The three brothers who owned Whakaari/White Island at the time of its deadly eruption had the individual charges against them thrown out by a New Zealand judge on Tuesday, two months into their trial.
The sudden eruption in December 2019 came as tour groups were visiting the island volcano. The explosion killed 22 people, 17 of them Australians, and seriously injured 25 others.
Andrew, James and Peter Buttle – who inherited the island and own it through a family trust – were individually charged under New Zealand health and safety law with failing to exercise due diligence as company directors to know and manage White Island’s risk.
A judge-alone trial for the men, their company Whakaari Management Limited, and other tourism firms involved in the Whakaari booking, transport and logistics process, began at the Auckland District Court in July. All have pleaded not guilty.
At the conclusion of seven weeks of evidence against the defendants, lawyers for the Buttles argued last week that the material was insufficient to prove the charges against the men.
Judge Thomas agreed, and dismissed the charges the brothers faced in a ruling on Tuesday.
The company Whakaari Management Limited (WML) – of which the three men were sole directors – remains a defendant in the trial. The men did not apply to have charges dismissed against the firm, which established deals with tour operators to bring visitors to the island.
Deciding whether the men had failed in their duties as directors would have required an assessment of each man’s actions based on the nature of their individual responsibilities and how they were discharged, Judge Thomas told the court.
“There is no evidence in this case of what happened behind the boardroom door at WML,” he said, adding that there was no proof of what the Buttles’ circumstances and responsibilities as directors were, or of what negotiations, discussions or disagreements happened between them.
“Without that evidence, I cannot assess what a reasonable director would have done had they been placed in that director’s shoes,” said Judge Thomas.
Investigators did not ask whether the directors were unified in their decision-making, he added. WorkSafe – New Zealand’s labour inspectorate – could have sought individual information about the men’s actions – such as board meeting minutes – but did not, Judge Thomas said.
It was the third time that lawyers for the three men had sought to have the charges against them dismissed. They argued that the brothers were referred to by WorkSafe as “the Buttles” – rather than individually – and that their company was treated by investigators as a single-director firm.
Two tourism companies that are also defendants in the trial have made applications to have the charges against them dismissed. A decision is expected on Friday.
Lawyers for WML have not yet said whether the company plans to present a defence. The companies face maximum fines of NZ$1.5m if found guilty.
When the criminal charges were laid in 2020, the WorkSafe chief executive Phil Parkes said they were the result of the most extensive and complex investigation ever undertaken by the agency.
The trial opened with claims by prosecutors that the island’s owners had put profits before the safety of tourists on the island. The court heard emotional and graphic accounts by survivors of the eruption, who said they did not know the risks and had not received warnings from their tour operators before they visited Whakaari.
Several other companies involved in facilitating the trip have already admitted to charges against them. They will be sentenced after the current trial.
