Allegations of Abuse
in Institutions |
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If New Zealand was Zimbabwe, the
two members of the St John of God religious order wanted on charges of
sexually assaulting 13 Christchurch schoolboys might have been extradited by
now. Instead, efforts to have Brother
Rodger Moloney, 71, and Father Raymond Garchow, 58, brought to trial in New
Zealand are being stymied by a peculiar side-effect of Australia's
extradition rules. The latest round in a long battle was fought yesterday. Moloney faces 28 charges,
including sodomy, for allegedly assaulting 12 boys between 1971 and 1977 at a
Christchurch boarding school for the disadvantaged. Garchow faces four
charges, dating from between 1971 and 1980. The pair deny the charges, which
were brought after the St John of God order agreed to pay $3 million in
compensation over similar complaints in Victoria. The payment received wide
publicity in New Zealand, after which the order set up a hotline for
complainants to come forward. Several did, leading to the current charges. The pair won an appeal against
extradition in April, when a Federal Court judge, Rodney Madgwick, decided
their trial was likely to be unjust, mainly because of the time that had
elapsed since the alleged offences occurred. In extradition cases, the question
of fairness during a trial is normally a matter for the court hearing the
charges, and even Justice Madgwick said in his judgement that the situation
was "less than satisfactory". Australia has a special set of
extradition rules for New Zealand, which were meant to make extradition to
New Zealand easier. But because the rules allow
Australian judges to look into the justice of a case that would be heard in
New Zealand - which they cannot do for other countries - the result is that
in some circumstances it would be easier to extradite to Zimbabwe than across
the Tasman. Justice Madgwick acknowledged that
New Zealand did not face widespread corruption, human rights abuses or
judicial incapacity like some other countries. He advocated a law change to make
it clear that the issue of fairness should be for New Zealand courts to
decide, but said he had to apply the law as it stood, and refused the
extradition. Before a full bench of five
Federal Court judges yesterday, New Zealand's barrister, Wendy Abraham, QC,
argued that Justice Madgwich had got it wrong. She said it was possible to
extradite the men to New Zealand under current legislation, saying it should
be done and fairness issues should be left to courts there. Counsel for Moloney and Garchow,
Paul Byrne, SC, argued that Justice Madgwick's decision was correct, and no
extradition should be allowed because of the unfairness his clients would
face defending the charges. The court's decision was reserved
to an unspecified date. A spokesman for the Justice
Minister, Chris Ellison, said it was not appropriate to comment on the case,
but an ongoing extradition review was looking at the New Zealand provisions. |