Cunneen, Chris --- "The Police Killing of David Gundy" [1991] AboriginalLawB 33; (1991) 1(50) Aboriginal Law Bulletin 13

The Police Killing of David Gundy

by Chris Cunneen

David Gundy "was accidentally shot by the gun of a trespassing policeman." (Wootten p.4)



"Regrettably to this day, police have refused to recognise the shortcomings In the training and methods of SWOS, the unlawfulness of their raid, or the patent untruth on which it was based" (Wootten, p4)

The Report of the Inquiry into the Death of David Gundy by Commissioner Hal Wootten offers a terrifying glimpse into the methods and psychology of police paramilitary groups in Australia. Furthermore it points to the manner in which systemic problems in investigatory procedures, avenues of accountability and the culture of police serve to cover-up appalling attitudes to the public and the law.

Commissioner Wootten found that Sergeant Dawson had no intention to injure David Gundy and was no more to blame than the other police who were involved in the planning and execution of the raid. Yet of the raid itself, the Report is damning: Gundy was killed during "an unlawful police raid on his home. Police had no legal right to be in his home at all, much less to point a loaded and cocked shotgun at him" (p.1).

Wootten acknowledges that police were concerned to recapture John Porter after he had shot at police, seriously injuring two officers (one of whom later died). However, this led police "to make serious misjudgements and to treat SWOS guidelines, the Police Instructions, and the law and its processes disdainfully" (p.2). In particular SWOS officers both prior to and after the raid "lacked the humility to seriously consider the lawfulness of their methods, or to acknowledge the terrifying effect of what they did on innocent citizens, or the risk involved in their operations". The report drives home the essential dangerousness of paramilitary police units which can rationalise their conduct on an 'ends justify the means' basis. The death of David Gundy showed clearly that SWOS not only believed that the ends justified the means in relation to law enforcement, but that they were able to operationalize that belief.

Wootten found that, "A senior sergeant obtained invalid search warrants by the making of patently untrue statements" (p.3). Even if the warrant had been legally obtained, the police disregarded the requirements of the warrant. According to Wootten "police demonstrated their lack of respect for the law in other ways" (p.4 and pp.91-92) which included:

• ignoring the statutory restrictions on the hours at which the warrant might be executed by raiding the premises prior to 6.00 am;
• failure to announce the presence of police and to demand entry prior to making a forced entry;
• assault and false imprisonment of the occupants by pointing guns at them and requiring them to lie on the floor;
• failure to serve the Occupier's Notice as required in the Search Warrants Act (NS W)1985;
• seizure and removal of objects from the premises for which "there was not the slightest justificiation", including nine year old Bradley Eatts' story book; and
• failure to report the result of the raid to the justice of the Peace who had issued the warrants as required under the Search Warrants Act (NS W) 1985.

Commissioner Wootten was highly critical of the intelligence and surveillance which led to the raid on David Gundy s house and simultaneous raids on five other premises. The selection of Gundy's house was on the basis of intelligence from an informant whose, "nonsensical statement was treated by the police as confirmation" of Porter's possible presence (p.6). There was "not the slightest reason to suppose any Criminal connection between Porter and anyone at the premises and no inquiry was made about them. Police did not even know that David Gundy was the occupier" (p.7). Wootten argues that it was an "unjustifiable decision to make simultaneous forced entries on six premises, in none of which there was any real evidence that he [Porter] would be present" (p.10). On only two premises had there been any significant surveillance and it had produced no indication of Porter's presence. On three premises which were raided there had been no surveillance at all.

Wootten argues that the police decision to conduct the raid was "unbalanced". The risks of physical or psychological injury to innocent persons, the invasion of citizens' homes and questions of the legality of the raids were lightly dismissed. It is Wootten's view that judicial officers of higher standing and greater independence than Justices of the Peace should be required to consider applications for warrants where forced entry may be used.

In relation to the training of SWOS, Wootten found that there were serious deficiencies (pp.9, 12, 36-38). Dawson had never been trained to deal with such situations other than that he must retain his weapon at all costs. He had only been taught to pull the weapon back. This lack of training was based on the assumption that occupants of a house in such situations would be terrified and freeze. "If they did not freeze in their terror they were to be dismissed, in the words of the Commander of SWOS about Mr Gundy, as 'utterly irrational' and to be blamed" (p.12).

The Report is critical of the post death investigation. The person placed in charge of the investigation was Supt Harding who had been a part-time member of SWOS and who "clearly identified strongly with members of the SWOS team" (p.13). Within a few hours of his appointment and on the same day as the shooting, Supt Harding announced to a journalist that a preliminary investigation had revealed that all police had acted properly. The same afternoon he prepared and relayed a departmental telex to all police stations stating the above plus Dawson's view of the shooting and the fact that Mr Gundy had a criminal record. This information found its way to 2UE Radio and the Johns Laws programme. Harding never prepared a report as he was required to do under Police Instructions and the Police Regulations (Allegations of Misconduct) Act. Harding passed the material he had collected onto the (then) Assistant Commissioner for Professional Responsibility Tony Lauer, who reached the same view that there was no police fault in the shooting. Lauer is now the Commissioner of the NSW police. Wootten was highly critical of the absence of a written report. "[There] is nothing in writing to demonstrate they [Harding and Lauer] did consider the issues or how they reached their conclusions exonerating all police" (p.15). In relation to accountability, Wootten found that "in the absence of a written report those who are supposed to have held other police accountable can retreat behind a wall of waffle, inability to remember and unspecified reference to thousands of pages of coronial transcript, when they themselves are called to account" (p.274).

Wootten is equally critical of Lauer and the State Coroner in their attempt to prevent the Ombudsman from inquiring into the death. According to Wootten, Lauer "endeavoured to divert the official Ombudsman s inquiry by a nit-picking approach to the interpretation of a complaint" (p.15, see also pp.253-258). In this he was later joined by the State Coroner, Mr Waller, "who displayed not only a misunderstanding of the law but an excessive concern for the importance of his own office, which he seemed to regard as displacing the functions of all other persons" (p.15, see also pp.258-262).

Wootten summarises the police disregard for the rule of law; "inconvenient legal rules can be safely ignored ... This attitude permeated not only the execution of the raid by SWOS, but its planning by senior detectives and the obtaining of warrants. The attitude was supported by the senior officers who investigated the matter and swept all legal issues under the carpet" (pp.17-18).

In relation to David Gundy's nine year old son, Bradley Eatts, who was present in the house at the time of the raid and shooting, Wootten found that "police officers made no attempt to comfort him or even to explain to him what had happened" (p.16). Bradley heard of his father's death on the police radio. Wootten was also critical of the treatment of David Gundy's wife Dolly Eatts who was notified of the death while in Mt Isa and immediately questioned as to her knowledge of Porter. Wootten concludes that "the indifference to the welfare of innocent citizens which the police showed in planning the raid continued to be displayed in the aftermath of David Gundy's death" (p.17).

Commissioner Wootten recommended that compensation be paid to Doreen and Bradley Eatts, and to Marc Valentine and Richard McDonald who were on the premises when the unlawful police raid occurred. The Commissioner- also recommended that consideration be given to whether criminal or disciplinary proceedings should be taken against any person arising out of matters dealt with in the Report.