In an exclusive interview, the vessel\u2019s skipper and company director, Neil Bennett, told the Herald the past six years had been a nightmare for him and his family. He is angry with MNZ for prosecuting the case and wants compensation for everything he\u2019s lost. <\/p>\n
The incident happened as a dive vessel crossed the Mangawhai Bar in 2019.<\/p>\n
\u201cI believed I was right all the way through. <\/p>\n
\u201cIf I\u2019d done something wrong I would have held my hands up but we hadn\u2019t. We had to fight for our name. <\/p>\n
\u201cIt\u2019s impossible to quantify \u2013 the damage to our reputation and everything else. But the harrowing effects physically and mentally are really tough.\u201d<\/p>\n
MNZ is defending its decision to prosecute the case, saying the incident resulted in serious harm and there was public interest in laying charges. <\/p>\n
\u201cWe were, and continue to be, satisfied that filing charges in relation to this incident was the right thing to do,\u201d Deb Despard, deputy chief executive regulatory operations, said.<\/p>\n
\u2018I\u2019ll make stuff up if needed\u2019<\/p>\n
Bennett is a stalwart of the industry. Originally from England, he has dived in locations worldwide during a 35-year career and owned Warkworth-based company NZ Diving for 20 years. <\/p>\n
He said his firm is committed to health and safety and conscious of its risk management obligations, passing all previous audits with \u201cflying colours\u201d. <\/p>\n
On the day in question, he gave his normal safety briefing to the seven paying passengers on board as they headed out to spearfish off the Hen and Chickens Islands.<\/p>\n
The conditions were nothing out of the ordinary, he said.<\/p>\n
\u201cThey were warned that it would be slightly bumpy and to hold on to the support ropes. Unfortunately, the lady didn\u2019t do that.\u201d <\/p>\n
As they crossed the bar, a large wave forced the 7m boat to rise from the water. The vessel then crashed back down as it broke through the crest. <\/p>\n
Neil Bennett was prosecuted by Maritime NZ over an accident aboard his commercial dive vessel in 2019. Photo \/ Jason Dorday<\/p>\n
The victim was thrown from her seat, suffering serious injuries upon impact. The vessel returned to shore and she was transported to hospital. <\/p>\n
The marine regulator launched an investigation. It laid charges against Bennett and his company in 2020, exactly a year after the accident, alleging shortcomings in safety processes.<\/p>\n
This included failing to address risks arising from the vessel navigating rough water in its operating plans and procedures, failing to identify the potential for passenger injury in rough seas, and failing to provide a proper safety briefing or ensure passengers were seated safely according to their experience. <\/p>\n
Bennett\u2019s lawyer, Brett Harris, applied to have the case dismissed in October last year, arguing a six-year gap between the incident and trial undermined his client\u2019s right to justice and to be tried \u201cwithout undue delay\u201d.<\/p>\n
He also warned that witnesses\u2019 recollections of events may have dimmed over time, highlighting \u201cserious concerns\u201d about email correspondence from a MNZ witness, which read: \u201cI also won\u2019t have anything to add since my written statement, because I don\u2019t remember the day. But I\u2019ll make stuff up if needed.\u201d <\/p>\n
Judge Paul Murray dismissed the stay of proceedings application after ruling the trial should proceed. Photo \/ Alyse Wright <\/p>\n
Judge Paul Murray commented: \u201cThe defence submit that this is strong evidence that witnesses may be vulnerable to an inability to recall the details or a temptation to \u2018fill in the gaps\u2019.\u201d <\/p>\n
Harris also argued the accident did not result in death or permanent injury and defendants were entitled to prompt proceedings. <\/p>\n
MNZ acknowledged that Bennett and his family had experienced stress from the delays. <\/p>\n
However, those delays were because of court resourcing issues and did not undermine the defendant\u2019s fair trial rights, it submitted. <\/p>\n
Witnesses had been interviewed in 2020, with briefs of evidence prepared at the time. Some \u201cwitness fatigue\u201d was not uncommon during criminal trials, MNZ argued.<\/p>\n
In October last year, Judge Murray dismissed the stay of proceedings application, ruling the trial should proceed. <\/p>\n
He referenced an affidavit from Bennett that said the ongoing court appearances and auditors\u2019 visits linked to the prosecution had been \u201charrowing\u201d for his family.<\/p>\n
His business had been hit by Covid closures, a ram raid and serious weather events in recent years, seriously impacting the company\u2019s profitability. <\/p>\n
Letters were provided to the court from Bennett, his wife and daughter describing the \u201cstress and financial burden\u201d the proceedings had caused. <\/p>\n
But the judge said the impacts on Bennett\u2019s family were largely attributable to factors outside the court delays, and he did not believe those delays would render witness memories unreliable or prejudice the defence. <\/p>\n
\u2018Bumpy ride\u2019<\/p>\n
The trial commenced on October 30, but in written findings released several weeks later, Judge Thomas ruled MNZ had failed to prove the charges. <\/p>\n
Judge Thomas said NZ Diving\u2019s operating plans and procedures had been audited several times by the regulator \u201cwithout adverse comment\u201d before the accident. <\/p>\n
Operators shouldn\u2019t have to question the signals they received from auditors or MNZ, the judge said. <\/p>\n
Midnight Diver was also \u201cin survey\u201d at the time of the accident to carry dive trip passengers in inshore areas by seating them on pontoons. <\/p>\n
\u201cThe survey must contemplate variable and unpredictable sea states given the wide area it covers. It is common sense this in turn contemplates the possibility of encountering an unexpectedly large wave.\u201d<\/p>\n
The judge found there was insufficient evidence that Bennett failed to deliver an appropriate safety briefing. <\/p>\n
Passengers recalled being alerted to the bar crossing, that they needed to prepare for a \u201cbumpy ride\u201d and hold on tight to the rope.<\/p>\n
Treated \u2018like a criminal\u2019<\/p>\n
Bennett told the Herald he and his company had suffered significant consequences because of MNZ\u2019s actions. <\/p>\n
Rather than taking a \u201csensible\u201d approach, the regulator had embarked on an \u201cinterrogation\u201d of him and his company. He claimed he was treated \u201clike a criminal\u201d. <\/p>\n
\u201cThere was no education. Their attitude was, \u2018We\u2019re right, you\u2019re wrong\u2019. They were like, \u2018You\u2019re guilty\u2019, even before the trial started.\u201d<\/p>\n
He questioned the expense associated with the investigation and trial, \u201cin what was a poorly managed case against us\u201d. <\/p>\n
Bennett said the stress associated with the prosecution was overwhelming. If convicted, he could have been jailed for up to a year and his business fined up to $1.5 million. <\/p>\n
While dealing with the pending trial, his company was also hit by Covid lockdowns, Cyclone Gabrielle, and a ram raid burglary resulting in tens of thousands of dollars in lost stock. <\/p>\n
There had been huge uncertainty for his family and staff. <\/p>\n
Company director Neil Bennett says he endured huge stress and financial fallout as a result of the six-year ordeal. Photo \/ Jason Dorday<\/p>\n
\u201cThe business didn\u2019t move forward. You\u2019re in a constant state of saying, \u2018What\u2019s the point in investing\u2019?, when you know it could all be taken away.\u201d <\/p>\n
Bennett said he turned 64 during last year\u2019s trial and spent seven hours giving evidence in his defence. <\/p>\n
The relief was palpable when the judge dismissed the case and he was finally able to move on with his life.<\/p>\n
However, the long-term damage to his business and reputation was impossible to quantify, Bennett said. <\/p>\n
\u201cWe haven\u2019t really recovered. I\u2019m 65 and I\u2019m looking to sell the business but I don\u2019t have much to sell.<\/p>\n
\u201cWe\u2019ve asked for compensation and they\u2019ve basically said, \u2018You\u2019ll have to take us to court\u2019.<\/p>\n
\u201cThey need to have accountability for when they get it wrong and there\u2019s been no accountability.\u201d<\/p>\n
Harris said MNZ investigators had to make difficult decisions when someone was injured in a maritime accident. <\/p>\n
But he felt the regulator didn\u2019t properly assess the case when deciding to prosecute, and it had continued adding witnesses and new evidence weeks out from the trial. <\/p>\n
Harris said delays had affected the integrity of the case. It should have been abandoned when a witness said he could no longer remember the incident and would \u201cmake stuff up\u201d. <\/p>\n
His client had been put under huge stress, which had a \u201cmassive impact\u201d on him, his business and family. <\/p>\n
MNZ defends actions, respects court\u2019s decision<\/p>\n
Despard defended the regulator and backed the decision to lay charges. <\/p>\n
\u201cThis incident caused serious harm to the victim, who suffered significant spinal injuries and had still not recovered by the time the trial was scheduled late last year.<\/p>\n
\u201cOur decision to investigate and file charges reflected the harm caused to the injured person, the seriousness of the incident, the public interest and whether it met evidential sufficiency.\u201d<\/p>\n
Despard acknowledged delays had plagued the case but said they were outside MNZ\u2019s control.<\/p>\n
The regulator used a mix of proactive education and corrective enforcement tools when responding to events. <\/p>\n
\u201cWith all our cases we carefully consider whether the thresholds of public interest and evidential sufficiency continue to be met through the prosecution process. We take our obligations as a prosecuting agency very seriously.\u201d<\/p>\n
In terms of compensation, parties could make cost applications to the court. <\/p>\n
MNZ respected the court\u2019s decision to dismiss the case and said its thoughts were with the people affected.<\/p>\n
Lane Nichols is Auckland Desk Editor and a senior journalist for the New Zealand Herald with more than 20 years\u2019 experience in the industry.<\/p>\n