Alarm bells should be ringing loudly
Australian Lawyers Weekly: Aus criticism of NZ sex cases ‘justified’
A recent Federal Court of Australia decision to block the extradition of two Catholic clergymen to New Zealand to face trial for alleged historical sex crimes has sparked outcry from defenders of New Zealand’s criminal law and procedure. But other commentators have concluded that the decision is sadly justified.
Bernard Robertson, editor of The New Zealand Law Journal, said Justice Madgwick acknowledged that it was exceptional to find it would be “oppressive and unjust” to refuse extradition to a friendly country with a similar legal system, and required the accused to discharge a heavy evidential burden.
“When a respected judicial neighbour not only recognises problems likely to give rise to unsafe trials, but is reluctantly driven to criticise the way New Zealand conducts its trials, then alarm bells should be ringing loudly,” Judith Ablett-Kerr QC said.
The Judge found various circumstances about the case meant the Brothers could not receive a fair trial by Australian standards, given that delays, and the loss of potential witnesses and documents, had resulted in serious presumptive, and actual, prejudice to them.
Ablett-Kerr said the decision criticises the New Zealand approach to several procedural and evidential matters which, in the view of that Court, are likely to increase the probability of an accused person in New Zealand not receiving a fair trial.