SafeWork NSW v Snap Programs Limited; SafeWork NSW v State of New South Wales (Department of Communities and Justice)

[2021] NSWDC 203

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v SNAP Programs Limited; SafeWork NSW v State of New South Wales (Department of Communities and Justice) [2021] NSWDC 203

Hearing dates:

20 May 2021

Date of orders:

26 May 2021

Decision date:

26 May 2021

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

(1)   The non-publication orders and pseudonym orders made by the Court on 27 April 2020 and 29 July 2020 are revoked.

(2)   The young person can be referred to by his name, Riley Shortland.

(3)   The carer can be referred to by her name, Rachel Martin.

Catchwords:

CRIMINAL PROCEDURE - Suppression and Non-Publication Orders -

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Court Suppression and Non-Publication Orders Act 2010

Work Health and Safety Act 2011

Cases Cited:

SafeWork NSW v SNAP Programs Ltd [2020] NSWDC 445

Category:

Procedural rulings

Parties:

SafeWork NSW (Prosecutor)
SNAP Programs Limited (Defendant)
State of New South Wales (Department of Communities and Justice) (Defendant)

Representation:

Counsel: D Jordan (Prosecutor)
C Magee (Snap Programs Limited)

Solicitors: Department of Customer Service (Prosecutor)
Lander & Rogers (SNAP Programs Limited)
NSW Crown Solicitor’s Office (State of New South Wales (Department of Communities and Justice))

File Number(s):

2019/345742
2019/345729
2019/345748

Publication restriction:

None

Judgment

1. On 5 November 2017 a young person, Riley Shortland, and a carer employed by SNAP Programs Limited (SNAP), Rachel Martin, were killed when they were struck by a truck on the M1 Motorway. The defendants, SNAP and the Department of Communities and Justice (the Department) have each pleaded guilty to offences pursuant to s 32 Work Health and Safety Act 2011 (the Act) for breach of the relevant health and safety duties owed by each to each of the deceased. The sentence hearing is listed on 11 June 2021.

2. On 27 April 2020 the Court made a pseudonym order for the young person pursuant to s15A Children (Criminal Proceedings) Act 1987. The pseudonym order was amended on 29 July 2020.

3. On 29 July 2020 the Court made a non-publication order and a pseudonym order for the carer pursuant to s 8 Court Suppression and Non-publication Orders Act 2010.

4. By Notice of Motion filed on 8 May 2020, the prosecutor seeks revocation of the orders made on 27 April 2020 and 29 July 2020, on the basis that the families of the young person and the carer consent to their names being publicised in relation to the outcome of the case.

5. SNAP does not oppose the revocation of the orders. The Department neither opposes nor consents to the revocation of the orders. The incident will be the subject of a coronial inquest in late June and the Coroner has no objection to the revocation of the orders.

6. Section 15E(1) Children (Criminal Proceedings) Act 1987 provides that the publication or broadcasting of a child’s name is not prohibited if the child is deceased and the senior available next of kin consents. I am satisfied on the evidence that the mother of the deceased child consents to the publication of his name and that she is the senior available next of kin within the definition of that term in s 15(6) Children (Criminal Proceedings) Act 1987. I am also satisfied that there is no other reason for the non-publication of the young person’s name. In those circumstances, the revocation of the Court’s orders of 27 April 2020 and 29 July 2020, in so far as they relate to the young person, is appropriate.

7. Section 13 Court Suppression and Non-publication Orders Act 2010 provides that the Court may of its own motion, or on the application of a party, review an order made under the Act. In my earlier ruling in SafeWork NSW v SNAP Programs Ltd [2020] NSWDC 445 I found at [48] that there was a low risk of serious harm being suffered by a vulnerable client of SNAP who had been looked after by the carer and that the use of the term “the carer” would not adversely affect the principle of open justice.

8. I now consider that the circumstances of the case have changed in the following respects. First, with the passage of time the low risk has dissipated further to now be a very low or minimal risk. Second, SNAP, the original applicant for the non-publication order, does not oppose its revocation. Third, the wishes of the carer’s family are evidence of a public interest in favour of the publication of the carer’s name. It is now well recognised that victims should have the right to publication of their name or their family member’s name, and the ability to speak publically about the harm they have suffered as a result of an offence.

9. In all the circumstances, I am satisfied that it is appropriate to revoke the Court’s orders of 29 July 2020 in so far as they relate to the carer.

Orders

10. The orders I make are as follows:

1. The non-publication orders and pseudonym orders made by the Court on 27 April 2020 and 29 July 2020 are revoked.

2. The young person can be referred to by his name, Riley Shortland.

3. The carer can be referred to by her name, Rachel Martin.

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Decision last updated: 26 May 2021