R v Lynn (Rulings 5 & 6) - [2024] VSC 375

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:	15, 16 & 22 February 2024
DATES OF RULINGS & REASONS:	19, 22 & 28 February 2024
CASE MAY BE CITED AS:	R v Lynn (Rulings 5 & 6)
MEDIUM NEUTRAL CITATION:	[2024] VSC 375

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RULING 5 — Criminal trial — Murder — Incriminating conduct — Accused charged with murders of two campers at Bucks Camp, Wonnangatta Valley, in March 2020 — In police interview in November 2021, accused gives account of accidental deaths — Notwithstanding rulings excluding police interview and evidence of discovery of remains of deceased because of oppressive conduct by police, accused now seeks advisory ruling on metes and bounds of use of post‑incident conduct as incriminating conduct if relevant part of police interview, plus discovery of remains of deceased and other evidence, would be admitted by agreement at trial — Evidence of incriminating conduct on which prosecution would rely includes accused’s admissions and other evidence that: he cleaned and burned campsite at which deaths occurred; removed and later disposed of items belong to deceased; put bodies in his trailer and moved them to a different spot in alpine region; thereafter painted his trailer different colour, and sold it; later, returned to bodies to check on them; later still, painted his vehicle different colour; later still, returned to bodies, burnt them and scattered remains; and later still, removed distinctive side‑mounted awning on his vehicle — Whether evidence of alleged incriminating conduct capable of use by jury as evidencing (1) belief by accused that he murdered deceased, (2) at most, belief that he unlawfully killed deceased or (3) neither — Evidence of post‑incident conduct confined to potential use as belief by accused he unlawfully killed deceased.

Jury Directions Act 2015 (Vic), ss 18–22.

Weissensteiner v The Queen (1993) 178 CLR 217; R v Rice [1996] 2 VR 406; R v White [1998] 2 SCR 72; R v Cengiz [1998] 3 VR 720; R v Ciantar (2006) 16 VR 26; Butler v The Queen (2011) 34 VR 165; Mocenigo v The Queen [2013] VSCA 231; R v Butler (Rulings 1‑10) [2013] VSC 688; Lane v The Queen (2013) 241 A Crim R 321; DPP v Zhuang [2014] VSC 276; The Queen v Baden‑Clay (2016) 258 CLR 308; DPP v Wan (Ruling No 1) [2018] VSC 19; DPP v Lyons [2018] VSC 297; R v Novakovic & Ors (Ruling 1) [2019] VSC 338; DPP v Ristevski [2019] VSC 165; Doherty v The Queen [2019] VSCA 70; R v Tan (Ruling No 2) [2023] VSC 297.

RULING 6 — Application by prosecution for certification for interlocutory appeal to Court of Appeal against Ruling 5 concerning incriminating conduct — Application granted.

Criminal Procedure Act 2009 (Vic), s 295.

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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 with Mr M McGrath	Chris McLennan & Co

HIS HONOUR:

Introduction[1]

[1]As a jury trial was imminent at the time of the two rulings in this judgment, these reasons were published only in a restricted fashion on 22 and 28 February 2024. Now that the jury trial has concluded (with verdicts on 25 June 2024), these reasons may be published to all. These two sets of reasons have been added to and amended slightly in order to collapse them into the one judgment, and to incorporate the fact that an interlocutory appeal to the Court of Appeal by the Director of Pubic Prosecutions against (at least parts of) one of the rulings (viz, Ruling 5) was allowed (see DPP v Lynn [2024] VSCA 62 (Emerton P, Taylor and T Forrest JJA)).

Gregory Lynn is charged with the murders of Russell Hill and Carol Clay at Bucks Camp in the Wonnangatta Valley on 20 March 2020.

On Monday last week (19 February 2024), I delivered an advisory pre‑trial ruling in respect of the use at trial of evidence as incriminating conduct (Ruling 5). In that ruling, I gave a summary of my reasons for ruling as I did. Earlier, I had indicated that I would provide more detailed reasons at a later time, if required, but I deferred doing so while the parties considered their positions on whether to launch an interlocutory appeal.

Last Thursday (22 February), pursuant to s 295(3)(b) of the Criminal Procedure Act 2009 (Vic) (“the CPA”), Mr Dickie, who appeared with Ms Hamill for the Director of Public Prosecutions, applied for certification that the interlocutory decisions in Ruling 5 were of sufficient importance to the trial to justify them being determined on an interlocutory appeal to the Court of Appeal.[2] Mr Dann KC, who appeared with Mr McGrath for Mr Lynn, opposed that application on several bases. I granted the Director’s application and gave reasons for certifying as I did (Ruling 6).
[2]Initially, Mr Dickie argued that s 295(3)(a) of the CPA was engaged, but I took that point to be abandoned when I indicated that, in my opinion, the interlocutory decisions in Ruling 5 did not “[concern] the admissibility of evidence”. Rather, the interlocutory decisions concerned evidence that was, or was assumed, to be admitted in the trial and the use to which it might be put as incriminating conduct, and therefore potentially engaged s 295(3)(b).

The Director’s application for leave to appeal commenced before the Court of Appeal on Monday, 26 February. The same day, the Court of Appeal requested that I provide more detailed reasons for ruling as I did in Ruling 5, and adjourned the hearing of the matter until next Tuesday, 5 March.

The following are my more detailed (or “full”) reasons provided to the Court of Appeal for ruling as I did in Ruling 5, as well as my reasons for granting the Director’s application for certification under cover of Ruling 6.[3]

Ruling 5: Incriminating conduct

[3]As indicated in an earlier footnote, the Director’s interlocutory appeal was allowed in part (see DPP v Lynn [2024] VSCA 62).

An advisory ruling

As I explained in my summary of Ruling 5, this was an advisory ruling made in the following circumstances.

Mr Dann advised that his client would take one of the following three courses at trial:

a)First, notwithstanding that, in December last year, I had ruled (in Ruling 2) that the record of interview conducted in November 2021 was inadmissible because of oppressive conduct by police, Mr Dann, by agreement with Mr Dickie, indicated that he would cause part of the interview to be before the jury in the Crown case. (This is the part of the interview where, among other things, Mr Lynn explains: that the two deaths occurred accidentally; where the deceased’s remains are and that he burnt them; and his reasons for engaging in the behaviour which the Director now seeks to rely on as evidence of incriminating conduct. See further below.)
b)Second, without leading that part of the interview in the Crown case or at all, Mr Lynn may give evidence in accordance with that very part of the interview.
c)Third, both of these things may occur — i.e., that part of the interview may be led in the Crown case and Mr Lynn may give evidence in accordance with it.

Thus, Mr Dann was guaranteeing that, in one way or another, the version given by Mr Lynn in the relevant part of the interview would be before the jury.

As I said in my summary of Ruling 5, while Mr Dickie would have preferred to know then and for certain whether that part of the interview would be in evidence in the Crown case or not, he and Mr Dann were content to agree that, for the purposes of this advisory ruling, I should assume that the first of those options would be taken — namely, that the relevant part of the interview would be in evidence in the Crown case. (The parties also agreed that this meant that I was to assume that some other parts of the evidence I had ruled out of the trial in December 2023 under Rulings 2 and 3 — and which I shall identify later — would also be admitted in the Crown case. See further below.)

While, as I said when delivering Ruling 5, this was a far from ideal state of affairs, I was prepared to give this advisory ruling on that limited basis, particularly in circumstances where the parties sought this ruling at that time.

However, as I also explained at that time, it must be understood that, in consequence, this ruling is only provisional. It may well be that things occur during the conduct of the trial, whether in the Crown case or the defence case, which give cause to reconsider this ruling or aspects of it.

Summaries of Rulings 1‑4

By way of background to the present advisory ruling (Ruling 5), I note that, on Friday 22 December 2023, I published (to the parties only) my reasons for four groups of rulings I had made on the Monday of that week (18 December) (Rulings 1‑4).[4]
[4]R v Lynn (Rulings 1‑4) [2024] VSC 373 (for an overview and summary of those rulings, see [1]‑[9]; and for a summary of the Crown case as it stood before those rulings, see [10]‑[55]).

Summary of evidence in Crown case for the purposes of Ruling 5

Explanation of which evidence is included in this summary

I now turn to a summary of the evidence in the Crown case as it is assumed to be for the purposes of this advisory ruling. In substance, this is an edited summary of the summary of the Crown case I gave in Rulings 1‑4. This summary assumes that some of the evidence excluded in Rulings 1‑4 will be in evidence.

In particular, it assumes that, notwithstanding exclusion of the whole of the record of interview under Ruling 2, the relevant part of that record of interview (which, subject to editing, is from question 1685 onwards) will be admitted into evidence in the Crown case.

It also assumes that, notwithstanding exclusion of the following pieces of evidence under Ruling 3, that evidence will be admitted in the Crown case:

a)searches and the results thereof at a site near the Union Spur Track (which is where the burnt remains of Mr Hill and Mrs Clay were found, after Mr Lynn had directed police to this area in his interview); and
b)opinion evidence concerning testing of gunshot trajectory and what is said to be the unlikelihood of Mr Lynn’s version given in the interview as to the circumstances of the accidental killing of Mrs Clay.

Mr Hill and Mrs Clay go missing

I turn now to the summary, commencing with the disappearance of Mr Hill and Mrs Clay.

On 19 March 2020, Mr Hill, aged 74, and Mrs 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.

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.

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 2020, 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 2020, 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 2020, 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.

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.

“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.

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

On the night of 20 March 2020, Tom Matthews was camped with his family at a site 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 manoeuvres, 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 21 March 2020 at about 9:48 a.m., an automatic number plate recognition (“ANPR”) camera captured Mr Lynn driving his Nissan Patrol towing a closed trailer over Mount Hotham. Telephone records indicated that, at almost precisely the same time, Mr Hill’s mobile phone connected to a nearby phone tower at Hotham Heights.

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

Mr Lynn paints his Nissan Patrol a different colour

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

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.

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.

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. Mr Lynn told his wife there were only four hours in the day when he was in the area where the campers went missing.

Arrest on 22 November 2021

On 22 November 2021, after leaving his home at about 5:30 a.m., Mr Lynn drove his Nissan Patrol 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.

Record of interview from 24 to 25 November 2021

While Mr Lynn was formally interviewed for a total period of over nine hours over the four days from 22 to 25 November 2021, the part of that interview that (for the purposes of this advisory ruling) it is assumed will be played commenced on the afternoon of 24 November (at Q 1685) and concluded on 25 November.[5] In summary, Mr Lynn admitted he was involved in the accidental deaths of Mr Hill and Mrs Clay at Bucks Camp, and that, thereafter, by various means, he sought to cover up these events and his involvement in them. More particularly, he said the following.
[5]As I understand it, none of the questions or answers prior to Q 1685 will be led.

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 Mr Hill. At this point, 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 2021, Mr Lynn was told[6] he was going to be charged with two counts of murder. When asked[7] whether he wished to say anything in answer to the charges, Mr Lynn said this:

I’m innocent of murder. I’ve — I haven’t behaved well, I’ve made some poor decisions. But murder, as I understand it, I’m innocent of.

[6]At Q 2940.

[7]At Q 2941.

When asked[8] whether he wished to make a handwritten statement in relation to the matter, he said, “I think it’s pretty much covered here.”

Seizure and examination of Mr Lynn’s Nissan Patrol and shotgun

[8]At Q 2942.

On 29 November 2021, the interior cabin of Mr Lynn’s Nissan Patrol 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 items from Mr Lynn’s home, including his Barathrum Arms 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.

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 inside 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 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.

How the Crown case is put

In the Revised Summary of Prosecution Opening (dated 15 January 2024), which was written in conformity with the exclusions from evidence in Rulings 1‑4, the Crown case is put in this way:[9]
[9]Revised Summary of Prosecution Opening at [2]‑[4].

[2] Mr Hill and Mrs Clay were last seen on 20 March 2020 at Bucks Camp, where they had set up camp in the same area as the accused. Remains of Mrs Clay were later found which, in combination with the other circumstances, indicate Mr Hill and Mrs Clay were violently killed at their campsite.
[3] Evidence relied upon to prove that the accused killed Mr Hill and Mrs Clay includes the following:
a)the accused camped at Bucks Camp close in time and distance to when and where Mr Hill and Mrs Clay are alleged to have been killed, when there were no other people camping there;
b)the accused left the campsite during the evening, travelling through the night and over the morning of 21 March 2020, driving along the Great Alpine Road near Mount Hotham, when the mobile telephone of Mr Hill connected with a nearby cell tower, consistent with the accused having Mr Hill’s phone after Mr Hill and Mrs Clay had been killed;
c)the accused returned to the area immediately after a Covid‑19 lockdown for Melbourne was lifted; and
d)the circumstances outlined below in paragraph 4.

[4] The prosecution relies upon all the circumstances, including the following, to prove that the accused killed Mr Hill and Mrs Clay with murderous intent:
a)the accused killed each of the two individuals within a short time and in close proximity;
b)Mrs Clay was shot to her head;
c)Mr Hill and Mrs Clay were not in possession of a firearm or likely to have been armed with any other weapon of note, whereas the accused had ready access to a firearm and other hunting implements;
d)the accused’s experience with and knowledge of firearms vis‑à‑vis Mr Hill and Mrs Clay not having such knowledge and experience;
e)the unlikelihood that the elderly couple posed any threat to the accused;
f)the lack of contact with the outside world from Mr Hill and Mrs Clay immediately prior to their deaths (inconsistent with, for example, one of them being in a position to call for help);
g)the accused’s conduct after Mr Hill and Mrs Clay were killed, including the following:
i.not calling for assistance on Mr Hill’s radio or his own UHF radio or otherwise reporting the deaths of Mr Hill and Mrs Clay;
ii.moving items and setting fire to the tent and burning an area adjacent to the tent and many possessions of Mr Hill and Mrs Clay at their campsite to destroy evidence prior to departing;
iii.removing cards from the wallets of Mr Hill and Mrs Clay to falsely make it look like they had been robbed;
iv.removing from the scene the bodies of Mr Hill and Mrs Clay, their telephones, the car key and Mr Hill’s drone;
v.hiding the bodies in the remote wilderness;
vi.disposing of the mobile telephones of Mr Hill and Mrs Clay;
vii.disposing of Mr Hill’s drone:
viii.in April 2020 disposing of the trailer used to carry the bodies of the deceased;
ix.in May 2020 returning to the site of the bodies to check they were hidden;
x.in June 2020 painting his car a different colour; and
xi.on 19 November 2021, after a television report earlier that month that showed a photograph of his car with a side‑mounted awning, removing the awning.

Later in the Revised Summary of Prosecution Opening, under the heading “Circumstances of the alleged offending”, the following is also said:[10]

[39] It is alleged that during the evening of Friday 20 March 2020 at Bucks Camp the accused murdered Mr Hill and Mrs Clay.
[40] The precise circumstances of the killings are not known. Nor is the motivation. The prosecution alleges that all the relevant circumstances, including the violent deaths of the two people in close proximity, point to Mr Hill and Mrs Clay each being killed deliberately and without lawful justification.
[41] Given the later removal from the scene of Mr Hill’s drone and the mobile phones, it is likely there was a dispute regarding Mr Hill’s drone or vision captured on his drone. There might have been an argument or confrontation between the men.
[42] It is not known how Mr Hill was killed. The prosecution alleges that Mr Hill was most likely killed first. In part this is because Mrs Clay is very unlikely to have provoked a violent confrontation involving a firearm or to have posed any threat to the accused (other than having witnessed or been aware of Mr Hill’s violent death). If he had been alive, Mr Hill could also have readily called for assistance if he was aware that Mrs Clay had been shot.
[43] Mrs Clay is alleged to have been shot in her head by the accused. At the time she was shot, Mrs Clay is likely to have been crouched down between the tent and the Landcruiser, near the car’s canopy.
[10]Revised Summary of Prosecution Opening at [39]‑[43] (my emphasis in bold italics).

Complete defence in Mr Lynn’s interview

Whatever might be said of the Crown 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 were not excluded beyond reasonable doubt, he must be acquitted of both murder charges (and, for that matter, of the unindicted alternatives of manslaughter too, if they were left to a jury).

The revised notice

I turn next to the Revised Notice of Evidence of Incriminating Conduct (dated 15 January 2024), which contains twelve sub‑paragraphs of alleged conduct by Mr Lynn on which the Crown seeks to rely as incriminating conduct. For convenience, those topics may be grouped into four categories:

a)First, under sub‑paragraph (a), the conduct relied on is that, shortly after killing the first person (likely to have been Mr Hill, it is said), Mr Lynn killed the other person.
b)Second, under sub‑paragraphs (b) to (h) inclusive, the conduct comprises conduct of Mr Lynn at Bucks Camp immediately after the deaths of Mr Hill and Mrs Clay, including:
i.not calling for assistance immediately after the deceased died;
ii.cleaning and burning the scene at Bucks Camp;
iii.moving the cards in the deceased’s wallets to make it look as if they had been robbed;
iv.removing the bodies and hiding them elsewhere; and
v.removing and disposing of the Landcruiser’s key, Mr Hill’s drone, and his and Mrs Clay’s mobile phones.

c)Third, under sub‑paragraphs (i), (k) and (l), the conduct relied on comprises three things done in relation to his Nissan and trailer well after the deaths of the deceased, namely:
i.disposing of his trailer in April 2020;
ii.painting his Nissan a different colour in June 2020; and
iii.removing the side‑mounted awning of his Nissan after 19 November 2021.

d)Fourth, under sub‑paragraph (j), the conduct relied on is returning to the bodies in May 2020 to ensure they remained hidden.

As I explained in my summary of reasons for this ruling delivered on Monday, given what Mr Lynn said in the relevant part of the interview, the parties agreed that another matter that was not in the notice, but that, for the purposes of this advisory ruling, should be considered as if it were, was Mr Lynn’s conduct in returning to the bodies in November 2020 and burning them and scattering their remains.

The applicable statutory provisions

The statutory provisions governing incriminating conduct are contained in Division 1 of Part 4 of the Jury Directions Act 2015 (Vic) (“the JDA”).

Section 18 of the JDA provides that, in that division:

“conduct” means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;
”incriminating conduct” means conduct that amounts to an implied admission by the accused—
(a) of having committed an offence charged or an element of an offence charged; or
(b) which negates a defence to an offence charged;

“offence charged” includes any alternative offence.

Section 19 of the JDA addresses, among other things, what must be contained in a notice of evidence of conduct that the Crown proposes to rely on as evidence of incriminating conduct, the time limit for filing and service of such a notice, and the circumstances in which a trial judge may dispense with those requirements.

Section 20 is in these terms:

Evidence of incriminating conduct
(1) The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless—
(a) the prosecution has given notice in accordance with section 19; and
(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
Note
A trial judge may make a determination under paragraph (b) even where the evidence of conduct relates only to an alternative offence.

(2) Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.

Section 21 provides as follows:

Mandatory direction on use of evidence of incriminating conduct
(1) If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that—
(a) the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that—
(i) the conduct occurred; and
(ii) the only reasonable explanation of the conduct is that the accused held that belief; and

(b) even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.

(2) In giving a direction under this section, a trial judge need not refer to each act or omission of the accused.
Note
Section 6 provides that a trial judge need not use any particular form of words in giving a direction to the jury. For example, in relation to the direction referred to in subsection (1)(a)(ii), if the evidence concerns an element of an offence, the trial judge could refer to “knew” rather than “believed” to better describe what the incriminating conduct, if accepted, may prove.

Section 22 provides for further jury directions on incriminating conduct, in this way:

Additional direction on incriminating conduct
If the trial judge gives, or proposes to give, a direction under section 21, defence counsel may request under section 12 that the trial judge also direct the jury that—
(a) there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and
(b) the accused may have engaged in the conduct even though the accused is not guilty of the offence charged; and
(c) even if the jury thinks that the conduct makes the accused look guilty, that does not necessarily mean that the accused is guilty.
Note
Section 14 requires the trial judge to give this direction, if requested, unless there are good reasons for not doing so.
Section 16 requires the trial judge to give a direction if the trial judge considers that there are substantial and compelling reasons for doing so.

Section 23 provides for directions designed to avoid the risk of improper use of evidence of conduct that is not relied on by the prosecution as evidence of incriminating conduct.

Section 24, which is headed “Abolition of common law rules continues”, provides that, except as provided by the relevant division, “a trial judge is not required to give the jury a direction regarding evidence because it is evidence of incriminating conduct or may be improperly used as evidence of incriminating conduct”.[11]
[11]See also the notes to s 24 regarding, inter alia, the abolition of rules of law based on Edwards v The Queen (1993) 178 CLR 193 and Zoneff v The Queen (2000) 200 CLR 234.

The applicable principles

While there may have been differences in emphasis, Mr Dickie and Mr Dann were agreed on the principles applicable to resolution of the matters in issue.

While I was referred to several cases,[12] and I had regard to all of them and others, counsel agreed that the applicable principles were helpfully summarised by Maxwell P in his ruling in DPP v Scriven (Ruling No 4).[13] For convenience, in what follows, I have extracted his Honour’s remarks and statements of principle from his reasons under the heading “The test to be applied”:[14]
[12]The cases to which counsel referred included the following: Weissensteiner v The Queen (1993) 178 CLR 217; R v Rice [1996] 2 VR 406; R v White [1998] 2 SCR 72; R v Cengiz [1998] 3 VR 720; R v Ciantar (2006) 16 VR 26 (Warren CJ, Chernov, Nettle, Neave & Redlich JJA); Butler v The Queen (2011) 34 VR 165 (Maxwell P, Ashley JA & Ross AJA); Mocenigo v The Queen [2013] VSCA 231 (Buchanan, Neave & Priest JJA); R v Butler (Rulings 1‑10) [2013] VSC 688 (Croucher J); Lane v The Queen (2013) 241 A Crim R 321 (Bathurst CJ, Simpson & Adamson JJ); DPP v Zhuang [2014] VSC 276 (Kaye J); The Queen v Baden‑Clay (2016) 258 CLR 308; DPP v Wan (Ruling No 1) [2018] VSC 19 (Kaye JA); DPP v Lyons [2018] VSC 297; (Kaye JA); R v Novakovic & Ors (Ruling 1) [2019] VSC 338 (Croucher J); DPP v Ristevski [2019] VSC 165 (Beale J); Doherty v The Queen [2019] VSCA 70 (Kaye, Niall & Weinberg JJA); and R v Tan (Ruling No 2) [2023] VSC 297 (Fox J).
[13]DPP v Scriven (Ruling No 4) [2015] VSC 220.
[14]DPP v Scriven (Ruling No 4) [2015] VSC 220 at [17]‑[30] (footnotes omitted; emphases in Maxwell P’s reasons). These extracts include, in square brackets, adapted references to the relevant provisions of the current JDA to account for the different provision numbers Maxwell P was considering under the 2013 version of the JDA. While the section numbers have changed in the current version of the JDA, the contents of the provisions are identical.

[17] Under s [20(1)] of the JDA, evidence of conduct cannot be relied on as evidence of incriminating conduct unless:
(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.

[18] If a favourable determination is made under s [20(1)(b)], s [21(1)] of the JDA sets out the directions which the trial judge must then give. The judge must direct the jury that:
(a) the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that:
(i) the conduct occurred; and
(ii) the only reasonable explanation of the conduct is that the accused held that belief; and

(b) even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.

[19] The terms of those directions — which reflect the common law position — illuminate the task of the trial judge in making the determination under s [20(1)(b)]. Thus, in determining whether the evidence ‘is reasonably capable of being viewed by the jury as evidence of incriminating conduct’, the judge is deciding whether it would be reasonably open to the jury to conclude that:

·the conduct occurred; and
·the only reasonable explanation of the conduct was that the accused believed he had committed the offence charged or had not acted in the belief that he needed to do what he did in order to defend himself.

[20] In my respectful opinion, the task of the trial judge in these circumstances was correctly stated by Kaye J in DPP v Zhuang, as follows:
The question in any case whether a jury should draw a particular inference is of course essentially a question of fact for the jury and not for the judge. It is not my task to determine whether the jury should draw the inference contended for by the prosecution. Rather at this stage my task is to determine whether the jury acting rationally could conclude that the only reasonable inference from the post‑offence conduct indulged in by the accused is that contended for by the prosecution. (See R v Cengiz.)
Thus, where the prosecution seeks to rely on post offence conduct, the test for myself as the trial judge is whether the jury could rationally conclude that the only reasonable inference to be drawn from that conduct is that contended for by the prosecution, namely an awareness that she had murdered her daughter‑in‑law and was not acting in self‑defence; (see R v Ciantar; the [JDA, s 21(1)(a)(ii)]).
Further, the test which I must consider is not whether standing alone the only reasonable inference to be drawn from that conduct is that the accused acted as she did, because of a belief that she had murdered [the victim] without justification. Rather it is plain that that question must be considered in the context of all the evidence in the case, and the background circumstances to it. (R v Ciantar; [JDA, s [20(1)(b)].)

[21] As is apparent from his Honour’s references to R v Cengiz and R v Ciantar, he construed s [20] of the JDA as reflecting the common law position. In the present case, senior counsel for the prosecution accepted that the JDA adopted the common law but did not accept the correctness of Kaye J’s formulation of the test to be applied by the trial judge. Counsel submitted that it was not for the trial judge to attempt to assess the cogency of alternative (innocent) explanations for the relevant conduct, less still to decline to leave the evidence as evidence of incriminating conduct if the innocent explanation(s) were judged to be equally available. To do so, it was submitted, would be to ‘usurp the function’ of the jury.
[22] That submission must be rejected. The pre‑JDA decisions make it clear that the judge is obliged to ‘make some assessment of the plausibility of any innocent explanations’ for the relevant conduct. As the Court of Appeal said in Ciantar:
[I]f an innocent explanation of post‑offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post‑offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt.

[23] In short, the question for the judge to determine under s [20(1)(b)] is whether, on the whole of the evidence, it would be reasonably open to the jury to conclude that the conduct in question could only be explained by the accused’s having had the relevant belief in his own guilt. The judge is assessing — as best he/she can — what the jury, acting rationally, would be entitled to make of the conduct, viewed in the context of all of the evidence.
[24] In assessing competing innocent explanations, the judge is anticipating — is obliged to anticipate — how rational jurors would be likely to undertake the same exercise. But this is not a usurpation of the jury’s function. On the contrary, it is a proper safeguard to ensure that post‑offence conduct is not allowed to go forward as a form of self‑incrimination unless there is a rational path open to the conclusion that the conduct cannot be explained in any other way.
[25] The putative jury conclusion is conventionally expressed — as it is in s [21(1)(b)] of the JDA — as a conclusion that the incriminating explanation of the conduct is the only reasonable explanation open on the whole of the evidence. But it could equally be expressed as a conclusion that no other explanation is reasonably open. That is, the jury must be able to dismiss any innocent explanation of the conduct as untenable.
[26] In my view, the phrase ‘intractably neutral’ as used in the cases captures one — but only one — possible result of the judge’s evaluation of the evidence. In such a case, the judge concludes that the innocent explanation and the incriminating explanation are equally plausible. Put another way, to say that conduct is ‘intractably neutral’ is to say that a rational jury could not, on the whole of the evidence, decide which was the preferable explanation.
[27] Logically, however, there will be other circumstances in which the existence of an alternative explanation would prevent a judge making the s [20] determination. That is, even where the competing explanations are not of equal plausibility, the judge might still conclude that the innocent explanation was sufficiently cogent, and sufficiently consistent with the surrounding circumstances, that the jury acting rationally would be unable to exclude it.
[28] That view accords with what this Court said in Mannella v The Queen. That was an appeal against conviction in a circumstantial evidence case, but what was said there is relevant here given that post‑offence conduct is ‘a species of circumstantial evidence’.
[29] The trial judge had directed the jury that an explanation of the evidence advanced by the defence could only be viewed as ‘reasonable’ if it was a ‘competing’ explanation, that is, the explanation had to be ‘of equal strength’. The Court ruled that the direction was erroneous:
An alternative hypothesis does not have to be ‘equally open’ or ‘equally compelling’ in order to give rise to a reasonable doubt as to guilt. Such a doubt will arise where any other inference consistent with innocence is reasonably open on the evidence, and the accused is entitled to the benefit of the doubt necessarily created by that competing inference.
…
There is an unacceptable risk that the jury understood the prosecution’s burden of proof ‘beyond reasonable doubt’ to have been met provided that there was not another ‘equally’ likely explanation for the circumstances upon which the inference of guilt was founded …

[30] Analogous reasoning applies, in my view, when the judge is assessing for the purposes of s [20(1)(b)] what view the jury might rationally take of the evidence of conduct. That is, the judge is obliged to consider an innocent explanation even if it is not ‘of equal strength’ with the incriminating explanation advanced by the Crown. The judge is only entitled to make an affirmative determination under s [20] if satisfied that a rational jury could conclude, on a consideration of the whole of the evidence, that the innocent explanation put forward was untenable.

I have sought to apply the relevant JDA provisions and the foregoing statements of principle when considering the various instances of conduct sought to be relied on by the Crown as incriminating conduct in this case.

Sub‑para (a) of the revised notice: The second killing

Summary of reasons in Ruling 5 re sub‑para (a)

In my summary of this advisory ruling delivered on Monday last week, I said the following under this heading:[15]

[11] As to the first of the categories identified in the [revised] notice, for reasons that follow, I rule that the conduct mentioned in sub‑paragraph (a) — the second alleged killing — may not be used as incriminating conduct.
[12] First, the use of the second alleged killing as incriminating conduct invites an element of bootstraps reasoning that cannot reasonably be guarded against if the jury were allowed to reason in the fashion urged by the Crown. This is because the jury would have to be satisfied that the second alleged killing was unlawful (or a murder) before they could use it as incriminating conduct in relation to the first alleged killing. Yet the jury could not sensibly reason towards guilt of the second alleged killing without first being satisfied of the major events that occurred prior to that second alleged killing, including those concerning the first alleged killing.
[13] Secondly, such reasoning would also raise difficult — nigh on impossible — questions concerning the standard of proof to be applied to satisfaction that the second alleged killing occurred before it could be used as incriminating conduct in relation to the first alleged killing.
[14] As I indicated during course of argument, none of this is to say that the Crown may not make a submission to the jury — such as that submission may be worth — that the first alleged killing, if proved beyond reasonable doubt that it was manslaughter or murder, gave rise to a motive for the second killing.

Additional reasons

[15]Ruling 5 at [11]‑[14].

I now add the following reasons.

A crucial factor in denying the Crown’s proposed reliance on the alleged killing of the second person as allowing incriminating conduct reasoning to be applied in proof of guilt of murder (or manslaughter) in respect of the first alleged killing was that Mr Dickie accepted, rightly, that (putting aside Mr Lynn’s account in his interview) there is no evidence of the order in which the deceased were killed, or in what circumstances. Yet, in the next breath, and as part of this argument, the Crown says that it is likely that Mr Hill was killed first.

While the evidence would allow an inference that Mrs Clay died as a result of being shot to the head with Mr Lynn’s shotgun (and, as we have seen, in his interview, Mr Lynn said this occurred, but accidentally), the Crown cannot say in what circumstances that event occurred or whether it occurred before or after Mr Hill died. Nor (putting aside Mr Lynn’s account) can the Crown say how, when or in what circumstances Mr Hill died.

Thus, there is no factual basis for the circumstances of the alleged conduct — the second alleged killing — from which an inference might be drawn that Mr Lynn believed he had murdered or unlawfully killed the other deceased in the first alleged killing.

This is to be contrasted with the other instances of conduct by Mr Lynn listed in the revised notice (and in the conduct involved in returning to the bodies in November 2020 and burning them, which, as I have said, is not in the revised notice). All of those other instances of conduct are, for the purposes of this advisory ruling, known and accepted. While there may be difficulties in using that conduct to apply to both alleged killings (about which I shall say more later), they are nevertheless instances of conduct from which an adverse inference, to the exclusion of all innocent inferences, might reasonably be drawn by a jury against Mr Lynn.

This is not to say that there are no occasions on which, where an alleged instance of incriminating conduct is disputed by an accused, as is the alleged killing, incriminating conduct reasoning can be left to a jury in a homicide. Of course, there will be cases with those features in which incriminating conduct reasoning may be safely employed. But, in such cases, there will be evidence from which a jury can safely be asked to conclude that the alleged incriminating conduct occurred in the first place; and, if so, it then may be used as incriminating conduct as to murder, manslaughter or an element of those offences and/or as negating a defence (depending on the evidence and issues in the case).

An example of this situation occurred in R v Butler (Rulings 1‑10).[16] This was a pre‑trial ruling at a retrial on manslaughter (the accused having been acquitted of murder on appeal after being convicted at his first trial).[17] The evidence for the alleged incriminating conduct — which involved dismembering a body, burning it, and disposing of the remains — came solely from a witness whose evidence was hotly disputed, and who was also to give evidence of admissions by the accused of what was said, at the retrial, to be an unlawful killing (it was said to be murder at the first trial). At the retrial, in conformity with the reasoning of the Court of Appeal, I ruled that, if the witness’s evidence of the alleged conduct relied on as incriminating conduct were accepted, it was capable of being used as incriminating conduct with respect to manslaughter or an element of it.[18]
[16]R v Butler (Rulings 1‑10) [2013] VSC 688.
[17]See Butler v The Queen (2011) 34 VR 165 (Maxwell P, Ashley JA & Ross AJA). See further below.
[18]R v Butler (Rulings 1‑10) [2013] VSC 688 at [29]‑[34].

But this case is different, and meaningfully so, when it comes to the Crown’s submission that the second alleged killing can be incriminating conduct in relation to the first alleged killing. For there is, on the evidence as it is assumed to be on the Crown case, no safe way of concluding that Mrs Clay was killed second or that she was killed in circumstances capable of bespeaking a belief in Mr Lynn that he had first murdered or unlawfully killed Mr Hill.

Thus, in my view, in the circumstances of this case, to allow a jury to reason from the second alleged killing that Mr Lynn believed he had murdered (or unlawfully killed) the first person would be to invite the jury to engage in speculative, false and/or dangerous reasoning with respect to both alleged killings. The Crown submission puts the cart before the horse, so to speak, or, more formally, invites a form of bootstraps reasoning that has no place in a criminal trial.

This, as I see it, is different from reasoning to the effect that, if, on all the evidence, the jury were satisfied beyond reasonable doubt that Mr Lynn had murdered or unlawfully killed the first person, he may then have had a motive to kill the second person, or at least to do an act that was unlawful and dangerous — that motive being to eliminate or ward off the second person as a witness. This form of reasoning — as to motive for the second alleged killing — appears to me, at least at the present time, to be a potentially legitimate way in which to reason, but only if first satisfied beyond reasonable doubt of an unlawful killing or murder in relation to the first killing.[19]
[19]I should add that, logically, it may even be possible to reason in this way if the first killing were an accident, although that is no part of the Crown’s case. Moreover, if accident were not excluded by the jury in relation to the first killing, this would mean that the Crown case more generally had been destroyed, and I fear that, in those circumstances, it would be unsafe to reason that the second killing amounted to either murder or manslaughter.

In contrast, while it may be thought to be a subtle difference, it would not be legitimate to employ the fact of the second alleged killing as incriminating conduct in relation to the first, even if it were open first to conclude, beyond reasonable doubt, that the first killing amounted to murder or manslaughter. This is because, if the jury were already satisfied beyond reasonable doubt that the first killing was a murder or a manslaughter, incriminating conduct reasoning by reference to the fact of the second killing would be redundant.

Thus, if a jury were allowed to reason in the manner the Crown urges under sub‑paragraph (a) of the revised notice, there would be an unacceptable risk that they would go awry and somehow employ this confusing form of inter‑se‑between‑charges incriminating conduct reasoning as proof of the first alleged murder, or even the second, or both, when it can do none of those things.

Even if that is to overstate things, this form of reasoning, in my opinion, still should not be permitted. This is because the risks of jury confusion and a miscarriage of justice inherent in such an approach are so manifest.

Sub‑paras (b)‑(l) & burning bodies: All other conduct relied on

Summary of reasons in Ruling 5

It is convenient to address together the next four headings of my summary of this advisory ruling. In that summary, I said the following under those four headings concerning the second, third, fourth and fifth categories (or twelve instances) of conduct said by the Crown to amount to incriminating conduct in relation to murder:[20]
[20]Ruling 5 at [15]‑[28].

Sub‑paras (b)‑(h): Removal and hiding of bodies, disposal of other items, etc
[15] As for the second category of instances of alleged incriminating conduct in sub‑paragraphs (b) to (h), the most significant, I think, is the removal and hiding of the bodies. In my view, of lesser significance are, for example, the failure to report the deaths and the actions vis‑à‑vis the deceased’s wallets, phones and the drone. But I am content to consider all of these pieces of alleged conduct together, recognising the potential greater significance of the removal and hiding of the bodies.
[16] In summary, Mr Dann submitted that the other evidence in this case (including the forensic evidence) is so consistent with Mr Lynn’s version of how Mrs Clay and Mr Hill met their deaths accidentally, that so much of that account is relied on by the Crown or cannot be discounted, and that, in that context, his innocent explanation for the conduct sought to be relied on as incriminating conduct is so compelling, that I could not decide, that, on the whole of the evidence, it would be reasonably open to a jury, acting rationally, to conclude that that conduct could only be explained by Mr Lynn’s having had a relevant belief in in his own guilt. Put another way, he submitted that I could not, on the whole of the evidence, conclude that a rational jury would be able to dismiss Mr Lynn’s innocent explanations for the conduct as untenable.
[17] In summary, Mr Dickie’s submission is that it would be open to me to reach that conclusion, and that, in the circumstances of this case, I would be usurping the jury’s function if I were to rule otherwise.
[18] In my view, while a jury may well be attracted to Mr Dann’s argument — which I accept is powerful — that will be a matter for them, as I am persuaded that Mr Dickie’s submission is to be preferred, but only in part. In particular, I am satisfied that, on the whole of the evidence, it would be reasonably open to a jury, acting rationally, to conclude that the conduct identified in sub‑paragraphs (b) to (h) could only be explained by Mr Lynn’s having had a belief, not that he had committed murder, but that he had unlawfully killed Mrs Clay and Mr Hill. While it may be regarded as extreme or disproportionate behaviour to have removed and hidden the bodies, I am not satisfied that it is open to a rational jury to exclude the reasonable possibility that, in so doing, Mr Lynn believed he had unlawfully killed the deceased as opposed to a belief that he had murdered them.
Sub‑paras (i), (k) & (l): Painting of car, removal of awning, and disposal of trailer
[19] As for the third category of instances of alleged incriminating conduct in sub‑paragraphs (i), (k) and (l) — which concern disposing of his trailer, painting his Nissan car another colour, and removing its side‑mounted awning — I understood counsel to make the same arguments.
[20] In my view, while these pieces of conduct may not be as potentially probative — as incriminating conduct — as the removal and disposal of the bodies, again, I am satisfied that, on the whole of the evidence, it would be reasonably open to a jury, acting rationally, to conclude that that conduct could only be explained by Mr Lynn’s having had a belief, not that he had committed murder, but that he had unlawfully killed Mrs Clay and Mr Hill.
Sub‑para (j): Returning to bodies in May 2020
[21] As for the fourth category in sub‑paragraph (j) — which concerns Mr Lynn returning to the bodies in May 2020 — again, I understood counsel to make the same arguments.

[22] Again, I am satisfied that, on the whole of the evidence, it would be reasonably open to a jury, acting rationally, to conclude that that conduct could only be explained by Mr Lynn’s having had a belief, not that he had committed murder, but that he had unlawfully killed Mrs Clay and Mr Hill.
Burning of bodies in November 2020
[23] Finally, I turn to the conduct that is not specified in the current notice but which the parties agreed I should consider as well in this advisory ruling, because it is mentioned in Mr Lynn’s interview — and that is his conduct in returning to the bodies in November 2020 and burning them and scattering the remains.
[24] I understood Mr Dickie to submit that, like the initial removal and hiding of the bodies, this was callous conduct that, of its nature, more readily bespeaks a belief of guilt of murder. Further, he emphasised that, like the conduct in returning to the bodies in May 2020, the return to them again in November 2020, and the burning of them, was quite distinct and persistent conduct committed well after the deaths of the deceased, and therefore was even more capable of proving to a jury that Mr Lynn believed that he had committed murder, and that a jury could draw this inference to the exclusion of all other innocent possibilities (such as panic or the like) or lesser possibilities (such as a belief that he had committed unlawful killings).
[25] Mr Dann, as I understood him, relied on the same arguments as he put on all other instances of conduct said to be evidence of incriminating conduct. He also submitted that there was a danger in a jury reasoning in an illicit fashion because of the particularly unpleasant thought of returning to the deceased’s bodies eight months after their deaths and burning their remains.
[26] Again, however, I am satisfied that, on the whole of the evidence, it would be reasonably open to a jury, acting rationally, to conclude that the conduct in question could only be explained by Mr Lynn’s having had a belief, not that he had committed murder, but that he had unlawfully killed Mrs Clay and Mr Hill.
[27] I should add that I accept that this is arguably extreme or disproportionate conduct in the senses in which those terms are used in the authorities in this area, which might be said to support its potentially going to a belief in Mr Lynn, to the exclusion of other beliefs, that he had committed murder.
[28] Equally, I am concerned about the potential misuse of this evidence, and about over‑estimation of its true probative worth as a basis for incriminating conduct. But I think those difficulties can be overcome by careful and strong directions on the use, and directions or warnings as to the non‑use or misuse, of such evidence as evidence of incriminating conduct. Those directions, and whether or not they should be given, and, if so, their form, could be discussed with counsel at an appropriate time much later in the trial.

Distinction between more extreme, and less extreme, conduct

I now add the following reasons, commencing with the notion of extreme or disproportionate conduct.

Consistent with the foregoing reasons, I understood Mr Dickie to draw a distinction between:

a)on the one hand, the more extreme conduct involved in removing the bodies from Bucks Camp and hiding them at Union Spur Track on 20 to 21 March 2020, returning to the bodies in May 2020, and returning to them again in November 2020, burning them and scattering the remains; and
b)on the other, the less extreme conduct involved in all of the other things relied on as incriminating conduct in sub‑paragraphs (b) to (l) of the revised notice, including failing to call for assistance immediately after the deceased died, cleaning and burning the campsite at Bucks Camp, moving the cards in the deceased’s wallets to make it look as if they had been robbed, removing and disposing of the Landcruiser key, the phones and the drone, disposing of his trailer in April 2020, painting his Nissan a different colour in June 2020, and removing the side‑mounted awning of his Nissan after 19 November 2021.

I did not understand Mr Dickie to urge that, whether considered alone or together, those instances of conduct in the less extreme category were capable of evidencing a belief in Mr Lynn, to the exclusion of other beliefs, that he had committed murder. Rather, they could go only to a belief, to the exclusion of other beliefs, in unlawful killing. If my understanding is correct, then I agree.

If he meant that those less extreme instances of conduct, when combined with the more extreme instances, together, or the more extreme instances alone or together, amount to conduct capable of evidencing a belief in Mr Lynn, to the exclusion of all other beliefs, that he had committed murder, then I do not agree.

That said, Mr Dickie’s position in the latter respect is understandable. As I said in my summary of reasons, the conduct directed at the deceased’s bodies in this matter is arguably extreme or disproportionate conduct in the senses in which those and like terms are used in the authorities in this area. This, in turn, might be said to support, or even compel, a conclusion that the conduct is capable of going to a belief in Mr Lynn, to the exclusion of all other beliefs, that he had committed murder. And, when added to the other conduct relied on, some might agree that that conclusion is all the stronger.

Indeed, I accept that reasonable minds may differ as to where, when considering the evidence as a whole and the test in s 20(1)(b) of the JDA, to draw the boundaries of what conduct is, and what conduct is not, reasonably capable of allowing a jury to infer a belief in an accused, to the exclusion of all other beliefs, that he has committed murder.

But, in the circumstances of this case, I am not satisfied, on the basis of the evidence as a whole, that it would be reasonably open for a jury to conclude that the conduct directed at removal, hiding and destruction of the bodies, whether considered alone or together with the rest of the conduct relied on in the revised notice, could be explained only by Mr Lynn’s having had a belief that he had murdered the deceased.

In my view, another explanation for the conduct that could not reasonably be excluded by a jury is that Mr Lynn believed he had unlawfully killed one or both of the deceased.

On Mr Lynn’s account, Mrs Clay died when he was trying to wrest his shotgun from Mr Hill. In those circumstances, he may well have believed that he would be held responsible for an unlawful killing, notwithstanding that it is accepted by the Crown that, on his account, he committed neither murder nor manslaughter. Similarly, while his account of Mr Hill’s death does not amount to unlawful killing either, he may well have believed that it did.

Or, even if Mr Lynn’s account of the events that led to the deaths is rejected wholly or in part, and is put to one side, I am satisfied that a jury could not reasonably exclude that he engaged in the conduct in question in the belief that one or both of the killings were committed without murderous intent.

In those circumstances, notwithstanding the nature of the instances of conduct relied on as incriminating conduct, I think it would be wrong to leave those items of conduct (whether individually or in combination) to a jury as capable of evidencing a belief by Mr Lynn that he had committed murder.

My further reasons for these conclusions follow.

Absence of evidence concerning manner and circumstances of deaths

First, unlike many other murder cases in this area of discourse, putting aside Mr Lynn’s account, there is no other evidence as to how or when Mr Hill died, or of the circumstances in which his death occurred. In the case of Mrs Clay, while the evidence is capable of proving that she died as a result of a gunshot to her head (and that the shot came from Mr Lynn’s shotgun), putting aside Mr Lynn’s account, nothing is known about the circumstances in which she was shot.

In those circumstances, while a reasonable jury would be entitled to think that one possible reason Mr Lynn engaged in the impugned conduct — including his treatment of the bodies — is because he believed he had committed murder, in the absence of evidence of the circumstances surrounding the deceased’s deaths, I cannot see how a reasonable jury could exclude the inference that he believed he had committed an offence or offences short of murder.

R v Tan (Ruling No 2) and DPP v Ristevski (Ruling No 1)

Consider and contrast, for example, R v Tan (Ruling No 2) (“Tan”).[21] I understood Mr Dickie to refer to Tan as a recent illustration of where a judge of this Court allowed post‑incident conduct of the accused to go to incriminating conduct as to murder (or, more particularly, to murderous intent) in not dissimilar circumstances from the present case.
[21]R v Tan (Ruling No 2) [2023] VSC 297 (Fox J).

The conduct relied on in Tan included: a lie by the accused that the deceased left home in her pyjamas and did not come back; the accused, having admitted to his friend Mr Chan that he had killed the deceased, then requested him to find a rubbish bin (to put the deceased in); the accused’s dumping of the deceased’s body in a rubbish bin; his organising collection of the bin so that the body would be dumped and hidden at a rubbish tip (which it was); and his cleaning of the bin when it was returned.

As Fox J explained, there was other evidence at trial capable of establishing murderous intent. This included evidence: that the accused believed the deceased was unfaithful to him with another man; that the accused had been stalking her; and that the deceased was stabbed multiple times in the chest and arms (including through her arms). Further, the accused had admitted that he knew the deceased was being unfaithful, that he was angry, that they fought, and that he killed her, albeit accidentally (in the sense of without murderous intent, as opposed to a pure accident).[22]
[22]R v Tan (Ruling No 2) [2023] VSC 297 at, e.g., [45]‑[47].

Thus, if the accused were the killer, which he admitted he was, then the post‑killing conduct relied on by the Crown was capable of bespeaking a belief in murderous intent, to the exclusion of other beliefs (such as having committed manslaughter).

Fox J contrasted the case before her with DPP v Ristevski (Ruling No 1) (“Ristevski”).[23] It will be remembered that, in Ristevski, Beale J ruled that the conduct sought to be relied on by the Crown — which included Mr Ristevski putting his wife’s body in the boot of his car, driving to a park in Macedon, then concealing the body between logs in a forest, where it was found eight months later, and persisting in the lie for several months — could go to incriminating conduct as to an unlawful killing, but not to murderous intent. Unlike Ristevski, said Fox J, where there was no evidence as to how Mr Ristevski’s wife died or in what circumstances, or of motive, and no other evidence of murderous intent, there was in Tan evidence of motive, as well as other evidence of murderous intent, including that the deceased had been stabbed multiple times to the chest and arms.
[23]DPP v Ristevski (Ruling No 1) [2019] VSC 165 (Beale J).

Her Honour summed up her ultimate conclusion in this way:[24]

Here, the post‑offence conduct may fairly be described as extreme and out of proportion if the accused had accidentally killed the deceased in the early hours of the evening, in her own home and with her young son nearby. The accused’s lie was repeated, and his other post‑offence conduct was protracted. Having failed to successfully recruit Mr Chan, he carefully disposed of the body himself, including returning to Heidelberg West to collect the bin, which he later thoroughly cleaned. He repeatedly sought to avoid police and leave Victoria. The internet searches alone would not be reasonably capable of being used as evidence of murderous intent, but when viewed together with the evidence as a whole, including the evidence of the other post‑offence conduct, they form part of an ongoing attempt by the accused to thoroughly dispose of the deceased’s body, conceal his crime and avoid police. The evidence itemised in the Notice must be viewed together with all the other evidence, including the evidence that the accused was angry with the deceased for being unfaithful, and the evidence of the forensic pathologist [as to the stab wounds and cause of death]. In my view, a rational jury could conclude that the only reasonable explanation for the lie and other post‑offence conduct is that the accused knew he had murdered [the deceased]. They could reasonably exclude the possibility that the accused lied and engaged in this conduct because he had argued with his girlfriend and unlawfully, but accidentally, killed her. That is not to say a jury should or must exclude that possibility, but in my view, they rationally could.

[24]R v Tan (Ruling No 2) [2023] VSC 297 at [52] (footnote omitted).

The present case is, at least to some extent, to be contrasted with Tan and likened to Ristevski. Here, there is (apart from Mr Lynn’s account) no evidence as to how, when or in what circumstances Mr Hill died. And while there is evidence that Mrs Clay died as a result of a gunshot wound (from Mr Lynn’s shotgun), there is (apart from Mr Lynn’s account) no evidence as to the circumstances in which that shooting occurred.

Further, apart from the argument as to a possible motive to kill (or to commit an unlawful and dangerous act against) the second person if the first had been killed unlawfully or murdered, there is no evidence of motive in the present case. Indeed, it might be said that the notion that Mr Lynn would just up and murder two complete strangers is far‑fetched in the extreme.

Butler v The Queen

There are, of course, several other cases that support the view that conduct as extreme as removing, hiding and/or destroying a deceased’s body, whether alone or in combination with other instances of conduct designed to cover up a death, should — and will — be allowed to go to a belief in the accused, to the exclusion of other beliefs, that he or she had committed murder, as opposed to manslaughter.

The Court of Appeal’s decision in Butler v The Queen[25] provides an example. I mentioned Mr Butler’s retrial on manslaughter earlier, and his alleged post‑offence conduct of dismembering and burning the deceased’s body, and disposing of his remains. On his appeal, which was decided under the common law (whereas the retrial was decided under the 2013 version of the JDA), all three members of the Court (Maxwell P, Ashley JA and Ross AJA) accepted that it was open to leave the alleged conduct to the jury as going to consciousness of guilt of murder. That said, both the original trial judge, and Ashley JA on the appeal (with Ross AJA agreeing), were troubled that there was no evidence of murderous intent, apart from the post‑offence conduct, which when considered with all of the other evidence, may have been intractably neutral on that element.[26] While Mr Butler had denied any involvement in either the deceased’s death or the alleged acts of post‑offence conduct, there was evidence at trial that the deceased met his death unlawfully and violently at the hands of Mr Butler over a dispute about unpaid rent. Thus, like Tan, and unlike Ristevski, there was evidence of the circumstances of an unlawful killing to which consciousness of guilt reasoning might attach.
[25]Butler v The Queen (2011) 34 VR 165 (Maxwell P, Ashley JA & Ross AJA).
[26]See Butler v The Queen (2011) 34 VR 165 at, e.g., 185[121]‑186[122] & 187[134] (Ashley JA).

Interestingly, however, Ashley JA (Ross AJA agreeing) went on to hold that Mr Butler’s murder conviction was unsafe on the element of murderous intent, that an acquittal should be entered on murder, and that a retrial should be directed on manslaughter. Maxwell P dissented on that point.

R v Baden‑Clay and R v White

Mr Dickie also placed reliance on R v Baden‑Clay[27] (“Baden‑Clay”), another decision under the common law concerning (among other things) the use of post‑offence conduct in a murder case. He pointed to the High Court’s references in its unanimous joint judgment[28] to Major J’s reasons in the Supreme Court of Canada in R v White (“White”), where it was said that there may be cases where post‑offence conduct, such as the accused’s flight or concealment, is so out of proportion to the level of culpability involved in a lesser offence that it might be found by the jury to be more consistent with the more serious offence charged.[29]
[27]R v Baden‑Clay (2016) 258 CLR 308 (French CJ, Kiefel, Bell, Keane & Gordon JJ).
[28]R v Baden‑Clay (2016) 258 CLR 308 at 332[73]‑[74].
[29]R v White [1998] 2 SCR 72 at 89[27].

But, as Major J also said, which passage the High Court extracted in its judgment, “[t]he result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute”.[30] (Ten years earlier, in its judgment in R v Ciantar, a five‑member bench of the Court of Appeal had emphasised the same passage of Major J’s reasons.[31])
[30]R v Baden‑Clay (2016) 258 CLR 308 at 332[74], citing R v White [1998] 2 SCR 72 at 91[32].
[31]R v Ciantar (2006) 16 VR 26 (Warren CJ, Chernov, Nettle, Neave & Redlich JJA) at 48[69].

Turning to the facts, Mr Baden‑Clay’s wife’s body was found under a bridge 13 kilometres from the family home ten days after she went missing. The cause of her death could not be determined because of decomposition, but she did not die of natural causes. Mr Baden‑Clay had injuries to his face that were most likely caused by fingernails, and his explanation that shaving was the cause was implausible. He had an ongoing sexual affair with another woman, to whom he promised to leave his wife less than three weeks before the disappearance. He lied to police about his ongoing affair. There was a prospect that the affair would be disclosed to his wife if she attended a scheduled conference that his lover was also to attend on the day of the disappearance. In his sworn evidence at trial, he denied killing his wife and disposing of her body. The Crown case was that Mr Baden‑Clay fought with and murdered his wife at home and then dumped her body under the bridge. He was convicted of murder.

On appeal to the Court of Appeal in Queensland, Mr Baden‑Clay was acquitted of murder, and a conviction of manslaughter was substituted, on the basis that, notwithstanding his sworn evidence at trial, there was a hypothesis consistent with manslaughter, not murder, that could not be excluded on the evidence.

On appeal to the High Court, the murder conviction was restored. The Court held that, on the evidence, there was no hypothesis consistent with guilt of manslaughter, but innocence of murder. Mr Baden‑Clay’s false denials to police about his ongoing affair, his suggestion to his lover that she should “lie low”, and his enquiry of her as to whether she had revealed the affair to the police, were all capable of being regarded by the jury as evidencing a strong anxiety to conceal from police the existence and true nature of his affair. This anxiety, said the Court, could reasonably be seen as indicative that, in his mind, the affair and the killing were inter‑related, and that the killing was not an unintended, tragic death of his wife, but an intentional killing.[32] The Court concluded that it was open to the jury to regard the lengths to which Mr Baden‑Clay went to conceal his wife’s body and to conceal his part in her demise as beyond what was likely, as a matter of human experience, to have been engendered by a consciousness of having unintentionally killed his wife.[33]
[32]R v Baden‑Clay (2016) 258 CLR 308 at 331[72].
[33]R v Baden‑Clay (2016) 258 CLR 308 at 333[76].

The Court added that, even if the evidence of post‑offence conduct were neutral on the issue of intent, that alone would provide no basis to conclude that the reasonable hypothesis relied upon in the court below was open on the evidence led at trial.[34] On the question of intent, the Court said that the jury could take into account the absence of any signs that a weapon was used to cause the death of the deceased, and make their own judgment about Mr Baden‑Clay’s intention at the time, bearing in mind the difficulty involved in killing a human being without the use of a weapon unless the act of killing is driven by a real determination to cause death or grievous bodily harm.[35]
[34]R v Baden‑Clay (2016) 258 CLR 308 at 333[77].
[35]R v Baden‑Clay (2016) 258 CLR 308 at 333[78].

Thus, in Baden‑Clay, there was evidence of motive and intent to which the evidence of the post‑offence conduct could be seen as inter‑related. Moreover, the appeal was complicated by the Court’s discussion of Weissensteiner v The Queen,[36] which has no application in the present case.[37]
[36]Weissensteiner v The Queen (1993) 178 CLR 217.
[37]R v Baden‑Clay (2016) 258 CLR 308 at, e.g., 325[50]‑327[57].

In those circumstances, Baden‑Clay cannot meaningfully assist in answering the questions posed here, for the facts and issues were quite different from Mr Lynn’s case.

Two allegedly unlawful killings, not one

There is a second consideration that distinguishes this case from others of this type.

While it may reasonably be considered that Mr Lynn’s conduct designed to conceal his involvement in the deaths of the deceased was extreme or disproportionate, it is also the case that, in allowing this conduct to go to a belief that he had unlawfully killed the deceased (as opposed to a belief that he had murdered them), to the exclusion of other beliefs, it must be remembered that manslaughter itself is a serious crime.

And here, in circumstances where, by reason of this advisory ruling, it will be left to the jury to determine whether Mr Lynn’s conduct evidences a belief, to the exclusion of all other innocent beliefs, that he had unlawfully killed the deceased, it will be in relation to two unlawful killings, not just the one. It might be said that a person who believed he committed two unlawful killings would have as much reason to conceal his involvement in those killings as a person who believed he had committed one murder would have to conceal his or her involvement in that single killing.

Thus, in the same way that it might be said that one accidental killing might be unlucky, but two stretches credulity and smacks of murder, Mr Lynn can call in aid the understandable concern that, on his account, having been involved in the accidental death of not one person but two (one of whom died as a result of a shot from his gun), he might not be believed if he came forward immediately and explained what had happened.

The complicating factor of two charges of murder

There is a third reason that, notwithstanding Mr Lynn’s conduct involved in removing, hiding and destroying the bodies, it cannot be said, in accordance with s 20(1)(b), that, “on the basis of the evidence as a whole, the evidence of [the conduct in question] is reasonably capable of being viewed by the jury as evidence of incriminating conduct [in relation to murder, as opposed to unlawful killing]”.

It is this. It seems to me that there is a grave risk that, by allowing the conduct in question to go to two charges of murder — when the circumstances surrounding both killings are (apart from Mr Lynn’s account) unknown, except to say that one of the deceased died as a result of a gunshot to the head — a jury will wrongly, and unreasonably, be allowed, even invited, to treat the two murder charges as a job lot.

Yet, given the uncertainty of the circumstances surrounding Mrs Clay’s death (apart from Mr Lynn’s account, which is consistent with the forensic evidence), and the complete absence of evidence of what caused Mr Hill’s death or the circumstances in which it occurred (again, apart from Mr Lynn’s account, which is also consistent with the absence of forensic evidence), even if it were open to rely on the instances of conduct in question (whether alone or in combination) to go to incriminating conduct as to murder in relation to, say, Mrs Clay (because of, inter alia, but principally, the evidence that she died as a result of a gunshot), I think it would still be wrong to do so in relation to Mr Hill’s death. One reason it would be wrong is, even with the most careful directions, I fear it would be nigh on impossible to expect a jury to perform the mental gymnastics involved in treating incriminating conduct differently as between the two separate charges in this case.

In those circumstances, it is, in my judgment, safer, and more appropriate, to deny the jury’s use of any of the instances of conduct relied on — including the more extreme conduct concerning the treatment of the bodies — as incriminating conduct as to a belief, to the exclusion of other beliefs, of having murdered the two deceased.

Now, of course, logic might dictate that the same (or a similar) criticism must be made of allowing any or all of the instances of conduct relied on to go to a belief, to the exclusion of any innocent belief, of having unlawfully killed both deceased. And this might be said to be especially so in circumstances where Mr Lynn’s account, if accepted by a jury or not rejected by them beyond reasonable doubt, must result in acquittals of both murder and manslaughter. To that extent, Mr Dann’s submission — that the conduct relied on must not be allowed to go to incriminating conduct at all (whether murder or manslaughter) — might be thought to have even greater force.

But the risk is not so acute — and not as likely to result in a miscarriage of justice — if the maximum use of the conduct by the jury adversely to Mr Lynn is confined to a potential inference of a belief in unlawful killings, rather than a belief as to having committed murders.

Further, subject to hearing from counsel, I think I could craft directions, in the style of those mentioned in ss 21 and 22 of the JDA, that ensured that, if the jury were not satisfied that, on the whole of the evidence, the conduct showed a belief that both killings were unlawful, that would be a reason why the conduct should not be used as evidence of incriminating conduct at all. Such directions would be far easier for a jury to understand, and more likely to be followed, than those that might allow incriminating conduct reasoning to extend to a belief as to murder on one charge but not the other.

The nature of incriminating conduct as an implied admission/belief in wrongdoing

A fourth reason why I consider that the use, by a jury, of the instances of post‑incident conduct (whether individually or collectively) must be confined to a potential inference as to a belief in having committed unlawful killings, as opposed to murders, is, in essence, a prudential one, although it is not essential to my conclusion. Let me explain.

As the definition in s 18 of the JDA tells us, incriminating conduct is conduct that amounts to an implied admission by the accused (a) of having committed the offence charged or an element of it or (b) which negates a defence to an offence charged. Similarly, the mandatory directions in s 21(1)(a)(ii) tell the jury that they may use the conduct in question as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged. Either way, incriminating conduct is neither a confession to a crime nor an express admission of an element of a crime or as to the negation of a defence.

At common law, post‑offence conduct is said to be a species of circumstantial evidence.[38] The same must be true of incriminating conduct under the JDA.[39] Thus, the conduct which is urged by the Crown as incriminating conduct is just one piece of evidence (or, in this case, evidence of several instances of conduct) — the probative value of which will vary from case to case depending upon the evidence and issues in dispute — which, when considered together with other evidence in a trial, may or may not be capable of proving a charged offence beyond reasonable doubt.
[38]See, e.g., R v Ciantar (2006) 16 VR 26 at 40[44].
[39]See, e.g., DPP v Scriven (Ruling No 4) [2015] VSC 220 at [28].

Given the assumptions on which this advisory ruling is based, the principal issue in dispute in this trial is likely to be whether the Crown can persuade a jury to reject, beyond reasonable doubt, the essence of Mr Lynn’s account of the two accidental deaths. Whether the conduct to be relied on as incriminating conduct is allowed to go to murder or only to unlawful killing, it might be said that its principal probative value would be in potentially assisting the Crown, along with any other relevant evidence, in its attempt to persuade the jury to reject that exculpatory account, beyond reasonable doubt. If the conduct relied on as incriminating conduct cannot, or does not, in combination with the other evidence, put the lie to Mr Lynn’s version, beyond reasonable doubt, then he must be acquitted of both charges of murder (and, if left to the jury, also the unindicted alternatives of manslaughter).

If, however, the conduct relied on as incriminating conduct were to be left to the jury as being capable of going beyond unlawful killing and to murder, then I fear that there would be an unacceptable risk that it would be used by a jury as filling a fundamental gap in the Crown case on murder — and that is the absence of proof of murderous intent.

As I understood Mr Dickie, he conceded that, absent an ability to use the alleged incriminating conduct as evidence of murderous intent, there would be no case of murder fit for a jury, and that he would recommend to the Director that the case go forward on manslaughter only. It is, in my respectful opinion, a very fair concession to make, and one that I consider to be responsible upon an analysis of the proposed evidence in this case (as that evidence is assumed to be for the purpose of this advisory ruling).

Of course, Mr Dickie’s point is that to confine the use of the alleged incriminating conduct to a belief in Mr Lynn that he had killed the deceased unlawfully would be to deny the Crown that to which, upon a proper analysis, it is entitled to urge — namely, an inference by the jury that Mr Lynn’s conduct betrays in him nothing other than a belief that he had murdered both of the deceased.

However, even if, contrary to my view, I accepted that it would be reasonably open to a jury to conclude that the conduct in question could be explained only by Mr Lynn’s having believed that he had murdered Mr Hill and Mrs Clay, I still think there would be an unacceptable risk in this case that, notwithstanding the mandatory directions in s 21 and the optional directions in s 22, a jury would overvalue this evidence as proof of murder and use it to fill the gap in the Crown case that Mr Dickie concedes otherwise exists, rather than as simply a piece of circumstantial evidence to be considered along with any other relevant evidence, such as it is.

My grave concern — that the evidence of the conduct would be overvalued — is not because of the risk that it might be said, reasonably, to be a callous thing to remove, hide and destroy the deceased’s bodies, although I think that risk exists too. Rather, it is the seductive nature of the reasoning that says to engage in such conduct bespeaks murder when, on closer analysis, it is doubtful that it could reasonably be taken so far in the context of this case. I am troubled that there is an unacceptable risk that the directions in ss 21 and 22 would, in effect, fall on deaf ears, and that a jury would use incriminating conduct reasoning in proof of murderous intent, as if the conduct were a confession or an express admission to that element of murder, when it is no more than a piece (or, in this case, pieces) of circumstantial evidence to be considered along with any other evidence in the Crown case.

As I said a few moments ago, this fourth consideration is not essential to my decision to deny the use of the identified conduct as incriminating conduct in relation to murder, as opposed to unlawful killing. The first, second and third factors mentioned under the previous three headings are sufficient for me to reach the conclusions I have reached. This fourth factor is, as I have said, a prudential reason for declining to allow incriminating conduct to go beyond a belief in unlawful killings, and to a belief in murder, even if it were strictly open to do so.

Conclusion

Accordingly, I rule that neither the instances of conduct itemised in sub‑paragraphs (b) to (l) of the revised notice nor Mr Lynn’s burning of the bodies in November 2020, either alone or in combination with each other, or on the basis of the evidence as a whole, may go to a belief, to the exclusion of other beliefs, that he murdered Mr Hill and Mrs Clay.

However, those items of conduct will be left the jury as capable of going to a belief, to the exclusion of other explanations, that he had unlawfully killed Mr Hill and Mrs Clay.

Ruling 6: Certification

Following submissions from counsel on Thursday and Friday last week, I delivered an advisory ruling (Ruling 5) on Monday concerning the use or non‑use by a jury of conduct of Mr Lynn said by the Director to be incriminatory conduct. I gave a summary of my reasons for so ruling.

After hearing counsel further, I adjourned the matter until today (22 February) so that, among other things, the parties could consider their positions on whether to seek certification in respect of an appeal against the ruling to the Court of Appeal.

Yesterday afternoon, my associates were advised by email from the solicitor for the Director that certification would be sought this morning pursuant to s 295 of the CPA.

Mr Dickie, who appears with Ms Hamill for the Director, now makes that application. In his submission, the ruling is an “interlocutory decision” and that it is, within the meaning of s 295(3)(b), “of sufficient importance to the trial to justify it being determined on an interlocutory appeal”.

The ruling actually involves not one decision but several separate decisions on twelve different instances of alleged conduct specified in the Director’s revised notice of incriminating conduct, and on another piece of alleged conduct that is not in the notice but in respect of which the parties were content to proceed as if it were. As can be seen from the ruling, I dealt with those different instances of conduct in five categories.

As I understood Mr Dickie, it is proposed that each of the decisions within the ruling would be challenged on appeal.

As to the bases for those challenges, I understood him to say that each decision would be argued to be simply wrong.

Mr Dann KC, who appears with Mr McGrath for Mr Lynn, opposed the application for certification on several bases.

First, he submitted that the application would be premature, given the advisory nature of the ruling. In this connection, he referred to KJM v The Queen.[40] That said, he also conceded that KJM involved a question of admissibility of evidence on an interim basis, and on the assumption that the evidence would be accepted, when there were in fact to be challenges made to that evidence. This case is different. For the purposes of my ruling, the conduct relied on was not disputed and, what is more, would not be disputed if the relevant parts of the interview were elicited in the Crown case, which was the basis on which the advisory ruling was conducted.
[40]KJM v The Queen [2011] VSCA 151 (Maxwell P, Neave and Bongiorno JJA).

Second, Mr Dann submitted that there were no grounds of appeal against which to assess whether the points to be agitated on an interlocutory appeal had any merit, which in turn denied the Court the ability to assess whether the interlocutory decisions were of sufficient importance to the trial to justify being determined on an interlocutory appeal. While I think it would have been preferable to have proposed grounds of appeal or more targeted submissions from the Crown about the complaints that might be made, I think it is sufficient, in this case, to know that Mr Dickie’s submission is that each of the decisions is simply wrong.

Third, Mr Dann initially submitted that the decisions were not of sufficient importance to meet the test in s 295(3)(b). He did so on the basis that he had understood Mr Dickie to say previously that the Director would proceed on murder even if I ruled as I ultimately did on incriminating conduct. However, when it was clarified by Mr Dickie that, in his view, he could not run a trial on two counts of murder without the use of the conduct relied on as incriminating conduct in the manner for which he contended, but rather could only proceed on manslaughter, I understood Mr Dann to withdraw that submission, or at least concede that it had less force.

Another concern I have is that, while the circumstances and assumptions on which I based my decisions under Ruling 5 render the decisions advisory or provisional, and while there may be something in Mr Dann’s point about an interlocutory appeal being premature at this stage in those circumstances, I am troubled that the alternative for the Crown is far less satisfactory. And that is that the Crown could wait and see how the trial unfolds and then, at the conclusion of the evidence, if my decisions on incriminating conduct then ripened into a final ruling to much the same effect as the current advisory ruling, if minded to do so, the Crown could take an interlocutory appeal at that point. But, while that is not unheard of, it is a practice that is discouraged, and rightly so, because of the difficulty of having a jury waiting while an interlocutory appeal is determined.

Turning to the question whether the test in s 295(3)(b) is met or not, I am satisfied that my decisions concerning the second, third and fourth categories of alleged conduct (which concern sub‑paragraphs (b) to (l) inclusive of the notice), and the fifth (which concerns conduct not specified in the notice), are of sufficient importance to the trial to justify their being determined on an interlocutory appeal. The upshot of these decisions is that I would allow each of those particular instances of alleged conduct to be left to a jury as capable of evidencing a belief by Mr Lynn that he had unlawfully killed Mr Hill and Mrs Clay, but I would not allow any of those instances of alleged conduct to be left as evidence of a belief that he had murdered the deceased. This was because, in my view, a reasonable jury could not rationally exclude that each of those pieces of conduct evidenced a belief other than that he had committed murder.

While it might be said, in context, that the main potential use of those pieces of alleged conduct would be to put the lie to Mr Lynn’s account of accidental deaths (failing rejection of which beyond reasonable doubt he must be acquitted), and thereby may assist in proof of the Crown case on murder in that way, rather than as conduct that evidenced murder over manslaughter, I accept that my decisions adverse to the Crown on these pieces of conduct are of sufficient importance to the trial to justify them being determined on an interlocutory appeal. I am all the more convinced of that point when Mr Dickie concedes that, without the ability to use the incriminating conduct as going to murder, he is of the view that there could not be a murder trial, but only a manslaughter trial.

As for my decision in respect of the conduct identified in sub‑paragraph (a) of the notice (which concerns whether the second alleged killing may be used as incriminating conduct in relation to the first alleged killing), it might be said that it is not of sufficient importance to justify being determined on an interlocutory appeal. This is because, while I rejected Mr Dickie’s submission that the second killing could safely be used as incriminating conduct in relation to the first alleged killing, as I said in the ruling, that would not deny the argument that the first alleged killing, if proved to be murder or manslaughter, would be capable of providing a motive for the second alleged killing, that motive being to eliminate the witness to the first alleged killing. In other words, while the motive argument is different from the incriminating conduct argument (indeed, motive potentially would go in proof of the second alleged killing, whereas the Director wishes to use the second killing as incriminating conduct in relation to the first alleged killing), the Crown at least would be left with an argument as to murder springing from the relationship between the two alleged killings.

For these reasons, if certification were sought only on my decision concerning sub‑paragraph (a) of the notice, I doubt that I would grant the application. However, since I am satisfied that I should certify in relation to my decisions concerning the other instances of conduct sought to be relied on by the Crown, I think it is preferable that I certify in respect of my decision concerning sub‑paragraph (a) as well, so that the Court of Appeal may consider that decision at the same time.

Accordingly, pursuant to s 295(3)(b) of the CPA, I certify that interlocutory decisions in Ruling 5 are of sufficient importance to the trial to justify them being determined on an interlocutory appeal.

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