Fresh Extradition Battle for Clerics on Sex Charges

By Tim Dick
Sydney Morning Herald
August 3, 2006

If New Zealand was Zimbabwe, the two members of the St John of God religious order wanted on charges of sexually assaulting 13 Christchurch schoolboys might have been extradited by now.

Instead, efforts to have Brother Rodger Moloney, 71, and Father Raymond Garchow, 58, brought to trial in New Zealand are being stymied by a peculiar side-effect of Australia's extradition rules. The latest round in a long battle was fought yesterday.

Moloney faces 28 charges, including sodomy, for allegedly assaulting 12 boys between 1971 and 1977 at a Christchurch boarding school for the disadvantaged. Garchow faces four charges, dating from between 1971 and 1980.

The pair deny the charges, which were brought after the St John of God order agreed to pay $3 million in compensation over similar complaints in Victoria.

The payment received wide publicity in New Zealand, after which the order set up a hotline for complainants to come forward. Several did, leading to the current charges.

The pair won an appeal against extradition in April, when a Federal Court judge, Rodney Madgwick, decided their trial was likely to be unjust, mainly because of the time that had elapsed since the alleged offences occurred.

In extradition cases, the question of fairness during a trial is normally a matter for the court hearing the charges, and even Justice Madgwick said in his judgement that the situation was "less than satisfactory". Australia has a special set of extradition rules for New Zealand, which were meant to make extradition to New Zealand easier.

But because the rules allow Australian judges to look into the justice of a case that would be heard in New Zealand - which they cannot do for other countries - the result is that in some circumstances it would be easier to extradite to Zimbabwe than across the Tasman.

Justice Madgwick acknowledged that New Zealand did not face widespread corruption, human rights abuses or judicial incapacity like some other countries.

He advocated a law change to make it clear that the issue of fairness should be for New Zealand courts to decide, but said he had to apply the law as it stood, and refused the extradition.

Before a full bench of five Federal Court judges yesterday, New Zealand's barrister, Wendy Abraham, QC, argued that Justice Madgwich had got it wrong.

She said it was possible to extradite the men to New Zealand under current legislation, saying it should be done and fairness issues should be left to courts there.

Counsel for Moloney and Garchow, Paul Byrne, SC, argued that Justice Madgwick's decision was correct, and no extradition should be allowed because of the unfairness his clients would face defending the charges.

The court's decision was reserved to an unspecified date.

A spokesman for the Justice Minister, Chris Ellison, said it was not appropriate to comment on the case, but an ongoing extradition review was looking at the New Zealand provisions.


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