Crown resistance despite strong evidence of abuse

Keith Wiffin was eight when his father died suddenly in the late 1960s.[i] Keith struggled with grief in the years that followed, as did his mother and three siblings, and in November 1970 Keith was placed in State care and taken to Epuni Boys’ Home.

There had been no abuse in his own home, but at Epuni Boys’ Home Keith walked into a deeply troubled institution with an entrenched culture of abuse. One of the housemasters, Alan Moncreif-Wright, repeatedly sexually assaulted him. Other staff physically assaulted him and psychologically abused him. So, too, did some of the other children – right under the nose of staff, and sometimes with their encouragement. The abuse continued in different forms in subsequent State institutions.

Keith described the abuse as having a devastating effect on him – not only as an 11-year-old boy in an unwelcome environment away from his family, but also in later years and indeed throughout his life. For many years he struggled with alcohol, depression and nightmares. Despite his undoubted ability, he never received a full education. His income, financial security, personal relationships and health all suffered as he struggled with the effects of the abuse.

High Court claim

Keith had no real means of getting redress directly from the State, and certainly not from the government agencies he saw as representing his abusers – initially the Department of Social Welfare and later the Ministry of Social Development. Besides, he had scarcely any trust in government agencies and no interest in going anywhere near them. Then in the early 2000s, he read a newspaper story about an abuse case taken by the lawyer Sonja Cooper. He decided she could be someone he could trust and got in touch with her.

Ms Cooper’s office obtained his files and worked through them with him. He met with lawyers and psychologists in what he described as a long and difficult discovery process. He said he doubted any false claimants could make it through this “rigorous and searching” background check.

At this time, the Ministry of Social Development had no organised out-of-court scheme for historic abuse cases. The courts were the only avenue open to abuse survivors. Keith filed a claim in the High Court in April 2006. He was 46.

In January 2007, the Ministry of Social Development’s chief executive, Peter Hughes, wrote to Keith in response to an Official Information Act request. He assured Keith the ministry took all claims of abuse and neglect seriously. He said it investigated each claim and settled it fairly. He assured Keith the ministry and Crown Law were bound to behave as model litigants in any claims taken to court.[ii] Keith took his assurances seriously and believed the ministry would investigate his claim thoroughly. 

How Crown Law and the Ministry of Social Development could have responded

A fair and thorough response by the Crown would have involved some relatively straightforward steps that would have quickly led to the conclusion that Keith’s claim was meritorious – that is, that the core elements of his claim were likely to be true. 

The Crown’s files would have soon enough corroborated some basic details of the claim:

• Keith had been admitted to Epuni Boys’ Home in 1970 aged 11.
• Moncreif-Wright worked at Epuni Boys’ Home at the time Keith was there.
• Moncreif-Wright, a former scoutmaster, was a convicted child-sex offender, something known to government agencies since the 1970s.
• Moncreif-Wright had accumulated seven convictions for child-sex abuse by the time Keith lodged his claim in 2006, and five of those convictions were for sexually abusing four boys at Epuni Boys’ Home in 1971, very close to Keith’s time at Epuni – possibly within weeks. A simple criminal history check through the Ministry of Justice would have revealed these convictions.

Some further basic investigation would have it made it clear this was a credible claim involving a convicted child-sex offender whose victims were from the same institution Keith had attended, during the same time period. An obvious first step would have been to contact former Epuni Boys’ Home staff to see whether they could corroborate Keith’s allegations. As it happens, when the Ministry of Social Development and Crown Law spoke to two former Epuni Boys’ Home managers in 2006 to 2009, they both provided information that supported Keith’s claim that Moncreif-Wright had abused him. One of the managers, Peter Scahill, also told Crown Law in 2007 that he remembered Police talking to Moncreif-Wright about sexual offending against Epuni Boys’ Home residents in the early 1970s. He remembered that Moncreif-Wright was later convicted on sexual assault charges. The former manager of Epuni Boys’ Home, Maurice Howe, told ministry officials in 2007 that Moncreif-Wright had been transferred to Epuni Boys’ Home from Hamilton Boys’ Home in the early 1970s after “something happen[ed]” there – the inference being misconduct involving boys. Mr Howe’s account also suggested the Department of Social Welfare had either been extremely lax in its vetting of Moncreif-Wright or might have actually enabled his continuing offending by moving him to another boys’ home rather than investigating his behaviour. It is entirely possible other former staff would have had relevant information, too.

Armed with this information, the ministry should have tried to get in touch with Moncreif-Wright himself. It knew he was alive and in New Zealand, and it should not have been difficult to find him. A few years later, the media, even without the resources of the State, tracked him down. Police eventually spoke to Moncreif-Wright. He confessed to abusing Keith and pleaded guilty to sexual assault charges. If he was willing to confess to a crime that meant possible prison time, there is good reason to think he would have been open with Crown investigators enquiring about Keith’s civil claim. When brought face to face with Keith at a restorative justice conference in 2011, Moncreif-Wright said it was in his nature to own up when confronted: “When I was caught, I wasn’t going to deny it. I had done it.”[iii] 

It would also not have been difficult to look into Keith’s allegations of physical abuse by other staff, in particular by two individuals he identified: Clive Chandler and Tony Weinberg. Both had been the subject of numerous allegations by other boys at Epuni Boys’ Home about the same time Keith was there. The High Court later accepted evidence that both had physically abused the White brothers at Epuni Boys’ Home.

The amount of corroborative information potentially at the Crown’s fingertips was, by 2007, enough for the Crown to reasonably conclude Keith’s claim was meritorious. The Solicitor-General accepted that with due diligence, Keith’s claim could and should have been identified as meritorious early on in the process.[iv]

In short, it is almost inevitable that a basic investigation would have revealed Keith’s claim to be meritorious.  At this point, the Crown should have:

• met Keith in good faith to acknowledge the merits of his claim and seek a resolution
• arranged for a suitably senior representative to offer a personal apology
• made sure Keith knew of his right to make a police complaint and/or initiate a restorative justice process with Moncreif-Wright and the support that would be available to him if he wished to do so
• supported a police process, to the extent Keith wished
• offered financial and other forms of redress.

The ministry should also have conducted a more thorough investigation into Moncreif-Wright and his potential victims. His history at, and transfer from, Hamilton Boys’ Home clearly deserved further examination. He was a prolific child-sex offender, and his position gave him unfettered access to vulnerable young boys. It was possible, even likely, he had sexually abused more boys. Recently, Keith has learned Moncreif-Wright may have prostituted boys from Epuni Boys’ Home to a nearby Catholic Church institution.[v] A full investigation into Moncreif-Wright’s activities should, in our view, have looked into this very serious matter.[vi]

How Crown Law and the Ministry of Social Development did respond

The actual response to Keith’s claim was a world away from the possible response described above. Despite Mr Hughes’ assurance that the ministry and Crown Law would behave as model litigants in any claims taken to court, the actions of both agencies, summarised below, are difficult to reconcile with that standard. Keith’s claim was meritorious.[vii] The Cabinet-approved litigation strategy that applied from 2008 said agencies should settle claims if they considered them meritorious, or if there was a realistic prospect of establishing liability. However, the Crown’s chief focus was on its legal liability. Rather than settle, the Crown fought.

Undertook no proper investigation

Keith took Mr Hughes at his word that the Crown would investigate his claim, and he – quite justifiably – assumed this would include making contact with Moncreif-Wright. However, for reasons never explained, neither the Ministry of Social Development, nor Crown Law took any steps to talk to Moncreif-Wright as part of the investigation into the claim.[viii] There was no obvious impediment to them doing so. Keith had spoken to Police about Moncreif-Wright, but from a Police perspective, the ministry or Crown Law were free to interview Moncreif-Wright. For his part, Keith told Crown Law he would not pursue a police complaint. Crown Law had prompted this by writing to Keith in 2008 to say it would not want to speak to Moncreif-Wright if there was going to be a police investigation.

Keith said he felt shattered when he eventually learned how “fundamentally flawed and completely disrespectful” the ministry’s investigation had been. He said he could only speculate about its motive for failing to speak to Moncreif-Wright, particularly when it knew he had convictions for sexually abusing young boys in the same period as the abuse against him. He said both organisations had given him the clear impression they had done a thorough investigation of the claim. “As it turns out, the ‘investigation’ was anything but thorough because they had failed to ask questions of Alan Moncreif-Wright, my principal perpetrator.”

Neither organisation has given any satisfactory explanation for its failure to contact Moncreif-Wright as part of the investigation of Keith’s claim, nor indeed for failing to respond appropriately to his allegations against former Epuni Boys’ Home staff members Chandler and Weinberg. When asked at our redress hearing to explain the ministry’s inaction in relation to Chandler and Weinberg, lead claims advisor for its historic claims team, Garth Young, replied: “I simply don’t have a good explanation”.[ix] This inaction not only affected the course of Keith’s claim but also wasted an opportunity to identify and help other survivors.

Instead of offering to help Keith make a police complaint, the Crown used a potential police investigation as a justification for putting off his civil case.

Adopted adversarial, legalistic and aggressive approach

The Crown’s conduct of Keith’s case was often unnecessarily adversarial, legalistic and aggressive. The ultimate responsibility for this must lie with Crown Law. Crown Law acts on the instructions of the client ministry – here the Ministry of Social Development. But in reality, its recommendations on the strategy and conduct of litigation tend to prevail. Mr Young, from the ministry’s historic claims team, told the redress hearing he considered himself a mere “passenger” in the litigation involving Paul and Earl White, although he accepted this did not abrogate his responsibility.[x] He said the senior social worker assessing Keith’s claim believed it was likely Keith suffered the abuse he described.[xi] Mr Young added that he would have approved the claim immediately if it had come to him. And yet Keith’s file did come to him. Asked why he, and more generally the ministry, hadn’t accepted Keith’s claim, he said: “If I am brutally honest, the legal impediments got in the way of my or our team’s moral judgment and acceptance of Mr Wiffin’s claim.”[xii]

What is clear is that the focus of Crown Law and the ministry’s own lawyers on legal liability overrode the strong moral case for accepting Keith’s claim, although in fairness to Crown Law, ministry staff failed to communicate their view that Keith’s claim was meritorious. This was a dereliction of duty: if ministry staff considered Keith’s claim meritorious, they should have said so in unambiguous terms, regardless of hierarchical considerations or professional sensitivities.

The examples of aggressive, adversarial conduct that follow come mainly from privileged documents the Crown disclosed in the interests of complete transparency. These communications would not ordinarily be seen publicly. Some are internal emails between lawyers, while others contain privileged client advice. We acknowledge the Crown’s openness here.

The first example was a letter of advice from Crown Law to the ministry in January 2009 that advised it should take “more proactive and aggressive steps” on claims by Keith and two other survivors with a view to having them dismissed on limitation grounds without going to trial – something it had previously told the court it wouldn’t do.[xiii] The letter noted that this approach would have the “strategic advantage” of delaying or preventing a trial in another case involving Kohitere Boys’ Home, and so avoid “an extremely lengthy, difficult, costly, and public examination” of issues relating to that institution. This contrasts with the more humane approach suggested about the same time by Sir Rodney Gallen in a review of historic abuse files for the ministry. A Cabinet policy document had noted justice might prevail over legalities in historic abuse cases. Sir Rodney had picked up on this and proposed taking a broader view of limitation issues. As he said, the victims of child sexual abuse in decades past were arguably unable to make claims because of the community attitudes prevailing at the time. On that view, the Crown would not have raised the limitation point at all – much less for strategic reasons before trial. No such sentiment found its way into Crown Law’s advice on Keith’s claim.

The second example was an internal Crown Law email in March 2009 in which the author suggested a course of action she said “would fall into the ‘robust’ camp of model litigant but might be worth a consideration in any event”.[xiv] The author was considering former Epuni Boys’ Home residents who could be witnesses in support of Keith’s claim. She suggested some of these witnesses could be “good candidates” for leave challenges under the Limitation Act 1950, observing that “we don’t need to lie down and allow her to call good witnesses that we know will damage us when their own cases are weak”.[xv] The “her” in this email was Sonja Cooper from Cooper Legal, who represents many survivors seeking redress from the State. The Solicitor-General told us this was an email from a junior lawyer floating some ideas with more senior lawyers in the team, and she said that it was an indication that Crown Law staff understood the model litigant values. Still, we think the email illustrates overly adversarial thinking – seeing the cases as almost a fight with counsel for the claimants.

Another internal Crown Law email, also in March 2009, described a potential strategy for Keith’s case in terms of “forcing Sonja to prove her allegations and then slamming her on our defences”. Again, the focus was very much on battling opposing counsel, without any apparent thought for the claimant or the merits of the case. 

Another email in March 2009, this time from Crown Law to the ministry, noted a deterioration in Keith’s mental health “on account of having to give evidence” and wondered how tenaciously he was pursuing his claim and whether, if offered psychological services, “he would settle or give up?”.[xvi] Crown Law’s cool appraisal of what a plaintiff under psychological stress might accept as settlement mirrored its calculation in an email to the ministry in 2006 that “some plaintiffs may give up along the way … if they see another plaintiff having to go through the litigation process, face cross-examination etc”.[xvii] The Crown, which was not lacking in time, resources or tenacity, had no compunction in trying to exert advantage over vulnerable claimants running short of all three. It all seemed like an “interesting game” for the Crown and its legal team, as Keith observed of similar tactics in the case of Paul and Earl White, two other survivors of abuse at Epuni Boys’ Home.[xviii] What was lost in all this was an 11-year-old boy in the care of the State abused by a convicted sex offender.

Failed to disclose relevant information

In November 2007, Keith’s lawyer wrote to Crown Law asking for staff records and any other information held by the ministry about Moncreif-Wright. The ministry’s Mr Young responded a few months later that it held no information about any allegations of physical or sexual abuse by Moncreif-Wright.[xix] This was false. At that time, the ministry and Crown Law knew about his child-sex convictions and that they related to boys at Epuni Boys’ Home, and that former managers of Epuni Boys’ Home were aware that Moncreif-Wright had sexually abused boys there. Only five days after responding to Keith, an internal ministry memorandum noted that Moncreif-Wright was “convicted of sexual abuse of a boy in care in 1972 and dismissed from Epuni”.[xx] At the time, Keith did not know Moncreif-Wright had been convicted of sexual abuse – information that was clearly of great relevance to his claim and should have been disclosed.

Pressed for an explanation, Mr Young said: “I simply can’t give a good explanation of why it wasn’t identified and provided”.[xxi] He speculated it might have had something to do with the way the information had been filed, or that it wasn’t “picked up” during a search for the response. But he said: “I simply can’t give an explanation that I would like to be able to give, both for myself and also for Mr Wiffin and for the [royal] commission.”[xxii] The Solicitor-General said the information should have been disclosed, but also could offer no explanation. “I don’t know, I can’t answer. It should have been. The information was available, and the request was for that material. So as an answer, it is wrong or at least incomplete in a significant way.”[xxiii]

It was not until more than a year later that Crown Law eventually disclosed Moncreif-Wright’s convictions to Keith.[xxiv] Even then, it offered no apology for the earlier failure to disclose the information. On the contrary, it said information about Moncreif-Wright’s criminal conviction was publicly available, so it was unnecessary for the Crown to disclose it. This justification is perverse: the simple fact is the Crown held information crucial to Keith’s claim and should have provided it.

Did not try to resolve claim in good faith

In May 2008, Keith wrote to the ministry asking for a meeting to try to resolve his claim. The correspondence was entitled “ADR meeting” – ADR standing for alternative dispute resolution, that is, resolution outside the court process. Any model litigant would take part in such a process with an open mind and a willingness to reach a resolution if at all possible. But Crown Law’s reaction, in an email to the ministry, was, in the words of its author, cynical: “I think that, as a matter of strategy, we should wonder about what Sonja Cooper Law is doing in having these meetings. Is there any real suggestion that they work? Or are the meetings a way to continue some funding stream (I know it’s cynical).”[xxv] Crown Law said the ministry could participate in such a meeting but should only do so on the basis that “the meeting will not be with a view to settling the claim”.[xxvi]

Mr Young, a lawyer from Crown Law and a lawyer from the ministry met Keith several months later. Keith said neither Crown Law representative said anything at the meeting, and it was “clear they didn’t want to be there”. One said they were only there because their colleague was sick. Despite that, Keith felt optimistic about the meeting at the time although in hindsight he realised it lacked substance and was thoroughly disrespectful.

Had outdated, ill-informed thinking

Both the ministry and Crown Law demonstrated a lack of understanding of sexual abuse and why victims did not report abuse sooner. A ministry memorandum to a deputy chief executive in 2010 setting out factors for and against Keith’s claim showed the outdated thinking in the organisation. It said Keith had had opportunities to disclose the abuse at the time but did not, adding that “while this does not contradict Mr Wiffin’s allegations, it could be considered to mitigate against them”.[xxvii] The inference was obvious: genuine survivors complain promptly, while those with dubious claims complain later. This is simply not true. Research shows delayed reporting is a typical feature of child sexual abuse.[xxviii] The Australian Royal Commission into Institutional Responses to Child Sexual Abuse referred to a study that found only about a third of victims disclosed the abuse during childhood. Male victims were less likely to disclose child sexual abuse at the time. Victims whose abuser was in a position of authority or trust were also less likely to report abuse at the time. Nearly half of the men in one study took at least 20 years to discuss their abuse. That the ministry questioned why Keith did not disclose the abuse at age 11 displayed profound ignorance of the nature of sexual abuse.

The Solicitor-General told us that the legal profession, judiciary and government agencies were now taking steps to understand the nature and impact of sexual abuse. She said social science research about reporting sexual abuse was well known at the time the ministry wrote the memorandum, but the legal profession had not yet grappled with the implications of the research. It is regrettable public servants dealing with abuse cases had not taken active steps to understand the subject area they were working in, especially given the consequences of their decisions on the lives of survivors.

Made offer that was inconsistent with litigation strategy

In April 2009, the Crown made an offer to Keith to settle his claim. It was, in substance, no offer at all. As Keith recalled: “I don’t remember another point in my entire life where I have been that angry.”

There was no financial compensation and no offer of an apology, but only limited “acknowledgements” and an offer to fund counselling up to a maximum of $4,000. The letter also stated that Keith’s physical assault allegations would be “denied and defended” and that his sexual assault allegations would face “considerable hurdles”. It also emphasised that he had not complained earlier about the alleged physical and sexual assault. An internal Crown email described the terms of the offer as “paltry”.[xxix]

Crown Law’s letter of offer acknowledged he did “face difficulties” while at Epuni Boys’ Home and said it was anxious he was able to continue to receive counselling. The letter proposed the following settlement terms:

• The Ministry will acknowledge that Mr Wiffin’s time in State care was difficult and that he may not have received the care and attention he needed at that time in his life.
• The Ministry will acknowledge that it has learned lessons from the past and provide reassurance to Mr Wiffin that young people in care are the recipients of the lessons learned.
• The Ministry will agree to pay any contribution that Mr Wiffin has to pay to attend counselling … and, in the event that the ACC funding is withdrawn or ceases, further pay the costs of counselling … up to a maximum of $4,000.
• If Mr Wiffin wishes it, the Ministry will make available to him his file and a senior member of staff to discuss aspects of the file with Mr Wiffin.
• If Mr Wiffin wishes it, the Ministry will make available to him the two social workers very involved in his care.

Mr Young told us he had “very mixed feelings about the proposed settlement offer, if you can call it that”.[xxx] He said the senior advisor at the ministry who had looked at the claim did not dispute Keith’s account, but he could not explain why the advisor’s positive view had not translated into a substantive offer.[xxxi] Nor could Solicitor-General Una Jagose explain how senior ministry staff could hold such different views to those expressed in the offer. She said if she were to write the letter today, she would be more careful to think how the person feels when they receive the letter from the Crown, and to appreciate that a focus on the legal language of liability can sometimes be taken as not believing a survivor, when that is not intended.[xxxii] 

For reasons already explained, it should have been clear to the Crown by this time that Keith’s claim was meritorious, and the “offer” was not therefore consistent with the Crown litigation strategy to settle meritorious claims. It was also a moral failure. The Solicitor-General explained that the Crown litigation strategy at the time required “settlement to be considered for any meritorious claims (i.e. putting to one side available defences and investigating allegations to a standard less than absolute proof)”.[xxxiii] This offer did not comply with that approach. The Crown did not put to one side potential defences – to the contrary it said that Keith’s allegations would be “denied and defended” and emphasised the “considerable hurdles” that Keith would face. The offer also did not acknowledge the sexual and physical abuse Keith had suffered, or its effect on him.

Utterly dejected, Keith rejected the offer and discontinued his claim. Correspondence from Child, Youth and Family to Crown Law described this as “a good result”.[xxxiv]

Failed to directly acknowledge or take responsibility for abuse

Later that year, Keith took part in a 60 Minutes television documentary, along with Moncreif-Wright and Mr Young. The interviewer asked Mr Young whether the ministry had spoken to Moncreif-Wright. The question drew no response. Not long afterwards, Sir Rodney Gallen came across Keith’s claim as part of his review of historic abuse files for the ministry. He expressed “some reservations” about the outcome of the claim.[xxxv] Keith contacted the Confidential Listening and Assistance Service the following year, and the head of the service, Judge Henwood, told Keith she would write to the ministry about his case. Some combination of these factors led the ministry to take another look at Keith’s claim.

The following month, Mr Young sought approval to make an ex-gratia payment of $20,000 in acknowledgement of the likely abuse Keith suffered while in State care. Mr Young said he reviewed Keith’s case and considered on balance that the ministry should accept Keith’s allegations. He said the ministry had a moral – but not legal – obligation to compensate him.[xxxvi] The $20,000 was accompanied by letters of apology from Mr Young and Mr Hughes, the ministry’s chief executive. The letters included apologies for “what happened to you while you were in care”, “for the abuse you suffered”, and for the handling of the claim.[xxxvii]

However, the letters still fell short of directly acknowledging what Moncreif-Wright and other Epuni Boys’ Home staff had done to Keith and did not take responsibility for the harm he had suffered. The payment was also far lower than what his lawyer had assessed as reasonable. Keith said he would not have accepted the offer if he had known about the extent of Moncreif-Wright’s offending, and in particular the possibility that the Department of Social Welfare had transferred him from Hamilton Boys’ Home to Epuni Boys’ Home despite knowing about his earlier misconduct. Keith said he continues to regard his claim as unresolved.

Keith’s assessment of claim process

Keith said the ministry was, in essence, investigating itself and so lacked the necessary independence to look with integrity and objectivity at his claim. Its starting point was disbelief and suspicion, and it seemed protective of its own staff, even a staff member with child-sex convictions. He had tried to give the claim process the benefit of the doubt, but found his distrust was justified. He said he continued to struggle with the fact that no one from the Crown contacted Moncreif-Wright at any point in the process. He could only conclude officials were worried about what Moncreif-Wright might say. The Crown’s conduct of his claim had added to the trauma of his abuse.

He considered the Crown was “dodging [its] responsibility” by relying on the limitation defence because it was “completely unreasonable” to think he could have filed a lawsuit against the Crown by the time he turned 22. He was still grappling with the effect of the abuse. The attitudes of the community at the time were also a considerable disincentive, he said. It took him until he was in his mid-40s before he could begin to properly understand and address the effects of the abuse. 

He said the Crown’s utter determination to avoid liability and resist meaningful payment to victims shone through all his dealings with Crown Law and the ministry. Everything came down to one thing: money. Morality, ethics or humanity did not figure. He said the sad irony was that the Crown’s “thoroughly disrespectful and contemptuous” conduct ran up huge and needless bills at the taxpayer’s expense – money that might have gone directly to compensating victims. A royal commission might have been unnecessary if the Crown had acknowledged the abuse, shown respect to victims and adopted a reasonable approach to redress.

Prosecution of Moncreif-Wright

In 2011, Police contacted Keith to ask whether he would be a witness in a criminal prosecution of Moncreif-Wright. He agreed and provided a statement. Police believed Keith’s account and charged Moncreif-Wright, who pleaded guilty to five sexual offences against Keith from his time at Epuni Boys’ Home. Keith said Police showed respect and handled their investigation very professionally. He was less complimentary about the Crown prosecutor.

The prosecutor, it appears, accepted an arbitrary reduction in the amount of reparation to be paid to Moncreif-Wright’s victims without consulting the victims. He also failed to seek a restorative justice conference. Keith understood such a conference was supposed to be part of the prosecution process, and he was very angry at this failing. Police helped him arrange a conference himself – something he should not have had to do. The conference lasted about two and a half hours. A 28-page document recorded the key points. From Keith’s perspective, it was a significant document.[xxxviii] It detailed admissions from Moncreif-Wright about the violent and abusive culture at Epuni Boys’ Home, the lack of staff training and oversight, the State’s willingness to allow Moncreif-Wright to resign rather than be dismissed so he could keep a clean employment record, and sexual offending by other staff members.

Surveillance

A final example of Keith’s mistrust in government agencies relates to surveillance.  In the lead-up to the White trial, the Ministry of Social Development spent more than $90,000 on private investigators to assist with trial preparation, including briefing Crown witnesses and seeking information to cross-examine similar fact witnesses. The instructions to the investigators were broad. At one point the investigators and lawyers on the case discussed surveillance and did not rule out low level surveillance in the lead up to trial. In 2018, a government inquiry found there were indications in the file that the investigators did use techniques involving low level surveillance, or something close to it, together with a covert approach for at least one person of interest. The inquiry found it was not possible to make a definitive finding in relation to a specific allegation of surveillance of one of the claimants’ witnesses, although the inquiry could not rule out some form of close observation having occurred. Keith gave evidence on oath to the 2018 inquiry and said he saw two people who looked like detectives sitting outside his house in a car watching him over about two weeks in the lead up to the trial. The lead private investigator denied surveillance of Keith, but the inquiry found Keith’s evidence to be credible.

Keith asked a senior manager at the ministry around the time whether the ministry had ever placed anyone connected to the White trial or State abuse cases under surveillance. The senior official denied it, with words to the effect, “definitely not – we would never do a thing like that”. Keith told us, “How are you supposed to trust an organisation that can look you right in the eye and lie?”

Summary and findings

Taking the above into account, we find that Crown Law and the Ministry of Social Development:

• should have promptly concluded that Keith’s claim was meritorious
• were overwhelmingly focused on minimising the Crown’s legal liability and lost sight of the human being at the heart of the claim
• were frequently adversarial, legalistic and aggressive in defending the claim
• did not follow the Crown litigation strategy by failing to settle a meritorious claim
• made a completely inadequate settlement offer
• failed to disclose Moncreif-Wright’s criminal convictions to Keith
• should have investigated the circumstances of Moncreif-Wright’s transfer from Hamilton Boys’ Home to Epuni Boys’ Home, and also Moncreif-Wright’s potential involvement in offending at a local Catholic Church institution
• merely went through the motions of trying to resolve the claim through an alternative dispute resolution process
• had outdated ideas about sexual abuse, especially about the reporting of sexual abuse
• should have helped Keith make a police complaint and sought a restorative justice conference
• did not behave as model litigants
• caused Keith additional trauma through the handling of his claim.

Next: Roy Takiaho: Redress from behind prison bars

[i] Witness Statement of Keith Wiffin, WITN0080001 (Royal Commission of Inquiry into Abuse in Care, 12 February 2020); Witness Statement of Keith Wiffin, WITN0080030 (Royal Commission of Inquiry into Abuse in Care, 19 April 2021); Transcript of evidence of Keith Wiffin from State Redress Hearing Phase I, TRN0000001 (Royal Commission of Inquiry into Abuse in Care, 21 September 2020).

[ii] Letter from Peter Hughes, Ministry of Social Development to Keith Wiffin, regarding official information request, REL0000001917 (31 January 2007), p. 1.

[iii] Excerpt from restorative justice conference between Keith Wiffin and Alan Moncrief-Wright, EXT0016710 (23 November 2011), p. 4.

[iv] Transcript of evidence of Solicitor-General Una Jagose QC from State Redress Hearing Phase II, 3 November 2020, p. 1078.

[v] Witness Statement of Keith Wiffin, 19 April 2021, p. 2.

[vi] The Catholic Church’s National Office for Professional Standards is currently working alongside a person who has reported this abuse to undertake an extensive investigation. To date, it has not been able to identify which Catholic institution this allegation could have been referred to.

[vii] The Solicitor-General told us that what was considered to be a ‘meritorious’ claim changed over time, and initially a meritorious claim was one that would survive the ACC and limitation barriers. See: Transcript of evidence of Solicitor-General Una Jagose QC from State Redress Hearing Phase II, 2 November 2020, p. 950.

[viii] The ministry did eventually try to contact Moncreif-Wright in 2010 when the case was reopened.

[ix] Transcript of evidence of Garth Young from State Redress Hearing Phase II, 221 October 2020, p. 301.

[x] Ibid., 392.

[xi] Ibid., p. 318.

[xii] Ibid.

[xiii] Letter from Una Jagose, Crown Law to Jacinda Lean and Debra Mury, Ministry of Social Development, regarding next steps for various historic claims, CRL0046017 (29 January 2009), p. 2.

[xiv] Email between Sally McKechnie and Una Jagose, Crown Law, regarding witnesses, MSC0000336 (17 March 2009).

[xv] Ibid.

[xvi] Email from Una Jagose, Crown Law to Garth Young, Ministry of Social Development, regarding Keith Wiffin, CRL0046254 (9 March 2009), p. 1.

[xvii] Letter from Una Jagose, Crown Law to Ministry of Social Development, Jacinda Lean, regarding advice on child welfare historic claims strategy, CRL0016524 (13 September 2006), p. 2.

[xviii] Transcript of evidence of Keith Wiffin from State Redress Hearing Phase I, 21 September 2020, p. 27.

[xix] Letter from Garth Young, Ministry of Social Development to Sonja Cooper, Cooper Legal, regarding an Official Information Act request on staff information, EXT0000071 (20 February 2008), p. 3.

[xx] Memorandum from Susan Tarrant, Solicitor for Historic Claims and Litigation, to Garth Young regarding Keith Wiffin’s civil claim, MSD0002382 (25 February 2008), p. 9.

[xxi] Transcript of evidence of Garth Young from State Redress Hearing Phase II, 22 October 2020, p. 425.

[xxii] Ibid.

[xxiii] Transcript of evidence of Solicitor-General Una Jagose QC from State Redress Hearing Phase II, 3 November 2020, p. 1093.

[xxiv] Letter from Una Jagose, Crown Law to Sarah Mitchell, Cooper Legal, regarding discovery with attached criminal conviction information of Alan Moncrief Wright, MSC0000634 (1 April 2009).

[xxv] Email from Una Jagose, Crown Law to Susan Hilda, Child, Youth and Family Services and Garth Young, Ministry of Social Development, regarding an alternative dispute resolution meeting with Keith Wiffin, CRL0045910_00070 (15 May 2008).  

[xxvi] Internal email in Child, Youth and Family Services, regarding a meeting with Crown Law on Keith Wiffin (26 May 2008).

[xxvii] Internal Ministry of Social Development memorandum from Garth Young to Iona Holsted, DCE Corporate & Governance regarding approval of ex-gratia payment, MSD0002569 (27 July 2010), p. 3.

[xxviii] Cashmore, J., Taylor, A., Shackel, R., and Parkinson, P., A Report for the Australian Royal Commission into Institutional Responses to Child Sexual Abuse: The impact of delayed reporting on the prosecution and outcomes of child sexual abuse cases, MSC0001082 (University of Sydney Law School, 2016), p. 193.

[xxix] Email from Una Jagose to Edrick Child, Crown Law, regarding Keith Wiffin's settlement offer, CRL0045838 (7 April 2009).

[xxx] Transcript of evidence of Garth Young from State Redress Hearing Phase II, 21 October 2020, p. 301.

[xxxi] Ibid.

[xxxii] Transcript of evidence of Solicitor-General Una Jagose QC from State Redress Hearing Phase II, 2 November 2020, pp. 1013-1014.

[xxxiii] Witness Statement of Solicitor-General Una Jagose QC for Crown Law Office, WITN0104001 (Royal Commission of Inquiry into Abuse in Care, 28 February 2020), p. 18.

[xxxiv] Emails from Susan Hillda, Department of Child Youth and Family Services to Una Jagose, Crown Law, regarding Keith Wiffin's rejection of settlement offer and potential criminal complaint, CRL0046413 (13 May 2009), p. 1.

[xxxv] Sir Rodney Gallen, Assessment of MSD’s Processes on Historic Claims, CAB0000014 (27 November 2009), p. 18.

[xxxvi] Internal Ministry of Social Development memorandum from Garth Young to Iona Holsted, DCE Corporate & Governance regarding approval of ex-gratia payment, p. 4.

[xxxvii] Letter from Garth Young, Ministry of Social Development to Keith Wiffin regarding the handling of his claim, WITN0080027 (6 August 2010); Letter from Peter Hughes, Ministry of Social Development to Keith Wiffin, WITN0080026 (4 August 2010).

[xxxviii] Witness Statement of Keith Wiffin, 19 April 2021, pp. 6-7.