Stitched up on criminal charges then a long wait for a right to appeal

The ACT has more than once stitched people up on serious criminal charges.

You could be arrested, subjected to a criminal trial, and even wrongfully convicted
What to Do If You’re Falsely Accused of a Crime

Form 6.11 Affidavit—general

Court Procedures Rules 2006

(see r 6710 (Affidavit—form))

In the Supreme Court of the Australian Capital Territory

Court of Appeal

Criminal jurisdiction

No ACTCA 43 of 2025

Appeal against conviction imposed by Justice Higgins

(No SCC 104 of 1999)

COLIN GEORGE DUNSTAN

Applicant

THE KING

Respondent

On 11 September 2025, I Colin George Dunstan of 22 Sentry Crescent, Palmerston ACT 2913, solemnly affirm—

1. I am the Applicant in this proceeding. 

2. Each of the answers below are true based on my own knowledge. 

3. This is my first affidavit in this proceeding. 

4. This affidavit is in support of my application for leave to appeal convictions and findings of guilt made in the ACT Supreme Court in the judgment The Queen v Colin George Dunstan [2000] ACTSC 35. 

5. The Supreme Court Act 1933 (ACT) inserted provisions in an amendment commencing 15 May 2024 to allow a convicted person to apply for leave to appeal in circumstances including that there has been a substantial miscarriage of justice. The amendment: 

1. requires consideration of fresh evidence for the grant of leave to appeal, and 

2. requires consideration of a substantial miscarriage of justice for allowing an appeal. 

6. Leave to appeal is required under this new provision, in section 68ZG of the Supreme Court Act 1933 (ACT). 

Grounds of application 

7. That there is fresh and compelling evidence in relation to the offences that should be considered on an appeal. 

8. That it is in the interests of justice for making the order to grant leave. 

9. That the appeal raises a related matter under section 85X of the Crimes Act 1914  (Cth):  

1. Six counts with convictions about which this application is made were for a Commonwealth offence in the Commonwealth Crimes Act 1914 . 

2. After the commencement of the trial, the ACT Supreme Court modified the meaning of that offence in the Commonwealth Crimes Act 1914 in the absence of the jury, redefining it to give it a different and broader definition. 

10. The Human Rights Act 2004 (ACT) specifies rights in criminal proceedings applicable at time of the criminal trial the ACT Supreme Court in 1999. These reflect the seven core international human rights treaties to which Australia is a party. Minimum guarantees in criminal proceedings are contained in article 14(3), (5), (6) and (7) of the International Covenant on Civil and Political Rights (ICCPR). Minimum guarantees in criminal proceedings, include: 

1. to have adequate time and facilities to prepare a defence and to communicate with counsel, and 

2. to cross-examine prosecution witnesses.  

11. Fresh evidence that became available after the criminal trial ended in December 1999 is compelling about: 

1. The findings of guilt that the jury made on 9 of the 11 counts prosecuted at trial, 

2. The substantial miscarriage of justice negating my rights to a fair trial, to be represented by a legal representative of my choice – at the trial and at an appeal –, to cross-examine prosecution witnesses, and to have adequate time to consider evidence to prepare for the trial, and 

3. The substantial miscarriage of justice in being charged with offences that on the evidence available to the prosecutor, were not open to the prosecutor to lay. 

Brief Background

12. On 31 November and 1 December 1998, I posted 28 packets that contained hoax explosive devices. 

13. I possessed materials and skills for assembling reliable improvised explosive devices. Circuit design, testing procedures and making circuits from components were covered in two TAFE courses, “Basic Electronics” and “Semiconductor Electronics”, I had completed quite a few years earlier. 

14. I left 3 shopping bags that were discovered and handed to the Australian Federal Police in early December 1998. The contents of these included” 

1. a sample of an electronic circuit for a very reliable improvised explosive device, 

2. multiple electronic components with which copies of this sample reliable improvised explosive device could be made, 

3. empty rifle cartridges from which I had removed propellant that I transferred into the hoax devices I made an assembled, 

4. a list of names and addresses of all the 28 hoax devices I posted, and 

5. a multimeter with which I could test the continuity of electronic circuits. 

15. I made no attempt to conceal my identity when posting the items I mailed and did not wear gloves when wrapping them. My fingerprints should have been the only ones to be found on any part of the items. 

16. I had commenced legal proceedings against several of the addressees. I never made any threats of harm to any of the addressees, or to anyone else. See examples in Police Witness Statement: 

1. Kieran Pehm, HREOC: “I cannot recall Colin DUNSTAN ever making verbal or written threats against me,” and 

2. Anne Hanh, ATO: “I did not consider Colin would wish to do any harm to me or any members of my family.” 

17. It would have taken me a few seconds to test the continuity of the circuit through small light bulbs used in the device. If my intention was to make reliable improvised explosive devices, I would have performed this test, and no devices posted would have this easily avoided defect. 

18. Many of the hoax devices I posted did not have a continuous circuit through the light bulb in the cylinders – thus ensuring they could not detonate under any circumstances. 

19. The other devices could not detonate because the circuit did not provide sufficient current for the small light bulbs to reach the temperature needed to ignite rifle propellant. The circuit was also designed to quickly drain energy from the battery.  

The criminal process

20. All the above evidence was available to the prosecution long before the trial commenced on 22 November 1999. 

21. One more piece of evidence is relevant: it is commonly understood that rifle propellant is a flammable and not an explosive substance. The forensic evidence presented during the trial did not suggest otherwise. This evidence confirmed the common understanding that appeared in a media report 12 months earlier in the Australian, Thursday December 3, 1998, at page 2: 

“The gunpowder used in yesterday's bombs would have burnt but not exploded — it was used to supply the heat to cause the bottle to explode.”

22. The prosecutor began the trial on 22 November 1999 with an ex officio indictment signed the same day. 

23. The indictment was for: 

1. Six counts from section 85X - causing dangerous things etc to be carried by post , of the Commonwealth Crimes Act 1914 : 

“The DIRECTOR OF PUBLIC PROSECUTIONS, who prosecutes in this behalf for Her Majesty the Queen, INFORMS THE COURT AND CHARGES THAT between the 28th day of November 1998 and the 4th day of December 1998 at Canberra in the Australian Capital Territory Colin George Dunstan knowingly caused to be carried by post an article that contained a totally prohibited substance, namely an explosive” and 

2. Five counts from section 19 of the Crimes Act 1900 (ACT): 

“AND FURTHER THAT between the 28th day of November 1998 and the 4th day of December 1998 at Canberra aforesaid Colin George Dunstan intentionally did attempt to inflict grievous bodily harm on another person, namely <five individuals>”

24. These charges could not be justified on the available evidence. 

25. Another anomaly was that there was no count under section19 of the Crimes Act 1900 (ACT) associated with the first count under section 85X of the Commonwealth Crimes Act 1914 . This count was said to be in relation to a mail item that allegedly exploded at the Canberra Mail Centre on the evening of 1 December 1999. 

26. The appropriate charges on the evidence available was for offences under section 85Y — Hoax explosives etc of the Commonwealth Crimes Act 1914 . 

Substantial miscarriage of justice

27. At the criminal trial I was prevented from being represented by a legal representative of my choice, was not given adequate time to prepare my defence, was not given adequate time to consider evidence used in the prosecution, was denied the right to cross-examine prosecution witnesses and was not provided with evidence that may have been relevant to the criminal case brought against me. 

28. The ACT Legal Aid Office insisted that I was to be represented by one of their employees and James Brewster, a barrister they nominated. On four occasions listed below, James Brewster acted against my interests, and on two of those, without first warning me of his intention: 

1. Anne Hanh, a former co-worker made a police statement that was handed to me by AFP Detective Crozier after an ACT Magistrate adjourned the committal hearing. I was thus unable to cross-examine that witness on that occasion. For the first week of the two-week trial, James Brewster reassured me on several occasions he would cross-examine that witness. At the start of the second week of the criminal trial, he adamantly refused to call this police witness. 

2. After the prosecution had completed giving forensic evidence confirming the substance posted was a flammable substance, and not explosive, I said in a conversation with James Brewster that I was not guilty of the counts of having willingly posting an explosive substance. This was an important issue that was first raised by Madgwick and Gyles JJ in the Federal Court of Australia for my bail appeal. The following excerpt is from transcript page 37 on 28/06/1999: 

MADGWICK J:	Mr Robertson, what is "explosive" for the purpose of the Act?
MR ROBERTSON:	It is defined in 85X, your Honour. I will just find that. Well, it is - so it is defined as a totally prohibited substance or thing and it is explosives - 85X.
GYLES J:	What his Honour is asking is where do you find a definition of "explosives"?
MR ROBERTSON:	Well, it is not further defined under 85X.
MADGWICK J:	Nowhere? Then a dictionary definition would mean something like this, would it not, "An object designed for the purpose of or capable of exploding".
MR ROBERTSON:	Yes.
MADGWICK J:	Well, if you rely on, "Capable of exploding," in a criminal charge you would have to prove that there is an intent.
MR ROBERTSON:	Yes.

1. I raised this with the Legal Aid Office solicitor and James Brewster before the trial. They refused to discuss the issue with me.

2. After the first 5 days of the 10-day trial and without warning me, James Brewster raised the issue of how to “interpret” the charge under s.85X of the Commonwealth Crimes Act, stating that the Commonwealth Crimes Act 1914 did not define what an explosive substance was. He requested a voir dire in the absence of the jury. On 29 November 1999 the prosecutor knew what James Brewster intended while his intention was kept from me: 

PROSECUTOR: “…as I apprehended, my friend wants to make an application in the absence of the jury.” 

BREWSTER: “Yes, it is relation to the Commonwealth Crimes Act. It is just what is an explosive?” 

3. Higgins J adopted the proposal from James Brewster that the charge be interpreted broadly so that the items I posted would, by the proposed definition, be “explosive” - without the need to consider whether they contained either an explosive substance or an explosive device, or if there was any intent that they be able to explode. This ensured I was guilty on these charges. 

4. James Brewster smiled while telling me in words to the effect “Well. You are guilty on those charges now”. 

This had the effect of causing the jury to believe that I had posted items containing an explosive substance. The jury did not know that the offence had been redefined and that James Brewster’s concession of guilt on my behalf to the redefinition of the charge did not mean I had posted anything other than hoax devices and that they did not contain an explosive substance. 

3. I informed James Brewster that the soundtrack of the AFP video taken at the Canberra Mail Centre contained important evidence, including a statement captured off-camera: “I got to find a little hole in the ceiling to put those in”. Without any warning to me, James Brewster requested the prosecutor to have the video played to the jury without sound. 

4. I informed James Brewster that one of the police witnesses listed to appear, Superintendent Geoff Hazel of the Australian Federal Police had spoken by phone to a person in New South Wales early in the morning, between 2:30am and 3:00am, on 2 December 1998. The caller spoke about the explosion a couple of hours earlier that night at the mail centre and of a bomb threat that had no association with me. At the time this phone conversation occurred I was asleep in Canberra and had no knowledge of the explosion at the Mail Centre.  I first learned of the explosion several hours later from a broadcast news report: 

1. At the end of hearing from prosecution witnesses at the trial, the police witness Superintendent Geoff Hazel had failed to appear. 

2. I asked James Brewster about the failure of this police witness who was listed to appear but had not. 

3. James Brewster shrugged and walked away. 

29. Before the hearing I gave some documents with information about harassment (see the Annexure marked ‘ B ’) and victimisation by the ATO to James Brewster, I wanted him to give to the Court. He said he would think about it. Just before the trial he said would not do this. 

30. A few days after the trial ended, James Brewster and Legal Aid refused to continue to represent me for the sentencing.

31. James Brewster was appointed a Magistrate in the Federal Circuit and Family Court of Australia on 19 June 2000. Higgins J sentenced me to prison on 16 April 2000. 

History Repeats

32. Murray McInnis was appointed a Magistrate in the Federal Circuit and Family Court of Australia on 26 June 2000: 

1. On 4 June 1997, after I commenced proceedings in the Federal Court of Australia against the Human Rights and Equal Opportunity Office and senior ATO officers, I was suspended from duty by an officer who was a respondent in those Federal Court proceedings making an vague and paranoid allegation I may have been attempting to carry out some suspected but unknown action about computer security. 

2. An IBM expert engaged by the ATO did not find any improper conduct by me. The report David Pasch provided on 13 June 1997 states:

“…there is not any evidence to indicate malicious or fraudulent intent by the user”. 

3. An Australian Government Solicitor also provided advice on 14 July 1997 and repeated this in writing on 29 July 1997 to the investigating officer, John Higham. This advice was that there was no evidence for charging me with misconduct. Acting on this advice, John Higham made a decision on 29 July 1997 to not charge me with misconduct and that I must be recalled to duty. 

4. This decision was concealed from me until 2009. On 20 August 1997 the ATO obtained other legal advice from Murray McInnis, a barrister in Victoria. This said John Higham could charge me with misconduct. 

5. John Higham then made another decision, dated 13 October 1997 to charge me with misconduct. 

6. From July to September 1997 John Higham was asked to travel overseas to inspect tax systems in Europe and North America – to learn about GST systems, before the Australian Government had decided to implement a GST. 

7. Soon after he was assigned responsibility for developing the GST system at the Tax Office. 

33. The prosecution produced two reports given in evidence that referred to the contents of the three bags described at [14] above. The components and sample circuit for a very reliable improvised explosive device were conspicuously omitted from a list of items in one report and were not correctly identified in the second report. 

34. The prosecution produced several reports of experiments in which attempts were made to detonate cylinders taken from items I posted. There was no evidence of attempts to detonate cylinders with the circuit I used to limit the power supply. 

35. There were also tests conducted with cylinders made by the Australian Army. As indicated at [18] many of the cylinders I posted could not explode regardless of the external power supply to which they were connected. 

36. These reports listed the devices made by the Army that remained unused at the conclusion of each set of tests. It is apparent that two Army devices were used in testing and purported to be cylinders taken from items I had posted. That is, the number of cylinders I posted that could not explode under any circumstances was exaggerated by replacing two failed detonation test results with test results using cylinders made by the Army. 

37. At the hearing of the appeal from the convictions I was prevented from being legally represented. The circumstances, created by the prosecutor, that resulted in me having no legal representation at the hearing of an appeal from the convictions is set out in the judgement Dunstan v The Queen [2000] FCA 1165 of Burchett, Weinberg and Kenny JJ given on 17 August 2000, and my affidavit of 20 August 2000 in that appeal proceeding: 

1. The Federal Court had issued two summonses for me to be transferred from a NSW prison to the ACT Remand Centre so that I could discuss the appeal one week before the hearing. ACT Corrective Services did not comply with the Court summonses. 

2. The prosecutor did not comply with the requirement to provide submissions some days before the hearing. Instead, they were delivered to the ACT Remand Centre the evening before the appeal hearing and immediately taken from me to be stored for transport to the Federal Court the next day. Neither my legal representative nor I was able to read or discuss these submissions before the hearing commenced. 

Fresh evidence

38. Fresh evidence has come to light progressively since the trial ended in December 1999. A legal right to have this evidence considered in legal proceedings did not exist until 14 May 2024 with the commencement of changes to the Supreme Court Act 1933 (ACT) . 

39. Fresh evidence was first revealed following the trial when the Legal Aid Office withdrew from representing me and refused to hand over its documents. 

1. One year before the trial a solicitor had offered to represent me on a pro bono basis – subject to Legal Aid agreeing to pay disbursements. After this offer was made the Legal Aid Office created a new policy – that criminal cases it funded would only be able to be represented by Legal Aid Office's internal solicitors. It rejected the offer of pro bono representation, and assigned a Legal Aid solicitor, Colleen Duffy, and James Brewster as counsel. Before the trial, the Legal Aid Office assigned another of their solicitors, Helen Hayunga in place of Colleen Duffy. 

2. I explained to the Legal Aid Office electronic tests on the devices I designed that would clearly establish the devices I had posted could not explode. 

3. Instead, the Legal Aid Office told me they were delayed in conducting any tests because the expert(s) they were attempting to engage had not returned calls. Documents obtained later stated that the Legal Aid Office was waiting for the prosecutor to make devices available for testing. This was not a credible reason, but by concealing it from me, ensured the start of testing was needlessly delayed. The police report of Paul Adrian Smith dated 11 December 1998 contained all the details needed for an independent electronics expert to conduct the testing. I was able to provide this information had I been told that this was a reason for delay.  Paul Smith’s statement says: 

“On 10/12/98 I made a simulator of the devices. I handed that simulator as well as a schematic diagram to Detective Constable CARTWRIGHT when I made this statement to him on 11/12/98.” 

4. As a result of the delays and deliberate inaction by the Legal Aid Office the electronic tests to establish the devices could not explode was never conducted. 

40. After the trial in November/December 1999 at which I was found guilty James Brewster and the Legal Aid Office withdrew from representing me. This occurred at a brief meeting from 3:30 pm to 3:40 pm on 13 December 1999 with Helen Hayunga and James Brewster. At this meeting, James Brewster told me that before the trial commenced the prosecutor had offered to withdraw the charges of attempting to inflict harm if I pleaded guilty to the charges of posting an explosive substance. 

41. The ACT Legal Aid Office then refused to hand over the documents it held about my case. 

42. A solicitor Darryl Perkins agreed to represent me for the sentencing hearing. He had to ask the ACT Supreme Court to issue a subpoena to the Legal Aid Office to compel it to produce the documents on my trial. 

43. Of the documents obtained from the ACT Legal Aid Office, one written by its solicitor Colleen Duffy to Chris Staniforth of the ACT Legal Aid Office on 15 October 1999 stated: 

“I have asked Mr Brewster on several occasions to hold a conference with the client. Mr Brewster has said that he does not wish to have a conference until we have a report from the electronics expert. 

…

Mr Brewster's advice in relation to some of the irrelevant material Mr Dunstan wants is that he (Mr Brewster) as a taxpayer would be outraged if I wasted time and money by running around trying to get it.” 

44. The report from the electronics expert that was requested by James Brewster, and the ACT Legal Aid Office did not assess the reliable improvised explosive device that the prosecutor had concealed in reports of items in my possession in November 1999. 

1. Instead, the requested report was another attempt to develop evidence that the prosecutor was criticised for not having in July by the Federal Court for my bail appeal in the decision Dunstan v Director of Public Prosecutions [1999] FCA 921 by Whitlam, Madgwick and Gyles JJ given on 7 July 1999. The prosecutor was still unable to provide evidence if under some circumstances any of the mail items I posted might possibly explode. Each attempt, on analysis, revealed components had been substituted until a desired result was obtained. No credible, genuine report was ever produced. 

2. Though the reasons for delay were not credible, the delay was however consistent with advice of what would impede my ability to properly prepare. That advice was provided in this report by psychiatrist Dr Veness on 16 July 1999: 

“I am concerned to hear of Mr Dunstan’s great difficulties in obtaining sufficient time and opportunity to prepare for his forthcoming trial, scheduled to commence this coming Monday, 19th July. 

…

For these reasons I support an adjournment of proceedings. I believe Mr Dunstan will need at least a month to properly prepare after the prosecution supplies him with its evidence.” 

45. The trial date set down for July 1999 was vacated, with Miles CJ criticising the prosecutor for intending to introduce crucial evidence about the mailed items after the trial commenced. However, the prosecutor nevertheless delayed production of that evidence until after the new trial commenced on 22 November 1999. 

46. This evidence James Brewster was waiting for was of no relevance to my defence. 

47. A further forensic report arranged by my wife after documents were obtained by issuing a summons to the ACT Legal Aid Office confirmed the correctness of my evidence at trial. All except one of the 28 packets I posted were photographed or identified in statements describing where they were recovered. The only packet that wasn’t clearly identified was a packet I posted that was addressed to Anthony Crewes at an address in Queanbeyan: 

1. There was no evidence that this packet addressed to Queanbeyan exploded: 

1. The evidence of a postal worker was that a packet addressed to Dickson, a suburb in the north of Canberra, exploded at the Mail Centre. 

2. The evidence of AFP Officer Mark Johnsen was that a packet addressed to Melba, a suburb to the west of Canberra, exploded at the Mail Centre. 

3. The judgement The Queen v Colin George Dunstan [2000] ACTSC 35 of Higgins J given on 26 April 2000 says that the intended recipient of the packet that exploded in the mail centre could not be identified. 

48. Further fresh evidence that was not available at trial were determinations made by the Administrative Appeals Tribunal and the Full Court of the Federal Court of Australia of the contributions of my employment to the development of chronic Major Depressive Disorder first diagnosed in 1991. 

49. The AAT decision Dunstan v Comcare [2010] AATA 449 on 10 June 2010 was critical of senior management of the Australian Taxation. This decision is summarised in an article “ Return to work mismanaged — depression aggravated ”, 13 July 2010: 

“The Tribunal criticised the ATO’s treatment of the worker in the lead-up to his return to work on 2 January 1996 as well as after this date, until December 1996, finding that the way in which it handled matters had been ‘less than satisfactory’ given its knowledge of his chronic depressive illness.

‘The fact that Mr Dunstan was left in limbo and was not informed about what position he would return to and where he would be located on his return from long service leave until a few days before that leave was due to expire, appears to us very unsatisfactory in circumstances where it was known to the ATO that Mr Dunstan had been suffering from depression.

‘… when he returned to work on 2 January 1996, not only did he discover the mistakes made by the Personnel section in processing his leave applications, he also found himself located in what he clearly regarded as a makeshift office, located away and isolated from his direct supervisor… as a result of these events… Mr Dunstan’s depression became aggravated so to render him incapacitated for work.”

50. In a proceeding arising out of similar unreasonable actions by my employer I filed an affidavit setting out my background and listing many of those actions. A copy of that affidavit affirmed on 10 August 2011 is the annexure marked ‘ A ’ to this affidavit. 

51. The Full Court of the Federal Court of Australia in its judgment Dunstan v Comcare [2011] FCAFC 108 on 24 August 2011 was critical of other aspects of the above AAT decision and remitted to the AAT those outstanding issues to be reheard. On rehearing the AAT handed down its decision Dunstan and Comcare [2012] AATA 567 on 28 August 2012, stating at [120] and [128]: 

120. As to prognosis, Dr Rose said that Mr Dunstan is severely disabled as a result of his major depression.  His condition is stable and Dr Rose saw no prospect for either deterioration or improvement.  When asked by Mr Crispin whether it had stabilised at a stage of significant incapacity, Dr Rose replied: “I think he’s – well, he’s on the disability pension and I think that’s well deserved because he’s incapable of working.” 

…

128. In view of the greater contact the ATO unwittingly afforded to Ms X [his co-worker, Anne Hanh] to have with Mr Dunstan and in view of our finding that he was managing the relationship and not suffering ill effects before that time, we have concluded that Mr Dunstan’s depression was contributed to in a material degree by his employment with the ATO.

52. In 1996 Anne Hanh made a submission to the Human Rights and Equal Opportunity Commission that was her response to my complaint of harassment against her. The submission contained admissions of harassing conduct. I prepared an affidavit in response that juxtaposes segments of her submission with my observations on each and gave that affidavit dated 14 May 1996 to HREOC. A copy of that affidavit is the Annexure marked ‘ B ’ to this affidavit. 

53. In 2009, the Commissioner of Taxation disclosed further evidence: 

1. The Human Rights and Equal Opportunity Office had asked the Commissioner of Taxation if I was receiving and salary payments and the Commissioner of Taxation, disregarding any normal privacy consideration and with no inquiry about the motivation for the question, answered the request, 

2. That the Commissioner of Taxation’s delegate Greg Farr had improperly stopped all payments to me on 31 March 1999. This prevented me from being legally represented by a person of my choice in criminal proceedings.

3. Comcare prepared a report on 13 August 1999, months before the criminal trial in November / December 1999, revealing important facts about the incident at the Canberra Mail Centre: 

1. There were 29 potentially dangerous items processed at the Canberra Mail Centre in December 1998 (the 28 I had posted, plus one other that exploded), 

2. The devices I had posted had been determined to be hoaxes, and 

3. The AFP had concealed from the Comcare investigator the addressee one of the mail items I had posted. 

• The reason for this concealment was unexplained and remains so today. 

• I had revealed the addressee’s name and address at a hearing before Miles CJ in the ACT Supreme Court on 10 May 1999. There is no plausible explanation for Comcare to have not known this when it wrote the report dated 13 August 1999. 

• Had any explosion at the mail centre been caused by a packet I posted its identification would be straightforward and not at all contentious. 

4. Diana Temby, the Executive Director of the Human Rights and Equal Opportunity Commission was actively “poisoning the well” against me in multiple government agencies, making baseless allegations without giving a police witness statement – preventing me cross-examining this prolific source of baseless allegations used against me: 

“Mid morning on 2 December 1998 Ms Diana Temby, the Executive Director of HREOC, noted the connection between the addressees involved and a complainant to HREOC. Ms Temby advised the Special Incident Task Force (SITF), meeting at PSCC, and also advised the PSCC that the complainant had substantial contact with other agencies, including the Federal Court, the Merit Protection Review Agency, the Ombudsman and Comcare. These agencies were progressively notified throughout 2 December 1998 and 3 December 1998.” 

54. The fresh evidence that 29 potentially dangerous devices were processed at the Canberra Mail Centre in December 1998 resolves an anomaly that Higgins J attempted to address at the trial conducted months after the date of this Comcare report. 

55. Further baseless allegations by Diana Temby and others were found in a document prepared by AFP Officer Mark Johnsen at the ACT Magistrates Court: 

1. For offences requiring "intent" by the accused, the prosecution looks for direct evidence of both intent and motive. This evidence increases the likelihood of securing a conviction. If someone inadvertently injures another, without intent, they should not be convicted of an offence of intentional causing harm to another. Also, if a person makes threats to harm others, but has no rational motive for such threats, then these threats could be evidence of mental illness, and not of criminal intent. 

56. When I was released on bail on 3 August 1999, I went to the Magistrates Court and asked to see my file. For the first time I saw a document entitled: "Information for the Issue of a Warrant for the Arrest in the First Instance of Colin George Dunstan for the Offence of Arson Contrary to Section 129(2) of the Crimes Act 1900." This document is dated 4 December 1998, and is sworn by Mark Raymond Johnsen, Detective Constable 3983 of the Australian Federal Police. Court staff refused my request for a photocopy of the document, and when I returned on 4 August 1999 to take further notes from this 7-page document, it had been removed from the file. After I contacted a Canberra Times journalist, an article was printed in the local newspaper on 5 August 1999, referring to the removal of this and other documents from court files. Mr Phil Thomson, Registrar of the Magistrates Court then contacted me, and at his invitation, Mr George Hardiman of the Magistrates Court arranged for me to view and make notes of this, and the other documents previously removed. Again, my request for a photocopy was refused. I then made a hand-written copy of some parts of the documents. 

57. Among other things, the document referred to in paragraph [56] above includes: 

“f. On Wednesday 2 December 1998 Detective Constable HARDES had a conversation with Ms Sue Langford, an addressee on one of the 'suspect' items located at the Fyshwick Mail Exchange. During their conversation Ms Langford provided the following information to Detective Constable HARDES: 

- She is a Psychologist and has previously treated Colin George DUNSTAN. 

- Mr DUNSTAN has been suffering from a psychological condition which appeared to stem from the 'break-down' of a previous relationship with Anne HANH. (Anne HANH was also an addressee of one of the suspect items.) Ms LANGFORD stated Mr DUNSTAN was deeply disturbed, introverted and extremely hostile towards Anne HANH and management of the ATO. 

- Ms LANGFORD indicated she was aware Mr DUNSTAN had made a number of 'threats' against HANH and other employees of the ATO; and 

- Ms LANGFORD stated in her opinion Mr DUNSTAN was a highly intelligent person. She was further aware that Mr DUNSTAN had an intimate knowledge of computers and appeared to have 'good' technical skills.” 

“h. Wednesday 2 December 1998 Detective Sergeant GRAHAM had a conversation with Ms Diana TEMBY the ex-Director of the Human Rights and Equal Opportunity Commission. Ms TEMBY stated the commission was dealing with a number of complaints from Colin George DUNSTAN in relation to his treatment by the ATO. Ms TEMBY stated from her dealings with Mr DUNSTAN, she considered him to be 'highly emotional' and 'unstable'. Ms TEMBY further stated Mr DUNSTAN had previously made a number of threats to various members of the commission. Ms TEMBY informed Detective Sergeant GRAHAM she believed Mr DUNSTAN was highly intelligent and from information on his 'file', 'technically capable of constructing an improvised explosive device'." 

58. Without having the police statement made by Susan Langford I made a submission in ACT Magistrates Court on 27 April 1999: 

"No evidence that I have threatened or caused harm to anyone. Evidence of my personality traits: I am very reluctant for people to even hold fears for safety. Police have not supplied witness statements from Sue Langford & Anne Hanh which may reflect this?" 

59. Further, in a letter dated 14 May 1999, I requested a copy of the statement of Susan Langford. I referred again to the statement of Susan Langford in a letter of 29 May 1999 to the ACT Director of Public Prosecutions: 

"Please [supply] ...a copy of the following statements, listed in the Prosecution Brief [table of contents], but missing from the brief provided last week. ...Also - Statement for Sue Langford (17) seems incomplete." Sue Langford's statement is dated 5 December 1998 but was not supplied until May 1999 and only after the committal proceeding. The full text of that statement, which is unsigned and is incomplete is: 

"This statement made by me accurately sets out the evidence which I would be prepared if necessary, to give in Court as a Witness. 

The statement is true to the best of my knowledge and belief and I make it knowing that, if tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true. 

My full name is Susan Lesley LANGFORD. I currently reside at . I am a practicing Psychologist and work at the premises of My date of birth is the 15th of January 1946. I am a qualified and registered Psychologist, with a Batchelor (sic) of Arts from the University of Queensland, and an Honours Degree in Science from Deakin University. I am registered in the A.C.T. with the board of Psychologists and am a member of the Australian Psychologists Society. 

From 1991 through to 1995, I was employed by an agency by the name of EASACT. The firm provided employer assistance programs for Government and non Government departments and agencies. I provided one on one counselling services to employees and their families for personal and work related difficulties. I also provided assistance and advice to supervisory staff on work place issues. 

During the period 1991 through 1995, the Australian Taxation Office had a contract with EASACT, and I saw a number of ATO staff Because of the contract with the ATO, EASACT services would have been publicised to staff As a result many staff self referred. 

Currently my 25 year old son Timothy, and his girlfriend Soledad, a 23 year old Chilean national, are residing with me. My mail is usually delivered in the early afternoon and either my son or Soledad would retrieve any postal items from the letter box. I would normally open my own mail. However, if a parcel had arrived during the day and I happened to have been talking to Timothy, it would not be uncommon for me to ask him to open it." 

60. The "evidence" dated 4 December 1998 on the Magistrates Court file: 

"Ms LANGFORD indicated she was aware Mr DUNSTAN had made a number of 'threats' against HANH and other employees of the ATO" 

does not appear anywhere within the text of Susan Langford's statement dated 5 December 1998 that was first made available by the prosecution in May 1999 - after the committal proceedings. Her police witness statement does not mention me at all. 

61. The statement of Ms Diana TEMBY, described as the "ex-Director of the Human Rights and Equal Opportunity Commission" at paragraph [57] above, is even more perplexing than the two inconsistent statements attributed to Ms Sue Langford. It seems from public information sources that Diana Temby was the Executive Director of the Human Rights and Equal Opportunity Commission (HREOC), not the "ex-Director", and is the wife of a former Commonwealth Director of Public Prosecutions, Ian Temby QC. Ms Temby's reference to "her dealings with Mr DUNSTAN" is difficult to understand: 

1. Firstly, I have never spoken with anyone at HREOC, or elsewhere, by that name. 

2. Secondly, Ms Temby has never dealt personally with me, and no-one with any involvement in my HREOC case has created or filed any document that refers to her by name or position. During discovery in civil proceedings before the Federal Court, I obtained access to what HREOC claims to be all files and documents held on its dealings with me. This includes file notes of telephone conversations. I examined all these HREOC documents and believe that the name "Diana Temby" does not appear on any. 

62. Of greater significance is the following: 

1. There is no mention of any threats from me in any of the statements of HREOC staff and former staff supplied by the prosecution. In the handwritten version of the statement by Rocky Clifford of HREOC, recounting our personal dealings with each other, the phrase "he was not threaten..." has been written and then crossed out. This phrase does not appear in the typed version. 

2. There is no mention of any threats at all from me in any of the documents on HREOC's files and documents - I never made any threats. 

3. There is no material in any of HREOC's documents upon which the statement attributed to Diana Temby could conceivably be based: "she believed Mr DUNSTAN was ...from information on his 'file', 'technically capable of constructing an improvised explosive device'." 

4. To my knowledge, there is no police witness statement by Diana Temby. I never asked the prosecution to supply a copy of a police statement by Diana Temby as I did not know of her existence. 

Further anomalies in the criminal proceeding 

63. I was initially represented by a solicitor and barrister of my choice. Hardship payments from the Australian Tax Office that were made after I was suspended from duty in October 1997 stopped abruptly and without warning on 31 March 1999. At that stage I could not afford my treating psychiatrist and I was left without legal representation. 

64. My right to question an important police witness was negated by the AFP who gave me her Police Witness Statement at the end of the committal hearing. Anne Hanh’s police witness statement is dated the same day as the committal hearing, 27 April 1999, and was handed to me by Detective Crozier after the Magistrate had closed the hearing. James Brewster later refused my repeated requests to call her as a witness at the trial. 

65. After the committal hearing was the first opportunity to examine a list of charges. I quickly noticed that one charge incorrectly identified the “intended recipient” as Robyn Orr, an officer of the Australian Taxation Office. The actual “intended recipient” for the only packet that was not elsewhere identified was addressed to Anthony Crewes, an employee of Comcare. This contradicted the police witness statements from postal worker who said the packet that exploded was addressed to Dickson. 

66. After the cessation of hardship payments by the Australian Taxation Office, and when I was no longer legally represented:  

1. I made an application for bail before Miles CJ after he had revoked my bail in a review later held to be without legal basis. At the hearing on 10 May 1999, I gave evidence and was cross-examined by the DPP. I provided the DPP with frank information about the nature of the offences I had committed and the correct identification of the charge that mistakenly named Robyn Orr as an “intended recipient”. Bail was refused. 

2. I applied for a review of this decision to refuse bail. This application was heard before the Full Court of the Federal Court of Australia, and I was again granted bail on 7 July 1999. 

67. A solicitor offered to represent me on a pro bono basis subject to disbursements being covered by Legal Aid. Chris Straniforth at the Legal Aid Office refused to allow me to select a solicitor and insisted that a Legal Aid solicitor Colleen Duffy and a barrister of his choosing, James Brewster would represent me. 

68. A trial date for the end of July 1999 had been set. Several difficulties were created by this: 

1. Chris Staniforth at the Legal Aid Office assigned Colleen Duffy to a court case that was to run for the two weeks immediately prior to the commencement date of my trial. There would be no opportunity to speak with her. 

2. The prosecution had not produced any evidence, as discussed in the judgment Dunstan v Director of Public Prosecutions [1999] FCA 921 on 7 July 1999, on whether any packets I posted were capable of exploding, 

3. A psychiatrist treating me for depression advised the presiding judge of the ACT Supreme Court that I would need access to the prosecution evidence for at least one month to be able to properly prepare for a criminal trial. 

69. At a hearing before Miles CJ at which James Brewster was making an argument for rescheduling the hearing date, he made a submission to the effect that a charge of attempting to intentionally cause harm required evidence that the person charged made their best effort to bring about the harm alleged. 

70. I believe this was the first occasion: 

1. that the legal significance occurred to me of the sample circuit of an extremely reliable improvised explosive device I had left in three shopping bags described at [14] above, and, 

2. that the unique omission of this device from a prosecution report by Thomas Stoewer dated 10 April 1999 shows that the prosecutor was aware of its significance and had omitted it because its legal significance was clear to the prosecutor, and 

3. that the incorrect identification of components for this device in a later a prosecution report in July 1999 likewise show that the prosecutor was aware of its significance and had incorrectly described the components in the circuit because the legal significance was plainly understood by the prosecutor. 

Fabricated Evidence

71. The evidence is clear that I posted 28 imitation explosive devices. The revelation that there were 29 potentially dangerous mail items processed at the Canberra Mail Centre on 30 November 1998, and 1 December 1998 explains the otherwise inexplicable inconsistencies in eye-witness accounts and forensic evidence about the explosion on the evening of 1 December 1998. The packet that exploded was not mine: 

1. Postal workers said a packet addressed to Dickson exploded. No packet I made was addressed to Dickson. 

2. During the trial James Brewster asked David Royds what propellant was found from the packet that exploded. David Royds said it was Winchester 231 propellant. No packet I posted contained that propellant. 

3. During the trial there was just one meeting with the Legal Aid Office solicitor and James Brewster. This was after the AFP forensic scientist David Royds gave evidence of finding “Winchester 231” pistol propellant at the Fyshwick Mail Centre. At this meeting I showed the legal representatives a Winchester “ammunition re-loaders’ guide” describing “Winchester 231” being used in factory-loaded .38 calibre pistol ammunition – the same ammunition used by the AFP at the time. James Brewster became quite agitated but did not say anything and clenched his fists. His expression was one of intense anger. I asked him to tell the jury of this fact. He failed to do this. I had to tell the jury myself that I did not use any “Winchester 231” pistol propellant. 

4. After sentencing I was in prison, sometime later from my request David Royds (of the AFP) gave me details of all the propellant from me (originally from my father’s residence. After my father’s death I went to his home to clean up before it was sold.) 

5. All the propellant was different from “Winchester 231”. David Royds identified the propellant with details including the colour, size and shape of particles, and the chemical composition – such as the percentage of nitrocellulose, etc. 

6. At the end of the trial the submissions of James Brewster and of the prosecutor were not transcribed. Only the Judge’s summing up was transcribed. In this, Higgins J instructed the jury to discount the evidence of the “wrong” propellant type being recovered from the Mail Centre (Transcript 3 December 1999 at page 673): 

“Mr Royds gave evidence of an inspection at the scene of the mail exchange and the anomalous discovery of the Winchester 231 ammunition [sic, pistol propellant]. As I say, that that is an anomaly is certainly conceded by all sides [emphasis added], relied on by Mr Brewster. What inference you draw from it is, of course, a matter for you. Perhaps Winchester 231 was accidentally used by Mr Dunstan without him knowing what it was. It may have been just a stray piece of ammunition he had. Maybe there is some other explanation for it. But, whether or not it indicates that there was some interference with the evidence at the mail exchange is a matter for you to determine one way or the other, if you think it helps you.” 

Conclusion – Substantial Miscarriage of Justice

72. Articles 14(3), (5), (6) and (7) of the ICCPR establish a number of guarantees that must be observed in criminal proceedings. 

1. To be informed promptly of the charge. This right is designed to enable the accused to prepare a defence. It requires that the accused be given information regarding the law and the alleged facts on which the charge is based, at the time the charge is laid and when the charge is amended. 

2. To have adequate time and facilities to prepare a defence and to communicate with counsel. The purpose of this right is to enable the accused to prepare his or her defence properly and to put the accused on an equal footing with the prosecution. 

73. The events described at [28(b)] are evidence of collusion between the prosecutor and James Brewster, with: 

1. The prosecutor laying the charges under the Commonwealth Crimes Act 1914 by ex officio indictment on 22 November 1999, and then 

2. James Brewster modifying the meaning of those charges 5 days later, clearly having regard to this issue identified by Madgwick and Gyles JJ on 28 June 1999 (see [28(b)] above), all the while hiding from me his intention to make this change. 

74. I was denied legal representatives of my choice – with severe adverse consequences resulting from the actions of James Brewster. 

75. In laying charges of attempting to intentionally cause harm the prosecutor ignored and hid the evidence that I could have made reliable improvised explosive devices. I chose to post mail items that I believed could not explode: 

1. The charges of attempting to intentionally cause harm were an abuse of process and vexatious. I was convicted and sentenced to nine years imprisonment on being found guilty on three of the five counts that alleged I committed these offences. 

2. In the absence of harm, there is no offence of attempting to recklessly cause harm. 

3. If any harm had occurred, a charge of recklessly causing harm would have been appropriate. 

4. The prosecutor told James Brewster before the trial that he would not charge me with attempting to intentionally inflict harm if I pleaded guilty to charges of posting an explosive substance . James Brewster first told me of this on 13 December 1999, after the trial at which I was found guilty on three of five counts of attempting to intentionally inflict harm. 

76. The prosecutor also ignored credible evidence in laying charges of intentionally attempting to inflict harm. Paul Adrian SMITH, Senior Technical Officer, NSW Police Service said in a statement dated 11 December 1998: 

“On the 2nd of December 1998, I was tasked by Acting Inspector J. HAMS to accompany him to the Rescue/Bomb squad at Zetland to examine an electronics driven explosive device to try and determine how it functioned. I looked at two devices from Waverly and Newtown. 

…

It appeared to me that the person who did make these devices appeared to have reasonable knowledge of what he was doing. The devices were reasonably well made and certainly capable of activating. 

In my opinion, the reason the devices I looked at failed to detonate was because the batteries were technically flat at the time they were opened by the recipients.” 

77. The prosecutor in conjunction with ACT Corrective Services ensured I was denied legal representation for the hearing of the appeal and that I had no time to prepare or communicate with counsel when the appeal was to be heard before the Full Court of the Federal Court of Australia . 

Other Documents Required

78. This affidavit is accompanied by a draft notice of appeal. 

Affirmed by Colin George Dunstan:

Deponent

at Gungahlin in the Australian Capital Territory 

in the presence of: 

Signed: 

Full Name: 

of Address: 

Justice of the Peace