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Application For Discharge Of Suppression Order

Judgment On Application For Discharge Of Suppression Order

Media Statement




In the Otahuhu District Court today Judge Harvey has said he has no jurisdiction to grant the application by Wilson and Horton to discharge the suppression order in respect of a visiting American businessman made on 7 January 2000.

Judge Harvey said he was therefore unable to consider whether the application should be granted, or whether he should grant the application by Ms Dyhberg, counsel for the businessman (described in the judgment as “Mr L”), for a stay of the application by Wilson and Horton.

Judge Harvey said while there are important private and public issues that arise within the context of this case his function is to decide the matter according to law.

He also said his decision to decline jurisdiction is one that he reached according to law and not from any reluctance to revisit his earlier decision.

Judge Harvey said the Court cannot assume jurisdiction where none is clearly provided.

He said the District Court only has jurisdiction where the legislature says it does, unlike the High Court, which has inherent jurisdiction.

Judge Harvey said there is no statutory authority as far as orders for suppression of name are concerned whereby a Judge may, after making a final order for suppression of name under s. 140 of the Criminal Justice Act, revisit or reconsider such an order, other than in circumstances such as when the order could be described as a nullity.

“There is no suggestion in this case that the order made on 7 January 2000 was a nullity.”

Judge Harvey said if the legislature had intended that a Judge could subsequently vary or discharge a final order it would have said so.

He contrasted this situation with that of an interim order, which can be revisited by the Judge.

“Even in the High Court, with its inherent jurisdiction, final orders would not be set aside lightly.”

Judge Harvey said in the absence of any specific statutorily prescribed jurisdiction or any inherent jurisdiction there is the difficulty of overcoming the concept of “functus officio”.

The Judge quoted the authority of Police v. Gilchrist, which said this concept means that once a Judge has completed his role that is the end of the matter and the Judge has no power to later revisit or reopen the matter.

“The concept of finality is reinforced by the existence of remedies by way of appeal, rehearing and judicial review. It would be improper for a District Court to assume a jurisdiction in circumstances where it is not clear that provision for one has been made.”

Judge Harvey said he concluded therefore that a District Court Judge does not have the jurisdiction to discharge or review a final suppression order that has been made pursuant to s. 140 of the Criminal Justice Act 1985.


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