Crown cover-up? Limiting liability – Part 5

On Crown Law’s website the role of the Solicitor-General is outlined very clearly.

“The Solicitor-General holds office as an official of government and is also the chief executive of the Crown Law Office. Subject only to the Attorney-General, the Solicitor-General is the government’s chief legal adviser and advocate in the courts … A key responsibility is to advise the government on constitutional questions.

“The Solicitor-General also exercises a number of specific functions within the Crown’s prosecution process. These include responsibility for the prosecution of criminal jury trials.”

Despite this legal duty, Crown Law has repeatedly protected the state apparatus from the long arm of the law. When it comes to perpetrators of abuse against thousands of children in the custody of the state, instead of the law doing its job, officials at the government’s main law agency and others put their hands in their pockets. Both Attorneys-General and Solicitors-General have been involved in key decisions.

Convicted paedophile Michael Ansell, who was the subject of allegations that were substantiated in the Earl White case, wasn’t the only perpetrator Crown Law was intent on protecting.

One victim who saw this ‘up close and personal’ was Keith Wiffin. He had ended up in Epuni Boys Home as a 10-year-old in the 1970s after his father died suddenly. Alongside the repeated violence, he was also sexually abused by staff member Alan Wright-Moncrief.

After carrying the damage of the abuse for decades, Wiffin decided to confront the state and hold it accountable for that abuse. He took legal action against the Ministry of Social Development in the 2000s, expecting the Crown to do the right thing and hold Wright-Moncrief accountable. Instead, Crown Law inflicted more harm.

Crown Law was aware Wright-Moncrief was convicted for sexual abuse of children at Epuni, but withheld this information from Wiffin and his lawyer Sonja Cooper. How he was treated by MSD and Crown Law over this time is the subject of a whole case study in the Royal Commission’s redress report. But of the many incidents recorded, one stands out for its cynicism.

In an internal email in Crown Law about Wiffin’s case in 2009, staff spoke about  “forcing Sonja to prove her allegations and then slamming her on our defences”.

In another email in 2009 from Crown Law to MSD, the Crown lawyer noted a deterioration in Wiffin’s mental health “on account of having to give evidence” and wondered how tenaciously he was pursuing his claim and whether, if offered psychological services, “he would settle or give up?”.

This attitude was not a one-off.  The same logic had been expressed in an earlier email to MSD in 2006 that “some plaintiffs may give up along the way … if they see another plaintiff having to go through the litigation process, face cross-examination etc”.

The Crown lawyer was musing on the idea of psychological stress and its impact on the victim’s mental health as a means to win the legal fight. This was despite Crown Law possessing knowledge that the allegations by Wiffin were against an individual who already had criminal convictions for sexually abusing children, knowledge it did not share with him or his lawyer.

As the Royal Commission observed: “The Crown, which was not lacking in time, resources or tenacity, had no compunction in trying to exert advantage over vulnerable claimants running short of all three.”

The second and third emails of those above were sent by Crown lawyer Una Jagose. Jagose is currently the Solicitor-General.

Jagose was deeply involved in Crown Law’s response to victims of state abuse before she became Solicitor-General. Given her relatively limited CV before she got to Crown Law – she’d worked in Consumer Affairs and Fisheries – it’s not unreasonable to wonder if her performance in this area of defending Crown agencies from abuse claims was part of what led to her ultimate promotion to the top job. 

‘Political and public service leaders spent time, energy and taxpayer resources to hide, cover up and then legally fight survivors to protect the potential perceived costs to the Crown, and their own reputations.’Royal Commission of Inquiry into Abuse in State Care

Wiffin’s treatment, and the attitude towards victims like him from the documented record above, was common.

The Royal Commission itemises a number of times cases Jagose was involved in raised issues of information being withheld from victims and/or their legal representatives and where there was a generally hostile approach to victims in litigation.

The commission says: “In November 2007, Keith’s lawyer wrote to Crown Law asking for staff records and any other information held by the ministry about Moncreif-Wright. The ministry’s Mr (Garth)Young responded a few months later that it held no information about any allegations of physical or sexual abuse by Moncreif-Wright. This was false. At that time, the ministry and Crown Law knew about his child-sex convictions and that they related to boys at Epuni Boys’ Home, and that former managers of Epuni Boys’ Home were aware that Moncreif-Wright had sexually abused boys there. Only five days after responding to Keith, an internal ministry memorandum noted that Moncreif-Wright was ‘convicted of sexual abuse of a boy in care in 1972 and dismissed from Epuni’.”

But not only did Crown Law and MSD withhold information, they held up criminal investigations.  The Royal Commission report details this:

“In September 2008, Keith’s lawyer Sonja Cooper received a letter from [Crown lawyer Sally] McKechnie. Keith gave evidence at the Royal Commission about this: ‘The Crown said that if I proceeded with the criminal process, they might be unable to speak to Mr Moncreif-Wright or otherwise investigate the allegation against him. This led me to believe that the Crown wanted to speak with Mr Moncreif-Wright and would do that as part of their investigation, unless I proceeded with a criminal complaint. My lawyer responded a week later and said I would not be proceeding with a criminal complaint at that stage. From my perspective, this cleared the way for Crown Law to speak to Mr Moncreif-Wright. I fully expected them to do that’.”

They didn’t.

Hostility from the top

Jagose said in her evidence to the commission the information should have been disclosed, but also could offer no explanation as to why it wasn’t. “I don’t know, I can’t answer. It should have been. The information was available, and the request was for that material. So as an answer, it is wrong or at least incomplete in a significant way.”

But when it was finally disclosed in 2009, it was Jagose that did so, in a letter to Keith’s lawyer Sonja Cooper. At that time she didn’t offer an explanation for why it hadn’t been provided earlier.

The Royal Commission commented: “It was not until more than a year later that Crown Law eventually disclosed Moncreif- Wright’s convictions to Keith. Even then, it offered no apology for the earlier failure to disclose the information. On the contrary, it said information about Moncreif-Wright’s criminal conviction was publicly available, so it was unnecessary for the Crown to disclose it. This justification is perverse: the simple fact is the Crown held information crucial to Keith’s claim and should have provided it.”

The pretence that MSD investigating allegations would hold up a police investigation was contradicted by how MSD treated another victim, Alf, a former gang member. Alf made a police complaint about John Drake, a staff member at Holdsworth who had raped him. MSD had received numerous allegations about Drake, who had worked in several state institutions, including Campbell Park, Hokio Beach School and Holdsworth, over more than 20 years.

McKechnie – the same Crown lawyer who had written the letter to Wiffin’s lawyer saying MSD couldn’t investigate if there was a police investigation underway – approached and spoke to Drake while he was being investigated by police. Police had said they would prefer she didn’t speak to Drake but couldn’t prevent her from doing so. McKechnie was representing MSD. Peter Hughes was the chief executive at the time. The police delayed investigating Drake and by the time they picked up the file again he was dying.

McKechnie was also one of the lawyers representing the Crown in the White case, which also happened on Hughes’ watch.

While the Lake Alice and White cases were the major legal cases, the strategy that underpinned them became the default setting with how other victims were treated. Many other victims were victimised again when they made complaints to MSD and police about the abuse they suffered when they were children in the custody of the state.

But although MSD was the ministry that had inherited the legal liability of what had happened under the auspices of the old Department of Social Welfare, it has always been Crown Law that has led the charge in defending the Crown’s interests. Even, it is now clear, if that meant withholding information on pedophiles and child abusers.

There’s no government employment contract or ministerial warrant that says it’s part of your job to run delays and technical defences for agencies that employed pedophiles and child torturers

This hostile treatment of victims that happened at the time of the Helen Clark Labour government carried on into the John Key National government. While Key himself may not have been completely au fait with the Lake Alice case (although he signed boilerplate apologies to claimants that came forward during his time as PM), his deputy Bill English and Attorney-General Chris Finalyson certainly were. English had been the Minister of Health under Jim Bolger ‘s 1990s administration, when the Lake Alice litigation first landed. Finlayson acknowledged in a letter to lawyer Sonja Cooper that the Crown knew Leeks’ behaviour wasn’t treatment. They both had obligations under the UN Convention Against Torture to investigate Lake Alice but failed to do so, despite demands from the UN. 

The other reason this is pertinent is that the police investigation into Lake Alice also drifted into National’s time in government and the Minister of Police at the time was Judith Collins. The police investigation concluded in 2010 when Collins was still minister, but the whole investigation was later found to be severely flawed and police had to apologise to victims at the Royal Commission hearing into Lake Alice.

The Ministry of Health had interviewed former Lake Alice staff but Attorney-General Chris Finlayson maintained legal privilege on most of those discussions.

Despite this knowledge of the facts of the abuse and the scale of it by individuals in multiple different roles across successive governments, there was a constant minimisation and denial of the need for a thorough inquiry.

As calls grew for an inquiry, this was played down by those who knew more than many what the extent of the abuse was.

In 2017 when media exposure gave the whole issue more visibility, RNZ reported “Bill English, then Prime Minister, questioned whether an inquiry would add anything, given that the extent of abuse was already ‘pretty well known and pretty well understood’.”

That observation hasn’t aged well – pretty well known to whom? Did he ‘understand’ the scale of the abuse that has now been revealed by the Royal Commission of Inquiry, an inquiry that he didn’t think was necessary? Did the government ‘understand’ that what happened at Lake Alice was torture? If so, why didn’t it uphold its obligations under the UN convention?

The Minister for Social Development at the time, Anne Tolley, said there wasn’t any need for an independent inquiry.

“There’s no evidence that it was a systemic problem,” she said.

After the first story I did on state abuse in 2016, Key said his government was: “Dealing with it in the appropriate way.”

The Royal Commission’s reports have roundly debunked those statements.

One person who isn’t mentioned at all in the Royal Commission’s report, but has been in the background for more than 40 years, is Winston Peters. 

If [Luxon] accepts that what happened at Lake Alice was torture, does he also accept that those who covered it up are accessories after the fact?

He first came into Parliament shortly after some of the abuse that had been occurring at Ōwairaka Boys’ Home and Lake Alice had been exposed by Oliver Sutherland in the mid to late 1970s. He was in Bolger’s coalition government in the late 1990s when the Lake Alice litigation was heating up. He was in the coalition government with Labour under Helen Clark and in Cabinet when the whole Lake Alice case was not properly investigated, which led to the UN finding New Zealand in breach of the Convention Against Torture. Peters has found much to be outraged about over the years, but has been quiet about this issue.

After the information that has come out from the Royal Commission – information that has been deliberately hidden from view by government agencies until now – a group of Lake Alice survivors filed a police complaint. The complaint alleges a number of high-level figures had committed obstruction of justice and were accessories after the fact to the crime of torture. 

The central allegation is that:

“The named individuals identified in this criminal complaint had possession of, or were aware of, evidence of crimes committed by employees of the state against the children of Lake Alice.

“The named individuals … failed to provide all relevant information to police investigations or failed to instruct others to provide that evidence to the police.

“There are likely to be other officials and ministers who were aware of the criminal nature of the offences at Lake Alice and they too should be included in a criminal investigation.”

These allegations, made nearly two years ago, are eerily similar to a finding in the Royal Commission’s final report, that:

“Political and public service leaders spent time, energy and taxpayer resources to hide, cover up and then legally fight survivors to protect the potential perceived costs to the Crown, and their own reputations.”

Currently no one has been held accountable for this. The State Services Act says state employees only enjoy immunity “for good-faith actions or omissions in pursuance or intended pursuance of their duties, functions, or powers”.

The actions by agents of the Crown described by the Royal Commission, which includes Crown officials, lawyers and ministers, could hardly be called good-faith or within their duties. There’s no government employment contract or ministerial warrant that says it’s part of your job to run delays and technical defences for agencies that employed pedophiles and child torturers.

Yet even though thousands of children have been harmed by the Crown, those who protected the state which had harboured perpetrators have not been held accountable.

One of the central planks of the latest police complaint by Lake Alice victims is the Crimes of Torture Act, particularly Section 3 – Acts of Torture. Part 2 of this section says “every person is liable upon conviction to imprisonment for terms not exceeding 10 years who … is an accessory after the fact to an act of torture. This section applies to any person who is a public official or who is acting in an official capacity.”

More than 50 years after the events of Lake Alice, Prime Minister Christopher Luxon has now come out and said in Parliament that what happened at the adolescent unit was torture, a statement his predecessors had gone to great lengths to avoid.

If he accepts that what happened at Lake Alice was torture, does he also accept that those who covered it up are accessories after the fact? If not, why not? The Royal Commission has said those holding high positions in the Crown have been covering up its crimes – does Luxon agree with that conclusion?

The reason it fell to him to announce and acknowledge torture was the decades of delays and denials by those who held high office before him. One of those individuals is now his Attorney- General.  Will former officials be held to account for denying the crime he has now admitted on behalf of the Crown?

For all its obsession with crime, the media failed to adequately cover a mass crime committed by the state against children over decades

Interestingly, the Crimes of Torture Act gives the final say to the Attorney-General on any decision to prosecute those who committed torture or those who covered it up. How can Judith Collins credibly hold anyone accountable for a crime she has wrongly denied even happened?

Collins’ denial of torture at the UN is problematic for another reason.

The New Zealand Government has also expressed a reservation about Article 14 of the Convention, which is about redress. On the Ministry of Justice website it states this clearly:

“The Government of New Zealand reserves the right to award compensation to torture victims referred to in article 14 of the Convention Against Torture only at the discretion of the Attorney-General of New Zealand.”

The UN has criticised New Zealand for this reservation – it effectively puts the decision-making power in the hands of the Crown, those responsible for the perpetrators. That decision-making role sits with the Attorney-General, in this case an individual who has previously denied what has now been established – torture. The Attorney-General is also a member of Cabinet.

The lack of consequences for the Crown is having another effect – there is no sufficient deterrent so the abuse of children in state custody is continuing to the present day.

No consequences

According to a report by the Independent Children’s Monitor, last year 519 children were abused while in the custody of the state. Most of them more than once.

Will the Government apology in November for the abuse of children in state custody include a promise to stop doing it? And stop covering it up? And legislation to punish those who do?

I’ve covered the abuse of children in the custody of the state, and the Crown’s response to those children when they became adults, for nearly nine years. It has often enraged me. But it has also baffled me – why was it viewed as okay by a succession of people in positions of power to treat these victims so badly, so dismissively? The only conclusion I can come to is the identity of the victims. 

First, around 80 percent of them were Māori. But further to that, many were extremely vulnerable in a number of ways and were easily dismissed because of that vulnerability. The Royal Commission’s report has a whole volume on Hokio and Kohitere and how the abuse in institutions like them led to horrendous outcomes for those individuals when they became adults. It states:

“The abuse they experienced has led to spiritual, physical, psychological, relationship, and inter‑generational impacts. Some survivors have spent most of their lives in jail or sought connection and support through gang membership with others who share similar experiences of abuse in care.”

The victims were viewed by those who held positions of power as powerless and incapable or unable to stand up to the institutions that failed them. The victims did stand up and fight in various ways for their whole lives, many never seeing any justice.

While many in positions of power knew the victims’ allegations were credible and extremely serious, the victims were also considered politically expedient. They could be ignored with impunity because, while they were standing up and speaking out, very few were standing up for them or listening.

Confronting what had happened to those who were on the edges of society would have meant unravelling a convenient narrative that repeatedly casts these victims as a menace to society, rather than victims of a society that has repeatedly failed them. The media has allowed political figures to continue maintaining this narrative, so the failure continues.

The real menace to our system is an officially sanctioned legal strategy against the victims, one that when it succeeded protected the Crown but also many perpetrators of abuse of children in state care.

All this was done so the Crown could save some money while abandoning the tens of thousands of victims to bear the true cost of its abuse, negligence and bad faith responses over more than half a century.

The political and official cover-up highlighted by the Royal Commission has had no direct consequences at all.

In his speech to Parliament when the Royal Commission’s report was tabled, Luxon said: “We like to think that abuse like this doesn’t happen here in New Zealand. But it did and it is a shameful chapter of our history that we must confront. Mr Speaker, this is a dark and sorrowful day in New Zealand’s history.

“It is important that, as a country, we bring to the surface and understand the hard truths of what happened so we can try and move forward together.”

One of the reasons New Zealand has told itself a delusional narrative of national innocence for more than half a century is because the truth was hidden from view.  It was hidden for a number of reasons – often the media wasn’t paying attention. For all its obsession with crime, the media failed to adequately cover a mass crime committed by the state against children over decades.

But more often it was because those in power not only ignored but also, according to the Royal Commission, actively and deliberately covered up the crimes of the state committed against tens of thousands of children. To borrow a phrase from an inquiry into another national disaster, there was an orchestrated litany of lies.

If Luxon truly wants to confront and address what happened, then he must hold accountable those who played in that orchestra.