The FULL untold story of Greg Lynn's appeal: Told in forensic detail, WAYNE FLOWER reveals how an 'overzealous' prosecutor ushered in a shocking miscarriage of justice - and why it could set the Jetstar pilot free
Former Jetstar pilot Greg Lynn was denied justice through a series of monumental blunders by a prosecutor who ignored well-established rules of law.
In a scathing 58-page judgment handed down this month by Court of Appeal President Karin Emerton and justices Phillip Priest and Peter Kidd, those mistakes were blamed for a 'substantial miscarriage of justice'.
Lynn was sentenced in October last year to 32 years' jail for the murder of Carol Clay, 73, on what his barrister rightfully claimed was an 'unsafe verdict'.
Lynn had pleaded not guilty, claiming Ms Clay and her secret lover Russell Hill, 74, both died accidentally at a remote campsite in the Wonnangatta Valley in March 2020.
The prosecution case had all but hinged on a version of events that saw Lynn murder Ms Clay after she witnessed him stab to death Mr Hill after he supposedly tried to grab Lynn's gun.
Lynn claimed he had panicked, bundling their bodies into the back of his trailer and hiding their remains before later returning and burning them.
A jury had found him not guilty of murdering Mr Hill - a verdict that stands despite the appeal decision.
Lynn will now face a retrial that will focus squarely on the alleged murder of Ms Clay.
Greg Lynn will get a retrial thanks to a series of 'serious breaches' during his first trial
Greg Lynn's barrister Dermot Dann KC successfully appealed his client's conviction
However, he may yet be given an opportunity to plead guilty to the lesser charge of manslaughter - a charge that had not been on the table for his first trial.
The court heard the Director of Public Prosecutions, Brendan Kissane, KC, was keeping his cards close to his chest on the issue of manslaughter.
'The Director was asked whether manslaughter would be advanced as an alternative to murder, and whether the Crown would rely upon the killing of Mr Hill to supply any kind of motive for the murder or killing of Mrs Clay,' the judges stated.
'In essence, the Director responded (in subsequent written submissions) that these issues cannot be known in advance, noting that whether manslaughter is left will be a matter for the trial judge and the parties at the time.'
Any form of alternative charge would come as another blow to the families of Mr Hill and Ms Clay, who have endured years of misery awaiting a solid outcome.
They will now be forced to wait for months before Lynn is again put to trial.
That trial is expected to run very differently from the first due to his acquittal on the Hill murder charge.
In his initial trial, the jury was told Lynn likely murdered Ms Clay because she witnessed the murder of Mr Hill.
In a withering assessment of the Crown case, the court found prosecutor Daniel Porceddu (pictured) repeatedly breached the rules despite the judge's best efforts to keep him in check
It was a theory that fuelled Lynn's appeal, with his barrister Dermot Dann KC successfully arguing the jury's verdict had been unsafe.
Justice Michael Croucher, who presided over the first trial, had directed the jury on 17 specific breaches of well-established legal rules known as Browne v Dunn, a reference to a specific case that established them back in 1893.
The Court of Appeal confirmed breaches in at least 11 of those referenced by Justice Croucher.
In a withering assessment of the Crown case, the court found Crown prosecutor Daniel Porceddu repeatedly breached the rules despite the judge's best efforts to keep him in check.
'We are satisfied that prosecuting counsel persistently and obdurately breached the rule, and reversed the onus of proof on at least one occasion - despite repeated objections by defence counsel, and continual admonitions by the trial judge to "stick to the rules" - such that there has been a substantial miscarriage of justice,' the appeal judges found.
The Court of Appeal was particularly annoyed with Mr Porceddu's closing address to the jury, in which he suggested Lynn had attempted to cook up excuses on the fly while being cross-examined.
Lynn had entered the witness box in an effort to try to explain to the jury how he accidentally killed the pair before panicking and disposing of their remains.
'We consider that among the more serious breaches of the rule were the submissions put by prosecuting counsel in the final address which, in effect, suggested recent invention by the applicant,' the court ruled.
The so-called 'invention' related to an assertion Lynn had completely changed his account of his final struggle with Mr Hill once he found out about the thin guy rope attached to his car.
The prosecution contended that on Lynn's version of events, he must have become entangled in the rope during his struggle with Mr Hill.
The alleged murders of secret lovers Carol Clay (left) and Russell Hill (right) remain unsolved
Lynn had not mentioned the rope during his police interview, and no one else had raised it with him during the trial.
Mr Porceddu suggested his 'recent invention' about the rope 'ruined the whole account' - but he had not put that allegation of change or recent invention to him during cross-examination.
'The prosecutor at no point put to the applicant that he "completely changed his account" once he "finds out about the rope",' the judges found.
'Thus, the applicant was denied the chance in cross-examination of answering what was, in effect, an allegation of recent invention.'
Mr Dann had argued the prosecutor breached the rules up to 25 times, and accused him of being afraid to ask Lynn questions.
'It looked like the learned prosecutor had chickened out. Another way of saying that, he didn't want to come off second best in these credit contests with Mr Lynn and he deliberately refrained from putting all sorts of matters,' he said in October.
Mr Porceddu was further criticised by the judges for failing to ask Lynn questions about a series of allegations he later put to the jury, meaning he wasn't given a chance to explain himself under cross-examination.
Untapped issues ranged from failing to ask Lynn important details about the burial site to the removal of an awning on his vehicle, after 60 Minutes aired a report allegedly showing his distinctive Nissan Patrol.
The shotgun police allege Greg Lynn used to murder Carol Clay
Greg Lynn's alleged vehicle as it appeared on 60 Minutes. He allegedly repainted the car and removed its awning
The court was also unsatisfied with the treatment Mr Porceddu gave evidence from police ballistics expert Paul Griffiths about the trajectory of the shot which may have killed Ms Clay.
Mr Porceddu had argued his trajectory testing was 'flawed' and of 'no assistance', but had failed to give the officer a chance to defend himself under cross-examination.
'We consider that the approach taken by the prosecutor created a danger of diverting the jury from properly and fairly considering the evidence of… Griffiths and its import,' the judges stated.
'It is no part of the duty of a prosecutor to address a jury in language which is intemperate, inflammatory or overzealous in nature.
'It is clear that a prosecutor should not invite the jury to proceed upon a theory which cannot properly be sustained.'
The Court of Appeal found Justice Croucher did what he could to try to keep the trial on track.
'The trial judge did his best to redress the mischief that he perceived had flown from prosecuting counsel's final address,' the judges stated.
The court heard Mr Dann thought the prosecution had gone so far off script that he contemplated having the jury discharged altogether.
Lynn looked relieved after his murder conviction was set aside. He is expected to apply for bail ahead of his retrial
Lynn's wife Melanie was a fixture at his Supreme Court trial in 2024
When questioned why he didn't, Mr Dann took issue with suggestions from the appeal judges that he decided to 'roll the dice' and continue with the trial instead of asking for the jury to be discharged 'to maximise his chances of an acquittal'.
Had the jury been discharged then, Lynn would have been forced to give evidence again to a different jury and face the prospect of evidence not used in that trial being put into the next, he said.
'A decision had to be made by the applicant,' he said.
'We're talking about someone who's faced with an impossible forensic decision. It's two evils that he's facing, both of them are unfair.'
Lynn is due to return to court on January 28, but is expected to apply for bail in the meantime.
