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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2024] VSC 373
Decision Date: 22 December 2023

CaseChat Overview and Summary

In the case of R v Lynn, the accused faced trial for the murders of two campers at Bucks Camp in the Wonnangatta Valley in March 2020. The Director of Public Prosecutions (DPP) sought to present a variety of evidence against the accused, including a written statement made by the accused to police in July 2020, covert recordings of that meeting, and admissions made by the accused in a record of interview (ROI) following his arrest in November 2021. The accused contested the admissibility of this evidence on various grounds, including that it was obtained improperly or in contravention of Australian law, or that it was influenced by oppressive conduct by the police.

The court was required to decide several key legal issues, including whether the accused's written statement and covert recordings were admissible given the failure to caution and advise the accused of their rights, and whether the admissions made in the ROI were voluntary and not influenced by oppressive conduct by the police. Additionally, the court had to determine whether certain pieces of evidence obtained or re-examined following the accused's admissions in the ROI were admissible under the law, and whether other miscellaneous items of evidence were relevant and not unfairly prejudicial.

The court found that the accused was "in custody" and "under arrest" at the time the written statement was made, and that the failure to caution and advise him of his rights rendered the evidence obtained in this way inadmissible under the Crimes Act 1958 and the Evidence Act 2008. The court also found that the police engaged in oppressive conduct towards the accused during the ROI, which influenced the making of admissions, rendering those admissions inadmissible. Regarding the evidence obtained or re-examined following the accused's admissions in the ROI, the court found that some items of evidence were inadmissible as they were obtained in consequence of an impropriety, while others were admissible as they might have been obtained in any event. Finally, the court excluded certain miscellaneous items of evidence, such as the accused's possession of various weapons and the listening device recordings, on the basis that their probative value was outweighed by the danger of unfair prejudice.

The court's final orders included the exclusion of the accused's written statement and covert recordings, the ROI, and certain evidence obtained or re-examined following the accused's admissions in the ROI. The court also excluded certain miscellaneous items of evidence, while allowing other evidence to be presented at trial. The remaining admissible evidence will be crucial in determining the outcome of the accused's trial for the murders of the two campers at Bucks Camp.

Orders