KEY POINTS:
When violent crime is committed by an offender on parole the natural instinct is to blame the authorities, usually the Parole Board that released him and the probation officers who were supposed to be monitoring him. Natural instincts can be right. Victims and the public will take heart from the Supreme Court's decision that Susan Couch, severely wounded in the Mt Wellington-Panmure RSA in December 2001, can sue the Department of Corrections.
The court has ruled that the department may have owed a "duty of care" to Ms Couch as an employee of the RSA club where the department's probation service allowed William Bell to work. Most people would think that duty was obvious but the High Court and Court of Appeal had previously decided otherwise. The parole system has to balance the interests of prisoner rehabilitation and public safety. It must assess and monitor parolees as best it can. Despite its best efforts, some will re-offend.
Furthermore, it is a basic principle of law that people cannot be held responsible for the harm done by others; it was Bell who killed three people and maimed Ms Couch that morning, nobody else. But while others might not be criminally responsible, they ought to pay a price if their negligence has exposed the victim to the harm.
Bell had been in prison for the aggravated robbery of a service station. He was paroled on the condition that he work where directed by a probation officer. Ms Couch asserts that the probation officer knew Bell had an alcohol problem when he was allowed to do a liquor licensing course and take a job in the RSA clubrooms, where staff were not warned about him.
The Supreme Court has made no judgment on her claim or the actions of the probation service; it has simply overturned the ruling of the lower courts that the department owed no duty of care to Bell's victims beyond its general duty to public safety. The most important element of the Supreme Court's ruling may be the extent of the department's duty to individuals who are harmed by a Parole Board decision or a probation officer's carelessness. On that, the court disagreed.
Justices Noel Blanchard, Andrew Tipping and John McGrath believed a member of the public would need to have been placed in particular danger, such as being employed in proximity to the offender. That view helps Ms Couch but it would not help a claim by the family of the man randomly killed by the paroled murderer Graeme Burton during his rampage in the Rimutakas last year. Karl Kuchenbecker was in no more danger of Burton than any other member of the public until Mr Kuchenbecker had the misfortune to be in the killer's path.
Two of the court, Chief Justice Dame Sian Elias and Justice Noel Anderson, would extend the duty of care to anyone put randomly at risk. That seems only fair. Last week, an inquest into Mr Kuchenbecker's death found he might still be alive if Burton's parole had been managed differently. The killer had breached his parole conditions six times in the few months he was on the loose and had not been recalled to prison.
The Parole Board, Corrections and the police all say they have learned from the Burton debacle and corrected the deficiencies it exposed in their information and communications. The public could have more confidence in their assurances if those responsible had been seen to suffer for their misjudgments. The right to sue a department for exemplary damages when its decisions lead directly to accident or death might expose the individuals at fault. That would be salutary and helpful to public safety. The Supreme Court's daring decision has opened the door to redress long overdue.
