Citation: [2021] NSWDC 203
Court: District Court of New South Wales
Date: 26 May 2021
Judge(s): Scotting DCJ
Background
On 5 November 2017, a young person and his carer were killed when a truck struck them on the M1 Motorway. The two defendants, a disability support organisation (SNAP Programs Limited) and the Department of Communities and Justice, each pleaded guilty to workplace health and safety offences under the Work Health and Safety Act 2011 in connection with the deaths. A sentence hearing was listed for 11 June 2021.
Earlier in the proceedings, the Court had made protective orders concealing the identities of both victims. A pseudonym order for the young person was made on 27 April 2020 under the Children (Criminal Proceedings) Act 1987, and a non-publication order and pseudonym order for the carer were made on 29 July 2020 under the Court Suppression and Non-Publication Orders Act 2010.
The prosecutor filed a Notice of Motion seeking revocation of all those orders, on the basis that the families of both victims had consented to the publication of their names. Neither defendant opposed revocation, and the Coroner (whose inquest was imminent) raised no objection.
Legal Issues
- Whether the pseudonym order protecting the identity of the deceased young person should be revoked, given the consent of his mother as senior available next of kin under the Children (Criminal Proceedings) Act 1987
- Whether the non-publication and pseudonym orders protecting the carer's identity should be revoked under the review power in the Court Suppression and Non-Publication Orders Act 2010, given changed circumstances including the family's consent and the passage of time
Decision
On the first issue, Scotting DCJ found that s 15E(1) of the Children (Criminal Proceedings) Act 1987 provides that publication of a deceased child's name is not prohibited where the senior available next of kin consents. The Court was satisfied that the young person's mother had consented and that she qualified as the senior available next of kin under the statutory definition. No other basis for maintaining the suppression existed, and revocation was appropriate.
On the second issue, the Court applied the review power in s 13 of the Court Suppression and Non-Publication Orders Act 2010, assessing whether circumstances had changed since the original orders. In the earlier ruling (SafeWork NSW v SNAP Programs Ltd [2020] NSWDC 445), the Court had identified a low risk of harm to a vulnerable client who had been cared for by the deceased carer as justification for the suppression.
Scotting DCJ found that three material changes had occurred since the original orders were made. First, the passage of time had reduced that already-low risk to a very low or minimal level. Second, SNAP, the original applicant for the non-publication order, no longer opposed revocation. Third, and significantly, the wishes of the carer's family represented a public interest in favour of publication. The Court noted that it is now well recognised that victims and their families have a legitimate interest in having their names publicly known and in speaking publicly about harm suffered as a result of an offence.
Taking all circumstances together, the Court was satisfied that revocation of the orders relating to the carer was also appropriate.
Orders Made
- The non-publication orders and pseudonym orders made on 27 April 2020 and 29 July 2020 are revoked.
- The young person may be referred to by his name, Riley Shortland.
- The carer may be referred to by her name, Rachel Martin.
Key Takeaways
- Under s 15E(1) of the Children (Criminal Proceedings) Act 1987, the publication of a deceased child's name is not prohibited where the senior available next of kin consents to publication.
- The District Court confirmed that a non-publication order made under the Court Suppression and Non-Publication Orders Act 2010 may be reviewed and revoked where circumstances have materially changed since the order was originally made.
- A reduction in the risk of harm over time, withdrawal of support by the original applicant, and the expressed wishes of a victim's family can each constitute changed circumstances capable of justifying revocation of a suppression order.
- The judgment reflects the principle that victims and their families hold a recognised public interest in having names published and in speaking openly about harm suffered through criminal conduct.
- Where a coronial inquest is proceeding in parallel, the Coroner's position on suppression orders is a relevant consideration, though it is not determinative of the court's decision.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), s 32
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15E(1), 15(6)
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 8, 13
Cases:
- SafeWork NSW v SNAP Programs Ltd [2020] NSWDC 445