'A ‘standards of the day’ answer is no answer to allegations of sexual assaults' - Solicitor General Una Jagose spoke at the Abuse in State Care hearing.
Video / Abusie in State Care Royal Commission of Inquiry
The Crown's top legal adviser has acknowledged shortcomings in what for many was a "brutal" approach to settling claims of abuse in state care, but denies any intentional "delay tactics".
Solicitor-General Una Jagose, who heads the Crown Law Office, gave evidence to the Abuse in Care Royal Commission in Auckland, which is conducting a wide-ranging investigation into abuse in state and faith-based care between 1950 and 1999.
"I acknowledge that the Crown, as litigator, hasn't always been survivor-focused," she said, as the final witness in the second phase of the Commission's state redress hearing.
"And it might be that we are never as survivor-focused as survivors want us to be.
"There have been significant shifts in litigation processes ... We are listening."
Jagose was responding to powerful testimonies shared by survivors of abuse in state care in the first hearing in September.
For decades many fought to be believed, to have the perpetrators held to account, and receive fair compensation.
One of those was Earl White - not his real name - who was physically abused at Epuni Boys Home and later sexually abused by a cook while in state care at Hokio Beach School in the 1970s.
Former Lake Alice patient Paul Zentveld, left, with supporters Steve Evans and Mike Ferris, protesting the Crown response to abuse claims at the psychiatric facility. Photo / Michael Neilson
He started legal proceedings against the Crown in 1999, but officials refused his early settlement offers, even denying his claims of sexual abuse - despite knowing the staff member had been convicted in 1976 of similar offences at Hokio.
It took eight years for the case to come to court and another four years before in 2011 he accepted an ex-gratia payment of $35,000 from the Ministry of Social Development, but it did not accept responsibility.
While the judge accepted the abuse occurred, he lost due to the Crown claiming the statute of limitations defence, which means claimants needed to lodge a claim within six years of turning 20.
White said the Crown would have spent close to $2 million fighting his case.
The whole process was a "nightmare" and had retraumatised him, he said, and he didn't feel justice had been done.
Another survivor, Leonie McInroe, who was subjected to electroconvulsive therapy and drugs as punishment by Dr Selwyn Leeks as a teenager, sat in the gallery to hear Jagose.
She told the Commission in September she believed the Crown had adopted "strategic, intentional delay and tactics" in its case, and defended Leeks at the expense of his victims.
"The process of seeking justice and compensation was to me an additional ongoing and sustained abuse to what I had suffered at Lake Alice at the hand of Dr Leeks and hospital management," she said.
"This time though, the abuser was the Crown."
Jagose, who has worked in Crown Law for 18 years, acknowledged how for survivors of "traumatic time in state care" the litigation processes could seem "very harsh and cold".
She had come to "explain", not "necessarily defend", the context behind the litigation process.
Some had criticised it as a "Crown tactics", Jagose said.
"I would just say litigation steps," she said.
These included the right to defend against accusations, for justice to be seen to be done, and to determine liability. They were also spending public money and needed to act responsibly.
This process of defending claims was often not to deny events had occurred, however Jagose accepted it could appear this way to survivors.
"The brutality of the litigation really shines through this," Commission chair Coral Shaw said, to which Jagose said she agreed.
She also addressed the Crown's litigation in the White case, where it opposed name suppression, even though he was a victim of sexual abuse.
"If what is meant is, let's see if we an stop people who are abused in care coming forward, that is appalling."
Jagose said she acknowledged the "pain and the frustration that they have suffered in engaging with the Crown in seeking redress for their experiences".
"And I get it that in the litigation response, while it has been about ensuring that liability is properly found, that can be seen as the Crown ducking for cover."
However, she denied there had been any intention to avoid responsibility.
"I do believe that the Crown does meet its high standards mostly.
"Sometimes we don't and we have to apologise for that, we have to learn, we have to be open to that, but we do set ourselves high standards and we should be able to meet them.
"I certainly reject any suggestion that the processes are designed to exhaust or to run out or to wear down plaintiffs.
"That is not their purpose, although again I have to accept that might be how they feel."
Former Lake Alice patient Paul Zentveld, left, with supporters Steve Evans and Mike Ferris, protesting the Crown response to abuse claims at the psychiatric facility. Photo / Michael Neilson
Over the past decade Crown Law had changed the way it responded to abuse claims, the vast majority of which had been settled without going to court, she said.
However, many survivors - several of whom were also in the gallery on Monday - were not so convinced.
Former Lake Alice patient Paul Zentveld was there with several supporters from the Citizens Commission on Human Rights, bearing T-shirts reading "Tell The Truth".
Zentveld was 14 years old when he first was admitted to the hospital's child and adolescent wing in the 1970s, where he was given electro-convulsive therapy (ECT), was drugged and was placed in solitary confinement.
He laid a complaint about the conduct of Leeks with the United Nation's Committee against Torture, which it upheld and prompted an investigation here by police.
He said the Crown should have prosecuted Leeks in 1970s when his misconduct emerged, again in the 1990s when the claims process began, but it had chosen not to, he said.
"This is about the Crown not owning up, continuing to evade responsibility for its actions."
Jagose will be cross-examined by counsel for the Royal Commission on Tuesday.
The inquiry
• The second State Redress Hearing runs until November 4, with further witnesses from MSD, Ministry of Education, Ministry of Health, Oranga Tamariki, Ministry of Justice and the Solicitor-General responding to survivors' evidence and outlining past and current policies and processes.
• This follows the first State Redress Hearing held last month, which focused on the experiences of survivors in seeking redress for abuse in state care.
• The Abuse in Care Royal Commission of Inquiry is investigating the abuse and neglect that happened to children, young people and vulnerable adults in care from 1950 to 1999. It may also consider experiences of abuse or neglect outside these dates.
• After completing its investigations, it will make recommendations to the Governor-General on how New Zealand can better care for children, young people and vulnerable adults.
