New Zealand v Lebler, Moloney and Garchow

[2004] NSWLC 9

Local Court of New South Wales

CITATION:	New Zealand v Lebler, Moloney & Garchow [2004] NSWLC 9
JURISDICTION:	Criminal
PARTIES:	New Zealand William Lebler Roger Moloney Raymond Garchow
FILE NUMBER:
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	07/28/2004
MAGISTRATE:	Magistrate H Dillon
CATCHWORDS:	Extradition - Administrative proceedings - Magistrate persona designata - Application of rules of natural justice - Evidence - Whether rules of evidence apply in extradition hearings - Whether rules of evidence applied "flexibly"
LEGISLATION CITED:	Evidence Act 1995 s 75 Extradition Act 1998 s 34
CASES CITED:	Allstate Life Insurance Co v ANZ Banking Group LTD (No 3) (1996) 64 FCR 55. Bannister v New Zealand (1999) 86 FCR 417. Re Barbaro and Minister for Immigation and Ethnic Affairs (1980) 3 ALD 1. Binge v Bennett (1988) 13 NSWLR 578. Cabal v United Mexican States (2001) 108 FCR 311 Cabal v United Mexican States (No2) (2000) 172 ALR 143. Casey v Repartriation Commission (1995) 60 FCR 510. DPP (Cth) v Kainhofer (1995) 185 CLR 528. DPP v Littler (2001) 120 A Crim R 512 Federal Republic of Germany v Parker (1988) 84 FCR 323. Keneally v New Zealand (1999) 91 FCR 292. Re Kevin and Minister for Capital Territory (1979) 37 FLR 1. Narain v Parnell (1986) 9 FCR 479; Papazoglou v Republic of Philippines (1997) 74 FCR 108; R v Governor of Brixton Prison; Ex Parte Levin [1997] AC 741. R v Govenor of Pentonville Prison; Ex Parte Osman [1990] 1 WLR 277. Schlieske v Federal Republic of Germany (No 2) (1987) 26 A Crim R 341; Todhunter v United States of America (1995) 57 A Crim R 70; Wiest v DPP (1988) 23 FCR 472; Zoeller v Feneral Republic of Germany (1989) FCR 282.
REPRESENTATION:	I Bourke i/b Commonwealth DPP P Byrne SC i/b Greg Walsh, Solicitor (for Lebler and Moloney) M Thangaraj i/b Greg Walsh, Solicitor (for Garchow)
ORDERS:

Judgment


In this case, New Zealand seeks the surrender of William Lebler, Roger Moloney and Raymond Garchow, all members of the St John of God religious order on a variety of charges relating to alleged sexual abuse of students at the Marylands School in Christchurch during the 1950s, 1960s and 1970s. The application is opposed by each of them.

Do the Rules of Evidence Apply in these Proceedings?

The opponents to the application seek to tender a large number of evidentiary materials in support of their arguments that it would be oppressive, unjust or excessively punitive for them to be surrendered to New Zealand. Most of the materials sought to be tendered are objected to by counsel for New Zealand on a number of grounds. On 15 July, I dealt with the objections made on grounds of relevance and made rulings. I held certain materials to be relevant and others not to be but invited counsel for all parties to address me on the question whether the rule against hearsay applied in these proceedings. Because of my uncertainty whether this is an interlocutory hearing or a hearing in which final orders are to be made I raised the question whether s.75 of the Evidence Act 1995, which allows for the admission of hearsay evidence in interlocutory matters, applies. At that stage, counsel for all parties were unprepared to argue the question and I adjourned for submissions until 23 July.

When the hearing resumed, it was conceded by counsel for the opponents that these are not interlocutory proceedings. See Allstate Life Insurance Co v ANZ Banking Group Ltd (No 3) (1996) 64 FCR 55. It was held by Lindgren J in that case (at 58) that a distinguishing feature of an interlocutory decision is that it contemplates that the parties will be before the same court as makes the interlocutory order “when a decision will be made which will determine the parties’ jural relations after which they will not be before that court again on the same matter.” That, however, did not dispose of the general question of admissibility of evidence and the application of the hearsay and opinion rules.

The arguments

Two main arguments are made by the opponents on the question whether the rules of evidence apply to these proceedings. First, Mr Byrne SC submitted that it would appear to be clear from the approach taken by the Court of Appeal in DPP v Littler (2001) 120 A Crim R 512. and also in Binge v Bennett (1988) 13 NSWLR 578. that it is permissible for courts to take a “flexible” approach to the rules of evidence in cases dealing with extradition and permanent stay applications due to the difficulties in producing direct evidence which almost inevitably accompany such applications. Mr Byrne contended that where questions such as abuse of process or oppression or injustice are the key issues, the superior courts have, in fairness to accused persons, adopted a less clinically rigorous approach than might be the case in a criminal trial, and that there is an inherent discretion enabling courts dealing with such issues to take such an approach.

Counsel for New Zealand submitted that Mr Byrne had cited no authority for such a proposition, that it was contradicted by express authority and contended that, if it stood for anything relevant to these proceedings, Littler was, in any event, an interlocutory decision in which hearsay evidence might well have been permitted under s.75. Moreover, he sought to distinguish Littler on the basis that the evidence given by the applicant in that matter directly concerned him, whereas the evidence sought to be given in these proceedings is largely double or triple hearsay and opinion, gathered in New Zealand by the opponents’ solicitor from third parties about other people, none of whom are to be presented for cross-examination. He argued also, that even if the material was somehow admissible, that it ought be excluded on the basis that it carried little probative value and had a tendency to mislead, confuse and waste the court’s time.

The second main argument put by counsel for the opponents was raised by Mr Thangaraj who referred me to the decision of the Full Court of the Federal Court in Cabal v United Mexican States. (2001) 108 FCR 311. Relevantly, that decision referred to several decisions of the Federal Court Narain v Parnell (1986) 9 FCR 479; Schlieske v Federal Republic of Germany (No2) (1987) 26 A Crim R 341; Todhunter v United States of America (1995) 57 A Crim R 70; Wiest v DPP (1988) 23 FCR 472; Zoeller v Federal Republic of Germany (1989) 23 FCR 282; Papazoglou v Republic of Philippines (1997) 74 FCR 108; Federal Republic of Germany v Parker (1988) 84 FCR 323. in which it has been held that proceedings under the Extradition Act 1988 and its predecessor are administrative proceedings in which the magistrate conducting them does so as a persona designata. (The High Court has also held that the extradition proceedings before a magistrate are administrative in nature. DPP (Cth) v Kainhofer (1995) 185 CLR 528. )

Mr Thangaraj submitted that Cabal stands for the proposition that the neither the Evidence Act 1995 (Cth) nor its NSW equivalent applies to these proceedings. The Full Court held that a magistrate conducting extradition proceedings does not fall within the definition of “federal court” provided for in the Commonwealth Evidence Act and that s.79 of the Judiciary Act 1903 does not operate so as to pick up the NSW Evidence Act because the magistrate conducting the proceedings is a persona designata conducting administrative proceedings rather than a court exercising judicial power. At 346-347 [141]-[142].

I understood Mr Thangaraj’s argument to run that the only relevant evidentiary parameters on these proceedings are those provided for within the Extradition Act itself and that otherwise the ordinary rules of evidence do not apply here.

Counsel for New Zealand submitted that there is a line of authority in which courts have either expressly stated that the rules of evidence apply in extradition matters or imply that this is the case. The main case of interest here is Binge v Bennett.

In Binge v Bennett (1988) 13 NSWLR 578. , a case involving the Service and Execution of Process Act 1901 (Cth), (“SEP Act”), which is similar in many respects to the provisions relating to New Zealand extraditions, the NSW Court of Appeal dealt with questions to do with the admissibility of evidence tendered before the primary judge. It was clearly assumed by all concerned that the rules of evidence applied in relation to extraditions under the SEP Act. For instance, Mahoney JA, referring to evidence tendered to prove that the applicant would not receive a fair trial in Queensland, said (at 597), “It will, of course, be necessary if the affidavits filed are pressed, as they may well be, to rule upon admissibility of the form of the affidavits and a number of passages in them.”

Mr Bourke also referred me to, among other cases, R v Governor of Brixton Prison; Ex p. Levin [1997] AC 741 at 747. (It must be noted, however, that under the English legislation extradition proceedings bore a close resemblance to committal hearings.) , in which the House of Lords held that extradition proceedings were criminal in nature and that the magistrate (whose decision was under review) was entitled to apply the normal rules of criminal evidence and procedure. He submitted that Cabal was to be distinguished on its own facts because it was dealing with “extradition objections” under a treaty arrangement pursuant to a different part of the Extradition Act from that dealing with extradition arrangements with New Zealand.

He also submitted that the very fact that the Extradition Act itself provides for the admission of certain types of evidence suggests that the scheme of the legislation was intended by Parliament to include the application of the rules of evidence. He made the supplementary submission that even if the rules of evidence do not apply, that the magistrate should nevertheless exercise a discretion to exclude certain evidence on the basis that it lacked probative value and was unduly wasteful of time. Mr Bourke suggested that if hearsay and other generally inadmissible evidence were permitted to be adduced, it is to be expected that Parliament would specifically have provided for this in the Extradition Act.

Mr Bourke also referred me to EP Aughterson, Extradition - Australian Law and Procedure Sydney, 1995. at pp213-217. The learned author (at 213) stated that “The Australian courts have held that, generally, the domestic rules of evidence do apply” to extradition proceedings.

Finally, he also drew an analogy between committal proceedings which are both criminal and administrative in character and these proceedings. Relying on that analogy he argued that it would be anomalous if the rules of evidence were not to apply here.

In reply, Mr Byrne submitted that the case being mounted by the opponents is one in which one of the key arguments to be mounted is that the evidence which the New Zealand authorities propose to rely on is so tainted and contaminated by the inappropriate methods of interviewing complainants adopted by the St John of God Order that a fair trial is impossible, and that the evidence sought be relied on goes largely to that question. He drew an analogy with Binge v Bennett in which the NSW Court of Appeal held that a large amount of material concerned with the prospects of fair trial in Queensland was relevant to the issues before the primary judge and magistrate and suggested the commonsense dictated that much of that material must have been in what would ordinarily have been in inadmissible form but was allowed because of the nature of the issues for determination.

Mr Thanaraj submitted that Cabal made it clear that the rules of evidence do not apply in a case such as this and that English authority supported this contention. See R v Governor of Pentonville Prison; Ex parte Osman [1990] 1 WLR 277 at 308-309. As to issues such as hearsay, he contended that this was a matter of form rather than substance and that the Full Court of the Federal Court had determined in Cabal that such material was admissible in extradition proceedings.

Conclusions

With the greatest respect, and I say that completely without irony, I am not attracted to the notion pressed by Mr Byrne that the rules of evidence are relaxed or flexible when the topic of oppression, abuse of process or injustice arises in proceedings. Littler’s Case appears to me to be highly unusual and we cannot discern from the report how it came to pass that the Court of Appeal decided on the procedure it ultimately adopted for the reception of evidence. It is perfectly conceivable that the Crown did not contest the approach taken. In any event, one of the considerations seemingly taken into account by the Court of Appeal was the need to protect the applicant from self-incrimination. To adopt Mr Byrnes’s analysis would, it seems to me, to be taking the approach that the courts, even prior to trial (where, for reasons of fairness, an accused has a number of evidentiary protections and advantages) not only may but must grant accused persons evidentiary precedence and privileges not available to any other class of litigant. Absent any specific pronouncement of principle, I do not read that case as establishing such a revolutionary rule of evidence.

In Binge v Bennett, the Court of Appeal clearly contemplated opinion evidence being given by suitably qualified experts. It did not, however, admit any evidence itself but merely stated that certain types of evidence were relevant (but subject to other exclusionary rules). It does not appear to have been asked to consider whether the rules of evidence specifically applied: all parties seem to have assumed that they did. In any event, that was a case dealing with the Service and Execution of Process Act 1901. I am unaware of, and have not been referred to, any authority suggesting that magistrates dealing with interstate extraditions are personae designatae (although the High Court’s decision in Kainhofer suggests that to be the case) exercising administrative rather than judicial power.

The apparently categorical statement by Aughterson that the rules of evidence apply in extradition proceedings in Australia must be placed in context: he made the statement referring to cases in which it was necessary for the State or country seeking extradition to prove a prima facie case. This is not such a case. Aughterson also went on to cite cases in which hearsay was regarded as admissible and that there had been other variations from the usual application of evidentiary law in extradition proceedings. Here I think that it is necessary to go back to first principles, identifying with more precision the nature of the proceedings and from that conclusion applying the relevant evidentiary principles.

In my opinion, the more compelling argument is that advanced by Mr Thangaraj, relying as he does on the Full Court decision in Cabal . There appears to be clear authority in Australia that magistrates conducting proceedings under the Extradition Act do not exercise judicial power but, rather, are exercising an administrative function and are thus not bound to apply the rules of evidence.

If a magistrate conducting an extradition hearing pursuant to the Extradition Act does so as a persona designata, it follows that he or she is placed in a position similar to that of a member of an administrative tribunal. In Casey v Repatriation Commission (1995) 60 FCR 510. , Hill J (at 514) said, “The fact that material may be inadmissible in accordance with the law of evidence does not mean that it cannot be admitted into evidence by the Tribunal or taken into account by it. The criterion for admissibility is not to be found within the interstices of the rules of evidence but within the limits of relevance.”

It does not necessarily follow, however, that the rules of evidence disappear without trace. At first blush, there appears to be a reasonably strong analogy to be drawn from the procedures applying in committal hearings. The analogy is, however, incomplete.

It would be anomalous indeed if prosecuting authorities could come before a magistrate in a committal hearing, tell him or her that the rules of evidence did not apply because the proceedings were merely administrative and proceed to adduce all sorts of hearsay, opinion evidence, similar fact evidence, evidence of previous convictions, reputation evidence and the like and on that basis ask the magistrate to conclude that there was a case fit to go to a jury. The magistrate conducting the inquiry applies the rules of evidence partly to ensure that the accused is given a fair chance to mount a full answer and defence but also, from a pragmatic point of view, so that the parties -- prosecution and defence – can see the evidence that the prosecution proposes to place before a jury and nothing else extraneous to that exercise. A committal hearing is, in one sense, a simulacrum of a trial and its function of examining the prosecution’s case would be defeated if it were not. An accused is also bound by rules of evidence in committal hearings for the same reasons – a “fair trial” and a “fair hearing” means fair to both sides.

There are, however, significant differences between committal hearings and extradition applications. It is not open to the opponents to an extradition application by New Zealand to mount a full answer and defence to the prosecution case. See s.34(4) Extradition Act 1988. It is not obligatory for New Zealand to tender its brief of evidence or call witnesses to prove, even to a prima facie level, its case against the opponents. It is not permissible, generally speaking, for a magistrate conducting extradition proceedings to concern him- or herself with the guilt or innocence of the opponents or make forecasts as to the result of the prospective New Zealand trial. With the bare exception of a case which is self-evidently foredoomed to failure. See, for example, Keneally v New Zealand (1999) 91 FCR 292 at 302-303; Binge v Bennett (1988) 13 NSWLR 578 at 585. It is, however, open to the opponents to prove, on the balance of probabilities, that it would be unjust or oppressive or excessively punitive in the circumstances that obtain for them to be surrendered to New Zealand. That is an important distinction.

Nevertheless, the rules of evidence will provide a guide as to the evidence which ought be regarded as relevant. See Re Kevin and Minister for Capital Territory (1979) 37 FLR 1. Moreover, the persona designata will be bound by rules of natural justice or procedural fairness and other fundamental principles of law.

Rules of natural justice or procedural fairness will ordinarily dictate that a party be given a fair opportunity to meet material sought to be adduced by the other side, especially when that material is adverse to the party’s interests. This may, depending on the circumstances require the affected party to have the opportunity to cross-examine witnesses for the other side, to call evidence in reply and to make submissions in rebuttal. The content of the rules of natural justice is not always obvious in a vacuum. Some guidance can be found, however, in dicta in the following two cases.

In Cabal v United Mexican States (No 2) (2000) 172 ALR 143. , a judgment upheld by the Full Court in the decision referred to above, French J considered the question of admissibility of evidence proposed to be tendered by the opponents in relation to an extradition objection that the applications were politically motivated on the part of the Mexican government. He said (at 749):


If it be right that the accused person must demonstrate a real risk that the political objections defined in s 7(b) and (c) exist then such may be demonstrated by second order or derivative materials which might not be admissible in civil or criminal proceedings to prove, according to the ordinary rules of evidence and on the balance of probabilities, that the political objections exist. To require strict proof that the political objections exist would rob those objection provisions of much of their protective value. If the factum probandum in relation to the extradition objection is "substantial grounds for believing", in the sense of a real risk, that those objections exist then second order or derivative evidence may be treated as evidence which goes, not to prove the facts of the relevant objection but rather that there are substantial grounds for believing that fact exists.

Material may therefore be put before a magistrate to show substantial grounds for believing that an extradition objection exists even if that material might not be admissible to prove the existence of the facts constituting the objection. Important as this distinction is, it may make little practical difference in this case. For rules of relevance and fairness will govern the material that is received. General country information of the kind upon which the applicants seek to rely in this case may have little bearing upon the ad hominem criteria to be applied in deciding whether the objections under s 7(b) and (c) are made out. Material may also be excluded where its generality gives it little weight and makes it difficult for the requesting country to answer. Alternatively, it may be accepted but found not to give rise to substantial grounds for believing that the objection to which it is addressed is made out. The magistrate may reject material which is merely argumentative or offers unqualified opinions. It may be that in some cases hearsay evidence could be admitted subject to an opportunity being given to the requesting state to rebut it or to comment upon the weight to be given to it.

In Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1. , Davies J said (at 4-5):

In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties. It endeavours not to put the parties to unnecessary expense and may admit into evidence evidentiary material of a logically probative nature notwithstanding that that material is not the best evidence of the matter it tends to prove. But the Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence. And the requirement of a hearing and the provision of a right to appear and be represented carries with it an implication that, so far as it is possible and consistent with the function of the Tribunal, a party should be given an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits.

I propose to adopt the general approach adopted by French J in Cabal (No2) taking full account of the need to allow New Zealand a fair opportunity to answer or meet the defence case.

Three observations are briefly to be made in the hope that this will help direct and expedite the further hearing of this matter. First, it seems clear that the legislative scheme is intended, in general terms, to ensure extradition proceedings in relation to applications by New Zealand for the surrender of suspects or fugitives are conducted expeditiously and with a minimum of formality, it being acknowledged by the Parliament that New Zealand and Australia share a common heritage of language, law, respect for human rights and, in many respects, history and culture. For that reason, New Zealand is not required to prove a case against the persons whose surrender it seeks. On the other hand, in common with any civilised scheme of extradition, the Parliament affords persons whose surrender is sought an opportunity to prove that it would, in their individual circumstances, be unjust, oppressive or excessively punitive for Australia to surrender them.

Apart from the fact that the evidentiary onus placed on such persons is an inherently difficult one to discharge, it is self-evident that in many cases it will be difficult, if not impossible, for a person in Australia, especially one in custody awaiting his or her prospective surrender, to adduce direct evidence from a foreign country in the form of oral evidence from witnesses or documents for reasons of expense and the sheer logistics of conducting investigations and marshalling the evidence in that other jurisdiction. No doubt it was for this reason, among others, that French J’s “commonsense” approach to the admission of evidence in Cabal (No 2) was commended by the Full Court of the Federal Court. It seems to me that that is the approach I should take here, admitting that evidence which has probative significance but excluding evidence which is likely to carry relatively little weight. (I have already excluded some of the evidence sought to be tendered on that basis.)

The second point to be made is that the opponents have ranged wide and free in raising issues that, it is said, will be of importance in the final determination I make but that, as I see things at present, (and this remains, of course, merely a preliminary view) there are the two issues which I see as being of prime importance from the defence point of view. They are, first, the delay between the times of the alleged offences and the commencement of proceedings in New Zealand and, second, the question of procedural fairness in any trial that may be conducted in New Zealand.

While I have been told that there are issues concerning the conduct of the New Zealand Police which go to the question of good faith (or the lack of it) on the part of the prosecuting authorities, and the opponents have the right to attempt to prove lack of good faith, on what I have seen, heard and had foreshadowed to me, this seems a second- or even third-order issue. If “bad faith” is defined as a lack of belief on the part of the New Zealand Police in the charges those seek to lay against the opponents, nothing put to me in evidence or argument so far seems to suggest that the New Zealand Police have or are acting in bad faith. Even if, for argument’s sake, one accepted Mr Walsh’s opinion that they have acted like “cowboys” in their conduct of the Australian end of their investigation, this might prove not that they lacked belief in their allegations but the reverse.

Third, it seems to me that it is paradoxical, but true nonetheless, that the more serious the charges against persons whose extraditions are sought, the greater the responsibility laid upon magistrates and judges conducting extradition proceedings to ensure that such persons are not unceremoniously flung out of this jurisdiction to meet their judicial fates in other countries without a fair and reasonable opportunity to argue their objections to surrender and to adduce evidence in support of those arguments. In this case the charges against all three opponents are grave, but this is particularly so in respect of Brother Lebler, who faces the possibility of a life sentence if convicted in New Zealand, and Brother Moloney.

I now turn to the categories of evidence on which I have not already ruled in full, and the objections taken to it.

Objections to Defence Evidence

The second part of this decision flows from the first. Both parties have sought rulings in relation to the various materials and I have heard argument concerning each item on which I have not yet ruled, all of which is to be subject to the conclusions reached concerning the question of application of the rules of evidence.

The types of material which remains to be adjudicated upon falls into three categories. First, there is material which deals with prejudice by virtue of delay. Most, if not all, of this material is hearsay. It deals with the availability of witnesses, the demolition of certain buildings at the Marylands school and the destruction or disappearance of records which may have assisted the opponents in mounting a defence at their trials. I propose to admit that material and give it whatever weight it reasonably carries.

Second, there is material concerning the health of the opponents. Certain medical records are available and no objection is taken to this. Objection is taken to material in Mr Walsh’s affidavit of 5 July 2004 in which he summarises certain hearsay material concerning medical conditions suffered by the opponents and makes observations concerning their states of mind. In my opinion, that material is admissible but, given that there is apparently better evidence available directly from the opponents, the weight to be attached to this material would, I expect, be diminished.

Third, the most contentious category of materials is that described in the index to the defence bundle of documents as “List of New Zealand complainants”. I have not yet viewed this material but am told that it consists mainly in hundreds of pages of notes made by Br Peter Burke of the St John of God Order and psychologist Michelle Mulvihill. The material is tendered to prove that the evidence which the New Zealand authorities can be expected to adduce from most of, if not all, the complainants is highly likely to have been contaminated in the sense that, it is asserted, Br Burke and Ms Mulvihill, may have passed information from or about one or more complainants to other complainants in the course of their interviews. In the light of the evidence that New Zealand proposes to conduct trials in which numbers of complaints are joined in one indictment against each accused, this is asserted to raise a significant question of potential injustice to the opponents.

Counsel for New Zealand objects to the material on a number of bases. He submits that the notes reveal, even on a cursory inspection, that they contain large amounts of irrelevant, speculative material; that much of it is hearsay upon hearsay and even triple-hearsay; that the material cannot be understood (at least in full) without its authors because the documents do not speak for themselves; that it contains opinions that cannot carry weight; that the material cannot adequately be tested by the prosecution and that, as a consequence of all these reasons, it would be misleading, confusing and wasteful of the court’s time to admit the material.

He submitted further that even when the court is considering questions of oppression and injustice that the court must be careful not to transgress the prohibition in s.34(4) of the Extradition Act against receiving material which contradicts the allegations made against the opponents. See Bannister v New Zealand (1999) 86 FCR 417 at [5]. That is obviously correct. The difficulty I face is that it is hard to assess whether admission of the material may breach s.34(4) without having had the opportunity to examine it. I would make the same observations concerning the submissions that it would be confusing and wasteful of the court’s time to admit this material.

In my opinion, I should admit that material because, if it proves or may assist in proving, that the opponents cannot or are unlikely to receive a fair trial, as that concept is understood in Australia, it is obviously relevant to the question I must determine under s.34(2) of the Extradition Act.

Because of the objections taken by New Zealand, I am, however, apprehensive that in admitting this material, I may be leading the proceedings into an evidentiary quicksand. I therefore propose to admit the material on the proviso that, after I have had an opportunity to read the material, I will make a detailed ruling in respect of the documents I consider are relevant and have substantial probative value.

Given that there are, I am told, some hundreds of pages of documents to sift through, but that I now understand their general nature and the bases on which they are respectively tendered and objected to, it seems to me that it would be wasteful of the time of the legal representatives and the court if I heard further argument in relation to individual documents.

I am conscious that New Zealand is entitled to rely on the rules of natural justice and to have a fair opportunity to make submissions as to the weight to be given to the evidence and to adduce evidence in reply in an appropriate case. I propose therefore to examine the third category of documents in chambers and, on a day suitable to the parties some time before the resumed hearing, identify those documents in that category which, in my opinion, satisfy the test of relevance and substantial probative value. I include in the third category of documents the two protocols of the St John of God Order for dealing with complaints of sexual abuse made against its members. I also include in that category of evidence the statement of Mr Ken Clearwater and a document referred to in the index of the defence bundle of documents as “Schedule of References by Peter Burke and Mulvihill as to issue of Contamination/Compensation”.

I would also reiterate my earlier ruling that where a piece of evidence may go to two issues – for example, contamination of evidence and the credibility of witnesses – I will not use it, nor allow it to be used, in any way to contradict the allegations made against the opponents. Bannister’s Case emphasises that to do so would be entirely improper to do as it would constitute a breach of s.34(4).

Hugh Dillon
Magistrate