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Allegations
of Abuse in Institutions |
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Most New Zealanders and
Australians would, if asked, say that the standard of justice delivered in the
criminal courts in their respective countries is about the same. Both
systems, after all, are derived from the same English source, the laws they
administer are largely the same, and the rules of procedure are similar. The
decision, therefore, of an Australian Federal judge last week to block the
extradition of two members of the St John of God Order to face trial on
historic sex-abuse allegations arising from events at the Marylands school in
Halswell is startling. Differences between New Zealand and Australia in the
procedure followed in cases such as this one were so great, said the judge,
that it would be unjust and oppressive to send the men back for a trial here.
The judge's decision
carries no undertone of any disrespect towards the New Zealand justice
system. Nevertheless, he found on his reading of the relevant Australian
statute and previous court decisions that he could not return the men to New
Zealand. The New Zealand police will decide whether to appeal the decision in
the next few days. They should take the matter further. The judge's finding
on the law is not the only one available. So far in the legal proceedings to
get the men returned to New Zealand, one judge has decided the men should be
returned and one has decided against. Clearly the law is
arguable. A case as serious as this one, raising allegations of serious
sexual abuse which, if true, involved the grossest abuse of trust and
responsibility, cannot be allowed to be concluded on an arcane legal point
decided at an intermediate level in the judicial system. The St John of God case
has been painfully long-running. The sexual and physical abuse that boys at
the school allegedly suffered occurred in the 1960s and 1970s. It did not
emerge until the early years of this century that complaints had been made
and that the order had paid compensation to five former pupils on condition
that they kept the settlements confidential. When the payments were
publicised by The Press in 2002, the order at last accepted its
responsibilities and made a commendable effort to find out if there were more
cases and to make amends for them. It has since paid a total of $5.1 million
to Marylands complainants. One brother of the order has been jailed for some
of the offences he committed, and faces the possibility of a further term of
imprisonment when he is sentenced this week after being found guilty by a
jury this year on further charges. It is important for an appropriate
conclusion to the case that charges against others who may have committed
offences should be tested in a New Zealand court. The Australian judge
who blocked the extradition of the two members of the order who are in Sydney
applied a provision of Australia's Extradition Act which says that if for any
reason it would be unjust or oppressive to extradite a person to New Zealand,
the person must be released. The judge said there were a number of reasons
for finding extradition would be unjust or oppressive, but the main one
stemmed from a divergence between Australian and New Zealand law on the
procedure to be followed involving sexual allegations from many years
beforehand. The High Court of Australia has ruled that in such cases the
judge must give a clear and unmistakable warning to the jury that the passage
of time may make it difficult or impossible for defendants to secure the
material for an adequate defence. The warning is mandatory and must be firm
and unmistakable. The New Zealand Court
of Appeal has declined to follow the Australian line and has refused to lay
down such an unequivocal rule. It prefers to leave the warning up to the
trial judge to decide according to the circumstances of the case, with the
capacity available to stay a trial if the length of time would make a fair
trial impossible. The Australian judge
has taken the line that the absence of the mandatory requirement for a
warning is such that the possibility of a warning appropriate to the
circumstances will not make up for it. This is too fine a point to be allowed
to stand without consideration by a panel of judges at a higher level. Even
though it will mean dragging the case on longer, the police must take the
matter to appeal to try to get a conclusion to the whole sordid Marylands
mess based on a fair trial. |
