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Allegations
of Abuse in Institutions |
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It comes as a shock that
an Australian federal judge would refuse an extradition order to New Zealand
on the grounds that two men accused of sexually abusing children might not
get a fair trial in this country. The case concerns paedophilia at the
Marylands children's home in Christchurch in the 1970s, for which one former
member of the Catholic order of St John of God, Brother Bernard McGrath, has
recently been convicted. Another brother, Roger Moloney, and a priest of the
order, Father Raymond Garchow, were to face trial on similar offences until
their extradition was refused last Friday. Our system of justice,
we suppose, is second to none in the Commonwealth and practically identical,
we would have thought, to that of our nearest neighbour. But the decision of
Australia's Justice Madgwick should not be dismissed as nonsense or
"insulting", as one or two local lawyers were quick to do. The judge has
criticised elements of the way New Zealand courts handle complaints of child
abuse allegedly committed long ago. Australian judges are obliged to warn
juries of the difficulties a defendant faces when trying to answer for events
20 or more years before. New Zealand courts do not see the same need. In fact, in Justice
Madgwick's words, "It appears the courts in that country [ours] have set
their face against" the principles set out in Australian case law about
warnings to the jury when so much time has elapsed that an accused person
would be unable to summon evidence to challenge the uncorroborated
recollections of a complainant. He refers to a 1995 decision of the New
Zealand Court of Appeal which doubted the possibility of direct supporting
evidence being available to a person accused of sexual misconduct when alone
with the complainant. But the reasoning of
the Australian case is superior. Closer to the event there may be co-workers,
doctors, school inspectors, social workers, nurses, visitors and guardians
whose observations and records might have provided "context"
evidence that would help a jury to reach a verdict. And if the person was
innocent of an offence in an incident long ago, he would be much less likely
than the complainant to have clear memory of events. The Australian judge
also has concerns about the way in which the child sex abuse investigation
was carried out. He notes that the St John of God brothers publicly invited
complaints from former residents of their Christchurch home, establishing a
dedicated telephone number for them. The order publicly suggested it would
pay compensation to those who took their complaints to the police. It engaged a
psychologist to help complainants. Justice Madgwick says the psychologist
"seems to have adopted methodologies which, however helpful in the
purely psychological context, appear, in the context of projected criminal
trials, unusual". He refers to the prompting of some witnesses during
interviews and the fact that complainants had attended "victims'
rights" meetings. He was also concerned at the New Zealand practice of
hearing multiple complaints in the same trial. "A high degree of
prejudice would appear to arise from the joint trial of any charges involving
separate complainants," he said. He would prefer to
surrender the accused to New Zealand's jurisdiction ("Australians
generally would wish for the same degree of respect for our criminal justice
system") but concludes that Australia's Extradition Act gives him no
choice if he has grounds to believe the accused may face "an
injustice". His decision should not
be resented here. The cross-fertilisation of Commonwealth jurisdictions is
one of the strengths of our system. This is an instance where our justice has
been genuinely found deficient. We need to deal with it. |
