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Safeguard Magazine

Legal Viewpoint—Crown accountability

PAM McMILLAN says that despite a change in the law in 2002, Crown organisations continue to resist prosecution under health & safety law.

Crown prosecution under the HSE Act has been available since the Crown Organisations (Criminal Liability) Act was passed in 2002. This followed recommendations by Judge Noble after the Cave Creek tragedy in 1995. Despite the root causes being systemic problems in the way the Department of Conservation was under-resourced, DOC could not be prosecuted for these failings due to loopholes in the law.

Judge Noble said: in this part of the New Zealand public sector I am left with the uneasy impression that the understanding of accountability is blurred. He recommended the Crown’s exemption from prosecution (either by the Crown or privately) under the Building Act and the HSE Act be removed. His recommendations resulted in the COCL Act.

It is debateable, however, whether the COCL Act has lived up to the hopes of Judge Noble. Consider the cases of Karl Kuchenbecker and Debbie Ashton.

Debbie Ashton was killed in December 2006 when Jonathan Barclay drove recklessly at high speed, crossing the centre line and crashing into Ms Ashton’s car. Karl Kuchenbecker was shot and killed by parolee Graeme Burton in January 2007 while walking in the hills above Wainuiomata. Barclay and Burton were both convicted in the criminal courts. The deaths of Debbie Ashton and Karl Kuchenbecker were both preventable, in the view of the Coroner (in the case of Karl Kuchenbecker) and Kristy McDonald QC (in the case of Debbie Ashton), were it not for systemic failures by the Police and Corrections.

Between 2009 and 2012 Nikki Pender and I acted for the applicants in two private prosecutions under the HSE Act against the New Zealand Police and the Department of Corrections in these matters. The applicants wanted to bring private prosecutions against government departments for harm done by a person under the department’s responsibility to a member of the public.

Under the HSE Act anyone may file a private prosecution where an inspector of the regulator elects not to prosecute. This must be done within six months after an inspector learns, or ought to have learned, of the event that is the subject of the intended prosecution unless an extension of time is given. The HSE Act is unclear on when the six months starts if an inspector never even considers prosecution.

Because of time delays we had to apply for extensions of time. This should have been a simple procedural matter but took more than two years. The lawyers for the Police and Corrections put up all the legal hoops they could find. The two matters were joined together and went to the District Court, to the High Court twice, and then back to the District Court for a rehearing. The long delay held up the Coroner’s report in Debbie Ashton’s case and eventually the Ashton family decided to withdraw their application.

Garth McVicar, for the Sensible Sentencing Trust and the Kuchenbecker family, continued with the Kuchenbecker matter. On 27 February 2012 Judge Harrop declined the application for the Kuchenbecker matter, finding that the reason an extension of time was necessary was because of Mr McVicar’s lack of awareness of the possibility of laying a private prosecution under the HSE Act and that this was not enough to justify such an extension (McVicar v Department of Corrections [2012] DCR 479). In other words, the novelty of the claim was the reason for it not passing first base.

Had an extension of time been granted these would have been test cases. In essence we were trying to make the Police and Corrections accountable for mistakes by their staff which led to the deaths of two members of the public. Prosecuting a person for harm caused by their employee to someone else is not unusual. Under section 15 of the HSE Act, every employer shall take all practicable steps to ensure that no action or inaction of any employee while at work harms any other person. For example, a “swim with the dolphins” business was prosecuted successfully when a passenger was injured by propellers of a boat while swimming with dolphins (Maritime New Zealand v Dolphin Watch & Nature Ecotours Limited, 14 December 2011, District Court).

In our cases, however, the harm was done by a third person, not a boat, or ski-lift etc. Whether the HSE Act should cover these types of instances is still a question to be tested in the courts. Other examples may be a high speed police chase of a suspect who crashes into a crowd and kills innocent bystanders, or where a poorly supervised mental health patient walks out of a secured facility then kills someone.

Some lip service has been paid to the COCL Act. The Department of Conservation was convicted under the HSE Act in late 2012 for the presumed drowning of a volunteer on Raoul Island in January 2012. In other cases prosecutions of the Crown just don’t happen. The Pike River mine disaster is a case in point. The Pike River Royal Commission was highly critical of the Department of Labour’s mine inspectors. A report (April 2013) commissioned by MBIE found that systemic failures in the former Department of Labour and Ministry of Economic Development may have been a major factor in the deaths of miners. Peter Whittall, the former CEO of Pike River Coal, and a drilling company, Valley Longwall International, are being prosecuted under the HSE Act but government officials are not.

From our review of the Ashton and Kuchenbecker proceedings and the Pike River disaster, it is doubtful if the lessons from Cave Creek have been learned by the Government. The Crown resists criminal convictions and, like private citizens, uses its resources to avoid private prosecutions.

PAM McMILAN is a senior solicitor at Franks & Ogilvie, a Wellington public and commercial law firm.

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