New Zealand v Garchow, Lebler, Moloney

2. The application is brought pursuant to Part III of the Extradition Act 1988 ("the Act") which makes special provision in relation to requests by New Zealand for the extradition of persons arrested and remanded under indorsed New Zealand warrants or provisional warrants.

The proceedings 3. Section 34(1) of the Act provides: Where: (a) either: (i) a person has been remanded after being arrested under an indorsed New Zealand warrant; or (ii) a person has been remanded after being arrested under a provisional arrest warrant and an indorsed New Zealand warrant has been obtained in relation to the person; and (b) a request is made to a magistrate by or on behalf of the person or New Zealand for proceedings to be conducted under this section; the magistrate shall, unless the magistrate makes an order under subsection (2): (c) by warrant in accordance with subsection 38(1), order that the person be surrendered to New Zealand; and (d) by warrant in the statutory form, order that, pending the execution of the warrant referred to in paragraph (c), the person be committed to prison. 4. To satisfy the requirements of s.34(1) of the Act, therefore, New Zealand merely has to prove that it has issued indorsed warrants in respect of the person whose surrender is sought or that a provisional warrant, backed by a New Zealand indorsed warrant, has been issued by Australian authorities in respect of the person, and to make a request to a magistrate for that person's surrender.

5. All the relevant procedures have been complied by New Zealand. The opponents, however, pursuant to s.34(2) of the Act, argue that, for a number of reasons to be elaborated below, they should not be surrendered on the warrants.

6. Section 34(2) provides: If the magistrate [to whom the request for surrender is made] is satisfied by the person that, because: (a) the offence in relation to which any indorsed New Zealand warrant in relation to the person was issued is of a trivial nature; (b) if that offence is an offence of which the person is accused - the accusation was not made in good faith or in the interests of justice; or (c) a lengthy period has elapsed since that offence was committed or allegedly committed; or for any other reason, it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand, the magistrate shall order that the person be released.
7. The opponents place particular emphasis on the lengthy period that has elapsed since the alleged commission of the offences and, more generally, on the injustice and oppression that they argue would flow from an order for their surrender. Counsel for the opponents also argued that there had been a demonstrable lack of good faith on the part of the New Zealand authorities. Although I will, of course, deal with that issue, it appears to me to be a secondary one. The opponents and the offences alleged in the warrants
8. It is a matter of common knowledge that over the past decade, large numbers of Catholic clergy and members of religious orders have been investigated, prosecuted, convicted and imprisoned for sexually abusing children. This phenomenon has occurred in many places throughout the world and accusations, investigations and trials have received international news coverage. The scandalous nature of the allegations and proven misconduct has, it is quite clear, shocked the Catholic Church.
9. Whereas once the Church was inclined, so it appears, to deal with such issues "in-house", the approach now taken is one of general openness and co-operation with secular authorities. The St John of God order in New Zealand, once it was clear that serious allegations of abuse and victimisation of Marylands students were being made, invited members of the public through the mass media to come forward with any complaints they had so that these might be dealt with consistently with this new approach. The Marylands scandals have received considerable publicity in New Zealand, especially as a result of the conviction of an ex-St John of God brother, Bernard McGrath, of serious sex offences.
10. Approximately 80 persons were interviewed by the Provincial (or head of the order in Australasia), Br Peter Burke. Most of those persons were referred by the St John of God order to the New Zealand Police who then, in many cases, investigated the complaints. The New Zealand warrants concerning the opponents were issued in the New Zealand District Court following an investigation by police into a large number of allegations and complaints made to the St John of God order.
11. Br William Lebler was born in 1922 and is now 83 years old. Ten complaints are alleged against him the in warrants concerning conduct said to have occurred between 1955 and 1965. Br Moloney was born in 1935 and will turn 70 later this month. There are eleven complaints against him concerning alleged offences said to have been committed by him between 1966 and 1979. Fr Garchow was born in 1947 and is 57 years old. There are two complaints against him concerning offences alleged to have been committed between 1969 and 1974.
12. The nature of the allegations against the opponents is very serious, although those against Fr Garchow are of a lesser order of seriousness than those against Br Lebler and Br Moloney. If extradited, Br Lebler faces nine charges of indecent assault, five of buggery or attempted buggery, fourteen of indecent assault upon a child under 12 years of age and four of sodomy under the New Zealand Crimes Acts of 1908 and 1961. The charges of buggery (s.153 of the Crimes Act 1908) carry a maximum penalty of life imprisonment. The other charges carry maximum penalty of 10 years imprisonment. Fr Garchow faces four counts of indecent assault upon a child under 12 years. Br Moloney faces 23 charges of indecent assault upon a child under 12 years and five counts of sodomy. The issues
13. The opponents have raised the following issues for consideration in their arguments:

14. First, whether there is established by the evidence an objection to extradition pursuant to the terms of s.34 (2) of the Extradition Act 1988 (the Act). This is the overriding issue and all other issues are really a sub-set of this one.

15. Second, whether the relevant circumstances of each of the opponents would be such as to justify, if the charges were dealt with as having been brought under the law of New South Wales, an order that there be a permanent stay of proceedings: see particularly the decision of the Court of Criminal Appeal of New South Wales in R v Littler (2000) 120 A Crim R 512.

16. Third, whether the opponents would likely be granted a permanent stay of proceedings according to the relevant law and procedure in New Zealand: see for example J v The Police [1996] 1 NZLR 195.

17. Fourth, putting aside questions of the availability of a permanent stay, whether it would be unjust or oppressive within the terms of s.34 (2) the Extradition Act 1988 to order the surrender of the applicants to New Zealand by reason of the lengthy period that has elapsed since the offences charged were allegedly committed: see for example New Zealand v Venkataya (1995) 57 FCR 151.

18. Fifth, whether the general manner in which the complainants have come forward to make complaints, and the conduct of joint meetings between complainants, has effectively contaminated the process of investigation of the individual complainants so that their reliability is compromised.

19. Sixth, whether it would be unjust or oppressive within the terms of s.34 (2) of the Act to order extradition to New Zealand having regard to the fairness of the trial proceedings that are intended to be conducted in the case of each individual opponent. The specific issues which are raised for consideration under the general category of "fair trial" are: a) Whether the charges against the individual opponents will be heard as separate trials or whether there will be a joint trial of all charges against each individual opponent. This issue raises questions regarding the joinder of counts in sexual cases.

b) Whether each individual opponent is to be tried on his own or jointly with another, in particular the alleged offender known as Brother McGrath. This issue raises questions regarding the joinder of trials of alleged offenders in sexual cases.

c) The whole issue of separate trials generally is also dependant upon the approach to be taken to the question of the question of the potential for collusion between witnesses. There is said to be a stark contrast between the laws of New Zealand and Australia on this point.

d) The nature of any warning to be given by the trial judge regarding the manner in which the jury should consider the evidence in a case of historical allegations of sexual abuse.

e) Whether it is legitimate to draw an inference in support of the guilt of the individual accused from the fact of his failure to give evidence in the trial proceedings or to make any response to the allegations made against him.

f) Whether it is possible in the circumstances that now exist for there to be a fair trial having regard to the extensive publicity that the charges against the three opponents and Brother McGrath have generated in New Zealand and in particular in the city of Christchurch.

g) Whether the conduct by New Zealand Police of the investigation of the case against the three opponents discloses a lack of good faith on the part of the investigators acting on behalf of the requesting country.

h) Whether the ill health of the opponents, in particularly the condition of their health so far as it effects their ability to effectively participate in the trial proceedings, is such that the process of extradition would necessarily be unjust or oppressive. 20. It is argued by the opponents that if affirmative answers can be given to one or more of these questions, the discretion available under s.34(2) is enlivened.

Some things are not in issue: the facts that these alleged crimes are serious, that there were very long delays in making the complaints and that the opponents are now, in the cases of Brs Lebler and Moloney, old men. (Fr Garchow is approaching old age.) Each of the opponents has suffered, and continues to suffer, some degree of physical and mental ill-health and stress.

Leaving aside the ultimate issue of whether the discretion ought be exercised in favour of the opponents (or any of them), it is convenient to deal with the issues in the order they were outlined by counsel for the opponents above. There is some overlap in the arguments in relation to several of the questions.

Would the opponents, or any of them, be granted a permanent stay of proceedings in New South Wales ?

The opponents' arguments in relation to this question are closely related to, and significantly overlap with, their submissions in relation to fair trial and delay. It is submitted that the principles applying to permanent stay applications under the law of New South Wales are analogous to those applying to the determination of questions under s.34(2). The opponents contend that there are several grounds upon which it is likely that a permanent stay would be granted to one or more of them if they were indicted under New South Wales law because, when all the relevant circumstances are taken into account, it would be oppressive and unjust. If a permanent stay would be granted on those general grounds, by analogy so, it is said, should an order by made under s.34(2) releasing the opponents (or any of them who establish those grounds).

In making their arguments, the opponents rely heavily on the decision of the Court of Criminal Appeal in R v Littler. (2001) 120 A Crim R 512. In that case, a 74 year old man suffering from memory problems and ill-health was indicted upon charges of sexually assaulting two young boys at a boys' home 38 and 46 years previously. The CCA granted the appeal and ordered a permanent stay of proceedings on a number of bases. Adams J identified three types of prejudice suffered by the appellant due to the very lengthy time that had elapsed between the time of the alleged offences and the trial date. First, numerous witnesses were unavailable to the appellant due to death, incapacity or difficulties in locating them. Related to this was the fact that such witnesses themselves would necessarily be subject to the usual human condition of imperfect memory caused by a long passage of time. This was an actual prejudice to the appellant.

The second area of prejudice considered by Adams J was the appellant's own difficulty in remembering with reasonable reliability the "contextual facts of the alleged offences". Ibid at 522. He explained this in greater detail:

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… 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.

If one assumes for the sake of the argument that the appellant was actually innocent (as opposed to being presumed innocent as a matter of law), and he had had no particular reason to fix years in his mind details relating to particular children at certain times and places over days, months or even years, the difficulties he faced in challenging evidence of his accusers so long after the event were stark and obvious.

The third type of prejudice suffered by the appellant was a significant deterioration in his capacity to remember, resulting from organic brain disease. He also suffered general ill-health and various psychiatric and psychological difficulties.

Adams and Greg James JJ both stated that they were unable to formulate directions adequate to ensure the jury fully understood the handicaps under which the appellant laboured and to make fair and proper allowance for them. In the circumstances, the Court unanimously agreed that a permanent stay ought be ordered.

In this case, the opponents argue that there is not only presumptive prejudice from the very considerable delay each has experienced but actual prejudice of the types analysed by Adams J in Littler.

Each of the opponents is old or approaching old age. While age in itself is not a ground for a permanent stay, it is common for the ageing process to result in physical and mental deterioration, ill-health and reduction in powers of recollection. If so, that is an actual prejudice. Evidence has been adduced in relation to the health and psychological states of each of the opponents.

Br Lebler is, according to the medical evidence, in the worst neurological condition of the three opponents. He was assessed by Dr John Roberts, a consultant psychiatrist, in August 2003 and December 2004. Dr Roberts found that between assessment there had been a significant degree of cognitive deterioration in Br Lebler. An MRI scan done in 2003 showed enlargement of the ventricles of the brain indicating shrinkage of his brain substance. A further MRI done in 2004 indicated moderate cortical atrophy. Br Lebler also undertook psychometric testing with Dr Gilandas who found him to perform in the "borderline mentally retarded" range (if assessed using the norms for middle-aged persons).

Dr Roberts expressed the opinion that it was improbable that, given Br Lebler's cognitive condition and the effluxion of time, that he would be able to give evidence concerning matters of fact relating to events which are alleged to have occurred about 50 years ago. He considered Br Lebler would qualify for treatment for dementia. Dr Gilandas's opinion was that Br Lebler's "memory abilities are quite limited relative to the general population." He thought that, as a result, Br Lebler would be "an unreliable witness due to the natural decline of memory in advanced ageing." He considered that the fact that the alleged events took place a very long time ago would compound Br Lebler's memory difficulties.

Both Br Moloney and Fr Garchow have been treated for severe depression since the allegations were made against them. Br Moloney has been treated also for prostate cancer. Fr Garchow has also suffered hypertension, shingles and, most seriously, cancer of the vocal chords. He has been treated for each of these conditions. His radiotherapy appears to have been successful but he was admitted to the Northside Clinic, a private psychiatric hospital in Sydney, suffering from a major depressive illness in September 2004. He requires continuing treatment for this condition.

Counsel for New Zealand argued that age or ill-health or a combination of the two are not necessarily, of themselves, sufficient foundation for a permanent stay of proceedings. He referred to cases, such R v Hull NSWCCA Unrep (6 Oct 1994) BC9405243. and R v Sopher (1993) 70 A Crim R 570, in which elderly persons suffering from ill-health had, nonetheless, been convicted of serious crimes and served terms of imprisonment in NSW. In R v Bailey (1988) 35 A Crim R 458 the Court of Criminal Appeal considered that a man convicted of a number of serious sex and other offences, but who had pleaded guilty and was suffering from HIV, was nonetheless appropriately sentenced to a term of some years in prison. Although ill-health is a factor to be taken into account, as well as the extra hardship that may bring upon a sentenced prisoner, the Court held that ill-health was only one of several factors to be taken into account, including the gravity of the offences in question.

At least one important witness upon whose testimony the opponents might reasonably have been expected to rely to some extent is dead. Dr Kevin O'Connor was the general practitioner who, it appears, had the longest association with Marylands during the relevant period. He regularly examined and treated many of the students at the school. Not only is he now dead but his records in relation to the Marylands pupils whom he treated are no longer available. It is submitted by the opponents that those records might have had a significant exculpatory effect if available because it would be reasonable to expect that if an alleged victim had been injured as a result of a sexual assault this would be show in the medical records. Similarly, it is submitted that if children had been sexually assaulted by one or more of the opponents it is reasonable to expect that there may have been some complaint or complaints recorded by Dr O'Connor in his records. Conversely, if no complaint evidence had emerged from the records, it is suggested that an exculpatory inference would have been available but now cannot be advanced, to the prejudice of the opponents. Further, this material might have been used to cross-examine the complainants and now cannot be used.

Evidence has been produced by the opponents that significant numbers of members of the St John of God order and lay people who were members of staff at Marylands in the relevant time staff members are not available due to their deaths or for other reasons.

In response to a summons issued by the court, New Zealand has produced a large number of records relating to Marylands in the relevant times and other materials. Of particular interest to the opponents are documents called "Mutations From the Latin mutare "to move; to change" Books" or house diaries for Marylands. The Mutations Books record such things as attendances by official visitors, teachers, school inspectors, parents and guardians. No Mutations Books in respect of the period 1961-1977 have been produced. Other records which were kept by the school in respect of each student and which were sought by the opponents, such as psychological and psychiatric reports, social records (detailing the students' home backgrounds, court appearances, family particulars and so on) and educational records were not produced. Again, the opponents argue that they might reasonably be expected to have obtained a forensic advantage, which they are now denied, from those records.

New Zealand argues in response to this that it is very unusual for such a volume of records to be available at all to defendants in such cases.

More generally, counsel for New Zealand, while conceding that in many respects the principles relating to permanent stay applications and the exercise of the discretion under s.34(2) overlap and that therefore there is some guidance to be found in the stay cases, nevertheless argues that they can be of limited assistance because each case depends on its own circumstances. He argued that health (or the lack of it) and age are only two factors among several to be taken into account in considering whether a stay will be granted.

More importantly, he distinguished between the procedure in a stay application where, ordinarily, the court will conduct an exploration of the full circumstances relevant to the argument and the situation that obtains here, where such a course has not been undertaken. Indeed, he asserted, it would generally be generally inappropriate, given the nature of these proceedings, for such an enquiry to be conducted. Stays of proceedings are granted only as a last resort and with a great deal of care. He argued that if, in effect, a stay application is to be made, the appropriate forum is a New Zealand court which would then have an opportunity to consider all the relevant circumstances. (I took his argument to respond also to the next argument outlined.)

Is it probable that the proceedings would be permanently stayed in New Zealand?

The opponents argue that it is likely, given the circumstances outlined above, that New Zealand courts would permanently stay the proceedings against them. If that is so, they argue, it would be oppressive and unjust to surrender them to New Zealand with all the inconvenience and stress that would follow only for the proceedings to halted without ever coming to trial. It is contended that the outcome of such applications is readily predictable on the basis of New Zealand authority. Indeed, senior counsel for the opponents submitted that the prospects of a permanent stay appear to more favourable in New Zealand than in New South Wales.

I was referred to several New Zealand decisions on this point. In J v Police [1996] 1 NZLR 195. the New Zealand High Court dealt with an application to stay proceedings commenced in 1994 against a 79 year old man on charges of rapes which had, on his own admission, taken place between 1948 and 1961. The victims were his four adopted daughters. The application was dismissed because he had admitted the offences. Nevertheless, Hammond J observed that the delay was " as extreme as it would be possible to imagine" Ibid at 201. and that there had been no justification for it advanced. Consequently, but for the admissions, "the Court would have had no hesitation in staying all the counts in the draft indictment". Ibid at 195. At the time of that decision, as far as the New Zealand High Court was aware, this was a record delay between the commission of the offence and the bringing of charges.

In C v R [1994] 2 NZLR 621., Smellie J stayed proceedings in a case in which the earliest alleged sexual offence had taken place 41 years before the complaint was made and the most recent was 28 years old at that time. By the time of the complaint, the accused was 71 years old. The Court referred to the presumptive prejudice involved in such delays raising a prima facie conclusion that a fair trial was not possible. The judge considered it "inherently improbable that after a lapse of between 28 and 40 years the applicant [would] be able to say… anything more than he cannot recall and therefore denies [the allegations]". Ibid at 627.

In R v G [1996] 1 NZLR 615., the New Zealand High Court dealt with another stay application, this time by a 90 year old man in respect of offences said to have been committed by him 15 years before complaints were made of sexual assaults. In that case, the Court held that the delay was not unjustified but nevertheless stayed the proceedings on account of a combination of factors: the accused's age, his poor mental health and the adverse effect of the delay on his ability to effectively answer the allegations. The delay of 15 years was held not, in itself, to be sufficient to justify halting the proceedings but was a factor to be taken into account with others, particularly the effects of advancing age.

While it is conceded by the opponents that something more than mere delay is necessary for a successful stay application, each of them, as we have seen, argues that other factors obtain in his particular case.

The conclusion the opponents urge this Court to draw in relation to this question is that propounded by the President of the New Zealand Court of Appeal in Martin v Tauranga District Court [1995] 2 NZLR 419.. In that case the Court had found that, by causing an unjustified delay of 17 months between charge and trial, the prosecution had breached s.25(b) of the New Zealand Bill of Rights Act 1990, which provides for a right to be tried without "undue delay". Having found the breach, the Court concluded that the appropriate remedy was to stay the proceedings. In doing so, Cooke P remarked, "A stay seems the more natural remedy [than to allow the trial to proceed but with an award of compensation to the appellant]. Generally speaking, it seems better to prevent breaches of rights than to allow them to occur and then give redress." Ibid. at 425.

It is argued that these remarks are particularly significant because the New Zealand Court of Appeal is that country's highest court and a bench of five sat on this case. While the remarks are probably obiter dicta, from them, it is argued, it is possible to discern a policy approach adopted by the New Zealand Court of Appeal. It follows, the opponents contend, that it is highly probable that a stay of proceedings would be ordered in respect of their matters and that it would therefore be oppressive to send them back to New Zealand only to face proceedings which would very probably be rendered nugatory.

To emphasise the general point being made, I was also referred to the English decision of R v B. [2003] 2 Cr App R 13 In that case, the English Court of Appeal set aside the conviction of man convicted of sexually abusing his step-daughter where there had been a 30-year delay in the making of the complaints. No criticism was made of the conduct of the trial. While affirming the principle that delay of itself was insufficient to ground a stay of proceedings, the Court said:

… there remains in this Court a residual discretion to set aside a conviction if we feel it is unsafe or unfair to allow it to stand. This is so even if the trial process itself cannot be faulted. It is a discretion which must be exercised in limited circumstances and with caution. When we exercise that discretion we must be conscious that ew are not only involved in deciding where justice lies for the appellant. We must do just to the prosecution, whose task it is to see that the guilty are brought to justice. We must also do justice to the victim… She is entitled to justice as well. But we also have to do justice to the appellant. At the heart of our criminal justice system is the principle that while it is important that justice is done to the prosecution and justice is done to the victim, in the final analysis the fact remains that it is even more important that an injustice not be done to a defendant. It is central to the way we administer justice in this country that although it may mean that some guilty people go unpunished, it is more important that the innocent are not wrongly convicted.

… because of the delay that occurred… the appellant was put in an impossible position to defend himself. He was not… able to conduct any proper cross-examination of the complainant. There was no material he could put to the complainant to suggest that she had said that something had happened on one occasion which could be established to be incorrect. There was no material in the form of notes that were given to the doctors which showed that she had changed her account. All that that appellant could do was to say that he had not committed the acts alleged against him. Mr Jenkins says that to say to a jury, when faced with allegations of the sort that were made here, "I have not done it" is virtually no defence at all…

In the end we have come to the conclusion that this is one of those residual cases where in the interests of justice we must set aside this conviction. That may be an injustice to the victim. It may be an injustice to the public in the sense that a guilty person is not going to suffer any further punishment than he has. But, nonetheless, having regard to the lapse of time, the very limited evidence that is available in this case, we have come to the conclusion that it is our duty to allow this appeal… Ibid at 204-205.

It was argued by the opponents that there is a specific recognition of the oppressive quality of long delay in s.34(2) and in the authorities.

For example, in New Zealand v Venkataya (1995) 57 FCR 151. the respondent was apprehended under a warrant alleging serious sexual offences committed between 14 and 20 years earlier. Sackville J held that "in determining whether it would be "oppressive" to surrender the apprehended person to New Zealand, the court can take into account the financial hardship, domestic upheaval and emotional distress the person would experience if surrendered." Ibid at 165. See also Hicks v Martin (1990) 27 FCR 416 at 418. He emphasised, however, that "mere delay without evidence that is has caused injustice or oppression is not enough." Ibid at 166. See also White v Cassidy (1979) 40 FLR 249. He found, however, that the respondent had established a new life, family and business in Australia in the time since the alleged offences and that he had lived an apparently exemplary life in Australia. He found that there would be a considerable financial impact on the respondent's business and that his family would suffer considerable hardship if he were surrendered to New Zealand. Notwithstanding the gravity of the offences, the court held that the respondent should not be surrendered.

In Kakis v Government of the Republic of Cyprus [1978] 2 All ER 634., the House of Lords held that it would be unjust and oppressive to surrender a man sought on a murder charge in Cyprus because, first, an alibi witness was no longer available and, second, he had been given a reasonable expectation that an amnesty had been proclaimed (following the cessation of hostilities in Cyprus) for political crimes including that alleged against him. The opponents rely upon that case as authority for the proposition that even in relation to the gravest allegations it may still be unjust and oppressive to extradite a person.

Reliance is also placed by the opponents on Perry v Lean (1985) 85 FLR 29.. In that case, the Full Court of the Supreme Court of South Australia held, by majority, that, despite a delay of 23 years, it was not unjust or oppressive to order her extradition to Victoria on a murder charge but conceded that such a lengthy delay "gives rise to a very great anxiety". Ibid at 30 per Jacobs J. In the opponents' cases, the delays are much longer, leading them to argue that this Court's anxiety ought be much greater.

New Zealand quite rightly does not contest that there has been a very lengthy delay in the complaints being made. It concedes that there is a presumption of prejudice and that is a probability of actual prejudice to the opponents. It argues, however, that delay, of itself, is not decisive of the question to be resolved. Against this (and other factors which weigh in the balance for the opponents) is the question of the gravity of the offences. No one contests that these are allegations of a very weighty nature.

Counsel for New Zealand contended that even where delays were lengthy, it may, nonetheless be appropriate to proceed in sexual cases.

For example, in R v PH NSWCCA Unrep (4 Mar 1994) BC9405138., the NSW Court of Criminal Appeal upheld a trial judge's refusal to stay proceedings relating to allegations of multiple sex offences committed 30 years previously, notwithstanding the deaths and unavailability of numbers of potentially significant witnesses and sensational media publicity. Moreover, certain medical records were unavailable. The accused was 75 years old at the time of the appeal. In R v Rawlings NSWCCA Unrep (18 Dec 1998) BC9806798., the Court of Criminal Appeal rejected another appeal, this time from a 65 year-old man convicted of sex offences committed about 40 years previously.

Counsel for New Zealand also distinguished these proceedings from Venkataya. Here the opponents do not have families and businesses that would be adversely affected or jeopardised by their being extradited to New Zealand. Moreover, evidence was given that they would continue to be supported by the St John of God order which would arrange accommodation in New Zealand for them and otherwise see to their needs. The prosecution would not oppose bail being granted to them on their return to New Zealand. It is said that any hardship they may suffer as a result of being moved back to New Zealand would not therefore be so great as to be oppressive.

One of the major arguments mounted by the opponents was that much of the evidence upon which the prosecution hopes to rely in New Zealand is, or is likely to have been, contaminated during the course of the investigation or even prior to it. This leads, it is said, directly to the question of the fairness of the trials the opponents may face, a question with which I will deal below.

It is argued that the evidence of complainants was or may have been contaminated in a number of ways. First, it is said that there has been widespread publicity given in New Zealand to claims of sexual abuse by St John of God brothers and to financial settlements reached in Australia and New Zealand with some complainants. Evidence was given by the New Zealand Police officer in charge of the investigation, Det Sgt Borrell, that the complaints he and his team investigated were made following publicity about "large-scale historical sexual abuse at [Marylands school]." Some of the Christchurch newspaper articles apparently refer not only to the proven offences of Bernard McGrath but link other brothers to allegations made against him. Br Lebler was identified at least twice in very prejudicial terms by the Christchurch Press newspaper with McGrath.

Second, it is submitted that there is evidence that the possibility of financial gain may have motivated some complainants. It is uncontested that some compensation payments have been made to certain persons who have made complaints against the order. Newspaper stories stating that the St John of God order had made a number of payouts to complainants were published in Christchurch. Several of the complainants who came forward as a result of the publicity and were interviewed by Br Burke apparently claimed compensation from the order, although it was not clear to me from the evidence before this Court whether any of them have actually received such compensation payments or other benefits from the order.

Third, in New Zealand the St John of God order has actively encouraged persons claiming to have been victimised by members of the order to come forward. Advertisements were placed in newspapers at one stage and a hotline was set up to enable such persons to call in and make their allegations or inquiries.

Fourth, a victims' group run by a Mr Ken Clearwater has been active in bringing together men claiming to have been victimised by Catholic clergy and lobbying on their behalf for recognition by, and compensation from, church authorities. Some of the complainants to the order were supported by Mr Clearwater in their interviews and contact with Br Peter Burke.

Fifth, as just stated, interviews were conducted by Br Peter Burke in company with Ms Michelle Mulvihill on behalf of the order with complainants. Notes of those interviews were placed in evidence. One of the protocols adopted by the order was that, if a complaint of sexual abuse against a member of the order was made, the complaint was encouraged to take the complaint to the police.

Sixth, in some instances, complainants were apparently interviewed together.

Evidence was given that the prosecution intends to present indictments with multiple counts against each accused. In the case of Br Moloney, evidence was also given of an intention to try him jointly with Bernard McGrath in relation to certain allegations. I was not given a copy of the draft indictment for that proposed joint trial but it was evident that Br Moloney is alleged to have engaged in a number of joint criminal enterprises with McGrath.

It is established that, when assessing whether a person whose surrender is sought by a requesting country would receive a fair trial, the court receiving the request must apply Australian standards and principles. See Bannister v New Zealand (1999) 86 FCR 417. It is argued that New Zealand proposes to put the opponents on trial in circumstances that would not be contemplated by Australian courts because of the high probability of contamination of evidence and the possibility of collusion between some complainants. It follows, on this argument, that it would be both unjust and oppressive to surrender the opponents.

This argument, with New Zealand's response, is more fully developed below.

The opponents argued that, for a number of reasons, the intended trials would be unfair. Particular emphasis was placed in argument on the unfairness of joint trials in the opponents' circumstances. It was argued that there is a recognition in both New Zealand and Australia of the grave danger of unfair prejudice to an accused where several charges are tried simultaneously but that Australian and New Zealand principles and approaches to the question of admissibility of "similar fact" evidence differ significantly. It is further argued that, if Australian principles are applied, the trials proposed by the New Zealand authorities would be unfair. It follows, the opponents contend, that the Full Court of the Federal Court's decision in Bannister v New Zealand entails a conclusion that they ought not be surrendered.

In Bannister the Federal Court concluded that where there was a significant divergence between Australian and New Zealand standards in relation to procedural fairness, the Australian standard must prevail. If, judged by Australian standards, a procedure to be used in New Zealand would result in an unfair trial, the Federal Court held that extradition of an alleged offender to New Zealand ought be refused:

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 trial in New Zealand are generally more or less fair than similar proceedings in this country. However, on this very important procedural point [the use of representative or specimen charges], the two systems have diverged See R v Accused (1995) 1 NZLR 385, a decision of the New Zealand Court of Appeal approving the use of "specimen charges". The Court was satisfied that the prejudice to the accused could be sufficiently dealt with by virtue of a requirement that each charge be as specific as reasonably possible and "emphatic directions" by trial judges to juries emphasising that the onus of proof lies upon the prosecution. The Australian High Court took the view in S that specimen charges were latently but inherently liable to be duplicitous.. In considering the present application, we can only apply the decision of our own ultimate appellate court. A reference to the decision of the High Court in S v The Queen (1989) 168 CLR 266 which had prohibited the procedure of using "representative" or "specimen" counts in Australia.

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. (1999) FCA 362 at [26]-[27]. It is also reported at (1999) 86 FCR 417.

In De Jesus v The Queen (1986) 61 ALR 1 at [4] per Gibbs CJ. See also Sutton v. The Queen (1984)152 CLR 528 at 541-542. the High Court stressed the peculiarly prejudicial nature of allegations of sexual misconduct and the consequent need for very great care to be taken in relation to joinder of a series of sex offences charges in an indictment.

The possible joinder of charges in the indictments and also the potential joint trials of McGrath and Br Moloney brings forward the issue of possible collusion between witnesses. Vigorous submissions were put forward by both parties on this question. It was argued by the opponents that the decision of the High Court in Hoch v. The Queen (1988) 165 CLR 292 remained the relevant law of Australia, notwithstanding the decision of the New South Wales Court of Criminal Appeal in R v Ellis (2003) 58 NSWLR 700 and the High Court's approval of that decision.

In Hoch it was held that if there is a mere possibility of collusion by witnesses who were to give similar fact evidence in relation to separate charges, the peculiarly probative value of that evidence disappears because it is explicable on the basis of concoction rather than criminal conduct on the part of the accused. It held that where such a possibility rationally arose, it would be unfair to try the charges together and that separate trials were mandatory. See (1988) 165 CLR 292 at [6]-[11] of joint judgment of Mason C.J., Wilson and Gaudron JJ. From this foundation, the opponents argue that the proposed New Zealand trials would necessarily be unfair because the prosecution proposes to try the multiple charges together notwithstanding the reasonable possibility of collusion and concoction of some of the evidence by some of the potential witnesses.

Seven years or so after the decision in Hoch, the Evidence Act 1995 was introduced by the Federal Parliament and in New South Wales and the Australian Capital Territory.

In R v Ellis, the Court of Criminal Appeal was not directly dealing with the issue of collusion and the possibility of concoction but the case is relevant nonetheless. The question before the Court was whether s.101(2) of the Evidence Act, requiring the exclusion of coincidence and propensity evidence unless its probative value substantially outweighed its prejudicial effect, was to be construed in a manner consistent with the High Court's decisions in Sutton v The Queen (1984) 152 CLR 528. and Pfennig v The Queen. (1992) 182 CLR 461. In both Sutton and Pfennig the High Court had held that similar fact and propensity evidence was inadmissible unless there was no rational view of the evidence inconsistent with the guilt of the accused, the same test juries are required to apply in circumstantial evidence cases. In Papakosmos v The Queen (1999) 196 CLR 297 at 302[10] per Gleeson CJ and Hayne J. the High Court made clear that the language of the statute prevails where there is a conflict between the common law and the Act but there remained a question whether the Pfennig test and the statute were inconsistent.

The Court of Criminal Appeal concluded that the "no rational view" test was inconsistent with the statutory provision. The trial judge was to conduct a balancing exercise and exercise a judgment as to whether the probative value substantially outweighed the prejudice. If he or she found it did, the evidence was admissible. This was not a matter of discretion. Special leave to appeal was rescinded by High Court. In making its order, the High Court remarked that it agreed with the decision of Spigelman CJ in the Court of Criminal Appeal, although without giving reasons for rejecting the appellant's argument that the Sutton/Pfennig test was synonymous with the test laid down in s.101(2). Ellis v The Queen [2004] HCA 488 (1 Dec 2004).

While conceding that, following those decisions, the test in relation to admissibility of tendency and propensity evidence may be on a different footing in general terms, and even that Hoch may be superseded once the High Court has a suitable vehicle placed before it, the argument put is that, from an objective point of view, once the possibility of collusion and concoction is rationally established, the danger of prejudice is so great that, in practice, separate trials of the different allegations ought invariably be ordered. It follows from this that if NZ were not to sever the counts in the proposed indictments, the trials would be demonstrably unfair. I note that an argument put in similar terms by Mr Stephen Odgers SC in Ellis did not attract the endorsement of the High Court. .

It is argued by New Zealand that Ellis is now the applicable Australian law in relation to coincidence and propensity evidence in cases such as those faced by the opponents and that Hoch has effectively been superseded. On this argument, it is no longer a question of determining whether there is a possibility of collusion between witnesses but of conducting a balancing exercise. This is a task for the trial judge (if these matters proceed that far). In NSW, trials are now conducted on this basis with the approval of the Court of Criminal Appeal See, for example, R v Milton [2004] NSWCCA 195 (18 June 2004) per Hidden J at [23]-[33].. As a result of the introduction of the Evidence Act and the decision in Ellis, NZ contends that in Australia each case is now to be dealt with on a case-by-case basis as is the practice in NZ and that there is therefore no significant conflict of authority in relation to the admissibility of "similar fact" evidence.

Further, New Zealand argues that the Bannister point (if I can reduce to a catch-phrase) is, in any event, misconceived because Bannister does not apply here. In Bannister there was an express intention on the part of the prosecution to conduct a trial according a procedure expressly approved by the highest New Zealand court but expressly disapproved by the ultimate appellate court of Australia. Here, however, following Ellis, there is no clash of principle and, in any event, all there has been is an expression of an intention by the prosecution to proceed in a particular way. It is argued that it would be for a New Zealand trial court to determine whether counts ought be severed or not and that we cannot anticipate the result.

In relation to alleged collusion or the possibility of collusion, and the question of concoction, New Zealand argues, simply, that these are matters that would be ventilated fully at a trial and be for the jury to determine.

It seems that when the New Zealand warrants were originally drafted the police proposed to prosecute using specimen or representative charges in accordance with the usual New Zealand practice. Before these proceedings commenced, however, on legal advice, they altered that proposal. This Court was told by counsel for New Zealand that the New Zealand lawyers representing the Crown Solicitor had given an undertaking that, if the opponents were surrendered, they would not be tried on specimen counts.

An argument, not very strongly pressed, has been made by the opponents that they still face what are, in effect, specimen charges because of their inherent ambiguity and lack of specificity and, at least in relation to Brs Lebler and Moloney, the large number of charges they face. This argument was made in the opponents' written submissions but not ventilated in oral argument.

The opponents contend that there has been such widespread and damaging publicity concerning them personally, the crimes of Bernard McGrath and the scandals enveloping the St John of God order that a fair trial is simply unattainable. Evidence was presented of intense media interest and a plethora of stories being published by one of the main Christchurch newspapers, The Christchurch Press. It was suggested that Det Sgt Borrell and others involved in the investigation may have been fuelling the media campaign.

New Zealand responds by arguing that New Zealand courts have powers similar to those exercised by Australian courts to warn jurors to take account only of the evidence and to disregard any media reports and so on that may have come to their notice. I was also directed by counsel for New Zealand to the provisions of the New Zealand Crimes Act 1961 which allow for a change of venue of District and High Court trials Section 322.. It has been held in New Zealand that where there is real or perceptible risk that an impartial "hometown" jury could not be empanelled, a change of venue should be ordered. See, for example, R v Mayer-Hare [1990] 2 NZLR 561; R v Middleton CA 218/00 (26 Sept 2000); R v Johnson CA 60/04 (29 March 2004).

This argument was made in particularly by Mr Thangaraj, counsel for Fr Garchow. His starting point was a contention that if an accused person could show a serious irregularity in the initiation of the relevant proceedings extradition ought not be granted. For this proposition he relied on dicta of Samuels JA in Bates v McDonald. (1985) 2 NSWLR 89 at 101. He alleged serious irregularities of three kinds:

First, he said that the accusations had been made following widespread publicity generated by the St John of God order that it was paying compensation to alleged victims of sexual abuse by members of the order.

Second, this was reinforced by the activities of groups of "survivors" and a victims' advocate, Mr Ken Clearwater.

Third, the interviewing of the complainants by Br Peter Burke and Ms Michelle Mulvihill in what the opponents suggest was an inappropriate fashion constitutes a third irregularity. In particular, it was emphasised that complainants were often vulnerable people, some with intellectual disabilities. It was contended that they were suggestible and may have believed that compensation was conditional upon complaints being made to the police.

It is also argued that the request to extradite itself lacked good faith. In support of that proposition, it was contended that there had been misconduct and unfairness by New Zealand police in the manner in which they conducted the investigation. In particular, it was contended that New Zealand police guidelines for the interviewing of suspects had been ignored and breached by New Zealand investigators who interviewed the opponents in Sydney.

A further complaint made by the opponents is that "despite multiple requests for information" the New Zealand police have refused to hand over their brief of evidence or details of payments made to individual complainants. (I should note here that I ruled during the hearing that it was not necessary for them to do so. In my opinion, the authorities are against such a requirement, although it was open to the prosecution to volunteer its brief and I had further concerns that there was a serious threat of a breach of s.34(4) which specifically prohibits an extradition hearing under Pt III of the Extradition Act being used, effectively, as a committal hearing.) There was much more in this vein but, in the interests of economy, I do not propose to outline further details here.

For New Zealand it was argued that "good faith" in this context has a limited and specific meaning. In construing s.27(b) of the Extradition Act 1966 (the corresponding provision of that Act to s.34(2) of the 1988 Act), Samuels JA in Bates v McDonald said that "an accusation not made in good faith is one made without an honest belief in its truth." Ibid at 99. It was said that there was no evidence of a lack of honest belief in the truth of the accusations by the informants, namely the police. Samuels JA referred with approval to the judgment of Hope JA in Willoughby v Elland in which he had said that the provision relating to lack of good faith was enacted as a safeguard against bad or proceedings being brought "not for the purposes of justice but for some other purposes" (1985) 59 ALR 147 at quoted in Bates v McDonald op cit at 99. - in short, abuse of process.

While not strictly a question relating to a fair trial, the opponents submit that there have been changes in New Zealand law between the time of the alleged offences and the making of complaints which have deprived them of forensic advantages they may have had if the complaints had been brought to trial under repealed legislation. For example, it is said that a trial judge would no longer be bound to give a warning concerning corroboration of evidence that a generation ago was an advantage enjoyed by persons accused of sexual offences. Although a relatively minor matter, it is something that has been taken into account by New Zealand courts dealing with stay applications. See, for example, R v B (1993) 11 CRNZ 174 at 181 per Tipping J.

It is submitted by counsel for New Zealand that many of the contentions argued by the opponents effectively seek that this court delve into the merits of the case against them and that it is entirely inappropriate for them to take that course and for this Court to follow them down it. The opponents concede some degree of overlap between putting their cases in relation to oppression and injustice and the merits (or lack of them) of the case sought to be prosecuted but deny any intention to trespass into the area quarantined by s.34(4).

Before dealing with the specific arguments raised by the parties, it is appropriate to make some prefatory remarks. First, the starting point for a proper answer to the questions this case poses is, of course, the legislation itself. Part III of the Extradition Act is unusual in that it gives legislative expression to the particularly close relationship between Australia and New Zealand. The judicial system of no other Commonwealth country, let alone any other nation, is treated with such confidence by the Australian parliament as is New Zealand's. The closeness of the ties and the striking similarities between Australian and New Zealand jurisprudential thinking and practice is emphasised all the more by the rare variances that arise between the two systems. See generally Bannister v New Zealand op cit. Compared with extradition procedures relating to any other country, those under Pt III are particularly streamlined, being virtually identical with those operating between Australian states.

Second, it important to note that it is specifically prohibited for a court conducting extradition proceedings to carry out an inquiry in the nature of a committal hearing Section 34(4) Extradition Act 1988.. The guilt or innocence of the accused is, generally speaking, irrelevant to the proceedings. There may be cases in which an accused is able to demonstrate that a prosecution case is futile from the outset, in which case it is appropriate not to extradite the person, but these are very rare and are exceptions to the general rule: see, for example, Keneally v New Zealand (1999) 91 FCR 292. As was said by Kirby P (as he then was) in Bates v McDonald, "it is erroneous to suggest that the depositions and other evidence may be examined by the court with a view to evaluating disputed issues of fact or to determining doubtful questions of law." Op cit at 95.

Third, while, for the sake of the obvious convenience, given that so many of the issues relate to each of them, the cases of the three opponents have been dealt with together at the hearing, it is important here to emphasise that each opponent's case must ultimately be decided separately. And, indeed, while most of the arguments and material relate to all three, there are separate considerations distinguishing the cases of all three.

Fourth, s.34(2) requires the magistrate to make a judgment not to exercise a discretion. If the court is satisfied that the person seeking to prove oppression or injustice has done so, it must release him or her. Once the conclusion has been reached that surrender would result in oppression, injustice or unduly severe punishment (which I think is a species of injustice), it has no discretion to exercise.

Fifth, each of the opponents bear the onus, on the balance of probabilities, of proving in his case that, for a relevant reason it would be "it would be unjust, oppressive or too severe a punishment to surrender " him to New Zealand.

Sixth, it is not in contest that the gravity of the allegations is a highly relevant factor to be weighed by the Court in assessing whether it is oppressive to extradite a person. See Venkataya v New Zealand op. cit at 166 per Sackville J. In this case, the allegations are, as I have said above, of a very serious nature. One of the complicating features of this case is that, in my opinion, there is a body of evidence strongly suggesting that terrible things went on at Marylands school a generation ago. It is, I understand, common ground that Bernard McGrath, who was a member of the St John of God order and who served at Marylands school, has been convicted of multiple sex offences against boys who were pupils at the school or other institutions managed by the order.

More significantly, on the evidence tendered by the opponents it appears that at a large number of persons have come forward to complain of having been sexually abused at Marylands. While it is conceded by the New Zealand Police that at least some of these claims have been fraudulent, unless this is one of the biggest cases of mass hysteria or conspiracy ever to surface in the Antipodes, it is reasonable to assume that this volume of complaints could not have been generated without cause.

Thus the background against which the extradition proceedings are brought have some similarities to war crimes proceedings where the question is not whether something happened but whether the accused individual participated in the crime(s) but with one major difference. While it appears reasonable to believe that crimes were committed at Marylands, there are real questions as to their number and extent. In other words, while it is reasonable to think that some things happened, when each complaint is examined there is a question whether the alleged event occurred at all and, if so, the subsequent question is whether the perpetrator can be identified.

These considerations may come into play when weighing up the arguments raised concerning possible contamination of evidence and adverse publicity.

In my opinion, there are a number of key issues to be dealt with.

Section 34(2) specifies "lengthy delay" as one of the principal reasons why it may be oppressive or unjust to extradite a person to New Zealand. If delay is oppressive, it must be so not because of the passage of time itself but because of what a passage of time brings with it. Indeed, a passage of time may be very beneficial to an accused or convicted person. It may offend commonsense to find that a person who has committed a serious crime and been able to avoid the consequences by reason of flight or change of identity or some other device specifically designed to prevent apprehension is able to call in aid, upon his or her arrest, a claim of oppression. One only has to think of Nazi war criminals escaping their just deserts in Argentina and Brazil after the Second World War, or to contemplate a Great Train Robber or a corporate criminal enjoying the proceeds of crime in Rio de Janeiro or Majorca to come to this view.

On the other hand, there is a critical distinction to be made between those whose crimes are for all intents and purposes proven and documented, whether or not a formal trial has been held, and the situation of persons who are merely accused of something that may or may not have happened a long time ago. This, of course, is the opponents' situation.

The delays in each of the opponents' cases are very long indeed and, in Br Lebler's case, extreme. In his case at least, I think that there is a powerful argument that he satisfies the criteria in s.34(2) on that basis alone. As has been demonstrated in the cases of PH and Rawlings, delays of 30 and 40 years are not unheard of in NSW but are rarities. In Br Lebler's case the delays are between 40 and 50 years old. In Br Moloney's, between 26 and 39 years old and in Fr Garchow's, between 31 and 36 years old.

Those two cases were referred to by counsel for New Zealand to show that such delays, at least insofar as Australian authority is concerned, do not amount, without more, to oppression. Both cases were decisions of the NSW Court of Criminal Appeal upholding decisions of trial judges. In my opinion, they have to be read carefully. While in each case the Court endorsed the judge's decision, it was not making a general rule. Rather it concluded that the judge's reasoning in the particular case could not be significantly faulted in the exercise of their judicial discretions. PH, however, must have very much tested the outer limits of the trial judge's discretion because there were several other factors weighing in the balance for the accused. Had the trial judge stayed the case and the Crown appealed, it would have come as no surprise to see the appeal dismissed.

In Bannister the approach taken was to apply Australian standards to the question of the fairness of trial procedures. The Federal Court in that case was dealing with a very different question but presumably the principle applies equally to the assessment of whether how long a delay is inherently unfair. In New Zealand, a more stringent approach seems to have been taken but I will come to that issue below.

Where there are long delays there is presumptive prejudice simply due to the decreasing powers of memory of relevant witnesses and the likelihood of the disappearance of relevant evidence and witnesses. The longer the delay, the stronger the presumption and the greater the prejudice. Actual prejudice may also arise. In this case, the opponents point to unavailability of significant witnesses, in particular Dr O'Connor, and the destruction of records that may have been of significant assistance to them.

New Zealand suggests that in relation to records, the opponents are in a better position than most accused persons but I do not think, however, it is really an answer to say that because defendants usually start off disadvantaged by the absence of any helpful records and because some records sought have been produced, the destruction or disappearance of records which might have assisted the opponents is not a significant prejudice.

I would agree, however, with New Zealand to this extent: of itself, the absence of the records sought is not so great a disadvantage or prejudice that it necessarily obviates a chance of a fair trial. After all, there are other records relating to Marylands available which might prove of assistance. Moreover, given that many of the complainants apparently have suffered from mental illnesses, or have built-up significant criminal histories, or have sought money from the St John of God order, since they left Marylands the opponents are not left without useful material with which to cross-examine them. The absence of a complete documentary history of Marylands from the 1950s to the 1970s is a prejudice to the opponents but not of decisive magnitude in my opinion. What they have lost in the past may have been compensated for by the production of further records, such as criminal histories, mental health records and so on.

How much of Dr O'Connor's records would have been useful to the opponents is difficult to tell. It seems that in Fr Garchow's time at Marylands he acted as the school nurse and assisted Dr O'Connor in examining and treating Marylands patients. The St John of God order is a nursing order and many if not all brothers and priests therefore had nursing or para-medical qualifications. From the evidence I cannot tell whether Dr O'Connor ever saw Marylands patients privately or whether he always saw them accompanied by a brother as his nursing assistant. If the patient was always examined and treated by Dr O'Connor in the presence of a member of the St John of God order, boys who had been sexually abused may well have been very reluctant to complain to the doctor. In relation to other missing records it is simply impossible to tell whether they would have been useful but the opponents have been prejudiced in the preparation of a defence by the loss of opportunity to examine them.

Dr O'Connor, were he alive today, would be an old man and probably have very great difficulties remembering and distinguishing one patient from another, so his unavailability now probably would not increase the prejudice the opponents may have suffered as a result of time wearing away his memory. The real prejudice they suffer (if any) is that they do not have his fresh memory to call upon. The same may be said of other witnesses.

The opponents are members of their religious order and do not have responsibilities for families or businesses or other such enterprises. While they may have put down shallow roots in Australia, I would distinguish their cases from that obtaining in Venkataya. Leaving other considerations aside, given the undertakings of the St John of God order, I do not think that a move from Australia to New Zealand would constitute in itself such an oppressive hardship. If delay has an oppressive effect it is principally because of the presumptive prejudice the opponents suffer in relation to the allegations against them.

(ii) The age, health and cognitive function of the opponents

Br Lebler is now well into his eighties. I accept the evidence of his declining mental ability. He has been assessed in the borderline range for dementia. If he were a middle-aged person his cognitive function would be close to the range expected for a person with intellectual disability. Whether he is in the normal range for a person of his years is irrelevant. The relevant question here is whether he is capable of participating in a trial, instructing his lawyers and mounting any defence reasonably available to him. Evidence was given that he keeps a card on his person to enable him to remember certain important information he needed to refer to on a daily basis.

In my opinion, Br Lebler's case is a clear one. It is in many respects similar to that of R v Littler. Due to the passage of time and the ordinary deterioration of memory, his objectively proven decline in cerebral function and his present cognitive function he is unlikely to be able to say anything more in answer to the proposed charges against him than "I can't remember". He may deny the charges, but it seems to me that could only be only the basis of what he believes and hopes rather than on any actual memory. His memory is not going to improve.

I am, of course, conscious of gravity of the offences alleged against Br Lebler. Some of them are the most serious of all alleged against the opponents. If he is guilty of those offences it is tragic that the complaints were not brought forward at a much earlier time. It is, however, of the utmost importance that convictions for serious crimes be obtained fairly. One of the key features of a fair trial is that the accused has a real chance of mounting any defence reasonably open to him or her. In my view, due to his infirmity and the passage of time, any conviction obtained against Br Lebler could not be obtained by a fair trial. It follows that he must be released.

Both Br Moloney are younger men, although neither is young. Both suffer from ill-health. Br Moloney has been treated for prostate cancer and Fr Garchow for severe depression. Neither, as far as I am aware, however, has lost significant cognitive function.

Prostate cancer is, of course, a serious condition but it is, if caught in time, treatable and not fatal. New Zealand is a highly developed country with excellent medical practitioners well capable of seeing to Br Moloney's health requirements. Evidence was tendered suggesting that Br Moloney could not fly to New Zealand. I find that a somewhat surprising opinion for a doctor to express. No basis for it was provided. The flight to New Zealand is about three hours only. I note that Br Moloney sat without obvious discomfort for several days in the courtroom on seating far less comfortable than an airline seat.

Depression is also treatable. That someone charged with serious offences would develop anxiety and depression is not surprising. Indeed, it would probably be surprising if an accused was not anxious and depressed. There are degrees of severity of depression. In some cases people can be so melancholic as to be virtually catatonic and to require radical therapies such as shock treatment. I note, however, that Fr Garchow was able to attend the proceedings and I infer that his depressive illness has not disabled him catastrophically.

I do not think that on health grounds alone it would be oppressive to surrender Br Moloney and Fr Garchow.

Much of the time spent during the course of the hearing and in argument concerned the question whether the opponents would receive a fair trial in New Zealand or, to put it in another way, whether New Zealand, because of its different approach to certain procedural questions, was capable of offering the opponents a fair trial by Australian standards. As can be seen from my lengthy (but incomplete) summaries of the arguments above, intense effort was put by counsel for the opponents into the submission that there is a significant difference between Australian and New Zealand principles concerning the admissibility of "similar fact" evidence. (I use the old common law term to cover both tendency and propensity evidence.)

There is evidence that suggests that there is a possibility of contamination of some evidence and also collusion by New Zealand complainants against the opponents. Summaries of notes taken by Br Peter Burke and Ms Michelle Mulvihill, for example, demonstrate that some of the complainants are related. Some were "represented" by (in the broad sense of the word) by Mr Ken Clearwater, a strong advocate for victims' rights in New Zealand, especially in relation to allegations of abuse by clergy and religious. Some complainants have apparently attended victims' group meetings. This evidence is of significant concern.

The legal representatives for the opponents made some rather florid accusations against Br Burke and Ms Mulvihill, who were not present to answer them, but, notwithstanding my necessarily guarded approach to the evidence concerning the interviews, it appeared to me that, during the interviews, there was at least a possibility of some prompting of some witnesses on some occasions. I did not have access to the full records of interview and none of the persons involved in the interviews gave evidence during these proceedings.

It was certainly admitted by Det Sgt Borrell that it is known that a small number of false allegations have been made and false claims for compensation paid by the St John of God order to opportunistic fraudsters following the wide publicity the compensation of victims had received in New Zealand. It is clear that a considerable number of those who made complaints were very direct in asking for money or other benefits when making their complaints to Br Burke.

It is also clear that Br Burke, as Australasian head of the order, was very direct himself in telling complainants that they should go to the police with their complaints. For this, he received much criticism in the submissions of the opponents. To be frank, I find that a perplexing argument. It is common knowledge that for about a decade the Catholic Church has been under siege throughout the West for its past policies of covering-up the crimes and misdemeanours of clergy. It seems to me to be grossly unfair to suggest that there was anything untoward in Br Burke's actions in telling complainants to see the police. He was not suggesting that they fabricate evidence. In many respects, he was in exactly the same position as a person who first receives complaint evidence, although the process may have been rather more formal. It is true that the hotline and the accessibility of Br Burke to complainants created an opportunity for fraudsters to make false claims but that does not mean that Br Burke acted improperly. As I understand it, the initial interviews were on a confidential basis and the information collected by Br Burke and Ms Mulvihill was not for dissemination directly to the police. The implication that Br Burke somehow encouraged false allegations is, I think, very unfair.

All of that said, there remains the possibility that some of the evidence - it is not clear how much or what exactly - may have been contaminated. One of the reasons why it is not clear was that the proceedings were not conducted along the lines of a committal hearing. If the two remaining opponents are surrendered, that would occur in New Zealand in due course in a manner, one would hope, fair to both sides and the witnesses.

There are multiple answers to these types of issues. The first observation to be made is that evidence of possible contamination of evidence is a powerful tool in the hands of skilled defence lawyers in cross-examination of prosecution witnesses, even if, and perhaps especially if, the witnesses are actually telling the truth.

The second is that it is clear under New Zealand law that the trial courts have a power to sever counts in an indictment if they consider that it would be unfair to allow multiple counts to run together. This would be decided on a case-by-case basis. In my view, Australia, following the decisions in Ellis, is now in alignment with New Zealand in relation to this principle. Ellis requires trial judges to exercise judgment rigorously concerning the "cross-admissibility" To adopt Mr Stephen Odgers's neologism from his argument before the High Court in Ellis. of evidence in relation to multiple counts. That is to be done on a case by case basis after an assessment of all the relevant evidence, rather than on the Hoch basis of assessing whether a mere possibility of concoction or contamination exists. Thus there appears to be a trans-Tasman standard of fairness now applicable in relation to the admission of such evidence and Bannister, therefore, has no application. Moreover, all the New Zealand authorities I was referred to suggest that the New Zealand courts perhaps set even higher standards of fairness than does Australia in some respects, representative counts being a notable exception. That being the case, I would think that the opponents' application to sever counts may very well be successful.

Whilst on that point, the third observation I would make is that, in any event, Bannister was concerned with what was, by Australian standards, an unfair trial. It was well-understood how the proposed trial would proceed if the opponent was surrendered to New Zealand in that case. This case, however, is different. It is one step removed from the situation in Bannister. Here there is still an open question as to how any New Zealand trial may proceed.

It is implicit in their submissions that if the opponents are surrendered that they will apply in each case for a stay of proceedings and, if unsuccessful, they would then apply for separate trials of some or all of the counts in the proposed indictments. In Br Moloney's case a complaint has been made about the unfairness of trying him together with the notorious Bernard McGrath. While the prosecution has expressed a view as to how it would like to proceed, New Zealand courts apparently are jealous protectors of their process and it is by no means a foregone conclusion that the trials would be conducted jointly. In my view, there is a strong possibility that New Zealand courts would grant separate trial applications for the very reasons argued in these proceedings by the opponents. It follows, therefore, that in relation to the joinder issue raised by the opponents that I cannot be satisfied that they would, on that score receive unfair trials.

On the question of adverse publicity, I accept that there has been considerable adverse publicity and that the publicity is, of course, highly prejudicial to the opponents. It was argued by counsel for New Zealand, however, that courts are well practised in both this country and New Zealand in instructing juries concerning the need to ignore prejudicial publicity. It is also clear that, if necessary, a trial venue can be changed. Trials may also be delayed to allow the adverse effects publicity to subside. It impossible from this side of the Tasman to assay the strength of the prejudice. Such an exercise would be much more accurately carried out in New Zealand.

As I said above, it is critical to the administration of justice that the guilty are only convicted after a fair trial being one in which they are entitled to and capable of raising a defence. The alternative is a system of sanitised lynch law or show trial. Where a fair trial is unable to be conducted, for whatever reason, justice for a victim has, unfortunately, to be provided, insofar as it can be, in other ways, such as statutory compensation schemes, political and social support or even by moral pressure being applied to organisations such as the Catholic Church to get them to rectify the wrong.

I would also observe generally the authorities stress the comity of nations in this legislation. It is preferable, generally, that nations take responsibility for ensuring that trials are run fairly and that unfair trials are stopped. In general terms I think that if a declaration that a New Zealand trial would be unfair is to be made, there is a significant public interest in both Australia and New Zealand in seeing that it is a senior member of the New Zealand judiciary, not a minor member of the Australian judiciary, that makes it. That said, it is, of course, the responsibility of the magistrate conducting extradition proceedings to prevent the extradition of a person where a trial would be clearly unfair.

Except in a very clear case, however, I think that it is unfitting for a court such as this, exercising its limited jurisdiction, to take upon itself the role of conducting an inquiry into the admissibility of evidence and the wider and more momentous question of the fairness or unfairness of a trial proposed to be conducted in a foreign country on the basis of evidence it has not seen. In Bannister the Federal Court's understandable modesty and reluctance to interfere except in such a clear case was obvious. I do not think that such a clear case exists here. I think, therefore, that it would be quite inappropriate for this Court to usurp what I think is the proper role of the New Zealand courts.

(iv) Inevitable stay? The question whether preventing rather than remedying injustice

In my opinion, the most intriguing of the opponents' arguments was that contention that, under New Zealand law, a stay of proceedings was in each of the opponents' cases virtually a foregone conclusion due to the delay alone, let alone any additional factors that might be brought to bear. It followed, so the contention went, that, as Cooke P said in Martin v Tauranga District Court, "it seems better to prevent breaches of rights than to allow them to occur and then give redress." Op cit at 425. If a stay was virtually inevitable, so it was put, it would be oppressive to subject the opponents to the further anguish and delay for an inevitable result. As far as I am aware, this question has never been considered by an Australian superior court or, for that matter, any other superior court. I have not been referred to any authority in support of it.

The New Zealand authorities are certainly powerful and suggest a very strong possibility that the combination of delay, age, infirmity, presumptive and actual prejudice will result in the cases against the opponents being stayed.

On the other hand, it is submitted by counsel for New Zealand that this also is a question inappropriate for this court to answer in these proceedings. For the reasons I outlined above in relation to the general preference to be had for New Zealand courts to decide such questions I am inclined to agree.

The further argument put by New Zealand is that this court has not had a chance fully to consider all the relevant issues. One matter that I have certainly not had the opportunity to consider in any detail is the strength and extent of the prosecution case. That may not ultimately be decisive but it is certainly a relevant factor in any consideration by a court as to whether a case ought be stayed or not. In any stay application the prosecution would no doubt outline its case in detail and provide sufficient material to enable the court to evaluate it. A weak case would strengthen the argument for a stay but the court would have had an opportunity to make the assessment.

While I agree with the proposition that it is better to prevent breaches of rights than to allow to them to occur and then offer redress, I also think that in this case, if there is a threat of unfair trials, it is better for the New Zealand courts to control their own process and stay proceedings rather than this Court usurping the function of the New Zealand judiciary.

Notwithstanding what I consider to be clear authority in Bates v McDonald to the effect that to show bad faith an opponent had to demonstrate lack of honest belief in the charges being brought or some other such egregious abuse of process, I received lengthy argument about allegations of police misbehaviour in the investigations. In my view, those submissions were misconceived in principle. There was no evidence whatsoever that the New Zealand Police do not believe the allegations they have made against the opponents. If the opponents allegations were accepted (and I do not think it necessary to make the assessment), at best they would seem to me to prove that the New Zealand Police may have an earnest belief in their allegations to the point that they have been zealous in pursuing their investigations.

I note that no admissions have been made by the opponents, so that even if there has been some impropriety by the detectives it is difficult to see any prejudice to the opponents. There is also evidence that the police have in fact been trying to weed out false complaints, realising no doubt that not only are such complaints unfair but have significant potential for undermining the prosecution case generally.

140A. I am also not persuaded that there has been any other irregularity or abuse of process on the part of those bringing the proceedings. It may be that some of the matters complained of would result in evidence being excluded or emphatic directions being given to a jury or even form part of a foundation for a stay application, but they do not, in my opinion, constitute "lack of good faith" as that concept is properly understood in this context.

These are very difficult and serious cases. The gravity of the allegations is a critical component of any assessment of the possibility of oppression and injustice. The opponents are accused of terrible abuse of very vulnerable children committed to their care. The allegations of sexual misconduct are very shocking and numerous. The alleged breaches of trust over lengthy periods with numbers of boys by all the opponents are almost as bad as could be imagined.

On the other hand, there are very lengthy delays, presumptive and actual prejudice due to those delays and the personal circumstances of each opponent to be considered.

As I have outlined above, in my opinion, it would be unjust and oppressive to surrender Br William Lebler. Decisions in relation to Br Moloney and Fr Garchow present greater complexities.

Br Moloney is older than Fr Garchow but the allegations against him are graver. Both men have suffered serious illnesses and while both appear to have recovered to a significant extent, neither is well. If surrendered to New Zealand, neither would suffer hardship of an oppressive degree on account of the move alone. Each is guaranteed of support. The presumptive and actual prejudice that they will suffer if they come to trial is not inconsiderable.

In my opinion, once one sets aside the questions of the fairness of the prospective trials and the issue of permanent stay as I have for the reasons above, the cases of each opponent are finely balanced. Ultimately, however, I think that the gravity of the allegations outweighs the combined factors favouring the opponents. I am therefore not persuaded that it is oppressive or unjust to surrender Br Moloney and Fr Garchow to New Zealand.

1. Br William John Lebler is to be released immediately.
2. Br Roger Moloney is to be surrendered to New Zealand. A warrant under s.38 of the Extradition Act 1988 is to issue.
3. Fr Raymond john Garchow is to be surrendered to New Zealand. A warrant under s.38 of the Extradition Act 1988 is to issue.

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