Graham CleghornÖ.victim of injustice in Cambodia?

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National Radio

Nine to Noon with Kathryn Ryan

June 21 2006


Legal Representation for NZ Man


Kathryn Ryan: †††††† The NZer Graham Cleghorn who is serving 20 years in a Cambodian jail for rape has a new appeal set down for next month after the NZ ambassador intervened in his case.

But the appeal comes at a time his lawyer has resigned from his case. Dy Borima's resignation as Cleghorn's counsel came just days after an appeal by two Australians against charges brought by the same womens' organisation were thrown out by the same judge in the same court despite all witnesses recanting their evidence.


††††††††††††††††††††††††††† Graham Cleghorn was left without legal counsel less than three weeks away from his own appeal date on July 10.

He was convicted of raping five female former employees in 2004.Last Friday he said in an interview from Prey Sar prison outside Pnom Penh that he held out no hope of a fair trial and he insisted he was a victim of a sex sting.

Graham Cleghorn claims the Cambodian Womens Crisis Centre set him up to promote its lucrative fundraising and to allow corrupt officials to lay claim to his valuable land at the edge of the Angwor Wok temple complex.

This latest development is his fourth attempt to have an appeal heard since his first appeal was rejected. It comes after the NZ Ambassador to Thailand, Peter Ryder, who has responsibility also for Cambodia stepped in and requested that the Cambodian government grant a new hearing to international standards of justice.

Before we came on air this morning I spoke to Wellington lawyer Greg King whose been endeavouring to find new legal representation for Graham Cleghorn in Cambodia. I began by asking him if he was suspicious about the timing of the new appeal.


Greg King:††††††††††† Well we're concerned , I mean you are probably aware that two almost identical cases involving two Australian citizens were heard and despite the fact nine complainants - the total number of complainants in those cases - all gave evidencein front of the Court of Appeal retracting their allegations and explaining the pressures and inducements that had been made to them for giving false evidence at the original trials, those convictions were upheld, which is a quite bizarre situation from anybody familiar with Western type justice systems.

That type of thing would never be tolerated.It was in a few days of that the lawyer who acted in those appeals who is also the one we've had looking after Graham Cleghorn in Cambodia resigned, just too frustrated with the system. And lo and behold the day he resigns the Court of Appeal allocate 10 July as the hearing date for Graham Cleghorn's appeal.


Kathryn Ryan:††††††† He was always expected to get an appeal?


Greg King:††††††††††† Yes


Kathryn Ryan:††††††† But you're saying the timing of it is deliberate because his lawyer has resigned?


Greg King:††††††††††† We're not saying that. We're suspicious that may be the case. That this is another attempt to simply brush this thing under the carpet and get it dealt with as quickly and quietly as possible. The first appeal for Cleghorn of course was conducted in his absence without him or his lawyer even knowing about it and it was reignited by primarily diplomatic intervention from New Zealand. The Minister of Justice intervened to reallow it and now they have allocated a date which is almost impossible for the new lawyer to comply with.


Kathryn Ryan:††††††† He was always only going to get four weeks notice of an appeal though.


Greg King:††††††††††† Well thatís not quite the case. The way that it works is that the Court is supposed to liaise with the legal counsel so although they donít publish formal notice of the appeal with four weeksthere is discussion well before that about the allocation of dates. In this case of course that didn't happen. They've just allocated it.


Kathryn Ryan:††††††† Why did his Cambodian counsel resign?


Greg King:††††††††††† Well he's put the reason down to ill health but in dealings and communications with him it's quite clear he has simply reached the end of his frustration tolerance level with whats been happening over there and the experience with the Australian appeals which were the Bart Lauwaert and Clint Betteriddge I think was the final straw for him.


Kathryn Ryan:††††††† What chance of Graham Cleghorn 'getting new counsel in time?


Greg King:††††††††††† We've found a lawyer who is prepared to take on the case. There have been communications with him overnight and he is getting the file and getting it together and then we've got to leave it to his professional judgment as to whether he is going to be in a position to proceed on the 10 July.


Kathryn Ryan:††††††† And if he's not?


Greg King:††††††††††† Well then I suppose the application is for an adjournment.


Kathryn Ryan:††††††† And are there risks attached to that?


Greg King:††††††††††† There are. It could be denied. There are no firm rules about how that is conducted in the Cambodian justice system. Remembering of course it's a fledgling justice system emerging from a very dark period in Cambodian history, the killing fields time and so a lot of this is kind of developing rather than having strict guidelines as to how it's to be conducted. and for things like adjournments it simply comes to discretion of the President of the Court of Appeal.


Kathryn Ryan:††††††† What is the basis of his appeal?


Greg King:††††††††††† There are a number of bases. The most obvious ones were the defects that took place at his trial. That he was prevented from cross examining any of the complainant witnesses. That he himself had seven witnesses that he wished to call that were privy to the bribery, the threats that had been placed on the complainants to give evidence. They themselves had been subjected to exactly the same pressureswhen the whole lot of them had been kidnapped by the Cambodian Womens Crisis Centre and under enormous pressure to make allegations against Cleghorn, so these seven witnesses were all young women who were in that same, exact situation, who had heard the actual complainants who gave evidence saying that Cleghorn had raped them, had heard them say he didn't do anything to us but saw them succumb to the pressure that was placed on them all. So thatís a big part of it and those seven witnesses we hope the Court of Appeal will hear live.


Kathryn Ryan:††††††† Well as you've pointed out, the two Australians convicted following allegations brought by the Crisis Centre have seen their appeals fail.


Greg King:††††††††††† I know, and thatís incredibly concerning to us all. Can I say the Australian Government have been extremely concerned about it also and in one of those cases a man by the name of Clint Betteridge had actually been held in Australia for the last three years awaiting extradition to Cambodia. The Government agreed to withhold sending him to Cambodia until the appeals had been dealt with. When his appeal was dismissed Prime Ministerial decree in Australia, Clint Betteridge was released from prison, so concerned was the Australian government about what had happened with the process.


Kathryn Ryan:††††††† The Australian Government did the same thing to the New Zealand government when it requested the extradition of two former priests .


Greg King:††††††††††† That's a bit different, I think. In that case,


Kathryn Ryan:††††††† Well....


Greg King:††††††††††† That was about whether a person could get a fair trial. This was about whether someone had received a fair trial and whether the appeal process would work properly. There are extremely extremely tangible problems with what had happened with those cases. I'm familiar with the Australian priest case and I donít think there is really any room for comparison, frankly.


Kathryn Ryan:††††††† What is going to happen now? It's simply going to be a case whether or not the new lawyer believes they can prepare a case in just over a fortnight's time. If they seek the adjournment the risk is that the case disappears back into the system for a prolonged period is it not?


Greg King:††††††††††† Thatís the concern that we have and obviously our client is sitting in a fairly bleak environment in a Cambodian prison cell where he is getting sicker and weaker as each day goes by so obviously all the impetus that we've got is to try and ensure that the date is preserved, but obviously if it cant be done properly we recognize we've only got one shot at this and it does have to be done absolutely as thoroughly as it can be. If the appeal is dismissed and quite honestly in light of what has happened with the Australian appeals no one I suspect has much confidence that the Court of Appeal is going to see things our way, then there is the appeal available to the Cambodian Supreme Court. The other issue that we've got at the moment of course is funding. Basically the resources that the family had raised which were not insignificant - US$6500- has basically been expended by the former lawyer not leaving an awful lot in the kitty for the new one.


Kathryn Ryan:††††††† And what are you doing about that? You've made approaches previously to the New Zealand government but the answer is that there is nothing they can do


Greg King:††††††††††† Well we've made†† I guess we haven't gone cap in hand and asked for money. We've certainly investigated with government agencies whether there is an avenue available to us to seek funding if it comes to it but certainly no formal request as yet been made. The indication from the agencies are that there is no obvious avenue available to us.


Kathryn Ryan:††††††† That would be the legal services agency, I imagine?.


Greg King:††††††††††† No, no no, through Ministry of Foreign Affairs and Trade.


Kathryn Ryan:††††††† Well our understanding is that their view is you need to ask the legal services agency.


Greg King:††††††††††† I'm extremely familiar with how the legal services agency operates and it has absolutely no provision whatsoever to provide funding for persons overseas. It's governed by the Legal Services Act. So although they've said that I know enough about how legal aid operates to know that is simply not an option.


Kathryn Ryan:††††††† Then it looks like you're out of options.


Greg King:††††††††††† No, no no. The option that is available is to approach the Prime Minister and Cabinet and seek an ex gratia payment. Basically an informal payment just like what happens when there is aid granted overseas when there is a tsunami or an earthquake the government does have funds available to do that and it's a case of petitioning them. But I want to emphasise we haven't done that as of yet. I've only just received a quote overnight as to how much the new lawyer is going to charge


Kathryn Ryan:††††††† And what is that looking like?


Greg King:††††††††††† It's $4500 US, plus expenses and there is likely to be about $2000 worth of expenses in getting the witnesses from Siem Reap to Pnomh Penh for the hearing and other expenses associated with that so we are looking at about $6500 US all up.


Kathryn Ryan:††††††† It would be an extraordinary precedent would it not for the government in any form to make funding available for a criminal case for a New Zealander overseas?


Greg King: †††††††††† I don't think this situation arises very often. I think it is arguable NZ has an obligation under the Vienna convention to ensure our citizens are accorded due legal process wherever they are in the world and whether that extends to providing funding in what is quite an exceptional case I suppose is open to debate.


Kathryn Ryan:††††††† You don't believe you need to pursue that option as of today?


Greg King:††††††††††† I think we probably do but as I say we've only just overnight got the quote from the new lawyer. We are not sure how much the former lawyer is going to charge us yet. We did have $6500 US sitting in trust in Cambodia to cover the matter and so the question is the downfall and we don't want to go the government unless we have to and we donít want to go to the government unless we know exactly what the shortfall is.


Kathryn Ryan:††††††† You're in touch with Graham Cleghorn or family members?


Greg King:††††††††††† Yes I am. I'm in regular contact with his daughters. With Cleghorn himself the lines of communication are somewhat difficult and what happens is that I tend to email the NZ Ambassador in Thailand who forwards the communications to the British High Commission in Cambodia who when they can do a mail run out to Cleghorn and exchange correspondence so it's far from ideal but it's a case where the New Zealand embassy in Thailand is certainly doing everything they can to facilitate communication.


Kathryn Ryan:††††††† And his level of optimism about this appeal?


Greg King:††††††††††† The big problem we had last week was actually letting him know that what had happened with everything. I haven't received a response from him since that was passed onto him which I understand was only late last week, so I suspect he will be extremely down hearted by especially the outcome of the Australian appeals because tactically it was decided that those ones should go first.


Kathryn Ryan:††††††† That is Wellington lawyer Greg King who as you heard is trying to secure new legal representation for New Zealander Graham Cleghorn. He is in prison in Cambodia. He now has a new appeal date, July 10, but as you heard in that interview has lost his previous lawyer