Cunneen, Chris --- "Update: Inquest into David Gundy's Death" [1989] AboriginalLawB 31; (1989) 1(39) Aboriginal Law Bulletin 2

• Update-Inquest Into David Gundy’s Death

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Update -
Inquest into David Gundy’s Death

by Chris Cunneen

In the last AboriginalLB we reported briefly on the killing of 32 year old Aboriginal man, David Gundy, by NSW police. As the current AboriginalLB goes to print the coronial inquiry into the death is drawing to a close after a five week hearing. Already the coroner has indicated that he does not intend to find a prima facie case for offences related to the death. Gundy was killed after members of the Special Weapons and Operations Squad (SWOS) raided his house on April 27, 1989 in search of another man, John Porter, who was suspected of shooting two police officers three days earlier. Eight SWOS officers, armed with 12 gauge shotguns, used a sledgehammer to break down the front door in the early hours of the morning. David Gundy was shot in his bedroom. Three other people, including Gundy's young son, were in the house at the time. The suspect whom police sought was not there.

According to the evidence of Dawson, the SWOS officer responsible for the shooting, Gundy had shouted obscenities at him and tried to grab the shotgun with both hands after Dawson had kicked open the bedroom door. During the struggle, Dawson's finger slipped onto the trigger (which had the safety catch off) and the shotgun discharged. Dawson's evidence is corroborated by another SWOS officer Watson.

The three other people in the house all claimed that they did not hear Gundy's voice at all nor the sound of the alleged struggle. One of the three claimed he heard a police officer say, as he was being escorted past the bedroom, "oh fuck, I am sure it was him. He was around the same size."

The evidence of three forensic pathologists indicated that Gundy was standing at the time he was shot, probably slightly crouched over with his left arm outstretched. It was unknown whether he was touching the shotgun when it discharged. However no traces of Gundy's fingerprints were found on the shotgun.

The pathologist who conducted the autopsy found that Gundy had died an accidental death. There was no clinical evidence, however, to support the claim that a struggle took place. Nor was there any clinical evidence that ruled out the possibility that the death was a homicide. Under cross-examination the pathologist admitted that it was through what had been told to him by police that he discriminated between an accidental killing and a deliberate killing.

An ambulance paramedic, called to the scene, gave evidence that police replied "good" when told that Gundy may as well be dead as a result of the injuries. The paramedic stated that when he was at the hospital he was told by police that Gundy was "the guy we're after for the shooting".

In other evidence it was revealed that David Gundy's home had been raided four times previously by heavily armed police searching for suspects. All the previous raids had been unsuccessful in locating suspects.

It was also revealed that the SWOS squad responsible for the raid had met in the following weeks to discuss the case, despite written and verbal instructions from senior police not to do so. The meeting was addressed by Dawson and Sergeant Brazel (the officer in charge of the team). Brazel has been subsequently removed from SWOS as a result of an investigation by the Ombudsman into allegations of misconduct during a 1985 SWOS training exercise.

Detective Superintendent Stephenson who approved the raid on Gandy's home (and five other simultaneous raids) did not think the operation "went wrong" despite the fact that the suspect, John Porter, was not located. David Gundy's death was described as "unfortunate".

The Royal Commission into Aboriginal Deaths in Custody has also been closely monitoring the coronial inquiry. As yet no decision has been made as to whether the matter falls within the jurisdiction of the Commission.