Submissions - For an application to set aside conviction in the ACT

Evidence given to the jury was confused and contradictory. The legal definition of the elements of one offence was changed three times after the trial began. Each time this happened was after evidence unhelpful to the prosecution was heard. Each change was made in the absence of the jury. 

Confusion and contradictions in evidence

 

IN THE SUPREME COURT OF THE                              )

AUSTRALIAN CAPITAL TERRITORY                          )               No ACTCA 43 of 2025

COURT OF APPEAL CRIMINAL JURISDICTION        )

 

ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

 

 

COLIN GEORGE DUNSTAN

Applicant

 

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

 

APPLICANT’S SUBMISSIONS IN SUPPORT OF APPLICATION FOR LEAVE TO APPEAL

A.    Purpose and structure of these submissions

1.     These submissions are filed in support of the applicant’s application for leave to appeal under s 68ZG of the Supreme Court Act 1933 (ACT).

2.     The application involves two distinct questions:

a.      whether there is fresh and compelling evidence sufficient to warrant leave to appeal; and

b.     if leave is granted, whether the proposed appeal has sufficient prospects of establishing that the convictions involved a substantial miscarriage of justice.

3.     The applicant has filed an amended Draft Notice of Appeal and a supplementary affidavit affirmed 14 May 2026 to clarify the proposed grounds and the fresh evidence relied upon.

4.     The distinction between the leave question and the appeal question is important. The applicant does not contend that every matter referred to in his affidavits is itself fresh evidence. Some matters are relied upon as fresh evidence. Other matters are relied upon to explain why that fresh evidence is significant and how it supports the proposed appeal grounds.

5.     The principal fresh evidence relied upon for leave is:

a.      the post-trial forensic/document evidence concerning packet-label fragments showing text consistent with “Queanbeyan”, read with the address list recovered in December 1998 by the Australian Federal Police identifying A Crewes at 3/88 Fergus Road, Queanbeyan NSW 2620; [1] and

b.     the Comcare report dated 13 August 1999, prepared before trial but not disclosed to the applicant until 2009, recording a contemporaneous NSW Police conclusion that the Sydney device was a hoax and identifying s 85Y of the Crimes Act 1914 as a potentially applicable offence. [2]

B.    Fresh evidence relied upon for leave

6.     The applicant relies principally on two categories of fresh or newly available evidence.

Queanbeyan packet identification

7.     The first is the post-trial forensic/document evidence concerning label fragments from the packet said to have exploded at the Canberra Mail Centre.

8.     The applicant’s position, raised before trial and at trial, was that the only packet he posted which was not otherwise accounted for was addressed to A Crewes at Queanbeyan.

9.     The supplementary affidavit now annexes the address list recovered by the AFP in December 1998. Entry 7 identifies “Crewes / A Crewes” at 3/88 Fergus Road, Queanbeyan NSW 2620. [3]

10.  The photograph taken by the AFP in the annexure shows the address list and other items. [4] This is the photograph the applicant identified and referred to during a bail hearing on 10 May 1999. [5] The contents of this photograph is also described in a report of Thomas Stoewer. [6]

11.  The applicant also relies on post-trial photographs of packet fragments already exhibited in CGD-1, which show text forming part of the word “QUEANBEYAN”, including “QUEAN…”.

12.  That evidence is fresh or newly significant because it is capable of corroborating the applicant’s evidence on a central factual issue. The jury was left with a conflict between the applicant’s evidence and prosecution evidence that the packet was addressed to Dickson. The jury did not have the objective correlation now relied upon between:

a.      the fragment evidence later photographed by an independent forensic document service, showing “QUEAN…”; and

b.     the recovered address list identifying A Crewes at Queanbeyan.

13.  The respondent may say that the applicant’s assertion about Queanbeyan is not fresh. That misses the point. The applicant does not rely on the bare assertion as fresh evidence. He relies on later obtained or newly identified objective material capable of corroborating that assertion.

Comcare report and hoax characterisation

14.  The second category is the Comcare report dated 13 August 1999, prepared before trial but not disclosed to the applicant until 2009. [7]

15.  The report records that NSW Police concluded that the device delivered in Sydney was a hoax, and that NSW Police advised the AFP and PSCC of that conclusion. It also identifies s 85Y — Hoax explosives etc as a potentially applicable Commonwealth offence.

16.  The significance of that report is not merely that one device failed to detonate. A device may fail because its maker lacks skill. The applicant’s case is different: the evidence showed he had the skill and materials to make a simpler and more reliable dangerous device but did not do so.

17.  The Comcare report is therefore capable of supporting the applicant’s case that the devices were properly characterised as hoax or imitation explosive devices, not devices intended to inflict grievous bodily harm.

18.  The same report also appears, on its face, to account for 29 items, although the prosecution case proceeded on the basis that the applicant posted 28. It is part of a pattern of unresolved anomalies concerning identity, addressee and propellant.

C.    Why the evidence is compelling

19.  The fresh evidence is compelling because it bears directly upon:

a.      the identity of the packet said to have exploded;

b.     the reliability of prosecution evidence concerning that packet;

c.      the applicant’s credibility as a witness;

d.     whether the proper statutory characterisation was hoax explosives under s 85Y rather than intentional attempts to inflict grievous bodily harm; and

e.      whether the jury was left to decide the case on a false or incomplete factual and legal footing.

20.  The Queanbeyan evidence is particularly important because the applicant had identified that issue months before trial. If the packet fragments and address list corroborate him, then the jury was deprived of objective evidence capable of confirming his reliability on a central matter.

21.  That the jury was not informed of the truthfulness of the Applicant’s evidence correctly identifying the real addressee and address for the exploded packet at the mail centre is confirmed by:

a.      The addressee for the final charge on the indictment is not identified [8], and

b.     The post-trial judgment of Higgins J continues the version of events maintained throughout the trial that the address was not identified notwithstanding that the evidence was available to the prosecution to confirm the address and to confirm that the applicant’s evidence was truthful. [9]

22.  The Comcare report is particularly important because it is independent, contemporaneous and pre-trial. It shows that the hoax characterisation arose from an objective assessment of a packet and the reason it did not explode when opened, independently from the applicant’s evidence at the committal hearing, in bail hearings before trial, and at trial. The prosecutor made this assessment in his closing address at the trial, “Those devices were clearly constructed carefully, painstakingly, meticulously.” [10]

D.    Relationship between fresh evidence and proposed appeal grounds

23.  The fresh evidence does not stand alone. If leave is granted, the applicant will contend that it forms part of a broader substantial miscarriage of justice.

24.  The proposed appeal grounds include:

a.      the jury was deprived of objective evidence capable of confirming the Queanbeyan identification;

b.     the trial involved unresolved forensic inconsistency, including evidence that Winchester 231 pistol propellant was found at the Mail Centre[11] and that ammunition for Australian Federal Police handguns (.38 Smith & Wesson revolvers) [12] use Winchester 231 pistol propellant. The applicant’s evidence was that he used only rifle propellant;

c.      the practical meaning of “explosive” in the s 85X counts was altered on three separate occasions during trial, three of which were after evidence favourable to the applicant was given; [13]

d.     the practical meaning of “knowingly” was altered during trial after evidence favourable to the applicant was given so that the offence could be complete even if the applicant did not expect an explosion and knew that propellant was not an explosive substance; [14]

e.      defence counsel then told the jury there was effectively nothing to say about the s 85X counts and took the determination of a verdict off the jury; [15]

f.      there was a real risk that the jury treated the conceded guilt on the s 85X counts as supporting intent to cause grievous bodily harm, when the legal construction adopted by the judge did not require proof that the applicant expected an explosion; and the jury was not informed of any of the alterations to the offence. Each alteration was made in the absence of the jury.

25.  Those matters are not relied upon merely as repetition of historic complaint. They show why the fresh evidence matters. The fresh evidence tends to expose the risk that the jury was not deciding the true issues on the true evidentiary footing for the five charges on which they were confined to deciding.

26.  The applicant was ultimately sentenced for committing offences structurally distinct from those set out in the indictment. While the odd-numbered counts under s 85X strictly charged the applicant with causing to be carried by post an article containing a “totally prohibited substance, namely an explosive” [16], the trial judge circumvented the necessity of a specific jury finding on this statutory expression through an erroneous interlocutory ruling.

27.  By ruling as a matter of law in the absence of the jury that “as it was configured within the device, the device itself was an explosive” [17], the trial judge effectively neutralised the applicant's factual defence. This compelled defence counsel to concede to the jury that the props of the defence had been "knocked away" and that he could say nothing further on those counts. [18]

28.  Consequently, in the sentencing judgment, the trial judge failed to sentence on the indictment as framed, instead substituting an altered offence formulation. At paragraphs 6 and 10 of the judgment, his Honour consistently replaced the term "substance" with "device", asserting that the Crown alleged the dispatch of an "explosive device" and that this was "not seriously disputed".[19] The paradox is thus laid bare: the applicant was sentenced on a finding of guilt manufactured by a mid-trial judicial substitution of the essential elements of the charge, bypassing the literal text of the indictment which the jury was impanelled to try.

29.  The practical utility of the s 85X counts was preserved only by an impermissible mid-trial shift by the prosecution and the trial judge regarding the physical specification of the alleged “explosive”.

30.  At the commencement of the trial, the prosecution case targeted a substance carried within the post. The defence maintained a clear, orthodox scientific distinction between an explosive substance and a confined mechanical device: ammunition propellant is a flammable material that deflagrates (burns) when unconfined. While it may cause an explosion if trapped inside a sealed container due to expanding pressure, the underlying substance itself is not an explosive per se. (By analogy, cooking a hard-boiled egg in a microwave may cause an explosion when internal pressure builds too great, yet no reasonable legal framework characterises a raw egg as an “explosive substance”).

31.  To cure this evidentiary deficit, the legal definition was systematically shifted in the absence of the jury. The focus moved from the volatile properties of the posted substance (the commercial ammunition propellant) to its chemical ingredient ("nitrocellulose"), before expanding entirely to encompass the entire physical mechanism ("the device itself"), borrowing a stipulative definition from s 93 of the unrelated Crimes Act 1900 (ACT).[20]

32.  This shifting specification resulted in a fundamental injustice. The applicant went to trial to defend a charge of posting a prohibited substance, but had his defence extinguished when the court ruled mid-trial that the mechanical device could serve as the surrogate explosive element. This material variance between the indictment, the interlocutory ruling, and the final sentencing findings constitutes a substantial miscarriage of justice.

33.  The miscarriage of justice was compounded by a further interlocutory ruling that fundamentally misconstrued the statutory element of “knowingly” under s 85X.

34.  The applicant’s primary defence to the s 85X counts rested on a lack of the requisite mens rea: because he had intentionally constructed the devices with flattened batteries and marginal igniters to ensure they were functionally inert, he lacked any subjective knowledge that he was posting an “explosive”. As defence counsel explicitly stated to the court: “My client believed that these devices could not explode. He knew what was in them. That provides our defence”.[21]

35.  In the absence of the jury, the trial judge extinguished this defence by ruling that the word "knowingly" applied solely to the physical act of committing the article to the post. His Honour ruled:

“...it seems to me that the offence would be made out if a person knowingly committed such an article to the post, irrespective of whether the person expected or did not expect an explosion to occur.” [22]

36.  To justify this expansive reading, his Honour relied upon a flawed analogy, stating that it would equally be an offence to post a CO2 cylinder filled with explosive material “even though its ignition was impossible because it was not connected to any source”. [23]

37.  The trial judge’s construction constitutes a grave error of law. By divorcing "knowingly" from the functional capability or explosive character of the item, the court lowered the prosecution's burden of proof. It dictated that an accused could be found guilty of knowingly posting a prohibited explosive even if they held an honest, undisputed belief that the substance was configured to be entirely non-explosive and inert. This mid-trial alteration stripped the word "knowingly" of its statutory purpose and directly neutralized a legitimate, factual defence after the relevant evidence had already been led.

38.  The prosecutor, however, who was present when the interlocutory rulings were made, said in summing up to the jury:

“His Honour will tell you that nitrocellulose, with or without the accompaniment of a soda bulb in which it is contained, is an explosive within the meaning of the charges that say that Mr Dunstan knowingly caused to be carried by post an article that contained a totally prohibited substance, namely an explosive.” [24]

E.    Answer to matters raised by the respondent

39.  The respondent’s submissions at [7] reveal they were prepared without the benefit of transcripts:

“As outlined in the SJ affidavit, the respondent has attempted to obtain material from the applicant’s trial proceedings, however not all material has been able to be obtained. A review of the file held with the Supreme Court identified what appeared to be some trial exhibits, however not all exhibits were available. No trial exhibit list was located. Further, the file did not contain any transcripts from the trial. Enquiries were made with the relevant transcription provider however transcripts have not been able to be obtained for the purposes of this application. Additionally, none of the trial transcript or exhibits is held by the respondent.”

40.  On receiving this advice, the applicant scanned the complete transcripts from the trial and from pre-trial proceedings, among other documents. These have been made available to the Court and to the respondents as exhibits to a further affidavit by the Applicant dated 19 January 2026:

a.      The transcripts of the trial and the trial exhibit list are in exhibit CGD-3.

b.     The transcripts of pre-trial proceedings are included in exhibit CGD-1.

41.  The Applicant in that affidavit mistakenly identified a statement by AFP officer Thomas Stoewer as exhibit SJ-36 to the SJ affidavit. It is in fact exhibit SJ-33.

42.  The transcripts were not available to the Applicant at trial. That they are now available and can be analysed electronically for the first time reveals relevant fresh facts:

a.      A presumption at trial and on appeal at first instance – ventilated in the respondent’s submissions - is that the explosion at the Canberra Mail Centre must have been a packet made and posted by the Applicant. If one accepts this presumption without question:

·       The legal issue then, and now, is limited to whether the Applicant intended that the packets he made would explode, or that the explosion at the mail centre was unintended, and

·       All inconsistent evidence is irrelevant. That no amount of inconsistent evidence can displace the unquestioned presumption on which the legal issue rests.

b.     That the legal definition of the s 85X offence was materially altered on three occasions after the trial commenced and in the absence of the jury, and further, the jury was never apprised of the changes and the relevance of those changes.

43.  As well as the material alterations of the legal definition of the s 85X offence, the sentencing judgment found the Applicant guilty of different offences to those on the indictment – of posting explosive devices, and not a prohibited substance. [25]

44.   The previously available inconsistent evidence, and the further fresh inconsistent evidence, cannot be dismissed in favour of the prosecution.

45.  Analysis of the transcript that only now is feasible reveals a credible, logical and complete explanation for every one of the inconsistencies and anomalies.

46.  This credible explanation raises a reasonable doubt of the presumption at trial and on appeal.

47.  A profound conceptual and evidentiary contradiction lies at the heart of the Crown case regarding the item processed at the Canberra Mail Centre (the eleventh count). Throughout the trial, this item was definitively characterized by the prosecution as “the packet that exploded”. This real-world detonation was the foundational pillar used by the Crown to prove that the applicant’s configurations were inherently dangerous, functional explosives rather than benign hoaxes.

48.  However, a critical analysis of the trial transcript reveals a persistent linguistic variance in the addresses of the learned Crown Prosecutor, Mr. Refshauge. On multiple material occasions—most damagingly when summarizing the absolute apex of the prosecution case to the jury—the Prosecutor slipped into describing the item not as a packet that “exploded,” but as a packet that “was exploded”.

49.  In the context of the forensic evidence, this distinction is not a matter of mere semantics; it is highly instructive of the true operational facts. The trial evidence established that police bomb technicians routinely dealt with suspected items by subjecting them to a process of forced “disruption” via external charge—a process the police witnesses invariably described as rendering a packet “exploded.” The Prosecutor's repeated, unconscious adoption of the passive voice ("was exploded") points directly to the latent evidentiary defect obscured by the Crown: the Mail Centre packet did not detonate spontaneously via an internal chemical reaction but was instead externally disrupted by state agents after being flagged as a suspected hoax. This explanation directly accounts for why physical fragments recovered from the mail centre failed to match the design architecture of the actual items posted by the applicant.

50.  This systemic ambiguity is entirely confirmed by a striking structural asymmetry on the face of the indictment itself. For every other specific addressee in the trial (Counts 1 through 10), the Crown paired a s 85X posting charge with a corresponding charge of intentionally attempting to inflict grievous bodily harm. Yet, for the eleventh count—the one packet allegedly volatile enough to spontaneously detonate in transit and injure a postal worker—the Crown conspicuously failed to lay a companion s 19 charge of attempted harm.

51.  This omission is legally and logically irreconcilable with a coherent prosecution theory. If the Mail Centre packet was a live, functioning weapon of mass mailings, it constituted the most overt manifestation of a criminal intent to cause grievous harm. The only rational explanation for the structural omission of a s 19 charge on Count 11 is that the Crown recognized the item lacked the internal capability to injure anyone. By conflating an item that “was exploded” by external police disruption with an item that spontaneously “exploded,” the prosecution leveraged a false premise of real-world danger to secure convictions across the remainder of the indictment. This fundamental mischaracterization resulted in a substantial miscarriage of justice.

52.  The transcript of the trial shows the prosecutor disclosing the crucial anomaly:

a.      MR REFSHAUGE: And photograph 8. Does that show the position of the package before it was exploded? [26]

b.     MR REFSHAUGE: And – I see, so you say that the device was exploded was not one that you posted? [27]

c.      MR REFSHAUGE: Now, yesterday in evidence, you suggested that the device that was exploded could have been the Scollay device? [28]

d.     MR REFSHAUGE: So, it was not correct to say that the police photographed the packet before it was exploded? [29]

e.      MR REFSHAUGE: What then is the evidence about the Canberra Mail Exchange? There are a number of pieces of evidence that I want you to consider and which I say to you will result in you accepting
that the device that was exploded [emphasis added]
at the mail exchange was a device that Mr Dunstan caused to be sent by the post and that he knew was an explosive. [30]

53.  The artificiality of the Crown’s narrative concerning the Mail Centre packet is further exposed by the Prosecutor’s active, mid-trial refusal to engage with the physical exhibits that directly contradicted the indictment.

54.  A central battleground of the trial was the identity and destination of the 22nd package dispatched by the applicant on 1 December. The applicant consistently maintained, both months prior to trial and during cross-examination, that this final packet was addressed to a Mr. Anthony Cruise in Queanbeyan. Conversely, the prosecution sought to force a geographical match between the applicant's missing packet and the remnants at the Mail Centre by asserting the package had been addressed to Mr. Cruise in Ainslie.

55.  When the applicant explicitly invited the Prosecutor to test this assertion against the physical reality of the evidence, stating: “Well, if you look at the fragments returned from the post office, you find that... It’s in Queanbeyan, it’s clearly visible on the packet when you look at the fragments of the address,” the Prosecutor flatly refused to inspect the exhibit, interjecting: “No, I don't want to do that. I just want to ask you—”.

56.  This defensive pivot by the Crown is deeply instructive. In an Australian criminal trial, a Crown Prosecutor owes a strict minister-of-justice duty to present a case dispassionately and to assist the tribunal of fact in evaluating all available evidence, whether favourable to the state or otherwise. The Prosecutor’s explicit, recorded refusal to look at physical fragments—which the applicant testified clearly displayed the word "Queanbeyan"—demonstrates a calculated evasion of forensic facts.

57.  This evasion underscores the systemic prejudice that infected the trial: whenever an unexplained discrepancy emerged regarding the "phantom packet," the prosecution sought to suppress or brush it aside rather than permit the jury to see that the physical attributes of the Mail Centre fragments failed to match the actual devices posted by the applicant. Combined with the Prosecutor's own telling linguistic slip in framing his cross-examination—wherein he explicitly referred to the item as “the device [that] was exploded”—it is clear that the jury was led to convict on a foundational premise of real-world danger that the prosecution's own evidence could not forensically support.

58.  The prosecution used the Mail Centre event as proof of dangerousness and intent but avoided using it as a direct intent count because the factual foundation was unstable.

59.  This is not merely “illogical”; it is capable of supporting a miscarriage argument. It suggests the jury may have been invited to draw an inference of intent from an event the prosecution itself treated as too uncertain to charge directly as an attempted injury offence.

60.  The asymmetry between the s 85X and s 19 counts is significant. The Mail Centre article was the subject of a s 85X count but not a corresponding s 19 attempted grievous bodily harm count. Yet the alleged Mail Centre explosion was relied upon as the central real-world event from which the jury could infer dangerousness and intent in relation to the other s 19 counts. If the Mail Centre event was too uncertain to support an attempted grievous bodily harm count in relation to the addressee of that article, it is difficult to see how it could safely be used as the principal evidentiary foundation for inferring intent to harm the other addressees. That inconsistency reinforces the applicant’s submission that the prosecution case was unstable in fact and law.

61.  In answering the respondent’s submissions at [55]–[65], the applicant submits that care is needed to distinguish the evidence relied upon for leave from the matters relied upon to demonstrate the proposed miscarriage of justice.

62.  The respondent’s treatment of the affidavit material does not maintain that distinction and risks conflating the leave question with the appeal question.

63.  The correct sequence is:

a.      identify the fresh evidence;

b.     ask whether it is reliable, substantial and highly probative;

c.      ask whether it should be considered on an appeal; and

d.     only if leave is granted, determine whether the convictions involved a substantial miscarriage of justice.

64.  The respondent’s answer that some issues were known or contested at trial does not answer the present application. Fresh evidence often matters precisely because it bears upon an issue that was contested at trial but not determined on the true evidentiary footing.

65.  The applicant knew and said that the Queanbeyan packet was the only unaccounted-for packet. The issue was raised prior to trial, at a hearing before Miles CJ on 10 May 1999, and again at trial. What was not before the jury in usable form was the objective corroboration now relied upon: the address list recovered by police in December 1998, the later forensic document photographs of the fragment evidence, and the comparison between them.

66.  The jury’s ability to assess the applicant’s credibility at trial was curtailed by circumstances within the control of the prosecutor.

67.  At trial in November – December 1999 the prosecution evidence was unstable:

a.      AFP Officer Johnsen accepted that a part of the material may have indicated an addressee living in Queanbeyan, while the prosecution case also involved Dickson and Melba/Orr attributions. [31]

b.     When the applicant invited the prosecutor to examine the fragment evidence, the prosecutor declined to do so. [32]

68.  The fresh evidence is relied upon because it enables that confusion to be assessed objectively.

69.  The applicant also did not have the Comcare report at trial. A report prepared before trial but not disclosed until 2009 could not reasonably have been tendered by the applicant at trial.

F.     Interests of justice

70.  The interests of justice favour leave.

71.  The issue in the proposed appeal is whether the applicant was properly convicted of the offences actually charged and whether the trial process miscarried.

72.  The fresh evidence is directed to central issues, not peripheral matters. It bears upon the identity of the packet, the applicant’s credibility, the correct statutory characterisation of the conduct, and the mental element of intent to cause grievous bodily harm.

73.  The Court should not dispose of the fresh evidence by assuming each anomaly is an error in favour of the prosecution. The cumulative pattern is what makes the evidence compelling.

74.  Leave should be granted so that the Court of Appeal can determine the proposed grounds on a full and properly organised record.

G.   Orders sought

75.  The applicant seeks orders that:

a.      leave to appeal be granted;

b.     the amended Draft Notice of Appeal be received as identifying the proposed grounds; and

c.      the proceeding be listed for directions for the settlement of appeal papers.

H.   Postscript: relevance of the legislative purpose

76.  The applicant adds the following observations because this application is made under legislation enacted to address the problem of convictions later called into question by fresh and compelling evidence.

77.  The ACT Government’s discussion paper explained that the reform was directed to the situation where new evidence emerges after ordinary appeal rights have been exhausted, and that such evidence may have resulted in an acquittal had it been available in earlier proceedings.

78.  The subsequent listening report recorded broad support for a further right of appeal and noted the view that the Crown has a fundamental obligation to ensure that any conviction is right, proper and valid under the rule of law.

79.  In introducing the Bill, the Attorney-General stated that public confidence in the criminal justice system is essential to its operation, that the system is not infallible, and that where errors occur, they should be corrected as efficiently as possible. He further stated that the new right of appeal exists where fresh and compelling evidence comes to light suggesting that a conviction may be unsafe.

80.  Those statements describe precisely the reason this application should not be approached narrowly or defensively. The issue is not merely whether the applicant can identify isolated imperfections in a historic trial. It is whether fresh evidence now permits the Court to examine whether the convictions rested upon a prosecution case that was, at the time, unstable in both fact and law.

81.  The difficulty is especially acute in relation to the s 85X counts. The transcript of 2 June 1999[33] shows that, months before trial, the prosecutor informed the Court that earlier ACT charges of intentionally and unlawfully sending an explosive device in circumstances likely to endanger life had been replaced by Commonwealth s 85X charges alleging that the applicant knowingly caused to be carried by post an article containing a totally prohibited substance, namely an explosive.

82.  The same hearing showed that there were 11 proposed s 85X counts, including one extra count relating to the article said to have exploded at the Canberra Mail Centre, while there was no corresponding s 19 attempted grievous bodily harm count in relation to that article. [34]

83.  Miles CJ observed that the new charges did not require proof of intention to endanger life, and the prosecutor agreed.[35] The applicant then identified the important distinction between the s 85X counts and the remaining s 19 intent counts.

84.  During the same hearing, the applicant was cross-examined about the material placed in the packets. He explained that he had used propellant powder from cartridges, and when asked whether that material was explosive, he immediately qualified the answer by saying that it depended on definitions.

85.  On page 59 of that transcript, the applicant explained more clearly that the material would burn once ignited, and that when removed from a cartridge and without a firing cap it was “no more dangerous than a piece of photographic film”. [36]

86.  The applicant also told the Court that he had not been prepared to take any step that would physically endanger the addressees or their families.

87.  Those matters were not obscure. They were squarely before the prosecutor months before trial. They showed that the applicant’s answer to the s 85X charges was not a mere denial, but a specific legal and factual contention: the material used was flammable rifle propellant; the devices were hoax or imitation devices; and the appropriate statutory characterisation was not knowingly posting an explosive substance.

88.  The ACT Prosecution Policy records orthodox prosecution principles. It states that a prosecution should not be instituted or continued unless there is reliable admissible evidence providing reasonable prospects of conviction, and that the prosecutor should consider lines of defence plainly open to or indicated by the accused. It also states that charges should be chosen with care so as to reflect the nature and extent of the criminal conduct disclosed by the evidence, having regard to the strength of the evidence and probable lines of defence.

89.  On the material now available, the s 85X counts appear difficult to reconcile with those principles. If the later construction of “explosive” and “knowingly” was not anticipated, the decision to proceed on those counts despite the issues raised on 2 June 1999 is difficult to explain. If the later construction was anticipated, the applicant was not given a fair and timely opportunity to understand and meet that construction before trial.

90.  Either way, the later course of the trial is remarkable. The applicant’s position that the propellant was flammable rather than explosive was not newly invented at trial. It had been identified months earlier. Yet the practical viability of the s 85X counts emerged only after the trial judge adopted a broader construction of “explosive” and later treated the offence as capable of being made out irrespective of whether the applicant expected an explosion.

91.  That chronology matters for the legislative purpose. The new ACT appeal right was created because the ordinary finality of criminal litigation must sometimes yield where fresh and compelling evidence shows that confidence in a conviction may be misplaced. This case raises that kind of concern. The fresh evidence does not merely add detail to an old dispute. It permits the Court to reassess whether the prosecution case was properly characterised from the outset, and whether the jury ultimately convicted on a legal and factual basis that had shifted during the trial.

92.  The applicant therefore submits that granting leave would be consistent with the purpose of the legislation: to ensure that where fresh and compelling evidence casts serious doubt on the safety of a conviction, the Court of Appeal has the opportunity to examine the matter openly, judicially, and in a way capable of maintaining public confidence in the ACT system of justice.

........................................................

Colin Dunstan

Applicant

18 May 2026

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[1]              Exhibit CGD-1, pages 335-340.

[2]              Exhibit CGD-1, pages 341-351.

[3]              Annexure A, pages 2-3 of the Affidavit of Colin Dunstan affirmed 14 May 2026.

[4]              Annexure A, page 4 of the Affidavit of Colin Dunstan affirmed 14 May 2026.

[5]              CGD-1, page 52, line 26 to page 53, line 24.

[6]              Exhibit SJ-33, page 371 (Exhibit to affidavit of Sofia Janackovic dated 21 November 2025.)

[7]              Exhibit CGD-1, pages 341-351.

[8]              Exhibit CGD-3 at page 30, lines 22-25.

[9]              The Queen v Colin George Dunstan [2000] ACTSC 35 (26 April 2000) at [3].

[10]            Exhibit CGD-3 at 682.

[11]            Exhibit CGD-3 at page 305 and 731.

[12]            Exhibit CGD-3 at page 393.

[13]            Exhibit CGD-3 at page 24, line 37 to page 25, line 3, at page 30, line 35 to page 31, line 7, at pages 306 to 309, and 470 to 481.

[14]            Exhibit CGD-3 at pages 591 and 594 to 596.

[15]            Exhibit CGD-3 at page 698

[16]            Exhibit CGD-3 at pages 15-16, 18-20, 24-25 and 30 and The Queen v Colin George Dunstan [2000] ACTSC 35 (26 April 2000) at [6] and [10].

[17]            Exhibit CGD-3, page 481.

[18]            Exhibit CGD-3, page 698.

[19]            The Queen v Colin George Dunstan [2000] ACTSC 35 (26 April 2000) at [6] and [10].

[20]            Exhibit CGD-3, page 481.

[21]            Exhibit CGD-3, page 596.

[22]            Exhibit CGD-3, page 596.

[23]            Exhibit CGD-3, page 596.

[24]            Exhibit CGD-3, page 682.

[25]            The Queen v Colin George Dunstan [2000] ACTSC 35 (26 April 2000) at [6] and [10].

[26]            Exhibit CGD-3, page 106, 23.11.99, lines 15-16.

[27]            Exhibit CGD-3, page 537, 30.11.99, lines 33-34.

[28]            Exhibit CGD-3, page 539, 30.11.99, lines 3-4.

[29]            Exhibit CGD-3, page 540, 30.11.99, lines 3-4.

[30]            Exhibit CGD-3, page 683, 2.12.99, lines 28-33.

[31]            Exhibit CGD-3, page 163.

[32]            Exhibit CGD-3, page 538, lines 20 -30. 

[33]            Exhibit CHD-1, pages 62-138.

[34]            Exhibit CGD-1, Page 76.

[35]            Exhibit CGD-1, page 77.

[36]            Exhibit CGD-1, page 120.

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