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Former Jetstar pilot Greg Lynn is fighting for freedom on the back of a series of monumental blunders that robbed him of a fair trial, a court has heard.
Lynn, 57, had pleaded not guilty in the Supreme Court of Victoria to the murders of Russell Hill, 74, and Ms Clay, 73, in the Wonnangatta Valley, in Victoria's Alpine region, on March 20, 2020.
But in October last year Lynn was sentenced to 32 years in jail over the murder of secret lover camper Carol Clay on what his barrister claims was an 'unsafe verdict'.
On Friday, Dermot Dann KC opened the appeal by claiming trial prosecutor Daniel Porceddu 'played outside the rules' to get the conviction.
The jury had cleared Lynn of the murder of Mr Hill, paving the way for the appeal.
'We say to this court, what we said to the jury, by way of submission, that in an adversarial contest where there were two sides, one side, the prosecution, played outside the rules, and one side in the defence, played inside the rules,' Mr Dann said.
'So we say it was a prosecution that broke the rules from start to finish.'
Mr Dann said the jury was improperly persuaded by the prosecution to come up with the shock split verdict.
'We say that the jury, by way of developments in the trial and directions that were given, were placed in a very difficult intellectual position,' Mr Dann said.
'There was just too much of the risk that in arriving at that jury verdict, the guilty verdict, the jury travelled down an improper pathway, or engaged in illegitimate compromise.'
Dressed in a suit, Lynn had arrived at the court just moments before the hearing began and was led into court through a side door by guards.
His flight attendant wife Melanie Lynn, who had attended every day of his trial, was again notably absent.
In June last year, a jury of 12 unanimously found Lynn murdered Ms Clay in cold blood before attempting to cover his tracks by burning and destroying the evidence.
However they acquitted him over the murder of Mr Hill, paving the way for the Supreme Court of Victoria appeal.
Jurors had deliberated for seven days before they rejected Lynn’s claims that Ms Clay died accidentally at a remote campsite in eastern Victoria.
While Lynn had always denied murdering the couple, the jury heard he freely admitted to cleaning up the crime scene and destroying the evidence.
'It was despicable,' Lynn conceded.
'All I can say to the families is that I am very sorry for all of your suffering that I've caused ... yes I should be punished for it. For what I did.'
The disgraced pilot had banked on convincing the jury the campers had died as a result of a tragic accident.
The jury heard Lynn had offered to plead guilty to the destruction of evidence before going on trial, but it had been rejected by the prosecution.
'I am innocent of murder,' he said. 'I am innocent (of manslaughter too). I haven't killed anyone.'
Lynn is appealing both his conviction and the sentence handed down by Justice Michael Croucher.
On Friday, Mr Dann claimed the prosecution had 'gone mad' suggesting the jury was right to conclude it could convict on Ms Clay without accepting Mr Hill had been murdered.
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.
'Had she been allowed to live, Ms Clay would have been in a position to identify the accused,' Mr Porceddu told the jury.
On Friday, Mr Dann accused the prosecution of continuing to mislead the court during subsequent pre-sentence hearings where it was claimed that motive was still available to the jury when it came to its verdict.
'They're saying this is how the jury got to that verdict. Beyond reasonable doubt. They're not just saying this may have happened. They're saying, beyond reasonable doubt, that's what happened.' Mr Dann said.
'They've gone mad. They've just gone mad. There was no risk of that happening. This prosecutor, over months in the plea process, he's just gone mad.'
Mr Dann claimed the prosecution went against well established rules of law to govern how criminal trials are to be run.
He claimed the prosecution launched a 'sustained attack' on Lynn’s version of events during the prosecutor’s closing address, which included statements never put to his client during his time in the witness box.
These attacks greatly impacted Lynn's credibility in the eyes of the jury, Mr Dann suggested.
'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.
He accused the prosecutor of breaching cross-examination rules six times, in failing to give Lynn the opportunity to respond to evidence in the case.
Mr Dann argued the jury arrived at an improper pathway or engaged in an illegitimate compromise.
'There has been such a departure from proper processes at trial, that there has been a substantial miscarriage of justice,' he said.
Mr Dann further submitted the prosecution had failed on five grounds - four relate to Lynn’s conviction and one to his sentence.
He took aim at evidence provided by Victoria Police ballistics expert Paul Griffiths, who brought the murder weapon into court and showed the jury how it operated.
Mr Dann accused the expert of changing his evidence mid-trial.
The court heard Mr Dann thought the prosecution had gone so far off script he contemplated having the jury discharged altogether.
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, 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. adding that he was trying to choose the lesser of two evils that are upon him.'
He told the appeal judges they could still intervene, despite no discharge application, giving examples of other cases where a re-trial was ordered in similar circumstances.
'Despite there being no application for discharge, the appeal against conviction is successful because the court has a duty to intervene where a substantial miscarriage of justice is identified,' Mr Dann said.
Mr Dann said Justice Croucher had repeatedly warned Mr Porceddu to 'stick to the rules' and remarked he was 'wincing' and 'flabbergasted' by the prosecutor’s repeated breaches.
The barrister claimed said the breaches were so 'egregious' and a 'gross departure of the proper processes' at trial that his client didn’t get a fair trial.
The Victoria's Director of Public Prosecutions, Brendan Kissane KC, attempted counter Mr Dann's arguments when he got to his feet later of Friday.
He came under immediate fire from experienced appeal judge Phillip Priest, one of three justices presiding over the case, who branded elements of Mr Porceddu's performance during the trial a 'disgrace'.
He further pondered how the director could even attempt to defend some of the decisions that were made by his team during the trial.
'It is a disgrace that the prosecutor did not call that evidence,' he said in relation to one of Mr Dann's complaints against the prosecutor.
The judge was scathing of Mr Porceddu's closing address to the jury, agreeing with Lynn's barrister that he did indeed break the rules of fairness.
'I mean I'm not suggesting it was a perfect cross examination.' Mr Kissane said.
Justice Priest suggested the breaches were of such a concern Justice Croucher had no choice but to provide more than a dozen directives to the jury in the hope of steering it to a sound verdict.
'He was so concerned about the prosecutor's behaviour in cross examination, he felt moved to give very strong directions about it,' he told Mr Kissane.
Ultimately, Mr Kissane argued the directions provided to the jury wiped the slate clean about any notion the jury had been misled by his colleague.
'We say that once the direction is given, there's no miscarriage of justice,' he said.
The Court of Appeal will hand down its decision at a date to be fixed, with more submissions scheduled for Thursday.