Citation: SafeWork NSW v Snap Programs Ltd; SafeWork NSW v Department of Communities and Justice [2020] NSWDC 445
Court: District Court of NSW
Date: 29 July 2020
Judge: Scotting DCJ
Background
Two defendants face prosecution under the Work Health and Safety Act 2011 (WHS Act) following a fatal incident on 5 November 2017. The first defendant, a not-for-profit disability support organisation, had been providing respite care to an eight-year-old boy (referred to by the pseudonym "James Jenkins") who had autism spectrum disorder and a documented history of escaping vehicle restraints. During transport on the M1 Motorway, the child freed himself from his car seat, prompting his carer to pull over and open the vehicle door to re-secure him.
The child ran onto the motorway and his carer gave chase. Both were struck by a truck and killed. SafeWork NSW subsequently charged the defendant organisation with failing to comply with health and safety duties under ss 19(1) and 19(2) of the WHS Act, thereby exposing three employees and the child to a risk of death or serious injury, contrary to s 32 of the WHS Act. At the time of the motion, no plea had yet been entered.
The defendant applied by notice of motion for suppression and non-publication orders to prevent disclosure of information that would identify either the corporate defendant or the carer who was killed. The prosecutor, SafeWork NSW, opposed the application.
Legal Issues
- Whether a suppression or non-publication order was necessary to protect the safety of any person under s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (CS Act).
- Whether the public interest in making the orders significantly outweighed the public interest in open justice under s 8(1)(e) of the CS Act.
- Whether the proposed orders should extend to the identity of the corporate defendant or be limited to the identity of the deceased carer.
Decision
Scotting DCJ refused the orders sought in relation to the identity of the corporate defendant but made a limited order prohibiting publication of the carer's name. On the safety ground under s 8(1)(c), the court accepted there was a real risk that identifying the carer could cause renewed distress to vulnerable clients who had been close to her, some of whom had already exhibited self-harm and increased challenging behaviour following her death. The court found that protecting those clients from that risk fell within the "safety of any person" ground.
The court declined to extend that protective rationale to concealing the defendant organisation's identity. There was no sufficient evidence that naming the corporate defendant would itself endanger the safety of its clients, as distinct from causing general distress or commercial inconvenience.
On the public interest ground under s 8(1)(e), the court acknowledged the defendant's concerns about reputational damage and its potential effect on service provision to vulnerable people. However, the court rejected those concerns as a basis for suppression. It noted that reputational consequences are an ordinary and usual result of criminal proceedings, and that any adverse outcome would be specific to the defendant's conduct in relation to this child rather than a generalised reflection on the disability services sector. The court was not persuaded that the public interest in protecting the defendant's reputation or business significantly outweighed the fundamental principle of open justice.
The court also commented on the modern approach to pseudonyms, preferring a fictitious full name over the use of initials, and directed the parties to have input into the pseudonyms ultimately assigned.
Orders Made
- Publication of the name of the carer killed in the incident on 5 November 2017 is prohibited.
- The carer is to be referred to in the proceedings by the pseudonym "Sarah Jones" or as "the carer."
- The young person is to be referred to by the pseudonym "James Jenkins" or as "the young person" (an earlier order under s 15A of the Children (Criminal Proceedings) Act 1987 had already assigned the pseudonym "RR").
Key Takeaways
- The District Court confirmed that the "safety of any person" ground under s 8(1)(c) of the CS Act can extend to protecting vulnerable third parties (such as the defendant's clients) from psychological harm, where credible evidence establishes a real risk of distress severe enough to constitute a safety concern.
- A non-publication order covering the identity of the deceased carer was granted on safety grounds, while an equivalent order covering the corporate defendant was refused, illustrating that suppression applications are assessed on a granular, person-by-person basis rather than wholesale.
- Potential reputational loss to a corporate defendant, even one providing essential community services, does not of itself satisfy the public interest ground under s 8(1)(e) of the CS Act. Reputational consequences are treated as an ordinary incident of criminal proceedings.
- Under s 8(1)(e), the public interest advanced by the applicant must significantly outweigh the public interest in open justice; a mere balance or marginal advantage in favour of suppression is insufficient.
- The court endorsed the modern practice of assigning fictitious full names rather than initials as pseudonyms, on the basis that full names are easier for readers to follow in published judgments.
Legislation and Cases Referenced
Legislation:
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 8(1)(c), 8(1)(e)
- Work Health and Safety Act 2011 (NSW), ss 19(1), 19(2), 32
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Cases:
- AB v R (No 3) [2019] NSWCCA 46
- D1 v P1 [2012] NSWCA 314
- Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125
- Hamzy v R [2013] NSWCCA 156
- R v AB (No 1) [2018] NSWCCA 113
- Rinehart v Welker [2011] NSWCA 403