Families of Pike River mine victims make case in final forum for appeal

by Rebecca Macfie / 06 October, 2017
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Sonya Rockhouse, Anna Osborne and Dean Dunbar, who lost family members in the Pike River explosion. Photo/Rebecca Macfie

Families of the victims of the Pike River mine tragedy have had their plea for justice heard in the highest court in the land. 

Does the criminal justice system apply equally to all – rich or poor or can freedom from prosecution be bought?

That was the question before the Supreme Court on Thursday, as the long-running battle over the dismissal of charges against the former boss of Pike River Coal – who had pleaded not guilty – reached the final forum for appeal.

Nigel Hampton QC told the five justices of the court that the December, 2013 decision to dismiss all 12 charges against Peter Whittall, conditional on the payment of $3.4 million to the victims of disaster, was “unprecedented in New Zealand legal history”.

Hampton was representing Anna Osborne and Sonya Rockhouse. Osborne’s husband Milton died in the mine; Sonya Rockhouse’s son Ben also died, and another of her sons, Daniel, narrowly escaped death and dragged the only other survivor, Russell Smith, out of the mine drift to safety. Just before yesterday’s court hearing the two women, along with fellow Pike victims Bernie and Kath Monk, met with New Zealand First leader Winston Peters who confirmed that a manned re-entry into the mine drift was a bottom line for his party in coalition negotiations.

Hampton told the court the decision by the Ministry of Business Innovation and Employment (MBIE) to ditch the charges against Whittall – the key driver of the mine project from 2005 until the November 2010 explosion – was “unprincipled” and “unlawful”. It was “the thin end of the wedge” for the justice system.

Hampton drew a hypothetical parallel: imagine there is a fatal motor accident, and charges of careless driving causing death are laid by the police. The driver asserts innocence, and the case for the prosecution is perhaps not the strongest. But some other party – a relative of the driver, perhaps – steps forward with an offer of money to cover funeral expenses and something towards the emotional trauma of the grieving family, provided the charges are dismissed.

Hampton says this is effectively what happened with the Whittall charges, and the ramifications go far beyond the Pike tragedy. “[If] this type of outcome is to be allowed from this court, then what effect does it have on every day matters in the criminal jurisdiction of the District Court?”

Chief Justice Sian Elias said the key point in contention in the appeal before the Supreme Court was “simply that if you have a bargain that a prosecution will not proceed on the basis of a payment, that is an illegal bargain. That’s the only issue – was there a bargain here that no evidence would be offered if the money was paid.”

To recap the basic facts of the case, Whittall was charged on 12 counts under the Health and Safety in Employment Act, to which he pleaded not guilty. None of the charges required MBIE to prove he had caused the explosion or the 29 deaths; it merely had to establish the existence of risk as a result of his alleged failures.

The company behind the mine project, Pike River Coal, which went broke shortly after the explosion, was prosecuted in 2012 and ordered by the District Court to pay $3.4 million in reparations to the Pike victims. But because there was no money left after the payment of major creditors, there was no prospect of the defunct outfit ever being able to pay that debt to the victims.

From mid-2013 until the dismissal of the charges in December 2013, Whittall’s lawyer Stuart Grieve QC and Crown Prosecutor Brent Stanaway engaged in negotiations over the charges. It started out as relatively normal plea bargain negotiation, with Stanaway hoping Whittall would plead guilty to some charges in return for the dismissal of others; it ended up with all 12 charges being dropped, conditional on $3.4 million being paid from Pike’s directors’ and officers’ insurance to the families of the 29 men and the two survivors – effectively clearing the debt owed by the bankrupt company.

Osborne and Rockhouse have been fighting ever since to have the decision to dismiss the charges overturned. Both the High Court and the Court of Appeal have both rejected their arguments

In the Supreme Court on Thursday, the focus was whether the offer of $3.4 million in return for the dismissal of charges was an unlawful bargain to stifle a prosecution. 

From the bench, Justice Willie Young commented that the arrangement reminded him of an old example taught in law school about unilateral contracts: “I will pay you £100 if you walk to York. The offer isn’t accepted by the offeree otherwise than by walking to York. So it does seem to me that it was that sort of contract. ‘We will pay $3.4 million if the prosecution is discontinued. When the prosecution is dismissed, the bargain is complete’.”

In the months of negotiation between Grieve and Stanaway, the withdrawal of charges against Whittall was referred to as a “condition” of the payment of the $3.4 million. It was also referred to as an “essential feature” and a “central arrangement”.

However MBIE argues the payment of money was just one of many factors considered in deciding not to proceed with the prosecution. Other important factors were that it would be a long and costly trial with a low likelihood of success, that the principal offender – the defunct Pike River Coal Ltd – had been prosecuted, and that there had been a Royal Commission of Inquiry.

But Hampton argued the prosecution of Whittall was important. “It carried a message to directors that they cannot simply hide behind a company that has gone into liquidation and say ‘I was not personally responsible’.”

MBIE’s lawyer, Aaron Martin, refuted the allegation that an unlawful bargain to stifle a prosecution had been entered into. “There was no meeting of minds to strike a bargain over payment of reparation in return for withdrawal of charges,” he told the court.

But Martin faced lengthy questioning from the bench. “Why isn’t it a bargain if, as a result of the offer [of money], the charges are not advanced further?” asked Justice Young. He went on to comment that Stanaway would surely have been “furious” if MBIE had dismissed the charges and then Whittall had failed to hand over the money, because “in substance, there had been an agreement”. Conversely, Whittall would have been furious if he had paid the $3.4 million and then MBIE went ahead with the prosecution anyway. 

But such an agreement would not have been enforceable, replied Martin.  “The prosecution were entitled to proceed with their prosecution.”

Justice Young: “No, you can’t enforce an agreement to stifle a prosecution, but …that doesn’t mean that there isn’t an agreement.”

He challenged Martin with another hypothetical situation: “A man is charged with rape, his counsel says to the prosecutor, ‘there is complete denial of liability but my client will pay $200,000 in reparation on condition the charge is dismissed’. The prosecutor says, ‘there’s no other way the victim will get anything out of this’, so the charge is dismissed, and money paid.”

Martin responded that such an argument under-stated the complexity of the Pike case, where the decision to dismiss was “a long way from ‘you give us money and we won’t proceed’.” He said MBIE considered matters of evidential sufficiency (although a review of the file had shown there was enough evidence to prosecute), the prospect of a 16-20 week trial, non-availability of some witnesses, and “consideration of the public interest”.

In response to Martin’s argument that the offer of money was just one of many factors taken into account by MBIE, Justice Susan Glazebrook asked: “So what? If this [money] was taken into account and it shouldn’t have been, does it matter that there were five other considerations or no other considerations. Where is the line drawn in your analysis?”

Justice Young asked if there had been any consideration by MBIE of abandoning the prosecution prior to the offer of money.

“No,” replied Martin.

Martin told the court that a trial would have been “a very large prosecution case with a great deal of complexity, and active defence of the case, raising various going to matters of admissibility… disclosure, and so forth.” The decision not to proceed to trial had been weighed against the Solicitor General’s prosecution guidelines.

“Resource aren’t limitless,” agreed Chief Justice Elias. But “you have to assess that in the context of such things such as the seriousness and the public interest…This is not the sort of case where we are talking about diversionary options for youth.”

Justice Glazebrook put it to Martin that “the flavour of these guidelines is that in very serious offending, you prosecute…And this must be one of the most serious types of prosecutions you could get, at least in terms of the Health and Safety Act.”

Hampton has asked the court for a declaration that the decision to dismiss the charges was unlawful.

The court reserved its decision.

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