This week marks a rare opportunity to hear from the country’s top lawyer about abuse in state care. David Williams reports

Una Jagose has a lot of explaining to do.

The Solicitor-General, who heads the Crown Law Office, will take the witness box today at the Abuse in Care Royal Commission. She will give evidence and be cross-examined over several days, the bookend to the Crown-witness-dominated second phase of the commission’s ‘state redress’ hearing.

In the first phase, survivors of abuse in care gave powerful evidence about civil claims taken against the state. For decades they fought to be believed, to have their attackers held to account, and receive fair compensation. At the Royal Commission hearings, they saved some special anger at the state’s legal tactics.

Take the example of a man – known by the pseudonym Earl White – who was sexually abused by a staff member at Hokio Beach School.

From his first contact with a lawyer, in 1999, it took eight years for a court to hear the case, and four more for an ex-gratia payment to be made – without accepting responsibility – of $35,000. White says the Crown case cost near $2 million. (A judge accepted abuse occurred but said damages couldn’t be awarded because of statutory limitations.)

The nightmare legal process – including the Crown refusing several early settlement offers – retraumatised him.

“I don’t call myself a survivor because I am still waiting to be rescued,” White told the Royal Commission in September. “That can’t happen until I receive justice, that would be a proper apology from the prime minister or governor-general on behalf of the Queen to all the thousands of children who have been harmed, including me and my brother.”

White called for an independent process, not controlled by state departments, to verify abuse claims, apologise and offer fair compensation.

Then there was evidence from Aucklander Leonie McInroe, a survivor of state psychiatric facility Lake Alice, who said after she filed her legal claim the Crown assumed the role of abuser and perpetrator. (That included Crown lawyers helping to organise a secret return to New Zealand of Dr Selwyn Leeks, the psychiatrist in charge of Lake Alice’s now-closed child and adolescent unit.)

“When I filed my claim, instead of compassion, justice, validation and an apology, I received nine gruelling years of emotional battering, abuse and bullying from the Crown,” McInroe told the hearing.

“There were ongoing, prolonged, intentional delays, obstruction tactics and obstruction strategies and it felt like the Crown were treating me with the callous indifference and cruelty that Dr Leeks had. Only worse. It was worse because I expected fairness and justice from the Crown.”

Three years ago the NZ Herald reported the Ministry of Social Development spent more than $1 million on private lawyers to fight abuse claims at a state-funded bootcamp on Great Barrier Island. The settlement with victims amounted to $340,000.

In an anonymised statement, MSD told the newspaper the Whakapakari case was managed appropriately and in accordance with government policy on litigation. (Under Helen Clark’s leadership, the ministry set up an historical claims unit to deal with compensation.)

The then Labour Party deputy leader, and now Prime Minister, Jacinda Ardern asked: “The question I have is: Given the huge amount spent to stop cases going before the court, is the Crown being a responsible litigant?”

Good question – one that Jagose, the solicitor-general, will presumably have to answer this week. It will be interesting to see how much she relies on the MSD defence: it was litigation policy, it was all appropriate.

Jagose’s executive assistant Elizabeth Underhill told Newsroom on Friday: “The Crown Law Office is assisting the Royal Commission with its investigations, including by allowing the Royal Commission to access its files. A full explanation will be given under examination next week.”

Low expectations

“A lot of half-truths and bullshit,” is what Malcolm Richards expects to hear from Jagose.

Richards, of Hastings, was a child patient at Lake Alice, the notorious state psychiatric hospital, near Whanganui, in the 1970s. There he received an electrical burn on his penis from an electro-convulsive therapy (ECT) machine.

Three paragraphs of Jagose’s evidence – relating to the case Richards has taken to the United Nations, alleging torture at Lake Alice – were sent to him, and he’s seething about what’s to be said.

“Our solicitor-general is twisting the facts to suit the state,” he says. “There’s a lot of things in there that just aren’t factual. She’s supposed to set an example. She’s the highest lawyer in the country and she’s spouting bullshit.”

Jagose’s office didn’t respond directly to Richards’ comments.

Among the disputed comments:

Jagose will say Richards’ UN claim is largely based on the claim taken by another Lake Alice survivor, Paul Zentveld, an Auckland fishing skipper. Richards says while he referred to Zentveld’s case, his file was more than 200 pages long, including correspondence and other material;

The solicitor-general refers to the Government response, which alleges Richards hadn’t exhausted his “domestic remedies”. Richards says: he used the confidential listening and assistance service; produces a February 2017 email in which Detective Sergeant Grant Atkin says, “I can tell you that Police will not be re-investigating complaints against doctor LEEKS”;

The Royal Commission didn’t even have terms of reference when he filed his UN claim. He also approached the Attorney-General about taking a private prosecution against Leeks;

Richards says he hasn’t been provided sufficient rehabilitation – this is because Accident Compensation Corporation has refused cover;

Fundamentally, Richards is mad the solicitor-general is making such pointed comments about an active case. (Richards won’t be attending the hearing, after making a threat on social media, which earned him a visit from the police. He says he had no intention of carrying it out. A group of supporters is expected to attend, wearing ‘Tell the truth’ T-shirts.)

The Crown’s legalese defence is very similar to the approach taken to Zentveld’s claim. In that case, Crown Law tried to knock it out on technicalities, and the government argued it had, in multiple ways, complied with various articles in the convention against torture.

It failed. The UN upheld Zentveld’s complaint finding New Zealand had violated the convention for failing to properly investigate.

The committee’s non-binding recommendations were the Government: “Conduct a prompt, impartial and independent investigation”, provide appropriate redress “in line with the outcome of the investigation”, and make public the UN decision and “disseminate its content widely”.

The response doesn’t give victims much hope.

Inquiries are ongoing

Firstly, to the police.

Its director of criminal investigations, Detective Superintendent Tom Fitzgerald, confirms there are “a number” of investigations related to Lake Alice. “These include enquiries initiated as a result of information and referrals received by NZ Police from the Royal Commission of Inquiry into Abuse in Care. As these investigations are active, no further information can be released at this time. Police are planning to have the first phase of the investigation completed by the end of the year.”

However, police have been investigating allegations of sexual assault at Lake Alice for nearly two years. (These inquiries were widened after the UN decision.)

In April, police talked of the different phases of their investigation. The first was assessing allegations and searching for documentation from agencies like the Health Ministry. The second was conducting interviews.

Newsroom’s been told police have now undertaken dozens of interviews and have even taken statements from people living in Australia. Worryingly, Richards says he’s been told detectives working on Lake Alice have been re-directed to the historical sex abuse case at Auckland’s Dilworth School. Police didn’t respond to either claim, nor would they confirm if they’ve interviewed Leeks, who, for the record, has always denied wrongdoing at Lake Alice.

Seeing charges laid in the Dilworth investigation will be salt in the wounds for Lake Alice victims. “We don’t seem to matter,” Richards says. “They didn’t interview every single person before they arrested them.”

He’s accused police of foot-dragging. Their response has been the investigation is being done properly. Police are just delaying until Leeks dies, Richards believes.

Back to the UN decision, the government was told to make it public and “disseminate its content widely”.

What that’s meant in practice is police adding a hyperlink to its Abuse in Care Royal Commission webpage on May 1. Newsroom can’t find an accompanying press statement. You’re more likely to find out about the UN case – which, let’s remind ourselves, is about undisputed claims of abuse of children, involving unmodified ECT “treatment” meted out as punishment – on this news website.

Zentveld says his “win” at the UN hasn’t been acknowledged by the government, and he’s not been approached by officials since the report was released. He accuses Jagose of watering down the UN report in her evidence.

In summary, after years of state delays, denying responsibility, and failing to properly investigate (according to the UN), there’s now a police investigation with seemingly no end, with an unknown number of detectives working on it, and no serious attempt by state agencies to publicise its decision, as requested.

“It’s just a never-ending story,” Zentveld says.

Sorry seems to be the hardest word

Richards, Zentveld, and other Lake Alice survivors can perhaps be forgiven their cynicism – they’ve had decades of getting the run-around from the state.

Despite several official inquiries and two police investigations, no one’s been held to account for what happened there – although the government made payments to victims, and apologised, in the early 2000s.

As investigative journalist Aaron Smale details, the Crown employed the armoury of the state to avoid blame and liability for crimes committed against minors in its care – and to keep them from the public.

The power imbalance is immense.

Officials have confirmed between June 2007 and June 2019, about $41.5 million was spent on operational costs and external legal fees (including Crown Law fees) related to historic abuse claims.

For the cases that are resolved (without legal liability being admitted), the average compensation for abuse like rape, solitary confinement, torture, violence, lack of education and other mistreatment is about $16,000.

More than half of the nearly 4000 claims of abuse in state care remain unresolved.

The Royal Commission, while neutered by its terms of reference, has been important to victims who have found it hard, for decades, to find anyone in officialdom to listen to their stories, and believe them. But surely that can’t make up for the Crown’s legal strategy, of using all technical legal defences to defeat claims by those abused in state institutions. Victims have been paid (small amounts), which is an acknowledgement their claims are true, but that’s been accompanied by a denial of responsibility.

Millions of dollars have been spent on legal battles, but saying sorry seems to be the most costly thing of all.

This week, our nation’s top lawyer might not make an apology on behalf of the state. But will she show any regret for the Crown’s ruthless, well-resourced strategy pursued against some of society’s most vulnerable?

David Williams is Newsroom's environment editor, South Island correspondent and investigative writer.

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