Ehara i te mea i hāmenetia katoahia ngā nawe i whakatakotongia ai

Not all complaints resulted in charges being laid

52.     There were 16 brothers from the Order named in formal statements as primary perpetrators of abuse, but some complainants could not recall or identify a perpetrator. Detective Superintendent Read stated that all of the named religious people were suspects “to varying degrees” of having committed abuse. Of those, six had died, and several were only named by the two complainants who were later convicted of making false complaints. One brother was named by a single complainant who did not want to pursue his complaint.^[509]

53.     In November 2003 police laid criminal charges against five brothers – McGrath, Moloney, IU (who has permanent name suppression), Garchow and Lebler.^[510]

54.     Police did not lay charges for offending alleged by the two 1993 complainants as Brother McGrath had already been convicted of abuse on them.^[511] Charges were laid in respect of 40 of the remaining 56 complainants.^[512]

55.     Of the 16 complainants where charges were not laid:^[513]

›      seven did not want to pursue charges.

›      three did not sufficiently identify a suspect.

›      one only identified a suspect who was deceased.

›      two were assessed as having made false complaints. Both of these individuals were subsequently charged and convicted of making false complaints to police.^[514]

›      police decided not to charge in respect of allegations by two complainants because their recollections were considered unreliable.

›      one complainant made his allegations against Brother Garchow after charges had been filed and extradition proceedings were already underway in Australia.

56.     Charging decisions were made by police in conjunction with the Crown Solicitor.^[515] Formal records or logs of initial charging were not kept by police.^[516]

57.      Brothers Moloney, Garchow and Lebler were in Australia and police invited them to return to Aotearoa New Zealand to face charges.^[517] All three declined.

58.     Detective Superintendent Read described the charging decisions:

“The large number of complainants and the consistency of their evidence meant that we were able to lay charges in respect of more complainants than we likely would have done if that complainant’s cases was prosecuted in isolation. Extradition requirements also placed some restrictions on charging decisions. Australian authorities do not recognise representative charges and so we had to specify each charge as a set of circumstances at a particular time in order to satisfy Australian extradition requirements.”^[518]

59.     In Aotearoa New Zealand, police can lay a ‘representative’ charge where the same type of offending has occurred multiple times over a stated period of time. Unfortunately, however, that was not the approach in Australia, which meant that for extradition of the brothers to occur, the charges laid in Operation Authority had to be specific. Given the historic nature of the charges this inevitably later led to a situation where the full range of allegations made by some complainants was not fully covered in the charges before the courts in Aotearoa New Zealand.

60.     Police only charged for allegations where at the time of charging a complainant intended to give evidence at trial.^[519]

Tukunga panapana tāngata kia tae mai ai ngā parata ki Aotearoa Niu Tīreni ki te whakatinana i ngā hāmene i a rātou
Extradition proceedings to bring brothers to face charges in Aotearoa New Zealand

61.      NZ Police, through Crown Law, applied to the Australian courts to extradite Brothers Moloney, Garchow and Lebler to Aotearoa New Zealand to face their charges. The extradition proceedings were opposed.^[520] A lengthy extradition process, including numerous hearings and appeals, followed over the next three years.^[521]

62.     In February 2005, an Australian court ordered that Brothers Garchow and Moloney be extradited to Aotearoa New Zealand. They appealed, arguing that the charges were too historic and that there was a possibility of collusion between complainants.^[522]

63.     The appeal was successful, and extradition was refused.

64.     NZ Police appealed this decision.^[523] In October 2006, the extradition of Brothers Garchow and Moloney was finally ordered, and they were sent to Aotearoa New Zealand.^[524]

65.     The extradition application in relation to Brother Lebler was dismissed due to his age and failing health.^[525] Ten complainants had identified Brother Lebler as a perpetrator.^[526] It was very disappointing for the complainants to discover that Brother Lebler would not be extradited to face charges. A survivor even tried to track down Brother Lebler (also known as Thaddeus) himself:

“The Catholic Church wanted me to keep the abuse quiet. They said I could lose my house and all sorts of things like that. …I was afraid that if I said anything they would want their money back and I was afraid to lose my house. That’s why I didn’t go to the police initially.

I eventually filed a complaint with the police though, purely out of anger. I wanted to have those responsible exposed and held accountable in a court of law. I was prepared to give this evidence at trial for Br Thaddeus, but this never occurred as the Australian courts refused to extradite him to NZ. I felt that he got away with his offending as I never got to explain what he had done to me …

I went to [St John of God] in Halswell to find out where Brother Thaddeus was in the early 2000s. I paid $100 to Grant Cameron who hired a detective to find him. I went out there, and they said he was in Papua New Guinea, but he was actually in Australia …

I feel the church has betrayed me by failing to accept responsibility in any form of public manner for hiding my abuser. It fuels me with anger and despair.”^[527]

66.     The Order paid for the brothers’ legal costs to defend the extradition proceedings, and the later hearings in New Zealand.

Tukunga hāmene, he rite tonu tā ngā parata whakatakoto wero ki ngā taunakitanga
Prosecution phase, the brothers continue to challenge the evidence

67.      Brothers McGrath, Moloney, Garchow and Brother IU all pleaded not guilty to the charges against them and elected to face trial by jury.

68.     Before their trials, each of the defendants challenged the admissibility of evidence and applied to stay or dismiss some or all of their charges. The grounds argued included the adverse effect of pre-trial publicity, that the redress process engaged in by Brother Burke and Dr Mulvihill had created a risk of false complaints, and that the risk of collusion between complainants meant a fair trial could not occur. Brothers McGrath and Moloney also each unsuccessfully applied for severance of charges for each of their complainants, into multiple separate trials.^[528]

69.     Throughout this period, police and Crown prosecutors continued to assess the credibility and reliability of each of the complainants and reviewed whether each could give evidence at trial. Detective Superintendent Read maintained there was no general view that the complainants lacked credibility or that their evidence was not reliable, but that the ability of a witness to give evidence and ‘endure’ cross-examination was a relevant consideration.^[529] He stated:

“We were concerned about the extent to which some complainants would be able to withstand cross examination, both in terms of their personal resilience and their suggestibility. That was an ongoing assessment carried out by police and later by the Crown, with input from family and caregivers of complainants.”^[530]

70.      The charges relating to some complainants were dismissed prior to trial, on some occasions with the consent of the Crown. One example was a High Court judgment about a complainant who had alleged offending against Brother McGrath and Brother IU:

“It should be noted that Marylands School was designed and set up to provide accommodation and assistance for troubled boys. Many of the pupils attending the school suffered from physical and mental handicaps, and others from severe behavioural problems.

PBA has spent many years in a mental institution. Initially he made a complaint in relation to four St John of God Brothers. By the time his interviews had finished allegations were made against up to 12 brothers. The officer in charge of the case ... accepted that PBA’s evidence was very unsatisfactory. The Crown, through ... responsibly accepted those difficulties.

In light of that I am quite satisfied it is appropriate to discharge both Accused, pursuant to s347, on all counts where PBA is the complainant.”^[531]

71.      Brother McGrath successfully applied for a stay of proceedings of charges relating to four complainants who had made allegations of abuse to police after he had been sentenced in 1993. Another police officer, unrelated to the original 1993 investigation, had received new complaints from four men of sexual abuse by Brother McGrath at Marylands. Rather than charge him with new offences, this officer decided to ‘custody clear’ the allegations. The High Court Judge described this as a process that normally applied to dishonesty type offending, where police would approach a person already in custody and question them as to whether they had been involved in other similar offending, on the basis that any confession would not lead to additional charges or a longer sentence. If admissions were made, no charges were laid but the complaints were ‘disposed of’. The officer spoke to Brother McGrath in prison who admitted that he had also abused the four additional complainants. He was not charged and the allegations were ‘cleared’. The judge noted a lack of police records about what occurred. When interviewed by detectives during the Operation Authority investigation a decade later, Brother McGrath made the same admissions. The Judge considered that as a matter of principle if police encourage an accused person to admit to other crimes on the basis they will not face charges, it would be against public policy for them to be later charged.^[532] All charges for three of the complainants were stayed, and in relation to a fourth complainant only sodomy charges went to trial as the complainant had not disclosed that abuse to the officer in 1993.

72.      The High Court made a number of pre-trial rulings. The brothers appealed some of those rulings. Brothers Garchow and IU were successful in obtaining stays of proceedings as discussed below.

Whakawā a te kōti ki Niu Tīreni mō Parata McGrath rāua ko Parata Moloney
New Zealand Court hearings of Brother McGrath and Brother Moloney 

73.      Brother McGrath’s jury trial took place in Christchurch in March 2006.^[533] He was charged with 54 counts of sexual offending.^[534] He pleaded guilty to one count at the beginning of the trial.^[535] A long video interview with Brother McGrath by Operation Authority detectives was played to the jury, in which he admitted that boys at Marylands were ruled by fear, bribed and threatened if they were to disclose the offending against them.^[536] Brother McGrath agreed that senior brothers punished boys who complained of abuse.^[537] He himself had taken no action when a boy complained to him of being abused by another brother.^[538]

74.      During the trial, 10 charges were dismissed by the trial judge. In April 2006, Brother McGrath was convicted by the jury of 22 charges of “doing and inducing indecent acts on boys under 16 years of age”.^[539] The sexual assaults included touching, fondling, masturbation and oral sex but he was found not guilty of 21 charges including charges of sodomy.^[540]

75.      Brother McGrath was sentenced to five years’ imprisonment.^[541] In his sentencing notes, the judge noted that the “victim impact reports make distressing reading. They refer to anger, fear, anxiety, nightmares, low self-esteem, post-traumatic stress disorder and, in many cases, gross problems in later life.”^[542] Brother McGrath was released from jail in 2008.^[543]

76.      Brother Moloney faced trial in mid-2008. Prior to trial he successfully applied for four charges to be dismissed for one complainant who had alleged that he and Brother McGrath had jointly sexually abused him by doing indecent acts and sodomising him. The jury had found Brother McGrath not guilty of those charges in 2006. The High Court Judge considered it would be contrary to justice for the charges to go to trial and risk an inconsistent verdict for Brother Moloney.

77.      Brother Moloney faced 30 charges at trial relating to 11 complainants. His defence was that the complainants were lying, or that they were mistaken as to who had abused them.^[544] During the trial, the judge dismissed some of the charges. Brother Moloney was convicted by the jury on seven charges of doing and inducing indecent acts on five complainants.^[545] He was acquitted of 16 other offences, including sodomy.^[546]

78.      On 1 August 2008, Brother Moloney was sentenced to two years and nine months’ imprisonment.^[547] In the sentencing notes the judge noted that a dominant aggravating feature was the breach of trust arising from his role as Prior, and said: “It was your role to provide for the particular needs of the pupils, but you abused a number of them instead.”^[548] The Judge recorded that Brother Moloney maintained his innocence and had no insight into his offending.^[549] He was released from prison, on parole, in September 2009.^[550]

79.      Survivors were pleased that both Brother McGrath and Brother Moloney were sent to prison but thought the sentences should have been a lot longer. Darryl Smith said:

“Although I wasn’t a witness I had gone to the trial wanting them to get imprisonment for life, but what they got was not the result we wanted. The Marylands ex-students were all there and we were all wild.”^[551]

Parata Raymond Garchow
Brother Raymond Garchow

80.     Brother Raymond Garchow faced 16 charges in relation to two complainants.^[552]

81.      Another survivor also alleged that Brother Garchow sexually abused him while at Marylands^[553] but charges could not be laid as the extradition process was already too far along when allegations came to light.^[554] It was intended that this complainant would still be a witness at Brother Garchow’s trial to give evidence.^[555]

82.     The charges relating to one intellectually disabled complainant were stayed due to difficulties with the reliability of the evidence he gave against Brother Moloney at his trial.^[556] The charges based on his evidence were dismissed during Brother Moloney’s trial by the Judge who found that he was open to suggestibility and his evidence could not be relied upon.^[557] The Crown Prosecutor advised that the charges against Brother Garchow, in relation to this complainant, should therefore not proceed to trial.^[558]

83.      The other complainant did not proceed as a witness due to his deteriorating health.^[559] This complainant told the Inquiry:

“I very strongly feel that justice has never been served for me. I believe that Br Garchow should have faced a criminal trial for what he did to me and other boys at Marylands School. He got away scot-free.”^[560]

84.     There were no remaining charges against Brother Garchow.^[561] In addition, Brother Garchow himself was in poor health.^[562] In July 2008, a permanent stay of proceedings was entered against him.^[563] He died in March 2011.^[564]

I te rā i tīmata ai te whakawā a te kōti mō Parata IU, i whakatauria kia whakatakaroatia ngā whakahaere o te kōti
Brother IU was granted a stay of proceedings on the day his trial was due to start

85.     Brother IU faced charges in relation to five complainants.^[565] He had not opposed extradition and had returned to Aotearoa New Zealand voluntarily.^[566]

86.     One of the complainants died before the court hearing date^[567] and the charges relating to another complainant were dismissed after a pre-trial hearing where the Crown and police acknowledged the complainant’s evidence was unreliable.^[568] That left three complainants and a total of eight charges of indecent assault and inducing an indecent act.

87.      Brother IU applied for a stay of proceedings for the three remaining complainants based on historic delay, which was dismissed in August 2007. However, in 2006 the High Court had granted an application by Brother IU for the three complainants to undergo formal psychological examinations.^[569] This was seen by police as an attempt to discredit the complainants.^[570] The post-charge delays caused by this assessment process, together with the historic nature of the allegations, other delays in the proceeding and the effects of those on fair trial rights, were sufficient for Brother IU to successfully apply again for a stay of proceedings. This was granted on all charges for the three complainants, on the day his trial was supposed to start.^[571]

88.      One of those three complainants told us:

“I made statements to Christchurch police in relation to abuse I suffered ...

It was a stressful time having to relive the memories of the physical and sexual abuse I had endured …

In making a complaint to the police it was my intention to have those responsible exposed and for them to be held accountable in a court of law. I was prepared to give evidence at a trial for Brother [IU], but this never occurred as the trial was cancelled at a late stage. I felt that he and the others, who had since passed away, had gotten away with abusing kids as we never had the opportunity to tell the truth in court.”^[572]

Kawenga taihara a te Rangapū
Criminal accountability of the Order

89.     By the time of Operation Authority, allegations had emerged internationally of the Catholic Church transferring sexual abuse perpetrators, or covering up their offending, or both.^[573]

90.     NZ Police did not undertake an investigation into systemic failures of the Order that contributed to the offending, or whether the Order responded to reports of abuse appropriately.^[574]

91.      Detective Superintendent Read said that although institutional criminal accountability is within NZ Police’s function, Operation Authority was already a complex and difficult investigation. The operation’s first priority was securing convictions against the individual perpetrators.^[575] No consideration was given as to whether the Order and/or its senior leaders might be criminally responsible.

Ngā hāmene āpiti nō Ahitereiria
Further Australian convictions 

92.     In 2017, Brother McGrath was found guilty of many additional sexual assaults against 12 boys at a school in Australia.^[576] These charges included sodomy, including one incident when Brother McGrath rubbed a boy’s face in his own vomit after forcing him to perform oral sex on him.^[577] Brother McGrath was sentenced to 33 years’ imprisonment.^[578]

93.     In 2019, Brother McGrath faced still more charges in Australia.^[579] He was again convicted and sentenced to a lengthy period of imprisonment.^[580]

Kāore i kaha tā te Kāwanatanga aroturuki, ahakoa ko rātou ngā kaiwhāngai pūtea matua 
State provided minimal oversight, despite being major funder

94.     The State appears to have assumed the Order would be a suitable organisation to run a school for disabled boys. The State provided a minimal level of oversight, despite providing significant funding to the Order.

Kura Ahumahi o Stoke, tē arohia o te ripoata a te Kōmiti a te Karauna 
Stoke Industrial School Royal Commission report ignored

95.     The State was already aware that abuse could occur within residential schools. This is not the first time abuse in a Catholic school has been the focus of a Royal Commission. In 1900, a Royal Commission investigated Stoke Industrial School (Stoke School), run by the Marist Brothers, a congregational Order, in Nelson.^[581] As a result of the 1900 Royal Commission’s report, the State and Catholic Church were aware of serious concerns that could arise when allowing a non-State entity to operate a residential school.

96.     Stoke School was a privately registered school that housed both neglected and ‘criminal’ children.^[582] The school was originally run by the local bishop, who handed it over to the Marist Brothers in 1889.^[583] Before 1900, complaints surfaced around the level of care the children were receiving. Concerns were raised that punishment was more severe than would be permitted at a State-run industrial school,^[584] the food was of poor quality and insufficient quantity, and the boys were poorly clothed.^[585]

97.      The 1900 Royal Commission upheld the complaint that punishment was more severe than permitted. Corporal punishment by way of flogging with supplejacks was considered to “[verge] on cruelty”.^[586] The Royal Commission recommended legislation be amended, so the relevant punishment regulations applied to all schools, both public and private.

98.     The 1900 Royal Commission found:

“The Marist Brothers have had no experience in the Australasian Colonies except at Stoke, of any but day-schools, and are therefore untrained in the special duties involved in the management of boys permanently with them, while the habit of life of members of the Order cannot be regarded as calculated to develop those characteristics which are necessary to engender such feelings as should exist in those having charge of young lads.”^[587]

99.     We understand this to mean the 1900 Royal Commission thought life as a Marist Brother would not have given them the compassion to understand that young boys should not be beaten.

100.   The State had no knowledge of, or ignored the lessons from, the Stoke School Royal Commission when assessing the suitability of the Order to operate a private school in 1955.