Three brothers at centre of Whakaari trial to learn fate

Four years on from the fatal explosion at Whakaari, the owners of the volcanic island are set to learn their fate later today. Yvonne Tahana looks back at the trial.

It must be an awkward and humbling experience as a defendant to have to walk past cameras into court.

It's a gauntlet the owners of our most active volcano all did, like groundhog day from July to September, fronting up to one of our largest and longest health and safety trials ever.

They are Andrew, Peter and James Buttle, owners of Whakaari/White Island.

On the last day of the trial in September James and Peter were peppered with questions as they left court. Their lawyer James Cairney politely ran interference for them and then advised them to just keep walking.

So the public heard nothing of note from them. A consistent approach they've taken since the eruption, which has hung over them since 2019.

It bears repeating the awful human cost: 22 died and 25 suffered devastating and life changing injuries. Most of them were foreign tourists having a day out amongst the crater lake and fumaroles. Whakaari was at Volcanic Alert Level 2, a category which meant it was exhibiting moderate to heightened volcanic unrest.

It's a feature of our legal system that the Buttles weren't required to attend court because the charges they faced were not filed under the Crimes Act - the legislation that covers society's worst offences such as murder and manslaughter. Instead, they've faced charges under the Health and Safety at Work Act: judge alone, no prospect of jail, potential fines.

During the trial, which teetered on collapse at one point, the trio had individual charges dropped against them for lack of evidence, as did two other companies.

So their company Whakaari Management Limited (WML) was the lone defendant facing two charges. Today they'll find out whether WML is guilty or not of failing in its duty to people on Whakaari and whether, in failing in that duty, they exposed individuals to risk of death or serious injury arising from volcanic activity.

The second charge reads far more simply - it relates to ensuring people had a safe entry and exit to Whakaari.

Andrew is the youngest. In a documentary prior to the eruption he described the awesome power of Whakaari like this: "...it's unique as far as the fact that you can walk into a volcano from sea level and access that power and essence of the Earth. You know, it's firsthand which is what's so special about the island".

Peter is the middle brother, and took a leadership role, dealing with the WorkSafe investigation.

James is the eldest, and seemed the most put together of the three, a suit and tie guy.

Despite this being one of our most important health and safety trials ever, several weeks into the hearings - when James was still personally charged - there was an obvious problem. Cairney said "James Buttle had hardly been mentioned".

That was despite facing a "criminal" charge.

WorkSafe didn't do their homework and there was a lack of evidence. The individual charges against James and his brothers were ultimately dropped.

Cairney's argument was pointed and fair criticism of WorkSafe's case.

But there was more to it.

As is their legal right, the Buttles had an element of control over how much they engaged with WorkSafe.

The company was required to do an interview with WorkSafe, but they chose not to have it recorded on video. Unusually, the admissibility of that audio recording is still a live issue that Judge Evangelos Thomas has to rule on.

There was a written statement largely about the history of the island from Peter which was read into evidence in court, not by him, but by WorkSafe.

But all three refused to be interviewed individually by WorkSafe saying they had nothing further to add to the company interview.

Instead, through a lawyer they offered to answer written questions via email. But WorkSafe never followed up.

Well, much of what we know of the steps the company took to manage the risk on Whakaari comes from that single interview.

Peter told WorkSafe they were copied into GNS emails, had built up a considerable amount of institutional knowledge through their relationship with scientists, but relied on the operators and GNS to manage the risk.

Almost the last question the brothers were asked in their WorkSafe interview was: "Does Whakaari Management Limited believe they owe a duty to the victims of the eruption of 9 December 2019?"

The question was never directly answered.

Peter: "It's... it's an incredibly hard question to answer because the scale of it was so horrific and it's had such a wide impact on the... on you know, the people that, who died and survivors and their families."

Andrew: "I mean it's difficult with the investigations, Coroner investigation, WorkSafe investigation and you know, we're, we're incredibly mindful of the tragedy and its effects."

James: "We did know some of the, um, White Island Tours people that got killed and injured, so you know, on a personal level it's affected us as well."

Today the responsibility lies with the court to decide just what their company owed the Whakaari victims.