Former Catholic brother Bernard Kevin McGrath's extradition to Australia on hundreds of sex charges may need to be considered by the Minister of Justice, after a decision on an appeal to the High Court.
Justice Christian Whata delivered his decision in the case today, five days after the appeal was heard in the High Court at Christchurch.
Justice Whata has decided that the District Court Judge Jane Farish, who considered the Australian extradition application, should have given more weight to the law that would allow 65-year-old McGrath's personal circumstances to be considered by the minister.
He has referred the case back to the judge for further consideration. The Christchurch District Court has not yet set a date for the judge to hear those arguments again.
The Australian authorities want McGrath to face more than 250 charges of sexual offending which date back between 22 and 33 years.
Counsel for McGrath, Pip Hall QC, asked the High Court to consider whether Judge Farish was correct to decide it would not be unjust or oppressive to McGrath to allow the extradition, and whether she was correct in not referring the case to the minister.
Justice Whata held that she was correct in her decision that it would not be unjust or oppressive and dismissed that ground of appeal.
In considering the second ground of appeal, Justice Whata said it was accepted that the Australian jurisdiction was very close to New Zealand's and there were significant safeguards in place for a person to receive a fair trial.
However, the minister could also consider whether the extradition should be allowed in the light of "compelling or extraordinary circumstances of the affected person", which meant that McGrath's personal circumstances could be considered.
Because the judge had stopped her analysis on this point after considering the Australian judicial system, he believed that he had to err on the side of the appellant (McGrath) in a matter as important as extradition. He referred the case back to the District Court judge for further consideration.
The case continues to be covered by extensive suppression orders.
- © Fairfax NZ News
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