HER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v TIME INC MAGAZINE COMPANY PTY LTD [1994] NSWCA 134

HER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v TIME INC MAGAZINE COMPANY PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, HANDLEY and SHELLER JJA 7 June 1994, 7 June 1994 [1994] NSWCA 134

CONTEMPT — interference with the due course of justice — pending criminal trial of person accused of multiple murders — popular magazine publishes on cover and inside photographs of accused — substantial portion of edition already distributed and many copies sold — prosecution by Attorney-General for contempt of court foreshadowed — interlocutory application for immediate injunction to restrain further publication and distribution and to require retrieval of all copies not yet distributed — held:

(1) For the provision of an interlocutory injunction to support foreshadowed proceedings for contempt of court it was sufficient for the Attorney-General to show a serious matter for trial to support the making of the order;

(2) In considering the application, the Court would take into account the countervailing interest in free expression.

Council of the Shire of Ballina v Ringland, unreported, Court of Appeal (NSW) 25 May 1994 referred to;

(3) It was not necessary for the Attorney-General affirmatively to prove that the identity of the accused person was, or would be, in issue in his trial as the issues for such trial would not ordinarily be known to the Attorney-General or the court at the time of such proceedings.

The King v Daily Mirror and Ors; Ex parte Smith [1927] 1 KB 845 (DC); Ex parte Auld; Re Consolidated Press Limited and Anor (1936) 36 SR (NSW) 596 (FC); Attorney-General for New South Wales v Mirror Newspapers Ltd (1961) 62 SR(NSW) 421 (FC); Attorney-General for New South Wales v Channel Nine Pty Ltd (1990) 20 NSWLR 368 (CA) applied;

(4) In the publication of photographs by the media, the courts were defending the constitutional right to a fair trial enjoyed by the accused and by the Crown on behalf of the community Such defence was not incompatible with the constitutional right of free communication.