Eatts, D. v Dawson, T.J

Re: DOREEN EATTS; NATIONAL ABORIGINAL AND ISLANDER LEGAL SERVICES
SECRETARIAT
And: TERRY JOHN DAWSON; CHARLES JAMES BRAZEL; GRAEME WATSON; GRAHAM CARL
BATEMAN; AUSTIN WHITTAKER; JOHN FLEMING RHODES; GREGORY DALE MARTIN; BRUCE
MARSHALL; THE HONOURABLE JOHN HALDEN WOOTTEN and ATTORNEY-GENERAL,
COMMONWEALTH OF AUSTRALIA
No. G208 of 1990
FED No. 216
Administrative Law - Royal Commissions

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling(1), Beaumont(2) and Gummow(1) JJ.

CATCHWORDS

Administrative Law - Review of Royal Commissioner's decision as to jurisdiction - Mixed question of fact and law - Existence of jurisdictional facts - Onus to establish such facts - Status of evidence before Royal Commissioner in judicial review proceedings.

Royal Commissions - Construction of letters patent - Meaning of "whilst in police custody" - Consideration of "seizure", "arrest" and "imprisonment".

The Constitution

Royal Commissions Act 1902

Judiciary Act 1903

Prevention of Terrorism (Temporary Provisions) Act 1976 (U.K.)

Coroner's Act 1988 (U.K.)

United States Constitution

Johns and Waygood Ltd v Utah Australia Ltd (1963) VR 70 at 75

Onus v Alcoa of Australia Ltd (1981) 149 CLR 27

Boath v Wyvill (1989) 85 ALR 621

Australian Conservation Foundation v Forestry Commission (1988) 79 ALR 685

Hall v The Nominal Defendant (1966) 117 CLR 423

Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246

Miki Shoko Co. Ltd v Merv. Brown Pty Ltd (1988) ATPR 40-858

Director-General of Social Services v Chaney (1980) 31 ALR 571

Smith v Tobain (1987) 10 NSWLR 562

Philip Morris Inc. v Adam P. Brown Male Fashions Pty Ltd (1981) 148 CLR 457

Ross v Costigan (No. 2) (1982) 41 ALR 337

R. v Blakeley; Ex parte Association of Architects,

Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54

The Queen v Alley; Ex parte New South Wales Plumbers and Gasfitters Employees' Union (1981) 153 CLR 376

Terry v Ohio 392 US 1 (1968)

Miranda v Arizona 384 US 436 (1966)

The People v Johnson 671 P 2d 958 (1983)

Tennessee v Garner 471 US 1 (1985)

Yam Sang Kwai v Immigration and Naturalization Service 411 F 2d 683 (1969)

Jones v Cunningham, Penitentiary Superintendent 371 US 236 (1963)

Murray v Ministry of Defence (1988) 2 All ER 521; 1 WLR 692

Spicer v Holt (1977) AC 987

Shaaban bin Hussien v Chong Fook Kam (1970) AC 942

Holgate-Mohammed v Duke (1984) AC 437

Hart v Chief Constable of Kent (1983) RTR 484

Meering v Grahame-White Aviation Co. Limited (1919) 122 LT 44

R. v Inner London North District Coroner, Ex parte Linnane (1989) 2 All ER 254; 1 WLR 395

Van Der Meer v The Queen (1988) 62 ALJR 656; 82 ALR 10

Smith v The Queen (1957) 97 CLR 100

Hughes v National Trustees, Executors and Agency Company of Australasia Limited (1979) 143 CLR 134

Bales v Parmenter (1935) 35 SR (N.S.W.) 182

Williams v The Queen (1986) 161 CLR 278

Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473

United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520

HEARING

SYDNEY

#DATE 23:5:1990

Counsel and solicitors J. Basten instructed by
for the appellants: Aboriginal Legal Service Ltd.

Counsel and solicitors R.J. Burbridge Q.C. and
for the first respondents: P. Roberts instructed by Teakle

Ormsby and Associates

Solicitor for the third Mrs. K. Hughes of the
respondent: Australian Government Solicitor

ORDER

1. Appeal allowed.

2. Set aside the orders made by Burchett J. on 23

April 1990; in lieu thereof, order that the proceedings be dismissed with costs.

3. Order that the first respondents pay the costs of

the appellants of the appeal.

4. Refuse the application for an extension of time in

which to seek leave to cross-appeal; order that the first respondents pay the costs of the appellants of the application for extension and for leave.

5. Dismiss the cross-appeal as incompetent; order

that the first respondents pay the costs of the appellants of the cross-appeal.

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

JUDGE1

This is an appeal from orders made by a Judge of this Court (Burchett J.) on 23 April 1990. The second respondent ("the Royal Commissioner") was restrained from exercising, pursuant to certain Letters Patent, any coercive or compulsive power in respect of the first respondents or any of them, in relation to the circumstances of the death of the late David John Gundy. The Royal Commissioner was also restrained from otherwise enquiring into that death.

The first respondents are serving members or former members of the police force of the State of New South Wales. They are attached or were attached to a unit of that force known as the Special Weapons and Operation Squad, which was identified in the evidence as "SWOS". On 21 February 1990, they had been informed by counsel assisting the Royal Commissioner of an intention to call some or all of them as witnesses in an inquiry to commence on 23 April 1990 into the death of Mr David John Gundy on 27 April 1989. On 19 March 1990, submissions were made on behalf of the first respondents to the Royal Commissioner to the effect that he was not authorised to inquire into that death. On 27 March 1990, the Royal Commissioner gave written reasons for his decision to proceed with an inquiry into Mr Gundy's death. Proceedings in this Court for injunctive relief were then commenced by the first respondents and the Court was able to give an expedited final hearing to the matter. It was not disputed that the first respondents had the necessary standing as applicants to seek such relief: Johns and Waygood Ltd v Utah Australia Ltd (1963) VR 70 at 75; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27.
The Royal Commissioner holds appointments under Letters Patent issued by the Crown in right both of the Commonwealth of Australia and of the State of New South Wales. These appointments are integers in an elaborate scheme of co-ordinate and concurrent Royal Commissions operating at federal and State level, which was established as a result of public disquiet at the number of Aboriginals who whilst in police custody had died, allegedly by suicide. This scheme of co-ordinate and concurrent Royal Commissions is more fully described in the decision of this Court in Boath v Wyvill (1989) 85 ALR 621. The inquiries conducted pursuant to this scheme have become known as "The Royal Commission into Aboriginal Deaths in Custody".
The Commonwealth Letters Patent, dated 6 May 1988, are stated to have been issued pursuant to the Constitution, the Royal Commissions Act 1902 ("the Royal Commissions Act"), and "every other enabling power". The Royal Commissioner was appointed to inquire into:

"(a) deaths:

(i) in the States of New South Wales, Victoria and Tasmania; and

(ii) where in a particular case or any particular cases, you are requested by the Honourable James Henry Muirhead under the existing Commission - elsewhere in Australia; 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) whilst 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 medical treatment centre unless injuries suffered while in police custody, in prison or in any other place of detention caused or contributed to that death; and

(b) any subsequent action taken in respect of each of those deaths including, but without limiting the generality of the foregoing, the conduct of coronial, police and other inquiries and any other things that were not done but ought to have been done . . ."

The Royal Commissioner was required as expeditiously as practicable to make his inquiry and:

". . . not later than 30 June 1989 or such later date as We may be pleased to fix to furnish to the Honourable James Henry Muirhead for his consideration and for furnishing by him to Our Governor-General of the Commonwealth of Australia under the existing Commission:

(g) as soon as practicable after the completion of your inquiry into a particular death, a report of your findings in relation to that death; and

(h) upon completion of your inquiry into the several deaths in accordance with these our Letters Patent, a report of any other findings of your inquiry and such recommendations (if any) as you consider appropriate."

The reference to the "existing Commission" was a reference to the Commission issued on 16 October 1987 to the Honourable J.H. Muirhead Q.C. His Commission was later replaced by one issued on 27 April 1989 in favour of the Honourable E.F. Johnston Q.C.

The New South Wales Letters Patent were issued to the Royal Commissioner on 17 August 1988. They are confined to inquiry into deaths in the State of New South Wales, but otherwise are relevantly in the same terms as the Commonwealth Letters Patent. Both the Commonwealth and the New South Wales Commissions were subsequently varied by other Letters Patent. However, these variations were not of significance either before Burchett J. or for the purposes of this appeal. However, we should note that the date by which the Royal Commissioner is to furnish his report currently has been extended to 30 September 1990, or such later date as the Crown may fix.
The Royal Commissioner, in accordance with established practice, did not play an active role before this Court, either before Burchett J. or on the appeal. Before Burchett J., the Attorney-General for the Commonwealth was joined as a respondent and his counsel supported the decision taken by the Royal Commissioner to proceed with the inquiry into the death of Mr Gundy. Upon the hearing of the appeal, the solicitor for the Attorney-General indicated that her client, save as to any issue as to costs, did not wish any further to play an active role in the proceedings.
The first appellant was the de facto wife of Mr Gundy. In the proceedings before the Royal Commissioner, leave to appear had been given to the legal representatives of both appellants. This meant that, so far as the Royal Commissioner thought proper, the legal representatives might examine or cross-examine any witness on any matter, which he deemed relevant to his inquiry: Royal Commissions Act, s. 6FA. There was also a right to have their submissions considered according to law; see Australian Conservation Foundation v Forestry Commission (1988) 79 ALR 685 at 689. On the first day of the hearing in this Court, 6 April 1990, Burchett J. granted applications by both appellants to intervene and be joined as respondents to the proceedings before his Honour. No orders implementing that decision were taken out. The appellants were shown as respondents in his Honour's written reasons for judgment delivered 12 April 1990, and in the final orders made 23 April 1990 which disposed of the proceedings.
On the commencement of the hearing of the appeal on 11 May 1990, counsel for the first respondents handed up a document headed "Notice of Cross-Appeal" which set out a purported appeal from Burchett J.'s decision whereby he acceded to the applications by the appellants to intervene and be joined as parties. The effect of allowing this cross-appeal would be to render the principal appeal incompetent for want of a moving party. The Court received detailed submissions from counsel for the first respondents upon the questions which arose in this connection. In our view, the orders made by Burchett J. on 6 April 1990 were interlocutory in character. They did not finally determine the rights of the parties within the meaning of the relevant authorities: Hall v The Nominal Defendant (1966) 117 CLR 423; Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; Miki Shoko Co. Ltd v Merv. Brown Pty Ltd (1988) ATPR 40-858. The Court was referred to various other authorities, particularly to Director-General of Social Services v Chaney (1980) 31 ALR 571 at 592-593 and to Smith v Tabain (1987) 10 NSWLR 562 at 566, but what was said in those two cases was directed to other subject matter and is of no immediate present assistance.
It follows that leave to appeal would be necessary if the orders made on 6 April 1990 were now to be tested. Further, in view of the lapse of time, it would be necessary for the first respondents, as an initial step, to obtain leave for an extension for the time within which to make application for leave to appeal; see Order 52 Rule 10 (2) (b). The Court should refuse leave to extend the time for the making of an application for leave to appeal not only by reason of the lapse of time but also because, in any event, and in all the circumstances, the Court would not have granted leave to appeal. It follows that the cross-appeal should be dismissed as incompetent.
The injunctions in respect of which the appeal is brought are drawn in terms which restrain the Royal Commissioner from inquiring into the death of the late Mr Gundy, whether pursuant to the Commonwealth Letters Patent or the New South Wales Letters Patent. Insofar as the injunctions are directed to the Royal Commissioner as an officer of the Commonwealth pursuant to the Commonwealth Letters Patent, the jurisdiction of the Court plainly is founded in s. 39B of the Judiciary Act 1903. Further, the relief sought, and that obtained, is directed against the engagement by the Royal Commissioner in conduct of a particular description, the same terms being used to identify conduct having its source of legal authority in each of the Letters Patent and the enabling legislation. In Philip Morris Inc. v Adam P. Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 512, Mason J., in describing the content of the accrued jurisdiction of this Court, identified as a common illustration of a non-severable claim a claim united to the federal claim by a single prayer for relief. The present is such a case. Accordingly, the proceedings have been conducted both at first instance and on appeal on the footing that the issues that arise are common to the Commonwealth and New South Wales Letters Patent held by the Royal Commissioner.
A coronial inquiry, with a jury, to investigate the cause of Mr Gundy's death, took place between 17 July 1989 and 23 August 1989. The first respondents were among the witnesses called to give evidence at that inquiry. On 23 August 1989, the jury found:

"On 27 April, 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 acting in the course of his duty and the weapon accidentally discharged."

The officer referred to in the jury's finding is the first-named of the first respondents.

On 30 October 1989, there was a hearing before the Royal Commissioner to determine whether Mr Gundy's death should be listed as a death calling for investigation by the Royal Commission. Interested parties, including the New South Wales Government, submitted that the case fell within the terms of reference of the Royal Commissioner as a death whilst in police custody. The Government submission was that "in a real sense" Mr Gundy and every other occupant of the house at 193 Sydenham Road was in the custody of police officers at the relevant time. No submissions to the contrary were offered by counsel for the Police Association of New South Wales. The matter was added to the list of deaths for investigation by the Commission.
Subsequently, the police officers who constituted the SWOS Squad, which carried out the raid, and the Officer in Charge of SWOS, retained separate representation. On 19 March 1990, their counsel submitted to the Royal Commission that Mr Gundy had not been in custody at the relevant time. Counsel for the Police Association of New South Wales now supported that submission. However, counsel for the New South Wales Government submitted that "Mr Gundy and the others in the house were in the custody of the police officers who quite clearly were not intending to allow any of them to leave until they had completed their tasks".
In his written reasons delivered 27 March 1990, the Royal Commissioner noted that it was often not possible to be sure that a particular matter would fall within the terms of reference of a Royal Commission until an inquiry had been carried sufficient distance to enable a determination of relevant facts. He referred to Ross v Costigan (No. 2) (1982) 41 ALR 337.
The Royal Commissioner approached the matter by looking first at the evidence given in the coronial inquiry by the police officers who were the members of SWOS. He concluded that on that evidence by itself, Mr Gundy was in police custody when he died. The Royal Commissioner also referred to the evidence of other persons in the house at the relevant time as adding weight to that conclusion. The Royal Commissioner stated that there would be sufficient possibility that Mr Gundy may have been in custody, even on the test suggested by counsel for the members of SWOS, "to justify inquiries by the Commission continuing". (The Royal Commissioner recorded counsel's submission as having been essentially that Mr Gundy was not in police custody because the police had not achieved a requisite degree of dominance over him; he was said to have been in custody no more than a man stopped in the street by a policeman who wished to ask him a question.)
In so deciding, the Royal Commissioner was dealing with questions which determined whether he possessed jurisdiction to proceed with a particular inquiry, under the relevant Letters Patent. The threshold question of whether a tribunal possesses jurisdiction may be a question of law, of fact, or of fact and law: R. v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 90-91. Where the jurisdiction of a tribunal depends on the existence of such "jurisdictional facts", it is proper for the tribunal to inquire whether those facts exist so that it may determine whether or not it should proceed with the matter before it. However, the decision of the tribunal on that question is not binding, and when an application is made to this Court under s. 39B of the Judiciary Act to restrain the tribunal, it is for this Court to decide as to the existence of the jurisdictional facts; on such an application, the burden of establishing the facts which show an absence of jurisdiction always rests on the moving party before the Court: The Queen v Alley; Ex parte New South Wales Plumbers and Gasfitters Employees' Union (1981) 153 CLR 376 at 382; Allars, "Introduction to Australian Administrative Law", 1990, and 2''5.108. In the proceedings before the learned primary judge, the burden thus rested upon the first respondents, as the applicants. In our view, as will appear, his Honour should have held that they had not shown that the Royal Commissioner was threatening to exceed his jurisdiction, so as to attract injunctive relief against further pursuit of the inquiry into the death of Mr Gundy.

Before Burchett J., the first respondents relied upon an affidavit by their solicitor, in para. 7 of which he sought to summarise the effect of the evidence before the coronial inquiry. His Honour also had before him the transcript of the proceedings before the Royal Commissioner on 30 October 1989 and 19, 20 March 1990, together with the depositions and transcript of oral evidence before the coronial inquiry by the first and second of the respondents. He also had before him the statement and oral evidence before the coronial inquiry of the brother of the first appellant, Mr R.S. McDonald, and the statement and oral evidence of Mr M. Valentine, an occupant of the premises at 193 Sydenham Road, Marrickville on the morning in question. These materials had been before the Royal Commissioner.
It was for this Court to determine independently for itself whether the Commissioner had or lacked jurisdiction, and in reaching that decision it was for the Court to apply the ordinary rules of evidence; in such a case, the weight to be given to the decision of the Royal Commissioner will depend upon the circumstances including the question of whether the evidence has remained the same: The Queen v Alley; Ex parte New South Wales Plumbers and Gasfitters Employees' Union, supra at 389-390.
What the Court has before it on the appeal are the findings on the evidence made in this Court at first instance. Those findings were made as conclusions drawn upon the written materials received by Burchett J. But, as we have indicated, both his Honour and the Royal Commissioner had before them essentially the same materials, emanating from the coronial inquiry. What is in issue are the correct conclusions as a matter of law, or mixed fact and law, which are to be drawn from these materials; on the appeal, we were asked to differ from the conclusions reached by his Honour.
In his reasons for judgment, Burchett J. expressed the issue before him as whether Mr Gundy suffered death "whilst in police custody . . . or in any place of detention" within the meaning of the Letters Patent, or whether there was "a sufficient prospect of an affirmative answer to that question to justify further inquiry under the letters patent".
The Coroner had approached the inquiry on the footing that the issues were whether the shot that killed Mr Gundy was fired deliberately or accidentally; the issues did not include the question as to whether at the time the shot was fired Mr Gundy was in police custody.
It is convenient to turn to the facts in more detail.
On 24 April 1989, two New South Wales police officers were shot in Haig Avenue, East Sydney. The police were looking for an Aboriginal man, John Albert Porter, who was suspected to be the offender. The police regarded him as extremely dangerous. As at 27 April 1989, both of the police officers who had been shot were still alive, but one of them subsequently died. The police acted on information that Porter had been at 193 Sydenham Road, Marrickville, and it is now beyond dispute that in fact he had been in those premises very shortly before 27 April 1989 and had then had with him a pistol. The second of the first respondents, Detective Sergeant Charles James Brazel, was in possession of a search warrant authorising search of the premises at 193 Sydenham Road, Marrickville for articles including a pistol and ammunition belonging to Porter.
The police suspected that the wanted man might still be at the premises and be armed. The decision was made that the warrant should be executed by SWOS. This is a group within the New South Wales Police Force with special training in weapons for armed combat, sieges and forced entry. There had been no mishap involving injury in the previous ten years of the operations of SWOS. Where it sought to take an armed and dangerous suspect, the practice was to effect entry to the premises in question as swiftly as possible in order to have the advantage of surprise and so reduce the risks of shots being fired or of the development of a situation of seige. Detective Sergeant Brazel gave evidence to the coronial inquiry that the aim was to get control of the situation as soon as possible and "subdue" all occupants of the premises by maintaining a "position of dominance".
The premises at 193 Sydenham Road, Marrickville were a single storey house. Marrickville is an inner suburb of Sydney. Shortly before 6 a.m. on 27 April 1989, two police officers blocked off the rear entrance to the house, and other officers assembled on the footpath outside the front door. They were armed with shotguns and handguns and were wearing bullet resistant vests. The fifth of the first respondents smashed the door down by a blow with a sledge hammer, and eight police entered. They did so at speed, calling out loudly, "Police, police". They were armed with shotguns with torches attached to them and in operation. All the house lights were off save for that in the kitchen at the end of the hallway. A man was confronted in the front room by an officer who said, "Police, police, stay down, get your hands up". The man remained on the couch and raised his hands in the air. The officer said, "There's one out there, someone take him". Another officer said, "I've got him". The man was left on the couch and the officer entered the hallway. Detective Sergeant Brazel heard words to the effect, "Police, don't move", shouted in a loud voice, possibly repeated, and followed by some yelling. An officer entered a bedroom where a boy was found and said, "Police, get on the ground. We're police, just go and sit on the bed. There is nothing to worry about".
Mr Gundy was in the third room. The door of that room was kicked open by Detective Sergeant Dawson, the firstnamed of the first respondents. He commenced to enter the room with his shotgun in the combat position and the torch light illuminated. According to his evidence, Mr Gundy came towards him from a darkened part of the room where his bed was. He was dressed in his underpants. Detective Sergeant Dawson said that when the door opened, Mr Gundy was "virtually there". Mr Gundy grabbed hold of the shotgun and Detective Sergeant Dawson could feel him pulling it. Detective Sergeant Dawson called out the words "Police" and "Police, don't, don't". The struggle for the gun ensued for a few seconds. The gun was discharged. Mr Gundy's death followed.
Reference was made before the Royal Commissioner to the Oxford English Dictionary and to the first two meanings it gives to the word "custody". They are:

"1. safe-keeping, protection, defence; charge, care, guardianship . . .

2. the keeping of the officers of justice (for some presumed offence against the law); confinement, imprisonment, durance."

We should add that in the Macquarie Dictionary, custody is defined as follows:

"1. keeping, guardianship, care: in the custody of her father.

2. the keeping or charge of officers of the law: the car was held in the custody of the police.

3. imprisonment: he was taken into custody."

Further, in Webster's New International Dictionary, 2nd ed., the three meanings given for "custody" are:

"1. a keeping or guarding; care, watch, inspection, for keeping, preservation or security.

2. judicial or penal safe-keeping; control of a thing or person with such actual or constructive possession as fulfils the purpose of the law or duty requiring it; specif., as to persons, imprisonment, durance; as to things, charge.

3. state of being guarded and watched to prevent escape."

Plainly enough, the inquiry as to whether, upon the materials before his Honour, Mr Gundy died "whilst in police custody" involves more than a consideration of lexical meaning. His Honour indicated that he approached the meaning of the expression "whilst in police custody" not merely as an inquiry into lexical meaning. In the concluding passages of his judgment he indicated that he had endeavoured to fix a meaning to that expression as it appeared in the context of the Letters Patent.
His Honour construed the Letters Patent as requiring the existence of a state of custody already existent at the time when the death is suffered. His Honour said that it was plain that the police had not intended to arrest anyone other than the wanted man, unless the brief detention required by their own security, and for the purposes of identification, necessarily constituted an arrest. His Honour gave two reasons why, in his view, an intention to exercise such a limited, though undeniably severe, degree of control over the persons in the premises would not show that Mr Gundy was ever in custody. His Honour said:

"The first reason is simply that an intention to take him into custody would not be equivalent to taking him into custody unless that intention were carried out. There is nothing in the evidence from which any conclusion could possibly be formed that control of the kind referred to was ever actually exercised over Mr Gundy. The only evidence is that he seized Sergeant Dawson's gun and attempted to wrest it from him.

But in any case (and this is the second reason), I do not think persons restrained for a brief 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' within the meaning of the letters patent."

As will appear, with respect, we disagree with both those propositions. It is necessary first to deal with some of the authorities. His Honour referred to Terry v Ohio 392 US 1 at 26-27 (1968), as authority for the proposition that a temporary interference with a man's liberty for the purpose of ensuring that he is not armed, in circumstances where a police officer has reason to believe he is dealing with an armed and dangerous individual, is to be distinguished from arrest.

It is necessary to look somewhat more closely at this decision. The petitioner before the Supreme Court of the United States had been found guilty in an Ohio court on a charge of carrying a concealed weapon. The Supreme Court granted certiorari to determine whether the admission of the revolver in evidence violated the rights of the petitioner under the Fourth Amendment of the United States Constitution, made applicable to the States by the Fourteenth Amendment. The revolver had been obtained by the police when the petitioner had been "frisked" by the police before he had been taken to a police station and charged.
The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . ."

Two issues arose. Had there been a search or seizure and, if so, had it been unreasonable? The Supreme Court said (392 US at 16):

"There is some suggestion in the use of such terms as 'stop' and 'frisk' that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a 'search' or 'seizure' within the meaning of the Constitution. We emphatically reject this notion. It is quite plain that the Fourth Amendment governs 'seizures' of the person which do not eventuate in a trip to the station house and prosecution for crime - 'arrests' in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person."

The question, therefore, was whether the "seizure" was unreasonable. In this regard, the Supreme Court decided that the revolver seized from the petitioner had been properly admitted in evidence against him. The petitioner unsuccessfully submitted that because an officer may arrest a person only when he is apprised of facts sufficient to warrant a belief that the person has committed or is committing a crime, an officer is equally unjustified, absent that kind of evidence, in making any intrusion short of an arrest. It is the passage (at 26-27) in which this submission was rejected that his Honour quoted in the present case. However, the true significance of Terry v Ohio is that a citizen may be "seized" within the meaning of the Fourth Amendment in circumstances where he has been stopped and frisked on the street without any arrest then being made. Further, there is authority that the standards to be employed in determining the meaning of "custody" for the purposes of the doctrine in Miranda v Arizona 384 US 436 at 478 (1966), under the Fifth Amendment, are the same as those applied in deciding questions of "seizure" under the Fourth Amendment: The People v Johnson 671 P 2d 958 at 960-962 (1983).

On the appeal, we were referred to a later decision of the United States Supreme Court dealing with the Fourth Amendment, Tennessee v Garner 471 US 1 (1985). That decision is authority for the propositions that whenever a police officer restrains the freedom of a person to walk away, he has "seized" that person, and that a police officer who apprehends a person by shooting him has "seized that person": see 471 US at 7, 25. It is then a question of whether that "seizure" is reasonable, something as to which the Supreme Court, on the facts of this case, divided.
Counsel for the first respondents sought to derive some comfort from an earlier decision of the United States Court of Appeals for the District of Columbia Circuit in Yam Sang Kwai v Immigration and Naturalization Service 411 F 2d 683 (1969). This was a case of proceedings on a petition to review a deportation order made by the respondent Service. The petitioner unsuccessfully contended that his initial arrest was effected at a time when the restaurant which he owned and operated was surrounded, and his liberty of movement was restrained. The majority of the three member Court of Appeals held that a "seizure" must be "personal and not general", and that it must contain an element of awareness on the part of both the protagonist and the antagonist. They said that to hold otherwise would be to give substance to an ex parte arrest, something which they must disregard. The dissenting judge denied that the Fourth Amendment protections extended only to persons who knew they had been seized by the authorities, and referred to unconscious or feeble-minded persons who might be arrested without knowing it. He also referred to the natural inference, arising from the posting of officers at all public exits to the restaurant, that the persons therein were not free to depart.
Counsel for the appellants referred to the use of habeas corpus in situations in which the applicant was not in actual physical custody. A United States District Court has jurisdiction under 28 USC and 2''2241 to grant a writ of habeas corpus "to a prisoner . . . in custody in violation of the Constitution . . . of the United States". Article 1, and 2''9 of the United States Constitution provides:

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

In Jones v Cunningham, Penitentiary Superintendent 371 US 236 (1963), the Supreme Court of the United States held that a prisoner, convicted in a Virginia court and placed on parole by the Virginia Police Board which had directed him to live with his aunt and uncle, was "in custody" within the meaning of 28 USC and 2''2241. After referring to authorities in the United States and in England, the Supreme Court said (371 US at 240):

"History, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man's liberty, restraints not shared by the public generally, which have been thought sufficient in the English- speaking world to support the issuance of habeas corpus."

We should refer also to a recent decision of the House of Lords, which was relied upon by the appellants on the appeal but not before the learned primary Judge. The decision is Murray v Ministry of Defence (1988) 2 All ER 521. The immediate issue before the House was whether the appellant should have succeeded in her action brought against the Ministry of Defence claiming damages in tort for false imprisonment by the army. The appeal was dismissed. The plaintiff was a resident of Belfast. She had been suspected of having committed offences under the Prevention of Terrorism (Temporary Provisions) Act 1976 (U.K.). At 7.30 a.m. on a morning in July 1982, Lance-Corporal Davies, a member of the Women's Royal Army Corps, who was unarmed, together with five armed soldiers, arrived outside the plaintiff's house. When the door was opened by the plaintiff, the soldiers, in accordance with their usual procedure, entered the house, and Lance-Corporal Davies asked the plaintiff who she was and ascertained her identity. The soldiers then assembled all the other occupants of the house in one room, and searched the house. During that time, Lance-Corporal Davies remained with the plaintiff. At 7.30 a.m., Lance-Corporal Davies told the plaintiff she was arresting her. The plaintiff was then taken to an army "screening centre", where she was interviewed but refused to answer any questions. She was released at 9.45 a.m. She contended she had been unlawfully detained between 7 a.m. and 7.30 a.m. because she was not under arrest until she was told of this at 7.30 a.m. Further, if she had been arrested earlier, she submitted that the arrest was unlawful because she had not been informed of the arrest at the time.
The House of Lords held that the plaintiff had been under restraint from the moment she was identified, she must have realised that she was under such restraint, and that she had been under arrest from that moment notwithstanding the lapse of half an hour before the words of arrest were addressed to her. The House of Lords also held that the circumstances were such that the delay in speaking the words of arrest did not render the plaintiff's arrest unlawful. Lord Griffiths delivered a speech in which the other members of the House agreed. His Lordship accepted the dictum of Viscount Dilhorne in Spicer v Holt (1977) AC 987 at 1000:

"Whether or not a person has been arrested depends not on the legality of the arrest but on whether he has been deprived of his liberty to go where he pleases."

Lord Griffiths also approved the earlier dictum of Lord Devlin in Shaaban bin Hussien v Chong Fook Kam (1970) AC 942 at 947:

"An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when, by words or conduct, he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go."

Further, in Holgate-Mohammed v Duke (1984) AC 437 at 441, Lord Diplock described arrest as a continuing act which started with the arrester taking a person into his custody by action or words restraining him from moving anywhere beyond the control of the arrester. Lord Griffiths said that in the light of these authorities, he could entertain no doubt that the plaintiff was under arrest from the moment she had been identified by Lance-Corporal Davies on entering the house at 7 a.m.

(We should add that there also is English authority that there may be an arrest without submission of the person in question, where force is used: Hart v Chief Constable of Kent (1983) RTR 484 at 489.)
In the Court of Appeal in Northern Ireland, the view had been expressed that the plaintiff must fail unless she was aware of the restraint of her liberty from 7 a.m. onwards. Lord Griffiths said that whilst on the facts he was certain that the plaintiff was so aware, he could not agree that it was an essential element of the tort of false imprisonment that the victim be aware of the fact of denial of liberty. His Lordship referred to the article by Dean Prosser, "False Imprisonment: Consciousness of Confinement", (1955) 55 Col L Rev 847 at 849, and also expressed agreement with the judgment of Atkin L.J. in Meering v Grahame-White Aviation Co. Limited (1919) 122 LT 44 at 53-54. In that passage, Atkin L.J. said:

"It appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is asleep, while he is in a state of drunkenness, while he is unconscious, and while he is a lunatic. . . . Of course, the damages might be diminished and would be affected by the question whether he was conscious of it or not. . . . If a man can be imprisoned by having the key turned upon him without his knowledge, so he can be imprisoned if, instead of a lock and key or bolts and bars, he is prevented from, in fact, exercising his liberty by guards and warders or policemen. They serve the same purpose. Therefore it appears to me to be a question of fact. It is true that in all cases of imprisonment so far as the law of civil liberty is concerned that 'stone walls do not a prison make', in the sense that they are not the only form of imprisonment, but any restraint within defined bounds which is a restraint in fact may be an imprisonment."

After setting out this passage and referring to the article by Dean Prosser, Lord Griffiths referred to the "supreme importance" which the common law attaches to the liberty of the individual.

Counsel for the first respondents sought to meet the cogent force of what had been said by Atkin L.J. by referring to the authorities on the common law indictable offences of breach of prison and escape. Reference was made to Halsbury's "Laws of England", 4th Ed., Vol. 11, paras. 966, 967. No doubt a person does not commit breach of prison if he is unaware of the lawful custody from which he escapes. No doubt also, to render an officer liable for escape there must have been actual and lawful arrest of the escapee. But, in our view, consideration of the elements of liability in these crimes is of very limited assistance in construing the Letters Patent with which the Court is presently concerned.
R. v Inner London North District Coroner, Ex parte Linnane (1989) 2 All ER 254 is a decision referred to by counsel for the first respondents. The question was whether a death had "occurred while the deceased was in police custody" within the meaning of the Coroner's Act 1988 (U.K.). The deceased was an alcoholic who had been convicted of theft and sentenced to a term of imprisonment. Because of over-crowding in the prisons, he had been sent to a police station to serve his sentence. Subsequently, he was taken from the police station to a hospital, where he died. Taylor L.J. said, supra at 258:

"Looking at this matter, I hope with common sense, I take the view that he was in police custody. He was not in the physical custody in the sense of being physically held by, or arranged to be physically held by, any specific officer, but he was in the legal custody of the police or at any rate (and this is sufficient) there must have been, to anyone properly directing themselves on the circumstances then existing, reason to suspect that he was in police custody."

Finally, reference should be made to Rule 3 of the Judge's Rules, which states that persons "in custody" should not be questioned without the usual caution first being administered. In Van Der Meer v The Queen (1988) 62 ALJR 656 at 661, Mason C.J. expressed agreement with the view that a person who has not been formally arrested nevertheless may be in custody for the purposes of Rule 3 if he is taken to a police station under such circumstances that he believes that he must stay there, and the police have acted so as to make him think that they can detain him there. See also the remarks of Deane J. supra at 670.
What then follows from the consideration of these authorities, bearing in mind that they can assist but not compel any particular interpretation of the Royal Commissioner's Letters Patent? Whenever a police officer accosts an individual and restrains his freedom to walk away, he has, for the purposes of the Fourth Amendment, "seized that person" and he also "seizes him" by shooting him. Further, in some contexts, custody may subsist without immediate physical control and police may have a person in custody without first having arrested that person. An arrest may occur when, by words or conduct, a person makes it clear to another that he will, if necessary, use force to prevent the other person from going where he may want to go; it is not essential that the other person have submitted to the display of force. Moreover, an individual may be "imprisoned" without knowing of the restrictions imposed on his liberty whilst, for example, that person is asleep.
Against this background, we would not accept the proposition, which commended itself to his Honour, that persons restrained for a brief period in their dwelling house to enable the police to satisfy themselves that the wanted man was not there and that no one was threatening the police, could not be regarded as being "in custody" within the meaning of the Letters Patent. Nor do we accept the proposition that there was nothing in the evidence from which a conclusion could possibly be formed that control amounting to custody was ever actually exercised over Mr Gundy. One must bear constantly in mind that the central issue before this Court was whether the first respondents, as applicants at first instance, had established that the Royal Commissioner was threatening to exceed his jurisdiction, thereby attracting injunctive relief against further pursuit of the inquiry into the death of Mr Gundy.
The Letters Patent are concerned with the deaths of Aboriginals and Torres Strait Islanders whilst in police custody. This is not a simple concept. It would be misleading to approach the particular issues of jurisdictional fact involved in the present proceedings by testing any proposed "definition" of "whilst in police custody" by reference to examples which state in summary form other factual situations, as, for example, by speaking of a bank robber in a bank surrounded by police, or of hijackers in a plane encircled by security forces at an airport.
The first respondents submitted that if "every person detained by a police officer, for no matter how brief a period or for what purpose, could be said to be in custody, then any attempt to resist such detention by leaving would amount to an escape from custody, providing that detention was lawful". It was further submitted that if "every detention by a police officer, no matter how limited in duration, amounted to a taking into custody, then clearly a police officer would not lawfully be permitted to detain someone temporarily, for example to ascertain identity if the person were a suspect, or, to detain a person temporarily to ensure that the person did not present a danger to the police officer, for example if it were possible that the person was carrying a weapon". It was said that any temporary detention "would therefore be illegal as there would be no cause to take the person into custody and would render the police officer liable to damages for false imprisonment". Considerations of public policy were then invoked.
These arguments display in heightened form the defect to which we referred above. They do not devote attention to the particular issue, namely whether the first respondents have established that the Royal Commissioner threatens to exceed his jurisdiction under the Letters Patent. Rather, by a process somewhat akin to reduction to absurdity, attention is focused upon propositions of great width and what are seen as adverse consequences of accepting those propositions are then sought to be used to resolve the very particular problem with which this Court presently is concerned.
An Aboriginal person who is given by the police to understand firmly that he will be restrained from leaving his house at his own will may, one should have thought, properly be said to be in police custody. Much will depend upon the circumstances viewed as a whole.
Elements in the lexical meanings of "custody" include the notion of dominance and control of the liberty of the person, and the state of being guarded and watched to prevent escape. To confine the meaning of "custody" to "that state which follows arrest or similar official act", as the first respondents would have it, is, in our opinion, to pay too close a regard to legal forms rather than the substantive character or quality of police activity. One should have thought that the death of an Aboriginal person who died whilst being watched and guarded by police, acting vi et armis, was likely to be a proper subject matter for inquiry by the Royal Commissioner.
We have set out earlier in these reasons the material facts and will not repeat them, but they must be read as a whole in understanding what follows. We have particular regard to the evidence relating to the surrounding of the house by armed police officers, the time and method of entry into the house and the confrontation of Mr Gundy in his darkened room, illuminated by the torch on the shotgun carried by the police officer who kicked open the door to the room.
In our view, at that stage, it could not be said that the facts showed Royal Commissioner would be acting in excess of his jurisdiction if he proceeded with the inquiry on the footing that Mr Gundy died whilst in police custody.
In our view, it would be insufficient to displace that conclusion by pointing to the circumstances that Mr Gundy did not "submit", but, on the contrary, struggled with the police officer. Nor is it sufficient that the period of restraint was temporary. Nor that the police were not shown to have had a particular purpose as regards Mr Gundy beyond their purposes in looking for the weapon and effects of the suspect, the suspect himself, and requiring identification of those in the house.
We conclude that the first respondents did not make out their case before the learned primary judge to establish the primary facts showing apprehended activity by the Royal Commissioner in excess of the jurisdiction conferred on him pursuant to the Letters Patent and the enabling legislation. The appeal should be allowed and orders made as proposed in the judgment of Beaumont J.

JUDGE2

This is an appeal from orders made by a judge of the Court (Burchett J.) restraining a Royal Commissioner from launching a particular inquiry which, his Honour found, was outside the scope of the Letters Patent establishing the Royal Commission. The appeal arises in the following circumstances.

By Letters Patent ("the Letters Patent") dated 6 May 1988, the Honourable John Halden Wootten Q.C. was appointed a Royal Commissioner ("the Commissioner") by Her Majesty the Queen by the Governor-General of the Commonwealth of Australia on the advice of the Federal Executive Council and pursuant to the Constitution and the Royal Commissions Act 1902 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) whilst 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 medical treatment centre unless injuries suffered while in police custody, in prison or in any other place of detention caused or contributed to that death..." (Emphasis added)

By further Letters Patent dated 17 August 1988, the Commissioner was also appointed a Royal Commissioner by Her Majesty the Queen by the Governor of New South Wales in terms similar to those set out above in relation to the Commonwealth Royal commission.
(The Letters Patent of both the Commonwealth and New South Wales Royal Commissions were subsequently varied. These variations, however, do not hold any significance for present purposes. The Royal Commissioner was directed by both sets of Letters Patent to consult with and conform to any guidelines or procedures directed by the Honourable James Henry Muirhead. Mr Muirhead Q.C. was appointed a Royal Commissioner by Commonwealth Letters Patent issued 16 October 1987 (and State Letters Patent issued 21 October 1987) to inquire on a national scale into Aboriginal deaths in custody. Mr Muirhead Q.C. was, in effect, at the apex of an elaborate scheme of co-ordinate and concurrent Royal Commissions (cf. Boath v. Wyvill (1989) 85 ALR 621) which were established as a result of public disquiet at the significant number of Aboriginals who, since 1980, had met their death whilst in police custody. Mr Muirhead Q.C. was subsequently replaced as Royal Commissioner by the Honourable Frank Elliott Johnston).
In October 1989, there came before the Commissioner as a subject of potential inquiry by the Royal Commission the case of David John Gundy, an Aboriginal who died on 17 April 1989 in the course of a police raid on the house in which he was living at 193 Sydenham Road, Marrickville. Mr Gundy's death was the subject of a coronial inquiry conducted between 17 July and 23 August 1989. The jury in that inquiry found:

"On the 27th April, 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 acting in the course of his duty and the weapon accidentally discharged."

A preliminary question arose for determination by the Commissioner whether Mr Gundy's death should be listed as a death which could properly be investigated by the Royal Commission under the terms of the Letters Patent. Counsel representing several police officers and counsel for the NSW Police Association and various of its members, contended before the Commissioner that Mr Gundy had not been "in police custody" at the time of his death and that therefore the circumstances surrounding that event were outside the terms of reference of the Royal Commission.
By reasons published on 27 March 1990, the Commissioner concluded that Mr Gundy was relevantly in police custody. The Commissioner said (at p 9) -

"...there would be no doubt in my mind that even accepting police evidence to the full 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."

The Commissioner also held, in the alternative, that there was "a sufficient possibility that Mr Gundy may have been in custody...to justify inquiries by the Commission continuing" (at p 11).
An application was then made to Burchett J. under s.39B of the Judiciary Act 1903 for an injunction to restrain the Commissioner from proceeding with an inquiry which, the applicants for relief ("the applicants") claimed, was outside the scope of his Commission. The applicants were serving members or former members of the N.S.W. police force.
The transcript of certain evidence at the coronial inquiry into Mr Gundy's death was tendered without objection before Burchett J. The purport of this evidence was stated by Burchett J. to be as follows:

"It is clear that the only evidence of what happened in the room where Mr Gundy met his death, is to the effect that he 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 tried to get hold of the officer's weapon."

His Honour noted that it had been admitted that there was no suggestion of any new evidence relating to circumstances surrounding Mr Gundy's death being available. The question his Honour then posed for himself to be decided was -

"whether the circumstances evidenced at the coronial inquiry...do show, or at worst for the applicants could possibly be held to show, that Mr Gundy died 'whilst in police custody, in prison or in any other place of detention."

If the answer to this question was in the negative, it would follow, his Honour said, that any inquiry conducted by the Royal Commission would be ultra vires its jurisdiction as delimited by the Letters Patent.
Central to the reasoning of Burchett J. was a consideration of the meaning of the word "custody" in the context of the Letters Patent. His Honour found that (a) the Letters Patent emphasized the existence of a state of custody at the time when the death occurrred; (b) police custody would normally import a continuing state; and (c) a strong intimation of restraint by police would only amount to custody when there was either a surrender to the police or such an intimation occurred (as in Smith v. The Queen (1957) 97 CLR 100) at a police station or, for example, in a police vehicle.
His Honour said that there was no evidence of any of these circumstances on the findings which flowed from the coronial inquiry. Accordingly Burchett J. answered the question he had previously posed in the negative and ordered that the Commissioner be restrained (that is to say, permanently restrained) from exercising any coercive or compulsive power pursuant to the Letters Patent in respect of the applicants in relation to the death of Mr Gundy or from otherwise enquiring into that death.
In order to understand the respective contentions of the parties on the appeal, it is necessary to refer to the course of proceedings before the Commissioner and before Burchett J. in further detail.
The course of proceedings before the Commissioner
On 31 October 1989, the Commissioner held a hearing to determine whether the death of Mr Gundy should be listed as a death calling for investigation by the Commission. At the time, counsel assisting the Commission, counsel for the de facto spouse of Mr Gundy, (the first appellant) counsel for Aboriginal organisations (including the second appellant) and counsel for the New South Wales Government all submitted that the case fell within the terms of reference as a death in "police custody". Counsel for the New South Wales Police Association and members of the Association involved offered no argument to the contrary. Accordingly, the matter was added to the list of deaths for investigation by the Commission.
Subsequently, the police who constituted the Special Weapons and Operation ("SWOS") Squad which carried out the raid, the applicants before Burchett J., now the first respondents in the appeal, retained separate representation before the Commission.
By letter dated 21 February 1990, counsel assisting the Commissioner wrote to counsel for the applicants as follows:

In my view, the applicants had standing to bring the proceedings, which were in the nature of an application for prohibition.
(2) Was the Commissioner threatening to do something which was beyond his powers?
One of the ultimate sources of the Commissioner's powers was s.1A of the Commonwealth Royal Commissions Act as follows:

"Power to issue Royal Commission 1A. Without in any way prejudicing, limiting, or derogating from the power of the King, or of the Governor-General, to make or authorize any inquiry, or to issue any commission to make any inquiry, it is hereby enacted and declared that the Governor-General may, by Letters Patent in the name of the King, issue such commissions, directed to such person or persons, as he thinks fit, requiring or authorizing him or them or any of them to make inquiry into and report upon any matter specified in the Letters Patent, and which relates to or is connected with the peace, order, and good government of the Commonwealth, or any public purpose or any power of the Commonwealth." (Emphasis added)

It may be accepted, for present purposes, that, in accordance with the provisions of s.1A, the Commissioner could lawfully exercise his powers to summons witnesses under s.2, for instance, in respect only of a "matter specified in the Letters Patent". As has been seen, that "matter" was "specified" so as to include, inter alia, the death of an Aboriginal "whilst in police custody".
Two questions then arise: (1) What is the true meaning of the phrase "police custody" in the present context? (2) What are the material facts of the present case?
It is convenient to turn first to the facts of the present case.
The facts
The application before Burchett J. was, of course, an application for judicial review by way of a perogative writ for prohibition. In such a proceeding, it was for the Court to decide as to the existence of the facts which constituted the condition of jurisdiction; and the applicants bore the onus of establishing facts, by admissible evidence, which showed an absence of jurisdiction. In The Queen v. Alley; Ex parte N.S.W. Plumbers and Gas Fitters Employees' Union (1981) 153 CLR 376, Gibbs C.J. said (at p 382):

"Where the jurisdiction of the Commission depends on the existence of facts, it is proper for the Commission to inquire whether those facts exist, so that it may determine whether or not it should proceed with the matter before it. However, its decision on that question is not binding, and when an application for prohibition is made to this Court, it is for this Court to decide as to the existence of the facts which constitute the condition of jurisdiction. This is well settled. On an application for prohibition, the burden of establishing the facts which show an absence of jurisdiction always rests on the prosecutor." Mason J. said (at p 389):

"It has been repeatedly affirmed by this Court that it has to determine independently for itself whether in a particular case the Commission has or lacks jurisdiction and that in reaching its decision this Court will apply the ordinary rules of evidence."

It appears that the applicants did not seek, in any formal fashion, to establish before Burchett J. the primary facts being the circumstances surrounding the death of Mr Gundy. As has been said, the only affidavit evidence read to his Honour came from solicitors who had no personal knowledge of the incident. It is, of course, possible that some of the facts in that respect were common ground. But it does not appear that the respondents to the application were asked to admit any of those facts. It is true that evidence was admitted, without objection, on the footing that it was material before the Commissioner. Such material was relevant on the issue whether, on the material before him, the Commissioner made an error of law. But such material, which was inadmissible hearsay, could not prove the truth of the underlying facts. As Gibbs J. said in Hughes v. National Trustees, Executors and Agency Company of Australasia Limited (1979) 143 CLR 134 at p 153:

"There are no doubt some cases in which inadmissible evidence, having been admitted, may be treated as evidence for all purposes; for example, where one party by his conduct at the trial has led the other to believe that evidence, although hearsay, may be treated as evidence of the facts stated, and the other in reliance on that belief has refrained from adducing proper evidence, the former party is precluded from objecting to the use of the evidence to prove the facts stated. However, in general it is the duty of a judge to reach his decision on evidence that is legally admissible, and to put evidence only to those uses which the law allows. When a statement is admitted, not as evidence of its truth but simply as original evidence, the mere fact of its admission cannot enable it to be given an additional probative value which the law denies it."

See also "Note: The Status of Hearsay and Other Evidence Admitted Without Objection" (1985) 1 Aust Bar Rev 155.

Unless the material facts, being the circumstances surrounding the death of Mr Gundy, were formally admitted by the respondents to the application or, by the conduct of the parties should be treated as common ground, the onus lay on the applicants to prove the relevant primary facts. But the truth of the underlying facts was always a contentious matter, both before the Commission and before Burchett J. In his reasons, the Commissioner made it clear that he had not yet an opportunity to investigate fully the circumstances surrounding Mr Gundy's death. Burchett J. was in the same position. I will defer, for the time being, the consideration of what consequences flow from the absence, in the proceedings before Burchett J., of primary evidence with respect to the circumstances surrounding the death of Mr Gundy.
The meaning of "police custody" in the Letters Patent
It is common ground that the phrase "police custody" where used in the Letters Patent is not a term of art. The argument centred on the meaning of "custody" in the present context.
One of the definitions of "custody" offered by the Macquarie Dictionary is:

"3. imprisonment: He was taken into custody."

The Macquarie defines "imprison" as follows:

"1. to put into or confine in a prison; detain in custody. 2. to shut up as if in prison; hold in restraint."

In my opinion, if a person was shut up by a police officer as if in prison or held in restraint by a police officer, that person would be held in "police custody" for the purposes of the Letters Patent. This is essentially a question of fact (cf. Meering v. Grahame-White Aviation Co. Ltd. (1919) 122 LT 44 per Atkin L.J. at pp 53-4; Murray v. Ministry of Defence (1988) 1 WLR 692 per Lord Griffiths at p 702; Bales v. Parmenter (1935) 35 SR (NSW) 182 per Jordan C.J. at pp 188-9; Smith v. The Queen, above, per Williams J. at p 129; Williams v. The Queen (1986) 161 CLR 278 per Gibbs C.J. at pp 283-5; Van Der Meer v. R (1988) 82 ALR 10 per Mason C.J. at pp 17-19; Brown (1976) 64 CrAppR 231 at pp 234-6; Hart v. Chief Constable of Kent (1983) RTR 484 at pp 489-491; Regina v. Inner London North District Coroner; Ex parte Linnane (1989) 1 WLR 395 per Taylor L.J. at p 400).
Once it is accepted as, in my view, it must be, that the notion of "police custody" in the Letters Patent is not a technical question but depends upon whether, in the particular circumstances, Mr Gundy was held in restraint, the primary facts surrounding the incident in question become crucial. As has been said, those facts are, in critical respects, controversial. The Commissioner could not, and did not attempt to, determine what the facts were in any conclusive fashion. As has been noted, the onus rested upon the applicants to establish primary facts showing an absence of jurisdiction, to the satisfaction of Burchett J. The applicants did not do this. Indeed they did not even attempt to do so. Given the contentious nature of the evidence, it is not surprising that the applicants did not seek formal admissions from the respondents on the material facts. In the result, in my opinion, the applicants failed to establish before Burchett J. the facts upon which they based their challenge to the Commission's jurisdiction. In the absence of admissible evidence of those facts, the challenge by the applicants to the Commissioner's jurisdiction must fail. I would allow the appeal accordingly.
The cross-appeal
Burchett J. ordered, at an interlocutory stage of the proceedings, that the appellants be added as additional respondents to the application. The first respondents have lodged an appeal, purporting to be as of right, from this joinder.
The appellants having been granted leave to appear before the Commission, they had a sufficient interest to justify their joinder in the proceedings for judicial review (see Sinclair v. Mining Warden at Maryborough (1975) 132 CLR 473 per Barwick C.J. at p 478; Australian Conservation Foundation v. Forestry Commission (1988) 79 ALR 685 per Burchett J. at p 689; see also United States Tobacco Company v. Minister for Consumer Affairs (1988) 20 FCR 520 at pp 530-531).
No attempt was made by the applicants at the time of the joinder to seek leave to appeal from this decision. The order of joinder was clearly interlocutory both in form and substance. An application for leave to appeal was necessary but is now out of time. In my opinion, it is not appropriate, given, in particular, the futility of any appeal from the order of joinder, that an extension of time in which to seek leave to appeal should now be granted.
Conclusion and orders
I propose that the appeal be allowed, with costs and that the cross-appeal be dismissed as incompetent, also with costs. I propose the following orders:

1. Appeal allowed.

2. Set aside the orders made by Burchett J. on 23 April 199O; in lieu thereof, order that the proceedings be dismissed with costs.

3. Order that the first respondents pay the costs of the appellants of the appeal.

4. Refuse the application for an extension of time in which to seek leave to cross-appeal; order that the first respondents pay the costs of the appellants of the application for extension and for leave.

5. Dismiss the cross-appeal as incompetent; order that the first respondents pay the costs of the appellants of the cross-appeal.

[1990] FCA 216

23 MAY 1990