New Zealand v Garchow, Lebler, Moloney [2005] NSWLC 25

New Zealand v Garchow, Lebler, Moloney [2005] NSWLC 25

It would be unjust and oppressive to surrender William John Lebler to New Zealand in light of his age, cognitive impairment, and the prejudice occasioned by extensive delay—the requirements of s.34(2) of the Extradition Act 1988 (Cth) are met. For Roger Moloney and Raymond John Garchow, while delay and ill-health were present, the gravity of the allegations and available support in New Zealand outweighed the prejudice, and fair trial objections did not reach the threshold to refuse extradition. There was no proven lack of good faith by the applicant or abuse of process.

Parties
Applicant: New Zealand; Respondent: William John Lebler; Respondent: Roger Moloney; Respondent: Raymond John Garchow
Jurisdiction
Australia
Judgment Date
14 February 2005
Procedural Posture
Extradition Proceeding / Final Decision by Local Court (magistrate)
Outcome
William John Lebler released; Roger Moloney and Raymond John Garchow to be surrendered to New Zealand for trial.
Legal Topics
Extradition Delay as Oppression, Fair Trial Contamination of Evidence, Permanent Stay of Proceedings, Joinder of Charges, Admissibility of Similar Fact Evidence, Oppressive or Unjust Extradition
Criminal Law Extradition Law Extradition Delay as Oppression Fair Trial Contamination of Evidence Permanent Stay of Proceedings Joinder of Charges Admissibility of Similar Fact Evidence Oppressive or Unjust Extradition

Case Brief

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Parties

New Zealand

Applicant

William John Lebler

Respondent

Roger Moloney

Respondent

Raymond John Garchow

Respondent

Procedural Posture

Extradition Proceeding / Final Decision by Local Court (magistrate)

Legal Issues

  1. 1 Whether extradition would be unjust, oppressive or too severe a punishment under s.34(2) of the Extradition Act 1988 (Cth)
  2. 2 Whether delay, age, and health justify refusal of surrender
  3. 3 Whether there would be a fair trial for the accused in New Zealand (standards of fair trial, contamination/collusion of evidence, joinder, adverse publicity)

Ratio Decidendi

It would be unjust and oppressive to surrender William John Lebler to New Zealand in light of his age, cognitive impairment, and the prejudice occasioned by extensive delay—the requirements of s.34(2) of the Extradition Act 1988 (Cth) are met. For Roger Moloney and Raymond John Garchow, while delay and ill-health were present, the gravity of the allegations and available support in New Zealand outweighed the prejudice, and fair trial objections did not reach the threshold to refuse extradition. There was no proven lack of good faith by the applicant or abuse of process.

Court Disposition

William John Lebler released; Roger Moloney and Raymond John Garchow to be surrendered to New Zealand for trial.

Orders

  • Br William John Lebler is to be released immediately.
  • Br Roger Moloney is to be surrendered to New Zealand. A warrant under s.38 of the Extradition Act 1988 is to issue.