Pike River Supreme Court ruling confirms justice is not for sale

by The Listener / 30 November, 2017

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View of Pike River mine. Photo/Getty Images

New Zealanders owe a debt of gratitude to Sonya Rockhouse and Anna Osborne, whose determination has led to a vitally important ruling from the Supreme Court affirming that justice is not for sale.

But the fact that the two women – a mother and a wife of workers killed in the Pike River mine disaster – had to fight at all, let alone for so long, in defence of a principle that most would regard as self-evident remains deeply concerning. Nigel Hampton QC, who has argued their case without fee, says that in his five decades in the law, he never thought he would see money paid to end a prosecution, as happened in the case of former Pike River boss Peter Whittall.

It has been incorrectly reported that the Supreme Court set a precedent in declaring that the dropping of 12 health and safety charges against Whittall was illegal. In fact, the decision simply affirms the long-standing principle that private bargains to avoid prosecution by paying money are unlawful.

Just such a bargain was entered into in late 2013, when the Ministry for Business, Innovation and Employment accepted a proposal advanced by Whittall’s lawyer, Stuart Grieve QC, whereby $3.41 million would be paid by Pike River Coal’s directors’ and officers’ insurance to the victims, “conditional” on all charges against him being dropped.

New Zealanders should be collectively relieved that the highest court in the land has found that arrangement was illegal: if the deal had gone unchallenged, it would have raised the awful prospect of more such bargains being struck between over-worked prosecutors and well-heeled defendants.

The Supreme Court ruling is an important wake-up call for all law-enforcement agencies. Plea-bargaining has become a more common feature of modern legal practice but, as the court noted in a key passage of the decision, “The rule of law is undermined if accountability and punishment of public wrongs turns on the means of the defendant.”

Had Osborne and Rockhouse not been so dogged, even after the High Court and Court of Appeal rejected their pleas for judicial review, we would surely have come to see more deals such as the hypothetical one described by Hampton to the five judges. It is not difficult to imagine a case in which, say, a charge of careless driving causing death is laid by the police after a fatal motor accident. The driver charged asserts innocence; the case for the prosecution is perhaps not the strongest. Then, another party – a relative of the driver, perhaps – steps forward with an offer of money to cover funeral expenses and something to assuage the trauma of the grieving family, provided the charges are withdrawn.

One doesn’t need to be a legal scholar to recognise that such a situation – just like the arrangement in the Whittall case – is abhorrent in a society that seeks to live by the rule of law.

WorkSafe, the health and safety agency that inherited the Whittall mess from MBIE, has borne the brunt of criticism after the Supreme Court ruling. But the bargain MBIE made has the fingerprints on it of many people: Whittall himself, the most influential figure in Pike River’s development from the start, denied all charges against him and never acknowledged any responsibility for the tragedy that killed 29 men; the company’s former directors, too, have never acknowledged their failure to discharge their core duties as governors of Pike River Coal, even after a damning district court ruling against their defunct company and an order that it pay $3.41 million in reparations to the victims.

Meanwhile, Whittall’s lawyers, led by Grieve, drew up the deal, making that unpaid $3.41 million debt to the Pike victims a bargaining chip that would buy Whittall the right to walk away from prosecution. And the legal experts advising MBIE – a senior crown prosecutor; Crown Law; the Solicitor-General – all failed to stop the money-for-innocence proposal crystallising into an unlawful deal.

Even with the Supreme Court ruling, it remains the unpalatable truth that, seven years on from an avoidable catastrophe preceded by what WorkSafe has called “breathtaking omissions and failures”, no one has been held accountable. But, thanks to Osborne and Rockhouse, a dark stain has been erased from New Zealand’s case law.

This editorial was first published in the December 9, 2017 issue of the New Zealand Listener.

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