SafeWork NSW v Snap Programs Ltd; SafeWork NSW v Department of Communities and Justice

[2020] NSWDC 445

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Snap Programs Ltd; SafeWork NSW v Department of Communities and Justice [2020] NSWDC 445

Hearing dates:

23 June 2020

Date of orders:

29 July 2020

Decision date:

29 July 2020

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

(1)   The publication of the name of the carer killed in the incident on 5 November 2017 is prohibited.

(2)   The carer killed in the incident on 5 November 2017 is to be referred to in the proceedings by the pseudonym “Sarah Jones” or by reference to her position “the carer”.

(3)   The young person previously given the pseudonym RR is to be referred to by the pseudonym “James Jenkins” or as “the young person”.

Catchwords:

CRIMINAL PROCEDURE - Suppression and Non-Publication Orders - Grounds

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Court Suppression and Non-Publication Orders Act 2010

Work Health and Safety Act 2011

Cases Cited:

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

Category:

Procedural and other rulings

Parties:

SafeWork NSW (Prosecutor)
Snap Programs Ltd (Defendant)
Department of Communities and Justice (Defendant)

Representation:

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

Solicitors: Department of Customer Service (Prosecutor)
Lander & Rogers (Snap Programs Ltd)
NSW Crown Solicitor’s Office (Department of Communities and Justice)

File Number(s):

2019/345742
2019/345729
2019/345748

Publication restriction:

None

Judgment

Introduction

1. By notice of motion filed on 8 May 2020, the defendant seeks suppression and/or non-publication orders (the orders) under the Court Suppression and Non-Publication Orders Act 2010 (the CS Act) to prevent the publication or other disclosure of information tending to reveal the identity of the corporate defendant or its employee who was killed in the incident that is the subject of the charges before the Court (the carer).

2. The defendant has not yet entered a plea to charges brought under s 19(1) and s 19(2) Work Health and Safety Act 2011 (the WHS Act), that it failed to comply with health and safety duties imposed by the Act and thereby exposed three of its employees and a young person under their care, to a risk of death or serious injury contrary to section 32 of the WHS Act.

3. RR (a pseudonym)[1] was a young person aged eight who had been assigned to the defendant for the provision of respite care. He had been diagnosed with autism spectrum disorder (level 3) and a global development delay and required very substantial support. It had been identified that RR had a targeted behaviour of undoing his restraint harness whilst being transported in vehicles.

   1. Orders for the use of a pseudonym for the young person were made on 27 April 2020, pursuant to s 15A Children (Criminal Proceedings) Act 1987.

4. On 5 November 2017, RR was being transported in a motor vehicle being driven south by the carer on the M1 Motorway. The vehicle was fitted with a car seat with a restraint harness and a seat belt clip, known as a “Houdini Stop” which was designed to prevent a child from removing their arms from a restraint harness. During the journey, RR managed to free himself from the restraint harness and the car seat. The carer pulled over into the break down lane and opened the driver’s side sliding door of the vehicle to re-secure RR into the car seat. RR got out of the door and ran onto the motorway with the carer chasing after him. Both of them were struck by a south-bound truck and killed.

5. The prosecutor alleges that other carers (in addition to the carer) who had transported RR in the period of 3 - 5 November 2017 were exposed to the same risk of death or serious injury. The prosecutor alleges that the defendant should have taken steps to assess the risk posed by RR’s targeted behaviour, ensured that the car seat was suitable for RR and fitted in accordance with the manufacturer’s instructions and/or that the defendant should have allocated a second carer to travel beside RR to ensure that he could not extricate himself from the car seat and restraint harness.

6. The defendant contends that the orders can be made because:

1. they are necessary to protect the safety of any person: s 8(1)(c) of the CS Act; and/or

2. it is necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice: s 8(1)(e) of the CS Act.

7. The prosecutor opposes the making of the orders.

Evidence on the Motion

Defendant’s evidence – Affidavit of Ms Ford

8. The defendant read an affidavit of Karin Ford affirmed 8 May 2020. Ms Ford was online during the AVL hearing, but not required for cross-examination. The content of her affidavit can be summarised as follows.

9. Ms Ford is the Operations Manager of the defendant and has extensive experience in providing support to young people and adults with a disability.

10. The defendant is a non-government, not-for-profit organisation that provides a number of services to young people and adults with a disability, including voluntary out-of-home respite care. It is a provider of those services to clients referred by Family and Community Services (FACS) within the Department of Communities and Justice (the Department). It commenced operation in 2012.

11. The defendant has 14 houses where clients reside and two respite houses, which are all located within the geographical area serviced by the defendant. The defendant has 21 permanent residents including five children and since its inception has accommodated 42 special needs residential placements, including five current special needs placements.

12. The defendant employs 70 disability support workers, of whom 15 work part-time, 10 work full-time and I infer that the rest are casuals.

13. The defendant also runs school holiday camps for children with disabilities or who display challenging behaviours and has had 346 children participate in those camps since 2012. Camps of this kind are not offered by mainstream service providers.

14. The defendant has also provided respite care to 86 children who require one- on-one support and cannot participate in its camps, since 2012.

15. The defendant has provided services to 111 adults since its inception by way of respite care and supported independent living.

16. The defendant is presently caring for 21 vulnerable clients including five children. These clients have been diagnosed with a range of cognitive conditions including intellectual disability, acquired brain injury and mental health conditions. They have usually experienced trauma and suffer from anxiety when their circumstances change. They also suffer from a range of underlying medical conditions.

17. Ms Ford deposed that the defendant provides 24 hour a day support to its vulnerable clients that those clients rely on to maintain equilibrium in their lives. When that equilibrium is disturbed, vulnerable clients can react by increasing their challenging behaviours, engaging in self-harm and their mental and medical conditions can deteriorate. Ms Ford deposed that vulnerable clients are reliant on the defendant to maintain their equilibrium.

18. Ms Ford deposed that for clients who have experienced trauma, that further trauma can lead to significant adverse outcomes including increased stress and chaotic behaviour.

19. Ms Ford deposed that she believed that if the name of the defendant was mentioned in the media that it would cause additional trauma to the defendant’s clients. She is concerned that this could lead to distress and anxiety and have adverse effects on a client’s well-being, particularly where the clients have a limited capacity to understand the proceedings and bearing in mind that the incident occurred some years ago.

20. Ms Ford deposed that she was concerned that members of the media may try to contact the defendant through its staff members or by visiting a house operated by it. On 8 November 2017 a causal staff member was contacted by the media through her Facebook account. The defendant subsequently advised its staff members to remove any reference to it on their social media accounts. In addition, there have been occasions when persons have identified and visited a house operated by the defendant. Ms Ford is concerned that the media may try to speak to a client at one of the houses and thereby cause them distress.

21. Ms Ford is concerned that an increase in challenging behaviours of clients may pose health and safety concerns for members of its staff.

22. Ms Ford deposed that she is concerned about the impact that reporting the proceedings may have on the provision of voluntary out-of-home care in the geographical area in which it operates. A loss of confidence in the provision of services by the defendant may lead to increased demand in the local area and/or the loss of confidence in other service providers, both of which would result in an inability to provide services to persons in need.

23. Ms Ford deposed that she is concerned that the publication of the carer’s name would lead to adverse impacts on the defendant’s clients. The carer had been a casual disability support worker with the defendant for two years and nine months before the incident. She had provided support to over 20 of the defendant’s clients with a myriad of relevant conditions. She was also a regular worker at the camps operated by the defendant at which 236 clients attended.

24. Immediately after the incident, there was a notable impact on many of these clients and their families. One young girl experiencing grief over the carer’s death suffered increased challenging behaviour and was suspended from school. Another female client of the defendant engaged in self-harm by cutting herself, which she reported was related to the carer’s death.

25. Ms Ford deposed that she is concerned about the impact that the publication of the proceedings would have on the staff of the defendant. In particular, she is worried that being reminded of the incident will upset them and have an adverse impact on their mental health or their ability to function effectively at work.

Prosecutor’s evidence – Affidavit of Ms Ng

26. The prosecutor read an affidavit of Lui Yan Beverley Ng affirmed on 29 May 2020. Ms Ng is a solicitor employed by the prosecutor, with carriage of the matter and the related proceedings. Ms Ng was not required for cross-examination and the content of her affidavit can be summarised as follows.

27. On 29 May 2020 Ms Ng conducted a number of internet searches concerning the incident. She downloaded a number of media articles dated around the time of the incident that reported on the incident. A number of the articles published the name of the carer. Two of the articles incorrectly reported that the carer was employed by FACS.

28. It is worth noting that the article published by Autism Aspergers Advocacy Australia (AAAA) did not report the name of the carer.

Relevant Law

29. A “suppression order” is an order that prohibits or restricts the disclosure of information by publication or otherwise: s 3 of the CS Act.

30. A “non-publication order” is an order that prohibits or restricts the publication of information but that does not otherwise prohibit or restrict the disclosed information: s 3 of the CS Act.

31. In deciding whether to make a suppression order or a non-publication order, a court must take into account that the primary objective of the administration of justice is to safeguard the public interest in open justice: s 6 of the CS Act.

32. Section 7 of the CS Act provides that a court may, by making a suppression order or non-publication order on the grounds permitted by the Act, prohibit or restrict the publication or other disclosure of information tending to reveal the identity of any party in proceedings before the court or any person who is related to or otherwise associated with any party in proceedings before the court.

33. Section 8 of the CS Act sets out the grounds upon which the court may make a suppression order or non-publication order. Section 8 provides:

8 Grounds for making an order

1. A court may make a suppression order or non-publication order on one or more of the following grounds:

(a)    the order is necessary to prevent prejudice to the proper administration of justice,

(b)    the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c)    the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900),

(e)    it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

1. A suppression order or non-publication order must specify the ground or grounds on which the order is made.

(3) Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.

34. The primary purpose of all of the grounds set out in s 8(1) of the CS Act (except the first) is to permit a court to protect witnesses and parties in proceedings before it from disclosure of information about them to the general public: Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125 at [36].

35. Each of the grounds in s 8 requires the court to consider whether the order is “necessary” for a stated purpose. The meaning of the word “necessary” depends on the context in which it is used. In each paragraph of s 8 of the CS Act the word “necessary” is used to describe the connection between the proposed order and an identified purpose: Fairfax Digital at [46]. In Hamzy v R [2013] NSWCCA 156 at [39]-[40] Hoeben CJ approved the interpretation of necessity that was adopted in Fairfax Digital.

36. To establish that an order is necessary, it is not enough that it appears to the Court that the proposed order is convenient, reasonable or sensible: Rinehart v Welker [2011] NSWCA 403 at [31] and D1 v P1 [2012] NSWCA 314 at [48].

37. An applicant who relies on the grounds specified in s 8(1)(c) of the CS Act is required to prove on the balance of probabilities, that the order sought is necessary to protect the safety of any person, in the sense that absent the order being made it would be probable that the person in question would suffer harm. Consideration must be given to alternate ways in which the probability of harm could be prevented, for example, if the evidence establishes that a more limited prohibition on publication may not eliminate the risk or possibility of serious injury but would have the effect of rendering it improbable. The alternative construction of s 8(1)(c) of the CS Act requires that the Court be satisfied on the balance of probabilities that the order sought is necessary to protect a person’s safety. On this construction, proof of the probability of harm is not a pre-condition. The necessity for such an order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person. If the prospective harm is very severe, it may be more readily concluded that an order is necessary even if the risk is a possibility as opposed to a probability. Alternate steps to the making of an order would also need to be considered on this construction: D1 v P1 [2012] NSWCA 314 at [48]-[51].

38. Matters relevant to a risk to safety include whether there would be risk (continuing or arising) to the safety of persons and the likelihood and seriousness of its possible consequences. It also directs attention to whether the continuation of the suppression order would be likely to prevent or minimise any existing risk and to whether there are alternative actions that might be taken in response to that risk, which would otherwise achieve the same outcome: R v AB(No 1) [2018] NSWCCA 113 at [42].

39. The calculus risk approach requires the court to consider the “nature, imminence and degree of likelihood of harm occurring to the relevant person”: AB v R (No 3) [2019] NSWCCA 46 at [56]. If the prospective harm is very severe it may be more readily concluded that the order is necessary, even if the risk does not rise beyond a mere possibility

40. It is necessary to keep in mind that the effect of the orders sought may have little adverse impact on the principle of open justice, such as where the orders sought do not prevent or restrict the publication of court proceedings generally: Fairfax Digital at [49].

41. The principle of open justice is that court proceedings should be conducted in public. This ensures that the proceedings are fully exposed to public and professional scrutiny and criticism without which abuses may flourish undetected. The public administration of justice tends to maintain confidence in the integrity and independence of the Courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character: R v AB at [28].

42. The overriding public interest is in “open justice” and any ground upon which an order is based must be balanced against that overriding public interest. For example, if a non-disclosure order were reasonably required or legally ancillary to protect the safety of some person and formed a basis for making of an order, when balanced against the primary objective of the administration of justice to safeguard the public interest in open justice, the Court may determine not to issue the non-disclosure order.

43. The wording of s 8(1)(e) may create a tension between s 8 and s 6 of the CS Act but also points to the term “necessary” not being utilised to mean “essential”. The tension is superficial, because s 8(1)(e) requires the public interest otherwise to be outweighed significantly by the primary objective. If “necessary” meant “essential” then the public interest in s 8(1)(e) could never be outweighed by the primary objective: R v AB at [77] – [79].

The Defendant’s Submissions

44. The defendant made the following submissions:

1. There is a risk that the publication of the name of the defendant or the name of the carer will result in a risk to the safety of its clients, because they are vulnerable for a variety of reasons referred to by Ms Ford.

2. There is a risk that the publication of the name of the defendant or the name of the carer will result in a risk to the safety of its staff, because they will have to deal with the adverse reactions of clients, they will experience unwanted memories of the incident or unsolicited enquiries from the media.

3. The defendant provides critical out-of-home care services for vulnerable persons and the publication of its name in relation to the proceedings may undermine public confidence in its operation and/or the operations of similar care providers. The continued provision of the services by the defendant and similar providers is in the public interest and that interest outweighs the public interest in open justice.

Consideration

Suppression of the name of the carer

45. The defendant cares for vulnerable clients and I accept that there is a risk that some of them, particularly those who were close to the carer, may suffer adverse outcomes if they were to revisit the circumstances of the incident. I accept that by reason of their circumstances that their reactions may not be logical and are therefore difficult to predict.

46. The evidence discloses that at about the time of the incident that two young clients did suffer adverse reactions in the form of self-harm by cutting and an increase in challenging behaviour resulting in a suspension from school. In my view, these adverse outcomes constitute a risk of serious harm.

45. Whilst these adverse reactions were probably related to grief over the carer’s death, I accept that it is possible that being reminded of the circumstances of the carer’s death could result in further adverse outcomes in these clients and possibly others. It is possible that other clients suffered similar adverse reactions but that the causal link to the carer’s death was not recognised at the time or subsequently.

46. On the evidence, I am satisfied that the publication of the name of the carer accompanied by a description of the incident creates a low risk of serious harm to a vulnerable client or former vulnerable client of the defendant.

47. The use of a pseudonym for the carer, or simply describing her as “the carer”, will not have an adverse impact on the principle of open justice. The identity of the carer is not essential to an understanding of the case by members of the public interested in the progress or outcome of the case.

48. The name of the carer has already been published in the contemporaneous media reports of the incident. Those media reports served a different public interest to the public interest in open justice. I do not know if the media outlets publishing those reports considered the impact that they may have had on vulnerable clients who had a close relationship with the carer. It is possible that the AAAA did, and chose not to publish her name.

49. Taking all of those matters into consideration, it is appropriate for the Court to use a pseudonym for the carer in its future conduct of the matter and I will make the necessary non-publication order.

50. I am not satisfied that the publication of the name of the carer would present a risk to the safety of the defendant’s staff for the reasons that follow. First, the contention that the staff would have to deal with an increase in challenging behaviour of clients is possible but in my view very remote. The potential harm that could be inflicted on a staff member is unlikely to amount to serious harm. It is also likely that the staff have been trained and are experienced in how to deal with challenging behaviours and have to do so on a regular basis. I do not consider the cause of those exacerbations to be important. Second, whilst I accept that the recall of the incident may be unpleasant for some staff members, they are likely to be able to cope with it either on their own or with appropriate support. It should be noted that some staff members are likely to be called as witnesses in the proceedings. Third, the risk of unwanted approaches by the media is low because, unlike when the incident first occurred, the media will have access to information coming from the proceedings in Court and the defendant has asked its staff to take steps to delete references to it in their social media accounts.

Suppression of the name of the corporate defendant

53. I am not satisfied that the evidence demonstrates that the publication of the name of the corporate defendant would create a similar risk of serious harm to any person. There is no evidence that the defendant’s clients identify with its name in a way that is comparable to the close personal relationship that one or more of them may have had with the carer. Whilst I accept that vulnerable people are dependent on the defendant to provide services for them that does not correlate with the reaction that they may have to the publication of its name in the context of the incident. Further, I am not satisfied that the publication of the name of the defendant by reference to the incident would potentially cause any harm to a staff member for the reasons already given.

54. I accept that the defendant provides services to a vulnerable class of persons and there is a substantial public interest in the provision of those services to people in the community who need them.

55. There is also a significant public interest in the prosecution of offences under the WHS Act to provide for the protection of workers and other persons from risks to their health and safety that arise by reason of the conduct of a business or undertaking. I have taken into account the objects of the WHS Act and have had regard to the principle that workers and other persons should be given the highest level of protection as is reasonably practicable.

56. This public interest and the objects of the WHS Act are advanced by the principle of open justice. The publication of proceedings under the WHS Act and of the Court’s decisions promote the dissemination of information about hazards and the control measures available to eliminate or minimise risk, the nature and scope of the duties provided for by the WHS Act and that the WHS Act can be enforced by prosecution for offences provided for by it.

57. It is also important that the community is aware of the proceedings against the defendant arising from the incident. The incident and its serious consequences were publicised at the time. The community is entitled to know that in response to the incident that the authorities have taken proceedings under the WHS Act against the defendant, who was a person that owed a duty to ensure the health and safety of the persons who were killed.

58. The defendant contends that it may suffer reputational loss by reason of the publication of the proceedings and this may lead to persons in need of its services going without that assistance. I do not accept that argument for two reasons. First, I do not accept that the mere reporting of the proceedings is likely to lead to the defendant suffering reputational loss in the area in which it operates. It is unlikely that the proceedings will be reported on until the matter is listed for hearing and it is possible that the defendant could be acquitted at that time. Second, reputational loss is an ordinary and usual consequence of being convicted of a criminal offence and it may be entirely justified. However, the allegations made against the defendant are specific to the care of RR and I am not persuaded that publicity of an adverse outcome in the proceedings would lead to a universal or significant loss of confidence in the defendant or other service providers in the sector.

59. Taking into account all of those matters, I am not satisfied that the public interest in the provision of services to vulnerable clients by the defendant significantly outweighs the public interest in open justice.

Comment on the pseudonyms suggested by the parties

60. The modern approach is to adopt a pseudonym that is a fictitious name, presumably because it is easier for the reader to understand in a published judgment.

61. The parties have suggested that the double initials “MM” be used for the carer, but my preference would be for the adoption of pseudonyms for the carer and the young person in accordance with the modern approach.

62. The parties some input into the pseudonyms that are the subject of my orders.

Orders

63. The orders I make are as follows:

1. The publication of the name of the carer killed in the incident on 5 November 2017 is prohibited.

2. The carer killed in the incident on 5 November 2017 is to be referred to in the proceedings by the pseudonym “Sarah Jones” or by reference to her position “the carer”.

3. The young person previously given the pseudonym RR is to be referred to by the pseudonym “James Jenkins” or as “the young person”.

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Endnote

Decision last updated: 13 August 2020