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Australian criticism of NZ sex cases ‘justified’ While a recent Federal
Court of Australia decision to block the extradition of two Catholic
clergymen to In Moloney v “No longer do sex offenders
have to hide out in some third-world country to avoid extradition,” said
Denise Arnold, legal adviser for ECPAT NZ, an organisation committed to
ending sexual exploitation of children. “Escape is as close as “The complainants are
entitled to have the charges heard, and the defendants are entitled to
justice in the country in which the alleged crime is said to have taken
place.” However, Bernard
Robertson, editor of The New Zealand
Law Journal, said Justice Madgwick acknowledged that it was exceptional
to find it would be “oppressive and unjust” to refuse extradition to a
friendly country with a similar legal system, and required the accused to
discharge a heavy evidential burden. “When a respected
judicial neighbour not only recognises problems likely to give rise to unsafe
trials, but is reluctantly driven to criticise the way The Judge found various
circumstances about the case meant the Brothers could not receive a fair
trial by Australian standards, given that delays, and the loss of potential
witnesses and documents, had resulted in serious presumptive, and actual,
prejudice to them. Ablett-Kerr QC said the
decision criticises the New Zealand approach to several procedural and
evidential matters which, in the view of that Court, are likely to increase
the probability of an accused person in New Zealand not receiving a fair
trial, including representative charging, multiple-count charging, similar
fact evidence, “dubious investigative and interviewing processes”, and “the
dangers associated with mass allegation cases, including concoction or
unconscious contamination of complainant testimony.” Associate Dean of Justice Madgwick noted
the sheer number of complainants making allegations against Brother Maloney
indicated that if the charges were tried together, convictions were
overwhelmingly likely, despite any strong warnings issued by the trial judge
to the jury. “If he were tried in a joint trial with Brother McGrath, in
which the latter will face allegations from a number of complainants, that
very high likelihood will be converted into a practical certainty,” His
Honour concluded. “Joint trials would
likely be regarded as unjust in Justice Madgwick
concluded that even if the applicants were, contrary to the New Zealand
prosecuting authorities’ intentions, tried separately in relation to each
charge, there was “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”. A period of delay of 20
years accounts for the reluctance of abused teenagers to come forward until
in their 30s, the Judge explained, but thereafter becomes more questionable. New Zealand courts are not
required to give a firm direction about the effects of delay to the jury, as
Australian courts are, due to a decision of its High Court in Longman (1989) 168 CLR 79. However,
Optican disputed that a Longman
instruction is a criterion of justice in all cases. Justice Madgwick found
that trials would occur in “There is no evidence
the New Zealand justice system would not allow a fair and just trial of these
defendants,” “To allow these men to
avoid being put to trial is tantamount to frustrating the legal system. To
prejudge the complaint by preventing a trial and not allowing the facts of
the case to be taken into account is a far greater travesty of justice.” The complaints emerged
in response to a publicised campaign inviting people to complain to the Order
and receive a payment of compensation, Robertson said. Justice Madgwick found
this might have compromised the reliability of much of the complainants’
evidence. Robertson said many of
the complainants had been interviewed repeatedly by the same psychiatrist and
attended victims’ group sessions. Justice Madgwick found “There was ample
opportunity for ‘tainting’ cross-fertilisation of complainants’ statements”. The Optican commented,
“Specimen charges are simply a response to the fact the case is old, and it
is very hard to pin down precisely the specific moment the event occurred.
But you have to ask whether the ability to do so is so fundamentally a
criterion of justice that you don’t want to try the case. In some ways, this
is giving the defendant a benefit because the event happened long ago”. The spectator also
reported Justice Madgwick read the judgment of New Zealand judge Justice Hansen
in R v A & Anor HC CHCH CRI
2003-009-012476 (11 March 2005) relating to pre-trial applications from two
other St John of God brothers, Lyall Forde and Bernard McGrath. Justice
Madgwick asked counsel for “The natural reaction
is to resent interference from another country’s judicial system, but
independent review from a respected source should be valued, and in the past
the Privy Council has provided such review,” |
