Appeals with fresh evidence where there was substantial miscarriage of justice

 The ACT Assembly, after community consultation, passed a new law allowing people convicted of offences to apply for a review under certain circumstances. 

A report "Your Say. Wrongful Convictions: Reforms to the Right to Appeal..." was produced setting out the advice the Assembly received from the ACT community.

This application below introduces one of the first cases to be considered under this ACT new law. 

A substantial miscarriage of justice
A substantial miscarriage of justice


The grounds on which the case is based are in the document "Amended Draft Notice of Appeal dated 14 May 2026". 

The submissions that explain the facts and evidence for each of the grounds are in the document "Submissions dated 18 May 2026". 


Form 6.2 Application in Proceeding

Court Procedures Rules 2006

(see r 6007 (Application in proceeding—contents))

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)

Made under r 6006 (Application—pt 6.2) 



COLIN GEORGE DUNSTAN

Applicant


DIRECTOR OF PUBLIC PROSECUTIONS

Respondent




Take notice that the Court will hear an application by the applicant Colin Dunstan on 22 May 2026 at 9:00am (or as soon after that as this application can be heard), to make the following orders:

1. The applicant has leave, to the extent leave is required, to rely on the Amended Draft Notice of Appeal dated 14 May 2026.

2. The applicant has leave, to the extent leave is required, to rely on the supplementary affidavit affirmed 14 May 2026 and Annexure A to that affidavit.

3. The applicant has leave, to the extent leave is required, to rely on the written submissions filed 18 May 2026, or alternatively a shortened version complying with any page limit directed by the Court. 

4. Alternatively, if any of that material is not received, the leave hearing on 29 May 2026 be vacated and relisted after directions. 


Grounds of application

The orders are sought on the following grounds: 

  1. The application for leave to appeal is listed for hearing on 29 May 2026.

  2. On 18 May 2026 the applicant filed and served an Amended Draft Notice of Appeal, a supplementary affidavit affirmed on 14 May 2026 with Annexure A, and submissions dated 18 May 2026.

  3. The respondent objects to the applicant relying upon that material.

  4. At the directions hearing on 20 May 2026, the Registrar did not determine whether the applicant may rely upon that material and indicated that the question would be left to the judge hearing the application on 29 May 2026.

  5. If that question is first determined on 29 May 2026, the applicant may be required to proceed immediately on the basis of earlier material which no longer states the proposed grounds with precision.

  6. The applicant seeks that the procedural issue be determined before the substantive application for leave is heard, so that the parties know the basis on which the hearing is to proceed.

  7. The proposed orders are consistent with the purpose of the new appeal provisions, including the need for fresh and compelling evidence raising possible miscarriages of justice to be considered openly and efficiently.

  8. The affidavit in support of this application and the accompanying materials raise matters going to the purpose of the new legislation: 

    1. Implement a right to appeal that will improve access to justice applying to perceived instances of wrongful convictions or substantial miscarriages of justice, 

    2. There is a need to be certain that each element of the criminal justice system is working effectively and, if there are errors, that they can be corrected as efficiently as possible, and 

    3. Public confidence in the criminal justice system is essential to its operation.

  9. These are reasons to determine the procedural issue clearly and before the substantive application is argued. 


Supporting material

This application is supported by the following affidavit:

1 Affidavit of Colin George Dunstan affirmed on 21 May 2026.

This application is accompanied by the following material: 

  1. Amended Draft Notice of Appeal dated 14 May 2026 (amended without leave pursuant to r 5412 and r 509(4)), 

  2. Supplementary affidavit affirmed 14 May 2026 with an Annexure marked “A”, and 

  3. Submissions dated 18 May 2026

Date: 21 May 2026

Colin Dunstan


To: The Director of Public Prosecutions


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