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The Dominion Post
May 8 2006
Law and the Church Order
Editorial
That the Crown Law Office
has decided to appeal against an Australian federal judge's decision not to
extradite two Catholic clergymen to New Zealand is very welcome. It
is also the right decision.
Brother Rodger Moloney,
71, and Father Raymond Garchow, 58, stand accused of some of the most heinous
crimes on the statute books -- sexual abuse of children -- during their time
at Marylands School
in Canterbury
in the 1970s.
The St John of God
Order of the Catholic Church, to which both men belong, has bankrolled their
battle to remain in Australia.
That the Order or the Church have not insisted that they return to this
country to face more than 30 charges between them, however, is shameful. But
it is depressingly unsurprising. The Church has not covered itself in glory
in the way it has handled such claims over many years, claims that come out
of the woodwork dispiritingly often.
The recommendation by
Crown solicitors in Christchurch
to appeal against Justice Rodney Madgwick's decision was surely a foregone
conclusion. Nonetheless, justice demanded that the New
Zealand solicitor-general and the director of public
prosecutions in Sydney
approve the move. An appeal must be lodged today and it will be heard by a
full Federal Court bench.
An understandable -- if
irrelevant -- factor in the Crown Law Office's decision to appeal might well
have been legal pique at the judge's obvious contempt for the New Zealand
legal system. Justice Madgwick -- in a judgment that took a year to deliver
-- said Mr Moloney and Mr Garchow would face an "unjust or
oppressive" hearing because of the age of the charges and the fact that
judges in this country are not obliged to point out to jurors the difficulty
of age-old cases. Judges are required to draw such issues to the attention of
juries in Australia.
Justice Madgwick is
right that elderly abuse claims are notoriously difficult to prosecute and
win. Memories become hazy, so-called facts become blurred recollections,
witnesses leave the country. The Louise Nicholas police rape trial
exemplified the problem.
But supporters of Mr
Moloney and Mr Garchow's accusers argue that trials involving children and
their assumed protectors, Catholic clergy, have been held here before and
that jurors have capably waded through a myriad of evidence to find this charge
proven and that one not. The common sense of juries should never be
underestimated.
The New Zealand
legal system works every bit as well as its Australian counterpart. Justice
Madgwick could not have been surprised, therefore, at the legal defensiveness
-- even anger -- that greeted his dismissiveness of it. Had he imagination,
he might conceive -- as he whiles away an hour at the club pondering justice
-- how his brethren might react should a Wellington-based judge decline to
extradite an Aborigine from Queensland on the basis that Australians do not
understand race issues and so could not get a fair trial.
New high commissioner
John Dauth, in his next dispatch to Canberra,
might quietly mention to his masters that for Australia to keep out Kiwi apples
is one thing. But to insult the New Zealand judiciary, its
lawyers and those who make up its juries is another thing entirely. It is
quite simply unacceptable.
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