Dawson, T.J. v The Honourable Wootten, J.H. Q.C

[1990] FCA 157

JUDGMENT No. 1-57 98- ....... ..'/ ........ ...,

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY )	NO. G 158 of 1990

1

GENERAL DIVISION )

Applicants

AND :

FEDERAL COURT OF

AUSTRALIA PRINCIPAL REDISTRY

Respondents

CORAM: Burchett J.
PLACE: Sydney

DATE : 12 April 1990

REASONS FOR JUDGMENT

BURCHETT J.

This is an application brought under s.39B of the Judiciary Act 1903 (as well as in reliance on the cross-vesting legislation) for an inlunction to restrain a Royal Commissioner from launching a particular inqulry alleged to be outslde the scope of his Commisslon. Because it was accepted that the Royal Commissioner should not himself take an active role In the proceeding before me, the Attorney-General for the Commonwealth

of Australia applied to be 101ned as a respondent, thls being an	application which was not opposed, and I made an order
accordingly. I also granted applicat~ons for leave to intervene which were made by one Dolly Eatts, who was the de facto spouse of the late David John Gundy, and The National Aboriginal & Islander Legal Servlces Secretariat. The Attorney-General placed formal evidence before me; Miss EattS and The National Aboriginal
& slander Legal Services Secretariat contented themselves with
the making of submissions in support of the Royal Commissionerfs decision.
By letters patent dated 6 May 1988 the Royal Commissioner was appointed by Her Majesty the Queen by the Governor-General of the Commonwealth of Australia on the advice of the Federal Executive Councll and pursuant to the Constitution and the Royal Commlssions Act 1902 a Commissioner to inquire into:

"deaths .. . in the States of New South Wales, Victoria and Tasmania ... since 1 January 1980 of Aboriginals and Torres Strait Islanders (including any such death that may occur after the date of these Our Letters Patent) whllst in police custody, in prison or in any other place of detention, but not including such a death occurring in a hospital, mental institution, infirmary or medlcal treatment

police custody, in prison or in any other	centre unless lnjurles suffered whlle in
place of detention caused or contributed to
that death . . . ."

The Royal Commissioner was directed by the letters patent to consult with the Honourable James Henry Muirhead, and to conform wlth guidelines issued or recommendations made by him. It is a matter of notoriety in Australia that Mr Muirhead Q.C. was appointed a Royal Commissioner following widespread expressions of concern about the numbers of Aboriginals who were alleged to have committed suicide in police cells, or otherwise to have died whilst in custody.

A speclal feature of the letters patent was an authorlzatlon to conduct the lnquiry

"in combination wlth any lnquiry into the same or related matters that you are dlrected or authorised CO make by any Commission issued, or pursuant to any order or appointment made, by any of Our Governors of the States or under the law of the Northern Territory of

Australia".

Corresponding letters patent were issued signed by the Governor of New South Wales. By reason of later events, both the letters patent signed by the Governor-General of Australia and the letters patent signed by the Governor of New South Wales were varied by subsequent letters patent in ways which are not material to the present case, and also so as to substitute for the reference to the Honourable James Henry Muirhead a reference to the Honourable Elliott Frank Johnston who received a Commission to replace Mr Muirhead Q.C.

What is in issue in the present case is whether one David John Gundy, who was fatally lnjured when a shot-gun was discharged in the bedroom of a house in Marrickville, suffered death "whilst in police custody ... or in any other place of detention", or whether there is a sufflclent prospect of an affirmative answer to that questlon to lustlfy further inquiry under the letters patent.

The circumstances flowed from an lncrdent whlch occurred a few days before Mr Gundy's death. Two pollce officers were shot by a man who, according to unchallenged evidence glven at the inquest to whlch I shall refer, was extremely dangerous. AS at 27 April 1989, both of the police officers were stlll allve, but one of them was presumably in a serious condition, since he subsequently died. Actlng on information that the man wanted for the shooting had been at 193 Sydenham Road, Marrickville, and suggesting that he might have been harboured there, police obtained a search warrant entitling them to search for his belongings at that address. As it was suspected that the wanted man might still be at the premises, being both armed and dangerous, a decision was made that the warrant would be executed by a group within the New South Wales Pollce Force with special training and weapons for armed combat, sieges and forced entry. It is beyond dlspute that in fact the wanted man had been in the premises very shortly before 27 April 1989 and had then had wlth him a pistol.

Evidence was given at the coronial inquiry, which took place with a jury, to investigate Mr Gundy's death that pollce	practice, both in Australia and overseas, was to effect entry, in
such cases, as swiftly as possible in order to take an armed and dangerous suspect, if present, by surprise, and so to reduce the risk of shots being fired or a situation of siege developing. Uncontradicted evldence was given that, in the prevlous ten years of operations in New South Wales of the special force to which I have referred, there had been no mishap involving injury to any person.

Shortly before 6.00am on 27 April 1989, members of the speclal force burst into the house at speed, armed wlth shot-guns wlth torches attached to them, and calllng out loudly "pollce, pollce". They came through the front door, which was broken down by a blow with a sledge hammer, whlle the back door was guarded. The first two bedrooms were entered by officers, and the persons in them confronted with shot-guns until it was clear they did not pose any threat to the pollce. Mr Gundy was in the third bedroom. The door of that room was klcked open by a Detectlve Sergeant Dawson, who was holdlng at his hip one of the shot-guns. According to hls evidence (and there was no evidence ln contradiction of it), as he attempted to enter the room, Mr Gundy rushed at him and selzed hold of the gun. A struggle for the gun ensued for a few seconds. When Sergeant Dawson attempted to pull the gun away from Mr Gundy, it accidentally discharged.

Following a lengthy inquiry, the coroner's jury returned

a finding as follows:

"On the 27th Aprll, 1989 at 193 Sydenham Road, Marrickville, David John Gundy died of the

effects of shot-gun wounds to the chest	sustained then and there near the doorway to
his bedroom, when he took hold of the barrel of a shot-gun held by Terry Dawson, a Detective Sergeant of Police actlng in the course of his duty and the weapon accidentally discharged."

There was tendered before me the transcript of the
evldence given at the coronial inquiry by Detectlve Sergeant
Dawson, together with the evidence of his commanding officer,

Sergeant Brazel, and the evldence of two occupants of the house, a Mr McDonald and a Mr Valentlne. Sergeant Brazel dld not see what occurred when Mr Gundy was shot, although he was only a few feet away in the kitchen. Nr McDonald and Mr Valentlne were ~n the other bedrooms. It was common ground at the hearlng before me that all witnesses, except one who could not throw light on the events in the room, gave evldence at the inquest, and it was not suggested by any party that the elucidation of the Issues to be determined required perusal of the evidence of any other of the witnesses at the coronlal inqulry. The evidence tendered was tendered by consent.

It is clear that the only evldence of what happened in the room, where Mr Gundy met his death, is to the effect that he had in no way submitted to the police, but on the contrary had rushed at the officer who was attempting to enter the room, and had trled to get hold of the officer's weapon. Whrle counsel pointed out that the Royal Commlssloner would not be bound to accept the pollce evldence, no contention was formulated to demonstrate that any particular findlng could be made to the contrary of Sergeant Dawsonps evldence of what occurred. The	cross-examination of pollce witnesses at the coronial inquiry	indicates that, far from there belng any suggestion Mr Gundy was
ever taken into custody, what was being urged against the pollce was the claim (~tself unsupported by evldence) that Sergeant Dawson may have simply shot Mr Gundy under the mlstaken
impression that he was the dangerous wanted man. Nelther the
ordlnary courts nor admlnistratlve tribunals can make findings simply on the basls of speculation and without evidence

sufficient to ground inferences. The same is true of a finding, whether made by a court or a Royal Commission, that facts fall withln the terms of letters patent. Accordingly, I do not think ~t is permlsslble to avoid the question whether the circumstances evidenced at the coronial inquiry, it being admltted that there is no suggestion of any new evidence belng available, do show, or at worst for the applrcants could posslbly be held to show, that Mr Gundy died "whilst in police custody, in prlson or in any other place of detentron".

An attempt was made to avoid thls conclusion by reference to Ross v . Costigan (1982) 41 ALR 319, and on appeal 41 ALR 337. Counsel referred to the comment in the joint judgment of the full court at 351: ''We should add that 'relevancer may not strictly be the appropriate term; what the Commissioner can look to is what he bona fide believes will assist him in his inquiry." ~ u t this comment was made in the context of letters patent appointing a Commissioner "to inqulre ... whether" certaln lllegal activities were engaged in, and "whether [a union] or any officers or member of the union in the course of or in relatlon to the affairs of the unlon has engaged in any illegal

activities" other than specifled activities (see 326-327). It is

easy to see why a Commission in such broad terms would have to be understood as permitting investigation of an extremely wlde range of activities in order to find out whether they were illegal, or whether the unlon in question was involved in them. But where letters patent specify a particular subject of inquiry, the remark of the full court provldes no justification for the launching of a different inquiry. In Ross v. Costigan at 347-348

the full court cited from Mr Costigan's rullng a passage whlch referred to a dlctum of Sholl J. In Johns G Waygood Ltd v . Utah Australia Ltd [l9631 VR 70 at 75:

"I reject the argument advanced by the learned

Solicltor-General, on behalf of the present Commissioners, that once a valid common law appointment is made there is no limltatlon upon the statutory powers of such a Commlsslon, and no way in whlch their exercise can be curtailed or controlled by reference to the law of contempt of court. For, after all, they are only powers, and it cannot possibly be right to hold, for example, that a Royal Commission appointed to inqulre lnto sublect-matter A can, by the mere use of its statutory powers under the Evidence Act, lawfully proceed to summon and examlne

witnesses w i t h respect to an unrelated

subject-matter B.''

At 334-335 Ellicott J., like the full court, asserted the width of the Royal Commissionerls powers when he sald:

"But if the Commission bona fide seeks to establish a relevant connection between certain facts and the subject matter of the inquiry, it should not be regarded as outside its terms of reference in doing so."

But he introduced this statement by an express rellance on the

his conclusion "flows from the very nature of the lnqulry being	particular Commission's "broad terms of reference", and he said
undertaken". He added: "This does not mean, of course, that a Commission can go off on a frollc of its own." what was suffxcient to justify pursuit of a topic, in the view of Elllcott
J., was "a real as distinct from a fanciful posslblllty that a
llne of questioning may provide lnformatlon directly or even indirectly relevant to the matters which the Commission 1s

requlred to investigate under its letters patent". in state of Queensland v. Wyvlll (1989) 90 ALR 611 at 618 Plncus J. held that

~t was posslble to grant a declaration or other rellef, wlth

respect to the power (of another Royal Commlssloner appointed to lnqulre into deaths of Aboriginals in custody) to inqulre lnto the death of a particular person, even if the alleged error of the Royal Commissioner were wholly factual. The error in that case did not relate to whether the deceased was in custody, but to whether he was an Aboriginal, a question which does not arise ln the present case, since there is no dispute that Mr Gundy was an Aboriginal.

I turn to the question of construction of the letters patent. The word "custody" is relevantly deflned in the Shorter Oxford English Dlctlonary (1980) as "the keeping of an officer of justice; confinement, imprisonment, durance." In the letters patent, the word must be understood in a context which reinforces the implications of continuity contained in the word itself. The letters patent are concerned with deaths

"whilst in police custody, in prlson or in any

otherplace of detention, but not including	[certain deaths] unless inluries suffered
while in police custody, in prison or in any
m place of detention caused or contributed
to that death".

In this context, the existence of a state of custody already existent at the time when death is suffered seems plainly to be

emphasized. The juxtaposition with prison or other place of

detention, and the absence of any reference (which it would have been so easy to make, had i t accorded wlth the intention) to death at the hands of the pollce apart from death whllst in custody, may be regarded as reinforcing the point.

Even without such a context, a reference to police custody would normally import a continuing state. In R. v. Amad

[l9621 VR 545 at 546-547 Smlth J. said:

"Now, for the purposes of the discretion rule, and for the purposes also of the Commissioner's standing orders, a person is to be regarded as in custody not only after formal arrest, but also where he is in, say, a police vehicle, or on police premlses, and the police by their words and conduct have given him reasonable grounds for believing, and caused him to believe, that he would not be allowed to go should he try to do so."

This suggests that for some purposes formal arrest would be required, but that for the purposes of the discretion rule, the specified form of confinement in a police vehlcle or on police premlses would be sufficient. It does not suggest that a man who has not been arrested, but is in his room resisting the entry of the police, or attempting to disarm a police offlcer, could be

described as in police custody.

In Van der Meer v. The Queen (1988) 62 ALJR 656, members of the High Court made a number of references to custody in terms indicative of an understanding of it as a formal state into whlch a person may be taken. In particular, at 660 Mason C.J. said of persons belng interrogated at a police station: "[Tlhe applicants, even if not in custody strict0 sensu, may have felt that the police expected them to stay and would prevent them from

/ leaving, if they attempted to do so." At 661 he said:

"In saying this I have so far referred to 'custody' in the sense in which it seems to have been understood in Lee (at 155) [his Honour was referring to R. v. Lee (1950) 82 CLR 1331, that is, as the equivalent of formal arrest, at least for the purposes of r 3 [Rule 3 of the Judges' Rules]. In Smith v. The Queen (1957) 97 CLR 100 Williams J. took a rather different view, observing (at 129):

'Any person who is taken to a police station under such circumstances that he believes that he must stay there is in the custody of the police. He may go only in response to an invitation from the police that he should do so and the police may have no power to detain him. But if the police act so as to make him think that they can detain him he is in their custody.'"

The Royal Commissioner referred to the ludgment of Williams J. in Smith v. The Queen, and like cases, for the proposition that "Mr Gundy would have been in custody in that the actions of the police would have left him in no doubt that they would restrain him from leaving the premises." But in Smith v. The Queen, as the passage quoted by Mason C.J. in the citation made above demonstrates, the person in custody had been taken to

doubt he would be restrained from leaving was as supplying the	a police station. The relevance of his having been left in no
place of formal words of arrest. Similarly, in cases where a police officer requires a person to go with him, and that person submits being under the ~mpression he has no choice, express or implied intimation of restraint may supply the place of words of arrest. But to take cases of this kind as authorities for the proposltlon that anyone in premises, such as hls house, who is given to understand flrmly that he wlll be restrained from leaving the premlses at hrs own will is therefore in pollce custody would be to mlsapply the authorities. Such a proposition would embrace people in a house under siege, a bankrobber in a bank whlch is surrounded by pollce, or hijackers in an aeroplane encircled by securlty forces at an airport. None of these persons would be in pollce custody until they surrendered or were otherwise taken into custody. In the present case, a submission was put that all persons in the house were in pollce custody, once the front and back doors were secured, because the police did not intend to allow anyone to leave until he had been detalned for at least some perlod to enable hlm to be identified. ~t seems to me that to call this custody is to misuse language. ~ u t the reasons given by the Royal Commissioner, for relecting the challenge to his power to lnquire Into this matter, rely primarily on just such a concept.
Emphasis was also placed by the Royal Cornmissloner upon the police Intention to take control of persons in the premlses in order the ensure that they were not a threat, and that none of
them was the wanted man. It 1s plaln that the police did not
intend to arrest anyone other than the wanted man, unless the brief detention required by their own securlty, and by the purposes of identification, necessarily const~tuted an arrest. There are two reasons why I thlnk an intention to exercise such a limited (though undeniably severe) degree of control over the persons in the premises would not show Mr Gundy was ever in custody. The first reason is simply that an intention to take

hlm lnto custody would not be equivalent to taklng hlm lnto custody unless that lntentlon were carrled out. There 1s nothlng In the evidence from whlch any conclusion could posslbly be formed that control of the klnd referred to was ever actually exercised over Mr Gundy. The only evldence is that he seized Sergeant Dawson's gun and attempted to wrest it from him.

in any case (and this is the second reason), I do not think persons restrained for a brlef period to enable the police to satisfy themselves that the wanted man was not there, and that no one was threatening the police, could be regarded as "in custody" withln the meaning of the letters patent.

~ u t

In Morris v. Beardmore (1981) AC 446 the House of Lords was concerned with a problem arising out of the power given to a police officer by legislation to restrain the liberty of movement of a person required to take a breath test. Lord Dlplock at

4 5 4 - 4 5 5	said:
"Except to the extent that such conduct by a constable is authorised by statute it is serious violation of the common law rights of the driver to be required, under threat of

non-compliance, to do the physical act of

forcible detention in the event of

blowing into a breathalyser against his will; to be detained by force or threat of force at the place where the constable requires the breath test to be taken untll the test has been completed - whlch in some circumstances may take a considerable time; and to be compelled by force or threat of it to go to a police statlon to take the breath test if the constable thinks fit. I have used the word 'detained' rather than 'arrested' because the power which section 8 confers upon a constable to restraln the llberty of movement of a person required by hlm to take a breath test, particularly where that requirement is made

under subsection ( 2 ) , is of a wholly dlfferent legal nature from the arrest of a suspected offender effected by a constable under powers conferred upon him at common law or under sectlon 2 of the Crimlnal Law Act 1967."

Similarly, in the United States, it has been held that a

temporary interference with a man's llberty for the purpose of ensurlng that he is not armed, in circumstances where a pollce offlcer has reason to believe he is deallng with an armed and dangerous individual, 1s to be dlstingulshed from arrest: Terry V. Ohio (1968) 392 US 1. In that case at 26-27 Warren C.J. said:

"An arrest is a wholly dlfferent klnd of intruslon upon individual freedom from a llmited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a crimlnal prosecution. It 1s intended to vindicate society's interest in havlng lts laws obeyed, and it is inevitably accompanied by future Interference wlth the individual's freedom of movement, whether or not trial or conviction ultimately follows. The protectlve search for weapons, on the other hand, constitutes a brlef, though far f rom

inconsiderable, intruslon upon the sanctlty of

the person. It does not follow that because an officer may lawfully arrest a person only when he is apprlsed of facts sufficient to warrant a belief that the person has committed or 1s committing a crime, the officer is equally unjustified, absent that kind of	evidence, in making any intrusions short of an	arrest. Moreover, a perfectly reasonable
apprehension of danger may arise long before
the offxcer is possessed of adequate
information to justify taking a person into custody for the purpose of prosecuting him for a crime."

It will be observed that the flnal sentence in the passage quoted makes it clear that Warren C.J. considered the kind of intruslon Into personal freedom of which he was speaklng would not amount to "taking a person lnto custody".

That words and actlons making it clear to a person that police lntend to detaln him and that he wlll be restrained from leaving at his will a house where he then is, do not amount to the taking of that person Into custody has been recognized in the law for a very long time. Counsel for the applicants clted - 2 Hawkins, Pleas of the Crown ch.XIX s.1:

"There must be an actual arrest; and therefore, If (a) an officer having a warrant to arrest a man, see him shut up in a house, and challenge hlm as his prisoner, but never actually have him in hls custody, and the party get free, the officer cannot be charged with an escape."

Whatever assistance may be derlved from authorities which touch upon the subject of custody in particular contexts, the question here is what is meant by "whilst in police custody" in the context of the letters patent. In my opinion, there is nothing in that context to suggest, and much to deny, that police action of the kind involved here is embraced by the language of the letters patent. They are concerned with a very different problem. It is of course in no way to dlminish the gravity of

letters patent should be construed as concentrating upon the	that problem - indeed it may be to stress it - to insist that the
problem to which the words they use actually refer.
An argument was also put, though without elaboratlon. that the house was, in the circumstances, an "other place of detention" within the letters patent. I do not accept this submission, which ignores the context in which the words are used.
For these reasons, the application succeeds and the Attorney-General should be ordered to pay the applicants' costs of lt. I make no order as to the costs of ~ i s s Eatts and the National Aborlglnal & Islander Legal Servlces Secretariat. I direct the applicants to brlng in, on a date to be fixed, short minutes of orders ln accordance wlth these reasons.
I certlfy that thls and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of his Honour xr Justice B

.I

Dated: 12 April 1990	'4
Counsel for the Applicants:	Mr R. J. Burbidge Q.C. with Mr P. Roberts
Solicitors for the Applicants:	Messrs Teakle, Ormsby & Associates
Counsel for the Attorney-General:	Mr C. J. Stevens with Mr I. Jackman

Solicltors for the Attorney-General:	Australian Government
Solicitor

Counsel for Miss Eatts:	MC J. Basten
Solicitors for Miss Eatts:	Aboriginal Legal Service Limited
Solicitor for the National Aboriginal

& Islander Legal Services Secretariat: Miss M. Herps

Dates of hearing:  6 and 9 April 1990