Judge Jane Farish was doubtless on the mark when she said yesterday that the likelihood of a prosecution of Peter Whittall was "extremely low" and the case may never have reached trial.
As such, it was right for the Ministry of Business, Innovation and Employment to drop the 12 health and safety charges against the former Pike River Coal chief executive. That, however, appears to be one of the few vestiges of good sense that the ministry brought to these proceedings. Its failure to orchestrate meaningful action in the Christchurch District Court has, understandably, dismayed the families of the 29 men killed in the tragedy. The linked $110,000 voluntary payment to each of them by Mr Whittall and Pike River Coal's directors merely rubs salts into their wounds.
The ministry said that, while it had gathered strong evidence to lay charges, a review as the hearing date approached led it to believe this would be insufficient to secure a conviction. The public interest would not, it said, be "met by continuing with a long costly trial with little probability of success".
One of its main difficulties was witness availability. Of the 92 witnesses who had given a brief of evidence, 31 had not signed "for one reason or another". Compounding this was the fact that it had no power to summon witnesses living overseas. Undoubtedly, this created problems, but these should not have been insurmountable. It is probably more telling that the ministry's version of why there was very little chance of prosecution varied markedly from that of Mr Whittall's lawyer.
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Stuart Grieve, QC, indicated his concerns about the prosecution case were wide and varied. They included not only unsigned briefs of evidence but briefs that contained hearsay quotations, inadmissible opinion evidence, submissions and conclusions on matters of law, assumed and misstated facts, and speculative conclusions. He also raised questions over disclosure and the ministry's investigations, wondering why data on company computers, cellphones or tablets, or memory cards and CDs had not been obtained.
Watch: Pike River charges dropped, 'blood money':
Verification of even a small number of these alleged shortcomings would confirm the ministry was right to drop the charges. But it would also paint a dire picture of its investigation. This was the only case involving the tragedy still to be determined, and the Pike River families deserved better. As one woman whose partner was killed in the blast observed, Mr Whittall's prosecution could have been "a start" in achieving closure. The only remaining avenue for the families is civil action but that would be fraught with problems.
In that context, the Pike River families have some justification for feeling they have been cheated of their day in court, and that Mr Whittall should have had to answer charges that he participated in Pike River Coal's failure to take all practicable steps to ensure the safety of its employees. For most of them, the $3.41 million voluntary payment that became available as a consequence of the case not proceeding appears to offer little solace.
Judge Farish had, of course, already ordered Pike River Coal to pay that sum to the families and the two survivors of the tragedy. The compensation is fully warranted given the serious failings of the company and the Labour Department's shortcomings in enforcing health and safety regulations. But it should not be being delivered as the dog-end of failed legal proceedings. It should be coming directly from either the company or its major shareholder, NZ Oil and Gas, or, if that is not possible, the government in recognition of its share of the blame.
As it is, the families have reason to believe that, yet again, they have been let down badly by an agency of the state.