Force majeure
Newly released documents reveal why the police backed away from prosecuting anyone for the CTV Building collapse, which killed 115 people.
Newly released documents reveal why the police backed away from prosecuting anyone for the CTV Building collapse, which killed 115 people.
When Christchurch police delivered the dismaying news on November 30 that no one would be prosecuted for the lethal collapse of the CTV Building, it went against their own instincts. Detectives who spent three years investigating the pancaking of the structure in the city’s February 22, 2011, earthquake argued strongly with Crown Law that the two engineers responsible for the building’s design should be charged with manslaughter.
Just-released documents given to the Listener reveal details of the decision-making process that led to the police announcement. They show detectives were unconvinced by the conclusion of the Deputy Solicitor-General that there should be no prosecutions, but eventually fell into line.
The building collapse killed 115 people and seriously injured many others. (See Listener February 20, 2014, tinyurl. com/NZLaccountability, and
December 16, 2017, tinyurl. com/NZLprosecute.) After an exhaustive investigation, including forensic testing by the engineering firm Beca and two expert peer reviews, the police had determined by last May that engineer Alan Reay and his former employee David Harding should be charged. Beca’s analysis showed that if the building had complied with the engineering codes of the day, it would not have collapsed as it did, “notwithstanding the level of shaking and number of earthquakes” between the 7.1 magnitude quake of September 4, 2010, and the 6.3 magnitude February tremor.
Christchurch Crown solicitor Mark Zarifeh agreed with the police that there was enough evidence to prosecute the two men, although he warned that the charges would be difficult to prove before a jury.
Detective superintendent Peter Read, who led the police criminal inquiry, decided at the outset in 2014 that peer review would be sought from
Crown Law before a final conclusion about prosecution was reached. Involving Crown Law was unusual – Read told the Listener that in the eight years he has been in his job, he has sought a Crown Law peer review in relation to only four cases. He considered it was warranted in the CTV case because “some things need a higher level of review and opinion, and this case happened to be one of them. It was always going to be a complex and emotive decision.”
The Crown Law involvement turned out to be even more unusual in the CTV case, because it was the only time out of the four occasions in which Read has sought a peer review from the agency that it has reached an opinion at odds with the police’s.
The documents released to the Listener show that Deputy Solicitor-General Brendan Horsley wrote a 15-page draft peer review for Read on August 4, 2017. In it, Horsley strongly recommended against prosecution, citing many reasons – including the severity of the shaking and the cumulative effect of multiple earthquakes – as to why manslaughter charges against Reay and Harding were unlikely to result in convictions.
Read responded vigorously to the draft. On August 11, he wrote a 16-page reply countering Horsley’s arguments, in which he concluded that Crown Law had failed to understand the engineering evidence.
“The overriding sense from reading the Crown Law letter and the conclusion is that there is a misinterpretation or lack of understanding of the Beca report and the peer reviewers’ findings,” wrote Read. “Based on the findings reached by Beca and supported by [name redacted] and [name
Little is looking at whether there is a case to introduce a corporate manslaughter law.
redacted], the police maintain the view that the threshold for evidential sufficiency has been reached and that [the] proper forum for a determination is the Court.”
Read told Horsley that the police were “concerned that insufficient consideration has been given to the findings of Beca and the peer reviewers. It is also concerning that the Crown Law letter states that there are ‘real issues’ with causation [of the building’s collapse], when the police are of the view that the Beca report has reached conclusions based on their extensive testing, analysis and expertise.”
Read took strong exception to virtually all the arguments put forward by Horsley. For example, he wrote that the police were “perplexed” by Crown Law’s comment that the assessment of the cause of failure was “not an arithmetical issue, and many of the errors [in the building’s design] appear to be related”.
Read pointed out that Beca’s analysis was a “systematic” assessment of the design steps taken by Harding (the inexperienced engineer delegated by Reay to design the building without supervision). “The comment in your letter does not acknowledge the totality of the errors that were made and the effect of these,” wrote Read. “In our view, whether the mistakes are interrelated or completely independent of each other (as some of them were), the compound nature of the errors and incorrect assumptions made by Mr Harding mean that the building, as a complete structure, did not comply with the code and represented a risk of death or injury to those who occupied it.”
Beca concluded that Harding made design errors that were “fundamental and the cause of the building’s collapse”, wrote Read. “There were 151 people in the building at the time of the February 22, 2011, earthquake and 115 people perished. It is difficult to understand how so many ‘mistakes’ could be excused on the basis that Mr Harding did not intend to design a faulty building.”
Read also rebutted a list of potential alternative causes of the collapse cited by Horsley, pointing out that each had been considered and rejected by the engineering experts. For instance, in response to Horsley’s raising the potential role of cumulative earthquakes, Read wrote that Beca had considered this and concluded it was not the cause of the collapse.
Horsley also argued that the force of vertical accelerations in the earthquake would be problematic for any prosecution of Reay and Harding. Read rebutted this, pointing out that the engineering experts had concluded this was not the cause of the collapse and stating that Crown Law had “overemphasised and erroneously relied upon [the role of vertical accelerations] as a barrier to proving causation or reasonable foreseeability.
“Any alternate theories of collapse can readily be addressed by Beca, which has had the benefit of considering previous reports and conducting its own testing … The CTV Building was not compliant with the code. It did not have resilient detailing. There are no examples of any other code-compliant buildings of that era collapsing in the pancaking and catastrophic manner that the CTV Building did,” wrote Read.
He also expressed “concern” that Crown Law gave undue emphasis to one affidavit provided to the Institution of Professional Engineers (IPENZ) in support of Reay. The investigators had interviewed 28 engineers who had been in practice in the 1980s when the CTV Building was designed who overwhelmingly considered that Harding should not have been allowed to work unsupervised and that Reay, as principal of the firm, should have taken responsibility for over- seeing and checking Harding’s design. Reay spent only three and a half hours on the CTV job, even though Harding had had no multistorey experience.
In his peer review, Horsley also argued that the controversial “year and a day” rule – which states that a person can be charged with manslaughter only if death occurs within a year and a day of the unlawful act or omission causing death – was “fatal” to the prosecution case because the building was designed in 1986. But Read replied that, although “potentially fatal”, there was no case law on the point and therefore the question should be tested before the courts. Police took the view that “where a multistorey building is designed and erected, the duty is a continuing one”.
Read also took issue with Horsley’s opinion that the potentially high cost of a trial was a factor against prosecuting Reay and Harding. “This is a cost that cannot be avoided where accountability, deterrence and denunciation are required and the evidential sufficiency test has been met. For a trial of this nature and magnitude, including the international interest, cost assumes a far lesser importance than that assigned by the Crown Law letter,” Read wrote.
“Many of the things the police said we were wrong about we weren’t wrong about, and many of the things they thought were important were not.”
FALLING INTO LINE
Despite Read’s vigorous – and at times exasperated – response to Crown Law, on September 8, Horsley delivered a final peer review that was substantially unchanged from the contentious August 4 draft.
Less than three months later, Read announced at a press conference that there would be no prosecution. Given that the police have the ultimate discretion as to whether to prosecute, why did they swing from a strong belief that Reay and Harding should be charged with manslaughter to falling into line with Crown Law’s view?
In early October, a month after receiving Horsley’s final peer review, Read emailed Zarifeh to ask if his view in support of prosecution had changed as a result of the
Crown Law opinion. Zarifeh said it had. “In my view the police should think long and hard before deciding to prosecute in the face of that advice. I say that because the Crown Law advice is effectively from the Solicitor-General [Una Jagose] … and as you are aware, the Solicitor-General has the oversight of all prosecutions in New Zealand.
“The decision to prosecute is ultimately one for the police,” continued Zarifeh, in an email dated October 5. “However, in my view, it would be unwise not to consider the Crown Law opinion very carefully before making a final decision. If a prosecution was commenced but was ultimately unsuccessful, it is likely that a costs application would be brought by the defence. The Crown Law opinion may then become discoverable. There is the very real potential that a police decision to prosecute against Crown Law advice … could be used as a basis to apply for indemnity costs, which in a case such as the present could be considerable.”
Zarifeh said that, having reviewed the Crown Law opinion, “I cannot argue against it and accept that their reasoning appears sound and compelling”.
Yet, compared with the three years of investigation by Read’s detectives, Crown Law spent relatively little time developing its highly influential opinion. Crown Law has provided the Listener with an estimate of the amount of time spent by Jagose, Horsley and other senior Crown counsel on the CTV file. Jagose spent two hours; Horsley spent just under 80 hours and other senior counsel spent about 135 hours.
Horsley told the Listener that Crown Law had further discussions with the police after his September 8 opinion, and “the view that the police had, and held quite strongly, was ultimately changed, and it was as a result of our opinion and our further discussion … Many of the things the police said we were wrong about we weren’t wrong about, and many of the things they thought were important were not or could not be proven.”
Read said the police investigators came around to Crown Law’s view that there should be no prosecution because they recognised they were unlikely to get convictions against Reay and Harding. Prosecutors are obliged to follow the Solicitor-General’s prosecution guidelines, one of the “key pillars” of which is that there must be a reasonable prospect of conviction. Although police believed that going to trial was the “morally right” thing to do, “at what stage are you bending the rules [in relation to the prosecution guidelines]?” said Read. “And if I bend the rules on this one, do we do it again on another one?”
FAMILIES FIGHT ON
Last week, the families of the CTV victims and representatives from the embassies of China, Japan, the Philippines, Korea and Thailand – the home countries of some of those killed in the collapse – met Prime Minister Jacinda Ardern. But although sympathetic to the families’ position, the Government says it is unable to ask the police to revisit their decision.
Justice Minister Andrew Little says he can’t interfere in a prosecutorial decision. He is looking at reform of the year-and-aday rule and at whether there is a case for New Zealand to introduce a corporate manslaughter law. “It’s about looking at what we can do around our criminal legal framework to make sure that if something like this happens again, the people clearly responsible don’t get to walk away scot-free, which is what has happened. There is no question that the families of the victims are entitled to feel that a huge injustice has been done.”
For Maan Alkaisi, whose GP wife Maysoon Abbas died in the building, the disclosure of the 16-page police rebuttal of Crown Law’s opinion makes him all the more determined to fight for justice. “It confirms my belief that the Solicitor-General has focused on excuses and irrelevant matters and ignored major and significant issues … The Government knows there is something wrong here. It’s not good enough for them to be spectators on such an issue.”
Alkaisi and other CTV families are continuing to consult lawyers on how they can challenge the decision not to prosecute.
“It’s about making sure that if something like this happens again, the people clearly responsible don’t get to walk away scot-free.”