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Allegations
of Abuse in Institutions |
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Two Catholic clergymen
facing child sex charges might not receive a fair trial if they were
extradited to New Zealand, a Sydney court was told today. Brother Rodger Maloney,
69, and Father Raymond John Garchow, 59, face a total of 32 charges, and are
accused of sexually assaulting students at a Christchurch school for boys
with intellectual and learning disabilities. The members of the St
John of God order allegedly assaulted boys in their care at the Marylands
School in the South Island city between 1966 and 1980. In February, Sydney's
Downing Centre Local Court ordered their extradition to New Zealand. As they began fighting
the order in the Federal Court today, their barrister, Paul Byrne, SC, said
it would be unjust to surrender the men because they might not receive a fair
trial in New Zealand. Mr Byrne expressed
concerns about "the extent to which these allegations have been
publicised in New Zealand, and the atmosphere in which these men would likely
be tried". He said there had been
"an orchestrated campaign" encouraging people to come forward with
complaints of sexual abuse, raising questions about whether individual
allegations may have been contaminated. The accusations may not
have been made in good faith, Mr Byrne said, and the New Zealand justice
system allowed evidence to be admitted even when there may have been
collusion or fabrication by the complainants. The chances of Maloney
and Garchow receiving a fair trial also would be "dramatically"
diminished if they were tried on a number of allegations brought by different
complainants, rather than having individual allegations heard separately, Mr
Byrne said. Their trials also might
proceed on what is known as a representative charge, which had been ruled
invalid by the High Court of Australia. Mr Byrne described
representative charges as a "scattergun approach" because they did
not specify precisely when an offence allegedly occurred, only that it took
place within a broad time frame. He also said Maloney's
trial might be prejudiced because New Zealand authorities wanted to try him
jointly with a "notorious paedophile", a Marylands brother
previously jailed after pleading guilty to child sex charges. The lengthy delay in
charging the men also presented problems, Mr Byrne told the court. With the alleged
offences taking place up to 39 years ago, medical records were no longer
available and many of the school's staff, including the doctor, had died. If there was a chance
the proceedings might be permanently stayed because Maloney and Garchow were
disadvantaged by the delay, they should not be subjected to the ordeal of
extradition, Mr Byrne said. "In New Zealand,
the odds that a permanent stay will be granted are much higher," he
said. "Courts in New
Zealand seem to be more inclined to use the power of permanently staying
proceedings in these cases of historical sexual abuse than courts in
Australia do." The hearing continues
tomorrow before Justice Rodney Madgwick |
