Crown Law blocks the police in rare, costly legal standoff

After nearly 50 years of failed inquiries, incompetent police investigations, self-preservation by the medical profession, political dodging and weaving, and institutional indifference, the victims of the adolescent unit at Lake Alice are still being betrayed by those in authority.

Even after the UN castigated the New Zealand state in 2020 for breaching the Convention Against Torture for failing to investigate, the resulting police investigation has been undermined by Crown Law’s behaviour and the weakness of the police themselves.

Newsroom has obtained documents that show Crown Law withheld documents from police or delayed providing them. The two agencies often work hand in glove in criminal justice matters and the division between them was rare, and disturbing to some observers.

Newsroom has shown some of the relevant information to legal experts. Human rights lawyer Dr Tony Ellis was asked if he thought the Crown’s behaviour amounted to blocking justice.

“I’m not sure what I think it is. I think it’s something worse… I’m not sure how you categorise it. It’s certainly obnoxious.”

It looked like deliberate moves to keep something buried. “With Prime Ministers and Ministers of Health involved….

“But it’s hard to give it just one label.”

Ellis’ comments highlight the numerous ways not only Crown Law but also government ministers and police repeatedly failed to uphold their obligations to investigate the crimes of Lake Alice.

Police started a third criminal investigation into Lake Alice in 2020 after the UN found New Zealand in breach of the Convention Against Torture. In February 2020 police requested numerous documents from Crown Law relating to the abuse and torture of children that happened at the adolescent unit at Lake Alice psychiatric hospital in the 1970s.

Documents held back, not provided

But there are documents that were covered by the requests that were not provided by Crown Law or Crown Law caused significant delays in handing them over.

Crown Law also charged the police over $100,000 to provide information.

At one stage police discussed using a production order, which is like a search warrant for documents, to force evidence from Crown Law.

Police even let Crown Law know the extraordinary move to a production order against the top state legal agency was under consideration, but then decided not to go ahead.

Law Professor Kris Gledhill from AUT says in international law torture is one of the most serious crimes. He says the Crown’s behaviour appears to be in breach of international law.

“There is an international justice element to this and this has been obstructed by the approach that seems to have been adopted.”

“One of the very few rights that is absolute is that torture or cruel, inhuman or degrading treatment or punishment is never permitted.”

“One of the consequences of the high priority given to this right is that when there are credible allegations of ill-treatment that could breach this right, the state has an obligation to investigate this. Such an investigation has to be speedy, thorough and objective. If there has been criminal behaviour, there should be prosecutions and victims should be compensated.”

“The state is the body with the access to information and investigative powers. This means that the state cannot just treat these allegations as something that has to be defended in an adversarial way that is commonly found in litigation.”

Revelations about the Crown’s behaviour regarding Lake Alice have unfolded over decades due to the tenacity of survivors and their supporters. The latest revelations came about thanks to a Samoan gangster.

Crown Law went to great lengths to avoid talking about a West-Auckland single mother whenever the subject of the adolescent unit at the Lake Alice psychiatric hospital came up. They’d never mentioned her to the police. They ignored her during a hearing in Geneva in front of the UN committee on torture. And they’d failed to talk about her to the Royal Commission before she came forward.

Crown Law had consistently maintained a silence around Leoni McInroe despite fighting her in civil litigation for nearly a decade. That silence was finally ruptured in 2020 when Fete Taito, a founding member of the King Cobras and a regular resident at Her Majesty’s penal institutions, coaxed McInroe into coming forward to the Royal Commission.

McInroe was extremely reluctant to appear before the Royal Commission, as she’d taken a civil case against the Crown in the 1990s and early 2000s regarding her time in the adolescent unit at Lake Alice in the 1970s. The case dragged out for nine years and she felt brutalized by the process the Crown had put her through. She didn’t feel like subjecting herself to another legal process and what it might entail.

“I knew of the Royal Commission. I heard about it but I could not separate the Crown from the Royal Commission. Why would I reignite that relationship given the harm they’d caused me. So I had no interest. I had more trust in a gangster than the Crown. That’s the truth.”

That trust went back decades. She’d first known Taito when they were teenagers who’d just got out of the state’s custody as kids and were on the streets as teenagers.

Taito – also known as Fets, or Wheke (the Maori word for Octopus in reference to his big mitts) – had gone through Owairaka Boys Home. Years later McInroe had married one of his cousins and, because she had no parents, he’d given her away at the wedding. He’d first met her when she first came out of Lake Alice and was staying with foster parents.

“We’re pretty close. That’s the thing about that life, that world, once you connect, you connect.”

The more he learned over the years from both McInroe and other survivors whom he knows, the more disgusted he became.

“Every time I read something about Lake Alice, I just think, this is so wrong, man. It’s so wrong on so many levels. There was never anyone taken down for this. They just want it to go away without anyone being responsible for it.”

When they crossed paths again in 2019 Taito was working for the Royal Commission. He was reminded that McInroe gone through Lake Alice and asked if she’d be willing to give evidence to the inquiry.

After some convincing she agreed and sat down with QC Frances Joychild with stacks of documents from those nine years of her life that she’d boxed up and put away physically and psychologically. Now she was opening up that period of her life and the years of childhood trauma that had led to it.

“I couldn’t believe she was so incredibly compassionate and understanding of my experience. On our third meeting I started producing these documents. She came across the Professor Werry report. She had a completely different take on the significance of that. She saw the legal significance.”

The Werry Report

The document that caught Joychild’s attention was a report for ACC written by Dr John Werry, professor emeritus of psychiatry at the University of Auckland. Dr Werry had founded the school of psychiatry at the university and had expertise in child psychiatry. He was and still is one of the most highly qualified experts in the field. He was also a contemporary of Dr Selwyn Leeks, the man who ran the adolescent unit at Lake Alice and was responsible for what went on there.

Dr Werry’s report was unequivocal – what McInroe had been through wasn’t medical treatment. It was medical misadventure.

Dr Werry stated in the conclusion to the report: “I therefore conclude that from the data available to me that there is clear evidence of medical misadventure due to medical error resulting from, 1/ inaccurate diagnosis, 2/ inadequate diagnostic and progress procedures, 3/ grossly inadequate documentation by Dr Leeks of his reasons for treatments, 4/ the type of treatments and the reasons given for treatments prescribed [ECT, neuroleptics in antipsychotic doses (especially fluphenazine decanoate), chlorpromazine, paraldehyde and seclusion], all constitute medical error and medical misadventure.”

Without stating it outright, Dr Werry’s report was implicitly a damning indictment of the whole unit and what had happened there. McInroe’s file was but one of hundreds of files where the crimes committed were documented by the perpetrators themselves. Dr Werry’s authoritative opinion simply confirmed what was obvious from a plain reading of the available documents – Dr Leeks behaviour was not medical treatment, it was something else entirely.

The report was a substantial piece of evidence that was highly relevant to the police investigation.

“Frances asked if she could ring the police immediately.”

When Joychild told the police about McInroe and the documents she had, they’d never heard of her. They certainly viewed the information McInroe had, particularly the report from Dr Werry, as significant.

“I guess I was the Crown’s dirty little secret,” McInroe says.

However, the police should have obtained the Werry report seven months earlier. In February 2020 Police had started an investigation into what happened at Lake Alice after the UN found New Zealand in breach of the Convention Against Torture because it had not thoroughly investigated the case. The UN case was taken by Lake Alice Survivor Paul Zentveld, supported by CCHR (Citizens Commission on Human Rights) an advocacy group linked to Church of Scientology.

This police investigation was the third, with the first being carried out in the late 1970s while a second police investigation had taken eight years during the 2000s.

In February 2020 Detective Inspector David Kirby sent an email to Crown Law requesting a number of categories of documents. In the email, sent to Kate Hutchinson of Crown Law and Phil Knipe of Ministry of Health, Kirby formally asked for documents relating to Lake Alice: “The following have been identified as documents that have been received by Ministry of Health or Crown Law that will be relevant to this investigation and copies are sought…. Any medical opinions or reports obtained during the process.”[1]

The email also requested “any statements or affidavits made in any form obtained or received from any patients of Lake Alice.”

The police requests were made under principle 11e of the Privacy Act, which allows police to obtain private documents for the purposes of investigation and prosecution of criminal offences. This meant Crown Law didn’t require the permission of individuals themselves to hand over the documents. Police were asking Crown Law for documentary evidence in a criminal investigation relating to the torture and abuse of children.

Both of these requests should have elicited documents related to Leoni McInroe, including the ACC report, which Crown Law had possession of as part of discovery during the litigation. Despite Crown Law obtaining these documents, it was not so helpful in providing documents. At one point McInroe’s lawyers had to take the Crown to court twice to obtain documents they were entitled to in discovery.

And Crown Law did not provide the documents it held on McInroe to the police who were carrying out a criminal investigation. Crown Law was l;ike a hostile witness. At the very least it was an unhelpful one.

Crown Law’s response

Newsroom had emailed questions to the office of Solicitor General Una Jagose before it was aware of the specific police request. The reply from Jagose’s office to these emails stated: “Crown Law did not provide Dr Werry’s 1995 psychiatric report to Police for the purposes of the criminal investigation that commenced in 2020.”

“We understand Police obtained Dr Werry’s 1995 psychiatric report from a source other than Crown Law.”

That other source was McInroe’s lawyer Francis Joychild QC.

Jagose’s office said it had not given the Werry report to the Royal Commission until specifically asked – which was in August when McInroe came forward – and McInroe’s case was not included in the government’s response to the UN. Asked why it had not been mentioned to the UN, Jagose’s office said McInroe’s case “wasn’t relevant.”

The Crown argued before the UN that it had done everything possible to investigate the claims of Lake Alice, while neglecting to mention that it had fought McInroe’s civil case for nine years.

Despite the police formally asking for evidence held by Crown Law be handed over in the police investigation into Lake Alice, McInroe’s documents were not disclosed to police by Crown Law. But the information held in McInroe’s file was not the only information police struggled to get their hands on.

The documents obtained by Newsroom show police became exasperated by the delays in providing other documents requested from Crown Law.

Police were also caught in a Catch 22 where they didn’t know what exactly they were looking for. While usually consulting with Crown Law on criminal investigations, in this case the Crown was the suspect in the crimes. The paper trail shows that Crown Law often reverted to formalities that created delays in providing documents in the Lake Alice investigation.

A police detective inspector sent an email to Crown Law saying: “Police are not sure what other documentation Crown Law hold that may be relevant to this investigation.”

“Are Police able to view an index of documents supplied or made available for viewing to the Royal Commission so any potentially relevant documents could be identified?”

On May 21 2020 police emailed Crown Counsel Shelley Deng and Kate Hutchinson, also from Crown Law and Phil Knipe from the Ministry of Health:

“I appreciate the position you are in, however we need a decision around these other patients and their documents reasonably urgently.”

“It is problematic that these names have been given to the Royal commission but not to Police.”

“I would be keen to look at a way to progress this matter so we have the minimum of delays in our investigation as possible.”

On May 29 2020 police emailed Crown Counsel Katie Anderson, again questioning the delays in providing documents: “I am pleased this is progressing however it would be helpful to understand why this is taking so long? We first approached Crown Law a year ago with a request for the documentation and it was agreed the quickest way to progress this was with a privacy waiver from the former patients and staff. These were supplied on 14th December over 6 months ago. We are nearing the end of our investigation and wanting to make decisions, however we need to wait for the documentation your office holds on this matter.”

The explanation given by Crown Law was that it was time consuming to review documents and obtain privacy waivers from either the claimant or the Attorney General.

Katie Anderson from Crown emailed police: “our current team of 7 reviewers (all law students who we have specifically contracted to do this work) are currently taking around 3 weeks to review the relevant documents for a single patient/staff member. Even if we have counsel doing this work fulltime (which we generally don’t have capacity to do), it has taken about 5 full working days to review the documents relevant to one patient/staff member).”

But Crown Law had already provided many of the documents police were seeking to the Royal Commission. Police suggested using that process as a starting point in order to hasten their investigation.

Production order considered – police charged $107,000

Crown Law charged the police over $107,000 for providing the documents.

Police have confirmed they considered filing a production order against Crown Law. The police have not explained their decision not to proceed with a production order, citing legal privilege.

But barrister Felix Geiringer says because police and Crown Law usually work together it created a conflict when they were effectively on different sides. He says in most cases a production order would have been a formality that police wouldn’t hesitate to use and they certainly wouldn’t discuss it with the target in an investigation.

“I think some criticism needs to go on the police. If the material was needed they could have made it obligatory by obtaining a production order.”

“Whenever a third party has possession of documents, and police need them, they should seek a production order.”

“You’ve got the police themselves contemplating a production order, and then not doing it. And you kind of understand the mindset, that they expect comity with other government departments. And so they rely on people helping them willingly.”

He says Crown Law could argue that it has obligations under the Privacy Act that prevents it from providing documents without the permission. But this then puts the obligation on police to use their powers to override that in the course of a criminal investigation.

“It blurs the lines between the people being investigated, and the people doing the investigation. You can understand why government, parts of our executive, want to work together in a cooperative way. It makes sense. But on this particular thing it’s problematic. Not only because it is a criminal investigation but also because the government department, absent a production order, has an obligation under the Privacy Act not to hand over that material.”

Geiringer says in civil litigation Crown Law has an obligation to behave as a ‘model litigant’.

“In civil disputes, the Crown as model litigants are not supposed to argue something that they know to be wrong, or deny things they know to be true, just because it’s a useful bargaining chip for resolving the dispute. And yet, my experience with the crown is that they do that all the time. All the time.”

Repeat offenders

Lawyer Sonja Cooper, who has represented thousands of victims of state abuse in civil litigation, says the withholding of evidence is something she has observed repeatedly. She says Crown Law’s behaviour in civil litigation has been the opposite of what is expected of a model litigant.

“This doesn’t surprise me at all. It’s consistent with the conduct of Crown Law and its agents that we’ve experienced. It’s all about protecting the Crown’s reputation. That’s their reason for being. One would have thought that Una Jagose giving evidence at the Royal Commission would provoke some soul searching.”

The withholding of McInroe’s ACC report from the police is unlikely to have derailed the police investigation in 2020, as they already had gathered copious evidence by the time they finally received the Werry report. They eventually reviewed more than 40,000 documents relating to Lake Alice.

But the lack of disclosure and the delays Police experienced in obtaining relevant documents held up the police investigation that eventually concluded there had been enough evidence to lay criminal charges against Dr Leeks and other staff. But it was too late – Dr Leeks was 93 and was deemed upfit to stand trial. A few months later he died, nearly 50 years after he first opened the adolescent unit at Lake Alice.

Questions remain

This evidence was not provided to police in 2002 when there was more chance it could have been acted on. Does the withholding and delays in providing evidence to police amount to blocking police progress? Why was the evidence Crown Law provided to police in 2020 not provided to police in 2002?

What legal right does Crown Law have to intervene in criminal investigations by police when the alleged perpetrator was an employee of the state?

In short – has Crown Law’s behaviour regarding the abuse of children crossed the line?

We wanted to ask Attorney General David Parker these and other questions but he declined to give an in-person interview.

McInroe believes a major factor in the Crown’s response is that it regarded victims of its own crimes as not deserving of justice.

“We had no value as human beings in the eyes of the Crown.”

“The victims were not worthy. They’re not worthy because the people dealing with it are fucking racist, or whatever their discriminations are. The bottom line is they were not worthy.”