Andrew L. Urban
In upholding the Greg Lynn appeal, justices Karin Emerton, Phillip Priest and Peter Kidd said: “Unhappily, we have concluded that the conduct of prosecuting counsel so compromised the fairness of the applicant’s trial that a substantial miscarriage of justice resulted.”
The appeal judges found that prosecutor Daniel Porceddu repeatedly breached a legal rule known as Browne v Dunn, which is designed “to secure fairness, by requiring a cross-examiner to make plain to a witness that their evidence is not accepted and in what respects it is not accepted when cross-examining them”. Trial judge Justice Croucher did attempt to rein in Porceddu, but clearly not enough to avoid a miscarriage of justice in the view of the appeal court.
The second ground of appeal regarded the prosecution’s handling of the evidence of police ballistics expert, Paul Griffiths. The court of appeal found the Browne v Dunn breaches occurred when Porceddu cross-examined Lynn and during his final address to the jury. It said that it was not persuaded that Porceddu breached the rule on 25 occasions – as contended by Lynn’s legal team – or that the breaches were of the same significance.
“[But] we are satisfied that prosecuting counsel persistently … 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’,” the court of appeal found.
But now the bad news: Even if prosecutorial misconduct causes a mistrial or a new trial, the defendant almost never receives reimbursement of their costs; Victoria’s costs regime in criminal matters strongly protects the State, and only in exceptional, misconduct-level cases can a defendant seek costs — and even then, success is rare.
Lynn, 59, was found guilty in June last year of murdering 73-year-old grandmother Carol Clay in 2020, but was acquitted of murdering her fellow camper and lover Russell Hill, 74. The former Jetstar pilot was sentenced to a minimum of 24 years in prison for murdering Clay.
During the trial, Lynn told the court that the elderly couple died during a struggle at the campsite: Clay when a shotgun accidentally discharged as he wrestled with Hill, and Hill when a knife he was holding in a bid to attack Lynn accidentally went through his chest.
The prosecution’s case was that Lynn murdered both campers, and that Clay was killed as she was a witness to the murder of Hill, but prosecutors could not prove how Hill was killed.
Greg Lynn’s conviction for murdering Mrs Clay has been quashed and a retrial ordered. The successful appeal application was made on the basis that the accused was denied procedural fairness [my words – gfs] during the trial. This related to statements made by the prosecution to the court/jury which challenged the evidence of the accused and that of the prosecution’s own expert witness on firearms – Paul Griffiths … contradictions which neither the accused nor the witness Griffiths had been given a chance to respond to, when earlier examined by the prosecutor. [see: the ‘Browne v Dunn Rule‘.]
Lynn had “contended that he had suffered a substantial miscarriage of justice from the way in which the prosecution conducted the trial. The Court has upheld the first two grounds of appeal, concluding that the conduct of the prosecution so compromised the fairness of the trial that there was a substantial miscarriage of justice.”
Appeal Grounds 1&2…
1 A substantial miscarriage of justice has occurred in circumstances where the Learned Prosecutor has launched a sustained attack on the credibility of the Applicant’s account, without putting many of the matters that went to make up that attack, to the Applicant, when he gave evidence in the trial.
2 The approach of the Prosecution to the evidence of Mr Paul Griffiths involved a further serious departure from the rules that govern the fair conduct of criminal trials.
Decision:
“For the reasons that follow, we consider that grounds 1 and 2 with respect to conviction must succeed in part. Unhappily, we have concluded that the conduct of prosecuting counsel so compromised the fairness of the applicant’s trial that a substantial miscarriage of justice resulted. In those circumstances, the applicant’s conviction for murdering Mrs Clay cannot be permitted to stand. We would grant the applicant leave to appeal against his conviction; allow the appeal; set aside the conviction; and order a new trial. ”
So Lynn will face a second trial.
Whether Lynn is actually guilty or not, the Victorian Supreme Court of Appeal has found that a significant MoJ did occur in Lynn’s trial. Whether guilty or not, the MoJ was sufficient for his conviction to be quashed and a new trial ordered.
I wonder sometimes that the Appeal Courts themselves are not at times in states of cognitive dissonance: believing at the one time that an example of an innocent person being wrongly convicted is an ‘proper’ example of an MoJ whereas it would not be a ‘real’ MoJ if the accused was actually guilty while also (as in the case referred to above) being willing to grudgingly recognise that a ‘procedural’ if you like, MoJ did occur … ‘will have to have a retrial, we suppose …nothing for it, eh?’
So this leads me to the case of sue Neill-Fraser; I feel that she did not receive a fair trial. Recall that Justice Blow refused to allow Gunson’s [Neill-Fraser’s Defence lawyer] application to recall Meaghan Vass to the stand when subsequently Dtv. Sinnitt gave evidence to the effect that Vass actually wasn’t at her place of abode on the night of Bob Chappell’s disappearance/murder.
Given that in the years since Neill-Fraser’s conviction, Vass has actually claimed to have been at the murder scene (where her DNA had been found) and has signed a document to that effect, has given an interview to 60 Minutes to that effect,and has given evidence to that effect to the Tasmanian Court of Criminal Appeal … given all that …it is reasonable in my view to say that Neill-Fraser was not given fair treatment by Justice Blow when her application (via her Counsel) to have Vass recalled to the stand was denied by Justice Blow:
[Trial Transcript p774 21-35]
Guilty or not, Neill-Fraser had a right to a fair trial and the refusal to have Vass recalled was unfair and thus occasioned a miscarriage of justice.
* https://www.supremecourt.vic.gov.au/areas/case-summaries/judgments/lynn-v-the-king-2025-vsca-315
* https://austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2025/315.html
Excellent analysis, Garry. Of course, this wasn’t the only failure of the process in that trial….
I wonder on what grounds you base your comment given that the point that Garry made about the Neill-Fraser case had been appealed and rejected by the appeal court in 2012. Garry then uses Vass’ post 2012 comments but ignored the fact that McLaren (and at least two other people) coerced Vass into false affidavits. Even Neill-Fraser’s legal team abandoned Vass as a useful witness. There is nothing in Garry’s linking of the two different cases that makes sense. Why did he do it if not to advocate his own non-legal opinion?
Thanks for your comment — I understand the Lynn analogy and why you see a similarity in how procedural fairness arguments can be persuasive. But I think it’s important to be clear about the actual legal history in Sue Neill-Fraser’s case, particularly regarding Meaghan Vass.
1. The 2012 appeal court decision dealt directly with the Vass ground
In Neill-Fraser v Tasmania [2012] TASCCA 2, the Tasmanian Court of Criminal Appeal considered, as one of the grounds of appeal, whether Justice Blow’s refusal to recall Vass for further cross-examination amounted to a miscarriage of justice.
The Court noted that the defence had already had an opportunity to question Vass about the key possibilities that flowed from the DNA match to her profile — namely:
that she might have been on Four Winds around the time of Bob Chappell’s disappearance, or
that she was involved in an earlier break-in the defence alleged.
The appeal court rejected the argument that refusing recall “so compromised the fairness of the trial” that the conviction should be set aside. That ground was dismissed on its merits.
So unlike Lynn, where the appeal court found a prosecutorial breach undermined fairness, here the appeal court expressly considered and rejected the Vass recall argument as not amounting to a miscarriage of justice.
2. Later statements about Vass’s evidence
When the question of fresh and compelling evidence was later raised in a second appeal application (beginning around 2018–19), evidence about Vass was again central. However, the way Vass’s potential evidence was treated in those proceedings was complicated.
During the 2019 application, Colin McLaren — a former detective turned true-crime writer — told the Supreme Court that he had suggested it would be “fing compelling*” if Vass admitted she had been on the yacht, and even discussed paying her to say so. He also said that Vass “doesn’t know nothing” (meaning she lacked detailed knowledge) but that getting her to agree she had been on board would be impactful.
The court also heard allegations from the DPP that McLaren had drafted the signed statement and that arrangements to incentivise Vass were discussed.
In the event, when Vass actually gave evidence in the 2021 appeal hearing she then denied ever being on Four Winds at all. The parties ultimately agreed that her evidence could not support a finding of fresh and compelling evidence leading to a miscarriage of justice — and the appeal was dismissed by majority.
3. What this means for the analogy
The Lynn case works as an illustration of a procedural fairness breach leading to a successful appeal. That’s not what happened here regarding the Vass point. That issue was already:
fully argued and rejected by the 2012 appeal court, and
then revisited in fresh evidence/second appeal attempts, but without Vass’s testimony changing the legal outcome.
The McLaren comment about how Vass “didn’t know anything” is further context showing that outside the trial itself, observers were trying to manufacture a narrative that Vass could help. That’s very different from saying the trial judge’s original exercise of discretion was unfair as a matter of law, which was the precise question the 2012 appeal court decided.
So the Lynn analogy fails not because procedural fairness isn’t important, but because in Neill-Fraser’s case the specific point about recall was already litigated and rejected. That’s why her subsequent appeals have focused on other issues like DNA interpretation and fresh evidence, rather than reopening matters already finally decided.
A Victory Without Justice: Prosecutorial Misconduct, Hollow Remedies, and a System That Refuses to Pay Its Own Debts
Andrew Urban is right to frame the Greg Lynn appeal not as a triumph of justice, but as a deeply unsettling illustration of how fragile fairness is within the criminal justice system; and how little consequence there is when it fails. The Victorian Court of Appeal’s finding that prosecutorial misconduct caused a “substantial miscarriage of justice” should have sent shockwaves through the legal establishment. Instead, it has been met with a resigned shrug, followed by the blunt reminder that even when the State gets it wrong at this level, the accused will almost certainly bear the financial ruin alone.
This is not an anomaly. It is a feature.
Misconduct Without Meaningful Consequence
The Court of Appeal’s language is unusually strong. The judges did not merely find error or misjudgment; they found that prosecuting counsel persistently breached the rule in Browne v Dunn, a foundational safeguard designed to ensure fairness in adversarial trials. Worse still, they found that the prosecutor reversed the onus of proof—an act that strikes at the heart of criminal justice itself.
These were not technical slips. They were repeated, objected to, and admonished by the trial judge in real time. Yet they continued. That reality alone undermines the comforting fiction that appellate intervention is a sufficient safeguard against unfair trials. If repeated breaches, judicial warnings, defence objections, and eventual appellate condemnation still do not prevent misconduct from occurring, or recurring then the system’s internal checks are plainly inadequate.
And crucially, they are cost-free for the State.
The Asymmetry of Risk
Andrew Urban correctly highlights the most galling aspect of this case: even when prosecutorial misconduct triggers a new trial, the accused almost never recovers their legal costs. In Victoria, the costs regime in criminal matters is structured to protect the State at all costs—financially, institutionally, and reputationally.
This creates a grotesque imbalance of risk.
Prosecutors operate with near-total insulation from personal or institutional consequence. If they overreach, the worst-case scenario is a retrial funded by the public purse, argued by salaried lawyers, supported by police resources that never stop running. The prosecution loses nothing but time.
The accused, by contrast, faces financial devastation. Legal fees in a Supreme Court murder trial routinely run into hundreds of thousands, often exceeding a million dollars once appeals are factored in. Legal Aid, where available, rarely covers the true cost. Private contributions drain families, mortgages are sacrificed, superannuation disappears, and debt becomes permanent. When a conviction is overturned due to prosecutorial misconduct, the accused does not return to neutral, they return to ruin.
Justice, in these circumstances, is a luxury item.
A System That Incentivises Overreach
When misconduct carries no financial consequence, deterrence evaporates. The State is effectively told: even if you breach the rules, even if you contaminate a trial beyond repair, you will not pay for it. That message does not encourage restraint; it quietly rewards aggression.
The Browne v Dunn rule exists precisely because the adversarial system is inherently unequal. The prosecution commands the machinery of the State; the accused has only their defence. When prosecutors disregard the rule, they are not merely playing hard—they are distorting the process. And when courts acknowledge that distortion but refuse to impose meaningful consequences, the rule itself becomes aspirational rather than enforceable.
Urban’s observation that successful cost applications are “rare” even in misconduct-level cases is not an unfortunate quirk of law. It is policy. The State has decided that protecting its treasury and its prosecutors matters more than repairing the damage done to individuals whose trials were unfair.
The Illusion of Correction
Supporters of the system will argue that the appeal process worked: the conviction was overturned, and a new trial ordered. But this argument mistakes correction for justice. A retrial does not erase years spent imprisoned, public vilification, psychological harm, or financial collapse. Nor does it restore the presumption of innocence, which once lost is never fully recovered.
More troubling still, retrials often compound injustice. Witnesses age, memories fade, defence resources are depleted, and the accused returns to court weakened—while the State returns refreshed, funded, and undiminished. This is not balance; it is attrition by design.
A Broader Indictment
The Greg Lynn case is not just about one prosecutor or one trial. It exposes a system that externalises the cost of its own failures onto the very people it wrongs. It is a system that speaks solemnly about fairness while quietly ensuring that accountability remains theoretical.
If prosecutorial misconduct truly mattered, it would cost something. If miscarriages of justice were taken seriously, reimbursement would be automatic, not “exceptional”. If fairness were more than rhetoric, the financial consequences of failure would fall where responsibility lies—with the State.
Until that changes, cases like Greg Lynn’s will continue to produce hollow victories: appeals upheld, principles reaffirmed, and lives irreparably damaged—while the system itself remains untouched, unrepentant, and unfunded by its own mistakes.
Andrew Urban is right to call this out. The real miscarriage of justice is not only what happened in the trial, but what happens after the court admits it should never have happened at all.
You write: “Worse still, they found that the prosecutor reversed the onus of proof—an act that strikes at the heart of criminal justice itself.” Our legal system has recently (since mid 80s, state by state, driven by feminists and MeToo) institutionalised this: All Australian jurisdictions have abolished the mandatory requirement for corroboration of claims in sexual crime prosecutions. This means no jurisdiction requires independent evidence to support a complainant’s testimony for a conviction. That means the onus of proof has been shifted holus-bolus onto the accused in those classes of crime.
And all the dangers you identify are unleashed…