HER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v TIME INC MAGAZINE COMPANY PTY LTD [No 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY P, HANDLEY and SHELLER JJA 22 June 1994, 30 June 1994 [1994] NSWCA 135 CONTEMPT — practice — hearing of summons for contempt — alleged tendency to interfere in the administration of justice in relation to a pending criminal trial — publication of photograph of accused person on cover and in article within popular magazine — whether such publication constitutes contempt of court — whether contempt arises from the possibility of disputes as to identification at the accused's trial whether prosecutor must show a real risk that identification will in fact be in issue at the trial of the accused — normal practice of the Court to adjourn contempt proceedings — whether that practice should be followed — whether adjournment is required by accused to permit the accused a full opportunity of cross-examination of witnesses held: (Kirby P and Handley JA, Sheller JA dissenting): (1) The normal practice in New South Wales is to adjourn contempt proceedings involving the media until after the criminal trial is completed. Attorney General for New South Wales v John Fairfax and Sons Ltd and Anor (1985) 1 NSWLR 402 (CA) considered; Attorney-General v Mirror Newspapers Ltd (1962) 62 SR (NSW) 421 and Sun Newspapers Pty Ltd v William Murray (1992) 58 ACrimR 281 (SC Q) referred to; (2) However, this practice although "normal" is not universal or inflexible and will adapt to the circumstances of the particular cases; (3) In the instant case, having regard to the principal issue for determination, it was appropriate and desirable that the summons for contempt should be heard as quickly as possible; (4) In the event that the hearing of the summons presented any real risk to the fair trial of the accused, the Court would adjourn the further hearing until after the trial; (5) Orders made for the early hearing of the summons for contempt of court. PRACTICE and PROCEDURE - Court of Appeal - contempt - publication of photographs in media - whether summons for contempt should be adjourned until after criminal trial - held: Although normally such a summons would be adjourned until after the criminal trial in the present case it should be heard with expedition. Kirby P and Handley JA The Court has before it a summons by the Attorney-General alleging contempt by Time Inc Magazine Company Pty Ltd (Time). The matter now for decision is the ordering of the hearing of the summons. PUBLICATION OF PHOTOGRAPHS OF ACCUSED The background facts are stated in the reasons of the Court, given on 7 June 1994, when the Court dealt with an application for an interlocutory injunction against Time. See Her Majesty's Attorney-General in and for the State of New South Wales v Time Inc Magazine Company Pty Ltd, Court of Appeal (NSW), unreported, 7 June 1994. Time published an edition of its journal Who Weekly on 6 June 1994 bearing on its cover a photograph alleged to be that of Mr Ivan Milat (the accused). He has been charged with the so-called "backpacker" murders. 2 UNREPORTED JUDGMENTS The Court granted the Attorney-General the relief he claimed. It did so despite the strenuous opposition of Time and despite the refusal of the Attorney-General to offer the Court any undertakings as to damages. Before the Court, Time disputed that it was guilty of contempt of court. It made no admissions. It indicated its intention to contest the charges. It has asserted that it will be vindicated at the hearing. The injunctions have been continued. They will last, unless varied by another order, until the hearing and disposal of the summons. On 7 June 1994, counsel then appearing for the Attorney-General indicated his desire that the summons, then shortly to be filed, should have an early hearing date and should not await the trial of Mr Milat. On 7 June 1994, the Court made no orders in that regard for, at that stage, the summons had not yet been filed. It stood the proceedings over to 20 June 1994 when, it was expected, the summons would be filed and procedural orders made. On 20 June 1994, the parties appeared before the President in the motions list of the Court. It appeared to be assumed by both of them that the proceedings for contempt should be adjourned until after the trial of Mr Milat. As this represented a change of the announced intention of the Attorney-General, the fixing of the timetable for the hearing was adjourned until 22 June 1994 when the Court could be reconstituted as it was during the motion for earlier interlocutory relief. It is in this way that the proceedings have now come back before us. On the return of the proceedings, the Solicitor-General, appearing for the claimant, requested the Court to list the summons for hearing at the earliest possible date. Counsel for Time argued that the Court should adjourn the summons until after the trial of Mr Milat. To resolve these conflicting submissions, the Court reserved its decision. We now state our decision and our reasons for favouring an early hearing of the contempt charge against Time. Read before the Court, in conjunction with these proceedings, was an affidavit by Detective Sergeant Stephen Leach. That affidavit annexed the transcript of the first and second returns of the proceedings against Mr Milat in the Local Court of Campbelltown before Mr K Flack, Local Court Magistrate. Detective Sergeant Leach deposes to the circumstances of his arrest of Mr Milat, to certain items allegedly discovered at Mr Milat's home and to the content of a video taped interview of Mr Milat at the Campbelltown Police Station. The fourteen charges brought against Mr Milat are set out. Seven of them charge him with murder of the so-called "back-packers". One of them charges that on 25 January 1990 he feloniously shot at a person, identified in the charge as "A", with intent to murder In the statement of the Prosecutor to Magistrate Flack it is asserted that "A" escaped what was allegedly a murderous attack designed to rob him. It is stated that in May 1994, this person took part in an identification procedure designed to determine the identity of his attacker. It is stated that, by this procedure, "A" identified Mr Milat. ARGUMENTS OF THE PARTIES Time urged the Court to follow its ordinary practice which is to adjourn contempt proceedings until the conclusion of related criminal proceedings. This argument was supported upon the following grounds: 1. That no good reason had been shown to depart from a practice which was uniformly observed by this Court although it departed from the practice of courts in other States of Australia; WHER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTHS WALES v TIME INC MAGAZINE COMPANY PTY LTD [No 2] (Kirby P and Handley JA) 2. That the identification process in which "A" had been involved had taken place a month before the publication of Who Weekly complained of and thus could not itself have been affected or contaminated by the publication of the photograph of the accused said to constitute contempt; 3. That Time would wish to interview "A" before the trial of the charge of contempt with a view to ascertaining whether he had ever seen its publication. Given that "A" was said to live in the United Kingdom, this would appear to be unlikely as it had earlier been shown by evidence that Who Weekly is published substantially in Australia and New Zealand. To meet the assertion of a tendency to interfere in the due administration of justice by contaminating the evidence of "A" on identification at the trial of Mr Milat, Time was entitled (so it was put) to show that "A" had not in fact seen the "offending" issue of Who Weekly; 4. That Time was also entitled, so it was said, to cross-examine Detective Sergeant Leach in the contempt proceedings on the extent to which it was likely that identification would be at issue in Mr Milat's trial in such a way that its publication of his photograph could "conceivably cause prejudice" to that trial; and 5. That it would, finally, be relevant to know whether, at the time of publication, it was reasonably foreseeable that, apart from the evidence of "A", there were other witnesses who had seen the accused or could identify him whose recollection might be affected by exposure to the photograph of Mr Milat. The Solicitor-General accepted the normal practice of the Court as stated. However, he contended that it was not, nor could it be, an inflexible rule. Its purpose was to prevent prejudice to the fair trial of an accused person by fresh publicity given to matters extraneous to, but possibly affecting, the criminal trial. As that could not occur in the instant case, the proper course was to list the contempt proceedings as quickly as possible. That would have the advantage, if the Attorney-General's submissions were upheld, of protecting Mr Milat's trial, well in advance of the hearing. It would also have the advantage of putting beyond any doubt the principle for which the Attorney-General argued, protective of other criminal accused whose identity might be in issue at their trials. THE HEARING SHOULD PROCEED WITHOUT DELAY The practice of this Court is normally that which has been described by Time. But it is not - nor could it be - a universal rule incapable of adaptation to the circumstances of the particular case. The determination of when a trial will take place is classically an interlocutory decision in a matter of practice and procedure. Of its nature, therefore, it enlivens a judicial discretion which cannot, like the laws of the Medes and Persians, be set in stone. A normal rule may be adopted which will ordinarily be applied. But that rule must bend to the particular exigencies of the case and the Court's determination of its decision following the submissions of the parties. The basis of the Court's normal practice is the commonsense recognition that the problem of contempt of court, in the sense of the publication of matter having a tendency to prejudice the fair trial of an accused person, should not be compounded by publicity surrounding protected reports of the contempt proceedings themselves. In Attorney-General v Bailey and Anor (1917) 17 SR (NSW) 170 (FC) at 179, Cullen CJ said: 4 UNREPORTED JUDGMENTS "Contempt consisting... in conduct calculated to prejudice a fair trial in pending cases will on most occasions call for the summary interposition of the Court in some form in order that the immediate obstruction to the administration of justice may be at once removed. " The removal can either be by the prompt (sometimes summary) disposal of the contempt charge or the adjournment of that charge until the criminal trial is concluded when risk of contaminating that trial is removed. As ordinarily, in defended cases at least, summary disposal is impossible in cases of alleged contempt by the media, the practice has been observed in this State of generally adjourning the contempt proceedings until after the criminal trial. See eg Attorney-General v Mirror Newspapers Ltd (1962) 62 SR (NSW) 421 (FC). Indeed, it is sometimes asserted that this practice extends to civil trials, at least where a jury might be summoned to determine disputed matters of fact and where there is therefore a risk of pre-verdict media coverage of issues in contention. The practice in other States of Australia has not always conformed to that followed in this State. The diversity of practice in this country is accurately described by Byrne J in Sun Newspapers Pty Ltd v William Murray (1992) 58 ACrimR 281 (SCQ), 289: "... [I]t is appropriate to mention the New South Wales practice of deferring applications by the President until the conclusion of the trial said to be prejudiced by the publications: see Hinch at 34, 168; AG (NSW) v John Fairfax and Sons Pty Ltd and Bacon [(1985) 6 NSWLR 695] at 707. The practice is a salutary one. It obviates the risk of re-publication of the offending material through reports of the contempt proceedings. (There are, in general, some countervailing considerations (Hinch v AG [1987] VR 721 at 727, 738-739) and there is no settled practice in this State: see William Brooks and Co Ltd and Ranger; Ex parte Fallon [1939] QSR 261 at 265; Queensland Newspapers Pty Ltd: Ex parte Shannon [1962] QWN S50 at 1771). During argument I adverted to this difficulty." In that case, although regarding the New South Wales practice as "salutary" Byrne J proceeded to deal with the contempt proceedings in advance of the criminal trial because both sides wanted it. That is not the case here. Accordingly, Time urged consistent adherence to the New South Wales rule. But when that rule is examined, it will be seen that its exposition is not as inflexible as Time suggested. Thus, Hope JA (with the concurrence of Samuels and Mahoney JJA) in Fairfax (above) at 406 observed: "T agree... that charges of contempt based upon the publication of material which may prejudice the fair trial of criminal proceedings should not (AT LEAST NORMALLY) be heard until after conclusion of the related criminal proceedings. Whatever the practice may have been in the past, the media publicity attaching to the contempt proceedings will undoubtedly add to the possibility of unfair prejudice in the criminal trial." (emphasis added) It will be seen from this passage that the "practice" referred to is described as the "normal" procedure to be followed. And its purpose is defined as being to avoid the possibility of unfair prejudice in the criminal trial. That purpose must be kept in mind in observing the practice. Otherwise, judges receiving contradictory submissions as we have done, will neglect their duty to determine cases in a proper judicial manner, exercising their discretion as the law provides. That this was the position in this State was recognised when the Court was invited to depart from its normal practice and to substitute in a particular case the WHER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v TIME INC MAGAZINE COMPANY PTY LTD [No 2] (Kirby P and Handley JA) practice observed in Victoria. See Border Morning Mail v Hanson, Court of Appeal, unreported, 25 November 1987; (1987) NSWJB 229, per Priestley JA, 28. We do not intend by our orders in this case, to cast the slightest doubt upon the normal practice which has been followed in this State. However, the reasons which have led us to vary that practice in the present case are as follows: 1. Time Inc is facing very serious contempt charges. Those charges are criminal in nature. Time disputes its guilt. It asserts a defence. It claims vindication. It is subject to burdensome injunctions the making of which it resisted and which are still in force and have been continued. In respect of the injunctions the Attorney-General has declined, on behalf of the Crown, to give an undertaking as to damages. Time should have the earliest opportunity, as is compatible with the right of fair trial of Mr Milat, to have the charges laid against it determined and to be released from the orders, the making of which it resisted; 2. Time's defence, as foreshadowed at the proceedings for the interlocutory injunction, is not that a mistake has occurred or that its publication could not possibly have fallen into the hands of witnesses or jurors summoned in Mr Milat's case. It is a defence which appears to question directly a line of authority which seems to have endured for nearly sixty years in this State and for at least seventy years in the United Kingdom. The cases are set out in the earlier judgment. The include The King v Daily Mirror and Ors; Ex parte Smith [1927] 1 KB 845 (DC); Ex parte Auld; Re Consolidated Press Ltd and Anor (1936) 36 SR (NSW) 596 (FC); Attorney-General v Mirror Newspapers Ltd (1962) SR (NSW) 421 (FC) and Attorney-General for New South Wales v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 (CA). 3. According to Time, as it has foreshadowed its arguments, the matter which the Attorney-General must establish is that there is, in fact, a real tendency "as a matter of practical reality" to interfere with the trial of Mr Milat. But Time goes further. It says that the Attorney-General must show that a true issue of identification will in fact arise in Mr Milat's trial. According to the Attorney-General, the unbroken authority of the courts of this State (of England and elsewhere) make it sufficient that there is a "risk of interference with the due course of justice". Such a risk cannot be excluded "unless one can rule out the possibility of any dispute of identification". That risk must be judged not at the time of the trial, nor even as the trial advances. It must be decided at the moment of the alleged contempt. The contradiction in these arguments presents a real issue for decision by the Court. If the Attorney-General is right, the inquiries into the actual likely content of the trial of Mr Milat are completely irrelevant to Time's guilt. Questions directed to that end would have to be ruled as inadmissible on the issue of guilt; 4. If Time's argument is wrong, the sooner the controversy presented by the argument is removed, the better. It seems very likely that Mr Milat's trial will attract a great deal of media attention, both in this country and overseas. A temptation may exist to utilise the photograph in Who Weekly in other media, including in the United Kingdom where "A" is said to live. The journal was on public sale at least in Australia and New Zealand. It would be readily obtainable by those with a mind to secure a copy. The sooner its status (and the use of the photograph on the cover and in the article) are authoritatively determined according to law, the more likely it is that further risk of contamination of Mr Milat's trial will be prevented, if that is the legal consequence of the law of contempt in this State upon Time's publication; 6 UNREPORTED JUDGMENTS 5. Given the statement of the prosecutor at the highly publicised first return of Mr Milat's case in the Local Court at Campbelltown, and the procedure of identification which he there described, identification may, in any case, be an issue at Mr Milat's trial. It must be kept in mind that the inquiry initiated by the contempt charge against Time concerns the "tendency" of its publication, Who Weekly to interfere in the due administration of justice. The actual interference with a jury's deliberations can never be known as a matter of fact because the jury cannot be interrogated in regard to them. It seems to us (at least at this stage) that the cross-examination of Detective Sergeant Leach and "A" may not be permitted on the issue of Time's guilt. Were a different conclusion to be arrived at by the Court hearing the summons, it would always be open to that Court to adjourn the further hearing of the summons in order to prevent the risk of prejudice to the fair trial of Mr Milat. Alternatively, it might be open to the Court to adopt procedures which adequately protected the fair trial right. The entitlement to a fair trial of serious criminal charges, as was pointed out in the earlier proceedings, belongs not only to Mr Milat but to the Crown and to the community generally. CONCLUSIONS AND ORDERS It is for these reasons that we are of the view that the normal practice observed in this State should not be followed in the present case. The Court was told that the trial of Mr Milat would not come on for at least twelve months. It is desirable that the trial of the summons for contempt against Time should be heard as quickly as possible. Time can then advance its argument that the issue is not the possibility of a dispute as to identification at the time of the publication but the real likelihood (viewed at that time) that identification will IN FACT be an issue. Depending upon the outcome of that submission, the summons could either proceed to conclusion or be adjourned. But for the present time, its hearing should not be adjourned or delayed. On the contrary, it should be heard with expedition. The Solicitor-General informed the Court that, within a week of 22 June 1994 all of the evidence relied upon by the Attorney-General would have been filed. The orders which were therefore propose are: 1. Set down the hearing of the summons herein with expedition category B to the intent that the summons should be heard within a period of approximately three months; 2. Order written submissions on the part of the Attorney-General; 3. Direct the Registrar to list the hearing of the summons and dispense with the rules relating to the summons book to the intent that the Attorney-General will file and serve, by such time as is fixed by the Registrar, a compilation of papers including all affidavits relied upon; and 4. Costs of the motion be costs in the summons. Sheller JA I have read the judgment of Kirby P and Handley JA. With respect I do not agree with the course they propose. I have come to this conclusion with reluctance because the Attorney General through the Solicitor General has urged that the contempt proceedings should be brought on before the trial of Mr Milat. Two matters are, I think, of overwhelming significance and either alone or together lead me to the conclusion that the hearing of the contempt proceedings should be deferred until after the trial of the accused. The investigation of the so-called "backpacker" murders and the arrest and charging of Mr Milat has aroused huge public interest and a large degree of media publicity. This, perhaps inevitably, increases the risk that the fair trial of the accused will be jeopardised. The injunction application in which this Court delivered judgment on 7 June 1994 also attracted wide-spread media publicity. I have no doubt that the hearing of the contempt proceedings will attract further WHER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v TIME INC MAGAZINE COMPANY PTY LTD [No 2] (Sheller JA) wide-spread media publicity. This Court has no control over the consequences of that. This publicity will again attract attention to the fact that a photograph stated to be of the accused has been published and consequently is available to those, curious or otherwise, desiring to take advantage of this situation. I am not satisfied that the further media publicity flowing from a hearing of the contempt proceedings will not increase the risk that the accused may be denied a fair trial. Again I say this with diffidence because the other members of the Court and the Attorney General apparently reject that as a risk or are prepared to accept it. In my opinion the preservation of the right of the accused to a fair trial outweighs any reason for the Court's expediting the hearing of the contempt proceedings. This is not a case in which, as far as I can see, either the Attorney General, representing the public interest, or Time Inc Magazine Company Pty Ltd is in any way prejudiced by delaying the hearing of the contempt proceedings until after the trial. This brings me to the second point. The proceedings against Time are criminal. Eminent senior counsel for Time has informed the Court that his client's preparation is inhibited if the matter proceeds before the trial comes on. This may go to substance or penalty or both. As the law stands for the Crown to succeed the Court must be satisfied beyond reasonable doubt that there was a likelihood when the photograph was published that the identity of the accused would come in question in some aspect of the case against him, so that its publication would be likely to prejudice the trial; ex parte Auld; re Consolidated Press Ltd (1936) 36 SR (NSW) 596 at 598-9. It seems to me obvious that this is a question far better determined after the trial has concluded than at the present time. The other members of the Court recognise the possibility that the hearing may have to be adjourned to accommodate the possibility that Time may have an arguable case on the fact or the law. This again will attract wide-spread media publicity and achieve nothing so far as resolution of the contempt proceedings is concerned. The weighing of the various matters that have to be taken into account on this application would be a great deal more difficult if Time sought a speedy trial in order, if it succeeded, to be left in a position where it could publish the photograph in question. But Time makes no such application and indeed is content that the injunction should remain in place until the contempt proceedings have been resolved or further order. 1. Set down the hearing of the summons herein with expedition category B to the intent that the summons should be heard within a period of approximately three months; 2. Order written submissions on the part of the Attorney-General; Direct the Registrar to list the hearing of the summons and dispense with the rules relating to the summons book to the intent that the Attorney-General will file and serve, by such time as is fixed by the Registrar, a compilation of papers including all affidavits relied upon; and 4. Costs of the motion be costs in the summons. » Counsel for the claimant (Attorney-General): K Mason QC (Solicitor-General) and MG Sexton Solicitors: RK Roberts, State Crown Solicitor Counsel for the opponent (Time Inc): TEF Hughes QC and JE Sexton Solicitors: Allen Allen and Hemsley