The ACT Prosecutor opposes setting aside convictions obtained by deceit

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In response to an application to appeal from a conviction under new ACT legislation allowing an appeal at any time, the ACT Director of Public Prosecution opposes the granting of an appeal, lodging the following application and affidavit. 

The Prosecutor's affidavit does not give any reason for opposing the application. 

COLIN GEORGE DUNSTAN v DIRECTOR OF PUBLIC PROSECUTIONS 

File Number ACTCA 43 of 2025

DPP's Response to Application for Leave to Appeal - lodged 26/09/2025 

DPP's Affidavit lodged 26 September 2025 with its response

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 

(No. SCC 104 of 1999) 

COLIN GEORGE DUNSTAN 

Applicant 

and 

THE DIRECTOR OF PUBLIC PROSECUTIONS 

Respondent 

On 26 September 2025, I Emma Roff of First Floor, Reserve Bank Building, 20-22 London Circuit, Canberra City in the Australian Capital Territory, solemnly affirm- 

1. I am a Legal Practitioner employed in the Office of the Director of Public Prosecutions in the Australian Capital Territory. Under her direction I have the conduct of this matter.

2. In preparing this affidavit, I have reviewed and relied upon the information available in the respondent’s original, hard-copy case file for this matter, as well as documents inspected and copied from the ACT Supreme Court file for SCC 104 of 1999. 

3. On 18 September 2025, the applicant filed an application for leave to appeal out of time, draft notice of appeal and affidavit of Colin George Dunstan affirmed on 11 September 2025. The proposed appeal is from the findings of guilt and convictions following the applicant’s jury trial in late 1999. It is unclear from the available material the precise date that the jury's verdict was returned. However, the applicant was formally convicted of the charges by Higgins J on 26 April 2000. The appeal is therefore at least 25 years, four months and 24 days out of time. 

4. On 26 September 2025, the respondent filed a response to the application for leave to appeal out of time against conviction, pursuant to s 5509 of the Court Procedures Rules 2006 (ACT). The response indicated that the Director of Public Prosecutions opposes the application for leave to appeal out of time and proposes to file affidavit evidence in response to the application. The purpose of this affidavit is to provide supporting material in relation to the Director's opposition. 

5. The applicant was tried on an indictment dated 22 November 1999. The indictment contained 11 counts. Counts 1, 3, 5, 7, 9 and 11 alleged that the applicant knowingly caused to be carried by post an article that contained a totally prohibited substance, namely an explosive, contrary to s 85X of the Crimes Act 1914 (Cth). Counts 2, 4, 6, 8 and 10 alleged that the applicant intentionally attempted to inflict grievous bodily harm on five named individuals, contrary to s 19 of the Crimes Act 1900 (ACT). Annexed to this affidavit and marked ‘A’ is a copy of the indictment. 

6. The trial commenced on 22 November 1999. The offences were alleged to have been committed between 28 November and 4 December 1998. At the trial, the applicant admitted that he had posted a total of 28 packages between 30 November and 1 December 1998, which each contained a device. The Crown case was that the applicant intended that that those devices would explode. On 2 December 1998, a package exploded at the Canberra Mail Exchange. The Crown alleged that the device which exploded was from one of the packages that the applicant posted. The jury found the applicant guilty of nine of the 11 counts on the indictment, finding the applicant not guilty of counts 8 and 10 (allegations of attempted intentionally inflict grievous bodily on Susan Walpole and Linda Higginson). 

7. The sentencing hearing occurred before Higgins J on 8 and 30 March 2000. On 26 April 2000, Higgins J formally convicted the applicant of the nine charges and sentenced him to a head sentence of nine years’ imprisonment with a five-year non-parole period. Annexed to this affidavit and marked ‘B’ is a copy of the certificate of conviction. Annexed to this affidavit and marked ‘C’ is a copy of the sentencing reasons of Higgins J: The Queen v Dunstan [2000] ACTSC 35. 

8. At some point following his conviction and sentence, the applicant filed an appeal against his convictions in the Federal Court of Australia. The appeal was heard by Wilcox, Spender and Branson JJ on 12-13 October 2000. The appeal was brought on eight grounds, including allegations that the verdicts were unsafe and unsatisfactory; that the trial judge misdirected the jury; that the trial judge erred in not discharging the jury from returning a verdict in relation to the charges contrary to s 19 of the Crimes Act; that the applicant was denied a defence reasonably open to him that an unidentified party was responsible for the item that exploded at the Canberra Mail Centre on 2 December 1998; that the appellant was denied a fair trial for various reasons; and that there was a miscarriage of justice in relation to the conduct of the Legal Aid Office (ACT) and his counsel. 

9. On 18 May 2001, the Federal Court determined that there was no substance to any of the applicant’s grounds of appeal and, accordingly, dismissed the appeal. Annexed to this affidavit and marked ‘D’ is a copy of the judgment of the Federal Court: Dunstan v The Queen [2001] FCA 147. 

Affirmed by Emma Roff 

At Canberra City, ACT, in the presence of: 

Lydia Corcoran of Ground Floor, Reserve Bank Building, 20-22 London Circuit, Canberra
City in the Australian Capital Territory. 

Legal Practitioner 

Note If the affidavit extends over more than 1 page, the person making the affidavit and the person taking the affidavit must sign or initial each page of the affidavit (see r 6715(1)(Affidavit— taking of)).