Crown cover-up? Legal trickery – Part 2

When Leoni McInroe gave evidence at the Royal Commission, the force of her words spoke for all the victims of the Lake Alice adolescent unit. For six years during the 1970s children were sent to the unit where they were subjected to electric shocks as punishment and other forms of torture and abuse.

Her words were also a summary of how the Crown had treated victims of other institutions over decades.

“I felt our stories were unbeatable and insurmountable … There was no denying the intentional, debilitating, ongoing abuse of children and young people at Lake Alice. I believed that the evidence and facts were so strongly in favour of all survivors that finally Dr Leeks, and the people who put him in power, would be exposed and criminal justice and fair compensation would be realised for all us plaintiffs. How could there not be justice with so much evidence?”

In a sense, her assumptions were both right and wrong – there was no denying the facts. But the Crown did deny, minimise, delay and generally abuse the whole process in order to win and by doing so, defeat justice. From the moment McInroe filed her legal case against the Crown in 1994 it took another nine years to conclude and she still walked away worse off.

“There was not one point in the entire process the Crown acted with any genuine care or respect to the actual harm I had suffered in Lake Alice, not one, not ever.

“I had gained an impression from early on in the proceedings that the Crown were protecting Dr Leeks and I continued with this impression throughout the whole period of my litigation.

“I found the Crown’s behaviour appalling and indefensible. I eventually came to believe the Crown behaved in a way described best as trickery.”

Solicitor-General Una Jagose later acknowledged in front of the Royal Commission the very point that McInroe had made – the evidence was irrefutable:

“The government of the day could see readily that the record showed … Dr Leeks was using treatment methods to punish and attempt to modify behaviour in a way that the Crown then, and still, thought was unacceptable … The proof was right there in the file, in the very systems that the hospital and Dr Leeks ran.”

Despite this knowledge, Crown Law had previously forced McInroe into a mediation meeting with Leeks, one that was highly secretive, partly because of the fear that people would break out of prison to kill him.

So how could it be that McInroe was treated so badly despite the Crown’s knowledge that her case was rock solid? In a word – liability. The Crown was aware it was responsible for the abuse Leeks had inflicted on hundreds of children, but many of the children also went through other institutions and had made allegations of being abused in those as well. 

McInroe’s case presented a nightmare scenario for the Crown – it threatened to expose the apparatus of the Crown as a serial child abuser with thousands of victims demanding justice.

‘There was not one point in the entire process the Crown acted with any genuine care or respect to the actual harm I had suffered in Lake Alice, not one, not ever‘Leoni McInroe

She was represented by the country’s top expert in tort law at the time, Rob Chambers QC, who would have been a formidable opponent in court. Which is why the Crown went to such extreme lengths to keep it away from the court.

While another lawyer, Grant Cameron, had the largest number of claimants and was making the most noise in the media, it was McInroe’s claim that posed the greatest legal threat to the government. Not only was she making a claim against the Crown but also Leeks as an individual, which exposed the Crown to even greater risk if he were to testify. Which is likely the reason that the Crown negotiated an out-of-court settlement with Cameron that undercut McInroe’s claim. 

But not before they had dragged her through an ordeal that rivalled the torture and abuse at Lake Alice itself. Over the nine years of litigation the Crown failed to hand over evidence it was required to in discovery and the court had to order it twice to do so; it forced her to be assessed by a psychiatrist in a locked psychiatric hospital that resembled her experience of being incarcerated at Lake Alice; it forced her into that mediation meeting with Leeks. (Leeks was flown back from Australia and could have been questioned by police and charged at that point.) During the whole process the Crown also deliberately protected Leeks, despite knowing the allegations against him were true.

Anything to stay out of court

Present at the mediation meeting were a number of Crown lawyers and officials who accompanied Leeks. Among them were Ian Carter from Crown Law and Janice Wilson, the director of Mental Health who had briefed then-Minister of Health Bill English and had been involved all the way through the process. She said she couldn’t remember this meeting when she gave evidence at the Royal Commission.

McInroe remembers the meeting very clearly. It was supposedly for mediation but the way McInroe described it at the Royal Commission it was more like intimidation.

They sat her directly opposite Leeks, the man who had inflicted torture on her and hundreds of other children.

The psychiatric assessment they also forced her to do was at the Mason Clinic in Auckland, a secure psychiatric hospital reminiscent of Lake Alice.

“When I turned up on the day, I was taken through three sets of doors, each of which were locked after me. Memories of being back in Lake Alice, the trauma, the anxiety, the fear, the smell, the sounds, the keys and locks and the powerlessness was overbearing and overwhelming.”

The Crown lawyers and officials did all this knowing the allegations against Leeks were true. At one point Crown Law even considered a cross-claim against Leeks.

One example of the Crown’s knowledge was a medical report obtained by McInroe’s lawyer from Dr John Werry, an expert child psychiatrist who had also been instrumental in setting up the school of psychiatry at the Medical School at the University of Auckland. From examining McInroe’s file he concluded that what happened to her was not medical treatment, it was medical misadventure.

The Crown lawyer who was in charge of defending the case, Carter, was aware of this document as he discussed it when considering expert witnesses for the Crown. In a memo to his colleague Grant Liddell he mentioned that Werry had “already given an unfavourable opinion on Leeks’ diagnoses and treatment in the report which he prepared in support of McInroe’s application for accident compensation on the basis of medical misadventure”.

This was just one element in what was an abundance of evidence that pointed to Leeks’ guilt for crimes against children. Instead of handing this evidence to the police, Carter, then Solicitor-General Terence Arnold and Crown Law continued to proceed with defending the case, despite Crown Law holding the responsibility for prosecuting crimes.

Carter was later appointed as a judge of the District Court. Arnold would go on to be a judge on the Supreme Court.

During the whole process, McInroe not only had to legally prove the abuse, she had to legally prove it had caused her harm. While she was trying to prove these points, the Crown was not trying to disprove them so much as it was trying to discredit her. As part of the legal process, McInroe was required to hand over personal diaries she’d kept. When she finally got them back they were festooned with post-it notes, which told her complete strangers had been poring over her private thoughts and feelings to try to discredit her.

The Royal Commission found that the “Crown’s procedural applications and unjustified delays dragged the claims out for years”. 

The Attorneys-General Margaret Wilson and Michael Cullen and Solicitor-General Terence Arnold as well as Helen Clark and Health Minister Annette King, had to be aware by then that Leeks’ behaviour was not acceptable medical practice for the time. The Crown knew McInroe’s case posed the greatest legal threat if it went to court. But those in power found a way to avoid the judgment of the courts by settling out-of-court with Grant Cameron. 

This settlement was outlined by Clark and King via Cabinet – a Crown Law memo said the “settlement was ‘at the direction of the Executive’ rather than on the basis of a legal assessment of potential liability by Crown Law”.

But even after Clark gave a qualified and limited apology and a partial acknowledgement of what had happened, based on a mountain of evidence, Crown Law and the Ministry of Social Development would continue to deny the truth in the years following:

The Royal Commission report on Lake Alice from 2022 said: “As late as 2013, Crown Law, on behalf of the Ministry of Social Development, was asserting that the medical treatment administered at the unit was ‘accepted practice at the time’, and, in 2017, there was ‘no evidence that ECT was used as punishment and that further investigation or action … was required’.”

Such statements are difficult to reconcile with Clark’s acknowledgement in her apology in 2001 that what happened at the unit was “unacceptable by any standard, in particular the inappropriate use of electric shocks and injection”.

Despite the police struggling with the question of whether what Leeks did was medical treatment, Crown Law had ample evidence it wasn’t

The statements by Solicitor-General Una Jagose in front of the Royal Commission that what happened at Lake Alice was torture and the Crown had long known, exposed these statements by Crown Law and MSD as wrong.

The Royal Commission said in its final report: “Successive government ministers and heads of government agencies who were responsible for the law and policy settings had accountabilities in law to children, young people and adults in their care that they failed to uphold.”

The Crown also shut down other avenues for Leeks to be held accountable.

Document show Solicitor-General Terence Arnold was involved in a discussion with his staff about not giving information sought by the Royal College of Psychiatry unless absolutely required by law. If the college had gained access to the evidence it was requesting, it’s likely it could have triggered a formal rejection of Leeks and his methods, setting off a chain reaction that could have led to him being criminally convicted and the Crown being legally liable.

There was also the finding of retired judge Sir Jeremy Gallen, who had been asked to determine how the out-of-court settlement should be distributed between the victims. Unfortunately for the government he did far more than that. He personally interviewed nearly half of the claimants and examined the files from the Cameron claim. He was so shocked by what he found that he wrote an unsolicited report in 2002 that described the abuse the victims suffered as “outrageous in the extreme”.

The internal report leaked to the media and the Crown tried unsuccessfully to have it suppressed through the courts. Gallen found that ECT, or electrocution, was “administered not as therapy in the ordinary sense of that word, but as a punishment”. He also verified that ECT had been used on parts of the body other than the head: “Several claim, and there is corroboration from other unrelated statements, that ECT was administered to the genitals.” These statements alone, by a highly respected judge, were evidence of serious criminality.

Not medical treatment, but medical misadventure

Gallen said he found compelling evidence that verified the victims’ accounts of being sexually abused: “A number of claimants, both male and female, allege that they were subjected to sexual abuse from staff members or from other inmates, while at Lake Alice. The detail associated with such accounts, together with certain other corroborative material, establishes that behaviour of this kind did occur.” The report included an account of children being deliberately put in a cage with an adult patient who was “seriously deranged” as punishment.

Senior ministers would have been aware of this report, as was Attorney-General Margaret Wilson. When the newspaper the Evening Post obtained a copy, Solicitor-General Arnold filed court proceedings to suppress any publication. Footnotes in the Royal Commission’s Lake Alice report show he consulted with Wilson and Clark when making this decision. This attempt failed and the Evening Post published two stories about Gallen’s report. Judge Ron Young said: “it would be difficult to argue that the confidentiality provisions of the agreement were intended to prevent the plaintiffs ever telling their stories of their treatment at Lake Alice.”

But at the time, Gallen’s report was the closest thing to an official investigation that actually examined the evidence. Gallen also discussed his findings with David Collins QC and both agreed that police would prosecute if they had access to the same evidence. The police didn’t get access to that evidence because it wasn’t provided by Crown Law and didn’t speak to the victims for reasons that have never been explained.

Likewise, there was a failure by ACC to pass on to the Medical Council the finding by Werry that Leeks’ methods were not medical treatment, but medical misadventure. There was a legal requirement to pass this on and had it happened it’s likely the Medical Council would have referred the matter to the police and the police would have had the evidence they needed to prosecute Leeks. 

(Ron) Paterson was directly involved in mapping out the Crown’s strategy of minimising liability and yet he then held a role that was responsible for holding medical personnel like Leeks responsible for misconduct.

Saying this, the Medical Council had not exactly covered itself in glory. When Leeks’ behaviour was exposed by racial justice advocate Dr Oliver Sutherland in the 1970s the council missed a chance to hold Leeks accountable then. Instead it gave him a certificate of good standing and he skipped off to Australia. 

Furthermore, a complaint was filed with the council by victim Kevin Banks in the late 1970s, which was not acted on (he also made a complaint to police around the same time that was never properly investigated). Banks made another complaint in 2005 based on a media sting that captured Leeks on camera admitting to inducing children to give shocks to another child.

Less than a month later, Health and Disability Commissioner Ron Paterson wrote back to Banks saying he had decided to “not take any specific action on your concerns”.

The Royal Commission report on Lake Alice raised serious concerns about Paterson’s decision, given he’d held several positions where he’d advised the government on the Lake Alice claim, which created a conflict of interest. 

“An unfortunate aspect is that there was at least the potential for a perceived conflict of interest that does not appear to have been disclosed. Before his appointment as health and disability commissioner, Mr Paterson had held senior positions in the ministry of then-deputy director-general of its safety and health and was involved in responding to the class action by Grant Cameron Associates, of which Mr Banks was a part. He was employed as manager of mental health services, regulation branch between 1999 and 2000. In 1997, he helped brief Minister of Health, Bill English, on how to respond to Lake Alice abuse claims, one of which was Mr Banks’ claim. One of those briefings, dated 15 October 1997, attached a draft Cabinet paper … and noted that the purpose of the paper was to ‘provide advice on how to minimise the legal and fiscal risks posed to the Crown arising out of the alleged mistreatment of patients at the [unit] by employees of the Department of Health and Palmerston North Hospital Board’.”

Paterson was directly involved in mapping out the Crown’s strategy of minimising liability and yet he then held a role that was responsible for holding medical personnel like Leeks responsible for misconduct.

Paterson is currently on the Medical Council, is an Emeritus Professor of Law at the University of Auckland and was previously an Ombudsman.

An exchange between the Children’s Commissioner and health minister Annette King shows that institution was also blocked from gaining information by the minister herself. The Royal Commission said:

“On 17 October 2001, [then commissioner for children Roger] McClay wrote to the Minister of Health asking for officials to check the whereabouts of former Lake Alice staff to ensure none was ‘currently working with children’. The minister replied that it would not be possible for officials to do a check on former Lake Alice staff. The minister also advised that such an inquiry by the Ministry of Health would not be warranted or appropriate, stating that it would be unjust and inappropriate to act in any way that assumed the guilt of former staff.”

In 2022 the Royal Commission provided the Children’s Commissioner’s Office with documents that weren’t disclosed 20 years earlier.

“After reviewing the material, the Office of the Children’s Commissioner told us it considered there were indications the Crown officials had withheld important information from Mr McClay.”

At the time of King’s response to the Children’s Commissioner there was already evidence that Leeks’ behaviour and the behaviour of his staff was worthy of police prosecution. What was inappropriate and unjust was the failure to hold Leeks accountable and ignore the considerable evidence she had access to that Leeks had tortured children.

Police investigation

But the Lake Alice civil case wasn’t the end of the matter. Once the out-of-court settlement was finalised, a number of the victims used their civil claims as the basis for a criminal complaint to the police in 2002.

King became Minister of Police in 2005, with the benefit of knowing about Lake Alice evidence from her time as Minister of Health.

The criminal investigation was a debacle, not just because of the incompetence of the police but also because Crown Law sat on evidence relevant to the case and didn’t disclose that information despite it being directly relevant to the issues police were wrestling with. This withholding of information continued even after the UN found New Zealand in breach of the Convention Against Torture in 2020.

But this pattern of Crown Law not disclosing information to the police was happening from the beginning. Then-Solicitor-General Arnold’s deputy Nicola Crutchley had eyes on both the civil and criminal cases and knew about the evidence that Jagose referred to in her sworn evidence before the Royal Commission. In a memo to a colleague, Crutchley described how the police were reluctant to even investigate when the complaints were first filed.

Crutchley said: “Detective Superintendent Larry Reid on behalf of the Police Commissioner’s Office has brought this file to me for an opinion from the Crown Law Office on whether there is sufficient evidence for the police to consider laying criminal charges.

“Detective Superintendent Reid’s view is that if he starts to investigate this set of allegations then he is giving credence to something which he considers does not warrant it at this stage.

“You may see from the material attached to this file that there is in fact a disagreement within the Police Commissioner’s Office about whether there is any evidence that found criminal prosecution.”

On what basis did Reid decide that the allegations didn’t warrant investigation? On the basis that it might “give credence” or accept that the victims might be telling the truth? What was the disagreement in the Police Commissioner’s Office and what evidence did the police have? The Police Commissioner at the time was Rob Robinson. 

This attitude of regarding the victims as unreliable continued with Detective Malcolm Burgess who picked up the investigation from Reid after he retired. Burgess portrays some of the victims as lacking credibility because they’d been in jail.

However, it appears that Crown Law was only giving their legal opinion regarding prosecution based on what the police had discovered, without disclosing to police what Crown Law held. While Crown Law was supposed to be assisting the police, it was actually obstructing them from carrying out a thorough investigation by withholding crucial information. Crown Law’s opinion also ignored the report from Justice Gallen, who had examined the evidence and believed there were strong grounds for a criminal prosecution.

Crutchley pressed her colleague to keep her informed of any developments because of political considerations and publicity.

“I need to be kept fully advised of the progress. The civil claims are highly political ones about which there has been considerable publicity in the past. Thus I need to keep the Solicitor-General fully advised of where we are with this opinion.”

Arnold was kept in the loop about the progress of the police investigation, all the while Crown Law having its own considerable evidence. As well as being appointed to the Supreme Court, he received a knighthood.

Despite the police struggling with the question of whether what Leeks did was medical treatment, Crown Law had ample evidence it wasn’t. While encouraging the police to keep investigating, Crown Law sat on some of that evidence, particularly evidence that the use of an ECT machine was not medical treatment. Both the UN and the Royal Commission would later find this investigation was a failure and police apologised at the Lake Alice hearing for that failure.

Detective Superintendent Tom Fitzgerald delivered that apology at the Lake Alice hearing in 2021.

“The New Zealand Police accept that in 2002 to 2010 period police did not accord sufficient priority and resources to the investigation of allegations of criminal offending at the Child and Adolescent Unit at Lake Alice Psychiatric Hospital. This resulted in unacceptable delays in the investigation and meant that not all allegations were thoroughly investigated. The police wish to apologise to the Lake Alice survivors for these failings. The police are committed to assessing policy and how national investigations are resourced and are committed to ensuring that this not happen again.”

Some of the reasons for that failure showed a casual disdain for the victims.

“In relation to the investigation period 2002 to 2006, in 2002 police received from Grant Cameron 34 statements from survivors who wanted the police to investigate their complaints of abuse. It appears 14 or 15 of those statements may have been lost. It is unknown when these 14 or 15 statements were lost but the schedule prepared by Mr Reid in 2005 only contains 20 statements. It is unknown whether any investigative steps were  taken in respect of these complaints but it appears unlikely.

“A 2018 review of the 20 statements held by Mr Reid revealed 11 of the 20 contained allegations of sexual and physical assaults. No file was entered in LES, the police document locator database, at the time. As a result, a number of file documents were not saved and can no longer be located.”

The victims weren’t even paid the respect of their complaints being filed properly, let alone investigated.

What the police didn’t say was that their investigations had been compromised by Crown Law. This wasn’t just way in the past – it had happened in the previous 12 months. When the UN made its finding that New Zealand was in breach of the Convention Against Torture in 2020, the police sent a formal email to Crown Law in February requesting a list of documents in different categories. These included any statements or affidavits from victims and also any medical reports.  

This should have led to Leoni McInroe’s file being forwarded to the police, which included a medical report from Dr Werry that found Leeks’ actions in her case were not medical treatment, it was medical misadventure. This was a crucial finding that, had it been given to the police earlier, could have significantly changed the direction of the previous investigations. Crown Law did not reveal this document to police in 2002, and it did not provide this document in 2020 either, despite its direct relevance to a criminal investigation into the torture of hundreds of children.

But then the Crown had withheld information from the UN as well. Judith Collins’ denial of torture in front of the UN was not some anomaly – it reflected a deep-seated pattern of behaviour across officialdom over years.  And the now-Solicitor General Jagose was a prominent figure.