Crown cover-up? Full disclosure – Part 3

When Leoni McInroe came forward to the Royal Commission in 2020, she was extremely reluctant. An old friend Fete Taito, a former gang member who’d been through Ōwairaka Boys’ Home, was working with the commission. He was one of the few people who could have convinced her.  And he did.

She had good reasons to be wary. The Crown had dragged her through nine years of litigation and she still lost, at least in a legal sense. But her fight had laid down a paper trail that would bite the Crown in the proverbial.

When she sat down with lawyer Frances Joychild QC to go through boxes containing that paper trail, it only took a few minutes for Joychild to see the significance of her case.

When McInroe came forward her case was not on the radar of the Royal Commission. She was completely unknown to the police investigation that had been instigated in response to the UN finding that New Zealand was in breach of the Convention Against Torture for failing to properly investigate Lake Alice.

But Joychild immediately saw there was document after document central to the investigations of both.

She promptly called the police detective in charge of the Lake Alice investigation, telling him she was looking at McInroe’s files and they contained important evidence. This evidence was forwarded on and included a medical report written in 1995 by Dr John Werry that unequivocally said that what Leeks had done to McInroe was not medical treatment, it was medical misadventure.

The detective would later send an email toJoychild in September 2020 that stated: “The police investigation team were not aware of Leonie McInroe prior to receiving this documentation.”

They should have been aware and they should have received that documentation in February, eight months earlier. When the UN decision came down, the police had to open what was the fourth investigation into Lake Alice. As part of that process they sent a formal request to Crown Law, asking for a number of categories of documents, including any statements by victims and any medical reports. Crown Law had McInroe’s file which contained both, yet it was not provided to the police. This was despite the request being made under a section of the Privacy Act that meant they didn’t require a privacy waiver. McInroe’s name was also not on a list of claimants Crown lawyer Kate Hutchinson had forwarded to the police in March 2020. This was despite the fact McInroe’s claim was the first filed and the Crown had fought it in the courts for nine years.

When I asked Solicitor-General Una Jagose’s office in December 2021 if McInroe’s file had been revealed to the UN, the police or the Royal Commission, the answer was, No, No, and No.

Jagose said:“Crown Law did not provide Dr Werry’s 1995 psychiatric report to police for the purposes of the criminal investigation that commenced in 2020.”

She further said the Crown did not refer to McInroe’s case in its appearances at the UN “because it was not considered to be relevant to the communications in issue”. The communications in issue were whether there had been a thorough investigation and whether Lake Alice victims had been provided with proper redress. McInroe’s case was highly relevant on both fronts, particularly since Dr Werry’s medical opinion clearly addressed the question of whether Leeks’ actions were medical treatment or torture.

McInroe’s file was only provided to the Royal Commission by Crown Law in August 2020 after the commission directly requested it. By this stage they already had a copy but obviously wanted to see exactly what Crown Law held.

McInroe ended up being a star witness against the Crown in the Royal Commission’s redress hearing where she gave devastating testimony about how Crown Law had committed further abuse through the legal process that stretched out over nearly nine years.

She made a complaint to the Law Society about Jagose for the withholding of information from the police. In her response to the complaint, Jagose said:

“Crown Law counsels’ searches to locate potentially relevant documents was extensive and those searches did identify Dr Werry’s 1995 report as potentially falling within the scope of police’s request as well as 24 other medical reports/opinions (in addition to Professor [Garry] Walter’s report).

“Dr Werry’s 1995 report was, however, not subsequently provided to police (nor were the other 24 medical reports/opinions provided to police in response to the first group of requests from police). The reason for Dr Werry’s 1995 report not being provided to police is not explicitly addressed in Crown Law’s records and the responsible counsel who worked on this request has since left Crown Law.”

Jagose then said it appeared that this omission was because of consent. But the police request was made under a section of the Privacy Act that can overrule privacy, and McInroe was not on the list of claimants provided to police to seek a privacy waiver or consent. McInroe would have happily provided consent – had she been asked. 

Jagose’s explanation, such as it is, can’t get around the fact that Crown Law has consistently failed to provide full disclosure in a number of legal forums on Lake Alice, but also on other abuse by the state. This included Leoni McInroe’s litigation where the courts had to twice order Crown Law to hand over documents that were required but hadn’t been disclosed.

Despite not providing information to police during the 2020 investigation, Crown Law was still in control of the process in New Zealand’s response to the UN.

Andrew Coster, acting deputy police commissioner at the time, emailed a colleague: “The minister has asked a question … about who is holding the pen on the response to the UN committee’s report on Lake Alice. Is it us or Crown Law?”

His colleague responded: “Crown Law have agreed to step forward, and they will take responsibility for briefing jointly-interested ministers, once the NZ Inc response [is] ready to go back to the Committee in Geneva.”

This is the same Crown Law that had been withholding evidence from police, the UN and the Royal Commission, the same Crown Law that had protected Selwyn Leeks and other perpetrators during litigation, the same Crown Law that had failed to assist police in investigating and prosecuting Selwyn Leeks and others for decades, the same Crown Law that had tried to avoid using the word torture at the UN, or informing the UN about how it was upholding its obligations under the Convention Against Torture – this same Crown Law that was responsible for a position that was a breach of the UN Convention Against Torture, got to tell New Zealand’s cover story to the UN. This Crown Law was briefing ministers about how to uphold international law, law that New Zealand had breached because of Crown Law’s actions for more than two decades.

As the Royal Commission stated: “The conduct of the Crown went beyond mere neutral defence of claims and included: failing to disclose relevant information damaging to the Crown case; cross-examining witnesses to suggest survivors were lying and colluding even when the evidence showed they were more than likely to be telling the truth.”

Not only did Crown Law avoid giving information to the police in its investigations, its position meant the Government was also less than forthcoming in front of the UN during its obligatory appearances before the Committee Against Torture. Crown representatives zigzagged around the use of the word torture during these appearances and agonised in internal discussions about how to avoid the term.

The Royal Commission’s report on Lake Alice goes into this in some detail:

“The Ministry of Health’s chief legal advisor, Mr (Grant) Adam, wrote to Crown Law saying he had been wary of using the word ‘torture’ and was keen to ensure New Zealand ‘was not saying in an international environment that it carried out torture on its people, given that the Lake Alice ‘treatments’ were carried out without the real knowledge or condoning by the State’. For its part, Crown Law said the Crown had yet to publicly accept that Dr Leeks’ treatment was inappropriate or accept any liability.”

This characterisation is inaccurate – there was considerable “real knowledge” at the time as a number of state employees had raised serious concerns. There were complaints from as early as 1973 and yet the Department of Social Welfare continued to send children to Lake Alice. The department’s own staff were raising concerns throughout the 1970s.

The Royal Commission report continued:

“In December 2001, Ms Heather Ward from the Ministry of Foreign Affairs and Trade … said the abuse at Lake Alice could be considered torture as defined by the convention. Mr Adam replied that … there were ‘various views on whether it was a form of aversion therapy or not, but at this point in time it would not pay to dirty the waters’.”

It was actually Crown officials who were dirtying the waters by continuing to throw around terms like aversion therapy, when they knew that what was happening at Lake Alice was well outside the definition of that practice.

The delegations that appeared before the UN were studiously careful to avoid use of the word torture, obviously aware it would trigger obligations it wanted to avoid. They also knew what Leeks had done was completely inappropriate. The Crown just didn’t want to accept any liability.

This contradiction was highlighted by an internal disagreement about whether the word torture should be avoided. Again, Grant Adam was keen to avoid the term, not because it wasn’t true but because it would attract unwanted implications.

The Royal Commission goes into some detail on this: “In May 2004, a government delegation appeared before the Committee against Torture to answer questions about the report … Mr Ben Keith, a lawyer at Crown Law who worked on human rights matters, wrote to another Crown lawyer … arguing there was at least a prima facie case for calling the abuse torture, and that the committee would regard any suggestion to the contrary as ‘implausible’ and ‘a pretext to avoid the issue’.

“The final version adopted Mr Keith’s suggestion in part, removing the statement that the abuses at Lake Alice were ‘not torture’, although not stating they might have been, and referred to the abuses as ‘unacceptable’ – the same word used in the government’s press release in 2001 to describe the abuse. In the end, however, it was all of no consequence because the record of the presentation showed the committee never asked any questions about Lake Alice and the delegation never volunteered anything about Lake Alice.

“The fifth report, submitted in January 2007, also contained no mention of allegations about Lake Alice or NZ Police investigations. In a presentation to the committee in May 2009 in a follow-up to the fifth report, the New Zealand delegation acknowledged the existence of Lake Alice allegations by survivors. It said ‘procedures had been established … to investigate and compensate patients who claimed to have been mistreated’ at the unit.”

That’s a rather generous assertion – what procedures to investigate exactly? And again, the word ‘torture’ was avoided, replaced by the word ‘mistreated’.

Ironically, in an interview on Radio NZ in 1999 Helen Clark, then in opposition, referred to the mistreatment saying some of it was “outright torture”. But her language in apologies to victims as Prime Minister shifted, only referring to “mistreatment” and not accepting legal liability. The payments were referred to as “ex gratia” or a gift, as if the Crown were some kind of benevolent Santa Claus, instead of an institution that inflicted torture on children.

Clark applied for the top job at the UN in 2016 which was around the time the organisation started turning up the heat on New Zealand for its failures to investigate Lake Alice, failures that happened principally on Clark’s watch.

And again, Jagose’s admissions at the Royal Commission hearing into Lake Alice were clear – the Crown did know it was torture and knew at the time that what Leeks was doing was unacceptable even for the time. It just didn’t want to say so out loud.

This attitude towards torture continued under the National government of John Key, which included Judith Collins. The Royal Commission report on Lake Alice says:

“In May 2010, in a follow-up response to the committee, the Crown finally acknowledged there was truth to claimants’ allegations. It said ‘claimants’ personal statements and the medical records demonstrated that there had been improper treatment’ at the unit. Claimants’ allegations, it said, were ‘factually clearly established’, although it maintained the allegations all stemmed from the treatment they received while ‘under the care of one particular doctor’. That concession came two months after NZ Police announced the decision not to prosecute anyone over Lake Alice. The response made no reference to the NZ Police decision.”

Judith Collins sits in a long line of Ministers of Justice who didn’t fulfil their obligations under international law given the position taken by this country, including Phil Goff, Mark Burton, Annette King and Simon Power.

While government officials were trying not to make any mention of torture in front of the UN, evidence pointing towards torture was not made available to the police.

And evidence continued to roll in. In October 2008, staff from the Ministry of Social Development interviewed a former educational psychologist who raised concerns about the misuse of electroconvulsive therapy in 1974. He told MSD the adolescent unit’s use of “electrodes placed on the genitals and on the legs” put an end to any referrals to Lake Alice. But the Royal Commission could not find any evidence that MSD had passed on this information to the police. Peter Hughes was chief executive of MSD at the time.

UNCAT eventually cottoned on to the fact New Zealand was not being transparent about its investigations into Lake Alice.

The Royal Commission said: “In its concluding remarks on the sixth report in 2015, the UN committee said New Zealand had ‘failed to investigate or hold any individual accountable for the nearly 200 allegations of torture and ill- treatment against minors at Lake Alice Hospital’. Aotearoa New Zealand’s response was a reiteration of its previous position – survivors were entitled to take complaints to NZ Police if they wished, and some had done so, but NZ Police had found insufficient evidence to lay charges.”

This circular logic unravelled during the Royal Commission when it was evident the police had not been looking very hard and Crown Law had been withholding and/or sitting on evidence. And it wasn’t only torture – more than a dozen victims had made complaints that they were raped or sexually abused by staff and patients. None of these victims were spoken to by police, but police could still say with a straight face that there was insufficient evidence.

As the Royal Commission observed: “NZ Police were in no position to assess the adequacy or credibility of evidence without having taken that most basic of investigative steps – interviewing complainants, let alone taking any other rudimentary steps in an inquiry.”

In fact, there were numerous documents corroborating the allegations, including one that raised concerns about children being raped by adult patients. A letter from an educational psychologist in 1978 described how children were being put into an adult ward with criminally insane adults and were being sexually assaulted. The head of mental health, Dr Stanley Mirams, was one of the high-level officials who knew about this. Another was the superintendent of Lake Alice, Dr Syd Pugmire.

At the conclusion of the letter, the psychologist posed a question: “This poses to us as psychologists in the Department of Education acute ethical problems. Are we by our continued involvement in the hospital conniving at what is potentially most anti-therapeutic and perhaps criminally negligent?”

If others within government agencies had expressed even a moment of similar moral reflection, the outcome for victims could have been quite different.

But police were treating the victims as of no consequence. Detective Malcolm Burgess dismissed the credibility of one victim because he’d spent time in prison. But there were numerous similar allegations from a number of victims, including, “sexual violation by rape, sexual violation by unlawful sexual connection (anal and oral), indecent assaults and electric shocks to the genitals and breasts. The complainants were aged 10 to 16 at the time”.

Dr Garry Walter gave police a medical opinion in 2019, which only reiterated what he’d said in a report he’d given to the police investigation that ended in 2010: “It remains my opinion that applying electrodes on the genitalia of children as a form of aversion therapy was not an accepted medical practice in the 1970s, and is not an accepted medical practice now, and that in no way could this be justified as medical treatment.”

This kind of knowledge had been circulating throughout multiple government departments for decades, but despite this neither Dr Selwyn Leeks nor any of his staff were prosecuted. When the police did a proper investigation at the instigation of the UN, they found copious evidence that justified prosecuting Leeks but it was too late – he was unfit to stand trial and died a few months later.

New Zealand had been essentially treating UNCAT processes as a game that it wasn’t willing to play by the rules.

Despite its public posturing on the international stage, the National government knew exactly what had happened just as much as its predecessors did because it had the same evidence, evidence it did not fully disclose to the police or the UN. In a letter to lawyer Sonja  Cooper in 2009, then-Attorney-General Christopher Finlayson “said allegations made by Lake Alice survivors had been ‘verified’ by contemporaneous medical records and Dr Leeks’ form of aversion therapy using an ECT machine had been ‘indefensible even for its time’. As the Solicitor-General Una Jagose put it, the proof Leeks’ was using electric shocks as punishment and behavioural modification “was right there in the file”. 

These files and the evidence they contained were repeatedly withheld or not mentioned to those who had an investigative interest in establishing the facts and whether criminal offences had been committed.

Furthermore, Finlayson pressured the Human Rights Commission to not release a report it had prepared in 2011 that called for an independent inquiry.

The Royal Commission report states: “(Finlayson) said that an inquiry ‘would add nothing of value to the existing [resolution] processes in train’ and would be costly, and that the draft Human Rights report would ‘undo some of the valuable progress made … in resolving grievances fairly and informally’ if it was released. The draft report was never finalised or publicly released.”

The informality was the problem. There wasn’t a proper formal inquiry into what happened at Lake Alice or any other abuse of children in state custody. This was the central failure that was the basis of the UN’s finding in 2019 that New Zealand was in breach of the Convention Against Torture. Finlayson’s read on that was seriously misguided at best, disingenuous at worst – as Attorney-General he held primary responsibility to enforce New Zealand’s obligations under the UN Convention Against Torture. This included prosecuting officials who had been an accessory after the fact by mishandling evidence.

As for “valuable progress” and “resolving grievances fairly”, that was an opinion not shared by the actual victims. And the idea that an inquiry would add “nothing of value”, that depends on your definition of value. An inquiry was about finding out the truth, something that didn’t seem to be valued by either Finlayson or the government he was part of, perhaps because the truth would be too costly for their liking.

Despite this, the Ministry of Justice under Judith Collins told the UN that: “Between 2009 and 2011 the Human Rights Commission undertook an independent review of the state’s response to historic claims of abuse and mistreatment while in state care. On the basis that the processes had improved over time and that all claims would be resolved by 2020, the commission has not completed its report.”

That was not the basis on which the report was not completed. In previous reporting the Human Rights Commissioner of that time Ros Noonan told me there was pressure from Crown Law to kill the report. It eventually got its way.

“…to protect the potential perceived costs to the Crown, and their own reputations,” as the commission found.

The Crown response to Lake Alice and other state abuse was not a few rogue operators freelancing policy decisions on the hoof. In November 2006 there was an inter-agency meeting about state abuse that included representatives from Department of Prime Minister and Cabinet, MSD, Corrections, Crown Law, Ministry of Justice, Ministry of Education, Treasury and State Services Commission. Crown Law gave an overview of Crown liability at that meeting and the group held further meetings the following year as claims were rapidly escalating. There were earlier communications between government departments throughout the 1990s.

This fear of legal liability escalated with the knowledge of the seriousness of the abuse and the large scale of it. 

Successive governments have been extremely resistant to exposing the truth publicly because not only did it reflect badly on the Crown, it could impact badly on its legal and financial liability. This continued past the Lake Alice case. There were tens of thousands of victims who had been through other state institutions and the abuse they suffered posed even more legal risk to the Crown. 

One of those victims was Earl White, who went through Epuni Boys’ Home and Hokio Beach School in the 1970s where he was abused. But when he tried to hold the Crown accountable he was victimised again to protect the Crown from liability.