“Hopelessly conflicted” government departments and Crown lawyers should be kept from abuse claims, a Royal Commission is told. David Williams reports
The Crown Law Office needs to be barred from driving the government’s response to abuse claims, a lawyer for survivors says.
The behaviour of Crown lawyers has been in the spotlight this week, with the appearance of the country’s top lawyer, Solicitor-General Una Jagose, at the Abuse in Care Royal Commission.
Yesterday, Frances Joychild QC – representing survivors from Lake Alice, a notorious state psychiatric institution, near Whanganui – made blistering closing submissions, and called for an independent body to be set up to consider claims. Some abuse survivors present at the hearing were left in tears. “People have been waiting 50 years to hear this,” says Paul Zentveld.
Joychild tore into the evidence to the Commission from Jagose and the Ministry of Health, but saved her most pointed barbs for Crown Law, which advises government agencies on legal claims.
It had became locked in an “aggressive, punitive, heartless litigation strategy to block claimants from any monetary compensation at all”. Survivors, who often had solid, provable claims, were legally threatened and intimidated, Joychild says, and offered “pathetic” settlement sums.
The evidence shows Crown Law has been the problem with historic abuse cases all along, Joychild says.
“Many today are still suffering huge negative impacts from taking claims against the Crown. They have not been rehabilitated, even if their cases have settled. They feel abused by the Crown a second time. The Crown Law Office owes them an apology.”
Earlier in the week, the Solicitor-General said the Crown Law office’s litigation process had evolved after listening to criticism. However, she accepted several cases had been poorly managed, and was at a loss to explain why.
Crown counsel Wendy Aldred yesterday reiterated to commissioners the evidence of Crown witnesses on ‘state redress’ – civil claims taken against the Crown.
“The Crown is listening to the survivors and others who have given evidence before this Royal Commission. It’s anxious to inform and assist the Royal Commission in its work, and it will continue to be transparent with the Royal Commission in terms of access to information, as it has been so far in the inquiry’s process.
“But, as the Solicitor-General said, the Crown can’t wait for the Commission to finish its work. It must continue and intensify its own response, especially now that it has heard, perhaps more clearly than ever, how survivors have been let down and what they need.”
(The Crown released, yesterday, a payment breakdown for settlements and legal costs for historic abuse claims. In all, $47.8 million had been paid to claimants, $30.6 million paid as legal aid, legal fees or reimbursements, and $7.2 million in Crown litigation costs, for a total of $85.6 million.)
‘Hopelessly conflicted’
At Lake Alice’s child and adolescent psychiatric unit, before it closed in 1978, electric shocks were used on children as punishment. No one has ever been held account for what happened there. Dr Selwyn Leeks, the unit’s head psychiatrist, has always denied wrongdoing.
(Zentveld was admitted to Lake Alice five times as a teenager, and had electric shocks applied to his genitals as punishment. His claim of torture drew a scathing report from a United Nations committee last year, and led police to re-open their investigation into Leeks.)
Joychild says Crown Law and government departments stumble into deep conflicts when considering abuse claims. Those government departments failed to protect the child in the first place, she says, having housed or employed their abusers.
Yet the departments investigate claims and instruct Crown Law. The Government has human rights obligations to abuse survivors, yet, at the same time, Crown Law defends the Government from liability for those human rights breaches.
“It is hopelessly conflicted,” she says.
(Under the UN Convention Against Torture, ratified by NZ in 1989, the Government must ensure a victim “obtains redress and has an enforceable right to a fair and adequate compensation, including the means for as full rehabilitation as possible”.)
“[Crown Law’s] time of driving the response to claimants of abuse in care must be up,” Joychild says. “It should not be given any more opportunities.”
Claimants believe Crown Law’s “primary, if not sole duty” is to protect the government purse-strings, Joychild says. The power imbalance is so massive there’s no chance of a legal “contest”.
Referring to the case of Aucklander Leonie McInroe, a Lake Alice survivor, Joychild says her evidence reveals the cruelty of Crown lawyers – an abdication of their duty. They took an attitude “of disinterest, extremely carelessness and, at times, callousness, towards both the sufferings and indignities vested upon her”.
A new body should be created, Joychild says, to reconsider awards in past claims, and deal with future claims. This body – “well away from the Crown Law Office and government departments” – should guide mediation, evidence collection, fact determination and rehabilitation. It should also decide monetary payments.
Trust is so low, Joychild says, no former Crown lawyers or public servants who have dealt with abuse claims should be offered leadership or decision-making positions.
Joychild also suggests the Commission call for the Crown to make a national apology, giving the wider public an opportunity to understand the extreme hurt and damage down to those in state care, a dark chapter in our nation’s history.
Unacceptable delays, poor behaviour
It’s worth dwelling on McInroe, who described her claim – settled in 2002 – as nine gruelling years of emotional battering, abuse and bullying from the Crown. As early as 1996, the Crown had expert reports stating her placement at Lake Alice and “treatment” (electric shocks, psychotic medication, long periods of seclusion) was unjustified.
Joychild listed unacceptable delays and poor behaviour by Crown lawyers in McInroe’s case:
- It took seven months to file a statement of defence. High Court rules allow just one month.
- Discovery (the disclosure of relevant documents) took 22 months (including two High Court visits by McInroe’s lawyer), when it would typically take three months or less. Seven years later, it advised it had dozens of further files to discover.
- The Crown demanded McInroe’s personal diaries, and didn’t return them (peppered with sticky notes) for almost six years.
- Crown lawyers were instrumental in organising – and hushing up – a mediation meeting with Leeks.
- Eighteen months after the mediation meeting, the Crown, without consultation, and behind McInroe’s back, settled with about 90 other Lake Alice claimants.
- Shortly after mediation, the Crown lawyer indicated a psychiatric examination might be needed. That demand was made 19 months later, six years and six months after the claim was filed. Worse, it was done at the Mason Centre, a locked psychiatric unit for the criminally insane.
“Why did Crown Law not see the blinding obvious truth that if hundreds of complaints were coming in there must have been major systemic failings in the care and protection of children and young people in state care?” – Frances Joychild
McInroe’s case was no outlier, Joychild says.
In the 2007 White trial, a test case, a Crown lawyer suggested the two claimants’ lives needed to be “sifted through”, and the first approach taken would be that the witnesses “are simply lying”.
Then there’s Keith Wiffin, who was sexually abused and physically assaulted at Epuni Boys’ Home, in Lower Hutt, in the 1970s. His case, overseen by Jagose herself, took three years to settle. The Crown had evidence Wiffin’s abuser was a convicted paedophile, but didn’t share that documentation with Wiffin’s lawyer until nearly two years later.
That’s important because in the face of a solid, factual claim, the Crown was required, under its own litigation rules, to try and reach a settlement. Wiffin told the Royal Commission, the Crown wasn’t interested in finding the truth, rather it wanted to defeat him “in the name of the Crown’s agenda”.
Yesterday, Joychild tells commissioners: “Certainly in Leonie’s case and apparently in other claims of abuse by the state while in its care, there was not one iota of concern shown for the impact of the victim of the litigation process the Crown were adopting.”
Crown Law generally pursued all available legal defences to try and knock claims out of court. It didn’t have to adopt such ruthless tactics, Joychild says.
It could have progressed litigation without delay, immediately offered counselling, waived the limitation defence, provided regular updates, been transparent about its litigation strategy, adopted a protocol for handling intimate items (like diaries), and it could have handed the file to police, when it was evident “criminal activity had taken place”.
Why did the Crown miss so many opportunities to take a different approach? Joychild puts that down to a lack of human rights or Te Tiriti culture within Crown Law and government departments.
“Why did Crown Law not see the blinding obvious truth that if hundreds of complaints were coming in there must have been major systemic failings in the care and protection of children and young people in state care?”
More failings were on display at the Commission hearings this week.
Three years ago, Philip Knipe, the Health Ministry’s chief legal adviser, drafted advice for Lake Alice survivors wanting to make a claim. But the ministry’s communications staff blocked it from appearing on the website.
Despite Lake Alice’s adolescent unit closing more than 40 years ago, the Ministry has never made a list of the children who were there – often on false pretences, and subjected to cruel “treatment” without proper approval.
Under its terms of reference, the Royal Commission must provide an interim report by December 28. Chair Judge Coral Shaw says the interim report is being finalised. It will summarise the state redress hearing, including a pointer to future directions.
The Commission will hold public hearings into abuse at Lake Alice next year.
* This story has been updated to correct a Crown error for historic claims-related litigation costs, from $3.5 million to $7.2 million.
