‘Heavy burden’: WorkSafe and coroner in stoush over access to Hillcrest tragedy evidence

A judge will soon decide on whether to block the coroner from accessing key evidence about the Hillcrest Primary School disaster, which would seriously delay an inquest.

Memorial site at Hillcrest Primary School. The site was packed up to be preserved. Picture: Brodie Weeding/pool

A judge will soon deliver his decision on whether the coroner will be blocked from accessing key evidence about the Hillcrest Primary School disaster, which would seriously delay an inquest.

On Monday, WorkSafe Tasmania appeared in the Supreme Court of Tasmania after refusing to hand over documents concerning the December 2021 jumping castle tragedy that claimed the lives of six children.

The regulator argues that releasing the evidence for an inquest could compromise any potential prosecutions under work health and safety laws.

But lawyers for Coroner Olivia McTaggart argued that waiting for any criminal prosecutions to finalise would cause huge delays in an inquest.

The WorkSafe investigation into the tragedy is now complete and no charges have yet been laid, but prosecutors have a two-year limit – which expires in December this year – to do so.

On Monday, barrister Michael O’Farrell SC said WorkSafe Tasmania must be granted public interest immunity.

Mourners pay tribute to the children who died after gust of wind swept away a jumping castle at Hillcrest Primary School Devonport Tasmania. Picture: Jason Edwards

He said the coroner’s interest in the case was solely directed to the cause of the deaths, and making comments and recommendations about preventing similar deaths in the future.

“We don’t in any way denigrate those important functions,” Mr O’Farrell said.

“(But) the likelihood of an event of this nature happening again in the short term, or even the medium term, is very small.”

Mr O’Farrell said the claim for public interest immunity “must evaporate” in any event after two years, or at the completion of criminal prosecution.

He argued that releasing the evidence so far – which included engineer or geotechnical expert reports, as well as statements from Tazorb jumping castle employees and department of education staff – could “contaminate” evidence from other witnesses.

“The mischief that might occur is obvious. If you allow witnesses who are about to give evidence to come into court and watch evidence given by the previous witness … there may be adjustments to testimony,” he said.

“With the utmost respect to the families (impacted by the tragedy), we fully understand the coroner’s concerns about the need to expeditiously conclude the coroner’s proceedings.

“(But) all of those things sit behind the need, in the public interest, to seek the sequestration of these documents from the coroner.”

Barrister Leigh Mackey, acting for the coroner, argued the claim for immunity was “vague and insufficient”.

She said there was a “heavy burden” in making an argument for immunity, and that WorkSafe needed to prove a “real detriment to the public interest”.

Ms Mackey said the investigation had concluded, with witnesses having already given their statements, so there was no continuing risk of compromising prosecutions.

“If there are any prosecutions, these statements will come up for pre-trial disclosure,” she said.

She also said holding a timely inquest was in the public interest as other jurisdictions in Australia were interested in the Tasmanian findings, given bouncing castles and zorb balls were still in use interstate.

Justice Gregory Geason reserved his decision, to deliver at a date to be determined.

“This event was a massive event for Tasmania and required significant efforts in terms of investigation,” he said.

“Is there any pressing need to continue with the coronial inquiry?

“Why can’t it wait?”

On December 16, 2021, six children were killed and three seriously injured when a freak gust of wind blew an inflatable jumping castle into the air at Devonport’s Hillcrest Primary School.

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