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Alert24 - Safeguard Update

Whittall prosecution decision lawful

Whittall prosecution decision lawful
2017-02-24
Article Type:
News
Publication Date:
2017-02-24
Jurisdiction:
New Zealand

The Court of Appeal has found the December 2013 decision by the nascent WorkSafe New Zealand to offer no evidence in its prosecution against Pike River mine boss Peter Whittall was lawfully made.

The Court considered an appeal by Anna Osborne and Sonya Rockhouse for a judicial review of WorkSafe’s decision and, like the High Court earlier, declined to uphold it (Court of Appeal, 16 February 2017).

In addition, the Court noted that even if it had found WorkSafe’s decision had been made unlawfully it would not have taken action to quash the original District Court or prosecution decisions because the payment of $3.41m in reparation to the Pike families was now irretrievable.

As a result of the November 2010 Pike explosion, in which 29 men died, the health and safety regulator laid charges against three parties. Contractor company VLI Drilling International Pty Ltd pleaded guilty to three charges and was fined $46,800 on 26 October 2012.

Pike River Coal Ltd (PRCL), the mine owner, did not defend nine HSE Act charges and on 5 July 2013 was fined $760,000 and ordered to pay $3.41m in reparation. By that stage it was in liquidation and payment was unlikely.

Whittall, as chief executive of PRCL, faced 12 charges and pleaded not guilty. Before the case came to trial he undertook, through his lawyer, to pay the $3.41m in reparation to the families in return for WorkSafe offering no evidence against him. The sum would be paid by his insurer, which didn’t have a view on whether the money should be spent on reparation or on defending the charges.

After much internal discussion WorkSafe advised the District Court it would offer no evidence against Whittall, and the charges against him were dismissed. WorkSafe’s chief inspector, Keith Stewart, made the decision on two grounds: firstly, that while there was enough evidence to justify the prosecution, the chances of success were low: at least 14 of 92 potential Crown witnesses were unavailable and others were reluctant to appear. Secondly, pursuing the prosecution would not have been in the public interest because any fine imposed on Whittall would be low and a reparation order was unlikely (contrasting with the record fine and large reparation order against PRCL); and WorkSafe would face substantial costs conducting a trial lasting 16 to 20 weeks.

WorkSafe said it then took into account Whittall’s reparation offer, and to meet personally with the Pike families, which helped to inform its decision not to offer evidence.

The central allegation made by the appellants was that WorkSafe entered into an agreement with Whittall: that in return for the payment it would enter no evidence in support of the charges against him. The High Court had found the proposed payment had been consistently referred to as a voluntary payment in the nature of reparation, and that there had been no agreement to stifle a prosecution.

The Court of Appeal found an offer of reparation may be a relevant consideration when deciding whether to pursue charges, provided the prosecutor does not enter into an agreement to drop charges in exchange for payment. “That is, there must be no express or tacit indication by the prosecution that the consequence of the making of the offer by the defendant is that it will necessarily then be accepted as the conclusion of a bargain.”

The Court noted that on 8 July 2013 counsel for WorkSafe suggested to counsel for Whittall that they meet to discuss plea arrangements. On 7 August Whittall’s counsel wrote to say he was looking for a way to “conclude” the prosecution and proposed a voluntary reparation payment conditional on charges not proceeding.

On 20 August WorkSafe’s counsel advised that the proposal had not been rejected but that “the most principled and appropriate outcome” would be for Whittall to plead guilty to at least one charge.

On 16 October Whittall’s counsel proposed a voluntary payment of $3.41m, being the reparation amount ordered from the defunct PRCL, on behalf of the directors and officers of PRCL and paid out of their directors’ and officers’ insurance. He noted this sum was only “viable” provided the matter could be swiftly resolved, given the costs of defending such a lengthy trial.

In November a WorkSafe party concluded the prosecution was unlikely to succeed and would in any case not be in the public interest, as outlined earlier. Stewart told the Court that the reparation proposal was considered separately after that assessment due to concerns over its legitimacy and appropriateness. However WorkSafe received legal advice that a voluntary offer of payment could be considered as a factor in its decision on prosecution.

The Court found that the 2013 discussions between the two lawyers had the appearance of a negotiation but it was not possible to conclude the eventual decision to drop charges was a bargain: WorkSafe’s counsel was not the decision-maker, and there was no express or tacit indication that Whittall’s offer would be accepted. Also, it found Stewart to be a credible public servant with no financial interest in the outcome or any alleged bargain, and that he had brought “a fair and honest mind” to the matter.

“There was no unlawful agreement to stifle the prosecution by payment of money. Rather WorkSafe properly and independently considered Mr Whittall’s conditional reparation undertaking, amongst other factors, in concluding it was no longer in the public interest to continue prosecution.”

 

 

People Mentioned:
Sonya Rockhouse; Peter Whittall; Anna Osborne; Keith Stewart
Organisations Mentioned:
WorkSafe; Pike River Coal; VLI Drilling International
Reference No:
170224CA-4334

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