Dunstan v The Queen [2001] FCA 147 (18 May 2001)

Last Updated: 21 May 2001

FEDERAL COURT OF AUSTRALIA

Dunstan v The Queen [2001] FCA 147

CRIMINAL LAW - Appeal against convictions on six counts of knowingly causing to be carried by post an article containing a totally prohibited substance (an explosive) and three counts of intentionally attempting to inflict grievous bodily harm on another person - At trial appellant admitted posting parcels with explosive devices to 28 persons but claimed that he had first flattened the batteries of the devices so they would not explode - Appellant contended that one parcel that did explode was posted by an unidentified stranger - Whether the verdicts were unsafe and unsatisfactory and/or unsupported by evidence - Whether the trial judge misdirected the jury - Whether the trial judge ought to have discharged the jury or directed an inquiry into the appellant's guilt - Alleged failure to call a material witness - Conduct at trial of appellant's legal representatives - Appeals dismissed.

Crimes Act 1914 (Cth) s 85X

Crimes Act 1900 (ACT) s 19

Evidence Act 1995 (Cth) ss 55, 56, 59, 60

COLIN GEORGE DUNSTAN v THE QUEEN

A 28 of 2000

WILCOX, SPENDER, BRANSON JJ

CANBERRA

18 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 28 of 2000

APPEALS AGAINST CONVICTION IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	COLIN GEORGE DUNSTAN APPELLANT
AND:	THE QUEEN RESPONDENT
JUDGE:	WILCOX, SPENDER, BRANSON JJ
DATE OF ORDER:	18 MAY 2001
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The appeals be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 28 of 2000

APPEALS AGAINST CONVICTION IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	COLIN GEORGE DUNSTAN APPELLANT
AND:	THE QUEEN RESPONDENT

JUDGE:	WILCOX, SPENDER, BRANSON JJ
DATE:	18 MAY 2001
PLACE:	CANBERRA

REASONS FOR JUDGMENT

THE COURT:

1 On 22 November 1999, Colin George Dunstan was arraigned on six counts of having 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). He was also arraigned on five counts of intentionally attempting to inflict grievous bodily harm on another person, contrary to s 19 of the Crimes Act 1900 (ACT). All charges were concerned with the period between 28 November 1998 and 4 December 1998, and alleged that the offences were committed at Canberra. Ten of the counts consisted of five pairs, one under s 85X of the Crimes Act 1914 (Cth) and the other under s 19 of the Crimes Act 1900 (ACT), in respect of devices which the Crown alleged had been sent to five persons, being Robert Webb, Michael Wellham, Deborah Tyler, Susan Walpole and Linda Higginson. The eleventh count under s 85X related to a device which exploded at the Canberra Mail Centre on the morning of 2 December 1998.

2 During the trial, Mr Dunstan admitted that he posted six devices, which were addressed to interstate addresses, on Monday 30 November 1998 at 4.20 pm at the Dickson Post Office, Canberra. He also gave evidence that he posted 22 parcels at 6 pm on Tuesday 1 December 1998 at the Canberra Mail Centre. Each of the devices constructed and posted by Mr Dunstan were of similar design. Attached to the outer wrapping of the device was a foil strip which formed part of a live circuit fuelled by a 12-volt battery. When the outer wrapping of the parcel was being removed the live circuit within the device would break, and power would then commence to flow (by way of a Darlington pair) activating the dormant circuit. Once the dormant circuit was activated, an electrical current would pass through a Christmas tree or fairy light filament implanted in the top of a soda siphon bulb filled with nitrocellulose powder and sealed with an epoxy resin. The Crown contended that Mr Dunstan intended that the filament would burn, producing enough heat to ignite the nitrocellulose powder. Because the nitrocellulose powder was confined in the sealed soda siphon bulb, the pressure that would be created would rupture the soda siphon bulb into a butterfly shape. The explosion would shatter the plastic computer diskette case in which the device was contained, sending the shattered components of the device and plastic case flying.

3 Some of the devices contained nails inserted into the soda siphon bulb. These, too, would be sent flying when the nitrocellulose powder was ignited.

4 Mr Dunstan had used components which he had purchased from various hardware and variety stores in the construction of the devices. Some device components were found at his residence at Palmerston. Also found were the remains of a device which Mr Dunstan had tested prior to posting any of the articles. A device similar to that posted was exploded within a cardboard box lined with extra cardboard. The explosion sent shards of plastic, the butterflied soda siphon and some of the components through the cardboard, which was pierced in many places and in some areas ruptured through more than one layer.

5 At about 12.15 am on 2 December 1998, Nelly Christina Campbell, a mail officer at the Canberra Mail Centre, was sorting "a whole heap of little white parcels that all looked the same, all nicely neatly typed", and in the process of tossing them into white plastic sorting bins one of them exploded. The only question asked by counsel for Mr Dunstan of Mrs Campbell was, "The noise you described as being similar to a large fire cracker, do you recall that?" Answer, "Yes". The importance of this observation lies in a submission by Mr Dunstan to this Court that while he had constructed and posted a total of 22 devices at Canberra, some unknown third party was the author of the device that exploded in the Canberra Mail Exchange on 2 December 1998. The proposition is that the "foreign" device, which exploded, was amongst the heap of parcels that Mr Dunstan had posted. As will be apparent no foundation for that submission was laid in the cross-examination of Mrs Campbell.

6 The eleven counts in the indictment were representative of the mailing out of a greater number of explosive devices prepared by Mr Dunstan. As the trial judge noted in his sentencing remarks:

"The addressees were all persons involved in a protracted dispute between the offender and Australian Taxation Office, concerning employment issues. Those issues had sparked a number of proceedings, discussions, representations and efforts at counselling."

7 The persons included a woman with whom Mr Dunstan had had a workplace affair in the early 1990s, co-workers at the Data Administration section of the Australian Taxation Office who had expressed adverse views of Mr Dunstan, his immediate superiors at the Australian Taxation Office, work managers who had rejected his workplace grievances, his superior officers at the Australian Taxation Office, persons involved in counselling in the workplace, persons involved in his dispute with the Child Support Agency, personnel at the Human Rights and Equal Opportunity Commission who had been involved with complaints that Mr Dunstan had made asserting sexual discrimination and harassment, as well as the lawyer from the Australian Government Solicitor who had appeared for the respondents in proceedings in the Federal Court which Mr Dunstan had initiated.

8 In respect of the ten charges relating to the five individual addressees representative of the class of actual addressees, the Crown alleged the despatch of an explosive device. The trial judge noted that it was not seriously disputed that the device was an explosive device or was a device that contained an explosive. The jury returned verdicts of guilty in respect of nine of the eleven counts in the indictment, the verdicts of not guilty being in respect of the counts alleging an intentional attempt to inflict grievous bodily harm on Susan Walpole and the count of intentionally attempting to inflict grievous bodily harm on Linda Higginson. In respect of the three counts under s 19 on which Mr Dunstan was convicted, he was sentenced to three years imprisonment, each to be cumulative upon the other.

9 In respect of each of the five counts contrary to s 85X, Mr Dunstan was sentenced to two years imprisonment to be concurrent with the earlier sentences and with each other, and on the count concerning the Canberra Mail Centre, he was sentenced to two years imprisonment to be cumulative on the other five s 85X convictions. The total period of imprisonment as a head sentence was nine years, and five years was fixed as the period before which he became eligible for parole. Both the head sentence and the non parole period were to commence on 26 May 1999.

10 There is no appeal against sentence by Mr Dunstan, but in respect of the nine counts on which he was convicted he appeals on eight grounds:

"1. That the verdicts of the jury are unsafe, unsatisfactory and dangerous and not supported by the evidence before the Court.

2. That the learned trial judge misdirected the jury or in the alternative it was not open for the jury to conclude on the evidence that at the time of the alleged offence:

a) the appellant knowingly posted a substance that was a totally prohibited substance.

b) That the posted substance was a totally prohibited substance.

c) The appellant knowingly posted explosive substances.

d) That the posted substance was an explosive.

3. That the learned trial judge misdirected the jury or in the alternative it was not open for the jury to conclude on the evidence that the appellant:

a) had the requisite intention, or

b) was guilty of committing the offence of attempt under section 19 of the Crimes Act 1900.

4. That the learned trial judge erred in not exercising his power under section 404 of the Crimes Act 1900 to discharge the jury from returning a verdict in respect to each offence under section 19 of the Crimes Act 1900 and recording a verdict of acquittal in respect to each such offence or in the alternative that the learned trial judge erred in not exercising his power under section 475 of the Crimes Act 1900 to direct an inquiry into the conviction of the appellant.

...

5. That the learned trial judge misdirected the jury on the evidence of defence electronics expert Mr Marshall Shepard, directing the jury incorrectly that Mr Shepard's evidence was other than Mr Shepard's evidence showing that every battery he tested produced results consistent with the appellant having intentionally drained every battery before posting.

6. In relation to the offence under section 85X of the Crimes Act 1914 arising from the explosion at the Canberra Mail Centre, the appellant was denied the defence reasonably open to him that an unidentified third party was responsible for manufacturing and posting the item that exploded at the Canberra Mail Centre on 2 December 1998. Evidence in the possession of the prosecution raises a reasonable doubt as to the identity of the party responsible for the explosion at the Canberra Mail Centre. The following are relevant particulars:

a) The prosecution withholding until after the trial commenced, evidence that pistol ammunition propellant, that was not available to the appellant, caused the explosion at the Canberra Mail Centre.

b) The prosecution and the Legal Aid Office counsel failing to question Australia Post employee Ronald Neil Smith over his written statement that an unidentified male caller made a long-distance phone call to him at the Canberra Mail Centre at about 3:30am on Wednesday, 2 December 1998, claiming knowledge of a female person involved in sending an explosive to the Canberra Mail Centre. At this time the appellant was asleep at the Curtin Motel in Canberra, and had not at any time conveyed information of his actions to any other person.

c) The prosecution failing to call Inspector Hazel as a witness, disregarding a request that he be called - Inspector Hazel having also spoken to the unidentified male caller who telephoned Ronald Neil Smith of Australia Post.

d) The prosecution withholding the evidence of Australian Federal Police Forensic Scientist Mr David Royds, who concluded, on or about 1 March 1999, that the epoxy compound used as a `plug' in the device that exploded at the Canberra Mail Centre was neither the same product nor from the same container used by the appellant in every item he manufactured, finding instead: `[It] is chemically similar but not from the same source [SELLEYS `STEEL KNEAD-IT']. ...Another produce `POLYFILLA PAINTERS PUTTY' contains glass microspheres.'

e) The prosecution withholding the evidence of Australian Federal Police Forensic Scientist Mr David Royds - his drawing on or about 1 March 1999 of the `plug' used in the device that exploded at the Canberra Mail Centre - this drawing showing it to be manufactured differently to those made by the appellant.

7. The appellant was denied a fair trial on the following basis -

a) the trial though complex was expedited.

b) he did not have sufficient time to prepare his defence.

c) the Crown failed to call material witnesses.

d) the Crown concealed material evidence from the jury and court.

e) the Crown failed to provide access by a defence expert for more than 3 months to exhibits, denying the appellant sufficient time to prepare and present his defence.

f) the Crown presented evidence knowing it to be wrong and likely to mislead.

g) the Crown conducted itself in a way which might improperly influence the jury.

8. There was an actual miscarriage of justice on the following basis -

a) apprehended bias on the part of the Legal Aid Office (ACT) and/or counsel instructed by the Legal Aid Office (ACT) for the appellant's defence.

b) the refusal by the Legal Aid Office (ACT) and/or counsel to provide legal advice to the appellant.

c) the refusal by the Legal Aid Office (ACT) and/or counsel to accept instructions from the appellant.

d) the refusal by the Legal Aid Office (ACT) and/or counsel to provide evidence to the appellant.

e) the decision of the learned judge to reject on 30 March 2000 an application by Mr Perkins appearing for the appellant to adjourn sentencing proceedings.

11 The ground of "apprehended bias" of the appellant's legal representative was developed as a claim of incompetency.

12 Mr Dunstan argued his appeal with thoroughness himself, having dismissed his legal representatives for the appeal. His appeal against conviction had been scheduled to be heard by a Full Court of the Federal Court on Thursday 17 August 2000. He had been unrepresented up until the morning of the hearing of the appeal, when counsel appeared on his behalf. An adjournment was sought and obtained so that the new legal representatives could prepare Mr Dunstan's appeal. It was some three days later that Mr Dunstan dismissed his legal representatives. The submissions of Mr Dunstan in arguing the appeal before us were extremely comprehensive, but in many respects manifested a self-absorption close to obsession on the correctness of his contentions, even though in significant respects those contentions were inconsistent or quite incredible.

13 On the appeal, in answer to questioning by Branson J, Mr Dunstan made it plain that he wanted to advance the case that the device that exploded at the Canberra Mail Centre was not posted by him but had been sent by somebody else. He alleges that one aspect of the incompetency of counsel at his trial was counsel's failure to present evidence concerning this contention.

14 The device first discovered was identified at about 1.00 pm on 1 December 1998 by Mr Phillip Burns, the husband of the addressee Ms Moira Scolay. That device had a return address on it, Ms L. Higginson, at an address in the ACT.

15 Ms Higginson was an addressee of one of the 22 Canberra Mail Exchange devices. Between early 1992 and October 1993, Ms Higginson was the Equal Opportunity Advisor for the National Office of the Australian Taxation Office. In her evidence she said that her involvement with Colin Dunstan was "purely as someone who sat and listened to him tell his side of the story. And during those conversations he would talk to me about actions he wished to take against [a female officer of the Australian Taxation Office] in regards to the work conflict that existed between the two of them." After she resigned from her position as Equal Opportunity Advisor in late 1993, but before she actually moved, she said in her evidence that Mr Dunstan had said to her from the doorway of her office:

"I just want you to know that I will never forget you and what you have done to me."

She was not cross-examined about this statement.

16 Given the similarity between the device that exploded and the other 27 devices, for the jury to have entertained a reasonable doubt about Mr Dunstan's having posted the device that exploded it would have been necessary for the jury to have been unable to reject as merely fanciful both of the following possibilities - which would seem to be the only alternative explanations logically available: that the events were the result of an extraordinary coincidence of design, manufacture and timing, or that between the time that Mr Dunstan's first device was discovered and the explosion of the device at about 12.15 am on 2 December 1998, an unknown third party took possession of one of the appellant's devices, or obtained information about the device's construction and components, obtained the same or similar components to those used by the appellant, built the device, packaged it in a similar way to the 21 unexploded devices which were photographed intact at the Canberra Mail Centre, and caused it to be posted at a time and place which allowed it to be sorted at the Canberra Mail Centre together with Mr Dunstan's devices. Further, that the unidentified third person, on either possibility, had the knowledge necessary to allow him or her to put on the device which did in fact explode one of the return addresses which Mr Dunstan had employed on his devices, being that of Mr Daniel O'Donnell, the son of another of his intended recipients.

17 Neither of these improbable propositions was advanced by counsel for the defence.

18 However, the improbability of the contention of Mr Dunstan that an unknown third party was responsible for the device that exploded in the Canberra Mail Centre is not countered only by the high improbability of that being possible, nor by the high improbability that it could only have found its way into the heap of the appellant's devices just before each of them was sorted. It is countered expressly by evidence concerning the device that exploded at the Canberra Mail Centre.

19 In the course of his submissions to this Court, Mr Dunstan accepted that 21 of the 22 devices posted by him on 2 December were photographed intact at the Canberra Mail Exchange. The report of Sergeant D.J. Sweeney of 22 July 1999, which was Exhibit 57 at the trial, describes those packages as being "neatly wrapped with white paper and all bore 2 Australian stamps to the value of $2.30 (1 x $2.00 and 1 x 30 cents). All packages had been franked, the franking details showing `Canberra Mail Centre.'" The addressee details for each of the 21 unexploded devices with the name, street address, suburb, state and postcode are detailed by Detective Sergeant Sweeney in Exhibit 57, and photographs of those 21 devices appear in Exhibit 2 on the trial. A list of addressees is to be found in photograph 22 of Exhibit 25. Number 7 on that list is an A. Cruise, and in handwriting, the typed address has been altered to read "3/88 Fergus Rd, Queanbeyan, New South Wales 2620".

20 There was in evidence, as Exhibit 47 on his trial, four plastic containers containing what was said to be the debris of the device that exploded in the Canberra Mail Centre shortly after midnight on 2 December 1998. Two of those fragments of wrapping paper in Exhibit 47 are adjoining, and when placed together, reveal part of an address justified on the right-hand side of the wrapping paper, as were the addresses on the 21 unexploded devices. The part of the address commences on the first line with a capital A, and then the rest is missing. The second line directly underneath commences with "3/8" and the rest of the fragment is missing; and then immediately underneath on the third line, one can decipher "Quea". The return address, which is on the rear of the wrapping paper, as with all the other packages, appears in the fragments in Exhibit 47 as "D. O'Donnell" with the same address as on the other devices which have "D. O'Donnell" as the return addressee.

21 In the course of Mr Dunstan's submissions to this Court, he was asked by Wilcox J:

"...Is there not evidence from the mail sorter, was there not evidence that she threw the parcel into the bin and there was a loud bang and there was paper and plastic everywhere?"

to which Mr Dunstan replied:

"The evidence was that she threw a parcel addressed to Dickson. That is a photo of the exhibit of the parcel that is supposed to have exploded and the word, the first four or five letters of the word Queanbeyan are clearly visible. So, yes, she did throw a parcel. She said it was addressed to Dickson. The parcel that's - of mine that is said to have exploded is addressed to Queanbeyan.

SPENDER J: This is Mr Crew's [sic Cruise's] parcel, is it not?

MR DUNSTAN: Correct."

And later:

"SPENDER J: ... As I understand it, exhibit 47 you say is the debris after whatever happened to Mr Dickinson's device?

MR DUNSTAN: Mr Cruise's device.

SPENDER J: Mr Cruise's device, I'm sorry, yes."

22 This concession is consistent with evidence given by Mr Dunstan in cross-examination on his trial. It is helpful to set out three passages in some detail.

23 When Mr Dunstan was cross-examined by Mr Refshauge QC for the prosecution, he was asked:

"Well, you know how many parcels you posted?---Correct.

How many did you post?---Six on Monday at 4.20 pm, 30 November.

Yes?---And 22 at approximately 6 pm on Tuesday, 1 December.

So there should have been 22 parcels in the Canberra Mail Exchange? On Tuesday night?

On Tuesday night?---Correct.

Yes. 21 were photographed intact?---Well, I have seen photographs of 21 photographed intact. Whether 22 were photographed intact is something I cannot comment upon.

21 were photographed intact, weren't they?---I have seen photographs of 21 intact.

And to whom was the 22^nd, that you posted, addressed to?---A Mr Anthony Cruise of Fergus Road , Queanbeyan."

And a short time later, Mr Refshauge said:

"...I suggest to you that the package was addressed to Mr Cruise in Ainslie?---Well, if you look at the fragments returned from the post office, you find that - - -

No, I don't want to do that. I just want to ask you - - -?---Oh no, he lives in Queanbeyan.

I'm saying to you, that it was addressed to Mr Cruise in Ainslie?---No. It's [in] Queanbeyan, it's clearly visible on the packet when you look at the fragments of the address. The phrase "Queanbeyan" is on one of the fragments of that packet."

And later:

"...I think you said that the pieces of paper that were gathered after in respect of that device showed Queanbeyan as the address?---Correct.

Which means, as I understand it, that if it was one of your devices it would be the Cruise device?---Correct.

And the Cruise device was not photographed in any of the photographs that were part of exhibit 2?---Correct."

24 It is now necessary to consider, in turn, the grounds for appeal.

Verdicts unsafe, unsatisfactory and dangerous and not supported by evidence before the Court

25 In the course of summing up to the jury the trial judge noted:

"A lot of the evidence given, as you will appreciate, has lost any significance that might otherwise have been thought to have by the way in which the case has now been conducted. I remind you that it is no longer an issue, for instance, that the devices were in fact constructed by Mr Dunstan and were in fact committed to the post by him. So issues that might otherwise have been necessary to explore in relation to that are now only of academic interest. Also is the fact that he had, as he conceded in his evidence, grievances against the persons to whom these devices were addressed. All of those issues are no longer of any great significance because they are not seriously disputed."

26 Mr Brewster, defence counsel for Mr Dunstan, in the course of his address to the jury, identified:

"...the substance of the defence case, that is, that my client flattened these batteries obviously that is a vital issue in the case."

And later:

"The main defence, I use the word `defence', although as Mr Refshauge pointed out that the accused does not have to actually raise a defence to satisfy you, he just has to put a doubt in your mind. The main defence is, of course, that the accused did not intend to inflict grievous bodily harm at all on anyone, and took steps to avoid that occurrence."

27 In the course of summing up to the jury, the trial judge said:

"...I make the point at the outset that the mere fact, if you come to this view that you do not accept what Mr Dunstan told you in any particular respect, does not relieve you of the responsibility of considering the Crown case. You still have to be satisfied, even if you thought he was completely unreliable from start to finish. You could disregard everything he said. You still have the obligation to determine whether the Crown has satisfied you beyond reasonable doubt that (1), the devices were constructed with a view to them exploding, and (2), that he expected that they would - he believed that they would, not just might, but would cause grievous bodily harm.

28 In his sentencing remarks, the primary judge noted:

"The facts of this matter were largely uncontested, the major areas of controversy related to the assertions by the offender that in constructing various devices, some later delivered to addressees one of which exploded in transit, he had not only not intended them to explode, thus denying intent to injure any addressee, but also that he had, by flattening the batteries and using igniters that were marginal, ensured no device would explode."

29 The primary judge also noted in his sentencing remarks that:

"His claim that he did not intend to injure those five addressees was accepted as to two of them, but rejected as to three of them."

30 Mr Dunstan contends that the trial judge was of the view that Mr Dunstan's intention at the time was never to hurt people, and that it was therefore unsafe and dangerous for the jury to reach a contrary view in three of the five cases. He relies on an exchange that occurred in the course of sentencing submissions. Mr Perkins then appearing for Mr Dunstan submitted, "His intent at the time was never to hurt people", and the following exchange occurred:

"HIS HONOUR: Well that is a problem that I have, Mr Perkins. That was certainly his intention, I accept that, but the jury's verdict at least after three of the five persons in respect of whom he was charged with harbouring an intent to cause grievous bodily harm, the jury verdict is that as to three of them he did harbor such an intent.

MR PERKINS: Again, your Honour, I am loathed to go into territory which might be subject to an appeal but there was the degree of intent - - -

HIS HONOUR: Well of course it can be the subject of an appeal, I appreciate that, but you have to understand that I have to proceed on the assumption, whether I concur with it or not, that he did have such an intent."

31 It is likely that the statement, "That was certainly his intention, I accept that" is not an expression of his Honour's conclusion, but recording that that was the claim by Mr Dunstan. There is a passage in his Honour's sentencing remarks which bears on this aspect of the matter. The trial judge said:

"The devices were capable of exploding as the evidence clearly indicated. Even if, as the offender claimed, he had rendered explosion improbable, he lacked the expertise to ensure that.

...

But of course, there is more; in respect of three persons, the jury has found that the offender expressly intended grievous bodily harm. The process of reasoning leading to that finding, but excluding two others in no apparently different relationship, is not entirely clear to me. It may have turned on whether the presence of flattened rather than functional batteries was established. Whatever the reason explaining the distinction drawn by the jury, it was the tribunal of fact.

32 The material as a whole does not support the view that the trial judge was of the opinion that Mr Dunstan did not intend to harm anybody. However, in any event, even if that be the trial judge's opinion, that opinion is irrelevant.

33 The question is whether the verdicts of conviction based on the finding beyond reasonable doubt of intention to cause grievous bodily harm can safely stand with the jury's verdicts of acquittal in two similar counts. The task for a court of criminal appeal was referred to by M v The Queen [1994] HCA 63; (1994) 181 CLR 487 where Mason CJ, Deane, Dawson and Toohey JJ said at 493:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. (Whitehorn v The Queen (1983) 152 CLR at p 686; Chamberlain v The Queen [No. 2] (1984) 153 CLR at p 532; Knight v The Queen [1992] HCA 56; (1992), 175 CLR 495 at pp 504-505, 511). But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (Chamberlain v The Queen [No. 2] (1984) 153 CLR at p 621)."

And later:

"If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen [No. 2] (1984) 153 CLR at pp 618-619; Chidiac v The Queen [1991] HCA 4; (1991) 171 CLR 432 at pp 443-444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (1991) 171 CLR at pp 443, 451, 458, 461-462)."

34 In respect of the three s 19 counts on which the jury convicted, there was direct evidence on behalf of the prosecution that the devices were viable when delivered. Both the Wellham and Webb devices were addressed to addresses in Red Hill in the ACT, and the device to Deborah Tyler was addressed to the suburb of Hughes in the ACT. Each of the three devices on which the jury was satisfied of an intention to cause grievous bodily harm were part of the 22 that had been posted by Mr Dunstan at 6 pm on the evening of 1 December 1998. It was open to the jury to conclude that one of those 22 devices, being that addressed to Mr A. Cruise of Queanbeyan had exploded in the mail exchange at 12.15 am on 2 December 1998. While there was at the trial and on the appeal criticism of the correctness of the scientific evidence led for the prosecution, it was quite open to the jury to conclude that as the result of the detailed examination by Sergeant Sweeney and others, the batteries had not been "pre-flattened" as claimed by Mr Dunstan, and that the devices would be "viable" for 48 hours after they had been assembled.

35 There was evidence before the jury from Mr Marshall Shepard, an expert for the defence. An earlier report of 15 November 1999 included the following observations:

"I would guess that had these 13 devices been actual letter bombs, many would have been duds, although some may have ignited. Ignition might have occurred in the mail (due to unreliable connections), or upon opening."

36 In that report he expressed the conclusion that:

The ignition circuits used in the letter bombs posted by Mr Dunstan are of a design and construction which makes them inherently unreliable. However, as ignition is still a distinct possibility, a high level of risk would be associated with handling or opening these devices.

...

Resistance measurements on batteries removed from actual devices within eight days of posting are not inconsistent with Mr Dunstan's assertion that he discharged the batteries prior to assembly. If such a procedure was carried out, the probability of ignition would have been further reduced, but not eliminated."

37 In Mr Shepard's later report of 25 November 1999 he said:

"ESR measurements indicate that the batteries in the four Dunstan devices rendered safe on or before day eight had probably experienced more discharge than can be accounted for solely by the 12uA load presented by the IMY resistor. Such an additional current drain is consistent with Mr Dunstan's assertion that he discharged the batteries prior to assembly."

38 It was clearly open to conclude that the 22 devices at the Canberra Mail Centre were "viable" devices in respect of which the batteries had not been "pre-flattened". This conclusion was based on tests performed on some of the actual devices and the view expressed that each of the devices was identical.

39 In respect of the count concerning the device posted to Susan Walpole, that device was one of six posted to interstate addresses. Ms Walpole was the Commissioner with the Human Rights and Equal Opportunity Commission who had been concerned with the complaints by Mr Dunstan of sexual discrimination and harassment. The device posted to her had been destroyed by a police officer shortly after it had been delivered. It was detonated in the front yard of her home. The consequence of the destruction was that it was not able to be tested, nor would one be able to say that it was the same as or different from the 22 devices that had been received at the mail centre.

40 As to the verdict of acquittal concerning the device which was in fact one of the Canberra Mail Centre devices that had been posted to Linda Higginson, in the course of his submissions to this Court Mr Dunstan, correctly in our view, accepted that there were features which provided a rational basis on which the jury might entertain a reasonable doubt about Mr Dunstan's intention in respect of the Higginson device:

"MR DUNSTAN: And as far as I can see from the evidence the distinguishing features of the Higginson device is I think the battery was removed so long after, like six months after the event, that no inference could be drawn as to the state of the battery at the time of posting. Another feature of that device was that it was found that the igniter had a broken - the light globe filament was broken, so the battery would be irrelevant.

SPENDER J: We do not know whether that was before or after. Yes.

MR DUNSTAN: And those were the two, as far as I can tell, distinguishing features of the evidence.

SPENDER J: Those features that you just referred to provide a rational basis on which the jury might entertain a reasonable doubt about your intent in respect of the Higginson device.

MR DUNSTAN: The filament and the battery.

SPENDER J: And those considerations did not apply in relation to the Webb, Wellham and Tyler devices?

MR DUNSTAN: No, your Honour."

41 For the reasons expressed above, the verdicts of the jury were not unsafe, unsatisfactory or dangerous and nor were they not supported by the evidence before them. Those reasons also dispose of the alternative contention in ground 3 that it was not open for the jury to conclude on the evidence that Mr Dunstan had the requisite intention, or was guilty of committing the offence under s 19 of the Crimes Act 1900 (ACT). In respect of those five counts, the trial judge told the jury:

"I remind you, you need to be satisfied beyond reasonable doubt of the relevant elements of that charge. Again, did the accused intend (1) that the devices be delivered to the named recipients; (2) that the named recipients open those devices; further, did the accused intend that when that occurred there would be an explosion, not just advert to the possibility or likelihood of it; and (3), did he advert to and intend that grievous bodily harm should result. It is only if you are satisfied of each of those various factors beyond reasonable doubt that you could return a verdict of guilty in relation to the [section 19] counts.

Misdirection of the jury

42 Prior to giving that direction the trial judge repeated, in extenso, the submissions made by counsel for Mr Dunstan concerning the evidence pointing against the Crown being able to establish beyond reasonable doubt that the devices were intended by Mr Dunstan to explode. Having regard to the trial judge's charge to the jury concerning the central question of intention and the contentions on Mr Dunstan's behalf in that regard, it is simply not open to contend that there was any misdirection by the trial judge. Nor was there an absence of evidence on which the jury might find the necessary intention required under s 19 of the Crimes Act 1900.

43 There was no misdirection by the trial judge concerning the evidence of the defence expert, Mr Marshall Shepard, as contended for in ground 5. The trial judge's directions were unexceptionable. It is a relevant circumstance that experienced counsel who appeared for Mr Dunstan made no challenge to their adequacy or accuracy.

Failure to discharge the jury or direct an inquiry

44 As to ground 4, s 404 of the Crimes Act 1900 (ACT) provides:

"(1) Where, on the trial of a person for an offence against this Act or any other law of the Territory, the Judge would have power to direct the jury to return a verdict of acquittal in respect of that offence, the Judge may, instead of giving such a direction, make an order:

(a) discharging the jury from returning a verdict in respect of that offence; and

(b) recording a verdict of acquittal in respect of that offence.

(2) An order under subsection (1) shall, for all purposes, have the same effect as a verdict of acquittal returned by a jury."

45 For the reasons earlier expressed, there was no occasion for the trial judge to record a verdict of acquittal in respect of the s 19 offences, as there was evidence before the jury on which they might properly return a verdict of guilty in respect of the counts on which they returned guilty verdicts. The contention that the trial judge should have exercised the power conferred by s 404 is really an alternative expression of the earlier grounds.

46 As to s 475 of the Crimes Act 1900, the trial judge received an application that he direct an inquiry into a doubt or question as to the guilt of Mr Dunstan. The trial judge has made no order on that application, and so there is no order or refusal of order from which an appeal might be brought. Section 475 of the Crimes Act 1900 is facultative, and conduct concerning that section does not lie as a basis on which to challenge a conviction by a jury for an offence.

47 As to whether each of the substances posted by Mr Dunstan was a "totally prohibited substance" (ground 2(b)) or was an "explosive" (ground 2(d)), s 85X of the Crimes Act 1914 (Cth) relevantly provides:

"(1) For the purposes of this section there are 3 categories of dangerous or deleterious substances or things. They are:

(a) totally prohibited substances or things - this category consists of:

(i) explosives; and

(ii) dangerous or deleterious substances or things that the regulations say must not, without exception, be carried by post; and ...

(c) ...

(2) A person must not knowingly or recklessly cause to be carried by post an article that consists of, encloses or contains a totally prohibited substance or thing.

Penalty: Imprisonment for 10 years.

..."

Section 85X applies to the Australian Capital Territory, by virtue of s 3A of that Act.

48 After the opening for the Crown, the trial judge told the members of the jury:

"I just want to tell you ... something about the issues in the case."

His Honour then gave an explanation of the term "grievous bodily harm" and then said:

"The other matter is an explosive. That is not defined for the purposes of this legislation in any particular way, so you just use your own common sense as to what you think an explosive is, and I guess that should not be too difficult."

49 In his oral evidence Mr Royds, a forensic scientist, was asked:

"Sir, what can you say about nitro-cellulose?---Nitrocellulose is the major component in propellants. It is an explosive. It's classified under the United Nations Regulations as 1.1 and it is - as I say, it is an explosive that's used to propel the bullet down the barrel of a rifle."

50 In his summing up, the trial judge told the jury:

"The final element is that the article in question contained a totally prohibited substance, namely an explosive. Now for the purpose of what `an explosive' is, this is a question of law. An explosive is an article such as nitrocellulose that is capable of exploding. It might also be said that the way in which these devices were packed, irrespective of whether they had an ignition circuit, they were capable of causing an explosion. They are what you would, no doubt, expect me to tell you is an explosive. If your commonsense tells you that it looks like an explosive to you, you would be absolutely right.

So on those charges the counts which allege that Mr Dunstan caused to be carried by post an article containing an explosive, all elements of those charges, each of them, that is the odd numbered counts, have, in effect, been conceded, but it is still a judgment that you have to make. You have to decide what your verdict is as to that."

51 The reference in that passage to "the odd-numbered counts" having, "in effect, been conceded" is a reference to the submission by counsel for Mr Dunstan in his address to the jury, where he said concerning the s 85X counts:

"You will recall that on the indictment the first charge is that Mr Dunstan knowingly caused to be carried by post an article that contained a totally prohibited substance, namely an explosive. That is repeated in the 3^rd, 5^th, 7^th and the 11^th counts. He pleaded not guilty to that. You may have wondered why. I can tell you that the defence to that was a purely legal one. I need not bore you with the details. It goes to the precise definition of explosive, or the meaning of "explosive" within the legislation. It was a legal argument. You will recall that some time during the trial, I cannot remember when it was, you were given a long lunch hour while we argued questions of law - I argued questions of law. I lost. I am bound by his Honour's ruling in that respect. That really knocked away the props of any defence to that charge and, I have to tell you, ladies and gentlemen, sadly for my client, that there is actually nothing I can say to you about the 1^st, 3^rd et cetera counts."

52 The legal argument to which Mr Dunstan's counsel referred in that passage refers to submissions during the trial made by both prosecution and defence counsel in the absence of the jury concerning the meaning of "explosive" within s 85X. The trial judge ruled, after hearing those submissions, as follows:

"The submission is that the term `explosive' should be confined in its meaning to something which of itself explodes. The first question is what does it mean to say that a substance explodes. It is true that if the gun or the gunshot propellant nitro-cellulose, said to be the material within these devices, has some ignition applied to it it will, unless confined, merely burn and only if confined will create what everyone would concede was an explosion.

It was confined, according to the evidence, in each of these devices. As well there was, for what it is worth, a system of ignition which was attached to it. The question then is whether that would be sufficient to define that object as an explosive and then with or without the accompaniment of what I call the soda bulb. In my view either would be an explosive. Taking the definition adopted by Dowsett J [in Dyno Nobel Asia Pacific Ltd v Orica Australia Pty Ltd [1999] FCA 1369 at [4]]

`An explosive is a substance which undergoes a rapid chemical change on being heated or shocked, producing gas. The volume of gas produced is relatively large compared to the volume of the original explosive. When detonation occurs in a confined space, the gas creates great pressure.'

Now while it may be the case that to send a sachet of nitro-cellulose through the post would be to create a very low risk of there being an explosion nevertheless is something which if it becomes confined and then ignited might then create an explosion and if you ask the question what then was the explosive, even absent of definition such as I have mentioned, you would say the nitro-cellulose.

It seems that the definition contained in the Crimes Act 1900 of the Australian Capital Territory, section 93 is, in part at least, apt for present purposes, which I accept the object is to find the natural and ordinary meaning of the word `explosive', but there it is defined as meaning `a substance or article that is manufactured for the purpose of producing an explosion' and nitrocellulose, with or without the accompaniment of a soda bulb in which it is contained would seem to conform to that definition.

I would therefore find that the jury would be entitled to infer, from the evidence given in this case, there was nitrocellulose within these devices, that the nitrocellulose was an explosive and that in any event, as it was configured within the device, the device itself was an explosive."

53 Taking the matters as a whole, the trial judge did not misdirect the jury in his directions as to what an explosive was and, in our opinion, it was open for the jury to conclude on the evidence that what Mr Dunstan had posted was "an article that contained a totally prohibited substance, namely an explosive", as the five s 85X counts alleged.

Defence of unidentified third party

54 As to ground 6, counsel for Mr Dunstan did not contend that the device which exploded at the Canberra Mail Exchange had not been posted by Mr Dunstan. The relevance of this to the ground alleging the competency of his legal representatives will be considered later, but this contention is not available to be argued on this appeal independently of its connection with whether the conduct of his counsel caused a miscarriage of justice.

55 The complaints that are referred to in ground 6(a), (d) and (e) relates to the evidence of a forensic scientist, Mr David Royds. His report was presented to the defence well before the trial. The contentions by Mr Dunstan in respect of Mr Royds' evidence are really directed at the contents of his working notes, which were obtained by Mr Dunstan on subpoena subsequent to the trial. Mr Dunstan has from these notes constructed an argument to the effect that the conclusion of Mr Royds was that pistol propellant caused the explosion at the Canberra Mail Exchange, and that the epoxy compound used to seal the soda siphon in the device which exploded at the Mail Exchange was not the same as that used in every other device manufactured by the appellant. Both these propositions are directed to establishing the contention that some third party was responsible for the device which exploded at the Canberra Mail Exchange. His contention is that he was denied the opportunity to put forward that contention at trial.

56 The short answer is that he was not denied that opportunity at the trial.

57 In any event, the argument based by Mr Dunstan on the notes of Mr Royds which he obtained subsequent to the trial misconceives the conclusions of Mr Royds. In respect of the powder residue found at the Canberra Mail Exchange, Mr Royds' conclusion in his report was:

"Their overall appearance was in every respect similar to Winchester brand propellant particles."

Mr Royds reported that "samples of firearm propellant from known sources were obtained from the Australian Federal Police Armoury for comparison. These included:

...Winchester 231 ...Winchester 540."

58 Mr Royds also concluded that the particles found in the rear boot of Mr Dunstan's car appeared similar to those found in the residue of the exploded device in the Canberra Mail Exchange. A fair reading of his analyses indicates that he was not concerned to determine the exact brand of propellant used. Mr Dunstan, in evidence, said that he had access only to rifle ammunition. Winchester 231 powder is a pistol propellant used in hand guns. Whether the jury accepted his denial of access to a pistol propellant was of course a matter for the jury, as was the question of whether Mr Royds' evidence was that the propellant of the Canberra Mail Exchange device that exploded was Winchester 231. However, the argument which Mr Dunstan made to this Court concerning the propellant in the device which exploded at the Canberra Mail Exchange and the propellants to which he had access was a line of argument presented at his trial.

59 In relation to the epoxy resin (which is also relevant to ground 7(d)), the report of Mr Royds in relation to the "plug from device recovered from the mail centre" was that it bore a "strong visual similarity" to the plug from the device which was sent to Waitara (which it is not disputed was a device which Mr Dunstan posted), and further, that the plugs from those two devices were "made of an epoxy putty such as [Selleys `Knead-it'] or another brand with similar composition". The short point is that at no stage, either in his working notes (which were not in the hands of either party prior to trial) nor in his report that was in evidence, did Mr Royds advance any claim as to which product the plug from the Canberra Mail Exchange was made of.

60 Not only was Mr Dunstan not denied the opportunity of arguing at his trial the improbable hypothesis that an unknown third party had mailed the device which exploded at the Canberra Mail Exchange, (an hypothesis inconsistent with Mr Dunstan's assertion that the exploded device was one which he had posted to Mr Cruise of Queanbeyan), but the factual framework supporting this contention is based on a misconception of the conclusions of Mr David Royds.

Grounds 6(b) and (c) and 7(c) and (d): failure to call Superintendent Hazell

61 These grounds relate to a telephone call which a witness, Mr Ron Smith, had said in a statement to police that he had received at about 2.30 or 3.30 am at the Mail Exchange on 2 December 1998 from a person who identified himself as George, and stated a family name that Mr Smith did not catch . This telephone call was not canvassed in evidence. The statement of Mr Smith includes the following passage:

"I can't remember the exact wording of the conversation but it was something very similar to the following:

I said; Canberra Mail Centre, Ron Smith can I help you?

He said; I heard you had an explosion at Canberra Mail Centre.

I said; We have had an incident but it was under investigation by the Police and I can't give you any further information.

He said; I have had a phone call from a woman who said she had sent bombs to my work and she hoped it would injure a lot of people.

I said; Could you hold on, until I find the Policeman in charge of the investigation.

I then went and found Superintendent Geoff Hazel of the Australian Federal Police. I told him about the phone call. I then gave the phone to him and I heard him speaking to the person on the phone. I remember that Superintendent Hazell advised the caller to contact the NSW Police Service."

62 The witness statement of Superintendent Hazell does not refer to any telephone call received by Mr Ron Smith. Superintendent Hazell was not called at the trial, after an indication by counsel for Mr Dunstan that Superintendent Hazell would not be required to give evidence.

63 For evidence, given by either Mr Smith or Superintendent Hazell, that a person had called the Canberra Mail Centre and asserted that he had received a telephone call from a woman in which she had said that she had sent bombs to the caller's place of work to have been admissible in Mr Dunstan's trial, it would first have had to pass the test of relevance contained in s 55(1) of the Evidence Act 1995 (Cth) ("the Evidence Act") (see s 56 of the Evidence Act). That test requires a positive answer to the question whether the evidence, if accepted, could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding. The relevant fact in issue would presumably have been the identity of the person who caused to be carried by post the device which exploded in the Canberra Mail Centre. It might be thought that the probative value of the evidence concerning the telephone call, even if accepted, would in all of the circumstances have been slight. However, we are not prepared to say that it could not rationally have affected the jury's assessment of the probability of Mr Dunstan's having caused the device to be carried by post.

64 However, the evidence would have been evidence of a representation made otherwise than in the course of giving evidence at Mr Dunstan's trial. It would thus have been evidence of a "previous representation" within the meaning of s 59(1) of the Evidence Act (see the definition of "previous representation" in the Dictionary to the Evidence Act). Subject to the exceptions to the hearsay rule contained in the Evidence Act, the evidence would not have been admissible to prove that a woman had confessed to sending bombs (s 59(1) of the Evidence Act).

65 Section 60 of the Evidence Act provides an exception to the hearsay rule where evidence of a previous representation is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation. However, the evidence concerning the telephone call made by "George" had no relevance other than as proof of the fact intended to be asserted by the caller who gave his given name as "George". For this reason it would not have fallen within the exception contained in s 60 of the Evidence Act. Nor would the evidence have been, within the meaning of the Evidence Act, a previous representation that was made by a person who had personal knowledge of the fact asserted, namely that a woman had sent bombs (ie it was not "first-hand" hearsay). It would not, therefore, have fallen within the exception to the hearsay rule contained in s 65 of the Evidence Act (see s 62 of the Evidence Act). Nor would the evidence have fallen within any of the exceptions to the hearsay rule contained in Division 3 of Part 3.2 of the Evidence Act.

66 That is, neither evidence by Mr Smith nor evidence by Superintendent Hazell about the telephone conversation could have been adduced by the prosecution in Mr Dunstan's trial. Assuming, without deciding, that it would have been open to defence counsel to raise in cross-examination of prosecution witnesses the issue of the telephone conversation, there were sound reasons why competent defence counsel might have been reluctant to do so. The area of evidence was pregnant with prejudice to Mr Dunstan as a possible inference was that the caller was Mr Dunstan seeking to draw attention away from himself.

Denial of fair trial

67 As to ground 7, that Mr Dunstan was denied a fair trial on the bases there set out, many of those matters have already been dealt with. As to the complaint that the trial was "expedited" and that Mr Dunstan did not have sufficient time to prepare his defence, referred in 7(a), (b) and (e), it is necessary to view the complaints against the chronology of material events provided to this court by Mr Dunstan. Before 1 April 1999 most of the evidence had been served, except for scientific evidence. Mr Royds' report was served on 20 April 1999, and Mr Dunstan was committed for trial on the papers on 27 April of that year. The Legal Aid Office (ACT) commenced acting for Mr Dunstan on 20 May 1999, and commenced arrangements for a scientific expert, Mr Michael Diamond, to prepare a report. Mr Dunstan decided not to see him. There were further reports and draft reports supplied to the defence. On 16 July 1999 the trial of Mr Dunstan, which had been appointed to commence on 19 July 1999, was adjourned to 22 November 1999.

68 Because of the late delivery of further scientific reports, defence counsel acquiesced in the experts giving their evidence-in-chief first, with cross-examination deferred to a later time so as to permit defence counsel more time to prepare for cross-examination. At no time was there any request for an adjournment of the trial, based on insufficient time to prepare a defence, nor could it realistically be suggested that the trial was "expedited" or that Mr Dunstan was not permitted sufficient time to prepare his defence. In our opinion, Mr Dunstan was not denied a fair trial.

Conduct of the appellant's legal representatives

69 The final ground relates to complaints by Mr Dunstan as to how the trial was conducted by his legal representatives. The circumstances under which an appellate court will set aside a conviction on the ground of incompetency of counsel are strictly limited. The reason for this is the nature of the trial process. Gleeson CJ, of the Supreme Court of New South Wales, made the point in Birks (1990) 48 A Crim R 385 at 390:

"In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.

As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case."

70 At 391 Gleeson CJ pointed to the "evident tension" between these principles, on the one hand, and the power and duty of an appellate court to correct a miscarriage of justice. However, he insisted that neither incompetence nor acting contrary to instructions will, of itself, attract appellate intervention. There must be a miscarriage of justice.

71 In the present case the appellant makes a number of complaints about the manner in which his legal representative conducted his defence. One complaint is that counsel made no reference to United Nations classifications and an Australian Code relating to explosives. The point is of no substance; the appellant conceded that the devices he sent through the post would have been explosive if the batteries had not previously been flattened. The question, on this aspect of the case, was whether or not they had been flattened.

72 A further complaint of the appellant concerns the acquiescence of defence counsel in the Crown's decision not to call Superintendent Hazell. For the reasons we have given, this did not result in a miscarriage of justice.

73 Another complaint was counsel's failure to put particular questions to Mr T C Stoewer, an Australian Federal Police Officer who gave evidence concerning his investigation of the explosion at the Canberra Mail Centre. The appellant says counsel should have ascertained whether there was an increase in voltage of the batteries during the 24 hours after measurement of the voltage by Sergeant Sweeney. His argument is that, on Sergeant Sweeney's evidence, there should have been such an increase; a negative answer would have tended to discredit Sergeant Sweeney's opinion. However, counsel probably appreciated that an affirmative answer would have had the opposite effect. As it seems counsel did not know what answer Mr Stoewer would be likely to give to that question, it was reasonable for him to make the judgment that it would be preferable not to ask the question at all.

74 The appellant now claims to be aggrieved that Mr Brewster did not advance at trial the theory, developed before us, that an unknown stranger was responsible for the device that exploded in the Canberra Mail Centre. However, we have no reason to believe this omission was contrary to Mr Brewster's instructions at trial. Nor are we persuaded that, to the extent the matter might have been the subject of advice, the course taken represented poor forensic judgment. Counsel might well have taken the view that to offer this far-fetched theory to the jury would have been to prejudice whatever chance there was that the jury might be attracted to the appellant's slightly more plausible assertion that he pre-flattened the batteries in the other devices.

75 The appellant made a variety of other, more nebulous, complaints about the failure of counsel to put particular questions and the failure of the Legal Aid Commission to obtain information. The complaint was so generalised that it was difficult to understand the relevance of the questions and information about which the appellant spoke. Although we closely questioned the appellant in an endeavour to ascertain why he thought other material would have assisted his case, we were left without enlightenment. Certainly, we have no impression that any actions or omissions of the appellant's legal representatives caused him to suffer a miscarriage of justice. On the contrary, at least in relation to the trial itself, the transcript of which we have been able to read, we are of the opinion that the appellant's counsel displayed a high degree of competence in presenting a most difficult defence.

Disposition

76 We are of the opinion that there is no substance in any of the grounds of appeal advanced by the appellant. The appeals against conviction must be dismissed. As previously noted, there is no appeal against sentence.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 18 May 2001

The appellant appeared in person
Counsel for the Respondent:	R Refshauge SC
Solicitor for the Respondent:	Office of the Australian Capital Territory Director of Public Prosecutions
Date of Hearing:	12, 13 October 2000