IN THE SUPREME COURT OF NEW ZEALAND
SC 23/2017
[2017] NZSC 175
BETWEEN

ANNA ELIZABETH OSBORNE AND
SONYA LYNNE ROCKHOUSE
Appellants

AND

WORKSAFE NEW ZEALAND
First Respondent

AND

DISTRICT COURT AT WELLINGTON
Second Respondent

Hearing:

5 October 2017

Court:

Elias CJ, William Young, Glazebrook, OʼRegan and
Ellen France JJ

Counsel:

K N Hampton QC and S N Meikle for Appellants
A L Martin, I Murray and E N C Lay for First Respondent
No Appearance by or for Second Respondent

Judgment:

23 November 2017

JUDGMENT OF THE COURT
A

The appeal is allowed.

B

A declaration is made that the decision of WorkSafe New
Zealand to offer no evidence in the prosecution of Peter
William Whittall was unlawful.

C

Costs are reserved. The parties may file memoranda by
31 January 2018 if an order for costs is sought.

____________________________________________________________________
REASONS

ANNA ELIZABETH OSBORNE AND SONYA LYNNE ROCKHOUSE v WORKSAFE NEW ZEALAND
[2017] NZSC 175 [23 November 2017]

 Elias CJ, William Young, Glazebrook and O’Regan JJ
Ellen France J

[1]
[102]

ELIAS CJ, WILLIAM YOUNG, GLAZEBROOK AND O’REGAN JJ
(Given by Elias CJ)
[1]

It is contrary to the public interest and unlawful for an arrangement to be made

that a prosecution will not be brought or maintained on the condition that a sum of
money is paid. The principle is not in contention on this appeal. The issue is, rather,
whether WorkSafe New Zealand1 acted to give effect to an unlawful agreement of this
nature when it offered no evidence on charges against Peter William Whittall for
breaches of the Health and Safety in Employment Act 1992.2
The prosecutions
[2]

Twenty-nine men died following explosions at the Pike River coal mine on 19

November 2010. Two others were injured but survived. WorkSafe described what
happened as “the employment related disaster of a generation.” At the sentencing of
the mine owner, Pike River Coal Ltd, for breaches of the Health and Safety in
Employment Act, WorkSafe submitted that the case was “as serious as one can
contemplate … not only with regard to the breath taking omissions and failures at the
mine but also in terms of the number of men killed”. The view that the omissions and
failures in safety at the mine were “breath taking” is also substantiated by the 2012
report of the Royal Commission into the explosions.3
[3]

The Pike River mine explosions were the subject of investigation by the police

for possible criminal offending under the Crimes Act 1961 and investigation by the

1

2

3

WorkSafe New Zealand is the government agency with responsibility for workplace safety
legislation, having succeeded to the responsibilities formerly undertaken by the Department of
Labour and then the Ministry of Business Innovation and Employment, following restructuring of
government activities in July 2012 and December 2013 respectively. The initial investigation and
charging decisions in issue in the appeal were undertaken by the Department of Labour. I have,
however, referred throughout to WorkSafe New Zealand.
The Health and Safety in Employment Act 1992 has now been replaced by the Health and Safety
at Work Act 2015, enacted following the Pike River disaster: see Health and Safety Reform
Bill 2014 (192-1) (explanatory note) at 1.
See Graham Panckhurst, Stewart Bell and David Henry Report of the Royal Commission on the
Pike River Coal Mine Tragedy (30 October 2012) vol 1 at 15. The findings of the
Royal Commission led to the creation of WorkSafe: Health and Safety (Pike River
Implementation) Bill 2013 (130-1) (explanatory note) at 1.

 Department of Labour (later WorkSafe) for breaches of the Health and Safety in
Employment Act. The investigations were launched within days of the explosions.
[4]

Twelve charges under the Health and Safety in Employment Act were laid in

November 2011 against Mr Whittall, a director and chief executive officer of
Pike River Coal. Eight of the charges were laid under s 56(1) of the Act on the basis
that Mr Whittall, as director and officer of Pike River Coal, had “directed, authorised,
assented to, acquiesced in, or participated in” the safety failures of the company. These
are stand-alone charges that can be laid under s 56 whether or not charges are brought
against the company.

The failures alleged were principally in relation to the

management of the risk of methane gas explosion and inadequacies in ventilation.4
The remaining four charges were laid under s 19 of the Act for alleged failures of Mr
Whittall as an employee to take all practicable steps to avoid harm to others.5 Under
s 54A(2) of the Act, the laying of charges by WorkSafe prevents any private
prosecution for the breaches.
[5]

Mr Whittall was the only natural person charged in relation to the safety

conditions at the Pike River mine. But at the same time the charges were laid against
Mr Whittall, the company itself was charged in relation to similar breaches of the Act.
Three charges under the Health and Safety in Employment Act were also brought
against VLI Drilling Ltd, a contractor engaged by Pike River Coal.
[6]

It was unnecessary under the Health and Safety in Employment Act for the

charges based on the safety conditions at the mine to attribute responsibility for the
explosions and therefore the deaths.6 WorkSafe did not seek to do so in the charges it
brought.

4

5

6

Section 56(1) of the Health and Safety in Employment Act provides that where a body corporate
fails to comply with the Act “any of its officers, directors, or agents who directed, authorised,
assented to, acquiesced in, or participated in, the failure is a party to and guilty of the failure and
is liable on conviction to the punishment provided or the offence, whether or not the body
corporate has been prosecuted or convicted.”
Section 19 makes it an offence for an employee to fail to take “all practicable steps to
ensure … that no action or inaction of the employee while at work causes harm to any other
person”.
See ss 6, 18, 19 and 56.

 [7]

VLI Drilling pleaded guilty and was convicted in respect of the three charges

laid against it. On 26 October 2012 it was fined a total of $46,800.7 The sentencing
Judge, Judge Farish, described the culpability of VLI Drilling as “moderate.” 8 She
expressly found there to have been no causal connection established between the
omissions by VLI Drilling and the explosions but declined an invitation to discharge
it without conviction on the basis that the offence was in allowing unsafe conditions
and “[t]he culpability is the same regardless of whether the risk materialised”. 9 The
Judge allowed a discount of 25 per cent to reflect VLI Drilling’s early guilty pleas and
further total discounts of 30 per cent in recognition of its cooperation with the
investigation, amends to the families of the deceased, and the steps it had taken to
improve its operations.10
[8]

Pike River Coal, by then in receivership, pleaded not guilty but thereafter did

not actively defend the charges. The charges were determined following a formal
proof hearing in March 2013 at which the company was not represented. Pike River
Coal was found guilty in April 2013 and convicted on nine charges. 11 Judge Farish,
in entering convictions, found that the failures of the company in relation to methane
and ventilation management were causative of the explosions12 and that failures in
relation to panel geology13 represented “crucial and fundamental error”.14 These
findings that the safety failings of Pike River Coal had caused the explosions and
therefore the deaths and injuries meant that a sentence of reparation was available.15

7

8
9
10
11

12

13

14

15

Department of Labour v VLI Drilling Pty Ltd DC Greymouth CRI-2011-018-1036,
26 October 2012.
At [48].
At [34].
At [51]–[53].
See Department of Labour v Pike River Coal Ltd DC Greymouth CRN-1101-8500-202/202,211,
18 April 2013 (an interim judgment); and Department of Labour v Pike River Coal Ltd
DC Greymouth CRN-1101-8500-202/202,211, 3 May 2013 (the final judgment).
Department of Labour v Pike River Coal Ltd DC Greymouth CRN-1101-8500-202/202,211,
3 May 2013 (final judgment) at [34].
A “panel” is a specific area of coal extraction within a mine. The geological properties of a panel
and its surrounding rock affect the risks associated with mining that coal: for example, the chance
that roof of the “goaf” (the void left behind once the coal is mined) will collapse, causing a
windblast effect and/or expelling explosive gas or coal dust. In turn, this affects the safe width of
mining operations (the wider the extraction the more likely the roof of the goaf is to cave in): see
Graham Panckhurst, Stewart Bell and David Henry Report of the Royal Commission on the Pike
River Coal Mine Tragedy (30 October 2012) vol 2 at 12–16, 159 and 168.
Department of Labour v Pike River Coal Ltd DC Greymouth CRN-1101-8500-202/202,211,
3 May 2013 at [118].
A sentence of reparation can be made only to compensate for loss proved to have been caused by
offending: see s 32(1) of the Sentencing Act 2002.

 [9]

At sentencing on 5 July 2013 Pike River Coal was fined a total of $760,000

and ordered to pay $3.41 million in reparations to the survivors and to the families of
the 29 men who died.16 In sentencing the company, Judge Farish referred to its
“systemic and sustained series of errors and omissions from the mine’s conception to
its ultimate demise”.17 The hazards were said to be well known, predictable and
preventable. Health and safety issues were “not given priority by the company” which,
at the time of the explosions “was under extreme pressure to produce coal” and was
“well behind in their production targets”.18 The Judge highlighted the company’s
significant departure from safety standards, including departure from the company’s
“own acknowledged plans and safety plans”.19 She indicated that the fine imposed
reflected her assessment that the case was within the worst kind, justifying maximum
penalties.
[10]

As the Judge’s sentencing remarks indicate, it was appreciated that the chances

of payment of the fines and the reparations were doubtful. Judge Farish however
expressed some optimism that a combination of the directors and shareholders could
yet come up with the reparation ordered.20 In that connection she referred to the fact
that the directors had significant insurance. The company itself was however already
in receivership at the time of the sentencing and was eventually removed from the
register without the payments being made.
[11]

Mr Whittall pleaded not guilty to all charges under the Health and Safety in

Employment Act. Preparation for summary trial began. It included substantial
disclosure, some of which proved contentious, and the briefing of expert evidence.
[12]

The police investigation took longer to be concluded than the Health and Safety

in Employment Act investigation.

One of the charges being investigated was

manslaughter and, unlike the charges under the Health and Safety in Employment Act,
it required demonstration to the criminal standard that the conduct of the defendants
caused the death of the men in the mine. In July 2013 the police announced they would
16

17
18
19
20

Department of Labour v Pike River Coal Ltd DC Greymouth CRI-2012-018-822, 5 July 2013
(sentencing judgment) at [41].
At [4].
At [5].
At [35].
At [20].

 not be laying charges under the Crimes Act. There was “insufficient evidence to prove
a causal link between the actions of any individual and the specific events which led
to the explosion”, as was required for a charge of manslaughter.21 Although the police
acknowledged that there was “enough evidence to support a charge of criminal
nuisance”,22 they concluded that a prosecution for criminal nuisance did not meet the
public interest test under the Solicitor-General’s Prosecution Guidelines,23 “given the
ongoing prosecutions led by [WorkSafe] under the Health and Safety in Employment
Act”.
The present appeal concerns the eventual decision of WorkSafe to offer no

[13]

evidence on all charges against Mr Whittall after he agreed to make a payment into
court of $3.41 million. The source of the money was director insurance which,
although not available to pay fines under the Act,24 seems to have been available for
the payment proposed and was being used for the costs of Mr Whittall’s defence. As
a result of the decision to offer no evidence, the charges against Mr Whittall were
dismissed in December 2013.25 The District Court made an order for payment out of
the money in satisfaction of the order for reparation earlier made against Pike River
Coal.
Judicial review
[14]

Anna Elizabeth Osborne and Sonia Lynn Rockhouse applied for judicial

review in the High Court of the WorkSafe decision to offer no evidence and the
decision of the District Court to dismiss the charges against Mr Whittall. Ms Osborne
is the widow of Milton Osborne and Ms Rockhouse is the mother of Ben Rockhouse.
Both men died in the mine. The applicants claimed that the decisions of WorkSafe
and the District Court were unlawful because they were based on a bargain to stifle

21

22

23
24
25

It had not been possible to establish the cause of the explosion because the mine remained
inaccessible after the explosion.
An offence punishable by up to one year’s imprisonment under s 145 of the Crimes Act 1961 for
any unlawful act or omission to carry out a legal duty known to be an act or omission which would
endanger others.
The Guidelines are described below from [27].
Health and Safety in Employment Act, s 56I.
Department of Labour v Whittall DC Christchurch CRI-2012-018-821, 12 December 2013.

 prosecution and failed to comply either with the Solicitor-General’s Prosecution
Guidelines or the purposes of the Health and Safety in Employment Act.26
[15]

The claims have been unsuccessful in the High Court and the Court of

Appeal.27 The claim in respect of the decision of the District Court is no longer
maintained and does not need to be dealt with when describing the history of the
litigation. The challenge that remains live is that relating to the decision by WorkSafe
to offer no evidence to the charges. The appellants seek a declaration that the decision
to offer no evidence was unlawful. It is accepted by them that orders to set aside the
decision to offer no evidence and to require the prosecution to proceed is no longer an
available option with the passage of time.
[16]

In the High Court, Brown J considered that the claims for judicial review were

“not amenable to judicial review” because he considered the allegations did not
amount to abuse of power or the exceptional circumstances which could justify review
of the wide discretion available to prosecutors.28 In case wrong in that view, Brown J
indicated why in any event he considered there was no error which would justify
judicial review.
[17]

WorkSafe had accepted that an agreement to make a payment in return for the

charges being dropped would constitute an illegal arrangement which would not be
consistent with the Solicitor-General’s Prosecution Guidelines.29 It argued however
that the arrangement was a voluntary one which WorkSafe was entitled to consider
with other matters properly bearing on the decision whether or not to continue the
prosecution. Brown J accepted the WorkSafe position. He took the view that the
payment made by Mr Whittall, although conditional on no evidence being led, had not
been pursuant to an illegal “binding bargain” to stifle prosecution (such as WorkSafe
had accepted would not be consistent with the Solicitor-General’s Prosecution

26

27

28
29

Other bases of review were advanced in the High Court and Court of Appeal but are no longer
pursued. It is therefore unnecessary to refer to them for the purposes of these reasons.
Osborne v WorkSafe New Zealand [2015] NZHC 2991, [2016] 2 NZLR 485 (Brown J); and
Osborne v WorkSafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513 (Kós P, Randerson and
French JJ).
Osborne v WorkSafe New Zealand [2015] NZHC 2991, [2016] 2 NZLR 485 at [42].
At [54].

 Guidelines).30 The Judge took the view that WorkSafe had not fettered its discretion
and had arrived at its decision after considering a range of matters it was able properly
to consider. The prospect of securing the payment of the reparation order made against
Pike River Coal was a matter it was entitled to take into account consistently with the
Solicitor-General’s Prosecution Guidelines in the absence of a binding agreement that
payment would lead to the withdrawal of the charges.31
[18]

Other matters taken into account by WorkSafe (such as the high cost of the

trial, the “low” prospects of guilty verdicts, the fact that any fines imposed were not
likely to be substantial fines, and the fact that a comprehensive report about the disaster
had been obtained through the Royal Commission) were not irrelevant considerations,
as the applicants had suggested, but rather considerations which, even if they might
have been differently weighed, could not justify judicial review of the discretion of
the prosecutor.32 The Judge also rejected the arguments that WorkSafe had failed to
consider the objects of the Act and had failed to meet the claimed legitimate
expectations of the applicants that they would be consulted about the decision to
discontinue the prosecution (a matter no longer pressed in this Court).33 He took the
view that although there was no reference in the documents evidencing WorkSafe’s
consideration of the decision to s 5(g) of the Health and Safety in Employment Act
(requiring “appropriate response to a failure to comply with the Act depending on its
nature and gravity”), it could not be said that the object was not one to which WorkSafe
had regard.
[19]

On appeal, the Court of Appeal differed from the High Court in taking the view

that the decision to offer no evidence was justiciable. It accepted however that it would
be rare for relief to be available because of the wide range of considerations open to
the decision-maker.34 Such exceptional error could, it thought, have arisen in the case
in three circumstances: if the decision to offer no evidence had resulted from an
unlawful bargain to stifle prosecution; if the decision was inconsistent with the

30
31
32
33
34

At [57]–[59].
At [60]–[63].
At [64]–[77].
At [78]–[94].
Osborne v WorkSafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513 at [32]–[53].

 Solicitor-General’s Prosecution Guidelines; and if WorkSafe had failed to act in
accordance with the purposes of the Act contained in s 5(g).35
[20]

The Court of Appeal concluded it could not be inferred from the evidence there

was “a meeting of minds and striking of a bargain over the payment of reparation in
return for withdrawal of charges”.36

The Court of Appeal pointed to four

considerations that had driven its conclusion that there was no “improper bargain”:37
(a)

Although discussions between counsel had the characteristics of a
negotiation, counsel for WorkSafe did not have authority to settle the
outcome.

(b)

It was Mr Whittall who put forward a “conditional reparation
undertaking: that in the event the prosecution terminated, the payment
would be made” but “it was then for WorkSafe to make its decision
whether to pursue the prosecution or not”; it was proper for the
conditional reparation undertaking to be a factor in the final decision.

(c)

The decision was made by the Chief Inspector, Response and
Investigations, Keith Stewart, who was “an independent public
servant”, not interested in the outcome or the bargain and free of any
mindset arising out of the negotiations because he had not been party
to them; Mr Stewart’s initial assessments as to whether to proceed with
the prosecution were principally concerned with the prospects of
success and were undertaken without reference to the conditional offer;
the offer was taken into account only at a late stage when Mr Stewart
was reassured, after legal advice, that it was proper to do so.

(d)

It was not suggested that Mr Stewart had acted in bad faith and nor
could it be suggested that he did not fulfil the applicable test of bringing
a “fair and honest mind” to the decision whether to proceed with the
prosecution.

35
36
37

At [51].
At [67].
At [68]–[72].

 [21]

The Court of Appeal therefore concluded that, on the facts, the decision to offer

no evidence on the charges was not taken as a result of bargain. Rather, it accepted
that Mr Stewart had made the decision with a “fair and honest mind”, which the Court
of Appeal considered to be the test for a bargain to stifle prosecution.38 In that decision
Mr Stewart was “entitled in law” to consider the “conditional reparation
undertaking”.39 The Court considered that it was appropriate to take into account the
reparation enabled by the conditional payment and took the view that the reparation
ordered against Pike River Coal (which was otherwise unlikely to be paid) could not
be “disentangle[d] from Mr Whittall’s proposal”.40
[22]

The Court of Appeal was critical of the submission that the decision did not

reflect the Solicitor-General’s Prosecution Guidelines because under them
rectification of harm is a factor only where it is accepted by the victims. It pointed out
that the Guidelines are not a code.41 The Court considered that it was open to
WorkSafe to prioritise recovery of the reparation ordered against Pike River Coal over
any acknowledgement of responsibility or other accountability on the part of
Mr Whittall.
[23]

Nor did the Court accept that the arrangement was contrary to the policy of

s 5(g) of the Act. That section looks to “an appropriate response to a failure to comply
with the Act depending on its nature and gravity”. The Court of Appeal took the view
that “[t]he section does not preclude a prosecutor from facilitating finality in the
dismissal of charges” and said that it was not clear that Mr Whittall’s alleged offending
(“rather than [Pike River Coal’s] proven offending”) was grave. 42 In any event, the
weighing of factors such as the gravity of offending was held to be “beyond the proper
scope of judicial review of a prosecution decision”.43

38
39
40
41
42
43

At [71].
At [72].
At [77].
At [77].
At [82]–[84].
At [84].

 The appeal
[24]

From the decision of the Court of Appeal, Ms Osborne and Ms Rockhouse

appeal with leave.44 WorkSafe no longer contends that the decision to offer no
evidence is not justiciable. It accepts the approach to judicial review of prosecutorial
discretion taken by the Court of Appeal. WorkSafe also continues to accept, as it did
in the High Court and Court of Appeal, that an agreement not to prosecute in return
for payment is contrary to public policy and the Solicitor-General’s Prosecution
Guidelines and is illegality that would justify judicial review to quash a decision based
on it to offer no evidence.
[25]

The appeal turns on whether the Court of Appeal was right to hold that the

conditional arrangement made by Mr Whittall to pay the reparations ordered against
Pike River Coal was not an agreement to prevent the prosecution but an offer of
voluntary payment which WorkSafe was entitled to take into account in making its
decision about prosecution. In order to address this matter it is necessary to traverse
the facts behind the offer and the decision made by WorkSafe in some detail. Before
doing so we set out the legal framework in which prosecution decisions are taken
under the Health and Safety in Employment Act.
Prosecution under the Health and Safety in Employment Act
[26]

The charges against Mr Whittall were laid in the District Court by information

by Mr Stewart who was, at the relevant time, an inspector appointed under the Health
and Safety in Employment Act.45 The laying of the informations by an inspector
precluded any private prosecution for the breaches of the Act.46 By March 2013, when
the formal proof hearing against Pike River Coal was heard, Mr Stewart was Chief
Inspector, Response and Investigations and the manager who headed the Pike River
investigation team.
[27]

The case against Mr Whittall proceeded under the provisions of the Summary

Proceedings Act 1957. As public prosecutions, the informations were subject to the
44
45

46

Osborne v WorkSafe New Zealand [2017] NZSC 90.
Section 54A(1) of the Health and Safety in Employment Act. The functions of inspectors include
investigation and enforcement under the Act: s 30.
Section 54A(2).

 general responsibilities of the Solicitor-General and the Guidelines established by the
Solicitor-General. Since the coming into effect of the Criminal Procedure Act 2011,
the role of the Solicitor-General in the “general oversight of public prosecutions”,
including through the maintenance of guidelines and general advice and guidance, has
been recognised by statute.47 In the present case, the decision to offer no evidence
explicitly invoked the Solicitor-General’s Prosecution Guidelines. That reliance is
consistent with the expectations expressed in the Guidelines that “[a]ll public
prosecutions … whether conducted by Crown prosecutors, government agencies or
instructed counsel, should be conducted in accordance with these Guidelines”.48
[28]

The Guidelines provide that prosecutions should be initiated or continued only

if the “test for prosecution” is met.49 There is provision for review of the charges
before trial to determine whether the charges should be prosecuted or, among other
things, withdrawn.50
[29]

[30]

The Guidelines describe the “test for prosecution” as being met if:
5.1.1

The evidence which can be adduced in Court is sufficient to provide
a reasonable prospect of conviction – the Evidential Test; and

5.1.2

Prosecution is required in the public interest – the Public Interest Test.

The Guidelines require each test to be “separately considered and satisfied

before a decision to prosecute can be taken”.51 They are to be considered in sequence,
with the evidential test being satisfied before consideration of the public interest test.
[31]

The evidential test is met where “there is credible evidence which the

prosecution can adduce before a court and upon which evidence an impartial jury (or
Judge), properly directed in accordance with the law, could reasonably be expected to
be satisfied beyond reasonable doubt that the individual who is prosecuted has
committed a criminal offence”.52 Credible evidence is evidence which is “capable of

47
48
49
50
51
52

Criminal Procedure Act 2011, s 185.
Solicitor-General’s Prosecution Guidelines (Crown Law, 1 July 2013) at [2.1].
At [5.1].
At [9].
At [5.2].
At [5.3].

 belief”.53 The Guidelines provide that only evidence which is or reliably will be
available and legally admissible can be taken into account in reaching a decision to
prosecute. This evidence must be capable of meeting the criminal standard of proof.
What is required by the evidential test is that “there is an objectively reasonable
prospect of a conviction on the evidence”.
[32]

The public interest test is based on a broad presumption that it is in the public

interest to prosecute where there has been a contravention of the criminal law.54 Where
the case is serious the presumption is “a very strong one”. It is recognised however
that prosecution resources are not limitless. In addition it is recognised there will be
circumstances in which, although the evidence gives a reasonable prospect of
conviction, the offence is not serious and prosecution is not required in the public
interest. The illustration is given of considering a diversionary option if the defendant
is a youth.
[33]

The Guidelines provide an illustrative list of factors to be considered under the

public interest test.55 As is relevant to the present case, listed public interest
considerations in favour of prosecution include:
(a)

the seriousness of the offence, described as “the predominant
consideration”; and

(b)
[34]

whether the offender has created “a serious risk of harm”.

A list illustrative of public interest considerations against prosecution

include:56
(a)

53
54
55
56

At [5.4].
At [5.7].
At [5.8].
At [5.9].

where the court is likely to impose “a very small or nominal penalty”;

 (b)

where the loss or harm can be described as minor and was the result of
a single incident, particularly if it was caused by an error of judgment
or a genuine mistake;

(c)

where the offence is not on any test of a serious nature, and is unlikely
to be repeated;

(d)

where prosecution will have a detrimental effect on physical or mental
health of victims; and

(e)

where the defendant is of a vulnerable age, has no previous convictions,
or was suffering from significant mental or physical ill health at the
time of the offending.

[35]

The Guidelines recognise explicitly that prosecution may not be appropriate:57
Where the victim accepts that the defendant has rectified the loss or harm that
was caused (although defendants should not be able to avoid prosecution
simply because they pay compensation) … .

[36]

It is indicated that in regulatory prosecutions, relevant considerations “will

include an agency’s statutory objectives and enforcement priorities”.58
[37]

Finally, the Guidelines provide that “[c]ost is also a relevant factor when

making an overall assessment of the public interest”.59
The proposals to “resolve” the case
[38]

Preparation for the hearing of the charges against Mr Whittall was

well-advanced by October 2013. Before the decision was taken not to offer evidence,
90 witness briefs, some unsigned, had been provided to the Court and to defence
counsel and some 600,000 documents had been reviewed for disclosure.

57
58
59

At [5.9.10].
At [5.10].
At [5.11].

 [39]

At some time before 8 July 2013 (when, is not clear) Crown counsel and

counsel instructed for Mr Whittall opened discussions about resolution of the charges.
Mr Stanaway, the Crown Solicitor in Christchurch who was advising WorkSafe,
referred to earlier discussions when inquiring in an email of 8 July to Mr Grieve QC,
representing Mr Whittall, as to the “possibility” of “meeting to attempt a plea
arrangement resolution to the charges Mr Whittall faces”. Mr Stanaway advised that
he had “firm instructions to attempt to resolve the case with a plea arrangement and
there is a willingness to do so from [WorkSafe]’s position, within the new Solicitor
General Prosecution Guidelines” which now had the “recognised consideration” of
“cost and best use of resources”.
[40]

The meeting did not take place immediately. At the time of this communication

the police investigation had not been concluded. Mr Stanaway’s email of 8 July
contains an acknowledgement that any meeting would be dependent on the police
charging decision on manslaughter, “whatever that will be”, being notified to Mr
Whittall. Mr Grieve noted in his reply of 9 July that both counsel would be “wasting
our time absent a Police announcement”. He also said that he could not responsibly
advise Mr Whittall “until we see the evidence relied upon by the informant”.
Disclosure by WorkSafe was under way at this point but was not completed.
[41]

The police announced on 17 July 2013 that they would not be laying charges.

As has been indicated, that was explained on the basis that manslaughter was not
appropriate because there was insufficient evidence to prove that the actions of any
individual had led to the deaths at Pike River and that a charge of criminal nuisance
was not in the public interest given “the ongoing prosecutions led by [WorkSafe] under
the Health and Safety in Employment Act”.
[42]

With the police prosecution cleared away, a meeting was held between

Mr Stanaway and Mr Grieve on 2 August 2013. Mr Grieve in later correspondence
with Mr Stanaway said that these discussions were held “at your request”. The result
of the meeting was that Mr Grieve wrote on 7 August 2013 to make a proposal for a
resolution of the prosecutions. The letter referred to the meeting which had taken
place between counsel on 2 August. It was described as a meeting “on a without
prejudice counsel to counsel basis” to discuss “possible ways to conclude the

 [WorkSafe] prosecutions without the need for a very lengthy and expensive trial at
which the various allegations would be the subject of detailed challenge”. The
“essential” basis of the proposal had apparently been discussed at the earlier meeting.
Mr Grieve commented that “given the recency and ambit of the discussions I see no
need to rehearse the detail now, save to say that the essence of the arrangement that I
proposed involved a voluntary payment of a realistic reparation payment, conditional
upon the informant electing not to proceed with any of the charges against Mr
Whittall”. Other conditions which had been discussed might become relevant “later”,
but that would “depend upon whether the essential elements I have referred to can be
agreed”.
[43]

Although the meeting had ended “on the basis that the defence would put

forward a formal written proposal”, Mr Grieve suggested that before that step was
taken an indication should be given by WorkSafe as to whether, “subject to reaching
agreement on the many details to be identified” the essential arrangement identified
would be agreed to. Mr Grieve noted that there was little point in taking further time
to prepare a comprehensive proposal “if the essential feature from our perspective,
namely the dropping of all charges, would in reality be destined for rejection from the
outset”.
[44]

Mr Stanaway did not reply until 20 August but it is clear that counsel for the

parties had been in touch by telephone in the meantime. The without prejudice letter
sent by Mr Stanaway recited that:
Currently on the table (on a without prejudice basis) for discussion, is the
central arrangement that the insurers for Mr Whittall/[Pike River Coal] would
make a voluntary payment of a realistic reparation payment to the Pike River
disaster victims, conditional on [WorkSafe] electing not to proceed with any
of the charges against Mr Whittall.

[45]

Mr Stanaway reported that the proposal had not been dismissed “out of hand”

by WorkSafe and was “worthy of further discussion”. However, as he had apparently
already outlined to Mr Grieve, he considered “the most principled and appropriate
outcome would be a plea of guilty by Mr Whittall to at least one charge with an agreed
summary and stance on the issues of causation and reparation”. 60 Additionally, Mr
60

It may be noted that a sentence or order of reparation against Mr Whittall would have been possible

 Stanaway doubted whether “withdrawal of the charges alone in return for a substantial
voluntary reparation payment would suffice”. He referred to discussions about other
steps, including the exploration of restorative justice processes or a statement of regret
or apology. Mr Stanaway concluded by recognising that prompt resolution was
desirable to avoid further financial expenditure. He advised that he would be speaking
with senior members of WorkSafe and would advance discussions with them further.
[46]

It is not clear from the material before the Court whether there was further

contact between counsel, but on 16 October 2013 Mr Grieve emphasised in a letter to
Mr Stanaway that the proposals he made depended on the Ministry not proceeding
with any of the charges laid against Mr Whittall. The purpose of the letter was:
… to provide you with more details of a proposal previously discussed with
you in very general terms, namely, that a voluntary payment of $3.41 million
be made available to the families of the 29 men who tragically lost their lives
in Pike River’s coal mine and the two men who survived the 19 November
2010 explosion.

[47]

The letter separately addressed the payment and the “proposal benefits”:
Proposed $3.41 million payment
3.

While it is acknowledged that nothing can replace their loss, it is
envisaged that a voluntary payment to the families could go some way
to alleviating the financial pressures on the families and serve as a
meaningful recognition of such loss.

4.

It is proposed that the voluntary payment:

5.

(a)

Will be made on behalf of the directors and officers of
Pike River Coal Ltd (in receivership) (the Company) at the
time of the explosion to individual trusts established in the
terms of a trust deed (which we can prepare) for the families
of each of the 29 men who died and the two survivors, and

(b)

Will comprise allocations of $110,000 to each trust consistent
with the amounts calculated by Judge Farish when sentencing
the Company.

In advance of the $3.41 million being made available, it is proposed
(with precise terms to be agreed) that:

only if it were proved or admitted that his actions had caused harm to identified victims: see above
at n 15.

 6.

[48]

(a)

[WorkSafe] 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.

(b)

A private meeting will be arranged at which Mr Whittall will
express sympathy on behalf of the Company to the families
and survivors and will convey his personal empathy and
condolences.

(c)

Each of the Company directors at the time of the explosion
will be asked by Mr Whittall to attend this meeting.

(d)

Any public statement by [WorkSafe] and/or the Crown about
the charges against Mr Whittall being withdrawn will be made
in terms agreed with me.

(e)

Trustees for each of the 31 trusts sign trust deeds in a form
that we can prepare, thus establishing a structure for the
payment of each of the $110,000 sums.

My instructions require me to emphasise that if the proposed
resolution is to proceed, the sooner this happens the better for all
concerned. I have been instructed that the proposed payments could
be made available promptly insofar as we are concerned. I envisage
that from our perspective the whole matter could be finalised possibly
before the third anniversary of the first explosion but certainly preChristmas should these stipulations be acceptable to [WorkSafe].

The “proposal benefits” identified in the letter were the significant economic

and resource benefits in concluding the matter promptly, particularly given the costs
of disclosure and trial preparation.

Difficulties with WorkSafe’s capture and

preservation of files of evidential significance were referred to, together with
inadequacies in the way in which the electronic data had been used and collected. All
these were said to indicate that there would be costly pre-trial applications and that
“[b]y withdrawing the charges, not only will all these costs and burdens be avoided,
but the extensive judicial and prosecution resources required for a defended hearing
of up to 16–20 weeks in length could instead be utilised elsewhere”.
[49]

The letter concluded:
14.

The voluntary payment of $3.41 million is economically viable only
if Mr Whittall’s continuing preparation costs can be terminated
promptly. If this cannot be achieved, the proposed payment will not
represent any saving over the cost of proceeding to trial and in that
event, whatever the outcome, I believe that the families will not
receive anything like the amount offered.

 15.

[50]

Accordingly, for all the above reasons, I look forward to hearing from
you about whether our proposal is acceptable to [WorkSafe]. …

Some of the arrangements in the letter were subject to modification before,

eventually, an open (that is to say, non-confidential) letter was sent by Mr Grieve on 6
December and a final version, after further discussion, was sent on 7 December. Both
later iterations were, however, based on the same essential proposal and both remained
dated 16 October. Both parties proceeded on the basis that “[i]n advance of the $3.41
million being made available … [WorkSafe] 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”.
[51]

Before that happened there had to be final sign-off by WorkSafe and

finalisation of the detail of the arrangement (as the letter envisaged) including as to
notification to the Court and the families affected and press releases. There was further
email communications relating to these matters. On 22 November 2013, Mr Stanaway
notified Mr Grieve that the timing of a proposed meeting with the families of the
deceased men and the “formal court appearance to offer no evidence (if that is the
decision)” could not be finalised until he had instructions from WorkSafe. He
expected to receive those instructions on “Tuesday next” (that is, 3 December,
although the decision was not in the end made until 4 December).61
The WorkSafe decision to offer no evidence
[52]

The proposal was discussed by WorkSafe over some days. Discussions with

an ad hoc panel assembled by Mr Stewart (which included senior managers from
WorkSafe, counsel and representatives of the Solicitor-General) were held during the
week of 18 November and the matter was considered further at meetings on 26 and 28
November. At the 26 November meeting it appears that concerns were expressed
about the “legality and propriety of considering an offer of a voluntary payment in the
context of the public interest component of the prosecution decision”. Mr Stewart
acknowledged in his evidence that there were concerns expressed at the meeting as to
the propriety of considering an offer of voluntary payment.62 No final conclusion was
61

62

As 22 November 2013 was a Friday, this would either have been Tuesday 26 November or Tuesday
3 December. The latter seems more likely.
In a second affidavit Mr Stewart acknowledged that he first became aware “that Mr Whittall’s

 reached “but we were all conscious of the importance of ensuring the offer was dealt
with in a proper manner and only taken into consideration if it was appropriate to do
so”.
[53]

Legal advice was sought and a second meeting was held on 28 November in

which Mr Stanaway advised those present about a further without prejudice discussion
with Mr Grieve in relation to the 16 October letter. Mr Stewart said that concerns were
again expressed at the 28 November meeting about the appearance of “chequebook
justice”. On the other hand, the officials “considered this was the only prospect of
securing the payment to the families of the reparation order made against [Pike River
Coal]”. Further legal advice was then taken from in-house counsel, as well from Mr
Stanaway and Crown Law, although privilege in the advice was not waived and details
are not before the Court.
[54]

The decision taken on 4 December by Mr Stewart with the approval of

Geoffrey Podger, Deputy Chief Executive (Health and Safety Group), was that:
… the charges against Mr Whittall should not be proceeded with on the
grounds they no longer meet the public interest test.

[55]

Mr Stewart later indicated in his evidence that a factor that weighed with those

making the decision was that, although “the test for evidential sufficiency was met …
the likelihood of obtaining a conviction was low and continuing with the prosecution
was not in the public interest”. Counsel for WorkSafe accepted in this Court however
that the decision to discontinue the prosecution was based solely on assessment of the
public interest, not on insufficiency of evidence.
[56]

The file note recording the decision taken on 4 December identifies the relevant

factors as being:
FACTORS CONSIDERED IN DECISION MAKING
25.

The following factors were considered relevant and were taken into
account by the decision makers in the decision not to proceed with the
charges against Mr Whittall –

counsel had offered to make a voluntary payment of reparation” in August 2013. He said he did
not recall seeing the 7 August letter from Mr Grieve to Mr Stanaway. He said the voluntary
payment proposal was unexpected because WorkSafe had expected a guilty plea.

 (a)

The difficulties associated with obtaining a successful
prosecution against Mr Whittall due to –
(i)

Witness unavailability;[63]

(ii)

Contests between expert witnesses;

(iii)

Indicated and anticipated procedural/pre-trial
issues;

(b)

That Pike River Coal Ltd (in receivership) was the principal
offender and has been held to account, with record fines and
reparation ordered;

(c)

The seriousness of the offence – there is no causative link
alleged, and the maximum sentence is likely to be a fine
only, in the tens of thousands of dollars.

(d)

That the Royal Commission has heard evidence and
provided a comprehensive report on the tragedy;

(e)

The matters in a “without prejudice and confidential to
counsel” proposal from Mr Whittall’s counsel, (which will
be superseded by an open letter for disclosure purposes if
required);

(f)

The unlikelihood of court-ordered reparation being received
from [Pike River Coal] by the victims; and

(g)

The high costs associated with continuing the prosecution,
particularly in light of procedural issues which the defence
had indicated it intended to raise pre-trial.

The decision summary is signed by Mr Stewart and Mr Podger. Mr Stewart confirmed
the factors taken into account in his affidavit.
[57]

A draft press release prepared apparently at the same time the decision was

taken (but to be released on 12 December following the expected court hearing),
indicated that one of the factors taken into account was the likelihood of a low sentence
and “the fact that reparation orders would be unlikely to be imposed”. The draft press
statement also described the voluntary payment as being “to meet the reparation
ordered by Judge Farish at the Pike River Coal Limited sentencing”.

63

In his affidavit in the proceedings, Mr Stewart indicated that “at least 14 notified prosecution
witnesses” were unavailable because they were outside New Zealand and it was anticipated that
it would be difficult to secure their attendance. Other witnesses were “reluctant”.

 [58]

The families of the men who died and the two survivors were not consulted

before the decision to offer no evidence was taken. Mr Stewart said in evidence that
one of the reasons for this was the “very high risk with such a large group the
confidentiality would be compromised and the offer withdrawn”.
[59]

As a result of the decision, on 5 December Mr Stanaway was instructed by

WorkSafe to offer no evidence on the charges against Mr Whittall.
Continuing discussions and the dismissal of the informations
[60]

The decision was communicated to Mr Grieve. On 6 December, apparently in

response to a request to make the letter of 16 October an open one and not “without
prejudice”, Mr Grieve sent Mr Stanaway “a copy of my 16 October letter”. He drew
attention to new provisions in the letter “relating to the method of payment” but there
were further new elements in the letter including some additions described in a later
letter64 by Mr Grieve as having been suggested by Mr Stanaway. They included a new
paragraph 2 which read:
It is understood that you have been reviewing the issues of evidential
sufficiency and public interest as they apply to this case in the context of the
Solicitor-General’s 2013 Prosecution Guidelines. The proposal which follows
is made on the basis that we consider that it should be taken into account in
the course of your review as a relevant and appropriate public interest
consideration.

[61]

A new paragraph 3 followed:
In short, the proposal is that a voluntary payment of $3.41 million be made
available to the families of the 29 men who tragically lost their lives in
Pike River’s coalmine and the two men who survived the 19 November 2010
explosion.

[62]

Under the amended letter, payments were to be made to trusts for each of the

families of the deceased men and the survivors, with releases for the directors and
officers in respect of any further claims. Mr Stanaway responded on the evening of 6
December to advise that this requirement was not acceptable and that the releases
appeared to be an attempt to introduce a new condition attached to the payment of the
$3.41 million as had (he said) been suggested earlier in the discussions. He pointed
64

Of 28 February 2014.

 out that WorkSafe could not bind the trustees or the families and advised that “[i]f the
arrangement is to proceed, the original letter will need to be replicated as far as
possible”. Mr Stanaway queried the need for setting up of trusts to receive the
payments and suggested that the costs could be saved if the $3.41 million “is paid into
court as the payment of the reparation ordered against [Pike River Coal]”.
[63]

This suggestion as to how the payment should be treated was followed up by

Mr Stanaway with a further email on 7 December:
I advised [WorkSafe] the arrangement as I understood it from your original
letter was that the $3.4m was intended to represent the payment of the
emotional harm reparation ordered by [Judge] Farish against [Pike River
Coal] which would be otherwise unpaid. This is a payment which was
proposed with the only condition that the charges against Mr Whittall were
dismissed.
While I understand there may be other considerations for the insurers now,
any variation in the arrangement which changes the character or appearance
of the arrangement that I advanced to [WorkSafe] will not be acceptable.
That includes any suggestion that the recipients would be required before
receipt of the payment to acknowledge that the payment to them would be in
reduction of any future claims by them against insured parties.
Understandably I have very clear instructions to ensure that there is absolutely
no issue or condition with the $3.4m payment before offering no evidence.
I request that serious consideration be given to cutting through all of this by
making an unconditional payment into Court.
Is there any real risk that the payments made would not be taken into account
in reduction of any future successful claims against insured parties?

[64]

Mr Grieve advised in response that this suggestion was accepted and that it had

been “reflected in the further copy of my 16 October letter now attached”. Mr Grieve
also amended Mr Stanaway’s draft memorandum to the Court to reflect the final
arrangement respecting payment and in particular to delete reference to the insurer as
“neither necessary or appropriate”. He indicated however that he would be filing his
own memorandum to the Court to counter what he thought to be the impression
conveyed in the WorkSafe memorandum, which Mr Whittall did not accept, “that there
is sufficient evidence to proceed against Mr Whittall but the administrative difficulties
have led to the decision not to continue”.

 [65]

In the meantime, Mr Stanaway arranged a hearing before Judge Farish at 10 am

on 12 December. A memorandum filed before the hearing by Mr Stanaway was
supplied in draft to Mr Grieve. It advised the Court that, in accordance with the
Solicitor-General’s Prosecution Guidelines, the informant had “carried out an
extensive review of the charges against Mr Whittall” and concluded that the public
interest was served by offering no evidence. It indicated “four fundamental and
significant matters to note in relation to the charges and the case against Mr Whittall
generally”:
(a)

Mr Whittall was “primarily charged as a party to the principal offending
by [Pike River Coal] on the basis that as an officer he acquiesced or
participated in the failure of [Pike River Coal]”. Although under s 56
of the Health and Safety in Employment Act, such offences “can
properly be seen as stand alone offences carrying their own
culpability”, the memorandum suggested that “as with s 66 Crimes Act
1961 secondary culpability, the characterisation of the offending is
based on secondary participation to that of the principal”.65 Pike River
Coal had been convicted, fined substantially and had reparation orders
made against it (though the memorandum acknowledged that neither
the fine nor the reparation order was likely to be paid).

(b)

Although Judge Farish in sentencing Pike River Coal had imposed a
sentence of reparation, there was “doubt whether reparation would be
ordered against Mr Whittall” since the informant had not “set out to
establish a causal link between the acts or omissions amounting to
failures to avoid harm [under the Health and Safety Act] and the deaths
of the men”. Further, any reparation would have to be “commensurate

65

It should be acknowledged that this characterisation is doubtful. Under s 56(1) of the Health and
Safety in Employment Act, officers, directors and agents of companies are parties to and guilty of
any failure by a body corporate if they “directed, authorised, assented to, acquiesced in, or
participated in, the failure”. This liability for the offence is “whether or not the body corporate
has been prosecuted or convicted”. Very often an officer or director who directs, authorises,
assents to, acquiesces in or participates in the failure will be the actual perpetrator since the
company can act only through human agents. We are not convinced by the suggestion that
comparisons with secondary liability under the Crimes Act are appropriate in this context. In any
event, secondary liability may be as serious and culpable as primary liability, so the use of the
category is insufficient justification for a conclusion of lesser culpability, without consideration of
the actual culpability of the secondary party.

 with his means to pay and would take into account any insurance policy
available to meet reparation”. The fact that Pike River Coal had failed
to pay its ordered reparation would be a strong factor against Mr
Whittall being ordered to pay reparation himself.
(c)

“[I]n order to keep the charges in perspective”, imprisonment was not
an available sentencing option and the likely fines to be imposed
against Mr Whittall “as a secondary party” would have to be
commensurate with his culpability and ability to pay.

(d)

An in-depth and careful analysis of the Pike River mine disaster was
contained in the report of the Royal Commission.

[66]

The memorandum referred to difficulties the informant might face in proof

because of unavailability of witnesses and doubt as to whether the statements they had
made would be admissible if they were not available for cross-examination. It was
possible that even more witnesses might become unavailable before trial. The
informant had also recognised that the case was complex and it was likely there would
be “competing expert opinions”. There was also the difficulty of proof beyond
reasonable doubt because of the practical effect of lack of access to the mine. The
Royal Commission had indicated that without access that made a definitive analysis
problematic as to the sources of methane and ignition and similar substantial problems
would be encountered in the prosecution.
[67]

The memorandum set out the indicators both for and against continuing a

prosecution in determining the public interest test and taken into account by WorkSafe.
It advised that, in addition:
37.

Mr Whittall has proposed that (in the event that the charges against
him are not proceeded with) a voluntary payment –
(a)

Be made on behalf of the directors and officers of Pike River
Coal Ltd (in receivership) at the time of the explosion for the
families of the 29 men who died and the two survivors; and

(b)

Comprise allocations of $110,000 for each of those families
and survivors in the amount calculated by Judge Farish when
ordering that they be compensated by an order for reparation

 for the significant loss and ongoing trauma that she found had
been caused by the actions of the company;
(c)

Be paid into Court for it to distribute to the families of the 29
men who died and the two survivors.

38.

The proposed payment of $3.41m reparation made by Judge Farish
(as above) of the directors and officers of [Pike River Coal] is not
simply a payment made to avoid continued prosecution.

39.

The informant has considered the proposed $3.41m payment on the
principled and conventional basis in accordance with the Prosecution
Guidelines.

40.

The proposal outlined above has been treated as only one of the
relevant public interest factors for a continued prosecution looked at
in the context overall of the Prosecution Guidelines.

41.

Mr Whittall has also offered to meet privately with the families of the
29 men and two survivors to convey his personal empathy and
condolences. Each of the company’s Directors at the time will be
asked by Mr Whittall to attend.

The memorandum also noted that a “16-20 week trial in Wellington will be a very high
cost one both in financial and resource terms and best use of limited resources is an
appropriate consideration”. For these reasons WorkSafe advised that it offered no
evidence on the charges against Mr Whittall and invited that he be discharged.
[68]

The matter was heard by Judge Farish on 12 December. In her oral ruling the

Judge said that it was “very important to understand that the decisions that have been
reached today have been reached by two discrete processes”:66
They are the decision in relation to whether or not the prosecution should
proceed against Mr Whittall and quite discrete and separate from that, there
has clearly been another process which Mr Whittall and the other directors
and their advisors have been having once I made the reparation orders in July
of this year.

[69]

Judge Farish took the view that there had clearly been discussions among the

directors about how to meet the reparation payments that had been ordered against the
company but that they “could not honour that payment while there were outstanding
charges before the Court” because it would be “inappropriate”.67 As soon however as
the decision was made that the prosecution of Mr Whittall was not going to proceed

66
67

Department of Labour v Whittall DC Christchurch CRI-2012-018-821, 12 December 2013 at [1].
At [8].

 “then the directors, in discussions with the people that they need to discuss matters
with, have made this voluntary payment and it is in recognition of the reparation order
that I made in July and it is paid into Court on that basis”. Judge Farish acknowledged
that some might think that this was “Mr Whittall buying his way out of a prosecution”
but she was clear that “it is not”:68
The decision not to prosecute or to continue with the prosecution has been
taken at a very high level and the voluntary payment is really a side issue in
terms of that determination, it is quite a side issue and I am quite satisfied of
that. Mr Whittall and the directors and senior officers of the company have
no obligation to honour that payment. Once these proceedings are at an end
they had no obligation to honour that payment because it is quite separate and
discrete from these proceedings.
…
So I see this outcome as being a good outcome. …
[T]his voluntary payment honouring that reparation order is an
acknowledgement from the directors that the company failed the 29 men and
the two men that survived and therefore I am prepared to accept it on the basis
that it is given and I am prepared to formally discharge Mr Whittall in relation
to all 12 charges before the Court.

Bargains to stifle prosecution
[70]

Because of the public interest in prosecution of offences, it has long been held

that private bargains to avoid prosecution through payment or provision of other
benefit are unlawful.69 An unlawful bargain not to prosecute arises where there is an
understanding or promise, express or implied, that a public offence (as opposed to a
civil wrong70) will not be prosecuted on condition of the receipt of money or other
valuable consideration. The policy of the law is that a defendant who commits what

68
69

70

At [9]–[11].
See Keir v Leeman (1846) 9 QB 371, 115 ER 1315 (Exch Ch); Clubb v Hutson (1865) 18 CB
(NS) 414, 141 ER 506; Jones v Merionethshire Permanent Benefit Building Society [1892]
1 Ch 173 (CA); and The Bhowanipur Banking Corp Ltd v Dasi (1941) 74 Calcutta Law Journal
408 (PC). The principles expressed have been applied in New Zealand, with adaptation to
New Zealand circumstances (including the prevalence of public prosecution and the relief
available under the Illegal Contracts Act 1970 (now incorporated into the Contract and
Commercial Law Act 2017)): Banks v The Cheltenham Co-operative Dairy Co (Ltd) (1910) 29
NZLR 979 (SC); Mall Finance & Investment Co Ltd v Slater [1976] 2 NZLR 685 (CA) at 689
per Cooke J (compare at 687 per Richmond P); Barsdell v Kerr [1979] 2 NZLR 731 (HC); Re
Elmsly HC Christchurch M41/98, 2 September 1998; and Polymer Developments Group Ltd v
Tilialo [2002] 3 NZLR 258 (HC).
A distinction drawn in Keir v Leeman (1846) 9 QB 371, 115 ER 1315 (Exch Ch).

 is a public wrong cannot, by settling the private injury, be “entirely freed from the
punishment due to a violation of public law”.71
[71]

Compromise of the private wrong is not objectionable if it follows the

conviction of the defendant because “by the previous conviction of the defendant, the
rights of the public are also preserved inviolate”.72 Nor is it objectionable to take into
account, when deciding whether or not to prosecute, that the defendant has previously
made some amends, as long as the prosecutor is not influenced by any indirect motive
and brings a “fair and honest mind to the consideration”. 73 That was accepted by
Bowen LJ in Jones v Merionethshire Permanent Benefit Building Society. But he
made it clear that what is unlawful and “the one dominant test in each case” is if the
prosecution itself is “made a matter of private bargain”.74 If reparation is paid and
accepted on the condition that no prosecution will be maintained or if the prosecutor
acts (as it was put by Fry LJ in Jones) on the basis of the alternatives of taking the
money or prosecuting,75 then whether the prosecutor was “independent” or “fair and
honest” is immaterial. The arrangement is contrary to the policy of the law and any
such bargain is treated as illegal and is unenforceable.76 It is also immaterial that a
judge may have assented to withdrawal of the charges.77
[72]

Much of the case-law dealing with bargains to stifle prosecution is concerned

with the enforceability of agreements not to prosecute in return for reparation by
private complainants (who in the nineteenth century in England had the carriage of
most prosecutions). The principle is, however, one of general application. In some
respects it is amplified in the case of a public prosecutor. A private prosecutor is
recognised to have no legal obligation to prosecute the wrong, but simply a “moral”
obligation to “bring a fair and honest mind” to the decision whether or not to
prosecute.78 Public prosecutors however are subject to legal obligations and duties in

71
72
73
74
75
76

77
78

At 394.
At 394.
Jones v Merionethshire Permanent Benefit Building Society [1892] 1 Ch 173 (CA) at 183.
At 183 and 185.
At 187.
Subject to relief under sub-pt 5 of pt 2 of the Contract and Commercial Law Act 2017 (and
formerly the Illegal Contracts Act 1970).
As was the case in Keir v Leeman (1846) 9 QB 371, 115 ER 1315 (Exch Ch).
Jones v Merionethshire Permanent Benefit Building Society [1892] 1 Ch 173 (CA) at 183 per
Bowen LJ.

 respect of prosecutions for breach of law, which are subject to public law controls if
exercised unlawfully, for improper purpose, or unreasonably.
[73]

If obtaining reparation in return for a promise to abandon criminal proceedings

is “a serious abuse of the right of private prosecution”,79 it is at least as much an abuse
of the obligations of public prosecution. Such prosecution is undertaken by public
officials. It is undertaken on behalf of the community in vindication of law and to
protect rule of law values such as in equality of treatment. The rule of law is
undermined if accountability and punishment for public wrongs turns on the means of
the defendant. And the prosecution decisions of a public prosecutor must be consistent
with the purpose and policies of the legislation which establishes the offence and under
which the prosecutor acts. In New Zealand the prosecutor must also act consistently
with the Solicitor-General’s Prosecution Guidelines which set “core and unifying
standards for the conduct of public prosecutions”80 and are intended to promote public
confidence in the system of public prosecution.81
[74]

We are unable to agree with the Court of Appeal that it was material in

assessing whether a bargain was reached that Mr Stewart was an independent public
servant who was not financially interested in the outcome or the claimed bargain, as a
private prosecutor may well be.82 Such disinterestedness may answer any questions
of personal impropriety (and there was not such suggestion in the present case), but it
does not answer the public interest in ensuring that decisions to prosecute are made
lawfully and reasonably in the public interest to achieve public determination of
responsibility for transgressions of law.
[75]

Similarly, if the evidence otherwise indicates that an arrangement has been

made to drop a prosecution if payment is made, we do not think it is sufficient to ask
whether the prosecutor brought a “fair and honest mind” to the decision or to conclude
that he did not act “in bad faith”.83 Bowen LJ in Jones did not suggest such a test

79

80

81
82
83

As it was described by Lord Atkin in the Privy Council in The Bhowanipur Banking Corp Ltd v
Dasi (1941) 74 Calcutta Law Journal 408 at 411.
As it was put in the Attorney-General’s Introduction to the Guidelines: Solicitor-General’s
Prosecution Guidelines (Crown Law, 1 July 2013) at 1.
Solicitor-General’s Introduction: at 2.
Compare Osborne v WorkSafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513 at [70].
At [71].

 except for the general duty of a private prosecutor in discharge of the “moral”
obligation in all private prosecutions.84 In relation to decisions to discontinue a
prosecution, rather, the “one dominant test in each case” he recognised was that the
prosecution “shall not be made a matter of private bargain”.85
[76]

It is immaterial if an agreement to abandon a prosecution is part of the

consideration for repayment of an existing debt.86 The Privy Council has pointed out
that it is frequently the case that there is an underlying debt or liability. (“Indeed if
there were not, a demand and receipt of money in consideration of refraining from or
withholding a prosecution would apparently in itself be a criminal offence.”) 87 It is
equally immaterial that there is an underlying harm for which reparation should be
made.88 In Clubb v Hutson, the principle acted on was that “[i]t is to the interest of
the public that the suppression of a prosecution should not be made matter of private
bargain” in any case in which “the personal interest of the aggrieved party” is not the
only concern.89 That is so in the case of all criminal offences. We consider it is also
the case in relation to the safety offences under the Health and Safety in
Employment Act.
[77]

No modification of the policy that agreements not to prosecute are contrary to

the public interest is prompted by the place of reparations in the modern law of
sentencing in New Zealand. Under the Sentencing Act 2002, courts are empowered
to impose sentences of reparation or make orders for reparation.90 But no such orders
or sentences may be made before conviction91 or (in the case where a defendant is
discharged without conviction) before plea of guilty is entered. 92 Similarly, although

84
85
86
87

88

89
90
91
92

Jones v Merionethshire Permanent Benefit Building Society [1892] 1 Ch 173 (CA) at 183.
At 183 and 185.
The Bhowanipur Banking Corp Ltd v Dasi (1941) 74 Calcutta Law Journal 408 (PC).
At 415–416. Delivering the judgment of the Queen’s Bench in Keir v Leeman (1844) 6 QB 308,
115 ER 118, Lord Denman CJ held (at 316) that the rule against compromise of private
prosecutions for public offences applies “whether the party accused were innocent or guilty of the
crime charged. If innocent, the law was abused for the purpose of extortion; if guilty, the law was
eluded by a corrupt compromise, screening the criminal for a bribe.” The judgment of the Queen’s
Bench was upheld by the Court of Exchequer Chamber: (1846) 9 QB 371, 115 ER 1315.
As in the case of Keir v Leeman (1846) 9 QB 371, 115 ER 1315 (Exch Ch), where the bargain was
made in respect of an assault.
Clubb v Hutson (1865) 18 CB (NS) 414 at 417, 141 ER 506 at 507 per Erle CJ.
See Sentencing Act 2002, ss 12(4), 32(1), 106(3)(b), 108(2)(b) and 110(3)(b).
Sections 32(1), 108(1) and 110(1).
Section 106(1).

 a sentencing court is required to take into account attempts by offenders to “make
amends” (including by non-monetary means), any such attempt may be considered
only after guilt has been admitted or found.93 There is no basis in the legislation for
its application to a conditional offer to make amends, such as was put forward here.
Even when considering the impact of reparations on sentencing following guilty plea
or conviction, the courts discount amends which do not appear to reflect acceptance
of responsibility and remorse for what has been done.94 And they are alive to the risks
of disparate treatment according to means.95

The relevance and importance in

prosecution decisions of achieving reparations for victims after plea of guilty or
conviction is not in issue. That prospect does not prompt reconsideration of the legal
policy against agreements not to prosecute in return for payment where the payment
will benefit victims. The result would be contrary to the cases holding such bargains
to be unlawful where victims pursued private prosecutions.96
[78]

There is nothing in the Solicitor-General’s Prosecution Guidelines which

suggests that an arrangement to obtain reparation in exchange for withdrawal of
prosecution is permissible.

The Guidelines emphasise the “predominant

consideration” in prosecution as being the seriousness of the offence and the risk of
harm it has created.97

Although the Guidelines identify that it is a relevant

consideration that “the victim accepts that the defendant has rectified the loss or harm
that was caused”, that is not an indication that the ability to obtain reparation in
exchange for withdrawal of charges is a legitimate approach.98 The Guidelines look
to prior rectification of loss or harm, not reparation conditional on withdrawing all
charges. And a conditional arrangement is inconsistent with the qualification that
“defendants should not be able to avoid prosecution simply because they pay
compensation”.

93
94

95

96
97
98

Sections 10 and 4(3)(a).
See, for example, R v Singh (2003) 20 CRNZ 158 (CA); R v Holt [2006] DCR 669 (CA) at [66];
R v M [2008] NZCA 112 at [34]; R v Harrison [2008] NZCA 514 at [23]; Rafiq v R [2017] NZCA
220 at [15]; R v Johnson [2010] NZCA 168 at [28]–[29]; and R v N (CA354/03) CA354/03, 1
March 2004 at [14]–[15].
Compare R v Johnson [2010] NZCA 168 at [29] with Gould v R [2012] NZCA 284 at [31] and R
v F CA169/03, 15 September 2003 at [22]–[23].
See above n 69.
Solicitor-General’s Prosecution Guidelines (Crown Law, 1 July 2013) at [5.7].
At [5.9.10].

 [79]

There is considerable public interest in prosecuting breaches of a statute

dealing with safety in employment.

The policy of the Health and Safety in

Employment Act set out in s 5(g) is to provide appropriate enforcement responses to
safety breaches according to the nature and gravity of the failure. A bargain to stifle
prosecution in this statutory context is as contrary to the public interest as in the more
familiar contexts of violations of the criminal law.
[80]

In the present case, WorkSafe was correct to accept that an agreement not to

continue the prosecution in return for payment of money to compensate the families
of the men who were lost and the men who survived would have been unlawful. The
decision to offer no evidence in fulfilment of such a bargain would then have been
taken unlawfully. The question that remains is whether WorkSafe was correct in the
submission that, as the Court of Appeal found, there was no such bargain.
Was there an agreement to stifle prosecution?
[81]

Lord Atkin, delivering the judgment of the Privy Council in The Bhowanipur

Banking Corp Ltd v Dasi, pointed out that agreements to stifle prosecutions are “from
their very nature seldom set out on paper”.99 Instead, they have to be “inferred from
the conduct of the parties after a survey of the whole circumstances”.
[82]

The manner in which the parties describe their dealings is not determinative.

In Bhowanipur Banking Corp Ltd the payment in issue was described as “voluntary”
in much the same way that the payment at issue in the present appeal is characterised
in the evidence and some of the contemporary documents as “voluntary”. The Board
nevertheless concluded that the parties had agreed to the payment in return for no
evidence being offered and that the arrangement was unlawful and unenforceable.
[83]

Nor is it determinative that the motives or reasons one party had for entering

into the arrangement may include considerations other than the conditional payment.
In Bhowanipur Banking Corp Ltd, a similar argument was advanced to that put
forward in the present case: that the decision not to pursue the prosecution resulted

99

The Bhowanipur Banking Corp Ltd v Dasi (1941) 74 Calcutta Law Journal 408 (PC) at 411. The
Board comprised Lord Atkin, Lord Russell of Killowen, Lord Romer, and Sir George Rankin.

 from a number of considerations, not simply the voluntary payment, and included the
circumstance that the principal offenders were still being prosecuted “and there is no
necessity for another trial”.100 Despite these arguments, the Privy Council held that
there was nevertheless an agreement to stifle the prosecution in issue: the payment
was acknowledged to be a consideration for the prosecutor offering no evidence; and
the prosecutor had talked of compromise and had sought adjournments of the case
“obviously to arrange the compromise”.101 The fact that others, more culpable, were
still being prosecuted did not affect the illegality of the arrangement to offer no
evidence in return for payment.
[84]

The facts in the present case have been set out in paragraphs [38] to [69]. It is

necessary here only to identify what we consider to be the critical matters which lead
us to disagree with the conclusions reached in the Court of Appeal.
[85]

The initial contact to try to reach a resolution of the case was made by counsel

for WorkSafe. It seems to have been concerned with the likely costs of the trial and
the complexity of the case. It raised the possibility of Mr Whittall pleading guilty to
some or all of the charges, no doubt with an indication that WorkSafe would accept
that penalty would be assessed on a discounted basis to take account of the plea and
an agreed summary of facts. A similar arrangement was referred to in the subsequent
correspondence and it seems a reasonable inference that it was discussed at least in
general terms when the first approach was made. There may be nothing wrong with
such an approach or with a concern with the costs of prosecution although it is a matter
it is unnecessary to consider in the present appeal.
[86]

Both counsel agreed that any resolution could not be advanced until the police

investigation was concluded and until disclosure was completed. It was clear that
WorkSafe was looking for a pleaded outcome.
[87]

When discussions took place after the police announcement in July 2013,

counsel for Mr Whittall proposed, instead of a plea arrangement, “a voluntary payment
of a realistic reparation payment, conditional upon the informant electing not to

100
101

At 414.
At 415.

 proceed with any of the charges against Mr Whittall”. In his letter of 7 August, Mr
Grieve indicated that there might be other conditions to be considered later but that
would “depend upon whether the essential elements I have referred to can be agreed”.
He required such an indication because there was no point in developing the proposal
“if the essential feature from our perspective, namely the dropping of all charges,
would in reality be destined for rejection at the outset”.
[88]

This initial proposal is one of compromise of the prosecution. The “essential

elements” were that a “voluntary payment” would be made in return for (“conditional
upon”) the informant electing not to proceed with any of the charges. The prosecutor
was given the alternatives of taking the money or prosecuting. If accepted, this
proposal would undoubtedly have constituted a bargain to stifle prosecution. Did the
arrangement change in substance? We do not think it did.
[89]

In Mr Stanaway’s reply on 20 August he acknowledged the essential exchange

“[c]urrently on the table” in which the “central arrangement” would be a voluntary
payment of a “realistic reparation payment” for the victims, “conditional” on all
charges not proceeding. He reported that the proposal had not been “dismissed out of
hand” by WorkSafe although he suggested it would be a more principled and
appropriate outcome if Mr Whittall pleaded guilty “to at least one charge with an
agreed summary and stance on the issues of causation and reparation”.
[90]

Mr Whittall’s counsel did not move on the essential condition of dismissal of

all charges for the payment. The first letter of 16 October was a formal offer of a
payment of $3.41 million and a meeting between Mr Whittall (and perhaps the other
directors) with the families in return for WorkSafe not proceeding with all charges by
advising the Court “[i]n advance of the $3.41 million being made available” that no
evidence would be offered in support of them. Again, we are of the view that on
acceptance this offer would have constituted a bargain to stifle prosecution.
[91]

Although in the memorandum of the decision taken on 4 December prepared

by WorkSafe a number of factors were identified as having been considered in the
decision to offer no evidence, among the factors was “[t]he matters in a ‘without
prejudice and confidential to counsel’ proposal from Mr Whittall’s counsel (which will

 be superseded by an open letter for disclosure purposes if required)”. This was the
offer to make payment on the basis that no evidence would be offered on the charges.
[92]

The decision taken on 4 December that “the charges against Mr Whittall should

not be proceeded with on the grounds they no longer meet the public interest test” was
a decision to accept the offer of payment in return for not proceeding with any of the
charges against Mr Whittall. It may be accepted that a number of other considerations
and motives weighed with Mr Stewart and the others at WorkSafe who made the
decision, but that does not detract from the bargain that was reached to end the
prosecution on payment of the sum Pike River Coal had been ordered to pay by way
of reparation. The payment was a bare payment in the sense that there was no basis
on which Mr Whittall himself could have been ordered to make reparation without
conviction and without proof or admission of responsibility for the deaths. The
essential exchange was affirmed in the memorandum filed in the Court on
11 December. The memorandum recorded that evidence was not offered on the basis
of factors which included the offer by Mr Whittall to make a voluntary payment “in
the event that the charges against him are not proceeded with”.
[93]

The payment to be used for reparations was conditional on the withdrawal of

the charges. This “central arrangement”102 had been acknowledged by and known to
WorkSafe and its advisers throughout. It was the essence of the payment arrangement,
treated as such in the 7 December exchange of correspondence referred to above at
[63]. Offering no evidence was understood to be “the essential feature” on which the
proposal to pay reparation was based.103 No formal offer was presented on behalf of
Mr Whittall until WorkSafe had indicated through its counsel that the essential
exchange would not be rejected out of hand. It was immaterial that it was Mr Whittall
who put forward the conditional reparation payment in the first place. We are unable
to agree with the view taken by the Court of Appeal that the circumstance was a pointer
to there being no improper bargain when the offer was accepted by WorkSafe. We
have already indicated at [74]–[75] why we do not agree too with the reliance placed
by the Court of Appeal in its conclusion on the fact that Mr Stewart was “an
independent public servant” or absence of any suggestion of bad faith on his part. The
102
103

As it was referred to in the letter of 20 August quoted above at [44].
See above at [43].

 fact that WorkSafe had other reasons of its own for resolving the charges without trial
does not affect the bargain that was reached. It may well have been the case that
counsel for WorkSafe did not have authority to “settle the final outcome”, as the Court
of Appeal said.104 But it is clear that the decision made by Mr Stewart, who did have
authority in relation to the informations, was on the basis of the negotiations
undertaken by its counsel. We do not therefore accept the reliance placed by the Court
of Appeal on the fact that counsel did not have authority to settle as one of the
considerations that led it to conclude that there was no improper bargain.
[94]

Although WorkSafe had to consider whether to accept the proposal and in that

consideration took into account a number of matters legitimately of significance to it
(such as the costs of the hearing), those considerations do not change the effect of the
arrangement concluded with Mr Whittall. It was achieved through the acceptance by
WorkSafe of the offer made by Mr Whittall, the essential terms of which were a
payment in exchange for the dropping of all charges. Mr Stewart explained the reason
why WorkSafe did not consult the families as being the “very high risk with such a
large group that confidentiality would be compromised and the offer withdrawn”. The
offer of payment was accepted with the arrangement to offer no evidence.
[95]

Although Judge Farish expressed the view that the “voluntary payment” was a

“side issue” in the decision not to continue the prosecution and that the reparation
payment had been arrived at in a separate and discrete process from the prosecution
decision to offer no evidence, she did not have before her the information provided in
the judicial review proceedings. It makes it clear that the payment of $3.41 million
was understood throughout to be on the condition that WorkSafe offered no evidence
to the charges. The High Court and Court of Appeal appreciated that the payment was
“conditional” on the charges not proceeding. We are unable to accept that they were
correct however to shrink from the inevitable conclusion that such arrangement was
an unlawful bargain to stifle prosecution. The conclusion we reach that it was means
that the appeal must be allowed.

104

Osborne v WorkSafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513 at [68].

 [96]

As will be apparent, we consider that a number of the considerations which

weighed with the High Court and Court of Appeal treated the question for
determination as being whether the decision to withdraw charges could be impugned
on general grounds of judicial review. The matters said to have been weighed by
WorkSafe in determining not to proceed with the prosecution include questions of cost,
the reparation able to be obtained for the families, the fact that Pike River Coal was
the “principal” offender and had been convicted and fined heavily, the likelihood that
any fines imposed on Mr Whittall would be low, the risks that a conviction would not
be obtained because of witness reluctance and availability and difficulties with expert
witnesses. It is said that the matters identified are relevant and the weight to be given
to them was for WorkSafe and would not justify judicial review. Such considerations
are gathered together in the memorandum relating to the 4 December decision and that
provided to the District Court Judge.
[97]

It is unnecessary to express any view on whether, in the absence of an unlawful

bargain, the decision to offer no evidence would in any event have been lawful. The
conclusion that the conditional payment was unlawful is determinative of the appeal.
We should not however be taken to agree with the High Court or Court of Appeal that
the justifications put forward for the decision were adequate to pass the supervisory
jurisdiction of the court. It is not clear for example on what basis it is said that Pike
River Coal was the principal offender and that Mr Whittall was to be treated as a
“secondary party” to the breaches of the Health and Safety in Employment Act by Pike
River Coal as principal. That characterisation and the analogy with s 66 of the Crimes
Act does not seem easily justified on the terms of s 56 of the Act (discussed above at
n 65) or in the context of the liability of a corporate body. 105 Nor does it address the
distinct charges faced by Mr Whittall personally for breaches of his duties as an
employee.106 Nor is it clear why it is suggested that the Royal Commission’s report
was sufficient response to the matters of individual responsibility raised by the
prosecution. The Commission was not asked to assess individual culpability in its

105

106

Section 56 of the Health and Safety in Employment Act was contrasted with the party provision
in s 66 of the Crimes Act by the Court of Appeal in Assistant Registrar of Companies v Moses
[2004] 3 NZLR 577 at [23].
The basis of the four charges under s 19 of the Health and Safety in Employment Act, explained
above at [4].

 terms of reference. It was careful not to cut across the criminal investigations then
underway.107
[98]

In addition, there is some force in the argument advanced by the appellants that

there was no explicit focus in the decision to offer no evidence on the purposes of the
Act referred to in s 5(g) or the emphasis in the Solicitor-General’s Prosecution
Guidelines as to the significance in prosecution decisions of the seriousness of the
breaches. The object of the Act in enforcement is to provide “an appropriate response
to a failure to comply with the Act depending on its nature and gravity”. In that
connection there is no evident consideration of the seriousness of the breaches of the
Act and the creation of risk entailed in the breaches beyond the indication that “no
causative link [to the explosions is] alleged”. (None was required to be established by
the charges.) There is no reference to the assessment earlier made by WorkSafe at the
Pike River Coal hearing and accepted by Judge Farish that the case concerned “the
health and safety event of this generation” and that “a worse case is hard to imagine
and is unlikely to ever eventuate”.108 Nor does it seem to have been treated as relevant
that the option of a police prosecution for criminal nuisance had not been taken
because it would cut across the public interest in the WorkSafe prosecutions and that
the possibility of a private prosecution was removed by the WorkSafe informations.
[99]

It is the case that the best “outcome” that might have been looked to by

WorkSafe from a successful prosecution was a fine set at a level that reflected
Mr Whittall’s own financial circumstances. But the maximum sentences provided by
the legislation for the charges were fines and fines must, in application of general
sentencing principles, reflect the personal circumstances of the defendant. Both limits
were known to WorkSafe in laying the charges in the first place.
[100] These matters are raised to indicate that there were issues that might have
required further consideration on the pleadings if the arrangement that led to the
withdrawal of the charges had not been unlawful. We express no views on how they
would be assessed if it had been necessary to deal with the other grounds of judicial
107

108

Graham Panckhurst, Stewart Bell and David Henry Report of the Royal Commission on the Pike
River Coal Mine Tragedy (30 October 2012) vol 1 at 3 and 6–7.
Department of Labour v Pike River Coal Ltd DC Greymouth CRI-2012-018-822, 5 July 2013
at [4].

 review. Nor is it necessary for us to consider the extent to which it might be
appropriate to consider such matters in judicial review of a prosecutorial discretion.
[101] The dispositive reasons on the appeal are those that lead to the conclusion that
the conditional payment was a bargain to stifle prosecution. As a result, the appellants
are entitled to the declaratory relief they seek. The appeal is allowed. We grant the
appellants a declaration that the decision of WorkSafe to offer no evidence in the
prosecution of Mr Whittall was unlawful. It is not clear that the appellants seek costs
in this Court. Costs are accordingly reserved. The parties may file memoranda by 31
January 2018 if an order for costs is sought.

ELLEN FRANCE J
[102] I too would allow the appeal and make a declaration that the decision to offer
no evidence to the charges against Mr Whittall was unlawful. I agree also with the
approach of the Chief Justice as to costs. I would however express my reasoning in
the manner set out below.
[103] The decisive feature of the present case is that it is simply not possible to put
any distance between the way in which Mr Grieve QC for Mr Whittall put the basis
for payment of the money by Mr Whittall and the decision to offer no evidence. It
was always advanced as an essential, non-negotiable, condition of the discussion that
Mr Whittall would not be charged. Mr Stanaway (the Crown Solicitor advising
WorkSafe New Zealand), in his letter of 20 August 2013 to Mr Grieve, referred to the
payment of funds in return for no prosecution as the “central arrangement”.109 The
centrality of this aspect is also apparent in Mr Stanaway’s rejection of other conditions
Mr Grieve later sought to have imposed on payment.110 It was quite clear that if there
was a prosecution, no payment would be made. The Court of Appeal’s conclusion that
Mr Whittall’s proposal was “a conditional reparation undertaking: that in the event

109
110

See Elias CJ above at [44].
See Elias CJ above at [62]–[63].

 the prosecution terminated, the payment would be made” was accordingly sufficient
in the circumstances to constitute an agreement.111
[104] Against this background the fact, relied on by the Court of Appeal, that
Mr Stanaway was not the ultimate decision-maker, is immaterial.112 Mr Stanaway was
not acting on his own account without instructions. (He confirmed in his email of
8 July 2013 he had “firm instructions” to attempt to resolve the case with a plea
arrangement albeit he noted the need to obtain approval from WorkSafe.) Similarly,
it was not relevant in this factual matrix that WorkSafe took other factors into account.
That is because, in assessing the public interest factors, WorkSafe wrongly took into
account the agreement to stifle the prosecution. Accordingly, I do not consider it is
necessary to comment on the other factors taken into account by WorkSafe or on the
amenability to judicial review of WorkSafe’s assessment of those matters.113
[105] Nor do I see a need to differentiate the nature of the concerns about these types
of bargains in a public prosecution from those in a private prosecution. Private
prosecutors will have an interest in the outcome. Further, the other concern underlying
the

prohibition

on

these

types

of

bargain

–

namely,

the

risk

of

extortion – is not necessarily worse in relation to public prosecutions as opposed to
private prosecutions.

111

112
113

Osborne v Worksafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513 (Kós P, Randerson and
French JJ) at [69].
At [68]–[69].
See Elias CJ above at [96].

 [106] Finally, I would not want to foreclose for consideration where it arises the place
of reparation in prosecution decisions. In other cases the approach may not always be
as clear cut as it is in this one.

Solicitors:
Simon Meikle, Wellington for Appellants
Crown Law Office, Wellington for Respondents