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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Alert24 - Safeguard Update

Out of time appeal lost

Out of time appeal lost
Article Type:
Publication Date:
New Zealand

An application on behalf of the Sensible Sentencing Trust for an extension of time to allow it to bring a private prosecution under the HSE Act was turned down earlier this year for a second time (Wellington DC, 27 February 2012). The full decision has only now become available to Safeguard.

Garth McVicar, on behalf of the SST, sought the permission of the court under s54C of the HSE Act to lay four charges out of time against the Department of Corrections and two against the New Zealand Police following paroled murderer Graeme Burton's January 2007 rampage in which he fatally shot Karl Kuchenbecker and injured four others.

McVicar alleged that actions and inactions by employees of Corrections and the Police allowed Burton to remain at large in the community, and that these failings constituted offences under s15 of the HSE Act.

McVicar first applied to the court for a time extension on 17 April 2009 and was declined in May 2010. He appealed to the High Court for a review, which agreed to return the matter to the District Court for further consideration.

The SST became aware of the possibility of using the HSE Act in late 2008, when the then Department of Labour announced it would prosecute the Sir Edmund Hillary Outdoor Pursuits Centre following the drowning of six students and a teacher. McVicar said he saw clear parallels between DoL's reasons for prosecuting and the systemic failures of Corrections and the Police relating to the release and monitoring of Graeme Burton on parole.

However Judge Harrop found the application failed to overcome one of the three mandatory threshold requirements required to be satisfied in order to gain an extension of time - namely that in s54C(4)(b), which states: "It is unreasonable, having regard to the time taken by an Inspector to respond to the matter, to expect, or to have expected, the person to make that decision before the six-month period referred to in s54B expires."

The judge found McVicar's delay in taking action had nothing to do with any action or inaction on behalf of DoL inspectors. He was free to initiate action before August 2007 - the six month period following the incident - but did not do so because he was unaware until late 2008 that the HSE Act was an avenue he could pursue.

"Where an inspector is doing nothing and the interested party does nothing to find out what if anything is being done, then he cannot claim that it is unreasonable for him to have acted within the six-month period."

The judge noted that McVicar's ignorance of the law was not a personal criticism of him, as even the SST's legal advisers were unaware of the possibility of using the HSE Act. "However ignorance of the law is not a valid excuse for delay."

People Mentioned:
Garth McVicar
Organisations Mentioned:
Sensible Sentencing Trust
Reference No:

From Alert24 - Safeguard Update

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