Whakatakinga - Introduction

956.    We have already concluded that the use of electric shocks and paraldehyde to punish at Lake Alice met the definition of torture as outlined by the Solicitor-General. In this section, we outline the Crown’s obligations in international law to investigate and report on allegations of torture and how these relate to what occurred at Lake Alice. We examine how the Crown grappled with when to refer allegations made in civil litigation to external investigative bodies but failed to consider whether the abuse at Lake Alice could amount to torture. Even after settling the litigation brought by survivors, the Crown was reluctant to describe the abuse for what it was when reporting to the relevant United Nations bodies. We then consider the committee’s findings in relation to Mr Zentveld and Mr Richards and how these are applicable to all Lake Alice survivors and how the Crown could approach its obligations in the future.

Ngā herenga whakamamae o Aotearoa - Aotearoa New Zealand’s torture obligations

957.    It was not until 1984 that the United Nations adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and it was 1989 before New Zealand ratified the convention. However, some forms of torture violated international law long before the convention and in 2017 the United Nations Committee against Torture said a prohibition on torture and other inhuman treatment was accepted in the 1970s.^[1801] This is consistent with the preamble to the convention, which refers to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, both of which stipulated that no one should be subjected to “torture or to cruel, inhuman or degrading treatment or punishment”. Other regional human rights instruments contain similar provisions.^[1802]

958.    The work that led to the convention is instructive. By the early 1970s, it was clear the existing prohibition on torture was not enough to eradicate its practice. On 15 October 1974, the permanent representative to the New Zealand mission to the United Nations wrote to the secretary of foreign affairs in Wellington, attaching a copy of a statement announcing New Zealand’s co-sponsorship of the “draft resolution on torture”.^[1803] The Government joined the list of co-sponsors of the draft resolution, which became the Declaration on the Protection of All Persons from being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in December 1975.^[1804] The declaration marked a significant milestone in the process that led to the 1984 convention against torture, and its definition of torture is essentially the same as that in the convention.

959.    However, these principles were not given effect in any of the official inquiries into Lake Alice in 1977. In 1978, the United Nations asked the Government what steps it had taken to put the declaration into effect.^[1805] It asked whether Aotearoa New Zealand had conducted any investigations into “allegations of torture or other forms of cruel, inhuman or degrading treatment or punishment”.^[1806] Five months later, the Crown gave the curt response “No information on this”^[1807] – even though four official investigations into complaints about abusive treatment at Lake Alice had occurred the previous year.

960.    The Crown has accepted the Government has an obligation to detect and prevent torture, which arose as a matter of international law before the enactment of the Crimes of Torture Act 1989.^[1808] It also accepted that by 1998 a sufficient evidential basis existed for an investigation into whether torture had occurred at Lake Alice.^[1809] However, it acknowledged the allegations were treated like any other civil claim, whereby the focus was on assessing potential liability, whether the allegations could be proven, what defences were available and, where appropriate, settling the claims.^[1810] The Crown has told us it now works with agencies to ensure claims that provide credible allegations of torture or other cruel, inhuman or degrading treatment are recognised and sent to the appropriate agency for investigation.^[1811]

Ngā herenga whakapūrongo i raro i ngā tikanga - Reporting obligations under convention

961.    After ratifying the convention in 1989, New Zealand was obliged to make periodic reports to the Committee against Torture^[1812] on whether there had been any allegations of torture and what it had done in response.^[1813] Neither the first report in 1992, nor the second in 1997, nor the third in 2002 mentioned survivors’ allegations about the use of electric shocks or paraldehyde as punishment or NZ Police investigations into these allegations. The third report in 2002, which was consolidated into the fourth report, deserves closer examination.

962.    In June 2001, the Ministry of Foreign Affairs and Trade asked the Ministry of Health for comment on the Crown’s draft version of the report. After receiving a response that did not include the Lake Alice settlement process, the Ministry of Foreign Affairs and Trade followed up, pointing out the report needed to include “complaints, inquiries, indictments, proceedings sentences, reparation and compensation for acts of torture and other cruel, inhuman, or degrading treatment or punishment”. It suggested the report refer to the Crown’s Lake Alice settlement process.^[1814]

963.    The Ministry of Health’s chief legal advisor, Mr  Adam, wrote to Crown Law saying he had been wary of using the word “torture” and was keen to ensure New Zealand “was not saying in an international environment that it carried out torture on its people, given that the Lake Alice ‘treatments’ were carried out without the real knowledge or condoning by the State”.^[1815] For its part, Crown Law said the Crown had yet to publicly accept that Dr Leeks’ treatment was inappropriate or accept any liability.^[1816]

964.    In December 2001, Ms Heather Ward from the Ministry of Foreign Affairs and Trade again asked Mr Adam to reconsider referring to the Lake Alice settlement process. By then, payments had been made and apologies given to some survivors by the Prime Minister, Helen Clark. Ms Ward said the abuse at Lake Alice could be considered torture as defined by the convention.^[1817] Mr Adam replied that the Crown might have settled with 95 claimants, but more settlement claims were likely and there were also “various views on whether it was a form of aversion therapy or not, but at this point in time it would not pay to dirty the waters and create problems for our current settlement processes by the government deciding for itself one way or the other”.^[1818] Crown Law supported Mr Adam’s view.^[1819] As a result, the 2002 report made no mention of the first round of settlements.

965.    In May 2004, a government delegation appeared before the Committee against Torture to answer questions about the report. By then, the Crown had completed the Lake Alice settlement process, but it was still anxious to avoid referring to Lake Alice. Briefing material was requested about particular cases officials thought the committee might ask about because of media coverage.^[1820] A Ministry of Health official, Ms Wendy Edgar, identified the Lake Alice settlements as relevant, but Mr Adam said he was opposed to including “Lake Alice people as examples”.^[1821] Information about Lake Alice was, however, included, but opinions differed about how to describe the Lake Alice abuse. The first draft said the Government viewed the abuse not as torture, but rather as an “inappropriate practice by an individual health professional”.^[1822] Mr Ben Keith, a lawyer at Crown Law who worked on human rights matters, wrote to another Crown lawyer disputing this interpretation, arguing there was at least a prima facie case for calling the abuse torture, and that the committee would regard any suggestion to the contrary as “implausible” and “a pretext to avoid the issue”. Mr Keith said it would be better to acknowledge that some treatment might have amounted to torture or to cruel, inhuman or degrading treatment.^[1823]

966.    The final version adopted Mr Keith’s suggestion in part, removing the statement that the abuses at Lake Alice were “not torture”, although not stating they might have been, and referred to the abuses as “unacceptable” – the same word used in the Government’s press release in 2001 to describe the abuse.^[1824] In the end, however, it was all of no consequence because the record of the presentation showed the committee never asked any questions about Lake Alice and the delegation never volunteered anything about Lake Alice.^[1825]

967.    The fifth report, submitted in January 2007, also contained no mention of allegations about Lake Alice or NZ Police investigations. In a presentation to the committee in May 2009 in a follow-up to the fifth report, the New Zealand delegation acknowledged the existence of Lake Alice allegations by survivors. It said “procedures had been established … to investigate and compensate patients who claimed to have been mistreated” at the unit.^[1826] This was a reference to the Crown’s settlement process.^[1827]

968.    In May 2010, in a follow-up response to the committee, the Crown finally acknowledged there was truth to claimants’ allegations. It said “claimants’ personal statements and the medical records demonstrated that there had been improper treatment” at the unit. Claimants’ allegations, it said, were “factually clearly established”, although it maintained the allegations all stemmed from the treatment they received while “under the care of one particular doctor”.^[1828] That concession came two months after NZ Police announced the decision not to prosecute anyone over Lake Alice. The response made no reference to the NZ Police decision.

969.    In that same month, May 2010, the Citizens Commission on Human Rights wrote to the committee saying New Zealand had not properly investigated Lake Alice allegations, had not held any perpetrators to account, and had not made any official findings about what took place at the unit.^[1829]

970.    It was not until two years later, in May 2012, that the committee sought an explanation for the failure to prosecute anyone. United Nations special rapporteur, Ms Felice Gaer, wrote to the Government saying the committee was concerned there had been no “prompt, impartial and effective investigation into all claims of abuse” at Lake Alice and no prosecution of “alleged perpetrators of the torture and ill-treatment perpetrated there”. Ms Gaer asked the Government to clarify whether it intended to conduct an “investigation into the nearly 200 allegations of torture and ill-treatment against minors at Lake Alice, to criminally prosecute individuals found to have perpetrated this abuse, and to punish such perpetrators”. She also asked whether the Government intended looking at the adequacy of the NZ Police investigation, including complaints that NZ Police had failed to interview many survivors, and whether it planned to reopen the investigation.^[1830]

971.    New Zealand responded to these questions in its sixth report to the committee, submitted 18 months later in December 2013. It said
NZ Police acted independently, and anyone alleging misconduct about a NZ Police investigation could go to the Independent Police Conduct Authority. It said it did “not propose undertaking any further review”.^[1831]

972.    Further exchanges of correspondence occurred over the next two years. In its concluding remarks on the sixth report in 2015, the committee said New Zealand had “failed to investigate or hold any individual accountable for the nearly 200 allegations of torture and ill- treatment against minors at Lake Alice Hospital”.^[1832] Aotearoa New Zealand’s response was a reiteration of its previous position - survivors were entitled to take complaints to NZ Police if they wished, and some had done so, but NZ Police had found insufficient evidence to lay charges.^[1833]

Te ngoikoretanga ki te whakahāngai i ngā kerēme ki te whakamamaetanga - Failure to recognise that claims could amount to torture

973.    For many years, the Crown knew about and had evidence of abuse at Lake Alice, and for a large portion of that time it condemned that abuse. Dr Wilson, a former director of Mental Health, and Dr Duncan, a former deputy director of Mental Health, accepted from 1995 onwards there was substance to patients’ claims Dr Leeks’ administered electric shocks and paraldehyde injections as punishment and that such practices were out of step with the “standards of the day”. In 2009, Attorney-General, Chris Finlayson, said allegations made by Lake Alice survivors had been “verified” by contemporaneous medical records and Dr Leeks’ form of aversion therapy using an ECT machine had been “indefensible even for its time”.^[1834] As the Solicitor-General put it, the proof Dr Leeks’ was using electric shocks as punishment and behavioural modification “was right there in the file”.^[1835]

974.    However, at least initially Crown Law did not turn its mind to whether it had obligations to refer these allegations to NZ Police. In her evidence to the inquiry, the Solicitor-General, Ms Jagose, said by 1998 a large number of allegations of the same criminal conduct were being made.^[1836] Due to the significance of these allegations Ms Jagose considered Crown Law should have asked itself what its role was in referring the complaints to NZ Police.^[1837] However, she said Crown Law did not appear to think referral to NZ Police was warranted in Ms McInroe’s case and could see no record that it was considered in relation to the claimants represented by Grant Cameron Associates.^[1838] Ms Jagose did not know whether this was discussed internally or between Crown Law and Grant Cameron Associates, but could not see anything on the record to show that it was.^[1839]

975.    In 2006, several senior lawyers at Crown Law, including Ms Jagose, wrote a draft policy for when disclosures of criminal offending were made in the course of preparation for civil claims against the Crown.^[1840] It was a thoughtful 30-page analysis of the difficult issues that may arise in that context. The draft proposed that each allegation would be assessed on a case-by-case basis, but general guidelines were as follows:^[1841]

• Admissions of offending of more than a minor nature should generally be referred to NZ Police.
• Allegations of serious criminal offending (such as serious assault or sexual offending) generally should be referred to NZ Police provided the alleged victim or perpetrator is identified or may be able to be identified (time, date and descriptive information). However, uncorroborated allegations in a statement of claim need not be referred, as an exception to the guideline.

976.    In response, Deputy Solicitor-General, John Pike, described the proposals as “a little over-pitched” and took a narrower view of Crown Law’s role. In Mr Pike’s view, Crown Law was “but lawyers acting on instructions”, not investigating the claims or anything else.^[1842] He considered the question of reporting allegations to NZ Police should be put “firmly back to the plaintiff and counsel”. The draft policy did not progress.

977.    We acknowledge the tensions that can arise for Crown Law. It concurrently acts for defendants in civil cases alleging abuse and is responsible for the administration of criminal justice in New Zealand. We think the approach Ms Jagose and others proposed was a principled attempt to address that tension, and it would be appropriate for Crown Law to revisit the draft policy, factoring in Aotearoa New Zealand’s human rights obligations and with a broader view of the Crown’s responsibilities as a whole.

Ngā amuamu ki United Nations Committee against Torture - Complaints to United Nations Committee against Torture

978.    The failure of NZ Police to prosecute a single person over what happened at Lake Alice prompted Mr Zentveld to make a complaint in person to the United Nations Committee against Torture.^[1843] Accompanied by Mr Steve Green from the Citizens Commission on Human Rights, Mr Zentveld appeared before the committee in Geneva on 10 July 2015. In written submissions the commission prepared, Mr Zentveld said he received electric shocks many times from nursing staff and Dr Leeks, as well as painful injections of psychiatric drugs, and that he was placed in solitary confinement for “perceived bad behaviour”.^[1844]

979.    Mr Zentveld did not ask the committee to rule on whether the abuse he suffered at Lake Alice amounted to torture as defined in article 1 of the convention – and it could not do so anyway because the abuse ended in 1977, seven years before the United Nations adopted the convention in 1984 and 12 years before New Zealand ratified it in 1989.^[1845] Rather, he asked the committee to make findings about obligations Aotearoa New Zealand had assumed after ratifying the convention in 1989 - namely, to ensure competent authorities promptly and impartially investigated allegations of torture^[1846] and to provide appropriate remedies to victims through an effective complaints investigation and compensation process.^[1847]

980.    In 2019, the committee found in favour of Mr Zentveld. It ruled New Zealand had breached its obligations under articles 12, 13 and 14 of the convention by failing to adequately investigate his complaint and failing to provide fair and adequate redress for the abuse he suffered.^[1848]

981.    Mr Richards also made a complaint to the committee about how Aotearoa New Zealand had responded to his allegations of abuse at the unit. His complaint was similar to Mr Zentveld’s and, as with Mr Zentveld, the committee found in Mr Richards’ favour in its decision of 12 May 2022.^[1849]

982.    The committee had already expressed deep concern over the Government’s response to allegations of abuse at Lake Alice by the time it received Mr Zentveld’s complaint in July 2017. Almost a year later, in May 2018, Aotearoa New Zealand asked the committee to dismiss Mr Zentveld’s complaint on the grounds various inquiries and investigations had already looked into allegations about Lake Alice, and a forthcoming Royal Commission of Inquiry (this current inquiry) would resolve any outstanding aspects of these allegations. In addition, it said it had also provided ex-gratia payments and apologies to Lake Alice survivors.^[1850]

983.    On 4 December 2019, the committee found in favour of Mr Zentveld.^[1851] It ruled Aotearoa New Zealand had failed “to conduct an effective investigation into the circumstances surrounding the acts of torture and ill-treatment suffered by [Mr Zentveld] while he was at the [unit]”. It criticised Aotearoa New Zealand for making “no consistent efforts to establish the facts of such a sensitive historical issue involving the abuse of children in State care”, for failing “to expressly acknowledge and qualify the alleged treatment inflicted on the complainant” and for failing to provide fair and adequate compensation.^[1852]

984.    The committee’s 12 May 2022 decision on Mr Richards’ complaint was similar. The committee noted the most recent NZ Police investigation had resulted in charges being laid against one former staff member and that Dr Leeks had died. It found Aotearoa New Zealand had failed “to conduct a prompt and impartial investigation into the acts of torture alleged by [Mr Richards] which he was at the [unit]”.^[1853] It also repeated the criticisms of Aotearoa New Zealand it made in its decision on Mr Zentveld’s complaint.

Ka pā te tūhuratanga puretumu o te Komiti ki ngā purapura ora katoa - Committee’s redress finding applies to all survivors

985.    Mr Zentveld’s and Mr Richards’ complaints focused heavily on the failings of the NZ Police response to the complaints they laid in 2005 and 2010, respectively, but there is no question the Crown had grounds to investigate allegations of ill-treatment and torture much earlier than that date – probably from the mid to late-1990s. We have described at length the considerable body of information in the possession of Crown Law by that time about serious and systemic abuses at Lake Alice. The weight of this information amounted to more than “reasonable grounds to believe” acts of torture or “cruel, inhuman or degrading treatment or punishment” had been committed at the unit and this required a “prompt and impartial” investigation, as set out in articles 12 (dealing with torture) and 16 (dealing with cruel and inhuman treatment) of the convention.

986.    Crown Law did not give any serious thought to the convention and its implications for Lake Alice. Therefore, it failed to advise ministers they had an obligation to order an impartial investigation of survivors’ allegations. In looking into survivors’ allegations, the Crown should have ensured an impartial investigation that paid no heed to the financial implications to the Crown or risk to its reputation. Rather than initiate such an investigation, the Crown instead waited for litigation from survivors, which it dealt with “in a manner undifferentiated from other civil claims brought against the Crown, so the focus was on potential liability, assessing whether the allegations could be proved on the balance of probability, exploring available defences and where appropriate pursuing settlement”.^[1854] In short, the Crown treated the allegations as a risk to be mitigated, not matters warranting investigation. When the weight of evidence finally led the Crown to begin the settlement process in 2001, redress was limited to financial payments. There was no impartial investigation, and no one was held accountable. No one admitted any wrongdoing, and no one made any findings of fault or responsibility. The nature and extent of any wrongdoing and the identity of individuals and institutions responsible were left undefined and unacknowledged, and apologies were vague. The truth remained buried.

987.    Redress payments came without acknowledgment of liability. The size of those payments was determined through a negotiation process into which the survivors had limited input. The Crown was able to negotiate in the knowledge it had the financial resources to fight on if no resolution was reached. Survivors had no such comfort. They faced significant technical legal defences, and the law firm acting for them carried most of the financial cost of pursing their claims for six years. In our view, the committee’s findings in relation to Mr Zentveld and Mr Richards apply to all survivors of the unit.

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