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Graham Cleghorn….victim
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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. Graham Cleghorn
was left without legal counsel less than three weeks away from his own appeal
date on July 10.
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 evidence in 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.
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 Kathryn Ryan: He was always only going to get four
weeks notice of an appeal though. Greg King: Well that’s not quite the case.
The way that it works is that the Court is supposed to liaise with the legal
counsel so although they don’t publish formal notice of the appeal with four
weeks there 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 pressures when 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 that’s 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 that’s 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 Kathryn Ryan: The Australian Government did the same
thing to the 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 don’t 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: That’s 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 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 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
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