The effects of the delays in the present cases
92 In my view it can hardly be doubted, as a general proposition that, if innocent, each applicant would have grave difficulties because of the usual (and some particular) concomitants of delay in defending himself after periods ranging between 22 and 31 years before the allegations were brought to his attention. Viewed across the ranges of seriousness of and delays in child sexual assault cases, it could not necessarily be regarded as unfair to the legitimate interests of New Zealand and the complainants to give effect to that view. The question then arises: in the particular circumstances of the present cases does such potential injustice or oppression to the amount to what would be actual injustice or oppression if either of them should be surrendered for extradition?
93 In the first place, as indicated, I know nothing of the strength of the intended prosecution case in relation to any intended charge against either applicant, and must, because of the Act, decide the case without regard to that factor. In particular the fact that the former Brother McGrath has previously been convicted of a number of charges indicates nothing as to the guilt or innocence of either applicant of any of the present charges. Likewise, the fact that a large number of men have complained of assaults at the hands of Brother Moloney would not, in law, without the closest examination of the allegations and even then only in very limited circumstances, say anything as to the truth of any of those complaints. There is nothing before me to indicate that such circumstances might be satisfied. This is further discussed below.
94 The principal factors that might add to the applicants' difficulties are:
(i) The charges and alleged facts lack specificity as to time.
95 This is not surprising but it necessarily adds to the difficulty for each applicant in preparing to defend himself. Periods are given for the alleged offences ranging, in Brother Moloney's case, from a one-month period in 1973, over 29 years before he was informed of the charge in 2003, to a period of over two and a half years, expiring nearly 26 years before he was so informed. In Father Garchow's case, one period is almost two years long, expiring 25 years before he was informed of the allegation, and the other is over a year long, expiring nearly 23 years before he was informed of it in 2003.
(ii) Loss of potential witnesses and records
96 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. Among other missing documents for the period before 1977, that is in the years when most of the offences were alleged, are what were known as 'Mutations Books' - these recorded such things as visits by official visitors, school inspectors, social workers, nurses, doctors and psychologists and parents and guardians of boys at the school. The unavailable witnesses and lost records may well have assisted one or both of the applicants. Each applicant has, because of the long delay, certainly lost the chance to know whether there was, and to use, anything that might be useful in the records, and to inquire of the lost witnesses as to matters that might either confirm or tend to confound the particular allegations against him.
97 Not all of the school's records for the crucial periods have been lost. There are some personal files on each of the applicants, some newsletters and some photographs of the school buildings and of pupils and staff. Further, the school was relatively small in the numbers of its student body. Nevertheless there is a strong likelihood that relevant material that might well have assisted the applicants is gone.
98 In R v Littler (2000) 120 A Crim R 512 the NSW Court of Criminal Appeal granted a permanent stay of proceedings in a case of even longer delay than the present. Adams J (with whom Hodgson JA and Greg James J agreed) said (at 521-2):
'In the circumstances here, it must, I think, be accepted that there is at the very least a reasonable possibility that witnesses other than those which I have identified and who were at the Home, whether as pupils or staff, would be capable of giving relevant evidence and it is reasonably possible that such evidence might, to a greater or lesser extent, assist the applicant. In evaluating this question it is important that there be no presumption that the complainants are either truthful or reliable, although it is their evidence which presents the starting point for a consideration of the issue of prejudice. The existence of relevant evidence from other sources is made more likely by the circumstance that the allegations cover a lengthy period of time in an institution populated, temporarily or permanently, by a significant group of persons with whom the complainants communicated on a frequent basis and whose responsibilities in part included supervision of their welfare. At the same time, whether, in fact, any significant relevant evidence can be given and, further, whether that evidence would assist the defence, is necessarily speculative. There is also something in the argument that the absence in the Crown case of any admissible supporting material, in circumstances where, if the complainants' accounts be truthful, one would expect it to be present, significantly weakens the prosecution case. If the trial were to proceed, this would need to be brought to the jury's attention in emphatic terms and the tendency to explain the problem away by adverting to the lapse of time warned against. So far as the complainants' accounts are concerned, however, the alleged offences occurred (not surprisingly) in circumstances where no eye witnesses were present. … however, a significant number of potential witnesses must have existed. The delay in this case, however, is so extreme that I have difficulty, for myself, in constructing a direction which would sufficiently make clear to the jury the grave difficulties imposed by the circumstances on both the prosecution and the defence cases. Both classes of difficulty, of course, must be regarded as adverse to conviction.
The second significant matter of prejudice, which I have already referred to in passing, concerns the effect of delay on the applicant's ability to remember with reasonable reliability what I might call the contextual facts of the alleged occurrences. These comprise, not only the possible presence of significant witnesses to some of the alleged offences or the alleged surrounding circumstances but also the actual timetable of activities and responsibilities undertaken by the applicant and his relationship, if any, with the complainants. To make a rather obvious point, if the applicant had committed the alleged offences, it seems likely that he could remember doing so, at least in general terms (though it is important to note that specific offences are alleged). If, on the other hand, he did not commit the alleged offences, then his knowledge of and recollections about the complainants, his interactions with them, and the surrounding circumstances, might well be extremely vague.'
Somewhat similar considerations, so far as they are material, apply in the present cases.
(iii) The manner of emergence of the complaints
99 Apart from the general concerns about the matter for the interests of justice according to law felt by the learned Magistrate and myself, there are aspects of relevant to the effects of the long delays.
100 There was an orchestrated campaign, albeit waged in good faith, to have complainants come forward in an atmosphere suggestive that significant amounts of money might be available. It appears that somewhat special and unusual motivation is likely to have been given to a significant number of the complainants, in significant degrees, to adhere to accounts given to Brother Burke and/or Ms Mulvihill. Such accounts appear to have been given to the apparent agents of the sources of significant amounts of potential compensation.
101 There was ample opportunity for 'tainting' cross-fertilisation of complainant's statements.
102 Positive identificatory suggestions, of a kind no honest and capable police officer would make, were apparently engaged in.
103 Such aspects and the others previously mentioned must, in my opinion, be regarded as significantly magnifying the difficulties otherwise attendant on coping with long-delayed allegations faced by each applicant.
(iv) New Zealand's rejection of the directions required by Longman
104 I turn to what is, to my mind, upon reflection, an important matter. Under Australian law, there are quite specific safeguards required in trials of old allegations of the kind here in question. In such a case it is mandatory that the judge should give the jury a strong warning, not merely make comment, about an accused person's 'loss of those means of testing the complainant's allegations which would have been open to him had there been no delay …'. The High Court so decided in Longman (1989) 168 CLR 79. Brennan, Dawson and Toohey JJ said (at 91):
'After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v. District Court of New South Wales..) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing 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 the factors relevant to the evaluation of the evidence. That was not sufficient.'
McHugh J would have required more (at 108-9):
'… the present case was one where the requirement of a fair trial required a strong warning to the jury of the potential for error in the complainant's testimony. The jury should have been warned that, in evaluating her evidence, they had to bear in mind that it was uncorroborated, that over twenty years had elapsed since the last of the alleged offences occurred, that experience has shown that human recollection, and particularly the recollection of events occurring in childhood, is frequently erroneous and liable to distortion by reason of various factors, that the likelihood of error increases with delay, … that no complaint was made to her mother, and that, by reason of the delay and lack of specificity as to the dates, the defence was unable to examine the circumstances of the alleged offences. …'
His Honour's suggestions were, as earlier indicated, approved by a majority in Crampton.
105 In Crampton Gaudron, Gummow and Callinan JJ said (at [45]):
'The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. … An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury. Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman: the abstention, by the prosecutor, from questioning each co-complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion.' (emphasis added)
106 Kirby J gave a detailed explanation of the kinds of disadvantages to an accused person involved where there is long delay (at 209):
'The warning required by Longman … must be related to the evidence and derived from forensic experience. The need for such a warning is demonstrated by the facts of a case such as the present. In practical terms, after twenty years, the appellant's defence could never rise much above a mere denial and protest of innocence. He had lost the chance of obtaining effective evidence from other children who were in the class at the time of the alleged offence concerning his alleged conduct. He had lost the chance of procuring effective evidence from other teachers said to have been coming and going near the class at times relevant to the events alleged. He had lost the chance of resolving, with certainty, the conflict of evidence about the nature and appearance, twenty years earlier, of locations relevant to the charges against him. He had lost the opportunity to collect forensic scientific evidence, such as was available in 1978, concerning the presence (or absence) of semen on the floor of the storeroom. He had lost the opportunity to respond effectively, by the testimony of storekeepers, to evidence that he had purchased lollies and other goods to favour the first complainant.
Twenty years after the alleged offence, the first complainant was an adult whose life's experience, character and motivations would have been unknown to the appellant. The appellant would thus be at a great disadvantage in testing events that may have affected the first complainant's recollection or reliability. Repeated answers to questions, searching the detail of the first complainant's testimony, such as "I can't remember" or "it's too long ago" made it extremely difficult to test that evidence in an effective way.
The idea that these serious disadvantages are unimportant and that the jury, unaided, will somehow sort things out by simply resolving the claims and denials in oath against oath must be firmly rejected. That idea is contrary to the repeated authority of this court in and since Longman. The jury need the assistance of the trial judge to warn, from the law's long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons.The passage of time - especially great time - may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms.' (emphasis supplied)
107 Thus in Australia there is a guarantee that, if a trial of old allegations of alleged childhood sexual assault is not stayed, the difficulties faced by an accused faced in meeting accusations of conduct long ago will be mitigated by a 'firm and unmistakeable' warning to the jury carrying the weight of the trial judge's authority. There is no such guarantee in New Zealand. It appears that the courts of that country have set their face against following Longman: R v M CA 187/95 13 November 1995.
108 It is not, of course, every difference between New Zealand and Australian criminal law that will justify the courts of one of them in regarding the law of the other as unjust. Indeed the courts should be chary of doing that, as the authorities I elsewhere refer to indicate. In many instances, reasonable minds may and do differ on what constitute the incidents of a fair trial. However, the matter at issue concerns the mitigation of likely actual disability for an accused person arising from long delays. The Longman direction is viewed in Australia as necessary to ensure that the accused gets a fair hearing by the jury. The Australian view is that there is a non-negotiable need to warn the jury of something crucial that they are likely not sufficiently to appreciate or properly to consider without that warning. In Doggett v The Queen (2001) 208 CLR 343 the High Court held (by majority) that a Longman direction must be given even where a complainant's evidence was corroborated, the prosecution case was 'in many respects a strong one' (c.f. [55] per Gleeson CJ) and experienced counsel had made no request for it at trial.
109 It seems to me that the requirement for a Longman direction is not something that any Australian judge or magistrate is entitled to view as other than a vital requirement for a just trial in a case of long delay. Upon analysis, because it deals with a particular difficulty the accused would have in having the jury understand his story, the necessity for such a direction goes to the right to a fair hearing. Such is, of course, a fundamental right recognised by the Universal Declaration of Human Rights (adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948) ('UDHR') and the International Covenant on Civil and Political Rights (opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)) ('ICCPR'), together often known as the International Bill of Rights. The UDHR provision (Art 10) provides:
'Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.'
So far as material Art 14(1) of ICCPR provides:
'All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. …'
110 The Longman requirement is, in my opinion, analogous to the rejection by the High Court of 'representative charges' in Australia, considered in this Court in Bannister. In that case, it appeared that, in sexual abuse cases in New Zealand (as explained in R v Accused [1993] 1 NZLR 385 at 389) where the prosecution evidence:
'… does not enable more particularity than that the conduct alleged occurred a number of times over quite a long period, such as a year or more … the practice is to specify in [a] count [that] period … and to allege a crime (eg rape or indecent assault) during that period … To obtain a conviction the prosecution must then satisfy the jury beyond reasonable doubt that at least one criminal act of the description alleged was committed by the accused during that period …'
111 In S v The Queen (1989) 168 CLR 266 and KBT v The Queen (1997) 191 CLR 417 the High Court of Australia rejected such a practice as involving a 'duplicitous' charge, lacking specificity, with the result that although the jury might not agree on a single particular instance alleged having occurred, a conviction could still result.
112 In Bannister theFull Court of this Court said (at [26]):
'We conclude that it is appropriate, in considering whether, "for any other reason" it would be unjust or oppressive, pursuant to s 34(2), to surrender the appellant to New Zealand, to have regard to the quality of the trial which he would be likely to receive. Clearly enough, the standards to be applied to that issue are those which prevail in the Australian community. No court should be eager to pass judgment upon the process of another judicial system, particularly where the two systems share a common jurisprudential history and operate in societies which are, in many respects, similar. This is particularly so where, as in the case of Australia and New Zealand, the respective legislatures have demonstrated a clear desire to facilitate interaction at all levels. We do not suggest that criminal trials in New Zealand are generally more or less fair than similar proceedings in this country. However, on this very important procedural point, the two systems have diverged. In considering the present application, we can only apply the decision of our own ultimate appellate court.
We do not consider that every minor difference in procedure would justify our declining extradition. Such a step will only be justified if the procedure likely to be followed in the country to which extradition is sought will render it unjust or oppressive to surrender the alleged offender. In the present case, injustice or oppression must be measured by considering the High Court's view concerning the practice which will be followed in New Zealand, which view is that it is most unlikely to result in a fair trial. The High Court has recognized that some aspects of the potential unfairness may be avoided by appropriate directions to the jury but clearly, not all of the problems can be met in this way. For example, there is nothing in R v Accused suggesting how a New Zealand court will ensure that all members of the jury base conviction on any count upon substantially the same alleged conduct. This is not merely a theoretical problem, but a real danger in the view of the High Court. In R v Accused, the New Zealand Court expressly approved the direction given by the Trial Judge in S. The High Court clearly considered it to be inadequate. Thus we conclude that proceedings in New Zealand would probably take the form expressly disapproved in S.'
113 With unfeigned respect for those who decided Bannister, it concerned me at first that that case might need reconsideration and that I should perhaps refer this matter to a Full Court. However, on reflection it seems to me that, in the light of authority as to s 34(2) and the similar provisions as to interstate extradition formerly contained in the Service and Execution of Process Act 1992 (Cth), the approach adopted in Bannister of giving effect to strong and clear High Court authority as the measure of 'injustice' was correct, indeed inevitable. Further, the case is explicable as an instance of 'injustice' constituted not by some mere evidentiary or relatively important procedural divergence between New Zealand and Australian law, but as one of a fundamental difference as to the content of an effective right to a fair hearing, such right being recognised, as indicated above, as a basic human right.
(v) No subsequent disentitling contribution to delays by applicants
114 There is no suggestion that, since the alleged commission of the offences complained of, either applicant has done anything further to bring about or contribute to the delays in the complainants bringing forward their allegations. They are not in the category of persons who have fled to a foreign shore to escape justice. They have simply lived their lives and lived them lawfully. Their ordinary service in the Order, operating as it does across Australasia, has brought them to this country. Nor have they contributed in any disentitling way to the delays since they were told of the allegations.
(vi) Proposed joint trials and prejudice arising from such
115 Under Australian criminal law and practice, it seems likely to me, on the scant material available, that there would be no joint trials in New Zealand as proposed by the prosecution. To begin with, there could be no joint trial unless the evidence from either of the complainants was admissible to prove the guilt of another. The most common way that such material is admitted is if the picture presented in relation to the two charges is so striking that it negatives the possibility of concoction by either complainant. It is not suggested that any of the acts said to have been committed by either applicant fall outside what are, regrettably, commonplace and unremarkable ways in which male children are sexually abused. Even if that hurdle be overcome, should the actual evidence exceed present expectations, the evidence would likely be rejected in Australia if there is a real prospect of concoction or of unconscious contamination. Given the circumstances in which the complainants have made their way to the police, it may be difficult to gainsay that prospect.
116 The Australian standard should, I think, be regarded as set by the Evidence Act 1995 (Cth) although Victoria and Queensland have each adopted their own and different approaches to the matter. Section 101 of that Act requires that 'tendency' or 'coincidence' evidence cannot be used against a criminal defendant 'unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant'. That is a less strict test for its admissibility than the Australian common law, which required that there be no rational explanation for the evidence except the guilt of the accused: R v Ellis (2003) 58 NSWLR 700 at [95]. Now, a balancing exercise is required in each case: ibid. A serious possibility of concoction or unconscious contamination would still appear to be perfectly properly to be weighed in that balance. As McHugh J said in Pfennig v R (1995) 182 CLR 461 (at 529-530) (in dissent, but now, in my opinion, allowably as a useful guide - see W v R (2001) 115 FCR 41 at [102]):
'Admitting the evidence will serve the interests of justice only if the judge concludes that the probative force of the evidence compared to the degree of risk of an unfair trial is such that fair minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
…
If the risk of an unfair trial is very high, the probative value of evidence disclosing criminal propensity may need to be so cogent that it makes the guilt of the accused a virtual certainty. In cases where the risk of an unfair trial is very small, however, the evidence may be admitted although it is merely probative of the accused's guilt. Each case turns on its own facts. But the judge must bear in mind that the admission of evidence revealing criminal propensity is exceptional. Further, as Lord Cross pointed out in Boardman, while there remains a general rule against the admission of other acts of misconduct, "the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the inadmissible evidence".
Thus, where the prosecution case depends entirely on propensity reasoning, the evidence will need to be very cogent to be admitted. When propensity reasoning is relied upon, the danger is high that the tribunal will convict simply because of the accused's propensity instead of using it as an evidentiary factor. Consequently, in such a case the evidence will need to be so cogent that, when related to the other evidence, there is no rational explanation of the prosecution case that is consistent with the innocence of the accused. However, I do not think that evidence disclosing or tending to prove other criminal or wrongful conduct, and consequently the criminal or discreditable propensity of the accused, must always meet this high standard.'
117 In New Zealand it appears that the test to be applied is whether the probative value of the evidence 'outweighs' any prejudicial effect: R v Holtz [2003] 1 NZLR 667 at 675 and that, in so determining, the courts consider whether there is a 'real chance' of concoction. I agree with counsel for New Zealand that such differences as may exist between Australian and New Zealand laws of evidence are not themselves such as to invoke the Bannister principle.
118 To the extent, as suggested by New Zealand, that the evidence may be cross-admissible to show 'context' ('to explain, for example, why no complaints were made', it was said) and that, for that reason, there is no requirement that the probative value of the evidence should outweigh its prejudicial effect, appears on the face of it far-fetched. I am unaware of any case where cross-admissibility of the evidence of different complainants has been judicially conceded for such a purpose, and it is not easy to see why such evidence would furnish any relevant context of that kind. In both New Zealand and Australia the long suspicion of the common law, for good reasons, of 'similar fact' evidence is likely to continue strongly to influence trial and appellate judges.
119 Finally, there would be a discretion in the trial judge to exclude the evidence if its unfair prejudicial quality might substantially outweigh its probative value: Evidence Act 1995 (Cth) s 101. The result of a proper exercise of that discretion would seem likely to dictate that the only charges against Moloney and McGrath that an Australian court would permit to be tried together would be those arising from the allegations of the one complainant who alleges that they were engaged in some kind of joint criminal enterprise against him. As indicated above, a high degree of prejudice would appear to arise from the joint trial of any charges involving separate complainants. As counsel for the applicant put it, there is a risk that a jury may reason along the lines: 'If only one of these people complaining had made the allegation we might well have a reasonable doubt about it, but as there are more than one making allegations, we feel comfortable about accepting all of them." Such would deny the necessity for separate considerations of an satisfaction beyond reasonable doubt, an admissible evidence, as to each individual allegation, and above all of the credibility of the individual complainant. In Australia, as a matter of practice, an extraordinarily high, actual probative value would probably be required of the evidence of the other complaints. As presently advised, this appears very unlikely.
120 Counsel for New Zealand makes the point that each applicant must satisfy the Australian magistrate or judge that it 'would', not might, be unjust or oppressive to surrender him to New Zealand. I agree. However, the applicants do not need to show beyond