that, as the alleged crime scene, police would search the campsite again and discover the evidence, that causal link, I think, may be characterised as weaker than, say, the link between the admissions and the search of the site near Union Spur Track and the evidence obtained thereby.

Whether the reasonable prospect of another search of the alleged crime scene, irrespective of the improperly obtained admissions, is properly characterised as a weaker causal link, or simply as an independent fact that there was a reasonable prospect that the evidence would be discovered on another or more targeted look, and whether it be a consideration falling within factor (h) or a separate factor, it is a consideration that is, I think, rendered closer to neutral or even as one tending towards admission in respect of this evidence.

I say this notwithstanding the deliberate and grave nature of the impropriety (factors (d) and (e)) and the public interest in not giving curial approval to police impropriety. While police impropriety is to be discouraged, it would seem to me to be going too far, and to defeat the public interest in having relevant evidence of grave alleged offences (factor (c)) before a court, to exclude evidence that might reasonably have been discovered in any event. In contrast, factor (h), especially when combined with factors (d) and (e), supported exclusion in the case of the Union Spur Track evidence.

I should add that, in my view, it makes no difference that this consideration might not fall neatly into one of the factors expressly listed in s 138(3), such as factor (h). This is because the chapeau to s 138(3) expressly provides that “Without limiting the matters that the court may take into account under subsection (1)”, which makes it clear that the mandatory factors (a) to (h) listed in the subsection do not comprise an exhaustive list.

Conclusion on balancing of competing considerations

In the result, the factors favouring exclusion of the evidence are the deliberate and grave nature of the improprieties, the public interest in deterring police conduct of the type that occurred here, the absence of the prospect or fact of any disciplinary proceedings or the like, and the view that this conduct (at least in part) is inconsistent with a right recognised by the ICCPR. The factors favouring admission of the evidence are its substantial probative value, its importance to the prosecution case, the gravity of the charges, and the reasonable prospect that the evidence might have been discovered in any event.

When the foregoing matters are synthesised and weighed, I am persuaded that the desirability of admitting the consequential evidence concerning the post‑interview search of the campsite at Bucks Camp outweighs the undesirability of admitting that evidence given the way in which it was obtained.

(d) Conclusion

Accordingly, this evidence may be admitted at trial.

[5] Reconsideration of results of searches at Bucks Camp before interview

(a) The challenged evidence

As I indicated earlier, in March 2022, debris collected from the campsite at Bucks Camp back in October 2020 was reconsidered and examined again. Mrs Clay’s DNA was detected on three cranial bone fragments found in that debris. These are the main features of the evidence to be considered under this sub‑ruling.

(b) Was the evidence obtained in consequence of the impropriety?

I am satisfied that the improperly obtained admissions Mr Lynn made in the interview caused the police to re‑examine the debris collected from the campsite back in October 2020.

(c) Desirability versus undesirability of admitting evidence obtained in this way

This evidence was already in the possession of the police. Thus, in my view, there was always a reasonable prospect that it would be re‑examined, irrespective of whether Mr Lynn made admissions when interviewed.

While I have considered this evidence separately, the same analysis in which I have just engaged under the previous sub‑ruling compels me to conclude that the desirability of admitting the consequential evidence concerning the re‑examination of debris collected from the Bucks Camp campsite back in October 2020 outweighs the undesirability of admitting that evidence given the way in which it was obtained.

(d) Conclusion

Accordingly, this evidence may be admitted at trial as well.

[6] Re‑examination of canopy of Mr Hill’s Landcruiser after interview

(a) The challenged evidence

As indicated earlier, on 11 February 2022, the metal canopy of Mr Hill’s Landcruiser was examined again by forensic officers. They found spattered bloodstains and apparent fatty deposits on the canopy. Forensic opinion is that force, in addition to gravity, had been applied to liquid blood while a person was positioned in the vicinity of the vehicle so as to produce the bloodstains. Mrs Clay’s DNA was detected in those bloodstains and the fatty deposits. This evidence is the subject of this sub‑ruling.

(b) Was the evidence obtained in consequence of the impropriety?

Again, I am satisfied that the improperly obtained admissions Mr Lynn made in the interview caused the police to re‑examine the canopy of Mr Hill’s Landcruiser.

(c) Desirability versus undesirability of admitting evidence obtained in this way

Submissions

Mr Dann submitted that this evidence stood in a different category from the post‑interview search of the campsite at Bucks Camp and the subsequent reconsideration of the debris seized before the interview. This was because of the unusual history of the police treatment and examination of the Landcruiser, which may be summarised in the following way.

On 1 April 2020, police moved the Landcruiser from Bucks Camp to Maffra, where it was examined and photographed.

On 28 April 2020, after it was moved to the Major Crime Scene Unit Garage, the Landcruiser was examined and photographed again. On 4 May 2020, swabs were taken of the interior. More photos were taken the next day. On 25 June 2020, it was examined mechanically.

After November 2020, the Landcruiser was released to Mrs Hill.

On 4 May 2021, it was sold by Mrs Hill to Andreas Lenffer.

On 14 December 2021, the Landcruiser was examined and photographed again, this time while at Mr Lenffer’s home [redacted]. The focus was on the dimensions of the vehicle.

Mr Lenffer later sold the Landcruiser, but retained the canopy.

As I have said, on 11 February 2022, forensic officers conducted the examination of the canopy that resulted in the impugned evidence.

As I understood Mr Dann’s submission, that history of dealing with the Landcruiser shows that the police had exhaustively examined the vehicle already, to the point that it was released to Mrs Hill and sold to Mr Lenffer. In this context, he submitted that I should find that there is a very direct causal link between the improperly obtained admissions and the final examination of the vehicle, a link that is stronger than in the case of the further search of the campsite at Bucks Camp or the reconsideration of the debris collected earlier from that site.

Analysis and conclusions

In my opinion, the probative value of this evidence is high and it is of importance to the prosecution case (factors (a) and (b)). The same points made in respect of factors (c), (d), (e), (f) and (g) under the previous two sub‑rulings apply equally here.

As for the strength of the causal link and factor (h), I think the same analysis that I undertook when considering the further search of the campsite at Bucks Camp applies here too. It is true that, unlike the campsite at Bucks Camp, the Landcruiser seems to have been examined more frequently, and that it was effectively discarded as a potential exhibit or as piece or source of real evidence. However, I think that these are distinctions without any meaningful difference.

There was always a reasonable prospect that the Landcruiser, and its canopy, given that they were found at the alleged crime scene, would be re‑examined or examined in a more targeted way, just as the case was with respect to the campsite. While the fact that the canopy is an especially movable chattel that was effectively discarded by police and returned to Mrs Hill, and then passed on to another, may have reduced the prospect that examination of it would yield any probative evidence, there was always the prospect of a fresh look being taken by police.

Thus, again, while I have considered this evidence separately, the same analysis in which I have just engaged under the sub‑ruling concerning the post‑interview search of the campsite at Bucks Camp causes me to conclude that the desirability of admitting the consequential evidence concerning the re‑examination of the canopy of the Landcruiser outweighs the undesirability of admitting that evidence given the way in which it was obtained.

(d) Conclusion

Accordingly, this evidence may be admitted at trial as well.

[7] Opinion on gunshot trajectory and unlikelihood of Mr Lynn’s account

(a) The challenged evidence

This sub‑ruling concerns the opinion evidence regarding gunshot trajectory testing and the unlikelihood of Mr Lynn’s account in the interview as to how Mrs Clay was shot.

(b) Conclusions

As I indicated earlier, Mr Dickie conceded that, if the interview of November 2021 were ruled inadmissible, this evidence had to be excluded as well. This is because there would be no version of events in evidence at trial to which the opinion evidence could relate.

In those circumstances, it is strictly unnecessary to address the argument under s 138. Nevertheless, I can say that effectively the same reasoning — necessarily adapted to the facts — that I employed concerning the exclusion of the Union Spur Track evidence applies to cause me to rule that this evidence must be excluded too.

Thus, there are two bases for exclusion of this evidence.

Accordingly, this evidence is not to be admitted at trial.

[8] Search of campground at Kevington

(a) The challenged evidence

In his interview, Mr Lynn told the police that, at a campground at The Pines in Kevington, he burned the tarpaulin he had used to transport the bodies from Bucks Camp. This sub‑ruling concerns evidence of an unsuccessful search by police of the campground.

(b) Conclusions

Again, as I indicated earlier, Mr Dickie conceded that, if the interview of November 2021 were ruled inadmissible, this evidence had to be excluded as well. This is because there would be no version in evidence at trial to which this search evidence could relate.

In those circumstances, again, it is strictly unnecessary to address the argument under s 138. Nevertheless, I can say that effectively the same reasoning — necessarily adapted to the facts again — that I employed concerning the exclusion of the Union Spur Track evidence applies to cause me to rule that this evidence must be excluded too.

Thus, again, there are two bases for exclusion of this evidence.

Accordingly, this evidence is not to be admitted at trial either.

Ruling 4: Miscellaneous items of evidence

[1] Introduction

My fourth set of rulings concerns challenges to miscellaneous items of evidence.

The principal arguments in favour of exclusion are that, in each of these instances, the evidence is irrelevant, and therefore inadmissible; or, alternatively, if relevant, the evidence must not be admitted because the probative value of evidence is outweighed by danger of unfair prejudice to Mr Lynn.

I shall address each item of impugned evidence in turn.

[2] Applicable statutory provisions

Before doing so, I shall set out the applicable statutory provisions, commencing with s 55 of the Evidence Act, which is in these terms:

Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to—
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to adduce evidence.

Section 56 provides as follows:

Relevant evidence to be admissible
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible.

Finally, s 137 reads in this way:

Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

[3] Firearms and other weapons

(a) The challenged evidence

At the time of his arrest, in his vehicle and at his home, Mr Lynn was in possession of several firearms and other potential other weapons — including daggers, swords, hunting knives, and the like. Mr Dann objected to the admission of these items into evidence.

(b) Discussion and conclusion

Given that Mr Lynn is a sporting shooter and hunter, and that he is licenced to use numerous registered firearms, there is nothing untoward about his possession of any of these items at all, or in the numbers possessed.

It may be that an argument can be made as to the relevance of this evidence in this trial. However, at present, whatever relevance it may have, I am of the view that the probative value of this evidence (except for one shotgun, which I shall come to in a moment) is outweighed by the danger of unfair prejudice to Mr Lynn. This is because there is danger that a jury may well regard possession of this many guns and potential weapons as disclosing a tendency in Mr Lynn to use them unlawfully.

Accordingly, I refuse to admit this evidence at trial.

[4] Possession of operating 12‑gauge shotgun

(a) The challenged evidence

However, I take a different view of Mr Lynn’s possession of his working Barathrum 12‑gauge shotgun.

(b) Discussion and conclusion

The prosecution case, supported in part by some of the forensic evidence discussed earlier, is that Mrs Clay was killed as a result of a shot from a 12‑gauge shotgun.

Thus, Mr Lynn’s possession of such a shotgun is relevant and potentially probative evidence in the trial.

Further, I am not satisfied that the probative value of this evidence is outweighed by the danger of unfair prejudice to Mr Lynn.

Accordingly, this evidence may be admitted at trial.

[5] Paint history of Mr Lynn’s Nissan Patrol

(a) The challenged evidence

The Director wishes to lead the following evidence. From 2 December 2021, paint samples from Mr Lynn’s Nissan Patrol were examined. In the opinion of the forensic officer, the original colour of the vehicle was white, corresponding with the specification on the engine bay and the car’s registration. A dark grey paint had been applied over the white original topcoat. A beige re‑spray had subsequently been applied over the dark grey paint to the driver side and passenger side panels.

(b) Discussion and conclusion

There will be other evidence led at trial that Mr Lynn painted his Nissan in June 2020, within months of his driving past the ANPR camera on Mount Hothan on 21 March 2020. Thus, the paint history of the Nissan is relevant at trial.

I can see no unfair prejudice in the proposed evidence. In those circumstances, I am not satisfied that the probative value of this evidence is outweighed by the danger of unfair prejudice to Mr Lynn.

Accordingly, this evidence may be admitted at trial.

[6] Searches by police for Mr Hill’s drone and for his and Mrs Clay’s phones

(a) The challenged evidence

The Director wishes to lead evidence that police searched for, but were unable to find, Mr Hill’s drone and his and Mrs Clay’s phones.

(b) Discussion and conclusion

As I understood him, Mr Dann’s objection to this evidence was, first, that it was irrelevant to any issue at trial. Second, even if the evidence were relevant, he was concerned that, if the interview were excluded (as it has been), because at least some these searches were conducted following Mr Lynn’s arrest, there would be an unacceptable risk of unfair prejudice in signalling to the jury that those searches were provoked by something said by him to police at that time.

In my view, the evidence is relevant. The Director is entitled to lead evidence showing that the police made efforts to search for these items. Any reasonable juror would expect the police to search for those things in the circumstances of this case.

Although the evidence is not of high probative value, I am not satisfied that its probative value is outweighed by the danger of unfair prejudice to Mr Lynn. The evidence can easily be led in a way that does not give rise to the risk that Mr Dann identified.

Accordingly, with that caveat, this evidence may be admitted at trial.

[7] Covertly recorded utterances between December 2020 and May 2021

(a) The challenged evidence

The items of evidence under challenge here were set out in the summary of proposed evidence given much earlier in these reasons. For ease of reference, I shall reproduce that evidence here.

Between December 2020 and May 2021, numerous of Mr Lynn’s private utterances were covertly recorded on listening devices. It is alleged that, on the following occasions, his remarks concerned Mr Hill and Mrs Clay:

a) On separate occasions between 15 and 16 December 2020, while camping near Howitt Plains on his own, Mr Lynn said these things to himself:

·Let’s see if the cops turn up. If they do, we know that they can put a tracker on it.
·Fucking white people, that’s all it is who can we annoy now. Who can we annoy?
·Who decides what’s right and what’s wrong? That’s the thing, judgment, judge does, the law does, the community does.
·Ballistics, you’d think they would want samples of my ammo, you would. Until that.
·Little old people, they looked at me like [inaudible words] fair enough, fair enough.

b) At about 11:00 a.m. on 4 May 2021, while alone in his car, Mr Lynn turned up the volume on his radio after a news story came on about the disappearance of Mr Hill and Mrs Clay. He then said this:

I put a fucking trigger lock on it. You’ve gotta get a second set of trigger lock fucking keys and stick them in there. … They’ve just got to keep pushing all the time, don’t they?

c) At about 5:05 p.m. on 4 May 2021, while alone in his car after another radio news story about Mr Hill and Mrs Clay, Mr Lynn said this:

They’re sitting on a beach in fucking Queensland. Nudist beach. Butt naked. Playing on his fucking drone. Running up and down the beach. Taking pictures of the young people. Who’s got the biggest dick?

(b) Howitt Plains, 15 to 16 December 2020

In my view, each of the utterances under his heading fails the test of relevance. I consider it rationally impossible safely to construe any of these remarks as related to Mr Hill and Mrs Clay. The only way to do so is via speculation. For example, if the references to cops, trackers, judges, ammo and little old people are considered together, a juror might be able to speculate that this all has something to do with the present case, but speculation is all it could be.

If I am wrong about that, then the evidence is of almost no probative value. The risk is that, if such evidence were put before a jury, they would be forced to speculate about what these utterances mean, which would cause unfair prejudice to Mr Lynn. In those circumstances, I am satisfied that the probative value of each of these utterances is outweighed by the danger of unfair prejudice to Mr Lynn.

Accordingly, I refuse to admit this evidence at trial.

(c) After radio report, 11:00 a.m., 4 May 2021

Again, in my view, this utterance fails the test of relevance. Only by speculation could these remarks be related to this case.

Again, if I am wrong, the evidence is of such low probative value, and the danger of unfair prejudice by speculation is so high, that it fails the test in s 137.

Accordingly, I refuse to admit this evidence at trial.

(d) After radio report, 5:05 p.m., 4 May 2021

This last piece of evidence, in contrast to the others, can, I think, be linked rationally to Mr Hill and Mrs Clay. This is because the utterance follows a broadcast about them; to the general public, they were still possibly regarded as missing at the time; there is a reference to them being in Queensland; and there is the mention of the drone.

That said, as I have understood things on the voir dire, the fact that Mr Hill had a drone was public knowledge or belief at that time.

Another difficulty is that at least one idea that the utterance must be taken to convey is that Mr Lynn believes that Mr Hill and Mrs Clay are getting about — alive — on a beach in Queensland. Yet that is totally contrary to the prosecution case. For, if he believes that, then it could not sensibly be said that he believes they are dead. Less still could it be said that he is responsible for their deaths.

Since it is alleged that he killed them fourteen months earlier, the jury would be forced to speculate about matters such as Mr Lynn’s sanity or whether he might have been fantasising about a scenario that is totally at odds with the prosecution’s own case.

Further, the references to taking photos of young people and talk of anatomy risks unfairly blackening Mr Lynn’s character for no rationally probative reason.

In these circumstances, I am satisfied that, whatever relevance might be made of this evidence, it could have only very low probative value; and, in any event, the danger of unfair prejudice by rank speculation is so high that it also fails the test in s 137.

Accordingly, I refuse to admit this evidence at trial.

Next steps

I shall now invite counsel to discuss the next steps in this matter.

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