Police should have 'held to their guns' over CTV building collapse prosecution - QC

Friday, 1 December 2017

Police will not prosecute the engineers over the collapse of Christchurch's CTV building, which killed 115 people in the February 2011 earthquake. (Video first published in November 2017)

A lawyer who represented the families of those who died in the Canterbury Television (CTV) building collapse says the decision not to prosecute was 'timid' and 'weak'.

Nigel Hampton, QC, said a court of law, not 'some backroom of Crown Law' was the best place to debate the 'evidential weaknesses and strengths' of the case.

'It's in the light and air of an open court room that these things are best listened to and heard, and the public can see we are holding people to account,' he said.

115 people were killed when the CTV building collapsed in the February 22, 2011, Christchurch earthquake.

Police on Thursday announced that, after a three-year investigation into the building's collapse in the February 2011 Christchurch earthquake, they would not be pursuing prosecution.

**READ MORE:

Nigel Hampton, QC, right, after the coroner's inquest into the deaths of the people killed when the CTV building collapsed.

* CTV building engineer Alan Reay still deeply anguished by collapse tragedy

* Why is no-one being prosecuted for the CTV building collapse tragedy?

Detective Superintendent Peter Read, left, and Canterbury district commander Superintendent John Price announce police will not be taking a prosecution over the collapse of the CTV building.

* Police will not prosecute over CTV collapse**

They had been considering laying charges of negligent manslaughter against Alan Reay, the principal of the company that designed the building, and David Harding, the engineer who carried out the work, but decided their case was not strong enough.

Hampton said the investigation was 'meticulous' but he was 'disappointed' that after indicating there was enough evidence to pursue a prosecution the police and Christchurch Crown Solicitor had not 'held to their guns'.

'Public interest must surely lie in favour of prosecution – 115 people died and if that's proven that's an extraordinary case of 115 manslaughters. How is there not public interest in having that resolved in a court? Of course there is.

'I think there has been a wrongful application of prosecutorial discretion here, which concerns me greatly on the back of what happened with Pike River.'

Documents showed Christchurch Crown Solicitor Mark Zarifeh believed the evidential sufficiency test was met by expert evidence from engineering firm Beca.

Beca found Reay's failure to properly oversee Harding and Harding's substandard design amounted to a 'major departure from the expected standard'.

However, in advice to police, Crown Law said while 'the case for negligence is clear', 'the case for major departure [is] much less so'.

Deputy Solicitor-General Brendan Horsley said for charges of negligent manslaughter, the Crown had to prove the conduct was so bad it deserved to be condemned as a serious crime. It would be difficult to show the conduct was one of the main causes of the deaths.

Horsley also said it was 'not trial by expert', something Hampton took issue with on Friday when he said it was a case that came back to 'expertise or a lack of expertise'.

'The whole thing revolves around the legal duty of an engineer in designing a building. That's the issue under scrutiny, who else can scrutinise it but other professional engineers,' he said.

'To say it's a 'trial by expert' is to demean what was always going to happen.'

Justice Minister Andrew Little said, like Pike River, the decision not to prosecute over the CTV building collapse was another example of those involved walking away 'scot-free'.

'That's not right and I think we do have to do better.'

He floated the idea of looking at a corporate manslaughter charge, though Hampton believed a prosecution could have been taken under existing laws.

'There is a case for bringing in corporate manslaughter, it's a gap in our law and it needs to be filled,' he said.

'But I think under our existing Crimes Act provisions a base could have been brought.'

Another obstacle to a prosecution raised by Crown Law was the length of time between the design and when the deaths happened.

'The Crimes Act requires death to have taken place within a year and a day after the defendants' negligent conduct ceased,' Horsley said.

This was an 'excuse' that ignored the fact that an omission of legal duty carried on from the building's design to the day it collapsed, Hampton said.

'It didn't stop on the day the design finished, that obligation carried on until the building collapsed on February 22.'