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:

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2024] VSC 375
Decision Date: 28 February 2024

CaseChat Overview and Summary

In the Supreme Court of Victoria, the accused, Lynn, was charged with the murders of two campers at Bucks Camp in the Wonnangatta Valley in March 2020. Despite previous rulings excluding certain evidence due to oppressive police conduct, Lynn sought an advisory ruling on the admissibility of post-incident conduct as incriminating evidence if agreed upon for trial. The prosecution argued that the accused's post-incident conduct, including cleaning the campsite, disposing of the victims' belongings, and altering his vehicle and trailer, could be used to infer his belief that he unlawfully killed the deceased. The court had to decide the extent to which such evidence could be used to suggest different levels of belief by the accused regarding the nature of the deaths.

The court considered the legal precedents that outlined the principles for using post-incident conduct as incriminating evidence. The key issue was whether such evidence could support a belief by the accused that he murdered the deceased, that he believed he unlawfully killed them, or neither. The court concluded that the evidence of post-incident conduct could only be used to suggest that the accused believed he unlawfully killed the deceased. The court referenced several cases that established the limitations on using post-incident conduct as incriminating evidence, ensuring that it did not improperly influence the jury's assessment of the accused's state of mind at the time of the alleged crime.

Following the advisory ruling, the prosecution applied for certification to appeal the decision concerning the admissibility of incriminating conduct. The court granted the application, allowing the prosecution to appeal the ruling to the Court of Appeal. This decision highlighted the importance of the principles governing the use of post-incident conduct in criminal trials and the need for clarity in how such evidence can be used to inform the jury's understanding of the accused's state of mind.

Orders