Counsel questions inquiry’s legality

Press, 26 November 1982, Page 7

Counsel questions inquiry’s legality

PA Wellington Counsel have submitted that the Executive Council had “quite unlawfully” advised the GovernorGeneral to appoint the Commission of Inquiry into allegations of impropriety in the administration of the District Court at Wellington. Mr Timothy Olphert and Mr Desmond Deacon seek an order in the High Court at Wellington which would prohibit the commission from starting its inquiry before the completion and determination of the criminal prosecutions against four Justice Department clerks.

Judgment was reserved by Mr Justice Barker.

The applicants are Kevin Joseph McGlinchey, aged 24; Linda Ann McQuade, aged 24,; Michael Peter Waluszewski, aged 25; and David John Thompson, aged 26.

They have been charged with conspiring to prevent or defeat the course of justice by interfering with the proper Court procedure in

relation to minor offence notices by each other and other persons.

Mr Olphert said the first ground of the applicants’ case was that in New Zealany any questions as to the guilt or innocence of the applicants by trial would be determined solely by the High Court and could not be decided by a commission. “Alternatively, the commission cannot lawfully undertake or embark on its inquiry until the criminal prosecutions have been totally or completely determined by the Courts.” he said.

Mr Deacon said what counsel sought was that the trial of their clients was under the rules of judicial process and not under rules laid down by the Executive Council.

Mr R. B. Squire, for the Attorney-General, said it was fundamental to the applicants’ case that the term “impropriety” was sufficiently wide to encompass criminal activities. The Crown did not argue the contrary.

It was the Crown’s submission, however, that to whatever extent the first term of reference enabled the commission to inquire into criminal conduct, the same

was lawful because such matters were within the powers conferred by Section Two of the Commission of Inquiry Act.

“The first term of reference in its ordinary natural sense clearly contemplates inquiries into the activities of persons beyond the four applicants herein, and equally clearly encompasses activities which are criminal and which fall short of that,” he said.