Nettheim, Garth --- "Eatts v Dawson (Royal Commission into Aboriginal Deaths in Custody - jurisdiction - death of David Gundy - whether 'whilst in police custody')" [1990] AboriginalLawB 25; (1990) 1(44) Aboriginal Law Bulletin 17

• Eatts V Dawson
• Royal Commission Into Aboriginal Deaths In Custody-Jurisdiction-Death Of David Gundy-Whether "Whilst In Police Custody"

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Eatts v Dawson

Royal Commission into Aboriginal Deaths in Custody - jurisdiction - death of David Gundy - whether "whilst in police custody"

Eatts v Dawson

Federal Court of Australia: Morling, Beaumont, Gummow JJ

No. G208 of 1990 FED No. 216

Sydney, 23 May 1990

Casenote by Garth Nettheim

The issue was whether the Hon J H Wootten QC, a Royal Commissioner, was entitled to enquire into the death of David John Gundy.

The matter turned on the language of Commonwealth and NSW Letters Patent issued to the Royal Commissioner under which he was to inquire into deaths of Aboriginal and Tones Strait Islanders "whilst in police custody, in prison or in any other place of detention.

Mr Gundy had died on 27 April 1989 in the course of an early morning raid on the house he was occupying by members of the Special Weapons and Operation Squad (SWOS) of the NSW Police Force who were looking for someone else. In a coronial inquiry, the jury, on 23 August 1989 found that Gundy had

... 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.

On 30 October 1989 there was a hearing before the Royal Commissioner to determine whether Mr Gundy's death should be listed for investigation. It was so listed after the NSW Government submitted that it fell within the terms of reference as a death "whilst in police custody". Subsequently, however, on 19 March 1990, the SWOS officers and the Police Association of NSW submitted that Mr Gundy had not been in custody at the relevant time. On 27 March 1990 the Royal Commissioner held that Mr Gundy had been in police custody and that he had jurisdiction to proceed with the inquiry. The police officers sought and gained injunctive relief under s.39B of the Judiciary Act 1903 (Cth) from the Federal Court (Burchett J) to restrain the Royal Commissioner from proceeding with the inquiry. The deceased's de facto wife and the National Aboriginal and Islander Legal Service (NAILSS) appealed to the full Federal Court.

In a joint judgment Morling and Gummow JJ pointed out that it was for the Court to decide whether the facts essential to the Royal Commissioner's jurisdiction existed, but that the burden of establishing an absence of jurisdiction always rests on the moving party before the Court. They considered dictionary meanings of "custody", American jurisprudence under the 4th Amendment of the Constitution and habeas corpus cases, and recent UK decisions relating to arrest and other issues. Their Honours said:

... 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 context, 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....

Later on they added:

... 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.
...

In a separate judgment, Beaumont J reached a similar conclusion. The appeal was allowed (and a cross appeal discussed) with the first respondents to pay the appellants' costs.

J Basten, instructed by Aboriginal Legal Service Ltd for appellants.

R J Burbridge QC and P Roberts, instructed by Treakle Ormsby & Associates for the first respondents.

Ms K Hughes of the Australian Government Solicitor for the third respondent (the Commonwealth Attorney-General).

Special leave to appeal to the High Court has been refused.