Why the State tried to ban Investigative Journalist Aaron Smale from Parliament

Aaron Smale has been at the forefront of exposing how the Wellington Bureaucracy first enabled the abuse of 250 000 kids and then hid that abuse using appalling legal tactics to silence them and minimise that abuse.

I worked alongside him in 2022 to expose the highest levels of the Wellington Bureaucracy covering up the abuse of children in NZ.

His investigative series on Newsroom highlights the terrible means with which the Wellington Bureaucracy went to hide the abuse of children and then adopted despicable tactics to derail that knowledge getting out and to avoid legal precedence.

The vast, vast, vast amount of Kiwis have no idea whatsoever that the Wellington Bureaucracy hired private detectives to dig dirt on victims of state care abuse to present in Court to discredit the victims so they wouldn’t have to acknowledge the abuse or pay for it.

He was banned from attending the official apology by Speaker Gerry Brownlee because the Prime Minister’s department asked him to be banned because he had apparently been aggressively asking Chris Luxon hard questions about the tactics the state used to destroy victims.

He has exposed the role of the Solicitor-General and is damning…

Who knew and when did they know it

The adolescent unit at Lake Alice psychiatric hospital was the first case where the Crown faced civil litigation. The hospital was set up for criminally insane adults, not vulnerable children. But in the early 1970s the Department of Social Welfare starting sending wards of the state to Lake Alice, where they would be tortured by Dr Selwyn Leeks and his staff with electric shocks and other cruel and degrading treatment. They were also raped and sexually abused by adult patients and staff.

There were a number of people who gave evidence at the Royal Commission’s redress hearing and the hearing on Lake Alice itself. But speaking on behalf of the Crown was the Solicitor-General Una Jagose. Jagose had been deeply involved in the Crown’s response to state abuse both as a Crown lawyer in the 2000s and more recently as the Solicitor-General, a role she took up in 2016. If anyone was aware of the Crown’s response to allegations of abuse, it was her.

Central to the commission’s inquiries into Lake Alice was the question of whether Leeks’ use of an electro-convulsive therapy machine was legitimate medical treatment or a heinous form of torture inflicted on children. There were many expert witnesses who came down unequivocally on the latter. One compared it to tactics used by the Gestapo. Jagose could only concur.

In her evidence Jagose said: “The record itself showed that Dr Leeks and other staff were using ECT and other forms of things that are treatment as behavioural modification and/or punishment for those purposes and not for treatment.”

But she was pushed to say more about what the Crown knew. Speaking of the litigation that started in the 1990s – which included Leoni McInroe, who was the first to file a civil case – Jagose acknowledged that the Crown knew from its own files that Leeks’ methods were unacceptable as medical treatment.

“Dr Leeks, was using treatment methods to punish and attempt to modify behaviour in a way that the Crown then, and still, thought was unacceptable, an unacceptable way to treat those children, and didn’t put any of them to proof over that because the proof was right there in the file, in the very systems that the hospital and Dr Leeks ran,” she said.

So the Crown had always known that what Leeks was doing was not acceptable treatment. It knew this because it had documentary evidence in its own files. Despite this knowledge, the Crown responded to victims in ways that put them through more trauma by denying their allegations or expecting them to prove them in a court; the Crown held overwhelming documentary evidence these allegations were true but withheld this evidence on numerous occasions.

The coup de grace arrived when Jagose was asked point-blank whether what was inflicted on children at Lake Alice met the UN’s definition of torture. 

Jagose had to admit that it did, although she wound her way to an answer through a long series of legalistic qualifiers.

“Torture has three elements. Infliction of pain and suffering, mental, physical; no doubt that has been met. By an arm of the state or a person acting on a part of the state; also no question that has been met.

“The key question is the purpose for which that pain and suffering was inflicted. The allegations are that it was done for a punishment and where those allegations are made out by a fact-finder, might be the Inquiry, it might be the court, then that is three elements met – torture.

“As alleged, that conduct meets the three criteria for torture.”

It was this answer, given under oath on behalf of the Crown, that became the cornerstone of the Royal Commission’s finding that what happened at Lake Alice was torture, although there were plenty of other bricks of evidence to build that conclusion.

Jagose’s admission and the Royal Commission’s finding of torture compounded a previous finding from another institution – the United Nations. The UN’s Committee against Torture had made a finding in 2020 that New Zealand was in breach of the Convention Against Torture. This finding was in response to a complaint filed by the Citizens Commission of Human Rights on behalf of Lake Alice survivor Paul Zentveld, alleging that New Zealand had failed to investigate the Lake Alice allegations properly, as it was required to do under the Convention which New Zealand ratified in 1988. This ratification was then embedded in domestic legislation in the Crimes of Torture Act (more on this later).

One of the outcomes of the UN’s finding  was that the police had to then open up another investigation into Lake Alice – the fourth – after telling victims for decades that there was not enough evidence to prosecute. This position became untenable with the UN’s decision and under the scrutiny of the Royal Commission. The police gave a formal statement at the commission’s Lake Alice hearing, apologising to victims for its failure to properly investigate. That included a failure to even speak to more than a dozen victims who had made formal complaints that they’d been sexually assaulted and raped.

The police investigation in response to the UN finding found there was more than sufficient evidence to prosecute Leeks and other Lake Alice staff, but it was too late because Leeks was unfit to stand trial and died shortly after.

Despite this, when police made formal requests for specific categories of documents to Crown Law in early 2020, some crucially relevant documents were not given to police. This included the file of Leoni McInroe that included a medical report stating unequivocally that what happened to her at Lake Alice was not medical treatment, it was medical misadventure. This report was written in the 1990s and had it been acted on in the legally appropriate way, the outcomes would have been very different. For one, it’s likely that Leeks would have been convicted of crimes. But that alternative history didn’t happen. What did happen is this report and other evidence was not given to a number of agencies, including the police, sending the whole trajectory in a different direction. It was not given to police during the investigation that concluded in 2010 when Judith Collins was Minister of Police.

…they knew it was torture and they went on to cover it all up…

But Una Jagose’s involvement in the Crown’s response to the abuse of children in state custody long predates her evidence at the Royal Commission. She has been involved over the past 20 years, with a number of others, including Collins. 

“Political and public service leaders spent time, energy and taxpayer resources to hide, cover up and then legally fight survivors…”

So who else was aware of these crimes and what was their response?

The Royal Commission’s report makes clear there was a repeated failure to disclose “relevant information damaging to the Crown case”.

The UN’s finding that New Zealand was in breach for failing to investigate Lake Alice can principally be laid at the feet of Helen Clark’s government, but it had its genesis even earlier and continued on into the John Key government. There was a failure to look for information and a failure to provide it to the relevant authorities to do their job to investigate criminal offending against children and breaches of international law.

There had been failures to investigate in the 1970s when racial justice advocate Dr Oliver Sutherland and his colleagues at ACORD (Auckland Committee Opposed to Racial Discrimination) exposed abuse occurring at institutions like Owairaka and later at Lake Alice. An inquiry into Lake Alice at this time was essentially a whitewash and crucial evidence was withheld. 

But when victims became adults they began filing civil litigation against the Crown in the 1990s regarding Lake Alice. The first victim to file a case was Leoni McInroe, represented by Rob Chambers QC. Another group of nearly 100 victims were later represented by lawyer Grant Cameron.

Bill English was the minister of health in the National government of the 1990s before the role was handed off to Wyatt Creech. During internal discussions regarding the claims made in civil cases about Lake Alice, officials and ministers from other government departments were also alerted to allegations of sexual and physical abuse in social welfare homes. Many of the Lake Alice victims had been through these institutions before they got to Lake Alice. Agencies including Social Welfare, Treasury and the Department of the Prime Minister and Cabinet were looped in to these discussions. Dame Margaret Bazley was chief executive of the Department of Social Welfare at the time.

In 1998 a paper was presented to Cabinet by English and countersigned by Dr Janice Wilson, director of mental health and chief advisor.

Collins’ denial at the United Nations that New Zealand committed torture was not only not true. It was also an insult to the victims and continued the 50-year injustice they’d experienced since their childhoods.

The central claims and the facts underlying the civil claims around Lake Alice were clearly known to the government by this stage. The Cabinet paper outlined them, stating:

“Their principal allegation is that they received paraldehyde and/or unmodified electroconvulsive therapy (ECT) for the purpose of punishment. Unmodified ECT is ECT without anaesthetic or muscle relaxant to counter the side effects of this form of treatment. Paraldehyde is an anti-convulsive drug. It can cause extreme pain when used extramuscally.

“This treatment is alleged to have been administered by nursing staff at the hospital and by the unit’s head Dr Selwyn Leeks. The former patients also allege that they were sexually and physically abused by adult patients at the hospital and by staff.

“The claims relate to the period 1972 and 1978. At that time the majority of the former patients ranged in age from 10 to 14.

…look at the legal tricky that was used to force the abused into being further traumatised!

Look at the appalling tactics used and weep in fury at the way we treated these kids abused in our care…

The Royal Commission of Inquiry into abuse in state care looked into the Crown’s litigation strategy against survivors who filed legal claims about their abuse. It said the the conduct of the Crown went beyond mere neutral defence of claims.

It included “causing long, avoidable delays and failing to keep claimants adequately informed of the progress of their cases” as well as:

• • failing to disclose relevant information damaging to the Crown case
  • opposing reasonable adjournment requests, despite a lack of prejudice to the Crown, when a claimant’s lawyer was without funding
  • cross-examining witnesses to suggest survivors should have, as children, disclosed abuse at the time the abuse happened, or avoided the abuse
  • cross-examining witnesses to suggest survivors were lying and colluding even when the evidence showed they were more than likely to be telling the truth
  • making applications for costs against survivors personally, and making applications for orders that would have required the plaintiff to pay costs if they had not been funded by legal aid.

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