David v Goliath battle for justice

KILLED: Debbie Ashton.
KILLED: Debbie Ashton.

Grieving parents who lost children to repeat offenders are being stonewalled by "heartless" government departments they won the right to sue.

Lawyers, taking on Police and Corrections, say the families they represent believe they are being bullied in a "David versus Goliath" battle.

The parents of Debbie Ashton and Karl Kuchenbecker have taken action under occupational health and safety legislation, citing the failings of Police and Corrections that led to their loved ones' deaths.

KILLED: Karl Kuchenbecker.
KILLED: Karl Kuchenbecker.

Young dad Kuchenbecker, 26, was gunned down by murderer Graeme Burton in January 2007. A month earlier Ashton, 20, was killed by disqualified driver Jonathan Allan Barclay, who was in the police witness protection scheme at the time.

But the action, first lodged almost two years ago, has stalled in the face of red-tape.

Lawyer for the families, former MP Stephen Franks, was scathing about the delay, saying it suited the "deep pockets" of both departments to engage in lengthy legal fights.

JUDITH COLLINS: Disputed suggestions by Greenpeace activists in New Plymouth this week that authorities tracked their movements.
JUDITH COLLINS: Disputed suggestions by Greenpeace activists in New Plymouth this week that authorities tracked their movements.

"This is David versus Goliath. They may be playing to drag it out for long enough that eventually a court will say it's too long afterwards for it to be fair to prosecute.

"As a lawyer, I feel ashamed of where the law has got to. At the moment it is just legal bullying. They are acting the way that you would expect someone who had no wider responsibility or conscience to act," he said.

Minister for both Police and Corrections, Judith Collins, refused to be interviewed. "Given that this is before courts, there is not a lot she can say," a spokesman said.

Franks dismissed that view. "They hide behind that when this is a situation where the Crown could easily say, `Let's go to the heart of it and find out what went wrong.' This is one where the minister has to take responsibility."

One of the legal points is that the private prosecution wasn't filed within a six-month limit. But the families argue the case couldn't be filed before rulings from a coroner's inquest and an independent inquiry, both of which damned Police and Corrections.

Franks, working with another Wellington lawyer, Nikki Pender, last month wrote to Robert Lithgow QC, who is representing the departments, proposing to cut some of the delays in a "constructive way to avoid any of us wasting time and other resources".

The move required the consent of Police and Corrections. Lithgow replied saying he had discussed a settlement with his clients and "there is no perfect answer".

He said neither department had any intention of discussing ways it could "assist" the Kuchenbeckers and Ashtons while the threat of prosecution existed.

"The two departments do not wish to be convicted of a criminal offence and will defend their position," he wrote.

Pender said: "What they are trying to do is exhaust our resources so we go away."

But Lithgow said: "The idea that we are delaying things is not correct. This is a novel court case so it is going to take a while to shake out."

He dismissed the offer of a potential way forward. "They wrote a letter, obviously intended to later be used for publication, and I wouldn't call it a settlement or a way forward."

The Kuchenbecker and Ashton families want Police and Corrections tried under the Health and Safety Act – legislation the Department of Labour has used to prosecute private businesses when it believed negligence led to the death or injury to workers or the public.

Despite an admission from workplace services group manager Maarten Quivooy in March, 2009, that the legislation "may apply", the department has refused to take action, forcing the families to apply for the right to lodge a private prosecution – allowed under the Crown Organisations (Criminal Liability) Act 2002.

That law was enacted after the 1995 Cave Creek disaster, when 14 people died when a Conservation Department viewing platform on the West Coast collapsed.

Judge Graeme Noble, who headed an inquiry, later stated: "Unhappily, I was left with the impression that capable people from the top levels of the department's hierarchy did not seem to appreciate the concept of accountability in personal terms as it applies, for example, to the private sector.

"For the future, it needs to be understood that failure to be accountable will result in some real and tangible sanction."

Franks and Pender argue that should apply to Police and Corrections.

"They [politicians] make great speeches about accountability but make sure that they never have to face it. If the Crown was treating its own activities the way it treats everyone else out there, it would be falling over itself to get clear decisions on this," Franks said.

Corrections apologised to the Kuchenbecker family after a coroner's inquest into Karl's death which occurred while Burton was on parol. The coroner also found Police knew Burton was using standover tactics on drug dealers before Karl died. Both departments apologised to the Ashton family after 20-year-old Debbie was killed in a car crash by Barclay, who escaped jail when he used a witness protection programme alias at an earlier hearing to hide his long criminal record.



2005 December: Jonathan Allan Barclay imprisoned for burglary.

2006 July: Barclay paroled. Moves to Nelson under witness protection programme.

July: Graeme Burton paroled after 14 years of a life sentence for murder.

October: Barclay convicted of driving offences under real name. Disqualified and warned further offending will mean prison recall.

November: Convicted of drink-driving under new identity, fined and disqualified.

December: Kills Debbie Ashton in head-on collision.

2007 January: Burton kills Karl Kuchenbecker and injures four others.

February: Burton pleads guilty to murder.

May: Barclay pleads guilty to manslaughter.

2008 February: Report criticises relationship between Corrections and Police. Blames police failure to action two arrest warrants for Burton.

June: Coroner finds Corrections and Police enabled Burton to be at large despite risk.

July: Inquiry says Police and Corrections allowed Barclay to be at large.

2009 January: Call for action in Burton case under health and safety law.

March: Request denied.

April: Call for action in Barclay case under health and safety law

April: Application for an extension of time to lay Burton case

May: Request denied

June: Application for an extension of time to lay Barclay case.

2010 March: Applications heard May: Reserved judgements dismiss applications

May: Appeals filed

August: Appeals withdrawn

2011 February: High Court application for reviews succeeds. District court must reconsider applications for extension.

March: Stephen Franks writes to Corrections and Police lawyer offering way forward.

March: Offer declined

April: Franks asks district court to reconsider applications for an extension.

Sunday Star Times