NSW: Clergymen facing child sex charges fight extradition to NZ

AAP General News (Australia)
04-11-2005
NSW: Clergymen facing child sex charges fight extradition to NZ

By Kim Arlington

SYDNEY, April 11 AAP - Two Catholic clergymen facing child sex charges might not receive
a fair trial if they were extradited to New Zealand, a Sydney court was told today.

Brother Rodger Maloney, 69, and Father Raymond John Garchow, 59, face a total of 32
charges, and are accused of sexually assaulting students at a Christchurch school for
boys with intellectual and learning disabilities.

The members of the St John of God order allegedly assaulted boys in their care at the
Marylands School in the South Island city between 1966 and 1980.

In February, Sydney's Downing Centre Local Court ordered their extradition to New Zealand.

As they began fighting the order in the Federal Court today, their barrister, Paul
Byrne, SC, said it would be unjust to surrender the men because they might not receive
a fair trial in New Zealand.

Mr Byrne expressed concerns about "the extent to which these allegations have been
publicised in New Zealand, and the atmosphere in which these men would likely be tried".

He said there had been "an orchestrated campaign" encouraging people to come forward
with complaints of sexual abuse, raising questions about whether individual allegations
may have been contaminated.

The accusations may not have been made in good faith, Mr Byrne said, and the New Zealand
justice system allowed evidence to be admitted even when there may have been collusion
or fabrication by the complainants.

The chances of Maloney and Garchow receiving a fair trial also would be "dramatically"

diminished if they were tried on a number of allegations brought by different complainants,
rather than having individual allegations heard separately, Mr Byrne said.

Their trials also might proceed on what is known as a representative charge, which
had been ruled invalid by the High Court of Australia.

Mr Byrne described representative charges as a "scattergun approach" because they did
not specify precisely when an offence allegedly occurred, only that it took place within
a broad time frame.

He also said Maloney's trial might be prejudiced because New Zealand authorities wanted
to try him jointly with a "notorious paedophile", a Marylands brother previously jailed
after pleading guilty to child sex charges.

The lengthy delay in charging the men also presented problems, Mr Byrne told the court.

With the alleged offences taking place up to 39 years ago, medical records were no
longer available and many of the school's staff, including the doctor, had died.

If there was a chance the proceedings might be permanently stayed because Maloney and
Garchow were disadvantaged by the delay, they should not be subjected to the ordeal of
extradition, Mr Byrne said.

"In New Zealand, the odds that a permanent stay will be granted are much higher," he said.

"Courts in New Zealand seem to be more inclined to use the power of permanently staying
proceedings in these cases of historical sexual abuse than courts in Australia do."

The hearing continues tomorrow before Justice Rodney Madgwick.

AAP ka/nf/evt/sp

KEYWORD: BROTHERS NIGHTLEAD

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