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The difficulty of prosecuting over CTV’s collapse

The deaths of 115 people in Christchurch's CTV building collapse shift the balance in favour of prosecution, a legal academic says.

But Yvette Tinsley, Associate Professor at Victoria University of Wellington’s School of Law, says there are many other considerations for police and Crown Law, which work to a higher standard than, and follow a different process to, the Royal Commission into the 2011 Canterbury earthquake.

There has to be a reasonable prospect of a conviction. There must be quality, credible evidence. And criminal prosecution must be deemed the best route for redress.

“We can’t just say because the Royal Commission have found ‘X’ therefore we should prosecute,” Tinsley tells Newsroom in an interview.

Police said on October 5 their investigation is at “decision-making point” and that decision would take “several weeks”.

(Grant Ogilvie, police national manager of media relations, said last Thursday that statement was “still current at this time”.)

The issues were “finely balanced”, Detective Superintendent Peter Read said.

Tinsley says the fact 115 people died in the building collapse means a prosecution is “definitely” within the public interest test for prosecution.

That view appears to be backed by the Solicitor-General’s prosecution guidelines, which state: “In some instances the serious nature of the case will make the presumption [for prosecution] a very strong one.”

But Tinsley says many other factors have to be weighed. Police have to consider the likelihood of a successful prosecution – based on legally admissible evidence to be adduced in court.

“So, essentially, if it was a jury trial, would a jury be able to reach a decision, beyond reasonable doubt, that this person was guilty.”

Floors pancaked, few survivors

What happened on February 22, 2011, when Christchurch’s CTV building catastrophically collapsed and caught fire, killing 115 people, is detailed in a 320-page Royal Commission report.

The floors pancaked, leaving most of the people inside with no chance of survival.

The report said: “After an initial period of twisting and shaking, all of the floors dropped, virtually straight down, due to major weaknesses in the beam-column joints and the columns.”

In December 2012, when the report was released, then Prime Minister John Key said New Zealand owed it to the victims of the Christchurch earthquake “to find answers as to why some buildings failed so severely”.

The commission’s report detailed what went wrong; the question is, almost five years later, where is the justice?

And how can the country be sure the same mistakes won’t be repeated?

Families of the victims are pinning their hopes on the police investigation, which will decide whether to prosecute after multiple failures were identified by the Royal Commission.

In its October 5 statement, police said a Crown Law legal review is complete, after a review by the Christchurch Crown solicitor.

Detective Superintendent Read said it has been a “very complex, technical investigation involving a range of expert advice”.

Tinsley says the Royal Commission report was designed to raise questions about whether there should be an inquiry into possible prosecutions.

But from there, it’s up to police to weigh up the questions of evidence and public interest.

“I think it’s entirely proper for the police to have done what they’ve done, which is to take the time to say, in terms of this particular decision to prosecute these individuals, we need to actually go through and do our own inquiry and our own investigation, for that purpose.”

Police have interviewed more than 100 witnesses and, according to the NZ Herald, investigators raided the offices of Engenium Consulting Engineers, formerly Alan Reay Consultants.

The public interest test

The Solicitor-General’s prosecution guidelines, produced by Crown Law in 2013, state “cost is also a relevant factor” in prosecutions, including consideration of prosecuting “multiple charges and defendants”.

Considerations against prosecution include: “Where there has been a long passage of time between an offence taking place and the likely date of the trial”. That can be negated by “the complexity of the offence has resulted in a lengthy investigation”.

Tinsley adds: “They’ll have an eye to the amount of actual interest from the general public in this situation and whatever the outcome might be of their decision.”

WorkSafe controversially dropping charges against Pike River Coal boss Peter Whittall in December 2013 shows how hard it is to successfully prosecute individuals, she says.

Yvette Tinsley. Photo: Supplied

“It is a testament to how difficult these cases are, in terms of do we think we’ve got enough evidence that clearly links this person to what happened, if we’re trying to get an individual prosecuted in the way that Peter Whittall was being prosecuted.

“How much time and expense that’s going to take versus, obviously, us wanting to get some redress and make it very clear that we think that someone has done something terribly wrong that’s led to serious harm.

“That’s a really difficult balance to strike and I suspect that’s why they’re taking their time with the CTV decision.”

(A Supreme Court hearing was held earlier this month, challenging WorkSafe’s decision to drop charges against Whittall.)

Is there a high bar for criminal negligence? Tinsley says it varies depending on the charges laid. A “recklessness” standard is at the higher end of the spectrum – “people have to actually have appreciated the risks and gone on and done it anyway”.

“Usually, in terms of these health and safety-type offences, or, indeed, for individuals for manslaughter, we could come down to what’s called negligence – so that’s where there’s a departure from the standard of a reasonable person.

“And for those kinds of charges, certainly for manslaughter, we would be looking at a gross departure.

“It’s at the lower end of the mental element required but it is much higher than simply saying, ‘You were in charge of these things and they went wrong’.

“There’s got to be some kind of departure from the standard we would expect.”

Multiple failures

The Royal Commission’s report was the distillation of eight weeks of hearings, with evidence from more than 80 witnesses.

The commission said the CTV building collapsed because of failures in the design, construction and inspections process, including checks made after the quakes of September and December 2010.

Fundamentally, the north and south walls couldn’t function as designed in an earthquake because of six specific defects in structural engineering design and construction.

The commission was most critical of the CTV building’s engineering design – “deficient in a number of respects”, to the extent the city council shouldn’t have issued a building permit in 1986 – and “inadequacies” in the construction.

Structural designer David Harding was “working beyond his competence” in designing the multi-story building with “a significantly eccentric configuration”, the commission said.

His boss, Alan Reay, should not have left him unsupervised or without a system for reviewing the design.

“The north wall complex was left standing, the floors having torn away and coming to rest stacked up adjacent to its base.”

Reay and Harding have both apologised.

A 1990 inspection revealed a fundamental design defect with floor connections to the north wall. Steel "drag bars" were installed a year later – but this was only done in the north-south direction, leaving the building vulnerable to violent shaking in the east-west direction. No council permit was sought.

In the September 2010 quake, the building was damaged but was given a green placard for unrestricted use after a brief exterior visual inspection. A brief council inspection three days later – by building officers, with no engineer present – confirmed the green placard.

The most thorough inspection of the CTV building, done by a consultant engineer, who did not have access to the structural drawings, found some “minor structural damage” but “no evidence of structural failure”. Recommendations were made for further assessments, which were not followed up by building manager John Drew.

The CTV building was further damaged in the Boxing Day quake of 2010. Drew told the commission he assumed the widening of the cracks in the concrete “was normal and expected”. The building got a green placard after a “level one rapid assessment”. No “level two” assessment was done and an engineer wasn't asked to inspect the building.

Then came the earthquake at 12.51pm on February 22, 2011. The commission said: “The north wall complex was left standing, the floors having torn away and coming to rest stacked up adjacent to its base.” In the final part of the collapse, the south wall fell inwards on top of the other floors.

The Royal Commission went some way to showing a link between people's actions and decisions and the deadly collapse. But as Tinsley points out, a criminal prosecution is a high standard of proof, beyond reasonable doubt. We’ll soon know if evidence collected by police has met that threshold.

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