Jury warning put on scales of 'justice'

He says he didn't want to do it, but the Australian judge who refused to extradite two Catholic clergymen to face trial in New Zealand on sexual abuse charges says Australian law gave him no option.

Justice Rodney Madgwick says in a 52-page Federal Court judgment that "the New Zealand criminal justice system, taken as a whole, is in no way inferior to our own".

But he refused to extradite the two members of the St John of God Order who served at Marylands Special School in Christchurch between 1971 and 1996, Brother Roger Moloney and Father Raymond Garchow, because New Zealand does not have an Australian provision requiring judges to warn juries about the problems involved in allegations about events from the distant past.

For that reason, he said, the two men might not receive "justice", by Australian standards, in New Zealand.

The decision means the two men are released and cannot be prosecuted for the alleged events unless the New Zealand Government successfully appeals to a higher court in Australia. Officials in Wellington and Christchurch are assessing the judgment before deciding whether to appeal.

Auckland University associate professor Scott Optican says the decision is "an insult to the New Zealand criminal justice system".

But the president of the NZ Council for Civil Liberties, Tony Ellis, says New Zealand should adopt the Australian system of requiring judges to direct juries to be wary of evidence about events that took place far in the past, as advocated recently by New Zealand Chief Justice Dame Sian Elias.

"If the rules are tilted too much in favour of either side, the accused or the victims, then there is no justice," he says. "It is unfortunate that someone should be able to escape prosecution because of what might be seen to be an unfortunate failing on behalf of the New Zealand judiciary to give a fair warning to the jury.

"But if that is the case, then the situation should be improved and the Chief Justice's lead followed."

Justice Madgwick ruled that the alleged offences by Moloney "come close to the worst class of cases" of sexual assaults.

Moloney faced charges of committing sodomy or indecent acts against 11 boys younger than 16 and inducing six of those boys and one other boy to do indecent acts on him, between 1971 and 1977. The boys were aged between 8 and 15.

Garchow faced charges of sodomy against one boy, committing an indecent act against another and inducing that same boy to do an indecent act on him.

Marylands was a boarding school for boys with special needs. All but two of the boys in these cases had "some notable disability - mental illness or deficit, learning difficulties, physical disability or severe social disability".

"The sexual assaults alleged, though not having any notably unusual features for such offences, are disturbing, indeed distressing," Justice Madgwick said.

"But to the extent that the charges are more serious than others, that correspondingly elevates the perils to which the applicants would be exposed" if they were extradited to New Zealand.

In what is known as the Longman case, the High Court of Australia ruled in 1989 that judges must warn juries that people accused of committing crimes far in the past were often unable to produce evidence that could have exonerated them if the case had been brought closer to the time of the alleged offences.

Justice Madgwick said that in the Marylands case, "known potential witnesses have died or are otherwise unavailable and records likely to have been able to cast light on the circumstances of individual complainants no longer exist".

"Notably these include the attending doctor, some of the school's staff, medical records and records such as psychological reports and the like apparently kept on most of the boys."

In the Longman case the High Court said, "The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.

"To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.

"The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of factors relevant to the evaluation of the evidence. That was not sufficient."

In New Zealand in 1995, the Court of Appeal explicitly refused to follow the Australian High Court precedent and insisted that New Zealand law gave judges discretion to instruct juries according to the facts of each particular case.

In practice, Professor Optican says, New Zealand judges often do give juries Australian-style "Longman warnings".

Dame Sian herself gave what she called "an extended Longman warning" in a case she spoke about at a conference in 2003, where she personally supported the Australian High Court judgment that such warnings should always be given.

But the New Zealand courts have continued to leave this to each judge's discretion.

For example, a lawyer involved in the recent case of alleged offences against Louise Nicholas by three current or former police officers cannot recall any such warning being given to the jury in that case.

Professor Optican says it is impossible to believe that "a few lines added to a jury instruction" would make the difference between a fair and an unfair trial.

"He [Justice Madgwick] is saying that this rather narrow Australian procedural rule sets the criteria of justice by which New Zealand criminal trial processes in historical sex abuse cases are judged. I don't agree," he says.

"New Zealand judges will typically give an instruction like that in a historical sex abuse case. I have talked to a few judges who say, 'Yes, we give it.'

"But just because a case is old doesn't mean the jury has to be directed to view the case with caution. It depends on the facts of the case."

For example, he says, there may be no need for the instruction in a case where there is clear DNA evidence that the accused person committed the crime, even far in the past.

However, Mr Ellis says Dame Sian is right and New Zealand should adopt the Australian procedure.

"It's not politically correct to suggest this, but in the light of the recent Nicholas case, it does bring into sharp relief the difficulties of convicting someone for a historic rape complaint.

"It's an appalling situation to be in to find yourself charged with a sexual violation some 20 years ago ...

"If it didn't happen in the Nicholas case [if no warning was given to the jury], then it's time that it did happen. So I think the Australian judge was perfectly right to say what he did."