A RECENT Federal Court of Australia decision to block the extradition of two Catholic clergymen to New Zealand to face trial for alleged historical sex crimes has sparked outcry from defenders of New Zealand’s criminal law and procedure. But other commentators have concluded that the decision is sadly justified.
In Moloney v New Zealand (2006), Justice Rodney Madgwick held it would be difficult for the Christchurch St John of God Brothers to receive a fair trial due to differences between the legal systems in Australia and New Zealand.
“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 Australia. Is the Australian public prepared to become a haven for paedophiles and sex offenders from New Zealand and other countries?”
“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 New Zealand conducts its trials, then alarm bells should be ringing loudly,” Judith Ablett-Kerr QC said.
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 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.
Associate Dean of Auckland University’s law faculty Professor Scott Optican said the Australian judge was taking procedural differences between the two countries and wrongly ratcheting them up to a claim of unjustness or oppressiveness.
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. “Joint trials would likely be regarded as unjust in Australia and not occur.”
“Our two legal systems are very similar, and are based on the age-old premise of being presumed innocent until proven, beyond reasonable doubt, to be guilty,” said Arnold.
“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.”
Andrea Milner is the Editor of Lawyers Weekly’s sister publication NZ Lawyer.
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