NZ Herald editorial: Dropping Pike River charges was a disgrace

When charges were dropped against the chief executive of Pike River Coal, Peter Whittall, on account of his offer to pay $3.41 million to victims of the explosion, most New Zealanders were probably astonished such an arrangement could be lawful in this country. They were right to be astonished.

In a judgment issued last week the Supreme Court has made it clear there never was any doubt such an arrangement would be unlawful. The only issue the court had to decide was whether agreement between Whittall's lawyer and the Crown Solicitor in Christchurch, who was advising WorkSafe NZ, was just such an agreement.

On the evidence set out in their written decision, five judges of the Supreme Court are unanimous that it was, and therefore find it was unlawful of WorkSafe to offer no evidence against Whittall in the district court.

Anyone who reads that evidence might now be astounded that an appeal filed by two of the dead miners' relatives, Anna Osborne and Sonya Rockhouse, had to go through the High Court and the Court of Appeal before they succeeded in the Supreme Court.

The judgment records that after a meeting between the Crown Solicitor, "Mr Stanaway", and Whittall's lawyer, "Mr Grieve", in August 2013, Grieve wrote, "The essence of the arrangement that I proposed involved a voluntary payment of a realistic reparation payment, conditional upon the informant electing not to proceed with any of the charges against Mr Whittall".

In reply, Stanaway wrote, "Currently on the table, on a without prejudice basis, for discussion is the central arrangement that the insurers for Mr Whittall [Pike River Coal] would make a voluntary payment of a realistic reparation payment to Pike River disaster victims conditional on [WorkSafe] electing not to proceed with any charges against Mr Whittall."

The sum they were discussing, $3.41 million, was the amount Pike River Coal had already been ordered to pay the victims when the Greymouth District Court had found the company guilty of causing the mine explosion. The company was in receivership and its reparations were not paid.

It should be noted, therefore, that those who brought the appeal against the dropping of charges against Whittall already had a right to the money paid to them under his lawyer's deal with WorkSafe.

This is just the latest unsavoury turn in a saga that has exposed deficiencies in many of this country's institutions. Pike River mine was a marginal operation from the outset, financially and operationally.

The dangers in its design, the failings in its safety precautions and the pressure it was under to produce results in the weeks before the explosion have been documented by a royal commission of inquiry. Now we see how poorly our legal institutions have served the victims' families.

The police decided not to proceed with criminal charges against Whittall before the deal was done with WorkSafe. Doubtless a case brought under the Health and Safety in Employment Act would have been long and costly, the outcome uncertain and the penalties relatively light.

But the victims and the public were owed justice. They still are.