Re Harder [2023] NZHC 758

January 15, 2024
Summary

An advocate for Pike River families successfully sought access to privileged documents relating to the decision not to prosecute people involved in the mining disaster.

Background

On 19 November 2010, an explosion occurred in the Pike River Mine near Greymouth, claiming the lives of 29 workers.

In 2013, Worksafe made the decision not to prosecute Peter Whittal, the managing director of the owners of  the  mine at the time of the disaster, conditional upon Mr Whittal making a ‘voluntary payment’ to families of the deceased miners Two family members of deceased miners challenged this decision as an unlawful agreement to stifle prosecution. In 2017, the Supreme Court found for the family members, and the decision was held to be unlawful.

The Supreme Court decision did not lead to prosecution of Mr Harder, so the family members sought to hold officials and lawyers involved accountable through other means. During this process, they were assisted by Mr Harder, a former lawyer who was the applicant in this case.
Harder made an Official Information Act request for the Solicitor General’s legal advice to Worksafe. The request was declined under on the ground that this information was privileged. This decision was upheld by the Ombudsman.

In the present proceeding, the Harder then sought access to communications between counsel who negotiated the ‘voluntary payment’ so they could further appeal to the Ombudsman to reconsider their decision. Worksafe provided some documents but withheld others on the basis that they were privileged under the Evidence Act 2006.

The Case

Privilege is the concept that individuals have an absolute right of confidentiality in certain communications. This usually covers communications made in defined circumstances where the public interest is conclusively presumed to favour confidentiality over disclosure of relevant information.  The archetypal example is legal professional privilege, where the ability to speak freely and frankly when seeking legal counsel is deemed more important than the benefit of obtaining relevant evidence.

When documents are privileged, it means they cannot be used as evidence in court or released under the Official Information Act (unless that privilege is waived).

This case concerned materials that Worksafe alleged were covered by sentencing negotiation privilege. These documents are privileged in order to promote parties to reach an agreed sentence in confidence that any admissions or discussions will not be used as evidence against them later. Promoting confidence in this area is desirable to minimise court delays and costs when processing criminal cases, thereby improving the efficiency of the court system. It is also necessary to spare victims and other participants from lengthy and occasionally traumatic involvement in criminal proceedings.

Unlike other forms of privilege that are virtually absolute (such as legal professional privilege), sentencing negotiation privilege is subject to a public interest balancing exercise. Accordingly, the court is enabled to order documents covered by sentencing privilege to be disclosed if (among other things) it would be contrary to the interests of justice to withhold it. By contrast, documents covered by legal professional privilege can usually only be disclosed if the privilege is used to perpetrate or conceal a crime.

In this case, it was not seriously disputed that the privilege applied, as that the communications occurred pursuant to negotiating the voluntary payment, an integral part of the prosecution decision. The key issue in the case was whether upholding the privilege was contrary to the interests of justice.

The court noted the value of the privilege in the administration of justice, which arose from relieving victims from the burden of testifying, reducing court and prosecution time and costs, and providing a structured environment in which the defendant could admit responsibility for offending. However, given the length of time since the Prosecution decision, these factors were given significantly less weight than normal. Another crucial factor was that Mr Harder already had access to similar documents obtained through other channels. Worksafe were only withholding the documents at issue in the case out of general principle.

In this context, the court held that the interests of justice were better facilitated by releasing the documents. Refusing to do so could only have the effect of encouraging false speculation and misunderstanding.

Result

The court ordered that Worksafe disclose the privileged communications to Mr Harder.

Strictly construed, this case only has value as a legal precedent in sentencing negotiations. However, construed more broadly, it acts as an important reminder that government officials do not have an unfettered power to determine that documents are privileged and thereby withhold them from the public. The High Court in this case sent a clear message when officials should not be too ready to resort to privilege as a means of withholding information they would otherwise be required to make available under the Official Information Act. Applicants for official information can be confident that the courts will effectively scrutinise claims of privilege that do not reflect statutory and public policy factors underlying the privilege.

For further information on this case or similar issues, please contact Director Brigitte Morten

Give the team a call

We’re likely to know who makes the decisions, why, and how politics or the law can compel you or trip you up.
If it takes less than 20 minutes we rarely charge.
There are not many specialist public lawyers. Even fewer have commercial experience. We start and end with commercial interests at heart.

Contact Us

Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
Contact information
Level 5
Wakefield House
90 The Terrace
Wellington 6011
PO Box 10388
The Terrace
Wellington 6143
Main: +64 4 815 8050
Fax: +64 4 815 8039
Email: info@franksogilvie.co.nz