13 Dec 2013

Private prosecution offer made to Pike families

9:52 pm on 13 December 2013

The man who took a private prosecution against ACT leader John Banks is seeking donations from the public to file manslaughter charges against Pike River Coal's former chief executive.

Charges of breaching health and safety rules laid against Peter Whittall were dropped on Thursday after the Crown decided that it was unlikely to get a successful prosecution. The Ministry of Business, Innovation and Employment made the announcement.

Mr Whittall was the only individual charged and faced 12 counts brought by the former Department of Labour over his role in a series of explosions at the West Coast mine that began on 19 November 2010 in which 29 men died and two survived.

Mr Whittall and other directors and officers of Pike River Coal have offered to make a voluntary compensation payment of $3.4 million to the families of the victims and the two survivors - about $110,000 each. It is money from the directors' own insurance.

Graham McCready's action has resulted in John Banks facing a trial in May next year for making a false electoral return relating to his failed bid for the Auckland mayoralty in 2010.

Bernie Monk: "I knew something went behind the scenes that we didn't know about."

Bernie Monk: "I knew something went behind the scenes that we didn't know about." Photo: RNZ

Mr McCready now plans to file 29 counts of manslaughter against Peter Whittall with his registered company New Zealand Private Prosecution Service Ltd.

The retired Wellington accountant said he wants to work with the families to file charges, but the company needs about $1000 for court fees and he is asking for public donations.

Mr McCready said it would be too expensive for the families to take court action themselves.

"Furthermore, they'd be exposed to a cost if they lost, which would probably bankrupt them all. The Private Prosecution Service Limited is a limited company, it has been accepted as a prosecution service in its own right. Once we file, everybody is protected from costs because it's a limited company that's actually taking the action."

Mr McCready said he is not put off by the police's decision not to lay manslaughter charges on the grounds of insufficient evidence.

"We've heard this so many times - not enough evidence. But when you actually get down to it and put the case before the court and go through it one step at a time, as we did in the Banks case, the result is often positive in terms of the prosecution."

Mr McCready said he expects to file papers with the court in the new year.

Bernie Monk, a spokesperson for some of the families, said they would be talking to their lawyers about whether to join the private prosecution. He said he heard from Mr McCready on Friday morning.

"It took me by surprise obviously, and ... it's something the families have got to discuss. We've had so much happen in the last 24 hours. We've just got to let the dust settle and let our minds to have peace a wee bit."

Garth Gallaway, a partner at law firm Chapman Tripp, said the prospects of a private prosecution being successful are slim. Mr Gallaway said police have also investigated and decided not to prosecute. He said in the absence of compelling new evidence, it would be tough for Mr McCready to get manslaughter charges laid.

John Key.

John Key. Photo: RNZ

Meanwhile, Prime Minister John Key said on Friday it would have been inappropriate for him to intervene in a decision to drop charges against Mr Whittall. He said the Ministry of Business, Innovation and Employment's decision was made without reference to the Government.

"If the Government got involved, it would be a very serious situation - it would be like the Government directing the police to take action. Some people might like that when it comes to this particular case, but they certainly wouldn't like it if we lived in a police state where as Prime Minister or as the Government we started deciding in this country who should be prosecuted and who shouldn't."

Mr Key said he is aware of Mr McCready's plans, but did not know what his chances of success are.

CTU may ask for judicial review

The Council of Trade Unions may ask for a judicial review into the decision to drop charges against Peter Whittall.

CTU president Helen Kelly.

CTU president Helen Kelly. Photo: SUPPLIED

President Helen Kelly told Radio New Zealand's Morning Report programme on Friday that justice and accountably were traded off. She said the union would consider legal options and is discussing whether the decision can be reviewed.

The CTU wants the Government to release all documentation that led to decision, including discussions it had with the court or Pike River Coal. She said the families want justice and accountably.

Labour Minister Simon Bridges said proper legal principles were followed in making the decision to drop the charges. He told Morning Report he understands why the men's families believe no one has been held accountable. However, he said proper legal processes were followed and no politics - and certainly no deal - were involved in the decision.

Grey District Mayor Tony Kokshoorn said the Crown's decision has prevented justice from running its full course. He told Radio New Zealand's Nine to Noon programme on Friday the failure to hold anyone to account takes the country one step closer to the next disaster.

The Labour Party said the decision not to pursue charges against is outrageous. The Green Party said the fact a payment to the men's families and the dropping of any charges against Peter Whittall were made public at the same time makes it look like the two are connected.

However, a lawyer representing Pike River Coal management denies that there was any backroom deal done over a prosecution.

The author of a book about the disaster says she is shocked the prosecution against Peter Whittall has been dropped.

Rebecca Macfie, who wrote Tragedy at Pike River Mine: How and Why 29 Men Died, said the Ministry of Business, Innovation and Employment made a fundamental error in its strategy, as Mr Whittall should not have been the only individual prosecuted.

"We had a mine manager also there at the time who had statutory powers to take care of health and safety at the mine, who had the statutory power to shut the mine. That's Doug White, who was the then mine manager, who was not charged. For many, many people there's been just bewilderment as to why he was not also charged alongside Peter Whittall."

Ms Macfie said Mr White is one of the key witnesses who refused to return to New Zealand to give evidence in the Peter Whittall prosecution.

New protocol approved

A new emergency protocol for underground mines has been approved following a recommendation by the Royal Commission on the mining disaster.

It includes guidance on managing a major underground mine or tunnel emergency and sets out the persons and agencies responsible for responding, their key duties and the lines of authority for decision making and communication.

Labour Minister Simon Bridges said on Friday under the new protocol, the incident controller at an underground emergency must have mining expertise and will be supported by a team made up of the Mines Rescue Service, WorkSafe NZ, police and the mine operator.