Crown cover-up? When the state turned on its victims – Part 1

Crown cover-up?

A five-part Newsroom series looks at the political and legal strategy the Crown used for decades to marginalise and defeat claims from victims of state abuse and torture.

• Part 1 – When the state turned on its victims (this article)
• Part 2 – Legal trickery
• Part 3 – Full disclosure
• Part 4 – ‘Embarrassing, not traumatic’
• Part 5 – Limiting liability

It was a short statement, uttered in the dry atmosphere of an international legal forum in Geneva 10 years ago. It passed unnoticed at the time. To many New Zealanders the statement would appear uncontroversial, even self-evident. But the statement was wrong. Badly wrong. And the person who uttered those words should have known better. If she’d briefed herself properly she quite likely would have.

The statement was made by the Minister of Justice at the time, Judith Collins, on behalf of New Zealand. She was appearing before the United Nations as part of New Zealand’s regular obligation to give an account of itself and its adherence to various UN conventions. Usually New Zealand takes an approach of nothing-to-see-here nonchalance.

But in 2014 a delegate from Iran had the temerity to challenge New Zealand’s casual attitude.

“We would like to express our concern over a number of human rights issues in the country as follows.

“Ensuring safeguards to protect the rights of minorities from discrimination and marginalisation which pose them a higher risk of torture and ill-treatment.”

The Iranian delegate continued to rattle off a bunch of other concerns, such as discrimination in the justice system.

After other countries gave their views, Collins gave a response for New Zealand, which she read from prepared notes. However, she paused for emphasis and looked up from her notes when responding to Iran, singling out the allegation of torture.

“In response to Iran, I can advise that there is no state torture in New Zealand.”

The problem with this statement is that it wasn’t true.

Ten years later in July this year Prime Minister Christopher Luxon stood up in Parliament and admitted that victims of the Lake Alice adolescent unit were tortured when the final report of the Royal Commission was tabled.

“I humbly stand before you in this house to offer a long overdue apology to the survivors of Lake Alice. I am sorry that it has taken so long for this acknowledgement of torture.”

“I know that for some Lake Alice survivors, the acknowledgement today that what happened to you was torture is something for which you have been waiting for decades.”

But why has it taken so long? And why the contradiction between what the Prime Minister is saying now and his current Attorney-General said 10 years ago?

In the final report from the Royal Commission of Inquiry into Abuse in Care, some of the most shocking statements in the thousands of pages are not necessarily about the abuse.

And there are plenty of shocking statements about abuse – children being electrocuted on the genitals; prolonged periods of solitary confinement; institutions that were steeped in violence; chronic sexual abuse. The list goes on and on. The report also estimates that approximately 200,000 children or vulnerable adults were abused between 1950 and 2019.  In some institutions around 80 percent of those victims were Māori.

But focusing attention on the abuse of children in that list runs the risk of missing what happened to the victims when they confronted their abuser, the Crown, when they were adults. The commission’s report has quite a few things to say about this too. Essentially, a long list of people in positions of power covered up this systemic and large-scale abuse over decades, often with full knowledge of the allegations and their credibility. Two statements from the commission’s report make this plain:

“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.”

“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 report doesn’t always specify individuals explicitly in an overarching narrative. Rather, the details of what it is referring to in these paragraphs are scattered throughout the thousands of pages of its final report, but also in its previous reports on specific investigations. Many of the names and details are buried in footnotes, particularly in its redress report and its report on Lake Alice. At times the institution concerned is named but the details of who was taking certain decisions and actions are only mentioned in the references.

But the evidence for its conclusions is there and it is comprehensive. Members of Parliament, high-level bureaucrats and Crown lawyers spent tens of millions of dollars across decades on strategies that the Royal Commission found amounted to a ‘cover-up’ of a system of abuse against children.

By the time Collins gave her answer to the UN there had been two decades of detailed knowledge within Crown Law, Ministry of Health, Ministry of Justice, Ministry of Social Development, Treasury and other agencies. This knowledge was not merely an awareness. This knowledge was acted on in ways that were designed to silence victims and deny their allegations to protect the Crown from liability, even though multiple individuals had more than enough knowledge to be aware that the allegations were true and the acts committed were criminal.

At the time she made the statement Collins was part of a government that had access to and knowledge of evidence that proved that children in the custody of the state had been tortured in the adolescent unit of Lake Alice psychiatric hospital in the 1970s. This evidence was known to government officials from the 1970s right up to the present, but has been denied and hidden from those with a responsibility to prosecute those responsible, or not acted on when it was available. 

Five years after Collins made her false statement in front of the United Nations, the UN Committee Against Torture made a finding that New Zealand was in breach of the Convention Against Torture. The breaches were because New Zealand had failed to properly investigate credible allegations of torture and failed to provide redress to victims. Collins was Minister of Police and Justice during the period of that failure, and the police had to later apologise for a failed investigation that concluded on Collins’ watch.

Since then the Royal Commission of Inquiry found nearly two years ago that what happened at Lake Alice was torture as defined by the UN. This was partially based on an admission by the current Solicitor-General, Una Jagose, when she gave evidence at the Royal Commission.

A recent Court of Appeal case also referred to what happened at Lake Alice as torture.

A long list of people in positions of power covered up this systemic and large-scale abuse over decades, often with full knowledge of the allegations and their credibility

Collins’ denial was not a mere slip-up. She was the Minister of Justice from 2011 until August 2014. The Ministry of Justice is responsible for New Zealand’s response to the UN regarding its obligations to uphold the international conventions it has ratified, including the Convention Against Torture.  The stance she took on behalf of the New Zealand government cost the victims another 10 years of waiting.

But Collins had an involvement before this – she was Minister of Police from the end of 2008 until 2011. It was during this period that a police inquiry into Lake Alice failed to charge anyone and failed to carry out even the most basic investigation. While she could be given the benefit of the doubt because the investigation was an operational matter, the inadequacy of the police investigation had come to the attention of the UN.

The Royal Commission reported that in 2012 “United Nations special rapporteur, Ms Felice Gaer, wrote to the government saying the committee was concerned there had been no ‘prompt, impartial and effective investigation into all claims of abuse’ at Lake Alice and no prosecution of ‘alleged perpetrators of the torture and ill-treatment perpetrated there’.”

“Although New Zealand had ratified the UN Convention Against Torture in 1989, after the events of Lake Alice in the 1970s, the convention still created a legal obligation to investigate credible historic allegations of torture, prosecute perpetrators and provide proper redress to victims.” 

A masterclass of omission

In August 2013 the Ministry of Justice published New Zealand’s 6th periodic report on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The long-winded title of the document underlines its gravity. It is a major part of New Zealand’s regular reporting obligations to the United Nations. Signing up to international law requires that you explain to the international community what you’re doing to comply.

Part of the report is taken up with answering specific questions about New Zealand’s investigation of both Lake Alice and the abuse of children in state custody.  Collins would have been extensively consulted and signed off on its contents. As the responsible minister the document is effectively a statement by her on behalf of New Zealand.

Collins’ appearance at the UN in 2014, and her explicit denial of New Zealand committing torture, was based on this report. The report is a masterclass in bureaucratic omission and obfuscation.

The periodic report from New Zealand said the “police has previously investigated complaints relating to allegations of abuse at Lake Alice and no charges were laid following that investigation”. 

But the periodic report does not mention that none of the victims that had made complaints about being sexually abused and raped were not spoken to by the police. This investigation was later found by both the UN and the Royal Commission to be severely flawed for a number of reasons. Police had to apologise to victims at the Royal Commission hearing.

Gaer also asked whether the government intended to look at the adequacy of the New Zealand Police investigation, including complaints that NZ Police had failed to interview many survivors, and whether it planned to reopen the investigation.

In response the periodic report says that New Zealand did “not propose undertaking any further review”. A review would have meant assessing whether the police had done their job properly when Collins was minister.

The periodic report mentions an assessment of an out-of-court settlement for Lake Alice victims by Justice Jeremy Gallen. But there is no mention of an unsolicited report Gallen wrote in 2002 about the sexual abuse that he identified as being substantiated or that the methods used by Dr Leeks were “outrageous in the extreme”. 

“These are children with whom we are concerned. The ECT (electroconvulsive therapy) was plainly delivered as a means of inflicting pain in order to coerce behaviour,” Gallen said. This is the very definition of torture and this document had been available to government agencies and ministers since 2002. Yet Collins denied it.

Gallen’s report mentions that children were given electric shocks on their head, limbs and genitals. He also recounted that at least one child was put in a wooden cage with a seriously deranged adult patient as a form of punishment.

The periodic report from New Zealand also responded to criticisms that the Attorney-General made the final decision whether or not to prosecute someone for committing torture: “If allegations are clear that an act of torture may have been committed, the Attorney-General would consent to prosecution.” 

But the Attorney-General at the time was Chris Finlayson, who had admitted in a letter to lawyer Sonja Cooper that the allegations made by the victims of Lake Alice had been verified, and that what Leeks was doing was not legitimate medical treatment. Yet he made no prosecution.

The periodic report also stated, in a rather circular logic, that: “There have been no instances of compensation of victims of torture, as none of the cases about torture or ill-treatment have resulted in prosecution.”

This statement would be totally debunked in 2020 when the UN found New Zealand in breach of the Convention Against Torture for failing to properly investigate, and failing to provide victims with adequate compensation.

The periodic report also mentioned the White case (more on that later) which was a civil case taken by two brothers who were abused in state welfare institutions. It reiterated the court’s finding that: “The claims were unsuccessful because the court could not find a causal link between their experiences in care and their subsequent damage.” 

Members of Parliament, high-level bureaucrats and Crown lawyers spent tens of millions of dollars across decades on strategies that the Royal Commission found amounted to a ‘cover-up’ of a system of abuse against children.

This is somewhat lacking in detail or nuance – the judge found that one of the victims had been sexually abused at least 13 times, but concluded that this was embarrassing, not traumatic.  

The UN wasn’t convinced by New Zealand’s response in the content of the periodic report. The report would have been available to delegations from other countries and would have been the basis for the questions from the Iranian delegate. The question about torture from Iran was what prompted Collins’ verbal denial that New Zealand committed torture.

When the Royal Commission of Inquiry into Abuse in Care investigated it found this denial did not stand up to scrutiny either. At the time Collins made that denial the Crown had spent the previous 20 years trying to hide or deny the evidence that the New Zealand state had indeed committed acts that met the definition of torture. And the victims were children in the custody of the state. 

By the time Collins gave her answer to the UN there had been two decades of detailed knowledge within Crown Law, Ministry of Health, Ministry of Justice, Ministry of Social Development, Treasury and other agencies. This knowledge was not merely an awareness. This knowledge was acted on in ways that were designed to silence victims and deny their allegations to protect the Crown from liability, even though multiple individuals had more than enough knowledge to be aware that the allegations were true and the acts committed were criminal.

The Crimes of Torture Act, which was passed as part of New Zealand’s obligations under the UN Convention, puts a number of obligations on the Attorney-General. Collins’ denial now brings into focus her position as Attorney-General.

Who knew and when did they know it

The adolescent unit at Lake Alice psychiatric hospital was the first case where the Crown faced civil litigation. The hospital was set up for criminally insane adults, not vulnerable children. But in the early 1970s the Department of Social Welfare starting sending wards of the state to Lake Alice, where they would be tortured by Dr Selwyn Leeks and his staff with electric shocks and other cruel and degrading treatment. They were also raped and sexually abused by adult patients and staff.

There were a number of people who gave evidence at the Royal Commission’s redress hearing and the hearing on Lake Alice itself. But speaking on behalf of the Crown was the Solicitor-General Una Jagose. Jagose had been deeply involved in the Crown’s response to state abuse both as a Crown lawyer in the 2000s and more recently as the Solicitor-General, a role she took up in 2016. If anyone was aware of the Crown’s response to allegations of abuse, it was her.

Central to the commission’s inquiries into Lake Alice was the question of whether Leeks’ use of an electro-convulsive therapy machine was legitimate medical treatment or a heinous form of torture inflicted on children. There were many expert witnesses who came down unequivocally on the latter. One compared it to tactics used by the Gestapo. Jagose could only concur.

In her evidence Jagose said: “The record itself showed that Dr Leeks and other staff were using ECT and other forms of things that are treatment as behavioural modification and/or punishment for those purposes and not for treatment.”

But she was pushed to say more about what the Crown knew. Speaking of the litigation that started in the 1990s – which included Leoni McInroe, who was the first to file a civil case – Jagose acknowledged that the Crown knew from its own files that Leeks’ methods were unacceptable as medical treatment.

“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, an unacceptable way to treat those children, and didn’t put any of them to proof over that because the proof was right there in the file, in the very systems that the hospital and Dr Leeks ran,” she said.

So the Crown had always known that what Leeks was doing was not acceptable treatment. It knew this because it had documentary evidence in its own files. Despite this knowledge, the Crown responded to victims in ways that put them through more trauma by denying their allegations or expecting them to prove them in a court; the Crown held overwhelming documentary evidence these allegations were true but withheld this evidence on numerous occasions.

The coup de grace arrived when Jagose was asked point-blank whether what was inflicted on children at Lake Alice met the UN’s definition of torture.

Jagose had to admit that it did, although she wound her way to an answer through a long series of legalistic qualifiers.

“Torture has three elements. Infliction of pain and suffering, mental, physical; no doubt that has been met. By an arm of the state or a person acting on a part of the state; also no question that has been met.

“The key question is the purpose for which that pain and suffering was inflicted. The allegations are that it was done for a punishment and where those allegations are made out by a fact-finder, might be the Inquiry, it might be the court, then that is three elements met – torture.

“As alleged, that conduct meets the three criteria for torture.”

It was this answer, given under oath on behalf of the Crown, that became the cornerstone of the Royal Commission’s finding that what happened at Lake Alice was torture, although there were plenty of other bricks of evidence to build that conclusion.

Jagose’s admission and the Royal Commission’s finding of torture compounded a previous finding from another institution – the United Nations. The UN’s Committee against Torture had made a finding in 2020 that New Zealand was in breach of the Convention Against Torture. This finding was in response to a complaint filed by the Citizens Commission of Human Rights on behalf of Lake Alice survivor Paul Zentveld, alleging that New Zealand had failed to investigate the Lake Alice allegations properly, as it was required to do under the Convention which New Zealand ratified in 1988. This ratification was then embedded in domestic legislation in the Crimes of Torture Act (more on this later).

One of the outcomes of the UN’s finding  was that the police had to then open up another investigation into Lake Alice – the fourth – after telling victims for decades that there was not enough evidence to prosecute. This position became untenable with the UN’s decision and under the scrutiny of the Royal Commission. The police gave a formal statement at the commission’s Lake Alice hearing, apologising to victims for its failure to properly investigate. That included a failure to even speak to more than a dozen victims who had made formal complaints that they’d been sexually assaulted and raped.

The police investigation in response to the UN finding found there was more than sufficient evidence to prosecute Leeks and other Lake Alice staff, but it was too late because Leeks was unfit to stand trial and died shortly after.

Despite this, when police made formal requests for specific categories of documents to Crown Law in early 2020, some crucially relevant documents were not given to police. This included the file of Leoni McInroe that included a medical report stating unequivocally that what happened to her at Lake Alice was not medical treatment, it was medical misadventure. This report was written in the 1990s and had it been acted on in the legally appropriate way, the outcomes would have been very different. For one, it’s likely that Leeks would have been convicted of crimes. But that alternative history didn’t happen. What did happen is this report and other evidence was not given to a number of agencies, including the police, sending the whole trajectory in a different direction. It was not given to police during the investigation that concluded in 2010 when Judith Collins was Minister of Police.

But Una Jagose’s involvement in the Crown’s response to the abuse of children in state custody long predates her evidence at the Royal Commission. She has been involved over the past 20 years, with a number of others, including Collins. 

“Political and public service leaders spent time, energy and taxpayer resources to hide, cover up and then legally fight survivors…”

So who else was aware of these crimes and what was their response?

The Royal Commission’s report makes clear there was a repeated failure to disclose “relevant information damaging to the Crown case”.

The UN’s finding that New Zealand was in breach for failing to investigate Lake Alice can principally be laid at the feet of Helen Clark’s government, but it had its genesis even earlier and continued on into the John Key government. There was a failure to look for information and a failure to provide it to the relevant authorities to do their job to investigate criminal offending against children and breaches of international law.

There had been failures to investigate in the 1970s when racial justice advocate Dr Oliver Sutherland and his colleagues at ACORD (Auckland Committee Opposed to Racial Discrimination) exposed abuse occurring at institutions like Owairaka and later at Lake Alice. An inquiry into Lake Alice at this time was essentially a whitewash and crucial evidence was withheld. 

But when victims became adults they began filing civil litigation against the Crown in the 1990s regarding Lake Alice. The first victim to file a case was Leoni McInroe, represented by Rob Chambers QC. Another group of nearly 100 victims were later represented by lawyer Grant Cameron.

Bill English was the minister of health in the National government of the 1990s before the role was handed off to Wyatt Creech. During internal discussions regarding the claims made in civil cases about Lake Alice, officials and ministers from other government departments were also alerted to allegations of sexual and physical abuse in social welfare homes. Many of the Lake Alice victims had been through these institutions before they got to Lake Alice. Agencies including Social Welfare, Treasury and the Department of the Prime Minister and Cabinet were looped in to these discussions. Dame Margaret Bazley was chief executive of the Department of Social Welfare at the time.

In 1998 a paper was presented to Cabinet by English and countersigned by Dr Janice Wilson, director of mental health and chief advisor.

Collins’ denial at the United Nations that New Zealand committed torture was not only not true. It was also an insult to the victims and continued the 50-year injustice they’d experienced since their childhoods.

The central claims and the facts underlying the civil claims around Lake Alice were clearly known to the government by this stage. The Cabinet paper outlined them, stating:

“Their principal allegation is that they received paraldehyde and/or unmodified electroconvulsive therapy (ECT) for the purpose of punishment. Unmodified ECT is ECT without anaesthetic or muscle relaxant to counter the side effects of this form of treatment. Paraldehyde is an anti-convulsive drug. It can cause extreme pain when used extramuscally.

“This treatment is alleged to have been administered by nursing staff at the hospital and by the unit’s head Dr Selwyn Leeks. The former patients also allege that they were sexually and physically abused by adult patients at the hospital and by staff.

“The claims relate to the period 1972 and 1978. At that time the majority of the former patients ranged in age from 10 to 14.

“At that time three government departments were responsible for providing services for the former patients. The Department of Health operated Lake Alice Hospital and employed the hospital’s staff. The Department of Social Welfare had responsibility for many of the former patients who came to Lake Alice from the department’s children’s homes.”

The paper proposed that Cabinet “authorise the minister of health to manage the strategy” and “with the ability to delegate matters as necessary to officials in the Ministry of Health and Crown Law Office”.

Janice Wilson also alerted English that: “some of the former patients also allege that they were physically and sexually abused whilst in social welfare homes by children and staff of these homes”.

“There is a real possibility that the scope of the claims [about Lake Alice] may be broadened to include the Department of Social Welfare in particular (many of the claimants were wards of that department and some have alleged physical and sexual abuse while in that department’s custody), and possibly also the Department of Education.”

The delegation of the strategy to Crown officials and lawyers meant there was a continuity between the National government and the Labour government that took over at the end of 1999. And the strategy started under National consolidated and escalated under Labour with many of the same people advising the government and driving that strategy. The priority of that strategy was to minimise the legal and financial liability for the Crown, not to hold state employees responsible for the torture and abuse of children.

Despite the information he was receiving in detailed ministerial briefings, English hedged in his public statements at the time.

The path not taken

In a story on Radio NZ in 1999, the health portfolio had passed to Wyatt Creech. But the story said “the government doesn’t deny there was systematic abuse and torture of troublesome children sent to Lake Alice in the 1970s. Bill English, who was the health minister until January this year, says the allegations are shocking and he is convinced at least some of the cases are true. But 18 months of discussion with representatives of the victims have failed to establish even the basic facts of what went wrong, how many children were mistreated, and who was responsible.”

English would surely, though, have had to have known the most basic fact of what had happened and who was ultimately responsible for Leeks’ torture of hundreds of children – the Crown.  And it was the Crown that held the largest body of documentary evidence. But if Leeks were held fully responsible, the Crown would be legally and financially liable.

English had the options presented to him at the time to take a pathway that would have held Leeks and his staff criminally responsible.

The Royal Commission noted that: “there were opportunities for Crown agencies to take steps that may have led to accountability. For example, in 1997, the Ministry of Health told their minister he had options to establish further investigations or inquiries, which in turn might lead to referrals to NZ Police or complaints to medical authorities.”

English didn’t take those options. But he would not be the only one.

Cabinet papers from 2000 onwards show then-Prime Minister Helen Clark and Annette King were clearly briefed on the same facts that English had received. These documents and others showed they both knew the key facts that amounted to children being tortured, but in papers under their name expressed concern to limit the legal and financial exposure. 

In May 2000 Clark and King presented a paper to the Cabinet Policy Committee that summarised the key facts and the approach the government would be taking. The basic gist of the paper was that the facts as alleged were true and presented a considerable liability for the Crown. The options presented to the committee by Clark and King were either an out-of-court settlement that avoided any precedent and allowed the Crown to control the process, or using technical legal defences if the matter ended up in court. This roadmap set out by Clark and King became the template for the Crown not only for Lake Alice but for the response to victims of state abuse in other institutions. Those victims numbered in the tens of thousands.

The paper lays out what was known at the very top, including by the Prime Minister, minister of health and Crown Law:

“At the heart of these patients’ complaints are allegations that they were detained unlawfully at the unit, that the Crown breached fiduciary duties owed to them (in many cases the patients were also wards of the state) and that the ECT and paraldehyde treatments, alleged in several cases to have been administered as a form of punishment, constitute assault and battery. Crown Law advice is that the claims present a considerable litigation risk to the Crown.”

The claims presented a considerable litigation risk because there was more than enough evidence to prove them in court. Describing the nature of the claims, the paper from Clark and King states:

“These include allegations of deliberate infliction of harm by state employees on adolescents, many of whom were wards of the state. Client statements graphically depict situations where they believe that punishment was given out under the guise of medical treatment. Many of the claimants came from abusive situations in their homes and other institutions yet they single out Lake Alice Hospital Adolescent Unit (LAAU) as the most abusive environment and primary cause of their later difficulties.”

In a summary of facts, Clark and King included the following:

• The legal basis upon which patients were admitted to and held in the LAAU is often unclear and admission procedures were generally lax;
• A number of the patients in the LAAU were in all probability manifesting severe behavioural problems rather than suffering from a diagnosable mental disorder. This also affects the legality of admission procedures;
• There was very limited control exercised over LAAU by the superintendent of Lake Alice;
• The placement of the unit at Lake Alice necessarily meant that the adolescent claimants were surrounded by (and on occasion housed in the same ‘villa’ as) adult psychiatric patients often suffering from serious (and possibly dangerous) mental disorders. This posed at least a risk of physical harm to the adolescents concerned;
• Patients at the LAAU were on occasion placed in “isolation” (ie in solitary confinement);
• Injections of paraldehyde (a sedative) were routinely given to patients at the LAAU. Regardless of whether such injections were clinically indicated, they would have been extremely painful;
• ECT, in both modified and unmodified form was also routinely administered;
• There is limited documentary evidence that ECT/paraldehyde was administered to certain LAAU patients as a form of behavioural control rather than as medical treatment.
• In addition to the Ministry of Health’s exposure to liability, there remains a secondary risk to both the Department of Child, Youth and Family Services and the Ministry of Education (which ran a school at Lake Alice). The scope of claims may be broadened as some of the claimants allege physical and sexual abuse while in Department of Social Welfare institutions also. There are also statements to the effect that department staff were aware of the painful treatment regime at the Lake Alice adolescent unit and even used it as a threat.

Despite knowledge these serious allegations were credible, Helen Clark and Annette King’s representations to Cabinet aired ways to use legal technicalities to defend the Crown. This tactic would be deployed in a later case, the White trial (more on that later).

“The Prime Minister and the minister of health recommend that the committee … direct the Ministry of Health to seek Crown Law advice on the likelihood of success of technical defences.”

They also noted that officials were unable to provide concrete estimates of the costs but it will “reduce the government’s operating surplus in the year of settlement”.

In weighing up the advantages of going down a court litigation pathway, Clark and King’s paper said:

“The principal advantages of the litigation approach are:

• the onus is on the plaintiffs to establish the factual and legal basis of their claims
• a denial of liability by the Crown may succeed.”

To put it another way – make the victims prove the abuse in court and let’s see if we can get away with it. Although it didn’t go to court, this same tactic was used as a implicit threat if an out-of-court settlement didn’t go the government’s way.

What was not mentioned is that the facts that were known to Clark and King and Crown Law created an obligation under the UN Convention Against Torture to carry out a thorough fact-finding investigation. This didn’t happen and the UN would later find that New Zealand was in breach of the convention for this failure.

Clark missed an earlier chance to carry out an investigation into Lake Alice in the late 1980s. She was minister of health from late 1989 to the end of 1990. The case of Chelmsford psychiatric hospital surfaced in Australia where abuse and experiments with different methods such as deep sleep therapy led to a number of deaths, which led to a Royal Commission of Inquiry from 1988 to 1990. A limited inquiry into deep sleep theory was carried out by the Ministry of Health in New Zealand, which concluded in August 1990. The report was focused on Cherry Farm, but there were similar practices going on in Lake Alice that were never investigated. 

And so this failure to investigate continued on into the 1990s and 2000s.

Had a thorough investigation been carried out by police, it would have inevitably led to criminal charges against Leeks and a number of his staff. But had they been criminally convicted it would have also put the Crown in a position of facing indisputable legal and financial liability. And this is what the Crown appeared determined to avoid.

The knowledge of what had happened pervaded a number of government departments and key figures in high-level roles. The Cabinet paper from Clark and King was widely distributed and consulted on with a number of agencies:

“Crown Law Office has contributed to the development of this paper. Department of the Prime Minister and Cabinet, Treasury, Ministry of Education and the Department of Child, Youth and Family Services were extensively involved in formulating options and opinions on Lake Alice claims during 1999. These agencies have now been consulted again.”

This knowledge and the failure to uphold the legal obligations it triggered went on for decades.

A Cabinet paper signed by Ron Paterson (more on him later), Grant Adam from the Ministry of Health and Minister Annette King showed an awareness of the credibility of the allegations, but also an intention to be in control of the consequences for the Crown.

“There seems to be evidence in support of at least some of the claims of serious abuse, notably the use of paraldehyde injections and unmodified electroconvulsive therapy (ECT) as punishment.

“The Treasury has previously suggested that … an overall fiscal cap be set to limit the Crown’s fiscal exposure.”

This became the default position of the Crown in the way it dealt with allegations that children were abused in the custody of the state – defeat and/or limit the Crown’s legal and financial liability. But what started out with hundreds of victims at Lake Alice taking legal action then escalated to thousands of victims who went through other state institutions as children.

The Crown’s strategy only hardened in response. The victims of the state were effectively treated as legal enemies of the state. The victims of the state’s crimes were treated like criminals, while the real criminals walked.

Collins’ denial at the United Nations that New Zealand committed torture was not only not true. It was also an insult to the victims and continued the 50-year injustice they’d experienced since their childhoods.