Lake Alice: After two failed police investigations, will a third be any better?
Friday, 5 November 2021
OPINION: Twice, police have investigated allegations of abuse at Lake Alice. Aaron Smale asks what hope survivors can have for any sort of justice out of a third.
It goes against the grain for police to apologise for anything. So when they apologise at a Royal Commission of Inquiry, you know someone has really screwed something up.
In July this year, Detective Tom Fitzgerald made an unscheduled appearance before the Royal Commission into Abuse in Care. He apologised for the police failure to properly investigate what happened at Lake Alice adolescent unit in the 1970s.
The apology was brief but the events it referred to were anything but brief. They’ve been going on for nearly 50 years. And if timing was a consideration, then Fitzgerald certainly picked his moment. He made the apology immediately before evidence was heard from the very person who was ultimately responsible for a large measure of the failure – former assistant police commissioner Malcolm Burgess. Burgess was in charge of an eight-year investigation into Lake Alice that concluded in 2010 and found there wasn’t enough evidence to press charges.
**READ MORE:
* The Lake: What happened to the children of Lake Alice was the beginning of a shameful story
* The Detail: Harrowing stories at Lake Alice psychiatric hospital finally heard after 40 years
**
For nearly 50 years a question has hung over the adolescent unit that operated at Lake Alice psychiatric hospital – was the treatment of the children at Lake Alice medical intervention or criminal assault?
And twice, in 1977 and 2010, the police have answered that it wasn’t criminal assault. Their answer was a combination of deference to the medical profession and an assertion that they couldn’t find enough evidence to put a prosecution before the court. Those answers began to fray under the scrutiny of a Royal Commission. They had actually started to unravel under the scrutiny of the police themselves. That’s because the investigations barely made any effort to look for the evidence that was sitting right in front of them.
In his apology, Fitzgerald neither agrees nor disagrees with Burgess’s conclusion. He doesn’t even mention him by name. But he does lay out the serious flaws in the police investigation in excruciating detail and the wider failures of the police at large.
Fitzgerald stated on oath that: “The New Zealand Police accept that in the 2002 to 2010 period Police did not accord sufficient priority and resources to the investigation of allegations of criminal offending at the Child and Adolescent Unit at Lake Alice Psychiatric Hospital. This resulted in unacceptable delays in the investigation and meant that not all allegations were thoroughly investigated. The Police wish to apologise to the Lake Alice survivors for these failings.”
Firstly, 35 survivors of Lake Alice made written police complaints in 2002 through their lawyer. Fitzgerald admitted that 14 of these complaints had been lost. Of the remaining 20, 11 included allegations of sexual and physical abuse.
According to a 2010 report, the allegations of sexual offending were not pursued. Those allegations, the report said, had either already been dealt with by the authorities, or were “so vague as to make any investigation all but impossible”. Or, the suspect and/or complainant was dead.
But there were numerous allegations that had not been “dealt with by authorities” and weren’t “vague.” One of those allegations was that Dr Selwyn Leeks had raped a girl while she was unconscious on drugs he had administered. That girl was Sharyn Collis and she gave evidence at the Royal Commission about that and other incidents. But the police never spoke to her. In fact, they only spoke to one of the 35 complainants over the eight-year investigation.
Another one of the complainants was Kevin Banks. He now lives in Australia but wrote to Burgess, saying he was willing to give an evidential interview and would come back to New Zealand to do so. Burgess replied that it wouldn’t be necessary. Banks was one of five boys who were made to give an older boy electric shocks by Leeks, because the boy had raped them. While the perpetrator was convicted of those offences, Leeks was never charged for his alleged part.
A number of people gave evidence at the Royal Commission that they were also electrocuted on the genitals and/or witnessed it happening to others.
But in his statement to the Royal Commission, Burgess said that he did not consider laying charges over the incident because it “had already been the subject of the contemporaneous 1977 inquiry by Police (as well as the Medical Council inquiry), and it had been concluded then that there was no basis for laying criminal charges. I did not come across any fresh evidence that suggested it was appropriate to reopen the investigation.”
But relying on the 1977 police investigation was problematic because that investigation was deeply flawed. Kevin Banks laid a complaint with police in 1977 and there were two other former patients who separately laid complaints with the help of racial justice campaigner Oliver Sutherland.
In a police interview conducted with Leeks in 1977, the police officer seems to virtually coach Leeks into providing an answer that made the victims out to be liars.
POLICE: “It is possible a lot of these boys are only telling half truths about why they received the aversion therapy?”
LEEKS: “I would think so. Knowing them, they were really the bottom of the barrel kids from Hokio, Kohitere and Holdsworth who could not manage them. They were anti-social and destructive kids.”
Instead of starting from the assumption that the children were liars, police might have taken into consideration that the children of Lake Alice had previously suffered massive trauma before they went into the adolescent unit. Dr Leeks compounded that trauma by some magnitude.
Leeks’ answer is revealing, even now, for how it exposes the massive power imbalance that continues to this day. The children were “bottom of the barrel” and he is a doctor employed by the state. He was given the benefit of the doubt, they were not believed. This imbalance has been maintained by the state as it has gone to extraordinary lengths to avoid responsibility.
Leeks makes it clear in the police interview and other correspondence that the electric shocks he was giving to children were a form of punishment as deterrent, although he was at pains to justify it as legitimate medical treatment. But there were numerous people in the 1970s who had grave doubts about the legitimacy and effectiveness of what Leeks was doing. There were also a number of people raising questions about unlawful detention and lack of consent, including the Ombudsman.
The police investigation that was initially led by Burgess started shortly after the government reached an out of court settlement with victims. The government had commissioned Sir Rodney Gallen, a retired high court judge, to come up with an assessment about how a payout to victims should be divided between the claimants. But he went well beyond his brief and interviewed nearly half of the claimants and pored over relevant documents and files in a matter of months, not years. In 2002, he wrote a report that succinctly and powerfully affirmed the truth of what the victims were saying. This report was duly leaked to the media and the Crown unsuccessfully tried to suppress it through the courts.
Sir Rodney’s report should have provided a roadmap to the police investigation. Sir Rodney made unequivocal conclusions that the allegations of sexual abuse were true and that the use of ECT was punishment. He described this as “outrageous in the extreme.” Sir Rodney’s report was taken into consideration by police. But because it was based solely on the evidence of survivors and their files, police had to also anticipate the kinds of defences Leeks might use if they were going to make a successful prosecution.
While Burgess found enough evidence to proceed with further investigation, this was snuffed out by several other influences.
In his evidence, Burgess says he thought there was enough evidence to lay charges but on advice from Crown Law it didn’t meet the public interest test and the evidence wasn’t strong enough for a prosecution.
But the argument that there wasn’t enough evidence became not only circular but inconsistent. The police didn’t find enough evidence because the preliminary investigation had been extremely limited. Burgess and those who were working on the case were under pressure from other investigations they were involved in and could only attend to the Lake Alice investigation on a part-time basis.
And if investigating the torture of hundreds of children by employees of the state does not meet the definition of public interest, then what does?
Which raises the question of resources. An investigation into Lake Alice has multiple levels of complexity given the alleged crimes include sexual abuse and torture, the fact the victims were children at the time who were mostly wards of the state, and they were in a psychiatric institution when they didn’t have a medical diagnosis of mental illness. To establish the facts in a case with that many complex variables would require a team of people with specialised expertise and significant backing. Burgess didn’t have that. But was that a failure on his part? Or did his bosses make a deliberate choice to under-resource it and choke off the investigation so as to protect the state from liability? The answers to that are now the subject of a police complaint about obstruction of justice made by Kevin Banks’ wife, Jennifer. And the Royal Commission will also be weighing up the considerable evidence it has before it.
Burgess concluded his investigation in 2010, deciding there wasn’t enough evidence to successfully prosecute. But survivors were not going to be told that there was nothing to see. A case was taken to the United Nations that New Zealand had breached the Convention Against Torture because the investigation into Lake Alice was grossly inadequate. The UN agreed and implored New Zealand to carry out a thorough investigation. When this was ignored, the UN made a finding that New Zealand was in breach of the Convention Against Torture.
It also told the New Zealand government that it needed to make the decision widely publicised and open a proper investigation. But the current government - led by Jacinda Ardern - buried the announcement on the police website. Police quietly opened a third investigation.
Fitzgerald is heading that investigation and he has also reviewed the previous two. Those reviews appear to have exposed a discrepancy between the evidence he was finding and the claims of his predecessor that there wasn’t enough evidence to charge. Fitzgerald’s apology, deliberately or otherwise, had the effect of putting considerable distance between his investigation and Burgess’s.
Some survivors are cautiously optimistic about the current investigation. By all accounts, police are now actually talking to victims and gathering evidence, which is what police are supposed to do.
But many more of the survivors are skeptical of the police apology. It has come too late to be meaningful. According to Leeks’ lawyer, his health and mental capacity are failing and he couldn’t respond to any allegations made if charges were laid. In other words, he will never face justice.
Ironically, it was Leeks’ lawyer who pointed out where the failure lay. In his closing submissions to the Royal Commission, he said the failure to carry out a thorough investigation over the last 50 years is an indictment of Leeks’ employer – the state. In his view it was a textbook case of justice delayed, justice denied.