Purchasing “justice” on the New Zealand open market – did National sell Pike River victims out?

By   /   February 28, 2014  /   22 Comments

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Timeline

19 November 2010: An explosion at Pike River Mine, on the West Coast, kills 29 miners.

10 November 2011:  The Department of Labour  lays 25 charges against Pike River Coal Limited (in receivership); VLI Drilling Pty Limited (Valley Longwall),  and Peter William Whittall.

31 July 2012: Valley Longwall International (VLI) pleads guilty in the Greymouth District Court to three health and safety charges and on 26 October is fined $46,800. Pike River Coal’s  receivers enter no plea and a year later are fined and order to make payments to the families. PRC did not pay the fine and made only a minimal payment to the victim’s families.

25 October 2012: Peter Whittall enters not guilty pleas.

30 October 2012:  A  Royal Commission of Inquiry concludes and presents a report to the Attorney-General, Chris Finlayson.

5 November 2012: Royal Commission’s report made public and   Kate Wilkinson resigns as Minister of Labour.

10 December 2012: “Prime Minister John Key will personally apologise to the families of the Pike River 29 after a Royal Commission report blamed the Government for lax oversight of the mine.” (Source)

16 October 2013: Peter Whittall’s lawyer, Stuart Grieve QC,writes secretly to the Ministry of Business, Innovation and Employment (MBIE) suggesting that  in ‘‘advance of the $3.41 million being made available, it is proposed [with precise terms to be agreed] that  …  the Ministry will not proceed with the charges laid against Mr Whittall by advising the Court that no evidence will be offered in support of any of the charges.’’

12 December 2013: Judge Jane Farish drops all charges against Peter Whittall saying, ‘‘Some people may believe this is Mr Whittall buying his way out of a prosecution, but I can tell you it’s not.’’ Peter Whittall agrees to pay compensation of $3.41 million to the families of the dead Pike River miners.

27 February 2014: Stuart Grieve’s secret letter to the Ministry of Business, Innovation and Employment (MBIE) is made public under an OIA request.

Denials

 ‘‘Some people may believe this is Mr Whittall buying his way out of a prosecution, but I can tell you it’s not.’’ –  Judge Jane Farish

‘‘It arrived by Stuart Grieve, nobody asked if they were prepared to offer money – they offered money. Very careful legal advice was taken as to whether it was proper to take this into account at all. We got clear legal advice that we should take it into account, and it was one, but only one, of that factors, and not the predominant factor in the decision that was taken.’’- Geoffrey Podger, CEO, WorkSafe NZ

‘‘I wish to make it very clear, again, that there was no such arrangement between the defence and prosecution.’’ – Brett Murray, General Manager, Worksafe high hazards

Stuart Grieve: “This letter didn’t just come out of the blue. That’s not how it happened. Although that is perhaps the impression that seems to have been given by what I’ve read read, that Worksafe chief executive said that the letter just arrived, and we offered money. That’s not how it happened at all. The [letter] needs to be looked at in context. Over a period starting from about, quite early last year, the solicitors for the defendent, Mr Whittle, and I, were getting disclosure from  MBIE that very quickly revealed that they had, there were  significant problems with the electronic disclosure and then that in turn revealed that there were significant problems with the way  the investigation had been  carried out because a lot of relevant materials stored on computers operated by all sorts  of employees of Pike [River Mine] had not been recovered or retained and a lot of that would well have, could well have been relevent to the defence. There were also significant problems with the evidential aspects of the case.”

Mary Wilson then asked, if the case was looking so bad, if the evidence was looking so poor, what was the advantage in paying $3.41 million to get the charges dropped?

“As a result of all these difficulties, I mean the trial was going to be a long one anyway, but these difficulties which would have had to be contested in court would have made the, on our assessment, the trial would’ve, could have lasted anything between  four to six months. And it was going to be horrendously expensive. If this trial had proceeded and the ministry had failed, the families would’ve got nothing. As it stands now, the families ended up getting the reparation that had been ordered by the judge against the company, which was of course in receivership.”

Mary Wilson pointed out to Grieve that the directors hadn’t been prepared to pay compensation, unless Mr Whittle wasn’t charged.

“Well, look,  all I can say to you is that the money was offered , the charges were dismissed, but the suggestion that it was a backroom deal, is just quite wrong. This was not something that was just agreed by the prosecution. It was at the Court hearing when the charges were dismissed. The Prosecution said that it was considered on principle and conventional basis in accordance with the prosecution guidelines. It had gone, as we understand it, we were told it  was going to be considered by the solicitor-general, so that it went to, you know, significantly high up, in [the] Crown Law office. You know, to say that it was just a back room deal, sort of, is a criticism that’s easily made, but we were told from  the outset that it was going to be considered by the Crown on a principled basis and as I understand it and the submissions to the Court confirm it, that’s how it was done.” – Stuart Grieve QC, interviewed by Mary Wilson, on Radio NZ’s Checkpoint

Conclusions

  1. A secret deal was offered by  solicitor, Stuart Grieve, on 16 October 2013, that in return for payment of $3.41 million dollars by Peter Whittle, that the Crown would drop all charges against Whittle.
  2. On 12 December 2013, Judge Jane Farish dropped all charges against Peter Whittall, and an agreed sum of $3.41 million was offered by Peter Whittle as “compensation”.
  3. The secret deal was finally made public on 27 February.
  4. According to Grieve, the Solicitor General was aware of the deal; “It had gone, as we understand it, we were told it  was going to be considered by the solicitor-general, so that it went to, you know, significantly high up…”
  5. Denials that this was not a “secret back room deal” fly in the face of what looks very obviously a secret back-room deal.

Questions

  1. Is this going to be the new ‘norm’ for the justice system in this country – that a person can buy their way out of a conviction?
  2. Will the government be publishing a tariff for what “compensation” is demanded in payment, according to  severity of charges?
  3. If not, will the Solicitor General, Stuart Grieve, Judge Farish, and anyone else associated with this affair, be resigning their position?

Because, really, this isn’t just a case of something rotten in the state of Denmark…

… this is a case of advanced decomposition.

Heads must roll.

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References

Wikipedia:  Pike River Mine disaster

Ministry of Business, Employment, and Innovation: Pike River Charges Laid

Fairfax media: Whittall ‘part of Pike deal’

TV3: Key to apologise to Pike families in person

ABC News: Prosecutors drop charges against former Pike River Coal chief executive Peter Whittall

NZ Herald: Pike River: Labour accuse Govt of dodgy deal

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22 Comments

  1. Psycho Milt says:

    Suppose it was a backroom deal: the Crown looked at a choice between two possibilities: pursuing a lengthy and expensive prosecution it would quite possibly lose, in which case the taxpayer would be stung for millions and the victims’ families get nothing; or, settling out of court for a compensation payout to the victims’ families; and decided on the latter. It sounds like a sensible backroom deal to me.

    • Hmmm, and that’s the $3.41 million dollar question, Milt. Do we now predicate a prosecution going forward on a cost-conviction analysis?

      Shouldn’t such decisions be more transparent, so that the public can be reassured that such deals are not done for questionable reasons?

      Were political implications considered?

      Will such considerations be offered to other defendants charged with crimes?

      As Bernie Monk asked on Radio NZ (only minutes ago as I type this) – what else has been hidden?

      It opens up a whole can of worms and seems to undermine the notion that

      justice must not only be done, it must be seen to be done.

      Just a few thoughts…

    • Murray Simmonds says:

      PSYCO-MILT:

      The argument advanced by you and the government is based on the assumption that the prosecution might lose.

      What better way to test this assumption than in a proper Law Court, with all the powers it has to seek out the truth, rather than by accepting a back-room deal?

      • Psycho Milt says:

        Shouldn’t such decisions be more transparent, so that the public can be reassured that such deals are not done for questionable reasons?

        In an ideal world, yes. But in practical terms, when MBIE is assessing whether to prosecute or settle out of court, they could probably do without their every thought being communicated to the opposing party’s legal team.

        • But in practical terms, when MBIE is assessing whether to prosecute or settle out of court, they could probably do without their every thought being communicated to the opposing party’s legal team.

          According to what we’re hearing, the letter from Stuart Grieve was never disclosed to the opposing Party’s legal team. The $3.41 million dollar offer was only made public on the day that Judge Farish dropped all charges against Whittle.

          The background of that “offer” was never disclosed.

          As Bernie Monk asked on Radio NZ this morning, “what else is being kept secret?”

          One wonders…

  2. Gosman says:

    Political interference in the operation of the justice system is a serious accusation to make. I presume you have some evidence of a link between members of the current government applying pressure as a result of this offer do you?

    • Gosman. Re-read what I wrote. I didn’t make an accusation. I asked a question.

      I know questioning authority is frowned upon in your world – but the rest of us still do it from time to time.

      Now, feel free to re-phrase your point.

      • Murray Irwin says:

        Mr Macskasy – no, you asked a question; “Is this the new norm…” based upon an assumed point that ‘justice was bought’. The assumption is that there is interference in the judicial system. That’s serious.

        • @ Murray Irwin. Ah, I see where your confusion lies.

          I have indeed stated that it appears from the evidence that justice has been purchased by Peter Whittal, for $3.41 million dollars.

          That is correct.

          I have not suggested that political im;plications were a factor. I asked the question.

          Because the purchase of a favourable outcome by a defendent can be predicated on simple economic considerations, such as Psycho Milt observed.

          Or they can be predicated on political considerations.

          I have focused on the former.

          But the latter still demands questioning. (And answers.)

          I trust that has cleared up any confusion?

      • Gosman says:

        When did you stop embezzling funds from the local orphanage Frank?

        I’m not stating you have been doing so, just asking a question.

        Don’t try and be clever here. You are implying something seriously untoward happened over this. Something that if true would lead to the resignation of the Government. However you haven’t got any evidence and are merely trying to throw dirt. Even Labour party MP’s wouldn’t do this sort of thing via the safety of Parliamentary privilege. You do so and are somehow surprised when you are called out on it.

        • “When did you stop embezzling funds from the local orphanage Frank? ”

          Never got the chance, Gosman. National closed them all down in the ’90s…

          You’re not calling me on anything except showing a distinct lack of curiosity on this issue.

          Your loyalty to this government is noted. You will be rewarded in the Afterlife.

          • Gosman says:

            If you did have actual hard evidence of what you imply by you BS question then I would be one of the first to condemn this government and call for mass resignations or even an election. I am a firm believer in the government not interfering with the Judiciary.

            • Jeez, are you that stupid, Gosman?!?!. Have you not understood a word of this;

              16 October 2013: Peter Whittall’s lawyer, Stuart Grieve QC,writes secretly to the Ministry of Business, Innovation and Employment (MBIE) suggesting that in ‘‘advance of the $3.41 million being made available, it is proposed [with precise terms to be agreed] that … the Ministry will not proceed with the charges laid against Mr Whittall by advising the Court that no evidence will be offered in support of any of the charges.’’

              12 December 2013: Judge Jane Farish drops all charges against Peter Whittall saying, ‘‘Some people may believe this is Mr Whittall buying his way out of a prosecution, but I can tell you it’s not.’’ Peter Whittall agrees to pay compensation of $3.41 million to the families of the dead Pike River miners.

              27 February 2014: Stuart Grieve’s secret letter to the Ministry of Business, Innovation and Employment (MBIE) is made public under an OIA request

              On 16 October 2013, Stuart Grieve QC,wrote secretly to the Ministry of Business, Innovation and Employment (MBIE) suggesting that in ‘‘‘ advance of the $3.41 million being made available, it is proposed [with precise terms to be agreed] that … the Ministry will not proceed with the charges laid against Mr Whittall by advising the Court that no evidence will be offered in support of any of the charges” .

              Two months later,

              1. Whittle is discharged when the Crown “offers no evidence”.

              2. $3.41 million is duly paid over.

              What does that suggest, Gosman?!

            • Theodore says:

              Don’t be so fucking pedantic Goosey. Are we not even allowed to ask questions now??? You’d fit in very well in Nth Korea. no questions asked.

        • Draco T Bastard says:

          Something seriously untoward did happen – a person got off a criminal charge in exchange for money that should have been paid whether there were charges or not. What we really need to know is how that came about.

  3. PhilDC says:

    Smells like a rat, looks like a rat, sounds like a rat…
    but wait !NO! its a Kangaroo – silly me

  4. […] Purchasing “justice” on the New Zealand open market – did National sell Pike River victims out… […]

  5. JonL says:

    You are implying something seriously untoward happened over this. Something that if true would lead to the resignation of the Government. However you haven’t got any evidence and are merely trying to throw dirt.

    The course of events as outlined seems sufficient grounds for the implication of further evidence not officially revealed – the questioning of the facts as reported and implying such is not “throwing dirt” – it is a legitimate question that any reasonable person would make, unless it interferred with their world view of politics – then it becomes “throwing dirt”.

  6. Ovicula says:

    Two points to be made by me:
    1. It looks like the judge may not have known about the possible backroom deal which led to no evidence being offered.
    2. New Zealand governments and even individual politicians seldom resign. They have absolutely no sense of personal responsibility and few of us demand it of them.

  7. @ Ovicula,

    1. Perhaps. But I’d find it hard to believe she didn’t smell a rat when the Crown solicitor stood up in Court and offered no evidence (a polite way of saying “we’re letting this one go”). I’m surprised she didn’t ask the most obvioous question,

    “So why are we here? Why did you waste everyone’s time? The Court would like an explanation, please.”

    2. That one is true. When Minister for Labour, Kate Wilkinson resigned over the Commission’s findings, there was more than a hint of “sacrificial lamb” about that move. She wasn’t directly responsible for the legislation that watered down safety in New Zealand; nor was she even in Parliament at the time.

    If she resigned because of some notion of “collective responsibility” then the entire government should have done so as well.

    Instead, she was pushed. National’s strategists realised that if the the government wasn’t “seen to be doing something”, that the media would gnaw at it like a bone. Her “resignation” neutralised the issue perfectly.

    Contrast her resignation – gone by lunchtime with John Banks hanging on by his fingernails, and with Dear Leader refusing to even countenance reading the Police report into the affair.

    Speaks volumes, eh?


 
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