‘Miscarriage of justice’: Why Gregory Lynn was granted a new trial

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Across 69 pages of their meticulously detailed appeal judgment, three Court of Appeal judges detailed the reasons why former airline pilot Gregory Lynn will face a retrial for the alleged 2020 murder of missing camper Carol Clay, 73.

Lynn was found guilty of murdering Clay on June 25, 2024, and was later sentenced to 32 years’ jail with a non-parole period of 24 years.

On Thursday, the Caroline Springs father was granted a retrial after the Court of Appeal found the 59-year-old had suffered a substantial miscarriage of justice because of the way the prosecution had conducted the trial.

He had sought leave to appeal both his conviction and sentence.

In his appeal against conviction, Lynn raised four grounds of appeal. Grounds one and two contended that he had suffered a substantial miscarriage of justice because of the way in which the prosecution had conducted the trial.

The court upheld the first two grounds of appeal, concluding that the conduct of the prosecution had “compromised the fairness of the trial”.

Lynn’s sketch of the Bucks Camp site for police; and (clockwise from top right) Lynn, Carol Clay and Russell Hill.

Court of Appeal president Karin Emerton said: “Given the serious nature of the murder charge, and the court’s conclusion that the evidence has not been compromised and the unfairness of the first trial will not permeate a new trial, the court has determined that the interests of justice require Lynn to stand trial again for the murder of Clay.”

The judgment noted two central issues, in combination, that led to their decision to quash Lynn’s murder conviction and order a fresh Supreme Court trial.

This included the prosecution making submissions to the jury that challenged the credibility of the evidence given by Lynn without ever putting those matters to him.

This occurred, the appeal judges said, despite repeated objections by defence counsel and warnings from the trial judge.

In doing so, Emerton said the prosecution breached a rule of fairness.

Emerton said that in its closing address, the Crown unfairly attacked the reliability and credibility of its own firearms and tool mark expert witness, Paul Griffiths. This occurred, she said, without having put the relevant matters to Griffiths to give him a chance to respond.

Griffiths was the prosecution witness who conducted gunshot trajectory tests based on Lynn’s account of what had happened when Clay was shot.

“That approach wrongly invited the jury to ignore evidence which was favourable to Lynn, and represented a significant departure from the obligations of fairness,” Emerton said.

In arguing for a retrial earlier this year, defence barrister Dermot Dann, KC, said prosecutors had broken the rules that govern fair conduct of criminal trials “so thick and fast”, he was unable to keep up.

These breaches, Dann said, might have led the Supreme Court jury down an “impermissible pathway” in arriving at an unsafe guilty verdict over the killing of Clay in the Wonnangatta Valley in March 2020. Lynn was found not guilty of murdering Clay’s companion, Russell Hill.

Other high-profile cases in which cases have been appealed include the late Cardinal George Pell, who had his case thrown out by the High Court. Underworld figure Tony Mokbel recently had one of his convictions thrown out and one dismissed. He was granted a retrial on a third.

Defence counsel Dermot Dann, KC, outside court.

A decision on whether a retrial will go ahead in Mokbel’s case is expected to be made next week.

Other cases that sought retrials before being granted stays on their cases or having the Office of Public Prosecutions abandon the case include Jason Roberts and Andrew Baker. Baker faced two failed trials over the death of Sarah Gatt, whose body was found in a bath.

Nick Papas, KC, who has worked as both a defence barrister and a prosecutor, said that in any retrial, the prosecution would be able to file different or new charges.

“When the Crown revisits the case, it can change it if they want to, depending on which evidence it leads. But there are limitations,” he said.

Papas stressed that retrials were run-of-the-mill in the legal world, but a retrial could be delayed in high-profile cases to allow jurors to have more time to be able to forget about what came out of the first trial.

“Appellant courts are here to ensure fundamental errors that led to potential mistakes can be reviewed, and that way we resist and avoid the possibility of someone being sentenced to term imprisonment for an offence they did not commit,” Papas said.

“We’re always for fair trials, but people are human, judges are human, barristers are human and mistakes are made. That’s why there are appellate courts.”

Greg Barnes, SC, a spokesperson for the Australian Lawyers Alliance, said a retrial effectively meant the prosecution against a person started again.

When asked if there could be difficulties in an accused person getting a fair retrial if the case was high-profile or received significant media attention, Barnes said juries were always given strict instruction from a trial judge to ignore any reporting or knowledge of the case.

“Cases may already be high-profile before a first trial, like we saw in the Pell case. The issue of publicity is an issue regardless of whether it’s a retrial or initial trial,” Barnes said.

“Jurors are strictly instructed to put that out of their mind.”

On the second to last page of their judgment, the appeal judges addressed the question on whether a charge of manslaughter could replace murder.

“The director [of public prosecutions] was asked some specific questions … about how a retrial would be framed. Specifically … whether manslaughter would be advanced as an alternative to murder,” they said.

“The director responded ... 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.”

Lynn was remanded to reappear in the Supreme Court on January 28. It is unclear if he will apply for bail before any retrial.

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