Department of Labour DC Greymouth CRI-2012-018-000821 [2013] NZDC 1089 (13 June 2013)

Last Updated: 26 September 2016

IN THE DISTRICT COURT AT GREYMOUTH

_{CRI-2012-018-000821}

DEPARTMENT OF LABOUR Informant

v

PETER WILLIAM WHITTALL Defendant

Hearing:	14 March 2013
Appearances:	Mr B Stanaway and Ms Zeto for the Informant Mr S Greive QC and Mr Horne for the Defendant
Judgment:	13 June 2013

_{RESERVED JUDGMENT OF JUDGE J A FARISH}

[1] The defendant faces 12 charges laid under the Health and Safety in

Employment Act. They allege breaches of s 18, s 50 and s 52 of that Act.

[2] The charges arise from the Pike River Coal tragedy that occurred on 19

November 2010. At the time of the tragedy, Mr Whittall was employed as the CEO of Pike River Coal and had held that position for a period of six weeks. He seeks to have the defended hearing transferred from the Greymouth District Court to the Wellington District Court. The application is made pursuant to s 34 of the Summary Proceedings Act 1957.

[3] The informant is opposed to the transfer and principally submits that the paramount consideration here is the wider interest of the community in Greymouth and that it would not be in the interests of justice to transfer the proceedings.

Introduction

[4] At the beginning of the hearing I received a joint memorandum from counsel confirming the number of witnesses and the likely length of the hearing. The informant has confirmed that they are briefing 113 witnesses; of those nine are expert witnesses. Some of those briefs will be lengthy, complex and detailed. They are hoping to have the briefs completed by the end of August. Counsel informs me that some of these witnesses may be able to be dealt with by way of an agreed statement of facts. However, that will not be known until the briefs have been finalised. The informant considered that at best its case is likely to take between six and seven weeks to present.

[5] The defence, due to the lack of complete disclosure and/or briefs, is unable to give a firm time estimate, however, envisages that administrative arrangements should be for a hearing that could take between 12 and 16 weeks.

[6] The informant has been making continuing disclosure, however, there are in excess of 600,000 documents requiring to be reviewed pursuant to s 13 Criminal Disclosure Act. These documents have been collated directly from Pike River Coal Ltd, the New Zealand Police and also documents created by the Department of Labour during the course of its investigations. Some of these documents are in electronic form and some in the physical form. During the course of a recent telephone conference, some concern has been raised by the defendant that the electronic documents may not be correctly dated, which may cause difficulties in relation to the integrity of the documents.

[7] Due to the complexity of the case, the documents are being considered individually. The informant is hopeful that the disclosure process will be completed by the end of July.

[8] I note that some of the documents are multipage and therefore, it is not possible to quantify the amount of individual pages. For example, one document disclosed comprises nearly 20,000 emails.

[9] The joint memorandum concluded with the following paragraph:

The purpose of these observations is to emphasis to the Court what will no doubt already be appreciated, namely that the case is one involving not only complex issues but also voluminous documentation.

[10] Both counsel agree that neither party would be in a position to commence a defended hearing realistically before January or February of 2014.

Background

[11] The charges arise out of the Pike River tragedy that occurred at Ahaura on

19 November 2010. Following the explosions at Pike River Mine and the demise of

29 men, an extensive Department of Labour investigation took place. There have already been convictions entered against Valley Long Wall Drilling Limited and Pike River Coal Limited. Pike River Coal is to be sentenced on the 4th and 5th July 2013.

[12] The case against the defendant is that he acquiesced or participated in relation to the alleged breaches that took place at the mine. The informant’s case is that the defendant played an integral part in the running of the company from his initial appointment as mine manager in 2005 to his final appointment as CEO some six weeks prior to the explosions.

[13] The defendant, although shifting to Wellington in January 2010, still retained a shared office in Greymouth and would travel to the mine each week for at least a couple of days. The informant alleges that the defendant was very much involved with the operation and planning and running at Pike River Mine.

[14] The informant alleges that the defendant was well aware of the hazards of working in an underground mine given his qualifications, and his significant experience as a coal miner having worked in the industry for some 30 years. The informant alleges that the defendant was the most senior employee of the company, and was in a position to ensure that the Health and Safety procedures were implemented and carried out. These procedures were either not implemented or not complied with and consequently, he acquiesced or participated in the failures of Pike River Coal Limited.

The law

[15] The defendant does not take any issue with the proceedings having been filed in Greymouth pursuant to s 18 of the Summary Proceedings Act.

[16] There is no dispute as to the law that applies. The Court has a broad power to transfer this proceeding to another office of this Court where it is appropriate to do so. Section 34(2) of the Act relevantly provides:

Any District Court Judge ... may order that a charge shall be heard and determined by some other Courts.

[17] This statutory provision has not been considered very frequently by appellate courts. The majority of the appellate decisions concerning transfer relate to applications pursuant to s 322 of the Crimes Act 1961. The defendant submits that cases decided under that section are of limited precedent value to which I agree.

[18] What is apparent from the decisions that have been considered is that one of the most significant factors to weigh in relation to an application for transfer is the public interest. In Warren v New Zealand Police1 at page 414 Fisher J said:

The Courts have always required a strong reason for moving a trial from the original community concerned. I am far from saying, of course, that one should not have regard to all the surrounding circumstances. No doubt there will be a greater readiness to move a summary prosecution, particularly one of no real public interest, but that is at least the starting point. Other considerations then come into it. One is the convenience of the defendant and the presumption of innocence in his or her favour and another is the interests and preferences of the complainant. Of course, in the end, it is a matter of weighing all the relevant considerations in order to arrive at the venue which would best serve the ends of justice. ... Above all, there is the public interest.

[19] I respectfully agree with the Judge’s view that the weightiest factor here is the fact that as far as possible prosecutions ought to be heard in the district to which they relate. Justice McGechan in the case of Equal Enterprises Limited v Lawry2 held that the applicable test was “the interests of justice”. His Honour held that the test relied

_{upon by the District Court, (which the Court noted had previously been applied in}

1 [1995] 3NZLR411

NZ Police v Myers3) namely to consider where the proceedings would be “most conveniently and fairly tried” in light of all circumstances and with “particular regard to the presumption of innocence, encompassed” major elements of the wider general question of “the interests of justice”.

[20] His Honour in that case, went on to grant the application for transfer. He identified that there were three aspects of concern to the defence. Firstly; in relation to the location of the hearing that was the expense involved although he did not contribute significant weight to that issue. Secondly; the travel difficulties that would be encountered if the proceedings were to be held in Napier. Finally he contributed the most weight to the third factor of concern which was the ability of the defence to conduct the proceedings if they were to be held in Napier. His Honour regarded the difficulties that would be encountered by the defence in conducting a hearing away from Wellington as the most concerning and least measureable. His Honour went on to hold at page 11:

Running the defence of a long and detailed case, particularly one turning very significantly on documents and inferences from circumstances, is not merely a matter of good advanced preparation and counsel then turning up to ask some previously prepared questions and to lead some previously prepared witnesses. It proceeds of course, on the basis of prior planning: but from the outset of the hearing it demands an intense concentration and alertness to gaps, new possibilities and inconsistencies which may open up. It can be necessary to follow up new points to make new enquiries, to brief potentially new witnesses, or on the run while a hearing progresses, often overnight and often at awkward hours. The advantages of operating in one’s hometown in that regard, with all facilities and personnel in contact readily available and in particular the ability to meet with witnesses face-to-face with papers on the table are more than considerable.

His Honour concluded that there was a significant risk that the defence would be disadvantaged by conduct of the hearing in Napier as opposed to a hearing in Wellington.

[21] I also had referred to me the case of R v Barry4, again a decision by Fisher J, in looking at the issue of the interests of justice, Justice Fisher held that the relevant factors to be taken into account included” the interests of the community where the

_{offending was alleged to have occurred, the convenience to the defendant in light of}

3 [1993] 1 DCR 17

the presumption of innocence and the interests and preferences of the complainant”. His Honour concluded that the application was to be determined by weighing all of the relevant considerations “in order to arrive at the venue which would best serve the ends of justice”.

The defence application

[22] The application by the defendant to transfer is submitted under five headings: (i) The complexity of the case.

(ii) The length of the hearing. (iii) Travel issues.

(iv) Costs issues.

(v) Mr Whittall’s personal position.

[23] At the outset Mr Grieve accepted that there was significant community interest in these matters being heard at Greymouth. His submission, however, was that the public interest to a certain extent has been served by the Royal Commission into the Pike River tragedy having been heard in Greymouth along with the earlier prosecutions in relation to Valley Long Wall Drilling Limited and Pike River Coal Limited. He also submitted that the interests of the community could be offset by the proceedings being live-streamed from Wellington. Mr Grieve said that the defendant was willing to bear the costs of this if it was required.

[24] The main thrust of the defence submission is that this is a very complex case. Mr Whittall faces 12 charges which comprise 17 different particulars and alleged breaches of three obligations under the Health and Safety in Employment Act. The case is complex, not only from a factual and legal matrix, but because of the large volume of material that needs to be considered. The defence would require facilities to be able to brief witnesses, access adequate IT facilities, be able to print and copy large volumes of documents, and utilise the assistance of other lawyers in defence

counsel offices. At present, Mr Whittall solicitors are Minter Ellison Rudd Watts based in Wellington.

[25] Complicating the ability to be able to brief witnesses and prepare for trial is of course the difficulties with travel to and from Greymouth. There are limited flights from Christchurch to Hokitika, and limited flights from Wellington directly to Westport. Any overseas witnesses (and I understand most of the experts are from overseas) will need to fly into Wellington and/or Christchurch and then fly to Greymouth. The cost of travel is not inconsiderable, but it is more the ability to have access to witnesses in a timely manner and the logistics of having witnesses available to prepare or to instruct which is highlighted by the hearing being in Greymouth. Mr Grieve acknowledged, on behalf of the defendant, that although these difficulties might be manageable in a hearing of a short duration, or one involving fewer documents or fewer witnesses, the submission is that the logistical challenges in a case of this size would be prejudicial to Mr Whittall’s right to prepare and present his defence and his right to a fair trial which is enshrined under s 25 of the New Zealand Bill of Rights Act. Here both parties accept that the hearing is likely to be in excess of 12 weeks.

[26] Overlying these issues is Mr Whittall’s personal position. Mr Whittall resides in Wellington with his wife and children. He has been resident there since January

2010. He assists greatly in the running of his family home.

[27] When he has attended at Greymouth for the purposes of a hearing, there has been significant animosity towards him. Not only in relation to his current prosecution but when he appeared as a witness of the Royal Commission.

[28] I have read the affidavit filed from Mr Whittall and also from Ms Gordon which outlines some of the very clear hostilities that has been directed not only towards Mr Whittall but also towards his legal team.

[29] I have also seen some of this hostility directed towards counsel involved in the Valley Long Wall Drilling Limited case. It was obvious that there was significant hostility towards, not only the representatives of that company, but also towards their

counsel. I accept that if Mr Whittall was to have his hearing in Greymouth, that to a large extent, he would be under significant stress. Not only as a result of the hearing but given the community’s vilification of him.

[30] Mr Grieve’s submission is that when all of these factors are weighed together, it is submitted that for all parties, including the informant, that it strongly favours a transfer of the hearing to Wellington. Mr Grieve submits that significant disadvantages would be incurred by the defendant if the hearing was held in Greymouth and his position is not outweighed by the local community interest in the proceedings.

The informant’s case

[31] Mr Stanaway on behalf of the informant emphasised that there is a heightened and strong public interest in having the trial of the defendant heard in Greymouth. The 29 families of the miners and contractors killed generally reside in Greymouth and have been present at a number of the hearings relating to the charges. Mr Stanaway’s submission is that hearings of the Royal Commission and the subsequent report are likely to have heightened the Greymouth community’s interest in the charges against the defendant. Mr Stanaway pointed out that if any of the families wished to be present at the hearings in Wellington, this would involve extensive travel and accommodation costs. Mr Stanaway submitted that it was insufficient in the context of this case to rely on either media reportage of the hearing or any other streaming of the hearing which would adequately meet the legitimate individual and public rights of the families and the wider Greymouth community.

[32] Mr Stanaway submitted that although acknowledging that the defendant is entitled to a fair trial, that right does not enshrine a “Rolls Royce” defence but enshrines a right to an adequate defence. Addressing the logistical and administrative issues, Mr Stanaway said that although acknowledging that Wellington would have advantages, (not only for the defendant but also the informant) submitted that adequate facilities could be available in Greymouth.

[33] Mr Stanaway’s submission in relation to costs was that this is an irrelevant consideration as the informant as a statutory body has a duty to prosecute the case

regardless of “the costs, impact on its budget and convenience”. Similarly, the additional cost to the Ministry of Justice and the Courts and to judicial resources is also not helpful in determining what is “in the interests of justice”. Likewise, in relation to Mr Whittall’s personal considerations, Mr Stanaway submits that little weight can turn on this. Mr Stanaway accepts though in relation to Mr Whittall that there has been unpleasant behaviour directed towards Mr Whittall and his legal team. However, personal safety and comfort on behalf of the defendant is regularly dealt with by Courts in this country and adequate security and other measures can be put in place to assist Mr Whittall’s safety. Additionally, counsel would undertake to do their best to minimise and to ensure that there would be no further outbursts of this nature.

[34] Mr Stanaway acknowledged the issues with the difficulties with travel but again highlighted the Royal Commission to the Pike River tragedy managed to have extensive hearings without too much loss of time in relation to travel. He also highlighted that the Greymouth Court house was well placed to cope with audio visual links for witnesses.

[35] Mr Stanaway’s main submission here was that the paramount consideration of the community interest is not outweighed by the matters raised by Mr Whittall and that although they are problematic they are not insurmountable and would not be of such significance that the Court could legitimately transfer the proceedings in the “interests of justice”.

[36] I consider that I am well placed to evaluate the public interests in this hearing and the matters raised by Mr Grieve in relation to this application. I was the sentencing Judge in the Valley Long Wall Drilling Limited prosecution and heard extensive submissions and sentenced the company over a period of a day and a half. I also heard the formal proof prosecution in relation to Pike River Coal Limited. I am very well acquainted with some of the technical aspects of the evidence and also have seen and observed the interaction between the community and various counsel.

[37] I have also had experience of the difficulties of trying to access information at a distance and the difficulties that can occur if the IT is not working as well as it should.

Discussion/decision

[38] Here there is no dispute that this is a significantly complex case. Not only in relation to the volume but also in relation to the technical aspect of the evidence and also the law that applies. It involves a voluminous amount of documents which require considerable management. I accept it will require a large amount of resources, both in relation to IT and technical assistance as well as the ability to store and transfer information. As the parties acknowledge some of the material is in electronic form, some is in hardcopy.

[39] I acknowledge from the outset that the Royal Commission in relation to the Pike River tragedy managed to conduct their hearings in Greymouth and also managed to deal with the large volume of materials. I note, however, this was over a lengthy period of time with witnesses being organised to be in Greymouth for short periods of time with reasonable breaks in between the hearings. The Commission was also assisted by three counsel to assist and the briefs were prepared in advance and provided to counsel.

[40] I acknowledge that the Greymouth District Court is well appointed and that witnesses could be linked by way of AVL from other parts of the country or indeed, overseas. This may overcome some of the problems highlighted by the defendant. This would not overcome the significant disadvantage of being able to meet with witnesses face to face. Alternatives could be used such as “Skype” although my professional experience with this sort of communication is less than successful.

[41] Enshrined in the concept of “interests of justice” is of course, the concept that everybody is entitled to a fair trial, that there is the presumption of innocence and the ability for a defendant to be able to prepare and defend himself. Therefore, it is a matter of balancing the interests of the wider community and the importance or the presumption in favour of having the hearing in Greymouth as against the matters raised by the defendant.

[42] Of the matters raised by the defendant, the two that carry the most weight are the complexity of the case and the length of the trial. The amount of documentation and the nature of the hearing are quite overwhelming. The technical and expert witnesses that will be required to be briefed, sometimes at short notice (in my view), would be logistically extremely difficult to do if one was based in Greymouth and the witnesses were based overseas. It would be inconceivable to have witnesses available for weeks at a time to be able to brief and instruct defence counsel during the course of a hearing. In addition, to manage a case of this size with the number of witnesses and the documentation will require a large support base, not only in relation to the technical requirements such as storage and IT, but also with respect to the ability to have additional assistance from junior counsel. If this case had been one of short duration, then the complexity would not become insurmountable. However, if the trial is to last as indicated by both parties, 12 to 16 weeks, then in my view the complexity of the case takes on a considerable impact which may well create an unacceptable disadvantage to the defence. This is all exacerbated by the difficulty with travel and the limited travel options to and from Greymouth. Also into that mix is the difficulty that the majority of the witnesses reside away from Greymouth elsewhere in New Zealand and overseas.

[43] Over laying those factors is, of course, Mr Whittall’s personal position. I do not place significant weight on his personal predicament as many defendants face difficulties in attending Court where there are high levels of ill feeling towards them. This behaviour can be managed by the Court and also by the prosecuting authority and/or the police if required. I acknowledge though that Mr Whittall personally would suffer additional stress if he was to withstand a lengthy hearing in Greymouth. I accept that this would place not only stress on him, but also on his family members who are resident in Wellington and would not be able to travel to Greymouth to support him. In addition, having witnessed the level of hostility directed toward Mr Whittall and any other persons associated with Pike River Coal Limited, there is a heightened level of stress associated with Mr Whittall having to give evidence if he chooses to do so. I am aware that he gave evidence at the Royal Commission; however, he was not subject to extensive cross-examination and was answering questions which were not related to a personal prosecution.

[44] I also do not place any weight on the issue of cost. I accept Mr Stanaway’s submission that the cost to a certain extent is a crystal ball gazing exercise. I accept the submission that it is irrelevant in this context.

[45] I have spent a considerable amount of time considering the competing interests here, those of the local community and the high public interest in these proceedings as against the ability of Mr Whittall to receive a fair trial and be able to prepare and conduct a defence. Here I accept Mr Grieve’s submission that it is not the ability to conduct “a defence” but the ability of a defendant to conduct a reasonable and proper defence and he is entitled to put forward his best defence. I accept what Mr Grieve has submitted that I should not read down “a defence” to “an adequate defence” but rather it should be the “best defence” the defendant is able to mount”.

[46] I consider that the question must be would the defendant be unacceptably disadvantaged if the hearing was conducted in Greymouth as against a hearing in Wellington? If there is an unnecessary risk which can be avoided it should be avoided.

[47] I am satisfied it is in the interests of justice to transfer these proceedings to Wellington given the complexity and length of the trial together with Mr Whittall’s personal position. I wish to emphasise that it is the first two matters that I raised, the complexity and length of the trial which are determinative in my decision. It is these matters coupled with the difficulties with travel that have made me conclude that Mr Whittall’s ability to conduct his defence would be significantly compromised by the hearing being conducted in Greymouth. I am satisfied that the public interests can be met by the proceedings being streamed live from Wellington.

J A Farish

District Court Judge

Signed at 10 am on 13 June 2013.