A long-awaited sex trial for a member of a troubled Catholic order has been granted a permanent stay because of a four-year delay in the case getting to court. The trial was due to begin yesterday, but Justice Panckhurst granted the stay in the High Court in Christchurch and the jury panel was stood down.
The latest twist in the St John of God saga has horrified a men's support group for sex-abuse victims and raised doubts over the pending cases of two other members of the order who fought a protracted battle against extradition from Australia.
"Some of our guys have been waiting over 20 years for this to come out," said Male Survivors of Sexual Abuse Trust manager Ken Clearwater.
"The most important thing for them is that these men go to court to face their charges."
The accused man, now in his 60s, cannot be identified because of a suppression order.
In 2003, he was charged with eight counts relating to indecent assaults on boys or inducing indecent acts by them, dating back to 1967 to 1970, when he worked at Marylands, a residential school for boys with intellectual and behavioural difficulties.
The accused made a voluntary appearance in the Christchurch District Court at the time and was remanded on bail.
His defence counsel, Pip Hall, said in Monday's legal argument that the delay of well over four years was "gross", and the judge has agreed.
The judge said: "I am satisfied that (the accused) has suffered considerable personal detriments over and above those to be expected had his case been tried within a reasonable period.
"Are these detriments sufficient to justify the remedy of a stay? I consider that they are, once the case is assessed in general."
The judge noted that the three complainants had received a total of almost $200,000 as compensation from the order.
The accused had lived and worked with the charges hanging over him for more than four years. His health had suffered and he was now on medication for hypertension.
With the trial pending, he had recently retired, losing a long-service payment. He considered that he could not apply for residency overseas in the circumstances, which could affect his pension entitlements.
"The uncertainty surrounding these factors has made it impossible to plan rationally for retirement," the accused stated. The cost of legal representation had been considerable.
Delays in the case proceeding before a jury included an unsuccessful application for a stay on the grounds of a 37-year delay between charges being laid and the alleged events. That decision was then appealed.
There were arguments over psychological testing of complainants and the admissibility of that evidence. A further stay was applied for last August over publicity about two Crown witnesses, St John of God's retiring Australasian leader, Brother Peter Burke, and former complaints manager Michelle Mulvihill.
The trial was scheduled for last October but was aborted because of health problems affecting the accused and Burke, who is still ill in Australia. The judge also noted a Crown request for Mulvihill to give her evidence via a video link because of her unwillingness to travel from Sydney.
The longer the case dragged, the more scope there was for complications in witnesses' availability and co-operation, the judge said.
"For these reasons, I am of the view that there is at least a recognisable risk that the accused's right to a fair trial may be compromised," he said.
"Viewing matters in the round, I am in no doubt that a stay of prosecution is the only appropriate and proportionate remedy in this instance."
Clearwater was expecting a hostile reaction to the decision from the victims he supported.
"They'll be shattered. We have been waiting a long time for these cases to come to court," he said.
He believed the decision raised doubts over whether cases would proceed against two other St John of God members, Brother Rodger Moloney, 71, and Father Raymond Garchow, 59, who fought extradition from Australia to face charges of sexually abusing boys at Marylands.
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