|
|
Allegations
of Abuse in Institutions |
|
|
|
|
The decision by an Australian
judge to block the extradition of two Catholic clergymen facing child sex
charges in New Zealand is being criticised by law experts. Two former St John
of God brothers face over 30 charges dating back to the 1970s of abusing boys
at the Marylands Special School in Christchurch. The Australian Federal Court
judge ruled the men wouldn't get a fair trial because the allegations are
over 20 years old and the legal systems of the two countries differ on how to
deal with historical cases. Associate Professor of
Law at Auckland University, Scott Optican believes that's wrong.
Let's just look at the
New Zealand law. I mean the idea that an Australian judge would be saying that
a historical sexual abuse case can't be tried fundamentally fairly in NZ has
to be incorrect. New Zealand criminal
justice system operates within a fully functioning democracy with full due
process, protections for accused persons and a bill of rights, Plus New
Zealand has had quite a bit of experience dealing with historical sexual
abuse cases. There's lots of procedural mechanisms for ensuring that the
trials are fair or if the trials cannot be fairly held because of their ages
then the law requires that they be dismissed. So taking the long view of this
I mean theres absolutely no doubt that the New Zealand criminal justice
system can and does deal with historical sexual abuse trials fairly. What do you think that
this ruling means for future extradition cases? Is there a risk, for example
that people may go to Australia to get around the justice system here?
No I don’t think
so. I think this is probably an
extraordinary kind of case and a bit of a one off. I haven't heard of other
cases or extraditions being denied. I do think it sets a bad precedent for
the practice of extradition between the two countries. And I hope it would be
appealed and it would be reversed. As I've said, the New Zealand criminal
justice system has experience dealing with these cases. If they can't be
tried fairly NZ law require they be dismissed and New Zealand judges would
themselves have a discretion to guide the jury as to how evidence in the case
should be viewed and make sure the trial is held fairly. There's no reason to
think that just because a case is old that it shouldn't be tried and there's
no reason to think the NZ justice system isn't up to the challenge of
ensuring that the defendants in historical sexual abuse cases are treated with
the fairness and due process that they deserve.
Police and Crown
prosecutors are still trying to decide whether to appeal or not. What would
be the best grounds for appeal do you think?
Well the best grounds
for appeal would be simply that the judge incorrectly exercised discretion. I
mean the Australian extradition statute like many extradition statutes would
allow him to deny extradition if he thought that the defendants wouldn't get
a fair trial in the requesting country or being treated in an unjust or
oppressive manner, but as I've said there's no warrant for thinking that when
it comes to NZ law. I mean a reason was given by the judge that the case
might not be tried fairly because it's too old. That may be the case but NZ
law would require it be dismissed if it couldn't be tried fairly. Our law's
up to that challenge. And in terms of the judge suggesting it wouldn't be
fair because the jurors wouldn't get a guaranteed instruction to view
evidence of great age with great caution - The absence of that guarantee in
NZ law doesn’t mean the trial would be any less fair and NZ judges have
always had a discretion to tell jurors how to look at evidence, how to
consider evidence to ensure that the trial is carried out with utmost fairness
for the defendants in the case. So again, those would be the reasons for
appealing - simply that the judge got it wrong and the fundamentals of the NZ
system are fair - the defendants would not be treated in an unjust or
oppressive manner
Justice Madgwick also
said that Australian law recognises (quote): "that even truth may be
achieved at too high a price". What do you make of that?
So does New Zealand
law. NZ law has said about these historical sexual abuse cases for years that
if they can't be tried fairly they should be dismissed. There is a history of
dismissing historical sexual abuse cases in New Zealand for lengthy delays
that would make it impossible to have a fair trial. On the other hand many of
these cases have been tried to conclusion and no one has ever suggested that
the fundamentals of the system are unfair. Just because a case is old doesn't
mean it shouldn't be tried. The point is whether the system itself has
mechanisms in it to deal with those kinds of claims fairly and appropriately.
New Zealand does, so the Australian judge is wrong to say that NZ doesn't.
There is just no reason to think that the marginal difference in the fair
treatment of historical sexual abuse cases in Australia and New Zealand is so
great that extradition should be denied in a case like this.
Associate
Professor of Law at Auckland University, Scott Optican |
