View of Whakaari / White Island from a monitoring flight on 31 August, 2022. Photo: GNS
The owners of Whakaari/White Island have had the charges laid against them as individuals dismissed, but their company still faces trial.
Peter, Andrew and James Buttle were individually charged as directors of Whakaari Management Limited (WML) for health and safety failings ahead of the volcanic eruption in December 2019 that killed 22 people.
Judge Evangelos Thomas made the decision to throw the charges out in the Auckland District Court today.
"It is not about whether I would find any of them guilty. It is about whether there is even enough evidence to continue with the charges at this stage.
"There is no evidence in this case of what happened behind the board room door at WML, he said.
"There is no evidence of what discussions there may have been among the Buttles that touches on their circumstances and their responsibilities.
"Without that evidence I can not assess what a reasonable director would have done."
This had been the brothers' third application to have the charges dismissed.
Their lawyer, James Cairney, spoke outside court after the decision.
"They're reflecting on what occurred. Obviously their hearts go out to the victims of the eruption and they're gonna want some time to just be with their family after today's decision.
"This decision only relates to to them as directors. They are innocent in law and have remained innocent throughout the investigation and throughout the trial and that has been confirmed today.
He said the investigation that related to the allegations against the brothers was "inadequate".
"My argument in court in relation to this dismissal application was essentially that WorkSafe, had failed to investigate key aspects relevant to a determination of guilt of the director. You can't charge directors under the Health and Safety at Work Act as a group, as a collective."
In his application on 31 August, their lawyer James Cairney said there were two "glaring" faults in WorkSafe's case.
The first being that WorkSafe had treated the directors as one group in the trial and its investigation by repeatedly referring to them as 'the Buttles'.
"The allegation boils down to this: WorkSafe says Whakaari Management Limited breached a duty. Whakaari Management Limited was controlled by the Buttles, and if we use James as an example, James is a Buttle therefore James is liable. It really is that crude," Cairney said.
He said the case was also flawed because WorkSafe had sought to treat any breach by WML as a breach by its directors as if it was a one-director company.
Judge Thomas said on Tuesday in his decision: "If WML had one director only, it would be straightforward to sheet any failures back to that one director".
"It is not enough for WorkSafe to rely on the interview the Buttles gave on behalf of WML. That was WML's interview, not the individual directors'.
"When it comes to looking at individual due diligence, I would have to ask questions such as, did they as a board agree that all three of them should have the responsibility for looking into whether and what expert advice WML should take?
"Or did they agree that one in particular was more able to perform that role than the others? Or two of them? Did they argue or disagree about how much should be done? Was anyone outvoted on that? Did that person do all that they could but was simply outnumbered? If sourcing expert advice had been delegated to a particular director, were any of the others acting under a reasonable misapprehension about what that director was doing or not doing?
"There is no evidence that any of these things occurred."
Judge Thomas said WorkSafe could have easily got board and management minutes from WML if they had asked.
"They did exactly that, for example in relation to White Island Tours. They asked for all the documents pointing to all the inner workings of White Island Tours in relation to health and safety and risk management. That included board minutes, for example.
"These are critical documents. This is critical information. Without it, I cannot make an assessment of the minimum necessary circumstances. Without that, I cannot judge what a reasonable officer would then have done. Nor can I infer here that the Buttles must have done nothing."
WorkSafe's lawyer Michael Hodge rejected both claims in his reply on 1 September.
"While the court does of course need to consider the evidence against each defendant and reach a separate verdict in respect of each, there is a significant overlap in respect of the allegations and evidence against each Buttle," Hodge said.
"While necessarily related, the allegations against the Buttles are separate and distinct from the allegations against WML."
The trial continues as the charges against WML still stand, as do the ones against ID Tours and Tauranga Tourism Services Limited.