Appeal to extradite clergy in sexual abuse case

SYDNEY - New Zealand authorities say an Australian federal judge erred in stopping the extradition of two Catholic clergymen accused of sexually abusing boys at a Christchurch school in the 1970s.

Five justices - the full bench of the Federal Court - heard an appeal yesterday against his ruling and reserved their decision.

Justice Rodney Madgwick decided in April that it would be "unjust and oppressive" to extradite Brother Rodger Moloney, 71, and Father Raymond Garchow, 59.

Christchurch police allege the St John of God order clergymen sexually abused pupils at the former Marylands school, which mainly catered for intellectually impaired boys. Moloney faces 28 charges of abusing 12 boys and Garchow four charges.

Both have lived for some years in Sydney and have been fighting extradition since their arrest in December 2003.

New Zealand's Solicitor-General and the New South Wales Director of Public Prosecutions endorsed a decision by Crown solicitors in Christchurch to appeal against Justice Madgwick's decision, which reversed a local court ruling that the men should be surrendered to New Zealand authorities.

Justice Madgwick believed that the differences in the New Zealand and Australian legal systems and the time since the alleged offences would make a fair trial difficult.

Appearing for the New Zealand authorities yesterday, Wendy Abraham, QC, of Adelaide, told the appeal judges his decision was erroneous.

It was impossible for an Australian court to judge what prejudice because of delay might occur towards an accused wanted in New Zealand without hearing all the evidence.

"It is for the New Zealand courts on the evidence before them to decide if an accused would get a fair trial."

Appearing for the two men, Paul Byrne said Justice Madgwick's decision should be upheld. Taking into account the age of the men, the span of dates for individual charges - ranging from 25 to 35 years ago - and that a significant number of witnesses had died, there was presumptive prejudice against the pair.

- NZPA