Authorities knew by the late 1990s something – possibly criminal – had gone wrong at Lake Alice, NZ’s top lawyer says. What did they do about it? David Williams reports.
Last November, Solicitor-General Una Jagose used an appearance at the Abuse in Care Royal Commission to say the Crown Law Office, which she heads, was evolving, and accepted its mistakes in cases of historic abuse of children.
In one case, a civil claim taken by Leoni McInroe, a survivor of the notorious Lake Alice child and adolescent psychiatric unit, Crown Law stood accused of using bullying and delaying tactics. That court action against the Crown and the unit’s former head psychiatrist Selwyn Leeks took nine years to resolve.
McInroe was unimpressed by what she heard from Jagose. She told Newsroom last year: “As of today, my evidence of these allegations of obstruction of justice remain unanswered by the Solicitor-General.”
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Jagose’s appearance at the same Royal Commission last week, during a hearing dedicated to Lake Alice, was markedly different. She seemed better briefed, more attentive to detail, and less deflective. Her apology was fulsome, particularly to McInroe.
After a “very thorough review” of her case, Jagose, who has worked at Crown Law since 2002, apologised unreservedly to McInroe, who was present at the hearing, for unnecessary delays in her case. “We did not treat you with respect and dignity, we caused additional trauma with what was already a very difficult part of your life.”
Crown Law’s actions in many instances were unacceptable.
McInroe’s civil claim was lodged with the High Court in October 1994. Yet it took the Crown until April the following year to file a statement of defence – something that, according to High Court rules, should take 30 days.
Jagose said she found it “remarkable and not good enough” that it took until the court threatened to throw out the Crown’s defence that it followed through with “discovery”, an exchange of information between litigants. “That’s terrible – and I don’t think it’s too strong to say, disgraceful – that that is how the Crown was conducting itself.”
Lake Alice claims were analysed for legal defences first, as opposed to whether the claims – such as children being admitted to the unit on spurious grounds, and given electric shocks and painful injections as punishment – were more than likely true. “The files showed that those things did happen,” Jagose said.
Based on those facts, the High Court was right to throw out the Crown’s strike-out application in 1995. Jagose: “Crown Law Office did not do as well as I would expect it to.”
It also wasn’t recognised that forcing McInroe to attend a secret mediation hearing with her alleged abuser, Leeks (who has denied wrongdoing), would be retraumatising, as was a Crown-enforced assessment of McInroe at the Mason Clinic, a psychiatric hospital for the criminally insane.
Another failure was Crown Law keeping McInroe’s personal diaries for six years. “We didn’t treat her in a way that she mattered rather than just the file was progressing,” the Solicitor-General said.
It surprised Jagose that the Ministry of Health, in particular, didn’t connect the case to public inquiries by Magistrate William Mitchell and Ombudsman Sir Guy Powles, and a police investigation, in the 1970s. (The child and adolescent unit closed in 1978, and Leeks left for Australia, where he practised with the Medical Council’s blessing.)
“Another failure, born of thinking about the legal defence,” Jagose said.
Crown lawyers also neglected to tell McInroe’s lawyer a separate class action was being pursued by a group of Lake Alice survivors, represented by Christchurch lawyer Grant Cameron. (In its latter stages, McInroe’s case was handled by Grant Liddell, the Crown lawyer responsible for the Cameron-led claims. Jagose said there was discussion with Cameron about whether the claim by McInroe and an unnamed person could join the larger group. (This was “not acceptable to Mr Cameron”, she said.)
“This matter took nine years; it is too long without going to a court in any substantive way,” Jagose said of McInroe’s claim. “I repeat my sincere apology on behalf of Crown Law to Ms McInroe. I have agreed, if she is willing, to meet with Ms McInroe to see what further we might be able to do to assist in some of that redress that is needed.”
Failures across the system
No doubt the apology and sentiment has been welcomed from Crown Law, an organisation known justifiably for its flinty legal edge. (Jagose held a hui with staff at her house late last year, after her Royal Commission appearance, at which she emphasised the responsibility to treat people with dignity.)
But the sweep of the Solicitor-General’s comments at the Royal Commission hearing last week covered many years and touched on the behaviour of several agencies. McInroe isn’t the only one who should feel let down.
In 1995, the Crown applied to have McInroe’s claim struck out, using technical legal defences. Dr Janice Wilson, the then director of mental health at the health ministry, provided a sworn statement to the court.
She told the Royal Commission she did so “because I was asked to do so given the procedural hurdles that made responding to the claim difficult”, by obtaining and providing evidence. “The ministry tried to see if there were notes and staff who could give evidence but established that would not be possible. The claim sought to establish abuse that had occurred in the 1970s … but in the 1990s it was going to be difficult to compile relevant evidence.”
Given what the Royal Commission has been told, and the evidence amassed, including from the ministry, it is hard to give that argument much credence.
Wilson, now chief executive of the Health Quality & Safety Commission, said she thought complainants’ stories were “compelling and believable”. As a psychiatrist herself, she did not think those in her profession – “now or then” – would have regarded as appropriate using electric shocks on children, without anaesthesia, for treatment.
Jagose said it was in the mid-to-late 1990s that Crown Law had enough evidence to realise the Lake Alice complaints were potentially a criminal matter.
“[Given] the large number of allegations of the same criminal conduct being made, the significance of those allegations, the knowledge at least within the system of the 1977 complaint, I would say that by the mid-1990s or perhaps by 1998, Crown Law should have thought, ‘What is the role here for us to refer this to the police’?”
Crown Law made no such referral. If one had been made that would have been consistent with our international human rights obligations.
In 1989, New Zealand ratified the United Nations convention against torture and other cruel, inhuman or degrading treatment or punishment. Article 12 says: “Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.”
Frances Joychild QC, representing survivors, said there appeared to be an omission within Crown Law about testing cases for human rights violations. That is Crown Law’s role, Jagose said. “I agree and accept that we didn’t do it in 1994,” the year McInroe’s claim was lodged.
Joychild replied that wasn’t done in 2000 either, when the Cameron-led claims were being settled. “Yes, I think you’re right,” Jagose said. “I also don’t know of any advice to that effect.”
Treasury favoured litigation because the uncertainty in the law meant an alternative approach risked setting a potential precedent.
The National government vacillated over the Lake Alice claims. When Bill English was health minister there was a push for an alternative resolution, but when Wyatt Creech took the role there was a renewed tilt towards the courts. In 1999, when Labour came to power, it revisited the decision to litigate.
Advice to the incoming Government was mixed. The Ministry of Health said there was enough risk, including from “adverse public opinion”, for the decision to be revisited. Crown Law noted the technical defences, but said the law wasn’t clearcut and the claims presented “considerable” litigation risk.
Treasury took another view. It favoured litigation because, it said, the uncertainty in the law meant an alternative approach risked setting a potential precedent.
Cabinet decided in May 2000 to negotiate. In 2001, Prime Minister Helen Clark and health minister Annette King apologised on behalf of the Crown, and Cabinet agreed ex-gratia payments.
An initial $6.5 million was earmarked for survivors, known as the first round of payouts by the Government. (Payments to 195 victims to settle legal claims total about $13 million.)
Jagose said last week the figure didn’t “bear a relationship to a legal analysis of liability”. Rather, the Cabinet Policy Committee decision to set aside money – $8 million, initially – for settlement reflected the Government’s desire to resolve the Lake Alice claims in a “fair, principled and expeditious way”.
In saying that, the Solicitor-General agreed the Government would have wanted the financial benchmark for claims set at the lower end. (McInroe and the unnamed claimant were, by themselves, seeking $1.5 million.)
Joychild said no one from the Crown had considered whether $6.5 million was sufficient to deal with the damage done to people who had been tortured. “I agree with you,” Jagose said.
Earlier, Joychild had said some survivors were impoverished, and deprived of education. They were broken people dealing with daily post-traumatic stress, who had relationship issues, and were struggling to bring up their children. When the claims were assessed, some survivors were living in their cars. Yet the only discussion was about money, rather than support and rehabilitation, Joychild said.
To meet the threshold of torture, Jagose said a “fact finder”, like a judge, would have to prove the intent of the actions at Lake Alice – something the latest police investigation seems set up to do, if a prosecution is taken.
Article 14 of the UN Convention against Torture says: “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.”
‘Mr Zentveld was right’
In 2001, retired High Court judge Sir Rodney Gallen was tasked with apportioning the settlement money to 95 Lake Alice survivors. Thankfully he went far beyond his remit. After interviewing many claimants he was satisfied “in the main the allegations which have been made are true”.
A second round of claimants came forward, and, with legal assistance paid by the Crown, their claims were settled. Among them was Paul Zentveld who, some years later, would go to Geneva and argue before the UN Committee against Torture he’d been tortured as a child at Lake Alice – and win.
Twice, Solicitor-General Jagose told the Royal Commission that Zentveld had been right to challenge the state.
Most recently, he was right to take his case the UN committee, which berated successive governments for repeatedly failing to properly investigate undisputed historic allegations of torture at Lake Alice. (Another Lake Alice survivor, Malcolm Richards, has taken a claim to the same UN committee. Jagose said she anticipates he too will be successful.)
The other move endorsed by the Solicitor-General was Zentveld’s court challenge to the settlement for round two claimants. In round one, as part of the class action, Cameron claimed legal fees and expenses, which he was entitled to do. In a bizarre bid for “fairness”, officials decided to deduct 30 percent from round two claimants.
That decision was overturned in 2006 by the district court, which described the deduction as Kafkaesque. Cabinet agreed to top up round two claimants the following year.
“Mr Zentveld was right to challenge that,” Jagose said last week. She called the deduction arbitrary, and the process inexplicable.
Crown Law wasn’t involved in that Zentveld court challenge because the Solicitor-General advised the health ministry not to defend the case. Jagose summarised the advice as: “He will win, he is right, and you risk losing.”
The dispute was escalated – from Crown Law to the Attorney-General, and by the Health Ministry to its Minister. Crown Law refused to take part in the proceeding, and the Ministry was authorised to seek external representation.
After the 2006 judgment, “sense prevailed”, Jagose said – the ministry and its external legal advisers decided not to appeal.
Electric shocks administered as punishment was “reprehensible conduct and, quite likely, criminal behaviour” – Luigi Lamprati memo, 2003
Police investigations have been under intense scrutiny at the Royal Commission hearings.
There was a police inquiry into Lake Alice in 1978, another in the 2000s, and there’s one active now.
After the government settlement and apology in 2001, the complaints of more than 40 Lake Alice survivors were referred to police. However, the controversial decision not to prosecute Leeks wasn’t announced until 2010, some eight years later.
Last month, detective superintendent Thomas Fitzgerald, director of the Criminal Investigation Branch, apologised for its failings, including unacceptable delays, which meant “not all allegations were thoroughly investigated”.
Of 34 survivor statements given to police in 2002, 14 or 15 may have been lost, he said. Many of the remaining 20 statements weren’t saved and couldn’t be located.
According to the police evidence to the commission, its chief legal advisor was asked in March 2002 if the claims should be investigated. The recommendation to investigate was forthcoming 12 months later.
Crown Law was guilty of causing delays early in the police investigation. Police sought a legal opinion from Crown Law’s criminal team in June 2003, on whether there was enough evidence to consider a criminal investigation. (This was an unusual request, so early in an investigation, Crown Law said.)
It took six months for an opinion, suggesting further investigation, to reach Deputy Solicitor-General Nicola Crutchley. The memo, written by Luigi Lamprati, said electric shocks administered as punishment was “reprehensible conduct and, quite likely, criminal behaviour”. This alleged misconduct against young people “virtually at the mercy of those in charge of them” must be looked into, Lamprati said.
The formal legal opinion was only given to police in April 2004. It said there wasn’t sufficient evidence for criminal investigation, but raised serious questions that required further inquiry.
Jagose told the Royal Commission: “The criticism I have of this is that the process took nearly a year.” The delay was not explained on the file.
In a sign of how the police investigation meandered and floundered, police contacted Crown Law again about Lake Alice in February 2009. It wanted access to copies of statements from former Lake Alice staff members taken in preparation for the civil case.
Jagose herself, then team leader of social services and employment team, picked up the phone. (Crutchley had left by then, but Jagose told the Royal Commission if she’d been there she might have asked police, ‘Heavens, are you still investigating?’”)
Again, progress was slow, with an attorney-general waiver only signed in November. The health ministry didn’t consider it appropriate to disclose some files, as the information was gathered for a civil action, rather than criminal, and some information was privileged.
Later, the ministry’s legal adviser, Wendy Brandon, told Crown Law no information should be released to the police except by court order or warrant. She was highly uncomfortable disclosing statements from former Lake Alice staff as they’d not been informed of their right to decline to speak to the police or obtain legal advice.
(Jagose’s evidence shows Crown Law held a “briefing session” with Leeks’ ex-wife, a former Lake Alice employee, in May 2001. She confirmed electric shocks were used as a “controlling device” and to “modify children’s behaviour”. At times there were “elements of punishment” in the use of electric shocks, she said, and she considered the “lack of supervision” was key to Lake Alice’s downfall. She didn’t want to give evidence.)
Last week, Jagose called the Ministry’s approach to releasing information “very different and very strict”.
“What I see now, and apologise and take responsibility for, is that we should have been more forceful about that. That is a role where Crown Law Office should have said, ‘We are the ones that are authoritative within the Crown about the view of the law, and the view of the law you are taking is one we don’t agree with’.”
Joychild, the lawyer for survivors, put to Jagose there were major failings in the police handling of its investigation. The Solicitor-General avoided comment because of the existing police investigation. “I feel unable to say anything that might be said to get in the way of a prosecution, if one is brought.”
A wealth of information
Crown Law is still in the process of providing information for the criminal investigation. It has about 60,000 documents relating to Lake Alice which, early last year, were only in hard copy. It took months to scan and digitise them for the Royal Commission. (Crown Law has employed three new staff to help deal with the volume of information.)
All statements have been released, Jagose told the Royal Commission, but not all of the records and underlying interview notes. “I acknowledge that process has been slow. I don’t understand the police to be waiting on us for anything, but I’ll have to check that.”
Defying the legal maxim justice delayed is justice denied, Jagose is adamant the state, “in total”, hasn’t failed to meet its obligations to the survivors of Lake Alice, including under the UN Convention against Torture. The Royal Commission is part of the answer, she said – a commission that has been described as happening more than 40 years late.
“Yes, we have to look over a long scale for my answer to make sense, and there can be criticism about speed,” Jagose said. “This inquiry will have recommendations, I imagine, that will address that point.”
Asked if the Crown had reviewed the way it dealt with Lake Alice claims and what it had learnt, Jagose said: “This is it,” referring to the Royal Commission. The independent inquiry was part of the state’s responsibility under UNCAT to ongoing redress, she said.
“We will learn from it – we have already.” Crown Law has gone through its files relating to the McInroe and group class action claims, and taken a “closer look than ever before”.
“This inquiry is actually the thing that the state is doing that shows it is looking – allowing someone else to look, an independent look – and see what comes.”
The Royal Commission’s specific hearing into Lake Alice has concluded. The commission will produce two reports for the Governor-General: one at the end of this year, and another in 2023.
A police decision on whether to prosecute anyone over what happened at Lake Alice is expected within weeks. From the perspective of some survivors, whether the Crown lives up to its obligations hinges on the result of that investigation.