What Is The Brown V Dunn Rule In Court Proceedings?

On 31 October 2025, the Victorian Court of Appeal delivered tough criticism of the conduct of the Prosecution in the high profile murder trial of former airline captain Greg Lynn. Justice Priest described the Prosecution's conduct as "indefensible" and "egregious," highlighting serious concerns about fairness to the defence in the original trial.

A gripping and tragic tale of violence, deceit, and a botched cover-up has concluded with a mixed verdict in the high-profile trial of Mr. Lynn, who has been found guilty of murdering 73-year-old grandmother Carol Clay, but acquitted of the death of her partner, Russell Hill. The shocking series of events unfolded at a remote campsite in Victoria's Wonnangatta Valley in 2020.

The case revolves around the mysterious deaths of Clay and Hill, who had been camping in the serene Bucks Camp when they disappeared. What began as a camping trip quickly turned into a nightmare, with their bodies found abandoned, burned, and scattered in the wilderness-leaving authorities with only a trail of confusion to follow.

Lynn, who was camping nearby, had been charged with the murders after a long investigation spanning 20 months. His version of events, presented at trial, was nothing short of dramatic. According to Lynn, the conflict began when he approached Hill to discuss a drone Hill was flying over the campsite. Tensions quickly escalated, Lynn claimed, after Hill confronted him about his hunting activities, accusing him of getting too close to the campsite.

Lynn alleged that Hill had threatened to report him to the police with footage from the drone, claiming it captured evidence of Lynn hunting deer in the area. In response, Lynn said he returned to his own campsite, cranked up loud music to annoy Hill, and later witnessed Hill loading a shotgun. What followed, according to Lynn, was a chaotic struggle over the weapon, which led to the fatal shooting of Carol Clay.

Lynn maintained that the shooting was accidental, the result of a physical altercation with Hill over the shotgun. As Lynn described it, both men grappled for control of the gun, and during the struggle, it discharged, killing Clay.

But the violence didn't stop there. Lynn told police that after the shooting, Hill confronted him, shouting, "She's dead!" and wielding a knife. The two men allegedly fought once again, this time over the knife. In the heat of the struggle, Lynn claimed the knife pierced Hill's chest, leading to his death. He said Hill crawled a short distance before succumbing to his injuries.

In a chilling move, Lynn admitted to trying to cover up the deaths. Fearing that he would be wrongfully blamed, he burned the couple's tent and belongings, loaded their bodies into his trailer, and disposed of them on a remote track. Lynn even went so far as to sell his trailer on Gumtree, making it vanish without a trace. To further evade detection, he repainted his four-wheel-drive and removed distinguishing features from the vehicle.

For months, the disappearance of Carol Clay and Russell Hill baffled authorities. It wasn't until November 2021, after a thorough investigation, that police arrested Lynn as the prime suspect. During an interview, Lynn expressed his innocence, stating, "I'm innocent of murder. ... I haven't behaved well; I've made some poor decisions. But murder, as I understand it, I'm innocent of." Despite his protestations, Lynn was charged and remanded in custody.

The trial, which lasted five weeks, concluded with a mixed verdict: Lynn was convicted of the murder of Carol Clay but acquitted of Russell Hill's death. The jury's decision left many questioning the true sequence of events, and the dramatic conclusion to the case has left the public divided.

Sentenced to 32 years in prison, with a non-parole period of 24 years, Lynn's fate seemed sealed-yet, in a last-ditch effort, his legal team, led by prominent barrister Dermont Dann KC, has filed an appeal. The case has now entered a new chapter, with Lynn fighting to overturn both his conviction and his sentence.

The disturbing details of this remote tragedy, from the violent struggle to the desperate cover-up, have left an indelible mark on the small, tight-knit community of Victoria. With an appeal underway, the saga of Mr. Lynn's actions and the deaths of Carol Clay and Russell Hill is far from over.

The Appeal

Dunn KC argued the Prosecution "launched a sustained attack" on Lynn's credibility in their closing submissions, but did not give the former pilot the opportunity to answer questions in cross examination about those submissions. This is a breach of what is known as the Browne v Dunn rule. The cases that discuss the law on this rule are discussed in more detail below.

Dunn KC told the Court of Appeal that the trial judge, Judge Croucher, gave the Prosecutor two warnings during the trial about this breach. The trial Judge acknowledged that the Prosecutor did not give Mr Lynn the opportunity to explain his behaviour, saying the Prosecutor "chickened out" when it came to asking Mr Lynn questions.

Dunn KC argued that this the Prosecution's conduct resulted in the jury reasoning through an "impermissible pathway" in reaching their guilty verdict.

Brendan Kissane KC, appearing for the Prosecution in the appeal, said he disagreed that with Dunn KC's submission that it was one of the "most serious breaches of the Browne v Dunn rule". Justice Priest replied, "Well, he may not be alone there, speaking for myself."

Dunn KC also argued that the Prosecution's use of the evidence of a Police ballistics expert, Mr Paul Griffiths, was a "serious departure from the rules that govern the fair conduct of criminal trials."

Dunn KC said the expert had found Lynn's explanation for the deaths as "plausible," based on gunshot trajectory evidence. The Prosecution failed to raise the potential exculpatory gunshot trajectory evidence with the expert when he was giving evidence. Justice Priest, hearing the appeal, said that this was "particularly egregious."

Justice Priest said, "I need no persuasion that what the Prosecutor did was indefensible" and it was "extremely unfair" that the Prosecutor told to the jury in closing submissions that Lynn may have "effectively executed Mr Clay at close range," even though there was no evidence to support this theory.

Dann KC told the Court of Appeal that the "Prosecution broke the rules of from start to finish, the start being the Police interview and the finish being the closing address."

However, Justice Priest reminded Mr Lynn that even if all the complaints about the Prosecutor's conduct are correct "that does not affect the ultimate analysis of whether it was open for the jury to convict" Mr Lynn for Ms Clay's murder.

Dann KC accepted that the Defence had not made an application during the trial for the jury to be discharged based on the Prosecutor's conduct. But he said there had been other cases where an appeal has been successful, even if defence had not made an application for the jury to be discharged during the trial.

What Does the Browne v Dunn Rule Mean?

The Browne v Dunn rule is simple: it is unfair to argue that a witness should not be believed because their evidence is contradicted by other material, if that contradiction was not put to the witness in cross-examination. The witness must be given the chance to comment on anything that is inconsistent with their version of events.

The Browne v Dunn rule comes from an 1893 decision of the English Court of Appeal. The case was a defamation suit, which was tried before a jury. Today, it applies in both civil and criminal court proceedings.

For example, in an armed robbery case, suppose a witness says they were at a service station and saw a red car leaving the scene. However, messages show the witnesswas actually at home at that time. Under the Browne v Dunn rule, the witness must be asked in cross-examination about where they were and given the opportunity to comment on the messages that contradict their account. If this is not done, the lawyer cannot later submit that the witness's evidence about seeing the red car should be rejected, because the messages place them at home.

The leading case on the topic in New South Wales is Khamis v R [2010] NSWCCA 179.

In that case, Omer Khamis was charged with sexual assault. He attempted to give evidence about a conversation which was important to his defence. The prosecution objected, because the complainant and her family members had not been given the opportunity to give their recount of the conversation in cross examination. The trial judge excluded the evidence.

Mr Khamis was convicted by the jury. He appealed his conviction on the basis that the trial judge misapplied the Browne v Dunn rule and the trial resulted in a miscarriage of justice.

The Court of Criminal Appeal said that Defence Counsel at trial had in fact breached the Browne v Dunn rule, in that they had not asked the complainant and Prosecution witnesses about a contradictory version of the conversation. Defence Counsel had thought that she did not need to, because the complainant had already given the Court her version of events. The Court of Criminal appeal said this was incorrect.

The New South Wales Court of Criminal Appeal took the opportunity to discuss the Australian cases which discussed the rule.

In the case of Schneidas (No 2) (1981) 4 A Crim R 101, the accused had been charged with murder of a prison officer. The accused was self-represented. During cross examination of a Prosecution witness, Mr Workman, who was another prisoner, the accused put to Mr Workman that the only reason he was giving evidence against the accused was because he disliked him.

The accused later sought to adduce evidence of conversations from three other prisoners but was not permitted by the trial judge to do so because he had breached the Browne v Dunn rule. The Court of Criminal Appeal agreed with this ruling, stating thatalthough unrepresented, MrSchneidaswas "well versed in the art of cross-examination and general court procedure".That ruling was upheld by the Court of Criminal Appeal.

The cases of Allied Pastoral Holdings Pty Limited v FCT and Regina v Body (Unreported, NSWCCA Gleeson CJ; Carruthers and Bruce JJ, 28 August 1994)followed this ruling.

However, in R v Allen, it was held that a Victorian trial judge does not have the power to refuse to admitevidence that, in a criminal trial, was not put to prosecution witnesses. That is, even if Defence breach the Browne v Dunn rule in Victoria, defence evidence cannot be deemed inadmissible because of the breach. However, the Prosecution and the trial Judge would be entitled to make comments to the jury at the time of final address and summing-up upon the failure of Defence to question the Prosecution witness in cross examination. The same position was taken in the Victorian case of Tomasevic v Travaglini.

In Khamis, the NSW Court of Criminal Appeal said that a NSW trial Judge in criminal cases does have the power to exclude Defence evidence if defence breach the Browne v Dunn rule. However that should be a final resort. This is because a trial court must demonstrate flexibility in response to a particular problem before it. The decision to exclude defence evidence if it breaches the Browne v Dunn rule depends on all of the circumstances, including the importance of evidence defence seek to admit.

In Khamis, the Court of Criminal Appeal held the evidence of the conversation should have been clearly put to the complainant and this was a breach of the Browne v Dunn rule However, because the evidence was otherwise admissible, and was of great importance, it should have been included, and the issue should have been managed so as to prevent unfairness to both the defence and the prosecution. This could have involved recalling the procession witnesses.

The Court of Criminal Appeal quashed the conviction, set aside the sentence, and ordered a new trial.

In the case of RWB v R [2010] NSWCCA 147 it was held that mostly any difficulty caused by a breach of the Brown v Dunn rule can be remedied by recalling the witness. If the jury is to be directed that an adverse inference can be drawn against an accused because of the failure of his or her lawyer to put matters to a witness, the jury should be told that there may be other explanations, such as the lawyer misunderstanding instructions, forensic pressures leading to a lack of precision in framing questions, or the matter simply being overlooked.

It is important to keep in mind that not every detail needs to be put to a witness, the essential parts contradicting a witness should be put.

In a nutshell- the Brown v Dunn rule is not an exclusionary rule of evidence. Breach of this rule does therefore not necessarily dictate that evidence may not be called in contradiction.

Khamis's case outlines a non-exhaustive available responses if the Brown v Dunn rule is breached, as follows:

1. If a witness is not cross examined on a point, the cross examining lawyer may be taken to accept it and may not be permitted to address in a fashion which asks the court not to accept it.
2. If a witness has not been cross examined on a particular matter, that may be, depending on the circumstances, a good reason for accepting that witness's evidence, particularly if not contradicted by other evidence. Where a witness's evidence appears to be incredible or unconvincing, or if it were contradicted by other evidence which appears worthy of belief, the fact that the witness has not been cross examined might be of little importance in deciding whether to accept the evidence.
3. Leave may be granted to re-call the witness so that matters not put can be put to the witness. This can be done under section 46 of the Evidence Act 1995 (NSW), which requires the witness to be called for further cross examination.
4. The court can exclude the evidence sought to be relied upon by an accused to support a point not put in cross examination of a prosecution witness. This option generally is to be a last resort after exploring other options.
5. If the accused evidence is allowed and there has been a breach of the Brown v Dunn rule, there may be a need for directions to be given to the jury.

Murder

Murder is one of the most serious crimes under the law.

It is contained insection 18 of the Crimes act 1900 (NSW). A murder occurs when someone dies as a result ofan act or omission which was committed by the accused with reckless indifference to human life, or with intent to kill, or inflict grievous bodily harm, or if the act or commission was done during an attempt to commit or during or immediately after the commission of a crime punishable with up to 25 years' imprisonment or more.

The maximum punishment for murder is imprisonment for your natural life. The law sets a standard period of 20 years in prison if the case fits the middle range of objective seriousness, or 25 years if the victim was a child under 18 years old or a police officer, emergency service worker, correctional officer, council worker health worker, teacher judge or other public official if the offence arose because of the victim's work.

As for Mr Lynn's case, the appeal continues, and a decision will be delivered at a later date.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.