Whakaari/ White Island eruption: Defendants argue against making pleas

Several defendants facing WorkSafe charges in the aftermath of the deadly Whakaari eruption have argued against making pleas in a hearing at the Whakatāne court this morning. Three individuals and 10 companies face charges after the deaths of 22 people and injuries to 25 others when Whakaari erupted on December 9, 2019.

White Island Tours Ltd, Whakaari Management Ltd and its directors James, Peter and Andrew Buttle, Kahu (NZ) Ltd, the National Emergency Management Agency, Institute of Geological Nuclear Sciences Ltd (GNS Science], Volcanic Air Safaris Ltd, Aerius Ltd and Tauranga Tourism Services Ltd are among the defendants.

Judge Evangelos​ Thomas in Whakatāne court today. Photo / Troy Baker

Richard Raymond QC, lawyer for White Island Tours, told Judge Evangelos​ Thomas it would "simply not be conducive to justice" for his client to make a plea as they were still awaiting disclosure of documents.

He said defence had received 3000 documents so far, "only half the story".

"And some of those documents are hundreds of pages long."

He said a team of six to eight lawyers had taken three months to review the disclosure that had been submitted so far.

He said the case was "the most extensive and complex investigation undertaken by WorkSafe".

Families of the victims are a part of a mihi whakatau (formal welcome) organised by tangata whenua and the Ministry of Justice. Photo / George Novak

Judge Thomas ruled that the next hearing on this matter would be on September 13 in the Whakatāne District Court for a case review hearing and a decision would be made about the next hearing venue on that date.

Judge Thomas had appointed local lawyer Roger Gowing to assist the court.

Gowing presented his report on the views of victims and the wider community in terms of the appropriate venue for a trial.

Gowing said he canvassed the wider community's views, which began with inquiries to WorkSafe's victim services advisor who assisted in contacting 65 victims and their families.

He said he also sought feedback from a number of groups and organisations such as Whakatāne, Ōpōtiki, and Kawerau councils, the region's district health boards, emergency care personnel, and the police.

Gowing said a local police officer who assisted victims on one of the rescue boats, which made it "very personal for him" was adamant court proceedings should remain in Whakatāne District Court.

He said while there were diverse views, the overwhelming feedback was any pre-trial hearings and the trial should be held in Whakatāne.

However, Gowing said he also heard representatives from some families of Australian victims wanted the case to be heard in Auckland for "ease of access".

Judge Thomas said he was particularly concerned about the Buttles, who lived and operated their business in Auckland, were not excluded from the proceedings given the allegations against them.

He said they and all other parties remained innocent of everything until proven otherwise.

Representing WorkSafe NZ was Kirsty McDonald QC who told Judge Thomas that WorkSafe was opposed to any request for more time for the defendants to enter pleas.

Scene outside the Whakatane courthouse this morning. Photo / George Novak

"It is surprising to the prosecution given the extent of the initial disclosure already provided to the defendants that they are not in a position to do so today."

McDonald said the entry of pleas should not have to wait for more disclosure to be provided when the victims were entitled to have the matters sufficiently progressed today.

White Island Tours lawyer Richard Raymond QC, speaking on behalf of some of the defendants, said future hearings needed to be held in the Whakatane District Court, especially for this jurisdiction's defendants at least.

Raymond said WorkSafe had failed to acknowledge that it had filed the proceedings in the wrong court - the Auckland District Court registry.

And it was in the interest of justice to have defendants to have their matters heard in Whakatāne, he said.

"It is not a moot point for us and it's important for this community."

The Buttles' lawyer David Neutze asked for the next call of the matters to be held in the Auckland District Court where the charges were originally filed.

Judge Thomas said under Section 14 of the Criminal Procedures Act it was perfectly open to WorkSafe to file in Auckland or Whakatāne, however it took the decision to file in Auckland because some of the defendants did not reside in Whakatāne.

Judge Thomas said he knew that came as "cold comfort" to those who say the proceedings should always have been laid in Whakatāne, however, he said some parties challenge the validity of WorkSafe's request to join all defendants' matters together.

Judge Thomas said the question of the venue for the next hearing remained a "live issue" but the overall guide was what was best in the interest of justice to all parties.

Judge Thomas confirmed that the National Emergency Management Agency pleaded not guilty to a charge of failing to comply with its duty to ensure persons, including tour operators and tourists on Whakaari, were not put at risk from work carried out as part of the business or undertaking. The charge relates to alleged offending between April 4, 2016 and December 10, 2019.

He also said all other defendants must file their pleas by written notice no later than August 24.

He also told the parties they needed to be ready at the case review hearing to have meaningful discussions about any pre-trial hearings.

Hearing begins with formal welcome

The hearing started with a mihi whakatau (formal welcome) followed by the administrative part of the proceedings.

Judge Thomas said: "We begin today with remembering those who lost their lives and also acknowledge those who continue to suffer, and their families and their whānau both here and the communities around the world."

The hearing was also live-streamed to nearby Acacia House, where interested parties also gathered.

Whakaari/ White Island erupted on December 9, 2019. Photo / File

Judge Thomas earlier said that victims and the Whakatāne wider community should have the opportunity to have their views presented to him at the hearing.

White Islands Tours guide Tipene Maangi died as result of the Whakaari eruption. Photo / File

Two White Island Tours' guides Hayden Marshall-Inman and Tipene Maangi died after the eruption.

Marshall-Inman's body was never found while two other guides Jake Milbank and Kelsey Waghorn were seriously injured.

Kahu (NZ) Ltd also faced two charges relating to the health and safety of workers and tourists - the company director and pilot Mark Law rescued five people from the island.

GNS Science, which monitors volcanic activity and assigns alert levels for each volcano, Volcanic Air Safaris Ltd and Aerius Ltd faced two charges each.

White Islands Tours guide Hayden Marshall-Inman's body was never found. Photo / File

WorkSafe chief executive Phil Parkes earlier said the prosecution was the result of the most extensive and complex investigation ever undertaken by WorkSafe.

"We investigated whether those with any involvement in taking tourists to the island were meeting their obligations under the Health and Safety at Work Act 2015.

"We consider that these 13 parties did not meet those obligations. It is now up to the judicial system to determine whether they did or not. WorkSafe can't comment on the matters in front of the court."

WorkSafe had previously confirmed it did not investigate the rescue and recovery of victims after the eruption.

On those matters, no enforcement action has been taken.