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Allegations
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An Australian judge has
refused to extradite two Catholic clergymen to New Zealand to face child-sex allegations,
criticising aspects of this country's legal system as potentially unfair. Justice Rodney
Madgwick, of the Federal Court in Sydney, said last week it would be
"unjust or oppressive" to send two members of the St John of God
Order back to face trial given the differences between the two countries'
legal systems and the delay in bringing the allegations. The allegations against
the men, Father Raymond Garchow, 58, and another man, 70, whose name is
suppressed, date back to the 1970s and cover the sexual abuse of boys at the
Marylands Special School in Christchurch. Garchow faces four charges, and the
other man 28. Last year, a Sydney
magistrate ordered they be extradited to New Zealand, but the pair appealed
to the Federal Court. Justice Madgwick said
that despite the serious and distressing nature of the allegations, it would
be unjust for the extradition to go ahead. "On account of
that ... that delay in bringing the allegations to the attention of the
applicants would make it, as it seems to me, unjust or oppressive to
surrender them." The judge said if
trials were to proceed in New Zealand, the best result for the pair would be
if, contrary to New Zealand prosecutors' intentions, they were tried
separately. "There is,
nevertheless, very likely to be a high degree of unfairness to the applicants
through being handicapped in preparing their defences by the long delays in
the allegations not being brought to their notice until 2003, between 22 and
31 years later. "Further, such
trials would occur without the guarantee of a strong warning by the judge to
the jury as to the very real problems in meeting such old allegations,"
he said. In Australia the
applicants would have such a guarantee. The president of the Canterbury
Criminal Bar Association, James Rapley, said there seemed to be an implied
criticism of the New Zealand legal system. He would have thought
the judge's comments would apply to large numbers of historical sex abuse
cases. "The judge saying
they would not get a fair trial is most unusual," Rapley said. It was common for
sexual abuse cases to be many years old. "One of mine went back 45
years," Rapley said. Wellington lawyer John
Langford said both countries had similar legal systems. It might be there was
some requirement in Australia for a judge to warn of the pitfalls of historic
allegations, but it was to be expected a New Zealand judge would give such a
direction anyway. "It is quite
bizarre to suggest that these people would not receive a fair trial in New
Zealand," Langford said. Male Survivors Of
Sexual Abuse Trust chairman Ken Clearwater said the New Zealand legal system
was fair, the police had done an excellent job on the case, and the men
should be tried where the crimes allegedly happened. "I can't speak
highly enough of the effort police have put in, and to be told our justice
system is inadequate, is wrong," he said. "It surprises me
that someone from another country can make judgments on another (justice)
system." It was also a setback
for the complainants, who already had a hard time coming to terms with what
happened, he said. Clearwater blamed the
Catholic Church for much of the delay and staged a protest vigil with placard
yesterday outside the Cathedral of the Blessed Sacrament in Christchurch's
Barbadoes Street. Many of the complaints were received and sidelined many
years before any charges were laid. He urged the Government
to intervene and see the men extradited: "I would desperately love to
see it happen." Some of the children at
Marylands were wards of the State or placed there by the then Department of
Social Welfare, he said. "Right the way
through the Government has kept well clear. I think they should be held
accountable." The ruling is the
latest twist in the long-running Marylands scandal which emerged in 2002 when
a Press investigation revealed the St John of God Order had paid $300,000 to
former Marylands pupils who complained of abuse. Since then, four clergy
and brethren have been accused and $5.1 million paid out to complainants by
the order, covering complaints right back to the 1950s. But only one of the
men has faced trial. Former Marylands
brother Bernard McGrath was last month convicted of 21 abuse charges after
this country's biggest child sex abuse trial. He will be sentenced in
Christchurch on Thursday. A fourth man, Brother
William Lebler, now 83, who faced the most serious allegations – 32 counts of
sexual assault, buggery and sodomy, dating back half a century – was judged
"borderline mentally retarded" and too sick to stand trial. He is
in the care of an institution for the elderly. The mother of one
Marylands victim, who lives in Australia, said she was staggered at the
decision to refuse extradition, which was extremely disappointing. "It is still
affecting us hugely. Our lives will never be the same," the woman said,
whose name cannot be published to protect her son. New Zealand police will
decide whether to appeal against the Federal Court decision in the next few
days. A spokesman for St John
of God Brothers in Australia, Simon Feely, said he hoped the New Zealand
Police would appeal the decision. The order has encouraged the men to face up
to the allegations. He confirmed the two
men had been living in supervised conditions with no official duties. Despite the success of
the appeal, the arrangement would continue, Feely said. The head of St John of
God in Australia, Brother Peter Burke, said the decision did not alter the
pastoral process he set in place in 2002 of dealing openly and transparently
with any complaint of sexual abuse. He is on his way to
Rome to discuss sex abuse in the Catholic Church. |
