The Whittall prosecution

Stuff reports:

West-Coast Tasman MP Damien O’Connor also said the settlement looked like a “stitch-up”.

“The families have said they want justice more than money and this tragedy will have no end until justice is seen to be done,” he said.

Bridges denied yesterday’s announcement left New Zealand’s justice system a “laughing stock”.

“I disagree with that. It was a decision based on legal principles, and determined by the Ministry after clear legal advice from the crown solicitor and the solicitor general.”

He said he was advised of the decision only this week, after the decision had already been made. 

“I had no involvement in it, and that’s as it should be. I think politicians shouldn’t be involved in deciding whether or not to prosecute individuals.”

The decision was made after assessing the level of evidence available and whether or not it was in the public interest, Bridges said.

“In terms of the evidential test, the factors taken into account there included witnesses not being prepared to make themselves available, [and] contest between experts and other pre-trial issues. 

One can sympathise with the families that they wanted to see a conviction in court. But if a trial had a low probability of a conviction, I’m not sure they’d be much happier having to sit through a five month trial, and have Whittall almost certainly found not guilty.

It is worth noting also that the charges Whittall faced could not have resulted in imprisonment. The only thing that could have happened was a fine and the stigma of conviction.

Whether or not he has a formal conviction, I doubt Whittall will ever be employed in the mining industry again.  In fact he may never again be employed by anyone. The stigma of a conviction would not change his employment prospects.

Whittall was hailed as a hero (including by me) for the way he fronted up and openly communicated during the immediate post-explosion stage. But I said at the time:

But he would know, that admiration for his post-explosion performance, will not protect him if it transpires that Pike River Coal has some culpability for what happened. Admiration for fronting up does not remove accountability and responsibility.

The Royal Commission clearly found that there were numerous failings by Pike River, and Whittall. Note however he was mine manager, not CEO, for most of the time. If a prosecution of Whittall had a reasonable chance of success, then it should have continued. But it is very clear from what MBIE have said that their prosecution would have failed. The Judge all but said so herself.

The Herald notes:

Judge Jane Farish was doubtless on the mark when she said yesterday that the likelihood of a prosecution of Peter Whittall was “extremely low” and the case may never have reached trial. As such, it was right for the Ministry of Business, Innovation and Employment to drop the 12 health and safety charges against the former Pike River Coal chief executive.