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Allegations
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He says he didn't want
to do it, but the Australian judge who refused to extradite two Catholic clergymen
to face trial in New Zealand on sexual abuse charges says Australian law gave
him no option. Justice Rodney Madgwick
says in a 52-page Federal Court judgment that "the New Zealand criminal
justice system, taken as a whole, is in no way inferior to our own". But he refused to
extradite the two members of the St John of God Order who served at Marylands
Special School in Christchurch between 1971 and 1996, Brother Roger Moloney
and Father Raymond Garchow, because New Zealand does not have an Australian
provision requiring judges to warn juries about the problems involved in
allegations about events from the distant past. For that reason, he
said, the two men might not receive "justice", by Australian
standards, in New Zealand. The decision means the
two men are released and cannot be prosecuted for the alleged events unless
the New Zealand Government successfully appeals to a higher court in
Australia. Officials in Wellington and Christchurch are assessing the
judgment before deciding whether to appeal. Auckland University
associate professor Scott Optican says the decision is "an insult to the
New Zealand criminal justice system". But the president of
the NZ Council for Civil Liberties, Tony Ellis, says New Zealand should adopt
the Australian system of requiring judges to direct juries to be wary of
evidence about events that took place far in the past, as advocated recently
by New Zealand Chief Justice Dame Sian Elias. "If the rules are
tilted too much in favour of either side, the accused or the victims, then
there is no justice," he says. "It is unfortunate that someone
should be able to escape prosecution because of what might be seen to be an
unfortunate failing on behalf of the New Zealand judiciary to give a fair
warning to the jury. "But if that is
the case, then the situation should be improved and the Chief Justice's lead
followed." Justice Madgwick ruled
that the alleged offences by Moloney "come close to the worst class of
cases" of sexual assaults. Moloney faced charges of
committing sodomy or indecent acts against 11 boys younger than 16 and
inducing six of those boys and one other boy to do indecent acts on him,
between 1971 and 1977. The boys were aged between 8 and 15. Garchow faced charges
of sodomy against one boy, committing an indecent act against another and
inducing that same boy to do an indecent act on him. Marylands was a
boarding school for boys with special needs. All but two of the boys in these
cases had "some notable disability - mental illness or deficit, learning
difficulties, physical disability or severe social disability". "The sexual
assaults alleged, though not having any notably unusual features for such
offences, are disturbing, indeed distressing," Justice Madgwick said. "But to the extent
that the charges are more serious than others, that correspondingly elevates
the perils to which the applicants would be exposed" if they were
extradited to New Zealand. In what is known as the
Longman case, the High Court of Australia ruled in 1989 that judges must warn
juries that people accused of committing crimes far in the past were often
unable to produce evidence that could have exonerated them if the case had
been brought closer to the time of the alleged offences. Justice Madgwick said
that in the Marylands case, "known potential witnesses have died or are
otherwise unavailable and records likely to have been able to cast light on
the circumstances of individual complainants no longer exist". "Notably these
include the attending doctor, some of the school's staff, medical records and
records such as psychological reports and the like apparently kept on most of
the boys." In the Longman case the
High Court said, "The jury should have been told that, as the evidence
of the complainant could not be adequately tested after the passage of more
than 20 years, it would be dangerous to convict on that evidence alone unless
the jury, scrutinising the evidence with great care, considering the
circumstances relevant to its evaluation and paying heed to the warning, were
satisfied of its truth and accuracy. "To leave a jury
without such a full appreciation of the danger was to risk a miscarriage of
justice. "The jury were
told simply to consider the relative credibility of the complainant and the
appellant without either a warning or a mention of factors relevant to the
evaluation of the evidence. That was not sufficient." In New Zealand in 1995,
the Court of Appeal explicitly refused to follow the Australian High Court
precedent and insisted that New Zealand law gave judges discretion to
instruct juries according to the facts of each particular case. In practice, Professor
Optican says, New Zealand judges often do give juries Australian-style
"Longman warnings". Dame Sian herself gave
what she called "an extended Longman warning" in a case she spoke
about at a conference in 2003, where she personally supported the Australian
High Court judgment that such warnings should always be given. But the New Zealand
courts have continued to leave this to each judge's discretion. For example, a lawyer
involved in the recent case of alleged offences against Louise Nicholas by
three current or former police officers cannot recall any such warning being
given to the jury in that case. Professor Optican says
it is impossible to believe that "a few lines added to a jury
instruction" would make the difference between a fair and an unfair
trial. "He [Justice
Madgwick] is saying that this rather narrow Australian procedural rule sets
the criteria of justice by which New Zealand criminal trial processes in
historical sex abuse cases are judged. I don't agree," he says. "New Zealand
judges will typically give an instruction like that in a historical sex abuse
case. I have talked to a few judges who say, 'Yes, we give it.' "But just because
a case is old doesn't mean the jury has to be directed to view the case with
caution. It depends on the facts of the case." For example, he says,
there may be no need for the instruction in a case where there is clear DNA
evidence that the accused person committed the crime, even far in the past. However, Mr Ellis says
Dame Sian is right and New Zealand should adopt the Australian procedure. "It's not
politically correct to suggest this, but in the light of the recent Nicholas
case, it does bring into sharp relief the difficulties of convicting someone
for a historic rape complaint. "It's an appalling
situation to be in to find yourself charged with a sexual violation some 20
years ago ... "If
it didn't happen in the Nicholas case [if no warning was given to the jury],
then it's time that it did happen. So I think the Australian judge was
perfectly right to say what he did." |
