It is well established that children were physically and sexually abused in state care in New Zealand over many decades.
But what has always been carefully hidden is the subsequent role of the Crown in deliberately, actively suppressing and stifling the bids for justice by survivors of those crimes.
Today, Aaron Smale reveals the lengths to which the Crown went – via its bureaucratic, legal and political arms – to avoid the blame and liability for crimes committed against minors in its care. The armoury of the state was deployed to stop the public from knowing the extent of this decades-long scandal, causing further trauma and harm to victims in the process.
Published in Newsroom
Smale’s investigation results from years of interviews with survivors and family members, the scrutinising of internal government files, correspondence with survivors and their lawyers, court judgments and early evidence from the Royal Commission into Abuse in State Care, currently sitting in Auckland.
It is a substantial piece of journalism. It had to be, to capture the extent of the Crown’s campaign against accountability and remorse. The disturbing picture that emerges is of the government of New Zealand being responsible for a system that permitted ongoing crimes against children, and then controlling the complaints and accountability process to prevent the whole picture from ever being known.
Warning: This story contains graphic descriptions of the sexual and physical abuse of children
After years of denial, obfuscation and delays; after police failures to properly investigate; after insulting offers over 13 years of waiting; after multiple allegations and mountains of evidence piling up over decades; after all that and more, the Crown has finally admitted what John Drake’s victims have known all along – he was a paedophile. A serial rapist of children. And an employee of the state who was given control over children for 20 years by government departments.
One of those children was Tyrone Marks. He just hit 60 in August and for most of those six decades he has been doing battle with the Crown, which subjected him to horrific abuse for eight years of his childhood, locked him up in his early adulthood, then denied it all for the past 30 years as he has tried to hold the state to account.
Marks has become so accustomed to this living nightmare that he has developed a bleak and well-honed gallows humour to deal with it. He roars and wheezes with laughter recounting things he experienced that any sane person would regard as horrific. His life is like a Quentin Tarantino movie if Tarantino had gone into making documentaries – all the more shocking for being true.
But underneath the ribald humour is a razor sharp mind. Marks understands very clearly how the state has denied him and many others justice for their whole lives while protecting paedophiles and child abusers. “There’s a two-tier justice system where the Crown say, ‘We can’t be held responsible for what our employees did’.”
One of the many state employees who abused Marks was a staff member he encountered in two welfare homes run by the state. John Drake.
Drake worked for around 20 years for the Departments of Social Welfare and Education from 1958 to 1977. He held different positions at Hokio Beach School in Levin, Campbell Park near Kurow and Holdsworth near Whanganui.
It was at Campbell Park that Marks first encountered Drake. Marks lived in a dormitory for the younger kids at Campbell Park where Drake was the housemaster. Drake had access to around 35 to 40 of these children virtually 24 hours a day. The abuse started when Drake sat kids on his lap while watching films or TV in the recreation room.
“He’d have them on his knee, then his hands would be rubbing their legs, in their pyjamas. That’s when he’d start interfering with us. It might be me today and then others tomorrow, just continuous like that. You could see children kind of resisted, like what the fuck are you doing? What’s this about?”
“For me, and I know for others, we knew straight away that that’s not normal behaviour. Then if you resisted, which we did – ‘Take your fucken hands off’, or, ‘Don’t do that’ – that would rouse him up even more. He would overpower us in the way of him being assertive, ‘I’ll do whatever I fucken want to and there’s nothing you can do’. It started off like that. Then as time went by, he got worse, he got worse from fiddling to actual…” – Marks interrupts himself – “fuck, it makes me sick even thinking about it.”
Marks was eight.
“I’m only one of many.”
There were a number of venues where the sexual assaults happened – school camps, in the back of Drake’s VW Combi van, in his photographic dark room – but it was the dormitory where the most regular abuse would occur.
“There would be a partition between your bed and the next one. No one could see what was happening in each cubicle. Even though you might scream – and you would fucken scream I tell you, who wouldn’t – everyone was too scared to investigate. But they’d know because then it would be their turn. Also there were times he was taking that group on trips. There might be camps. Wherever it was, this guy was. He’d continue what he was doing. When new kids came along, the older kids that he’d be doing things with, he’d leave them for a while and start on the new ones. That seemed to be his introduction to the new boys. He was the main perpetrator but there were others. Our parents didn’t do that shit to us.”
Marks says that over the nearly two years he was at Campbell Park, rape and sexual abuse were a regular occurrence.
“I’m talking the other thing, the worst thing, probably twice in a week. Then there’s other filthy fucken things he’s doing during the week as well. Then he’s doing it to others as well. This guy was continuously at it. And there seemed to be no supervision. No one is watching what this guy is doing.”
In May this year Marks received a blandly-worded legal letter on behalf of the Ministry of Education that was signed off by Crown Counsel Mark Bryant. It lays out various allegations Marks made in a legal claim against the ministry regarding the abuse he suffered at Campbell Park school in the 1960s when he was eight years old. Those allegations included accounts of being sexually and physically abused by Drake.
The letter picks out specific allegations in the claim (in italics) and then responds to each.
“On many occasions Mr Marks was sexually assaulted by Mr Drake. It is alleged that Mr Drake placed Mr Marks on his knee and masturbated him.”
“The Ministry (of Education) is aware that the Ministry of Social Development has previously taken into account allegations of a similar nature concerning Mr Drake. On that basis the Ministry (of Education) accepts this allegation for the purpose of settlement.”
Marks first lodged his claims against MoE and MSD in 2007. But what baffled and almost delighted Marks about the admission from MoE was that several weeks earlier he’d received a letter from MSD that also mentioned Drake, but it said something quite different.
Marks had made a separate claim against MSD for the abuse he suffered in a number of welfare homes that he went through after Campbell Park, including Epuni, Hokio Beach School, Kohitere, Owairaka, and Holdsworth. It was at Holdsworth that he encountered John Drake again. By this time Drake was the vice-principal. Although he tried to resume abusing Marks, by this time Marks was older and more resistant. That resistance was steeped in fear because of the previous abuse that had occurred at Campbell Park.
The letter MSD sent to Marks refers to this allegation of fearing Drake in his statement of claim, but then dismisses it.
“Mr Marks lived in fear of sexual assault from a staff member due to past experience. Due to insufficient information, the Ministry does not accept this allegation.”
The staff member Marks is referring to here in his claim is John Drake. But what is unclear is why Crown Law, on behalf of MoE, accepts that Mark was sexually assaulted many times based on information from MSD. But then MSD says it doesn’t accept that seeing Drake at Holdsworth caused him to fear the same kind of abuse again in that institution.
“What I don’t get is they accept it here, but not over there. You’re the same people. They’re saying he only did this in the South Island but in the North Island he was an angel.”
On the notion of “insufficient information”, Marks has a rather pointed response: “Who is going to record that? Oh yeah, in the day book it says that Drake has fucked three people in their arse today. And they deserved it. Come on. Most of the stuff they did they didn’t record in the day book. Who would. They’re idiots to even come out and say that.”
Marks’ experience of sexual abuse at Campbell Park and Drake’s repeated attempts to carry on that abuse at Holdsworth led to Marks running away on numerous occasions.
“He was the housemaster there with his own house within the compound. I thought, I’ve got to get out of here. Straight away I started running away with others. Straight away. I’m gapping it. I think I escaped there 48 times. I don’t know how many times but I ran out of times counting. The 48th was my last.”
“There’s a two-tier justice system where the Crown say, ‘We can’t be held responsible for what our employees did’.”
– Tyrone Marks
That last time he was riding a bike and was hit by a car on the open road that ran over him and dragged him and the bike underneath for some distance. He suffered massive injuries and the car had to be lifted off him. He had broken bones, spinal, pelvic and head injuries and loss of skin and tissue from being dragged on the road. It left him with one leg shorter than the other.
Welfare visited him in hospital once, and it was to bring kids along to show them: “This is what happens when you run away. And that’s it. They just left me there. My legal guardian, they had no interaction with me apart from that one visit. So they just left me to die. If I made it I made it, if I didn’t, well that’s what happens if you run away.” He was in hospital for six months, encased in plaster, and when I was fading in and out of consciousness there was often a priest sitting in the room ready to give him the last rites.
If that wasn’t bad enough, the next step would be the darkest chapter in Marks’ young life. Marks attributes the sexual abuse Drake committed against him leading directly to him ending up Lake Alice.
“Welcome to your next nightmare, you’re off to Lake Alice. I’m not fully repaired, I’m not right, I’m still sick and then they do the Lake Alice thing. If I had of known what was to come next I probably wouldn’t have fought for my own life. It was so hard to survive, to stay alive. If I had of known what was to come next I probably would have given up.”
He was taken from Holdsworth by the caretaker in a van and dropped off at Lake Alice. What came next was electrocution as punishment under the guise of treatment. Because the adolescent unit hadn’t been properly set up, he was also put in wards with criminally insane adults where he was sexually abused on the first night he was there. He was later abused by an older boy. At some point Marks says he told a staff member what Drake had done to him and this staff member made notes and filed some kind of complaint. When he went back to Holdsworth after his first stint at Lake Alice, Drake confronted him about the complaint.
“After I came back out of Lake Alice again he hit me up about that letter accusing him of interfering with us. We were giving our accounts to a staff member who was writing it down. He pushed me and I pushed him back and then I just flew into him. I thought fuck this, now I’m getting bigger and all the shit that happened to me, like Lake Alice, being run over, the shit that he did to me at Campbell Park, it had come to that boiling point. It was a full-on brawl. I went down and then back up again. I’m only young and full of energy. Then I got referred to the principal for my violent outburst. I was sent back to Lake Alice again.”
Marks is far from the only one to make allegations against Drake. MSD has 15 cases alleging sexual abuse and violence by Drake, three relating to Hokio and the others relating to Holdsworth. MSD is also aware of allegations relating to Campbell Park, which is the responsibility of MoE. But despite the numbers of allegations, MSD has consistently taken a position of denial regarding the most serious allegations against Drake. The denial in the letter to Marks was a typical response.
Marks’ lawyer Sonja Cooper represents numerous clients who have made allegations against Drake and the Crown’s response is the same – denial and minimisation. Cooper specifically mentioned Drake in evidence she gave to the Royal Commission: “In the course of settling historic claims, MSD has accepted allegations of sexual abuse by Mr Drake, although only where those allegations have been of lower level sexual assaults. MSD has not accepted allegations of rape by Mr Drake, despite the weight of evidence being against him.”
The admission from MoE comes as no surprise to Di Dickson, although she is scathing that it has taken so long. Dickson worked as an archivist at MoE for nearly seven years and was responsible for tracking down files relating to Campbell Park. She says the keeping of records has been negligent to the point of criminality.
“There is an awful lot of not accepting of allegations because ‘no supporting documentation was found’. But what happens if the information was supposed to be kept, and wasn’t? Or it was decided to not record allegations in the first place. Or the information was lost or destroyed? If you are the organisation which either didn’t keep, lost or destroyed records which would have been able to prove or disprove allegations, should you be able to claim that the absence of records is an indication of a lack of abuse? There is plenty of evidence of woeful destruction of records and incompetence in this area. This isn’t just records that should have been kept and weren’t, these are often records which were clearly identified as needing to be kept in perpetuity and weren’t – ie. Drake’s personnel file. If it is your job to keep the records, and you don’t, you can’t really use the fact that the records don’t exist as a reason not to accept liability.”
She has seen the expense MoE and other agencies have gone to in order to avoid taking responsibility.
“The settlement offers are a mere fraction of what government spent on their own wages denying the charges, and then to offer what is quite frankly an insulting amount which is not commensurate with other payouts is wrong. It is putting the onus on Tyrone to take the money and shut up.”
A former employee of MSD’s claims unit says the denial and minimisation that Cooper speaks of regarding allegations against Drake and other perpetrators is largely to do with reducing the cost.
“I think it was because they didn’t want to leave themselves open to more financial risk.
She says there is also a culture of using claimants’ adult histories against them.
“There is still a culture of trying to discredit claimants who have had criminal lives or drug abuse. It’s like the children were never believed because they were seen as naughty.
“MSD has a huge culture of punitiveness and blame. I don’t think it’s ever managed to extricate itself from that.”
The former employee handled a number of claims that included allegations against Drake and others while at MSD. The accounts from different individuals corroborated each other to the point she saw a clear pattern.
“I am really convinced there was a paedophile ring operating between Holdsworth and Lake Alice.”
The former employee says a legalistic approach crept into the unit that reflected a lack of empathy or understanding of the damage done by the manipulation and sexual abuse. This trauma was compounded by not believing credible allegations by claimants.
“I never had a chance like everybody else to live a normal life, to get a normal job and to be what I want to be, whatever I wanted be. It’s always been interfered with because I’ve been in the state system, because I’ve been in the prison system, in mental health.”
Sonja Cooper says there have been a number of alleged perpetrators where MSD denies the most serious allegations made by claimants. She says that this effectively reduces the payout to victims. A chart from MSD shows eight payment bands with the top payout being $55,000. But this is for what MSD describes as chronic and less than 2 percent of claims are assessed by MSD to reach that category. MSD offered Marks $15,000 as compensation for a litany of violence and abuse that he suffered in different institutions over the eight years he was a ward of the state. But MSD rejects a number of the allegations listed in his statement of claim. These levels of payout and how claims are assessed are not decisions made independently but decided by the Crown – the Crown also being the accused perpetrator. It is akin to a criminal getting to decide not just their sentence but whether they’re guilty or not.
Dr Stephen Winter, a professor at the University of Auckland, has researched compensation schemes for similar abuse in overseas jurisdictions. He compared New Zealand’s redress with Ireland and found Ireland’s compensation levels range from $87,000 up to $522,000. Forty-eight percent of claimants were paid between $87,000 and $170,000.
Marks’ MSD claim was assessed under the management of Garth Young (more on him later). The letter Marks received from MSD, signed by Delwyn Clement, Acting General Manager of Historic Claims, makes a settlement offer of $22,000 but “without acknowledgement of liability”. This is the Crown saying it does not accept responsibility. Even the letter from MoE, which admitted that Drake did sexually assault Marks “on many occasions”, also includes this denial of liability.
This denial of responsibility is a key to understanding the Crown’s behaviour and treatment of victims of state abuse. Throughout the last 50-plus years the Crown and its lawyers have twisted themselves into irrational and immoral knots, trying to find ways to get the state off the hook and avoid financial, legal and moral liability. When criminal acts are committed by employees of the state against children and vulnerable adults in their custody, which side does the state take? Does the state abide by the premise that no one is above the law and investigate and prosecute those employees to the full extent of that law, thereby opening itself up to potential liability? Or does it protect those state employees using all its resources and every legal trick in the book it has written? Does it not just throw victims under the bus but deliberately run them over with a legal bulldozer, thereby causing further harm and trauma? The state’s pattern of behaviour suggests it would rather cause further harm and trauma instead of taking responsibility and upholding the law. That pattern of behaviour is continuing as you read this. And that behaviour and those decisions are being carried out not by an abstraction called the state, but by individuals in positions of power.
Outrageous in the extreme
This pattern of revictimising victims has been going on for at least the past 30-odd years and has been carried out by governments on both sides of the aisle, although the Labour government under Helen Clark can shoulder much of the responsibility. The alarm bells started going off in government circles in the early to mid-1990s when legal claims started being filed about the Lake Alice psychiatric hospital. In particular, those claims related to the adolescent unit that ran there from 1972 to 1977.
The story of Lake Alice is a saga all of its own that can only be touched on briefly here. But when victims of Lake Alice started making civil claims about the abuse they suffered there they also mentioned previous abuse in other institutions like Holdsworth and Campbell Park. The adolescent unit at Lake Alice was simply the apex of a system of incarceration and punitive treatment of children that was run by the state. A network of welfare homes incarcerated thousands of children from the 1950s through to the 1990s and most of those who ended up at Lake Alice had previously been through one or more of those homes. And they were making allegations of abuse, including violence, sexual abuse and rape, that occurred in those institutions as well.
A claim by two victims was filed in 1994 and another one from a larger group was lodged in 1997 against the Ministry of Health, the entity responsible for Lake Alice. During internal discussions regarding the Lake Alice claims, officials and ministers from other government departments were alerted to the allegations of abuse in Social Welfare homes. This included Social Welfare, Treasury and the Department of the Prime Minister and Cabinet. Dame Margaret Bazley was chief executive of the Department of Social Welfare at the time.
In December 1998 a report and draft Cabinet paper was sent to Health Minister Bill English from Janice Wilson, Director of Mental Health and Chief Advisor. Besides summarising the torture and abuse at Lake Alice adolescent unit, 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.”
This is exactly what happened – since then thousands of claims have been filed against both MSD and MoE regarding abuse suffered by former wards of the state. Later on in November 2006 there was an inter-agency meeting about state abuse that included representatives from Department of Prime Minister and Cabinet, MSD, Corrections, Crown Law, Ministry of Justice, Ministry of Education, Treasury and State Services Commission. Crown Law gave an overview of Crown liability at that meeting and the group held further meetings the following year as claims were rapidly escalating.
Drake was the vice-principal and then acting principal at Holdsworth during the period the adolescent unit was run at Lake Alice and Holdsworth was one of the main conduits for children going to the unit. So the internal warnings about the legal risks associated with the welfare homes are highly likely to have included allegations against Drake. In fact, much of the deteriorating behaviour that got a number of kids sent to Lake Alice – running away in particular – was a direct result of the abuse by Drake and others at Holdsworth.
In February 1999, Gillian Durham, Deputy Director-General – Safety and Regulation Branch – sent a report to new Health Minister Wyatt Creech. In that report she outlined the fiscal implications of the Lake Alice claim, stating that it was “difficult to establish the magnitude of the costs” and flagging that there was a “risk of broadening claims in a litigation process to include, for example, claims of mistreatment in Social Welfare homes”. She noted that Treasury had suggested “an overall fiscal cap to limit the Crown’s fiscal exposure”. She added: “There are few precedents to draw on to estimate compensation which might be awarded or settled on.”
At this point the magnitude of the abuse that had occurred in state-run welfare homes was an unknown, but already bureaucrats were getting jittery about the cost. But those concerns were all about the risk to the Department and its financial and legal liability. Under a heading in the report “Department of Social Welfare Concerns” Durham stated that if the Lake Alice claimants filed court proceedings, the Department of Social Welfare may be dragged into the litigation. If that were to happen, she said that “a decision against the Department in these proceedings … could create precedents that are unfavorable to the Department … The publicity from such litigation would be likely to be highly prejudicial to the Department and could have a detrimental effect on public confidence in the Department, could act to encourage other potential litigants to issue proceedings against the Department not only in respect of the Lake Alice claims but in other similar factual situations, ie, where there is an allegation of abuse while a person was in the Department’s care.”
Ironically, a report from Selwyn Katene, Acting Deputy Director-General – Safety and Regulation Branch – also noted that “many of these people remain very angry about the treatment they believe they were subjected to, and their motivation in seeking compensation from the Crown is by no means for financial gain alone”.
Katene lays out the legal options that the Crown had to defend itself and recommended a meeting between the Ministers of Health, Social Welfare and Finance and the Treasurer to decide on a recommendation to Cabinet.
However, while Wilson, Durham and Katene were raising these fears of legal and financial liability for the Crown, there is no discussion of the impact of the abuse on the victims or the necessity of criminal investigations into what were allegations of serious crimes against children.
While the Lake Alice legal claims made the Department of Social Welfare (DSW) well aware of the allegations of abuse that were surfacing about state welfare homes, from as early as 1994 if not before, welfare staff files were destroyed in October 1999. Some of these staff files were later requested by lawyer Sonja Cooper during discovery in a test case called the White trial in 2007.
In a brief of evidence presented to the court in the White trial, MSD staff member Garth Young stated that: “I would expect there to be a staff or personnel file for each permanent Child Welfare or Department of Social Welfare staff member that would confirm their date of appointment to various positions and whether or not they were subject to any performance or disciplinary matters. Such files for some ex-staff relevant to these proceedings have been readily found, whereas there is no trace of such files for other staff members from similar time periods and locations. I understand that in October 1999 when CYF became a department in its own right many of the old closed records were retained in the custody and control of the parent organisation, the Ministry of Social Development. Some of these files, including old Human Resource personnel/staff files were subsequently destroyed. Of the 28 staff members named by the plaintiffs or by their similar fact witnesses, personnel files can be found for only six of them.”
John Drake’s HR files have not been found and a letter of complaint about him that Marks and others made while they were at Lake Alice has not been found. Was this crucial evidence simply lost in a routine purge? Why were these files not set aside as soon as the allegations began surfacing several years earlier? Or were they deliberately destroyed to obstruct any future investigation?
Garth Young was a key figure in DSW/MSD’s response to the claims of abuse. He was a former social worker and set up the historic claims unit in MSD and still works in it. He also recently checked and signed off on MSD’s response to Tyrone Marks, which included the denial of Marks being afraid of Drake because of past abuse. Young was involved in an interview with John Drake while he was still alive regarding the allegations of sexual abuse against him. He was accompanied by a lawyer from Crown Law.
The legal strategy that Crown Law deployed in the White trial was directly related to the allegations that surfaced in the Lake Alice claims. One of the options laid out by officials during the Lake Alice litigation was to use all available technical legal defences, ie. never mind morality, just win however you can. That option was likely chosen as a tactic in the White trial, because a loss in that case would mean the courts would independently decide the penalty, something the Crown was desperate to avoid. Another option was listed – that the Crown goes to litigation but waives the right to use technical defences. This option was not taken.
One of the central figures in the White trial was the cook at Hokio Beach School, Michael Ansell. He’d been convicted of six indecent assault charges involving three boys at Hokio in 1976. Other information on file suggests police weren’t told about more serious offences, including anal rape, and there weren’t any further inquiries about other potential victims.
When confronted with the allegations at the time, Ansell said “I suppose it had to come out in the open some time.”
This offending against children at Hokio could have been prevented – if DSW had carried out a police check on Ansell before he started at Hokio they would have discovered that he had prior convictions for sexual abuse in 1969.
Despite these convictions, the Crown went ahead with aggressively defending itself in 2007 against similar allegations against Ansell by Earl White (pseudonym to protect his identity). The case was not just about proving the sexual abuse allegations – the claimant also had to prove that the abuse had caused them harm, or a mental injury. It had to be proven that there was a causative link between the abuse the claimant suffered and later impacts on his life. It was this legal hurdle that proved to be too high to surmount. The process of trying to prove this was also the cause of further trauma and distress.
In the lead-up to the trial, Earl White had to give an interview to a psychiatrist representing the Crown, Dr Chaplow. “I didn’t feel comfortable talking to Dr Chaplow. It seemed to me that he was blaming me for everything that had happened to me, especially the sexual abuse. He asked me why I had let it happen to me so many times. I kept thinking, ‘But I was only a boy and Mr Ansell was an adult in a position of power.’ I was really upset and distressed by this, and it made me even more depressed for many months afterwards.”
During the preparation for the White trial, Crown Law/MSD used private investigators to try and find information about claimants and witnesses. MSD denied this when questioned in 2016, a denial that was later found to be untrue when an inquiry by the State Services Commission discovered that Crown Law/MSD had spent $90,000 on private investigators for the trial. This was found by the inquiry to be a breach of the government code of ethics. The irony was that the head of State Services, Peter Hughes, was the chief executive of MSD in 2007 when it was defending itself in the White trial. In his response to the report as State Services Commissioner, Peter Hughes stated: “It is never acceptable to gather information about people or groups for the sole purpose of managing reputational risk to an agency.” And yet that is exactly what had happened on his watch at MSD. Not only were the private investigators approaching witnesses, they were also talking to MSD staff without those staff understanding clearly who the investigators were or what their role was. The report found that: “in February 2007, MSD raised a concern about the reputational risk for the organisation if MSD staff knew that a private investigator was interviewing them. It was suggested that the investigator be presented as part of the litigation team, rather than as a private investigator.” In short, MSD management was misleading its own employees.
Earl White’s daughter and sister were approached by the private investigators, which he found distressing: “For me, amongst all the terrible things I was put through, the use of the private investigator was disgusting and unforgivable.”
Despite this breach of the code of conduct, the Crown accused White of an “abuse of process” by continuing the litigation.
The claimants in the case were cross examined by Kristy McDonald QC. At one point she repeatedly asked Earl White about details of the sexual abuse. In his evidence to the Royal Commission White said: “The Crown’s lawyer (Kristy McDonald QC) was asking a lot of detailed questions about the sexual abuse by Mr Ansell. The Judge interrupted and asked where the questions were going because it appeared that she was suggesting I consented to the sexual assaults as a child.” In response to the Judge’s question, McDonald denied this was what she was doing.
McDonald was awarded an ONZM in 2019.
Despite the Crown’s litigation strategy, the judge found that the abuse had occurred, which Earl White found to be some measure of validation: “In the High Court, the Judge accepted I had been physically abused at both Epuni and Hokio, and also that I had been sexually abused by Mr Ansell as I had described, on at least 13 occasions when I was taken to his home.”
However, the Crown won the case on the tactics it used – technicalities. The main reason the Crown won was through statute of limitations, which means most claims have to be laid within six years of the victim turning 20 to be eligible for compensation. This is in contrast to charges being tried in the criminal court which can be laid decades later, such as those now pending regarding allegations against former staff of Dilworth School.
Justice Miller also found that Earl White had not proved that the abuse had caused him significant harm, attributing his later difficulties predominantly to his family background and not the abuse in state care.
“The Judge accepted the evidence of the Crown’s psychiatric experts and also that I had ‘not proved on the balance of probabilities that it had a material impact’, and that my ‘early childhood experiences are dominant, if not the overwhelming cause of [my] difficulties’. To me it was extraordinary for the Judge to accept I had been physically and sexually abused repeatedly over a number of years, but that it hadn’t had any effect on my life. I could not believe that finding then, and still can’t today.”
The Crown didn’t have to use the statute of limitations argument in its legal strategy. It was a choice, one that was signed off by the government. Michael Cullen was the Attorney-General at the time. The Solicitor-Generals during the preparation for the trial and during the trial itself were Terence Arnold QC and David Collins QC. They later went on to become judges.
Earl White received a letter from MSD chief executive Peter Hughes and an ex gratia payment of $25,000. Again, the letter reaffirmed the court’s decision that MSD was not legally liable. To this day White is still incredulous: “I felt disgusted and insulted and violated all over again. I feel I have been cheated out of a legitimate claim that was proved. The amount I was paid is a joke and insult against the repeated sexual and physical abuse the Court found happened. It is hard to reconcile when compared with the huge cost to the Crown, not only the cost of the Crown’s lawyers, but also my legal aid and the costs of the Judge and other department and court staff.”
The court decision in the White trial gave all the power to the Crown, which it had anyway. The state got to decide how it handled allegations, who was guilty or not guilty, what the level of compensation should be – basically the whole process from start to finish. The entity accused of the crimes got to be the judge and jury. This became embedded in the Crown’s approach when Cabinet effectively adopted the defence strategy in the White trial as the government’s litigation strategy in May 2008. It was then reviewed in 2011 and reaffirmed.
In hindsight, Earl White believes he and his brother were pawns in a larger game the Crown was playing: “I feel we got caught in the legal cross-fire. Having thought about it over the years, I feel we were dragged through the courts so the Crown could use our case to test things like the Limitation Act and the ACC bar, so they could stop future claims being made, and limit what they paid other victims of abuse who came forward.”
If victims didn’t like this scenario they could take it to court, but the court had already told them they’d probably lose.
This was essentially what Crown lawyer Una Jagose said to claimant Keith Wiffin in 2009 when he made allegations against staff member Alan Moncrieff-Wright, who’d worked at Epuni Boys home. Referring to the allegations of sexual abuse, Jagose’s reply to Wiffin in a letter neither confirmed nor denied the allegations, but said that Wiffin faced “considerable legal hurdles.” What Jagose didn’t say is that those hurdles, the statute of limitations and ACC, could have been waived but were instead used as a weapon against claimants.
This response was made despite the Crown having full knowledge that Moncrieff-Wright had previous convictions for sexually abusing boys aged 12 to 16, boys who were in the same institution as Wiffin at around the same time. Moncrieff-Wright had been convicted in 1972 for indecent assault on four boys aged between 12 and 14 and again in 1988 for anal rape of two boys aged 14 and 16. The convictions related to Moncrieff-Wright’s time at Epuni. MSD also settled a claim that included allegations of abuse against him when he worked at Hamilton Boys’ Home, which was before he worked at Epuni.
In his evidence to the Royal Commission, Wiffin expressed extreme skepticism about Crown Law and MSD’s response: “I still struggle to believe that in the whole ‘investigation’ no one spoke to Mr Moncreiff-Wright. Crown Law and MSD knew that Mr Moncreiff-Wright was a convicted paedophile. I believe that this was because they were worried about what else they might find out if they did talk to him, in particular whether he would corroborate my claim.”
“MSD seemed to be protective of its own staff, even those with criminal convictions for abusing children.”
The Crown only backed down when the perpetrator was confronted by the media and later charged and convicted again. In 2011 Moncrieff-Wright was convicted of sexual offences against Wiffin and two other victims. Moncrieff-Wright committed suicide when police started investigating further allegations.
Crown Law may now regret treating Wiffin with such disdain. It was Wiffin who lobbied the Labour Party while they were in opposition to hold an inquiry if they got into government. It was that lobbying that led to a Royal Commission that is now investigating Crown Law’s decisions and actions.
Despite these decisions and actions of the Crown, those most involved in carrying out the state’s response continued to advance in their careers – Peter Hughes, who was chief executive of MSD at the time, is now the State Services Commissioner and Jagose moved up the ladder at Crown Law and is currently Solicitor-General. The Solicitor-General from 2000 until late 2006, which was the period leading up to the White trial and included negotiations regarding Lake Alice, was Terence Arnold. He went on to be judge on the Supreme Court and has been knighted. David Collins, Solicitor General from 2007 to 2013, also went on to become a judge.
Follow the money
What it all comes down to is money. The Crown wants to be the arbiter of measuring the harm it has inflicted on children and how much it should pay the victims of its own gross negligence.
A Cabinet paper from Anne Tolley, Minister of MSD, in 2013 quoted an analysis that “a steadily declining number of claims will be made over coming years”.
The purpose of the paper was to request the $26 million budgeted to settle claims for 2020-2027 be brought forward to cover the shortfall anticipated from 2014 to 2020 because of a backlog of claims. The idea that claims would taper off was built partially on the assumption that the victims were dying off. The Cabinet paper added: “While the Ministry has committed to resolving those claims by 31 December 2020, the possibility of further claims being made through the Courts from 2021 onwards cannot be discounted. It will not be until 2050 that, through natural attrition of the ageing population of eligible claimants, no further pre-1993 claims will be received.”
“MSD seemed to be protective of its own staff, even those with criminal convictions for abusing children.”
– Keith Wiffin
However, this assumption is dubious. For one, Cooper Legal’s business has not slowed down and the backlog of claims has never been cleared. Furthermore, the claimants walking through their doors are getting younger and younger. Some of the abuse these claimants are describing are in many respects as bad or worse than the “historic” abuse of the pre-1993 era. Cooper says the Australian Royal Commission into sexual abuse found that it takes, on average, 22 years for victims of sexual abuse to come forward, meaning there is a huge cohort of potential victims that simply aren’t visible yet.
The court’s decision in the White trial that MSD didn’t have to pay compensation to Earl White was partly founded on the option of a remedy being available through ACC. However, this process is just as flawed as the other processes the state has subjected victims to. Like civil litigation, the victim has to prove not only the abuse but that the abuse caused a definable mental injury.
Some time after the court litigation, White approached ACC. It was almost as bad as the litigation experience itself he says: “That was also a difficult and unsatisfactory process. I had to see a psychiatrist or psychologist (I don’t recall which) and then the information was sent to someone else who ‘rated’ my case on an American system which came out at around 16-17 percent impairment. I felt really cheated as that rating didn’t seem to relate at all to what the psychiatrist or psychologist report said, and what had actually happened to me. I felt it totally minimised what I had gone through, and made me feel victimised all over again. I felt the same way I did when I got the court judgment, and suffered further depression for several months.”
A review of the ACC sensitive claims process in 2010 was led by Dr Barbara Disley, who was previously the head of the Mental Health Foundation. Many of the submissions for the ACC review echoed Earl White’s experience, particularly the process to assess whether the sexual abuse caused a mental injury. The report pointed out that: “It is clear that for most people the immediate aftermath of a sexual assault or the time when they first disclose historical sexual abuse is a time of great vulnerability.” Many of the submissions spoke of the trauma caused by having their sexual abuse claims assessed, ranked and sometimes rejected by ACC as the cause of further trauma and distress.
The panel also mentioned how many submissions raised questions about whether ACC was even the most appropriate forum for survivors of sexual abuse. “Several of the written and oral submissions to the Panel raised questions about whether having the treatment of sexual abuse victims covered under ACC was the most appropriate arrangement. A number of submissions made the point that sexual abuse is not accidental and does not therefore fit easily within arrangements designed to provide for no-fault accident compensation and treatment.”
This question is amplified when the perpetrators of the abuse were state employees and the Crown is the defendant in legal proceedings. How appropriate is it that ACC, another branch of the state, gets to be the judge regarding the state’s responsibility for the harm caused to children in its care? That question is particularly pointed when the harm is sexual abuse.
The Crown’s legalistic attitude of protecting its finances rather than seeking a just outcome for victims has also undermined police investigations into child abusers who worked for the state.
Alf is another survivor who made complaints about Drake both at the time the abuse was happening and to the police and MSD when he was an adult. Alf was in Holdsworth at a similar time to Tyrone Marks in the early 1970s. He’d ended up in Epuni after his mother died: “I was locked up all the time because I was running away all the time. Then I went to Holdsworth where I met Drake. He was sexually abusing me. When I went to Holdsworth I was homesick for Epuni, how sad is that? (Drake) befriended me and that’s where the abuse came along. I came to my senses, this is fucken wrong what he’s doing. I started complaining.”
He told other staff members about Drake sexually abusing him, but nothing significant was done about it. When Drake found out about the complaints he beat Alf up on a number of occasions. “I didn’t know the word child abuser, I said he’s doing things that aren’t right. So he was coming at night time, dragging me out of the bed, throwing me in the ablutions and giving me hidings. I copped a few hidings like that. I told a few housemasters but no one listened.” He says he told the principal what was happening and was beaten up as a result.
Alf was sent from Holdsworth to Lake Alice on two occasions. On the second occasion Alf was lured out of a classroom by a teacher he trusted. When they got outside the building Drake and a nurse from Lake Alice were waiting for him. He was given a beating and then bundled into a car and taken to Lake Alice.
“I got shoved in villa eight with the most looniest patients in maximum security. I was put in a strait jacket in a padded cell. It was unbelievable, no clothes on. All night and all day for about two days I was being called a black cunt, a little black cunt, they said they were going to put me down with the mental patients and I’d be raped. I was terrified. Then I was knocked out by pills. Every time I came around from being knocked out in villa eight, there was a male nurse. He was another child molester. I woke up all drugged up, fuck, I’ve got no clothes on, he’s holding my fucken hand. He’d put more pills in me and I’d be knocked out. For a good two weeks I was drugged out. He could have been bumming me and everything and I wouldn’t know.
“I had ECT, I know exactly what that’s all about. Fuck it was the worst pain.”
Alf later joined the Mongrel Mob and says the abuse left him with a rage that even his fellow Mobsters found alarming.
“I used to have rages where I’d black out when I had fights. I’d come to after the fights, fuck, what happened? I couldn’t remember myself. I wouldn’t tell people. People would say, ‘Fuck, Alf, you were unreal, you were doing this and doing that,’ but I couldn’t remember a thing. I just went along with it, ‘Oh, yeah, yeah, of course’. But really I didn’t remember one thing. It scared me. I could kill someone or get killed and not even know. But I believe that was from the treatment that happened to me. People react differently. Some people become drug addicts or commit suicide. I had rage. I never got it sorted until I was in my 40s.”
In early 2004 Alf filed a statement of claim through Cooper Legal that included allegations against Drake. His claim was among a number that kicked off MSD’s response. Mike Doolan, the Principal at Holdsworth after Alf left, emailed a response to CYFS in July 2004 to say that he was aware at the time that there was a complaint or complaints of a sexual nature made against Drake and some kind of investigation had been carried out MSD says it can’t find the documents relating to this investigation. Both Alf and Marks are adamant that they made a written complaint in the 1970s, but this has never been found.
Alf had a meeting with Garth Young regarding his claim at MSD’s offices and regards him with contempt. “He was arrogant. He smirked all the way through”. On December 4, 2007 Alf made a complaint to the police about the sexual abuse by Drake. Late in 2007 MSD advised police that five other former students had alleged sexual abuse by Drake, although they didn’t make police complaints. On January 11, 2008, Alf made a formal and detailed complaint about Drake to police. The statement included allegations of numerous sexual offences, including rape. He was 11 at the time of the abuse.
There is a note on the file that police had spoken to Crown Law, asking them not to approach Drake because of the criminal investigation, but noting that they could not enforce this: “As at December 2007 the Ministry of Social Development [MSD] was in receipt of eight civil claims filed against DRAKE [Alf being one of those]. Discussions held with Crown Law [who are acting for the MSD in the civil claims against DRAKE] regarding the Police’s view on Crown Law approaching DRAKE and advising him of Police involvement. We advised that we would prefer they did not but obviously could not do anything to stop them.”
There is also a note on the police file that they received a phone call from Sally McKechnie of Crown Law advising that they were acting for MSD in Alf’s civil claim against Drake. McKechnie was wanting to check with police about speaking to Drake to get a sworn statement because of his age and poor health. This approach in December of 2007 to check with police was made notwithstanding that MSD staff member Garth Young and a Crown Lawyer had already interviewed Drake in July. They gave him copies of all the statements of claim and he denied the allegations in them. The apparent courtesy call is also at odds with the approach Crown Law were taking with Keith Wiffin’s claim around the same time.
In September 2008, Wiffin’s lawyer Sonja Cooper received a letter from McKechnie. Wiffin gave evidence at the Royal Commission about this: “The Crown said that if I proceeded with the criminal process, they might be unable to speak to Mr Moncreiff-Wright or otherwise investigate the allegation against him. This led me to believe that the Crown wanted to speak with Mr Moncreiff-Wright and would do that as part of their investigation, unless I proceeded with a criminal complaint. My lawyer responded a week later and said I would not be proceeding with a criminal complaint at that stage. From my perspective, this cleared the way for Crown Law to speak to Mr Moncreiff-Wright. I fully expected them to do that.”
Crown Law did not do that, despite their assurances. Wiffin eventually did make a formal complaint to the police and Moncrieff-Wright was convicted, but MSD had effectively held up that investigation with their deception.
“I was shattered to learn that MSD’s investigation of my case had been so incomplete. The Crown’s letter in September 2008 had led me to believe they would be interviewing Moncreiff-Wright, and I could only speculate as to MSD’s motives for failing to speak to Mr Moncreiff-Wright, particularly when they knew he had convictions for sexually abusing young boys from the same period as the abuse against me.”
McKechnie is now legal counsel representing the Catholic Church in the Royal Commission.
While police were trying to investigate Drake and Moncrieff-Wright for allegations of sexual abuse, Crown Law was preparing to defend MSD in court regarding the same allegations. The conflict of interest between government departments was not just a perception.
Police eventually spoke to Drake in April 2009 when he denied the allegations, but was supposedly too unwell to make a statement. However, he was not too unwell to give a sworn statement to Crown Law five months later in September, a statement that was intended for MSD’s defence. In that statement, Drake said that Arthur Ricketts from Owairaka told him to be careful about Alf because he was “known to make sexual abuse complaints”. The problem with this detail is that Alf went to Owairaka after Holdsworth. MSD could have checked this against the files it held on Alf but this falsehood made it into the statement anyway. This affidavit was filed in the High Court on behalf of the Attorney-General, Chris Finlayson.
Police found records that refer to complaints that had been made about Drake between June 14, 1972 and September 13, 1973, which was when Alf was at Holdsworth. A March 1975 DSW inspection report by Robin Wilson stated that Drake was “still very concerned about the incident two years ago in which his behaviour and attitude towards the boys in the institution were severely questioned. He claims that now he keeps his distance from the boys and this affects both his work and his job satisfaction.” There are no records of the original investigation.
An internal MSD summary about Drake shows that an allegation was made in September 2007 of sexual abuse against him relating to when he was working at Hokio Beach School between 1965-67. The summary also mentions that in 1972 after Drake had left Hokio and gone to work at Holdsworth, an investigation was carried out into some form of sexual impropriety at Holdsworth by Drake and another staff member, Duncan McDonald. The police also interviewed an acting principal, John Watson, from that period who heard allegations from some of the boys about McDonald and Drake and immediately suspended them and told them to move off the property. They initially objected but he threatened to call the police and they complied.
The boys had reported that Drake and McDonald were taking boys to their flats on the Holdsworth grounds and indecently assaulting them. It was also alleged that they would sit on boys’ beds at night and kiss and fondle them. McDonald was later moved from Holdsworth and redeployed to Weymouth Girls Home.
Later James Duncan McDonald was convicted of 11 sex offences in 1978 (2x) and then again in 1988 (9x) both in the Papakura District Court. The offences were committed on boys and girls over the years from 1968 to 1982. The charges dated back to the period McDonald was at Holdsworth.
But John Drake was never convicted, despite the numerous allegations and mountain of evidence. He died in Whanganui on New Year’s Day 2011, and the police investigation that could have brought him to justice died with him. It had been four years since Alf made his allegations to both MSD and police. Others had also made allegations to MSD at the same time.
But police only found out about Drake’s death after the investigation had sat dormant for more than 12 months. It wasn’t the detectives who held it up, it was lawyers. On December 23, 2010 Detective Senior Sergeant Tusha Penny wrote to a colleague about the investigation into Alf’s allegations, expressing alarm at the delay: “Between the end of 2007 and September 2009, inquiries were conducted by several investigators who had ownership of the case during that time. In September 2009 the file was forwarded to Wellington Legal Section for an opinion where it remained until October 2010. The delay with this file is unacceptable and will be addressed in the New Year.” John Drake would die on New Year’s Day, just over a week after that report was filed. Police wouldn’t establish this until weeks later.
Wellington Legal Section is a lawyer or lawyers attached to that police branch that provide advice to police. There is no explanation for this delay in the police file that has been viewed. The police file as a whole shows that a succession of detectives handled the investigation and all of them went to some lengths to track down former staff and others who could possibly provide evidence.
In an internal police report on February 17, 2011, Detective Daniel Keno of the Wellington District Child Protection Unit wrote: “Given the fact that the suspect (Drake) is deceased this is at a ‘dead end’ in terms of further investigation. I feel that given the undue delay in investigating this matter a personal apology is required. I am happy to do this. Please advise.”
Tusha Penny herself eventually contacted Alf via email, saying: “I appreciate that in relation to the matter that I have on my desk in respect of Mr John Drake you have not been treated adequately by police and I would like to discuss this with you and offer my apologies. I do not wish to have contact via email as I believe that you are owed more than that and at the minimum I would like to actually speak to you on the telephone.”
Alf replied that he was willing to talk but he had “a few questions that I may ask you if you don’t mind”. “But I do know this, police pick and choose who they prosecute when it comes down to these sex charges. I will listen to what you have to say.”
After speaking on the phone to Alf, Penny reiterated the apology: “Again, and in print I want to formally apologise to you on behalf of the police for the delay in dealing with your investigation. Unfortunately now that John Drake is dead we cannot proceed with your complaint and it will be filed. I want to reiterate a comment I made on the phone and that is that it does not matter about what history you may have – you deserved to have this matter appropriately resolved and dealt with. Please do not think that this is the treatment you deserved as it is simply not so.”
Alf believes the apology from Penny was heartfelt and sincere. She implied to him that police believed Drake was a paedophile.
The Ministers of Police during the Lake Alice and Drake investigations were Annette King and then Judith Collins.
There’s another connection to Lake Alice – the failed police investigation into the allegations against Drake occurred at the same time as the police failed to investigate allegations against former staff of Lake Alice. Both Alf and Marks went through the Lake Alice adolescent unit that was run by Dr Selwyn Leeks from 1972 to 1977, although Marks’ first stint was before the unit was set up.
A report in 2002 from retired Justice Sir Jeremy Gallen found that the abuse alleged by the victims was “outrageous in the extreme”. The internal report leaked to the media and the Crown tried unsuccessfully to have it suppressed through the courts. Gallen found that ECT, or electrocution, was “administered not as therapy in the ordinary sense of that word, but as a punishment”. He also verified that ECT had been used on parts of the body other than the head: “Several claim, and there is corroboration from other unrelated statements, that ECT was administered to the genitals.” He said he found compelling evidence that verified the victims’ accounts of being sexually abused: “A number of claimants, both male and female, allege that they were subjected to sexual abuse from staff members or from other inmates, while at Lake Alice. The detail associated with such accounts, together with certain other corroborative material, establishes that behaviour of this kind did occur.”
After the government under Helen Clark reached a financial settlement with victims of the adolescent unit at Lake Alice that included a written apology from Clark, the claimants’ lawyer Grant Cameron handed over 41 of the files to police as part of a criminal complaint. The central allegations were that the victims were illegally detained and tortured. While the police were supposedly investigating, Crown Law took statements from 38 former staff members of Lake Alice. But Crown Law took the statements not as evidence in a criminal investigation. The statements were likely taken in order to protect the staff members because they were former state employees and any liability attached to them would also implicate the Crown. At the time of the police investigation, Crown Law withheld these statements from police, claiming legal privilege. Michael Cullen was Attorney-General at the time.
But while Crown Law was defending the Crown, ministers and the officials advising them knew before the criminal complaint was even laid that the gist of the allegations were true. Health Minister Annette King received a report from the Ministry of Health in 2000 that acknowledged “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”. A ministry report for a Cabinet committee in December 2001, signed by Annette King, admitted that the Child and Adolescent Unit at Lake Alice Hospital was “unusual in a number of respects”. It acknowledged three of the central assertions of the criminal complaint – that many of the children had no mental illness that justified their committal to Lake Alice, ie. that they were illegally detained; the electrocution by ECT was punishment and not treatment; and that Dr Selwyn Leeks was acting with “little effective supervision or control by the Hospital Superintendent”.
Despite the Crown knowing this and the conclusions of Justice Gallen, the police investigation was completely ineffectual. Furthermore, David Collins QC, who represented a second group of Lake Alice claimants, told a victim advocate in 2006 that “if the police had seen the files that I have, they would lay a charge.” Shortly after that conversation, Collins was appointed Solicitor-General and he is now a judge.
The police received at least 20 of the 41 complaints about Lake Alice that Justice Gallen had seen in 2002. In a report from Assistant Commissioner Malcolm Burgess in 2010, he laid out what the police did over eight years. He said: “Allegations of sexual offending have not been pursued. Those allegations have either already been dealt with by the authorities, are so vague as to make any investigation all but impossible, or the suspect and/or complainant is dead.”
It’s unclear what authorities Burgess is referring to or how they dealt with the allegations. Police sought advice from Crown Law – the entity which had just been defending the Crown against litigation regarding Lake Alice – about one complainant’s file which police decided was representative. Crown Law provided an opinion on this file that there was “insufficient evidence for police to consider laying criminal charges” but Crown Law was also withholding potentially crucial evidence in the form of the interviews with former staff. When the National government came in, Attorney-General Chris Finlayson waived legal privilege over six of the statements from Lake Alice staff and provided them to the police investigation, but retained legal privilege over 32 others. Apart from one complainant, Paul Zentveld, who approached the police in 2006, the report doesn’t say whether the police interviewed any other victims of which there were hundreds. There is a mention of one police officer interviewing a teacher from Lake Alice.
Dr Leeks declined to be interviewed by police on legal advice. But he cooperated with Crown Law when both he and the Crown were named in civil litigation relating to Lake Alice.
It is now known that Crown Law and the Ministry of Health were going out of their way to nullify the allegations about Lake Alice. Leonie McInroe spent over 18 months – one of the longest periods by an individual – in the Lake Alice adolescent unit. She was the first to file a claim against the government for what happened to her and it took a further nine years of litigation, and the trauma that went with it, to reach a settlement she regards as paltry and insulting. She recently gave evidence at the Royal Commission not only about the torture at Lake Alice but also the abysmal treatment by those in Crown Law who defended it over those nine years.
She attended mediation with Crown officials and Dr Leeks in a clandestine meeting organised by the Crown to avoid publicity. She says they deliberately seated Dr Leeks in front of her, which she found immensely distressing. McInroe and her lawyers were outnumbered by Crown officials, which included Janice Wilson, the Director of Mental Health at MoH. She was the same Janice Wilson, Director of Mental Health, who had signed a report with Bill English that many of the children at Lake Alice had also gone through welfare homes.
The whole process was similar to that for the White trial and ACC claimants – McInroe not only had to legally prove the abuse, she had to legally prove it had caused her harm. While she was trying to prove these points, the Crown was trying to disprove them. As part of that process, McInroe was required to hand over personal diaries she’d kept. When she finally got them back they were festooned with post-it notes, which told her complete strangers had been poring over her private thoughts and feelings to try and discredit her.
“I had gained an impression from early on in the proceedings that the Crown were protecting Dr Leeks and I continued with this impression throughout the whole period of my litigation, including the mediation. I continue to believe this today, given the fact he was not ever held accountable in law for what he had done to vulnerable children and there was plenty of evidence that what he was doing was not acceptable practice at the time.
“I do not believe that in our justice system we are protected when the Crown is the accused.”
She characterised the whole process as “trickery”.
Yet despite all this potential evidence from hundreds of victims who were never spoken to, despite the damning conclusions of Justice Gallen, despite the information held by Crown Law and MoH officials that wasn’t released to police, and the knowledge of Bill English, Annette King, Michael Cullen, Margaret Wilson and Helen Clark about what happened, in 2010 Burgess concluded that “a decision has been taken that there will be no prosecution in this case”.
Zentveld was not happy with this decision and took a case to the UN. In 2013 the UN asked the New Zealand government to reopen the investigation into Lake Alice. This didn’t happen and in 2016 the UN criticised the New Zealand government for not properly investigating allegations of torture. Ironically, the government at the time of that failure was led by Helen Clark, who launched her bid for the top job at the UN in 2016.
In 2019, the UN found that New Zealand had breached the Convention Against Torture. As a result: “the Committee considers that the State party’s failure to conduct an effective investigation into the circumstances surrounding the acts of torture and ill-treatment suffered by the complainant while admitted at the Child and Adolescent Unit of the Lake Alice Psychiatric Hospital is incompatible with the State party’s obligations under articles 12, 13 and 14 of the Convention (Against Torture).” The UN asked for a proper investigation and compensation for victims. The New Zealand government is yet to respond.
But whether it’s MSD, MoE, MoH, ACC or the police, the common denominator that runs through all of them in their response to victims of state abuse is Crown Law. It is Crown Law that has decided the legal strategy on how to respond to victims of state abuse – abuse that includes rape and torture of children – and it is Crown Law that has advised both ministers and ministries on their response to allegations of abuse by state employees.
In my view, the experience of survivors, along with the trail of documents and other evidence, shows a pattern. Crown ministers, officials and lawyers involved in responding to credible allegations of serious abuse of children at the hands of the state have been primarily concerned with minimising liability or, to put it another way, shirking responsibility. While state agencies have been willing and able to coordinate to fend off these allegations of abuse, they have been completely unwilling to seriously acknowledge, let alone respond, in any meaningful way to the immense trauma caused by that abuse. The trauma associated with being removed from one’s family, suffering serious violence and chronic sexual abuse, being subjected to prolonged periods of solitary confinement as a child, receiving no education of any merit – all of this and the serious lifelong implications for thousands of victims of state abuse has never been seriously recognised by the state.
These victims carry multiple complications of PTSD that have led to many ending up in the criminal justice system and mental health system where they suffer further because the causes of their behaviour and difficulties are not recognised. You can’t fix a problem you don’t understand. The individuals themselves carry these consequences but so do their children and grandchildren. Their whānau and communities not only have to live with these consequences but they have also missed out on the potential that these individuals had stolen from them when they were children.
Currently at the head of Crown Law is Una Jagose, Solicitor-General, who has been deeply involved in the Crown’s response over the last two decades. And what is her view on Crown Law’s decisions during that time? The clearest answer to that will be when Jagose gives evidence at the Royal Commission starting on October 30.
If Jagose argues that Crown Law did the right thing while defending the Crown, will Jacinda Ardern agree? And if so then why spend $80 million on a Royal Commission when there’s nothing to see here?
Despite the Royal Commission’s considerable powers, it can only make recommendations. Before these recommendations are even made, they are at risk of being stifled and diluted by legal and ministerial advisors who were involved in some of the identified failings. The Royal Commission cannot assess or provide compensation and it cannot prosecute crimes. It is currently holding a hearing into the government’s redress response and it is arguably the inadequacy of this response that led to the inquiry in the first place. But initially the decisions and actions of the state regarding its response was largely beyond the commission’s scope as the timeframe ended in 1999. The commission has since been given discretion to investigate after this date and is currently doing so.
For victim advocates, the 1999 date never made any sense anyway, unless it was to protect the Helen Clark government from scrutiny. But although the Helen Clark government has long been replaced, the government agencies and officials involved in responding to victims of state abuse are still very much in operation. Officials in both Crown Law and MSD had input into the terms of reference in the initial set-up of the inquiry. In November 2017, Grainne Moss, currently the chief executive of Oranga Tamariki, Brendon Boyle, chief executive of MSD, and Linda Hrstich-Meyer, director of MSD’s claims resolution, met with minister Tracey Martin to discuss the form and scope of what would become the Royal Commission. This was a monumental failure to understand the nature of the inquiry and the conflict of interest those agencies had. Oranga Tamariki under Moss has since been the subject of a number of damming reports about its removal of Māori children, a central aspect of the inquiry. The commission has recently been hearing scathing testimony from survivors about how MSD has handled their complaints of abuse while they were in the care of the state.
The commission was initially given a scope that was focused on investigating the abuse carried out by state employees like John Drake decades ago. But it must also investigate those who made decisions about why those perpetrators were never properly investigated in recent years and how their victims were treated appallingly in the process. Many of the officials that made those decisions and advised their political masters are in the top echelons of state agencies in the present day.
For Marks, like many others, he’s been fighting generations of such officials and state employees since his childhood whether it was resisting their predations, running away, fighting back, taking legal action or advocating for himself and others. Decent compensation is important to him, but it is secondary to the Crown taking full responsibility for its failures and crimes: “I want them to accept and acknowledge that what they let happen to me is their responsibility. That’s the biggest thing. The other thing is for them to take the responsibility for that in terms of rehabilitation and compensation. You fucken ruined my life, so you’ve got to pay. You’ve got to pay proper compensation for the potential loss of earnings, what I could have earned and what I could have been. I never had a chance like everybody else to live a normal life, to get a normal job and to be what I want to be, whatever I wanted be. It’s always been interfered with because I’ve been in the state system, because I’ve been in the prison system, in mental health.”
It’s not like Marks hasn’t made any effort to overcome his childhood. In the early 1980s he tried to join the army with the intention of going into the SAS. He got through the first stage of the process but then got knocked back when a background check revealed he’d been in Lake Alice.
When he left the welfare system he went to a college that assessed his literacy levels and found that at 14 he had the reading level of a seven-year-old. He was given special dispensation to leave school early and then had to teach himself to read and write. Later on he completed tertiary qualifications in counselling, at his own expense and through significant struggle. But he has repeatedly had doors shut because of his childhood record of Lake Alice. The health system that tortured him now brands him with a curse that was never justified in the first place – numerous reports, including from the Ombudsman and the Ministry of Health itself, have found that children were illegally detained. He should not have been in Lake Alice, let alone tortured there.
Despite these setbacks he has raised four adult daughters and is raising two younger children.
Even if a proper apology and compensation were forthcoming, it can never give Marks or others back what they lost at the hands of perpetrators like Drake.
“When that innocence gets taken away from a child, it’s gone. The abuse gets embedded in your head as a kid. It never goes away.”
Where to get help:
1737, Need to talk? Free call or text 1737 any time for support from a trained counsellor
Lifeline – 0800 543 354 or (09) 5222 999 within Auckland
Samaritans – 0800 726 666
Suicide Crisis Helpline – 0508 828 865 (0508 TAUTOKO)
thelowdown.co.nz – or email firstname.lastname@example.org or free text 5626
Anxiety New Zealand – 0800 ANXIETY (0800 269 4389)
Supporting Families in Mental Illness – 0800 732 825
By Aaron Smale
Published in Newsroom
15 Oct 2020