Editorial: Australian judge's fear is justified

It comes as a shock that an Australian federal judge would refuse an extradition order to New Zealand on the grounds that two men accused of sexually abusing children might not get a fair trial in this country. The case concerns paedophilia at the Marylands children's home in Christchurch in the 1970s, for which one former member of the Catholic order of St John of God, Brother Bernard McGrath, has recently been convicted. Another brother, Roger Moloney, and a priest of the order, Father Raymond Garchow, were to face trial on similar offences until their extradition was refused last Friday.

Our system of justice, we suppose, is second to none in the Commonwealth and practically identical, we would have thought, to that of our nearest neighbour. But the decision of Australia's Justice Madgwick should not be dismissed as nonsense or "insulting", as one or two local lawyers were quick to do.

The judge has criticised elements of the way New Zealand courts handle complaints of child abuse allegedly committed long ago. Australian judges are obliged to warn juries of the difficulties a defendant faces when trying to answer for events 20 or more years before. New Zealand courts do not see the same need.

In fact, in Justice Madgwick's words, "It appears the courts in that country [ours] have set their face against" the principles set out in Australian case law about warnings to the jury when so much time has elapsed that an accused person would be unable to summon evidence to challenge the uncorroborated recollections of a complainant. He refers to a 1995 decision of the New Zealand Court of Appeal which doubted the possibility of direct supporting evidence being available to a person accused of sexual misconduct when alone with the complainant.

But the reasoning of the Australian case is superior. Closer to the event there may be co-workers, doctors, school inspectors, social workers, nurses, visitors and guardians whose observations and records might have provided "context" evidence that would help a jury to reach a verdict. And if the person was innocent of an offence in an incident long ago, he would be much less likely than the complainant to have clear memory of events.

The Australian judge also has concerns about the way in which the child sex abuse investigation was carried out. He notes that the St John of God brothers publicly invited complaints from former residents of their Christchurch home, establishing a dedicated telephone number for them. The order publicly suggested it would pay compensation to those who took their complaints to the police.

It engaged a psychologist to help complainants. Justice Madgwick says the psychologist "seems to have adopted methodologies which, however helpful in the purely psychological context, appear, in the context of projected criminal trials, unusual". He refers to the prompting of some witnesses during interviews and the fact that complainants had attended "victims' rights" meetings. He was also concerned at the New Zealand practice of hearing multiple complaints in the same trial. "A high degree of prejudice would appear to arise from the joint trial of any charges involving separate complainants," he said.

He would prefer to surrender the accused to New Zealand's jurisdiction ("Australians generally would wish for the same degree of respect for our criminal justice system") but concludes that Australia's Extradition Act gives him no choice if he has grounds to believe the accused may face "an injustice".

His decision should not be resented here. The cross-fertilisation of Commonwealth jurisdictions is one of the strengths of our system. This is an instance where our justice has been genuinely found deficient. We need to deal with it.