Re Lynn (Bail) [2026] VSC 86 (5 March 2026)

1. The McLennan affidavit identifies the factors which the applicant relies upon (in combination) to demonstrate exceptional circumstances as follows:

(1) Residence: If granted bail, the applicant will live with one of his adult sons.[14]

(2) Family Support: The applicant has significant family support. He is in a stable relationship with his wife. He has the support of his children.[15]

(3) Family Role: The applicant will have 'an important role assisting his family if released on bail'. His wife suffers from anxiety and depression. Another son, who lives with his wife, suffers from ADHD, depression and anxiety.[16]

(4) Bail Guarantee: Geordie Lynn, to whose home the applicant wishes to be bailed, is willing to act as a bail guarantor in the sum of $70,000. The amount would be in the form of equity in Geordie's home. Geordie has never been in trouble with the law. He is in employment and studying a masters degree at Melbourne University. His equity in the home 'represents his life asset'.[17]

(6) The Applicant's Character/Prior Community Commitments: The applicant was a leader of a youth group with a church in Launceston. He undertook volunteer work at a Christian radio station in Launceston. He volunteered to be a foster parent in Launceston. He was a foster parent to three teenage girls in the early 1990s. Between 1992 and 1996, he and his first wife sponsored a child in India. This included purchasing a house for the family of that child. He has had a long-term involvement with the Smith Family charity as a sponsor.[19]

(7) Vulnerable in Custody: The sentencing judge accepted that the applicant was a vulnerable prisoner; that the applicant had been assaulted in custody; that the applicant had been placed in protection while in custody because of his 'high profile'; and that the applicant had to endure the restrictions of prison life that were associated with the pandemic after going into custody in November 2021. Additionally, the applicant suffers from a heart condition and is also in need of dental treatment.[20]

(8) Delay: The applicant went into custody in November 2021. He has been in custody ever since. Two years and nine months of his time in custody has been spent on remand.[21]

(9) Real Prospect of Further Delay: No date for the applicant's new trial has been set. The applicant will make an application for a stay based on 'the very substantial and very prejudicial publicity' that has occurred since the applicant was found guilty of the murder of Mrs Clay. That publicity includes suggestions of the most extreme kind, unrelated to the case alleged against the applicant, as well as allegations that the applicant has lied in relation to matters the subject of the case against him. Some of the various extreme suggestions made against him are made in a current podcast and are 'on top of previous podcasts, books, television programs, and articles'. The applicant's prospects of obtaining 'at least a temporary stay of the trial ... are very high'.[22]

(10) Problems With Prosecution Case: Following the acquittal on the charge of murder involving Mr Hill, the prosecution case involving Mrs Clay is 'beset with problems', which will not be easily overcome (if at all). Those problems include the prosecution not being able to rely on or establish any motive for the murder of Mrs Clay; and difficulties caused by the applicant having to receive 'the full benefit of his acquittal as regards the murder charge involving Mr Hill'. In any event, even without those difficulties in the first trial, the jury in the first trial took more than seven days of deliberations to arrive at its verdict of guilty in relation to the death of Mrs Clay.[23]

1. Having said that the applicant is not aware of any risk factors that may be alleged by the prosecution, the McLennan affidavit then 'proposes that bail be granted with a bail guarantee in an amount to be determined by the Court with the following special conditions': the applicant resides at his son's home; report to police daily; surrender any valid passport; not apply for a passport or any other travel document; not attend any international points of departure; not leave the State of Victoria; and not communicate with any prosecution witness apart from the informant.
2. It is not necessary to describe the Geordie affidavit in any detail. It is the affidavit of a person who is obviously of good character. It sets out relevant background matters; gives details about the property to which the applicant wishes to be bailed; makes relevant references to members of the applicant's family; and notes that the proposed bail guarantee in the sum of $70,000 'represents my life's savings'. The Geordie affidavit also contains an undertaking 'to immediately notify the informant of any breach of bail conditions by the applicant'.
3. In his written submissions filed in support of his application for bail, the applicant referred to and expanded on the 10 factors referred to in the McLennan affidavit,[24] and added an eleventh factor, which he submitted, in combination with the ten factors already identified, amounted to exceptional circumstances. The eleventh factor was the fact that the prosecution does not allege that, if released on bail, the applicant would be an unacceptable risk in any of the ways contemplated in the Act.[25]
4. In oral argument, senior counsel for the applicant, while relying upon all of the 11 factors identified in the applicant's written submissions, concentrated on the issues of delay, the real prospect of further delay caused by the publication of material which will necessitate at least a temporary stay of the proceeding, and the 'problems with the prosecution case'.
5. In the course of those submissions, the Court was taken in some detail to what was described as an overwhelming number of publications which were entirely inimical to the applicant's defence and the possibility of the applicant now obtaining a fair trial. At various points in the argument, the applicant submitted that the circumstances of this case, and the extraordinary volume and content of the publications complained of, are 'unique'; alternatively, 'absolutely unique'.
6. The applicant submitted that, when all of the circumstances of this case were taken into account, there is 'no chance' of a fair trial being conducted in either 2026 or 2027. This further delay, coupled with the periods of time the applicant has already spent on remand, coupled with all of the other matters relied upon by the applicant, were submitted to comfortably establish the high hurdle of exceptional circumstances.

1. The respondent opposes bail. In opposing bail, it relies upon an affidavit affirmed by a solicitor employed at the Office of Public Prosecutions, Emily Muir. Ms Muir's affidavit exhibited a report prepared by the informant, Sergeant Brett Florence.
2. In the informant's report, under the heading 'Reasons For Opposing Bail', the informant states that it is the police view that the applicant 'is a flight risk and therefore a risk of failing to surrender into custody in accordance with a condition of bail'. The basis for the police view is said to be:

(a) The applicant's substantial employment and working career between 1987 and 2021 has been as a flight instructor and/or pilot.

(b) [Redacted].

1. Ms Muir's affidavit identifies the respondent's position with respect to bail as follows:

(1) The applicant has not discharged the burden of demonstrating the existence of exceptional circumstances that justify the grant of bail. Bail must therefore be refused.

(2) While the informant has identified a risk factor should bail be granted, the respondent does not submit that the risk factor 'rise[s] to the level of unacceptable risk, on the basis that there are conditions that may be imposed to mitigate the risks so that they are not unacceptable'.

1. While the respondent filed detailed written submissions supporting the position identified by Ms Muir in her affidavit, in oral submissions, senior counsel for the respondent concentrated on the issues of delay; the prospect of further delay caused by media reporting; and the strength of the Crown case and seriousness of the charge on which the applicant is to be retried.
2. Relying upon the first instance decision of Re Roberts,[26] and the appeal from that decision,[27] the respondent submitted that, when analysing the issue of delay, the focus should be on the period of delay following the Court of Appeal's decision to set aside the applicant's conviction. It was submitted that, while the time the applicant spent on remand prior to being convicted was not to be ignored, it was the period of time the applicant would spend on remand after his conviction was set aside that was 'salient'.
3. As to the media publicity about which the applicant makes complaint, the respondent took no issue with the applicant's description of it, both as to content and extent of publication. The respondent's submissions were confined to contending that: first, orders had been made by this Court, immediately prior to the start of the hearing of the bail application, which are designed to prevent any further publications of the kind about which the applicant complains; secondly, by August 2026, the effect of publications made prior to the making of those orders will have dissipated to a point where a fair trial is possible; and thirdly, that as part of the jury selection process, jury panel members will be instructed that, if they feel that they have read matters about the applicant which make them unable to impartially try the issues in the case, then they must seek to be excused, while the jury empanelled will be given directions about not making inquiries of their own and deciding the case solely on the basis of the evidence given in court.[28]
4. As to the nature and seriousness of the applicant's alleged offending,[29], the respondent noted the trial judge's description of the charge the applicant is facing as 'a very grave example of murder'.[30]
5. In answer to the applicant's submissions about problems with the prosecution case, the respondent submitted that, despite all of the matters raised by the applicant, the case 'is quite strong'. Counsel for the respondent described the prosecution case as follows:

Boiling it down to its bare bones ... , Mrs Clay was shot in the head, the projectile from the accused's gun, while she was next to the passenger side of the rear canopy of Mr Hill's LandCruiser. So, shot in the head, it was his shotgun, he was present, and there's post-offence conduct which we submit is extreme[31] ... .

1. In considering whether exceptional circumstances exist which justify a grant of bail, the Court must take into account the surrounding circumstances that are relevant to the matter, including those which are specifically referred to in s 3AAA of the Act.[32] Additionally, the Court is required to interpret and apply the Act having regard to the matters set out in ss 1B(1AA) and (1) of the Act. Section 1B(1AA) relevantly provides that the parliament 'recognises the overarching importance of maximising, to the greatest extent possible, the safety of the community and persons affected by crime'; and s 1B(1) relevantly provides that the parliament also recognises 'the importance of ... taking account of the presumption of innocence and the right to liberty'.
2. Additionally, the applicant bears the burden of satisfying the Court as to the existence of exceptional circumstances justifying a grant of bail.[33]
3. It is well-established that exceptional circumstances may consist of a combination of a number of circumstances relating both to the personal circumstances of the applicant and the strength of the case against him. In Re Reker,[34] Beale J, citing Kaye J in DPP v Muhaidat,[35] referred to the question of exceptional circumstances in the following terms:[36]

Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[37]

1. A number of matters relied upon by the applicant are quite ordinary (residence; family support; family role; bail guarantee; [redacted]; character and prior community commitments; vulnerability; and the fact that the prosecution does not allege that, if released on bail, the applicant would be an unacceptable risk in any of the ways contemplated in the Act). Neither alone, nor in combination, do these matters rise to the level of 'right out of the ordinary'.[38] The question becomes whether these matters, in combination with the other matters relied upon by the applicant (delay; the prospect of further delay; and the asserted problems with the Crown Case) amount to exceptional circumstances justifying a grant of bail. I turn now to consider those matters.

1. On the issue of delay, the dispute between the parties as to the period or periods of time which should be focused upon may be summarised as follows:

(1) The applicant submitted that all periods of time during which he has been, and will be, on remand in respect of the charge should be the focus of the analysis. The applicant submitted that, notwithstanding the language used in Roberts and Roberts (CA), the question of the relevance of the period an accused spends on remand prior to being convicted for the first time was not raised in those decisions, and thus neither Roberts nor Roberts (CA) stand in the way of his submission.

(2) The respondent, relying on Roberts and Roberts (CA), submitted that, for present purposes, the focus is required to be on the period of time the applicant has spent, and will spend, in custody following the setting aside of his conviction on 11 December 2025.[39]

1. The applicant is correct in submitting that, in Roberts and Roberts (CA), the issue of any period on remand prior to Mr Roberts's conviction at his first trial was not the subject of any argument or specific consideration. That said, the respondent is correct when it submits that the language of both Roberts and Roberts (CA) is to the effect that the period of delay which should be focused upon is the period from when the original conviction was set aside.
2. The period of time the applicant spent on remand prior to being sentenced was approximately two years and 11 months.[40] It is a period of time which must, at least, be taken into account as one of the relevant surrounding circumstances. While it is a significant period of time, and one which is required to be taken into account, for the reasons expressed in Roberts (CA)[41] any period of delay following the setting aside of the applicant's conviction is of greater significance than any earlier period when synthesising all of the relevant circumstances in order to determine whether or not exceptional circumstances justifying a grant of bail have been shown to exist.

1. Since his conviction in June 2024, the applicant has been the subject of an extraordinary amount of damaging publicity in which allegations of the most serious kind have been made against him. I accept the applicant's submission that the publicity has been so extensive and so damaging of his case that a fair trial is not currently possible.
2. The difference between the parties is that the prosecution contends that with 'clear air' for six months (that is, no publication of any material disparaging the applicant or his case, and no publication of any material that is irrelevant and would not be admissible at trial, being made in the next six months) a fair trial would then be possible. Whereas, the applicant contends that, even if all such publicity ceased and, every publication about which he makes complaint was taken down, it would still not be possible to have a fair trial either this year or next year - leaving the prospect of a possible trial (if no permanent stay is granted) being conducted no earlier than 2028.
3. The Court is in a position to hear the applicant's trial commencing in August of this year. But for the applicant's foreshadowed application for a stay based upon the pretrial publicity about which he makes complaint, the retrial ordered by the Court of Appeal would, subject to any other pretrial arguments, start then.
4. Analysing the prospect of further delay requires a consideration of the applicant's chances of obtaining a stay. In my view, the prospects of the applicant obtaining a permanent stay are remote.[42] It is, however, not necessary to consider those prospects any further because, if the applicant obtains a permanent stay, he will be released and no further issue about delay pending trial will arise.
5. The question is more difficult when one considers his prospects of obtaining a temporary stay for any and what period of time. Much is likely to depend on whether he is the subject of any (and if so what) adverse publicity between now and the time at which he makes his application for a stay. Realistically, those are matters about which this Court can only speculate at this stage. Ideally, there will be no publicity adverse to the applicant or his case between now and the hearing and determination of the retrial. Indeed, one might reasonably expect that to be the case given the application for broad based non-publication orders made by the applicant (at which a number of media organisations were given leave to appear) which was heard in part at the same time as this application and resulted in the making of interim non-publication orders.
6. All of that said, having considered all of the material relied upon by the applicant, I am not persuaded that a trial of this proceeding cannot occur in the second half of this year. Moreover, as the respondent submitted, at any such trial, the trial judge will no doubt give instructions to the jury pool, and directions to the jury which is ultimately empanelled, which will be designed to protect, and have the effect of protecting, the fairness of the applicant's trial.
7. A delay between the ordering of the retrial in December 2025 and a trial in the second half of this year, even when coupled with the earlier period during which the applicant was on remand, is not in the whole of the circumstances of this case exceptional to a point justifying a grant of bail.[43] While any delay is undesirable, the delay and prospects of further delay in this case, even when coupled with the matters to which I have referred in paragraph [26] above, do not clear the hurdle that the applicant is required to clear in this case.

1. The prosecution has not yet served an amended summary of the prosecution opening. As such, it is not possible to say with any precision how the prosecution case will be put on the retrial. It is possible that the prosecution case might be put in such a way that the 'problems' asserted by the applicant do not, in fact, arise. The possibility of a very simple prosecution case containing little or no more than the elements identified by the respondent's counsel in oral argument cannot be gainsaid.
2. All of that said, it is not appropriate in these reasons to discuss in any detail the strength, or otherwise, of the case the prosecution might put on the retrial. That will ultimately be a matter for the jury, uninfluenced by anything said in these reasons. It is sufficient for present purposes to say that, on the material presented on this application, there is no basis for concluding that the prosecution case is so weak,[44] or the problems for the prosecution so profound, that, in combination with the other matters relied upon by the applicant, exceptional circumstances justifying a grant of bail have been shown to exist.

1. While the applicant's counsel emphasised the uniqueness of the applicant's circumstances and the uniqueness of the matters upon which he relies in support of his application for bail, it is to be remembered that it is not the exceptionality of circumstances which must be established, it is the exceptionality of circumstances justifying a grant of bail which must be shown to exist.[45]
2. To the extent that the matters relied upon by the applicant favour a grant of bail, in considering all of the surrounding circumstances which are required to be taken into account,[46] the matters relied upon by the applicant have to be synthesised with any factors that tend the other way (specifically in this case, the very seriousness of the allegations made by the Crown against the applicant).[47]
3. Taking all of the matters relied upon by the applicant in combination into account, for the reasons given above, the applicant has failed to show that exceptional circumstances exist that justify a grant of bail. The applicant's application for bail must therefore be refused.

[1] R v Lynn [2024] VSC 635 ('Sentencing Reasons').

[2] Lynn v The King [2025] VSCA 315 ('Appeal Reasons').

[3] Appeal Reasons, [9] (Emerton P, Priest and Kidd JJA).

[4] The sole purpose of this second affidavit of Ms McLennan was to exhibit these publications which were said to 'include publications referenced in the application for bail and suppression orders'.

[5] McLennan affidavit, paragraphs 3-21.

[6] I should say for completeness that by a subsequent order made by this Court, that date was varied to 24 April 2026.

[7] See n 6. These dates were also varied by subsequent orders requiring the applicant to file submissions and evidence by 19 June 2026, with the respondent filing material by 3 July 2026.

[14] Ibid paragraph 121. See also, the applicant's written submissions filed 25 February 2026 and amended on 3 March 2026 ('AWS') at paragraphs 14-18.

[15] Ibid paragraphs 122-125; AWS at paragraphs 19-26.

[16] Ibid paragraphs 126-28; AWS at paragraphs 27-31.

[17] Ibid paragraphs 129-133; AWS at paragraphs 32-36.

[18] Ibid paragraphs 134-139; AWS at paragraphs 37-45.

[19] Ibid paragraphs 140-148; AWS at paragraphs 46-57.

[20] Ibid paragraphs 149-152; AWS at paragraphs 58-66.

[21] Ibid paragraphs 153-157; AWS at paragraphs 67-81.

[22] Ibid paragraphs 158-167; AWS at paragraphs 82-206.

[23] Ibid paragraphs 168-182; AWS at paragraphs 207-229.

[25] AWS at paragraph 230-1. While this concession by the prosecution might be regarded as generous to the applicant given his preparedness to engage in the post-offence conduct described at Appeal Reasons [25], for present purposes, I have fully accepted that concession, assuming in the applicant's favour that the concession represents a fully considered position by the respondent.

[26] [2020] VSC 793 ('Roberts').

[27] Roberts v The Queen [2021] VSCA 28 ('Roberts CA').

[28] Underlying this third point was the proposition that directions given with the full judicial authority of a judge are taken seriously by jurors and potential jurors and complied with by them.

[32] See s 4A(3) of the Act.

[33] See s 4A(2) of the Act.

[34] [2019] VSC 81 ('Reker').

[35] [2004] VSC 17 ('Muhaidat').

[36] Reker [2019] VSC 81, [39].

[37] Muhaidat [2004] VSC 17, [13]-[14].

[38] Reker [2019] VSC 81, [39].

[39] The respondent specifically relied upon Roberts (CA) at [9]-[10] and [52]-[53] (Maxwell P, Niall and Emerton JJA).

[42] See generally, R v Glennon [1992] HCA 16; (1992) 173 CLR 592, 598, 605-6 (Mason CJ and Toohey J), 613 (Brennan J), 625 (Dawson J); Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237, 250-1 [33]-[39] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 266 CLR 325, 370 [106] (Kiefel CJ, Bell and Nettle JJ).

[43] For completeness, I note that this is not a case where it could be submitted that, if convicted, the applicant will be sentenced to some term of imprisonment less than he might be required to serve if he remains in custody pending the retrial: see s 3AAA(1)(aa), (k) and (l) of the Act. See also, Sentencing Reasons, [186].

[44] See further, Appeal Reasons, [112], [199]-[200], [206]-[207] (Emerton P, Priest and Kidd JJA).

[45] Roberts (CA), [8] (Maxwell P, Niall and Emerton JJA).

[46] See s 4A(3) of the Act.