Crown cover-up? ‘Embarrassing, not traumatic’ – Part 4

His whole demeanour reeked of someone who’d been hollowed out and defeated. His nervous manner was accentuated by a tobacco-stained beard, from a habit he’d had since childhood.

When I first met Earl White (a pseudonym that was given to him by the court to protect his identity) in 2017, he gave every appearance of being completely beaten down by what he’d been through. 

Not only did that include neglect by his family as a child, but also abuse at the hands of the state. 

Furthermore, when he was an adult his attempt to hold the Crown accountable led to another abusive ordeal in the courts. He showed me around a dozen boxes in the corner of his lounge that contained the transcripts of the court case that had crushed him, but also crushed the hopes of other victims of state abuse of ever getting a fair hearing in a court.

His smoking habit was used against him in the court trial that bears his name, the White case, when the focus turned to his allegations of sexual abuse against the cook at Hokio Beach School, Michael Ansell. The lawyer representing the Crown, Kristy McDonald KC, pursued a line of questioning that connected the abuse with Earl being given cigarettes.

In his evidence to the Royal Commission White said: “The Crown’s lawyer [Kristy McDonald KC] was asking a lot of detailed questions about the sexual abuse by Mr Ansell. The judge interrupted and asked where the questions were going because it appeared that she was suggesting I consented to the sexual assaults as a child.” In response to the judge’s question, McDonald denied this was what she was doing.

What wasn’t mentioned at trial was the tactics of the Crown leading up to it. Among those tactics, the Crown knew Ansell had convictions for sexually abusing children at Hokio but didn’t provide this information to Earl’s lawyer, Sonja Cooper. One of the Crown lawyers involved was Una Jagose, who would later be appointed Solicitor-General. Another was Sally McKechnie.

Despite Justice Forrest Miller finding the sexual abuse had occurred at least 13 times, the Crown was found not liable because of the statute of limitations, meaning actions can be deemed out of time, and the ACC bar, meaning a statutory bar to suing for injury under the Accident Compensation Scheme.

But Justice Miller didn’t attribute White’s later life problems to that sexual abuse anyway.

In his judgment he said the sexual abuse Earl suffered was: “.. embarrassing for him, but not traumatic”.

The judge went on: “In my opinion, the sexual abuse at Hokio has not made a material contribution to his difficulties,” and then quoted a doctor that “only recently has sexual abuse acquired a ‘remarkable investment in our society as an act of utter abhorrence’.”

The judgment also addresses White’s capacity to keep pursuing the litigation against the state. “He was sexually abused, but I have found on the facts that he was not unable to connect that abuse to his later problems; indeed, the evidence fails to satisfy me that there is any material causal connection.”

And it says: “He is a shrewd person who is well able first to instruct counsel and then to persist in litigation.”

In July this year the Institute of Judicial Studies, the education arm of the New Zealand judiciary, published a paper ‘Responding to Misconceptions about Sexual Offending: Example Directions for Judges and Lawyers’ that gave advice on cases of sexual abuse. The study made specific mention of the impacts on male victims of sexual abuse.

The impact of sexual abuse on boys and men is multi-faceted and can cause severe trauma. Well documented longer-term impacts of sexual abuse include post-traumatic stress, drug and alcohol misuse, psychological/mental health distress, employment and relationship breakdown, as well as self-harm/suicide.

Barriers to men telling others and seeking help are various, including not knowing where to get help and fear of how they will be perceived. Accounts of male rape victims have demonstrated that expectations about men’s masculinity discourages men from reporting sexual attacks because of fear that they will be labelled effeminate and essentially weak. This may be linked with a self-perception that they should have been able to successfully resist the attack.

The paper also quoted from a Law Commission report from 2015, which said:  “Judges who sit on sexual violence cases should have access to detailed and up-to-date guidance on the instances in which guiding judicial directions to the jury may be appropriate in sexual violence cases and examples of how those directions should be framed.”

White’s case was in some respects the continuation of the legal tactics mapped out in the civil case taken by Leoni McInroe – use all technical legal defences. While McInroe’s case never got a proper hearing in court, because of an out-of-court settlement, those tactics were resurrected and deployed with intensity against White in 2007.

That option was likely chosen as a tactic in the White trial because a loss in that case would mean the courts would independently decide the penalty, something the Crown was desperate to avoid because there were potentially thousands of victims. Another option was listed – that the Crown go to litigation but waive the right to use technical defences. This option was not taken.

The decision in the White case was also a judgment on the tens of thousands of other victims who went through state institutions like Hokio and Epuni.

As White put it in his evidence to the Royal Commission:

“We got caught in the legal crossfire. I feel we were dragged through the courts so the Crown could use our case to test things like the Limitation Act and the ACC bar, so they could stop future claims being made, and limit what they paid other victims of abuse who came forward.”

The White case involved another round of people at the highest levels of government going up against victims of the state’s abuse of children. Instead of being treated as victims of the state, they were effectively treated as legal enemies of the state, a threat to its legal and financial standing.

Describing the legal fight with the Crown, White said he was put through “12 years of what felt like torture, and in some ways, it was worse than the abuse I suffered … it just kept going on and on. It was hugely stressful, and the depression and anxiety were inevitable”.

‘For me, amongst all the terrible things I was put through, the use of the private investigator was disgusting and unforgivable.’Earl White

What makes the protracted nature of the court case even more egregious was that the Crown knew one of the perpetrators was a paedophile. Ansell had been convicted of six indecent assault charges involving three boys at Hokio in 1976. Other information on file suggests police weren’t told about more serious offences, including anal rape, and there weren’t any further inquiries made about other potential victims.

Despite these convictions, the Crown went ahead with aggressively defending itself against White. The case was not just about proving the sexual abuse allegations – White also had to prove the abuse had caused him harm, or a mental injury. It had to be proven that there was a causative link between the abuse the claimant suffered and later impacts on his life. It was this legal hurdle that proved to be too high to surmount. The process of trying to prove this was also the cause of further trauma and distress.

In the lead-up to the trial, White had to give an interview to a psychiatrist who would appear as an expert witness for the Crown, Dr David Chaplow, head of mental health. “I didn’t feel comfortable talking to Dr Chaplow,” White is quoted as saying by the commission in its redress report. “It seemed to me that he was blaming me for everything that had happened to me, especially the sexual abuse. He asked me why I had let it happen to me so many times. I kept thinking, ‘But I was only a boy and Mr Ansell was an adult in a position of power’. I was really upset and distressed by this, and it made me even more depressed for many months afterwards.”

While the Crown repeatedly covered up and and failed to disclose information to victims, their lawyers and relevant agencies including the UN, it went further, in a misuse of its powers, to try to dig up information on victims to try and discredit them.

In the run-up to the White trial, MSD contracted private investigators to try to dig dirt on the victims and witnesses.

Earl White’s daughter and sister were approached by the private investigators, which he found distressing: “For me, amongst all the terrible things I was put through, the use of the private investigator was disgusting and unforgivable.”

Despite this breach of the public service code of conduct, the Crown accused White of an “abuse of process” by continuing the litigation.

White knew more about the private investigators than some MSD staff. It was later discovered the private investigators were present at MSD meetings but their real purpose was not disclosed to most of those staff.

An inquiry in 2018 into the use of private investigators exposed the fact that MSD and Crown Law had spent $90,000 on them during the White case. This almost wasn’t exposed – I had asked about the use of private investigators in 2016 and received a point-blank denial. Three times. When agencies were asked to provide information to that inquiry, Crown Law and MSD initially weren’t forthcoming about what had happened during the White case. It was only when the lead investigator was tipped off that they were asked again and disclosed what should have been provided immediately. Una Jagose was Solicitor-General at the time. Peter Hughes, who was the Public Service Commissioner, had been the head of MSD during the period in question.

Hughes retired earlier this year.

In his response to the report on private investigators, Hughes said: “It is never acceptable to gather information about people or groups for the sole purpose of managing reputational risk to an agency.” 

And yet that is exactly what had happened on his watch at MSD. Not only were the private investigators approaching witnesses, they were also talking to MSD staff without those staff understanding clearly who the investigators were or what their role was. The Royal Commission’s redress report found that: “In February 2007, MSD raised a concern about the reputational risk for the organisation if MSD staff knew that a private investigator was interviewing them. It was suggested the investigator be presented as part of the litigation team, rather than as a private investigator.” In short, MSD management was misleading its own employees.

Hughes’ deputy at MSD at the time was Iona Holsted, who was until early October the Secretary of Education.

The Royal Commission found Holsted reported concerns in a memorandum that lawyer Sonja Cooper was behaving unethically, and speculated that she might have influenced claimants’ memories when gathering evidence, and “may deliberately target periods of time when records are poorest” in the claims she made on behalf of her clients. The Royal Commission found these suggestions entirely unfounded and that the memorandum was not an isolated piece of correspondence.

During this whole period there was quite a bit of correspondence, not just between MSD and Crown Law. In November 2006 there was an inter-agency meeting about state abuse that included representatives from the Department of Prime Minister and Cabinet, MSD, Corrections, Crown Law, Justice, Education, Treasury and the 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.

This fear of legal liability escalated as the knowledge increased of the seriousness of the abuse and the large scale of it. Hughes and Holsted were in key positions of responsibility for these conversations as were a number of other senior bureaucrats, lawyers and members of Parliament. Steve Maharey was the minister for MSD during this period.

Last year Holsted was made chair of the Crown Response Unit, the government organisation set up to respond to the findings and recommendations of the Royal Commission. Despite victims involved in discussions with the Crown Response Unit expressing opposition to her holding this role once her previous statements had been reported in the media last year, she continued in the role until September and retired from the public service on October 11.

This very week, the Public Service Commission appointed another senior bureaucrat to lead its response to abuse victims. But he, too, had history in the whole legal and diplomatic minimisation of what had occurred.

The blind spot in the Royal Commission reports

The Lake Alice and White cases have become the twin pillars in the Crown’s responses to victims of state abuse for the past 30 years – if it can settle out of court it will take the route that is most beneficial and quick for the Crown or just wait out victims until they take the meagre offers made; if it goes to court then the Crown will set aside any moral position and use legal technicalities to protect itself, disregarding the damage already inflicted on victims and causing further trauma and stress, and ignoring its knowledge about the truth of the allegations.

Now, the Royal Commission’s report has made a number of findings that not only criticise this approach but put forward detailed recommendations that lay out alternatives. Those recommendations are like a vast minefield that the commission has sown that means the road ahead might look safe enough but is littered with legal danger for the Crown.

The commission’s final report says the Crown should effectively clear away the legal obstacles it has put in front of victims in the past, pay for the best legal advice possible for victims and let them skip the queue to get in front of the courts. 

The Executive branch has always been extremely reluctant to let the courts decide, because it takes the result out of its hands. But the Royal Commission is saying the Crown should now not only make it easier for victims to sue the Crown but should invite them to do so and pay for the best lawyers money can buy to do it.

Despite its resources and powers, the Royal Commission had limitations, the main one being scope. It couldn’t investigate or challenge legal decisions and it can’t instigate criminal charges.

This is probably to preserve the sanctity of the independence of the courts and police powers.

But that has its own problems. Some of the key figures who have been involved at key moments have gone on to be judges. Sir Terence Arnold, who was the Solicitor-General during the litigation around Lake Alice, went on to eventually be a judge on the Supreme Court.

And the decision in the White trial is still case law and still impacts on the ability of victims to hold the Crown accountable for what happened to them. 

The focus of the trial was on when Earl White became aware of how the sexual abuse he suffered had caused him harm, if it caused harm at all. The whole trial and the judgment spent considerable time weighing up whether the neglect and dysfunction in his family life were the cause of later difficulties in life, or whether it was the abuse, including physical violence and sexual abuse, that he suffered in state welfare institutions including Hokio.

‘I accept that the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the Court concludes that the allegation is proved.‘Justice Miller

The White trial wasn’t as concerned with the brute fact of whether the abuse happened and whether it was criminal. The judgment was about whether the abuse had impacted Earl later in life and whether he’d missed the deadline for bringing it to court. The Crown won the case on the statute of limitations and ACC bar, despite Justice Miller finding that the abuse had occurred.

In his judgment Justice Miller accepted Earl had been sexually abused at least 13 times, but then also states:

“I remain of the view that his early childhood experiences are the dominant, if not the overwhelming cause of his difficulties … There is also a likely genetic contribution although it is impossible to quantify. In my opinion, the sexual abuse at Hokio has not made a material contribution to his difficulties … It is embarrassing for him, but not traumatic.”

Somehow the judge could find that being sexually abused more than a dozen times wasn’t traumatic, despite the fact Earl had set fire to himself in a prison cell as an adult and has had life-long issues with addictions. Those difficulties were likely to be genetic, Justice Miller said, although he didn’t quantify this by pointing to evidence explaining why it was likely (apart from the “expert” testimony of Dr David Chaplow, who hadn’t mustered evidence either).

Could it be that it was impossible to quantify because there is no real evidence to link genetics in the way that the judgment does?

At one point early in the written decision Justice Miller discusses the standard of proof required between civil and criminal and stated: “I accept that the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the Court concludes that the allegation is proved.”

This High Court decision still stands, and can mean the abuse that children suffer in state custody, including sexual abuse and rape, would not be regarded as mainly consequential for a child’s healthy development and outcomes in later life.

The judgment attributes the problems victims of state abuse face as adults to genetic and environmental factors that preceded the state having stepped in on the premise of improving their lives.

My assessment, from years of research and dissecting the commission’s work, is that the High Court judgment reinforces the long-held assumption that there are some categories of families – particularly those who are poor and/or brown – that are incorrigible and in need of punitive measures.

The assumption seems to be that these families and their children are to be contained and controlled by a benevolent state because they are unfit or suffer from some immutable disorder.

These views were earlier reflected in a comment by a former Kohitere Centre principal who described children and young people as “social failures” and that institutional training was “a last-ditch resort for social deviants, with little intrinsic rehabilitative potential”.

What the High Court judgment in the White case also did was give the Crown what it had been aiming for when it developed its legal strategy to try to defeat Leoni McInroe during the 1990s – impunity, not accountability.

This was a legal strategy approved by successive Cabinets and Attorneys-General from the 1990s through to the present. This strategy took the view the Crown should not be liable/responsible for the abuse of tens of thousands of children.

By saying the Crown was not liable for the damage done to Earl White, the High Court ruling was also effectively saying the Crown is not liable for damage done to thousands of other children who suffered similar abuse or worse under the ‘care’ of the state – if other factors of upbringing could be blamed.

And the Crown has been happy for that case law to remain on the books. It defended the decision in the Court of Appeal, which upheld the decision. One of the lawyers acting for the Crown in both hearings was Una Jagose.

The powers-that-be obviously didn’t think there were flaws in Justice Miller’s judgment. He went on to the Court of Appeal and was made a judge on the Supreme Court, a seat he still occupies. Jagose was eventually appointed Solicitor-General, a position she still holds.

The Royal Commission wasn’t permitted in its scope to question or challenge court judgments like those in the White case, at least directly. But throughout its reports it repeatedly takes aim at the foundations this judgment was built on. 

Regarding the idea that there wasn’t a causative link between the abuse children suffered in places like Hokio and their later difficulties in life, the commission has one whole volume of its final report focused on one of the institutions White went through that clearly says otherwise.

The very title of its case study on Hokio Beach School and Kohitere underlines this – Cauldron of Violence: Hokio Beach School and Kohitere Boys’ Training Centre – A case study of the State’s role in creating gangs and criminals. In fact, all of the 16 volumes of the commission’s report refer to the links between the abuse suffered by victims and the impacts on their later lives and their children’s lives.

The report describes a “culture of extreme violence” at Hokio and Kohitere.

“Survivors were brutally punished and blamed for behaviours often caused by trauma, learning difficulties, disabilities and by the very abuse they endured.”

The Royal Commission summarised its findings regarding Hokio and Kohitere:

“At Hokio Beach School in Taitoko Levin and Kohitere Boys’ Training Centre in Taitoko Levin:

i. there were cultures of normalised and pervasive violence, with many experiencing severe corporal punishment, sometimes inflicted with weapons and to the genitals

ii. staff condoned and encouraged peer-on-peer violence through a king-pin system including violent ‘stomping’ initiations of new boys

iii. sexual abuse was pervasive

iv. solitary confinement was misused

v. racism and cultural abuse was normalised

vi. staff punished boys with extreme physical training and inhumane tasks, often physically assaulting them at the same time.”

The report describes prolific sexual abuse by a number of staff members in a number of institutions and threats and incidents of violence for speaking up about it.

But in its final report, the Royal Commission criticised the very basis of the White judgment – the statute of limitations and the ACC bar – and also recommended these legal obstacles should not only be removed but that victims should be given preferential access to the courts to sue the Crown.

It also said the legal fraternity should educate itself on the impacts of trauma from the abuse that happened to children in the custody of the state.

One of the crucial recommendations from its redress report has still not been implemented, despite being released two years earlier.

Recommendation 75 says: “The Crown should create in legislation: a right to be free from abuse in care; a non-delegable duty to ensure all reasonably practicable steps are taken to protect this right, and direct liability for a failure to fulfil the duty; and an exception to the ACC bar for abuse in care cases so survivors can seek compensation through the courts.”

The Royal Commission noted such legislation would make the Crown liable for abuse and “would allow any future victims of abuse to hold the Crown and other care providers to account”.

The Minister of Social Development in the last Labour government, Carmel Sepuloni, hadn’t read the report, let alone the recommendations, when she was interviewed about the Oranga Tamariki Oversight Bill in 2022. The bill was supposed to provide accountability. It did the opposite.

The Labour government under Jacinda Ardern pushed through the Oranga Tamariki Oversight Bill without including these recommendations in the legislation. Ardern ignored the very Royal Commission she set up.

There will be widely differing views among survivors about what redress should look like. But one thing they can all agree on is that they don’t want the abuse they suffered to happen to any other children. Currently there isn’t a mechanism to seriously hold the Crown accountable for abuse of children in state custody and Labour botched an opportunity to provide one. 

The parties that now make up the Government have also had the same redress report available to them for the past two years, but only now seem to be reading it because they are responsible for implementing it.

At what point will the Crown, whether a Labour or National-led government, pass legislation that makes the Crown legally responsible for the abuse of children in its custody? And will this Government accept the Royal Commission’s recommendations and do away with the legal technicalities it has relied on and let victims take the Crown to court to decide what the real punishment should be?

When I met Earl White recently he was still coughing and wheezing, although he was trying to give up the smokes. But his demeanour had changed. His evidence at the Royal Commission was validated by the reports that exposed and criticised the Crown’s behaviour in the trial that had caused him so much stress. The defeated person I’d met years earlier now had his fight back because he knew the tables had turned, not just for him, but for the thousands of victims who had been harmed by the court’s decision in his case. The Crown was now exposed.

“It’s their turn to be embarrassed,” he said.