A former Catholic brother has
challenged an extradition order to send him back to Australia
to stand trial on 252 sexual abuse charges, saying the
decision was "unjust in the extreme".
The Commonwealth of Australia wants Bernard Kevin McGrath,
66, extradited from New Zealand to face allegations he raped,
molested and abused dozens of young boys at church-run
institutions in New South Wales over several decades.
They launched the extradition process last November.
McGrath returned voluntarily to Christchurch from Sri Lanka
where he had been reportedly living on a tea plantation.
After being bailed to live with his sister in Christchurch,
he appeared several times at Christchurch District Court.
Judge Jane Farish ruled earlier this year that he should be
forced to stand trial across the Tasman.
In June, she ruled that extradition would not be "unjust or
oppressive" to McGrath.
She made sweeping suppression orders, after requests by The
Commonwealth of Australia, to "ensure the integrity of trial"
and to mirror existing suppression orders in place in
But McGrath lodged an appeal to the High Court, and was there
today in Christchurch with lawyer Phillip Allan and counsel
Pip Hall QC to argue against the move before Justice
McGrath, who remains on bail, was excused from attending
Mr Hall argued that Judge Farish had failed to take into
account "humanitarian factors", including the "enormous
delay" in bringing the prosecution, McGrath's age - "he's an
elderly man now" - his current circumstances, and other
In not considering those issues, the judge had "erred in
law", he said, and had been "plainly wrong in exercising her
"A lot of things have happened which make this extradition
unjust and oppressive," said Mr Hall.
"There is genuine and specific prejudice because of the
lapsed period of time from the alleged offending ... to
bringing the prosecution."
McGrath's personal circumstances should have been taken into
account given that the historic nature of the alleged
offending, Mr Hall argued, rather than in the context of the
alleged offending, as the judge had ruled.
Mr Hall's second issue was that Judge Farish should have
referred the case to Justice Minister Judith Collins, and
failure to do so amounted to an error of law.
Judge Farish said that in this case, where the extradition
country was Australia, and the court was satisfied there were
grounds for extradition, the court was not required to refer
the case to the minister.
"It can be inferred that because Australia is a similar
country to New Zealand in terms of judicial system and civil
rights, a mandatory referral to the Minister (which could
entail consideration of humanitarian grounds... was not
considered necessary in such cases."
But Mr Hall said she was wrong.
It would be "unjust in the extreme" if McGrath was sent to
Australia to stand trial if both those points were not
addressed, he said.
Crown prosecutor Mark Zarifeh, appearing for the Australian
authorities, rejected the arguments, saying Judge Farish had
been right in her judgement.
The district court hearing had focused on matters of
prejudice, rather than McGrath's personal circumstances, he
Mr Zarifeh said that there had been "no evidence of great
change" in McGrath's life provided to the district court.
And in any event, these were issues that could "very much be
addressed in the Australian courts".
Justice Whata reserved his decision. It's expected to be
issued within a week.