Charges against former Pike River CEO Peter Whittall not proceeding
The Ministry of Business, Innovation and Employment will not be proceeding with charges laid against former Pike River CEO Peter Whittall in connection with safety failings at the Pike River Mine.
In the Christchurch District Court this morning, the Ministry told Judge Jane Farish it intended to offer no evidence on the 12 charges and asked that Mr Whittall be discharged.
“It is very important to understand that the evidence we gathered met the threshold for initially laying charges. However, as a hearing date approached, the Ministry again reviewed its case against the ‘Test for Prosecution’ set out in the Solicitor General’s prosecution guidelines,” the acting Deputy Chief Executive of the Health and Safety group, Geoffrey Podger said.
“Taking into account the available evidence, the Ministry considered that the likelihood of obtaining a conviction was low. A number of factors were considered relevant and were taken into account in making this assessment”, Mr Podger said. “These included witnesses not being prepared to make themselves available, contests between experts, and other pre-trial issues.”
“There is also the issue of the public interest. This is a particular aspect of the Test for Prosecution and is not the same as a test of public opinion about the case. Following careful consideration, the Ministry determined that the public interest was not met by continuing with a long costly trial with a low probability of success. The issues considered included the low sentence that was likely to be imposed in the event of a conviction; the fact that reparation orders would be unlikely to be imposed; and that the principal offender (Pike River Coal Limited (In Receivership)) has been convicted and fined,” Mr Podger said.
“Additionally, a proposal was made by Mr Whittall’s legal team that subject to charges being withdrawn, he would meet the Pike River families. Each of the Company’s directors would be asked by Mr Whittall to attend. The proposal also included a voluntary payment on behalf of directors and officers of the company at the time of the explosion of $3.41 million to meet the reparation ordered by Judge Farish at the Pike River Coal Limited sentencing.
“The Ministry sought advice from the Solicitor General on whether the financial offer should be taken into account, and if so, how. After consultation with the Solicitor-General and careful consideration, it was determined that the offer should be taken into account. However, ultimately it was the low likelihood of conviction together with the other public interest factors weighing against prosecution that led us to the conclusion not to proceed with the charges,” Mr Podger said.
“We also note the successful prosecution of Pike River Coal Limited (In Receivership), with a record fine and reparations being ordered,” Mr Podger said.
“In all of the circumstances, the Ministry did not consider continuing the case against Mr Whittall was therefore warranted,” Mr Podger said.
“The Ministry has informed the families of the 29 men who died of its decision,” Mr Podger said.
Notes to media
Mr Whittall faced 12 charges laid under the Health and Safety in Employment Act 1992.
Each carried a maximum fine of $250,000.
- Four charges under S6 and s56 of the Act alleging Mr Whittall as an officer of Pike River participated or acquiesced in the company’s failure to ensure the safety of its employees while at work on issues relating to methane explosion management, ventilation management, panel geology and mitigating the risk and impact of explosion
- Four charges under S18 and s56 of the Act alleging Mr Whittall as an officer of Pike River Coal Limited participated or acquiesced in the company’s failure to ensure the safety of its contractors, sub-contractors and their employees while doing work at Pike River Mine, on issues relating to methane explosion management, ventilation management, panel geology and mitigating the risk and impact of explosion
- Four charges under under S19 of the Act alleging Mr Whittall as an employee of Pike River Coal Limited failed to take all practicable steps to ensure that no action or inaction of his while at work harmed any other person.
Charges against Mr Whittall were first laid by the former Department of Labour on 10 November 2011.
Health and Safety in Employment Act – Section 6
Employers to ensure safety of employees
Every employer shall take all practicable steps to ensure the safety of employees while at work; and in particular shall take all practicable steps to—
- provide and maintain for employees a safe working environment; and
- provide and maintain for employees while they are at work facilities for their safety and health; and
- ensure that plant used by any employee at work is so arranged, designed, made, and maintained that it is safe for the employee to use; and
- ensure that while at work employees are not exposed to hazards arising out of the arrangement, disposal, manipulation, organisation, processing, storage, transport, working, or use of things—
- in their place of work; or
- near their place of work and under the employer's control; and
- develop procedures for dealing with emergencies that may arise while employees are at work.
Health and Safety in Employment Act – Section 18
Duties of principals
- Every principal shall take all practicable steps to ensure that—
- no employee of a contractor or subcontractor; and
- if an individual, no contractor or subcontractor,—
is harmed while doing any work (other than residential work) that the contractor was engaged to do.
Subsection (1) shall be read subject to section 2(2).
Health and Safety in Employment Act – Section 19
Duties of employees
Every employee shall take all practicable steps to ensure—
- the employee's safety while at work (including by using suitable protective clothing and suitable protective equipment provided by the employer or, if section 10(4) applies, suitable protective clothing provided by the employee himself or herself); and
- that no action or inaction of the employee while at work causes harm to any other person.
Health and Safety in Employment Act – Section 56
Offences by bodies corporate or Crown organisations
- Where a body corporate fails to comply with a provision of this Act, any of its officers, directors, or agents who directed, authorised, assented to, acquiesced in, or participated in, the failure is a party to and guilty of the failure and is liable on conviction to the punishment provided for the offence, whether or not the body corporate has been prosecuted or convicted.
- If a Crown organisation fails to comply with a provision of this Act, any of its officers, directors, agents, or employees concerned in the management of the organisation who directed, authorised, assented to, acquiesced in, or participated in the failure is a party to, and guilty of, the failure and is liable on conviction to the punishment provided for the offence, whether or not the Crown organisation has been prosecuted or convicted.