WorkSafe defends decision dropping Pike River charges against mine boss Whittall

Thursday, 5 October 2017

Pike River widow Anna Osborne says Supreme Court judges' questions to WorkSafe's lawyer give her hope that concerns about the prosecution deal with mine boss Peter Whittall have finally been understood.

WorkSafe's lawyer has been closely questioned on whether the decision to drop charges against the Pike River mine boss was an 'unlawful bargain' struck in return for a payment of $3.41 million.

Two women who lost family members in the Pike River mine disaster want New Zealand's highest court to say the deal done with mine company chief executive Peter Whittall was wrong.

Sonya Rockhouse lost her 21-year-old son, Ben, in the 2010 disaster, and Anna Osborne lost her husband, Milton.

Former Pike River Coal chief executive Peter Whittall appearing in Greymouth District Court on 12 charges that were later dropped. (File photo)

They went to the Supreme Court on Thursday, appealing against a decision to refuse a judicial review of the decision by WorkSafe NZ to drop the charges against Whittall arising from the mine tragedy.

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Sonya Rockhouse, left, and Anna Osborne among 291 crosses placed at Parliament in 2015 to mark the number of workplace deaths since the Pike River disaster. (File photo)

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Pike River mine protesters Anna Osborne and Sonya Rockhouse camped on the road to the mine in their fight against the refusal to allow entry to part of it. (File photo)

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The court reserved its decision.

The women said dropping the charges was unprincipled and unlawful, but their lawyer agreed it was now too late to have Whittall returned to court to face the charges.

Defending the decision to drop the charges, Deputy Solicitor-General Aaron Martin appeared for WorkSafe.

He faced repeated questions from three in particular of the five Supreme Court judges. Martin said it was not an unlawful bargain, as Rockhouse and Osborne's case alleged.

A lot of factors were taken into account, including that the hearing of the charges against Whittall would have taken four or five months and covered a vast amount of material. It was assessed as having a low chance of success and there were doubts witnesses would be available.

If it had just been a case of agreeing to drop the charges if the money was paid, that would have crossed the line, Martin agreed.

Chief Justice Dame Sian Elias asked if public policy was served if the effect of the agreement was that the prosecution did not go ahead because compensation was paid.

Martin said it was not contrary to public policy, because the other public interest was the significant one in victims being compensated.

He said some of the purposes of a prosecution had already been served at the inquiry into the mine disaster, where the circumstances were investigated publicly.

The court heard that the money came from a fund that would otherwise have been used for Whittall's defence.

The women's lawyer, Nigel Hampton, QC, said the prosecution would have carried a message to company directors who believed they were not personally responsible.

'This is a lesson which should be learned through this prosecution,' Hampton said.

Twenty-nine men died when the West Coast coal mine exploded on November 19, 2010.

Whittall, the mine's chief executive at the time of the disaster, initially faced 12 health and safety charges and pleaded not guilty.

Pike River Coal, the mine owner, pleaded guilty to nine charges and was fined $760,000. It was also ordered to pay $3.41 million reparation, but its financial state meant it was doubtful the money would ever be paid.

Whittall offered to make a voluntary payment of $3.41m from his insurer, and WorkSafe did not offer any evidence against him. All charges were dropped in December 2013.

The families and two survivors received payments.

Osborne, who previously called it 'blood money', said the families were not asked whether they accepted the $3.41m, which amounted to $110,000 per family.

Attempts in the High Court and Court of Appeal to overturn the outcome of the case against Whittall failed.

At the start of the Supreme Court hearing Hampton said it was a case about whether the criminal justice system applied to everyone, rich or poor, or whether it was a system in which payment of money could be used to end a prosecution.

The bargain reached between Whittall and WorkSafe was unprecedented, unprincipled and unlawful, he said.