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 [1994] NSWCA 134

It suffices for the Attorney-General to show a serious matter for trial to justify an interlocutory injunction restraining publication/distribution of photographs of an accused where there is a real risk of prejudice to a fair trial, even if it is not established that identity is or will be an issue; the orders are not futile even if full retrieval is impossible, and the balance between freedom of expression and a fair trial necessitates protection of the latter in these circumstances.

Parties
Claimant: HER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES; Opponent: Time Inc Magazine Company Pty Ltd
Jurisdiction
Australia
Judgment Date
07 June 1994
Procedural Posture
Interlocutory Application / Application for Interlocutory Injunction Pending Prosecution for Contempt of Court
Outcome
Interlocutory injunction granted as varied.
Legal Topics
Prejudicial Publicity, Freedom of Expression, Right to Fair Trial, Undertaking as to Damages by the Crown, Photographic Identification of Accused Persons, Scope and Terms of Injunctions
Contempt of Court Injunctions Criminal Procedure Prejudicial Publicity Freedom of Expression Right to Fair Trial Undertaking as to Damages by the Crown Photographic Identification of Accused Persons +1 more

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Parties

HER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES

Claimant

Time Inc Magazine Company Pty Ltd

Opponent

Procedural Posture

Interlocutory Application / Application for Interlocutory Injunction Pending Prosecution for Contempt of Court

Legal Issues

  1. 1 Whether the Attorney-General demonstrated a sufficient case to warrant interlocutory injunction restraining further publication/distribution of photographs of an accused;
  2. 2 Whether the interlocutory orders would be futile if existing copies could not all be retrieved;
  3. 3 Whether the Attorney-General must establish affirmatively that the issue of identity will arise at trial;

Ratio Decidendi

It suffices for the Attorney-General to show a serious matter for trial to justify an interlocutory injunction restraining publication/distribution of photographs of an accused where there is a real risk of prejudice to a fair trial, even if it is not established that identity is or will be an issue; the orders are not futile even if full retrieval is impossible, and the balance between freedom of expression and a fair trial necessitates protection of the latter in these circumstances.

Court Disposition

Interlocutory injunction granted as varied.

Orders

  • Order restraining the opponent from further publication, distribution, circulation, or dissemination of photographs of Ivan Robert Marko Milat in the edition of Who Weekly dated 13 June 1994, with proviso for use of irremovable stickers.
  • Order requiring the opponent to take all steps within its power to retrieve all copies of Who Weekly magazine dated 13 June 1994, with related proviso for use of irremovable stickers.