Lawyer ordered to give back secret army report on bridge collapse

By Hugh de Lacy
The secret army report that Keith and Margaret Berryman's lawyer says exonerates the couple for the death of a beekeeper on the swing bridge leading to their King Country farm 11 years ago has been repossessed by the Crown to prevent the news media getting hold of it.
The Berrymans' lawyer, Rob Moodie, has been ordered to return to the army all copies he holds of the Butcher Report, which details the army's own responsibility for the collapse of the bridge it built for the Berrymans in 1986.
The collapse killed Kenneth Richards on March 24, 1994. Last Thursday, 11 years to the day since Richards plunged 30m to his death in the gorge of the Retaruke River, Dr Moodie was given 24 hours to return all copies of the report he had been allowed to view under a consent memorandum issued by the same court in February last year.
Thursday's order was made in the Wellington High Court by Justice William Young on the application of the lawyer for the army, Hamish Hancock of the Crown Law Office, and without any submission being sought from Dr Moodie.
It was prompted by the army being questioned about the report by TVNZ current affairs programme Sunday, to which Dr Moodie had given a copy.
Dr Moodie held three copies, of which he has mailed the second to the army, but he is unable to account for the third.
"I'm still looking for it," he told the Wanganui Chronicle in an exclusive interview.
The report was prepared for an army court of inquiry held within six months of the collapse of the eight-year-old bridge, and it "details serious errors in both design and construction", Dr Moodie said.
The army, in collusion with the Occupational Safety and Health service (OSH) of the Labour Department, withheld both the court of inquiry report and the Butcher Report from the 1997 inquest into Richards' death.
"The army knew full well what caused the collapse of the bridge, knew it was their fault, but persuaded the coroner away from the position he himself had reached that Lieutenant John Armstrong was not qualified to engineer the structure, or to construct it, and he had not been given adequate supervision and guidance by his superiors," Dr Moodie said.
He added that Lieutenant ? now Major ? Armstrong was not at fault because he "did his best".
"The fault lay in the failure of those above him to recognise that that best was never going to be good enough, and it cost a man his life."
Because the army and OSH, which also knew of the existence of the army reports, had suppressed the key evidence to the inquest, the coroner blamed the Berrymans, whose legal rights were thereby violated, Dr Moodie said.
"Aside from any question of dishonesty, unethical behaviour and lack of integrity by the various lawyers and others involved, there has been a serious violation of the fundamental right vested in every citizen to get fairness and justice before the courts.
"As a barrister and solicitor, I am an officer of the court, and I feel as keenly as any judge the obligation to ensure that people receive honest and impartial treatment before the court system.
"The army, through its misconduct, is raising grave constitutional and ethical issues which are going to seriously undermine public confidence in not only the army, but also our justice system and our executive," Dr Moodie said.
Though he had since complied as best he could with the High Court order to return his copies of the Butcher Report, Justice Young and the Crown Law Office had contributed to the further undermining of public confidence by making the order without seeking representations from Dr Moodie.
He added that "both must have known I dispute being bound by the consent memorandum," which was issued to the Berrymans' previous lawyer, Willie Palmer, of Christchurch firm Buddle Finlay.
Dr Moodie was offered a copy of the 12-page Butcher Report on the repeated assurance of the Crown Law Office that it contained nothing that implicated the army in the bridge's collapse.
"But [the report] is a documented account of knowledge by the army, provided by its former Commandant of the Engineering Corps, Colonel George Butcher, that the collapse of the bridge was due to serious design and construction errors on the part of the Army."
In stressing that he was not a party to the consent memorandum that kept the report confidential, Dr Moodie said he had "always made it clear that if the document contained evidence of perversion or corruption of justice, I could not and would not keep it secret".
Sunday programme producer Janet Wilson declined to comment on whether TVNZ would return the copy Moodie had given her.
Dr Moodie said he never gave a copy to the Berrymans, who lost their previously debt-free 600ha farm as a result of OSH's failed three-year effort to prosecute them under the Health and Safety in Employment Act, because "it would only have increased their torment".
The Berrymans now live in suburban Wanganui, and both are suffering from stress-related illnesses.
Last year Dr Moodie was granted discovery of the Butcher Report by Justice Gendall in the High Court, but that decision was stymied last month when Justice Wild accepted an application by the army for a judicial review of Justice Gendall's decision.
Dr Moodie said that in the latter case Justice Wild reached his decision "by ignoring the respondents' grounds (for opposing the judicial review application) and the very strong submission made in support of it", something that was "unprecedented in my experience at the bar".
"I've never before struck a situation where a judge has completely ignored my principal submission," he said. That was the main reason he then moved for discontinuance of the action, he said.
"The next step in this is to the highest court in the land, the House of Representatives. "As the courts are obviously not interested in rectifying corrupted justice this has to be presented to Parliament by way of petition."
Dr Moodie said he had begun drafting the petition, a repeat of the strategy that enabled him to get Wanganui Police Superintendent Alec Waugh reinstated last year with $1.5m in compensation after he was wrongfully dismissed in 1996 on fraud charges.
No date has yet been set for introducing the Berryman petition to Parliament.
l Hugh de Lacy is a freelance journalist and author of the book on the Berryman case, "Into the Abyss: Death-Trap".