ato legal notes

Chapter I: The 1999 Directions Hearing & “Was Exploded” Verbal Slips

The trial of Colin Dunstan was built upon a foundational, real-world event: the explosion of a package at the Canberra Mail Centre (the eleventh count on the indictment). The Crown utilized this detonation as its principal evidence of the “dangerousness” of Dunstan’s inert, symbolic hoax devices [548, 556]. However, the contemporaneous court transcripts expose a profound linguistic anomaly that completely uncovers the true nature of this event [548, 549]:

1. The Asymmetry of s 19 Charges: For Counts 1 through 10, the Crown paired each posting charge (s 85X) with a corresponding charge of attempting to cause grievous bodily harm (s 19) [550]. However, for the Mail Centre packet—the only item alleged to have actually exploded and injured a worker—the Crown conspicuously failed to lay a companion s 19 count [550, 551]. If the Crown genuinely believed the packet was a live, functioning weapon, this omission is legally and logically irreconcilable. The Crown used the “explosion” to prejudice the jury on the intent counts, while knowing they lacked the evidentiary foundation to charge intent on the exploded packet itself [551, 556].
2. The Mop Handle Ceiling Damage Explanation: To establish blast damage at the Mail Centre above the Dickson mailing bin, the prosecution presented photographs of a damaged ceiling tile [426, 428, 429]. Dunstan presented an alternative, non-explosive explanation obtained from a fellow detainee who had worked at the Mail Centre: maintenance staff had used a mop handle to lift the ceiling tile to relocate a copper water pipe [427, 428]. The “blast dent” adjacent to it was pre-existing damage caused when the pipe was originally installed [427]. The Dickson bin’s location directly beneath this pre-existing maintenance wear was a convenient coincidence exploited by the prosecution [429, 430].

Chapter II: The Anthony Crewes “Missing Parcel” & Evidentiary Evasion

Dunstan maintained before and during trial that the only uncorroborated packet he posted was addressed to Anthony Crewes at 3/88 Fergus Road, Queanbeyan [431, 529]. The prosecution, however, sought to force a geographical match with the Mail Centre fragments by alleging the item was addressed to a recipient, first in Dickson, then in Melba or, finally, in Ainslie [426, 432, 553]. The physical remnants, recovered files, and subsequent sworn statements completely debunk the Crown’s narrative [431, 432, 525]:

3. The Reactive Sweeney Affidavit (1 July 1999): Sworn just weeks after the May 1999 directions hearing and shortly before trial, Federal Agent Dennis Sweeney’s affidavit was prepared specifically to address Dunstan’s submission in May 1999 that the AFP had filmed and photographed the 22nd packet in a way that made the address illegible [424, 525, 526]. This detailed affidavit served as a defensive shield to answer Dunstan’s specific submissions regarding what had been photographed, proving that the state was actively reacting to the physical evidence gaps he exposed [525].
4. The Forensic Inference of State Silence: Despite possessing the swept-up address label fragments and full forensic laboratory capabilities, the AFP never produced any forensic document report to rebut Dunstan’s claim, also made in May 1999, that the 22nd packet was addressed to Anthony Crewes at Queanbeyan [432]. In litigation, the absence of rebuttal evidence uniquely within a party’s power to obtain supports the strong inference that an examination was indeed undertaken and it confirmed Dunstan’s claim [539].
5. The “QUEANBEYAN” Fragment Concession: Under cross-examination, Detective M.R. Johnsen conceded that recovered address label fragments swept from the Mail Centre floor bore text forming part of the word “QUEANBEYAN” (specifically “QUEAN…”) [433, 529]. He admitted that identifying Robyn Orr (Melba) as the recipient was merely an inaccurate “process of elimination” based on a seized list of names [433].
6. The Prosecutor’s Defensive Refusal: On 30 November 1999, when Dunstan explicitly invited Prosecutor Refshauge to inspect the physical label fragments showing the word “Queanbeyan,” the Prosecutor flatly refused, stating: “No, I don’t want to do that” [433, 554]. This defensive pivot represents a calculated evasion of forensic facts, violating the Crown’s strict minister-of-justice duty to present evidence impartially [554].

Chapter III: Mid-Trial Redefinitions (The “Substance” vs. “Device” Swap)

Dunstan’s primary scientific defense to the s 85X charges (knowingly causing to be carried by post an article containing a totally prohibited substance, namely an explosive) was built on an orthodox scientific distinction: unconfined commercial rifle propellant is a flammable substance that deflagrates (burns), not an explosive [540, 560]. It only explodes if confined inside a sealed container due to expanding pressure [540]. (By analogy, cooking an egg in a microwave may cause an explosion, but an egg is not an “explosive substance”) [540].

To prevent a scientific acquittal, the definition of “explosive” was altered on three separate occasions in the absence of the jury, each shift occurring immediately after evidence unhelpful to the prosecution was heard [525, 536]:

7. The Sentencing Paradox: Because the judge ruled the mechanical device served as the surrogate explosive, Dunstan’s defense was extinguished [538, 541]. His defense counsel conceded to the jury that the props of his defense had been “knocked away” [538]. In the final sentencing judgment (paragraphs 6 and 10), Justice Higgins failed to sentence on the actual indictment, substituting the word “substance” with “device” and asserting that Dunstan posted an “explosive device” [539]. Dunstan was sentenced for an offense structurally distinct from the charge the jury was impanelled to try [539].

Chapter IV: Lowering the Mental Burden & The Winchester Discrepancy

The judicial overreach extended beyond the physical definition of the explosive to the mental element of “knowingly” under s 85X [541, 542]:

8. Stripping “Knowingly” of Statutory Purpose: Dunstan argued he lacked the required mens rea because he intentionally configured the devices with flattened batteries and marginal igniters to ensure they were functionally inert hoaxes [531, 542]. In the absence of the jury, the trial judge neutralized this defense by ruling that “knowingly” applied solely to the physical act of committing the article to the post [542, 543]:

   “…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.” [543]

   This lower standard dictated that Dunstan was guilty of knowingly posting a prohibited explosive even if he held an honest, undisputed belief that the substance was entirely inert [543].
9. The Winchester 231 Propellant Discrepancy: Forensic analysis of the Mail Centre remnants identified traces of Winchester 231 pistol propellant [535]. Dunstan’s uncontradicted evidence was that he exclusively used rifle propellant [494, 535]. Critically, Winchester 231 was the specific, standard propellant utilized in the ammunition for Australian Federal Police handguns (.38 Smith & Wesson revolvers) [535]. This forensic inconsistency—strongly pointing to police contamination or external sourcing—was never properly explained or directed to the jury [494, 535].