Abuse in Care: Police prosecuted fewer than 1 in 10 referred cases

The inquiry found at least 200,000 people were abused, and even more neglected, by the state and faith-based institutions from 1950 to 1999.

More than 2300 survivors gave evidence to the inquiry with 110 referrals made to police.

Information released to RNZ under the Official Information Act showed, as of November, seven referrals had resulted in convictions and 11 remained open – including two scheduled for trial and one awaiting sentence.

However, 93 were closed without prosecution with 47 (42.7 percent) not meeting the test for prosecution under Solicitor-General’s prosecution guidelines.

Cooper Legal principal partner Sonja Cooper, whose firm had acted for hundreds of abuse survivors and victims, said she was not surprised by the statistic.

“To be perfectly blunt, it doesn’t surprise me in the slightest,” she said.

“I think it’s sad, but it doesn’t surprise me in the slightest.”

For a prosecution to be taken it had to pass two hurdles – enough evidence to prove the proposed charge beyond reasonable doubt and whether prosecution was in the public interest.

Cooper said she could see historic claims failing both tests in the eyes of prosecutors.

“We know in the past when we’ve assisted clients to make complaints to the police, we know that unless there is a reasonable cohort of victims – so at least three or four who are all making allegations against the same person – the police will generally not proceed,” she said.

“So you already need a solid mass of victims – even if it’s a very serious allegation – typically with the historic claims, the police have not proceeded if there’s only one victim or maybe two and have required at least three or four.”

Considering many survivors of abuse had themselves faced the criminal system, Cooper suspected police prosecutors also weighed their credibility as victims in deciding whether to prosecute alleged abusers.

“I think it’s a harsh test and particularly for survivors of abuse who’ve long had a lack of faith in the system this just reinforces why there is that lack of faith,” Cooper said.

Of the referrals made to police by the inquiry, 19 were closed because the suspected was dead (17.2 percent); in four cases the statute of limitations had expired (3.6 percent); suspects could not be identified four cases; in three the suspects were under the age of criminal responsibility (2.7 percent); and in 16 cases survivors did not wish to proceed with prosecution (14.5 percent).

“It is still the system silencing the victims in many ways,” Cooper said.

“It’s not giving them a public forum for their allegations to be tested, including before their peers, because many of these claims would be eligible for a jury trial.”

Police refused RNZ’s request for an interview but in written answers, Detective Inspector Warren Olsson, of the national criminal investigations group, said it was not possible to compare the prosecution rate of referrals from the Abuse in Care Royal Commission to other allegations.

“Obtaining sufficient evidence for historic matters is much more difficult than obtaining sufficient evidence for contemporaneous allegations,” Olsson said.

“This is one reason any historic allegation, not just RCOI-related allegations, may not proceed to prosecution. Another common reason is that the alleged offender in an historic allegation has died and then there are cases where victims ask police to investigate their complaint and then later decide they do not wish to proceed.”

The Royal Commission of Inquiry recommended police should open or re-open criminal investigations into possible torture or cruel, inhuman or degrading treatment or punishment, and that police should establish a specialist unit to investigate and prosecute historic and current abuse and neglect in care.

Police decided to maintain its current processes with then-Deputy Commissioner Tania Kura saying the organisation’s ability to investigate abuse and neglect had significantly improved since the period the Royal Commission investigated.

“Every report we receive is investigated appropriately, respectfully and with the sensitivity it deserves,” Kura said.

“Abuse and neglect are never acceptable in any context. Police is committed to identifying and prosecuting those responsible for these crimes, and continually improving our response to and support of survivors.”

But Cooper said she did not believe there had been a sea change in the attitude of authorities and investigators.

Survivor advocate Ken Clearwater said he was “shocked and surprised” so many referrals had failed to reach the threshold for prosecution.

The Royal Commission of Inquiry also recommended the Solicitor-General should amend the prosecution guidelines, including the establishment of a process for complainants to review the decision not to prosecute.

The prosecution guidelines should be reviewed, Clearwater said.

“In reality the Solicitor-General is part of the system that abused these kids,” he said.

“At the end of the day the crown are in charge of what happens and the crown were also in charge of those who abused the kids.”

Survivor Eugene Ryder, who co-chairs the board of the Survivor Experiences Service, said there was a case for reviewing the guidelines.

“It doesn’t seem fair that a subjective assessment has to be made because sometimes it may not be in the public interest to prosecute anybody, but the fact remains that a crime was committed,” he said.

Ryder was not surprised so many referrals ended without prosecution as traumatised survivors were often “blurry” about the details of the abuse they suffered and would struggle to meet the high threshold of the prosecution guidelines.

“That would be disheartening for a lot of survivors,” he said.

“It just seems quite damning that so many cases weren’t followed through with.”

Crown Law said its 2024 update to the prosecution guidelines responded to many of the issues raised by the Royal Commission, even though it was largely completed by the time the commissioners released their final report.

“The guidelines note that there is no statutory right to seek a review of a decision not to prosecute but that decisions not to prosecute must be explained to victims. The guidelines provide a detailed process for reviewing decisions in cases involving sexual violation,” Crown Law told RNZ.

“Decisions to prosecute should be made in accordance with agency’s prosecution policies and the test for prosecution as set out in the guidelines.

“As the Solicitor-General does not have visibility of the reasons behind the police decisions not to prosecute, she will not comment on those decisions. In general, the Solicitor-General does not think that the guidelines provide too great a scope not to proceed with prosecution or that the guidelines are being misapplied. She has confidence that people should be able to rely on decisions taken by prosecutors.”

Eight offenders had been convicted of dozens of sexual assaults and indecencies against 15 children as a result of referrals from the Royal Commission of Inquiry into Abuse in Care.

In four open investigations, suspects are currently believed to be overseas.