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. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd and Ors v The Commonwealth of Australia (1992) 177 CLR 106, referred to; (5) An order for the no further publication and a retrieval of issues already published would not futile; (6) Orders made as sought with variation providing for coverage of face of the accused by irremovable sticker. CROWN - injunction - undertaking as to damages - whether Crown obliged to give - relevance of failure of Crown to offer usual undertaking as to damages - held: (1) In some instances the Court has taken an undertaking from the Crown upon providing an injunction. The Commonwealth of Australia v John Fairfax and Sons Ltd and Ors (1980) 147 CLR 39 referred to; 2 UNREPORTED JUDGMENTS (2) The law relating to the requirement of an undertaking as to damages as a price for securing injunctive relief to the Crown and its agencies is unclear. F Hoffmann-La Roche and Co AG and Ors v Secretary of State for Trade and Industry [1975] AC 295 (HL) consd; INJUNCTION - interlocutory injunction - distribution of popular journal showing photographs of accused person charged with multiple murders - provision of interlocutory relief - discussion by the Court of scope and terms of injunction - Crown's obligation to give undertakings as to damages - relevance of the existence of other pictures of the accused - relevance of the existence of other distributors of the journal - relevance of the provision of irremovable stickers over the photograph of the accused - duration and extent of injunctions discussed by Court - orders made. Kirby P By summons now before this Court the Attorney-General for New South Wales seeks interlocutory relief against Time Inc Magazine Company Pty Ltd (the opponent) (Time). Time is the publisher of a journal Who Weekly. PUBLICATION OF PHOTOGRAPHS OF A PERSON ACCUSED OF MURDERS On Monday 6 June 1994 Time published an edition of Who Weekly bearing date 13 June 1994. The cover of the edition is reproduced in these reasons but with the face of the person pictured, Mr Ivan Milat (the accused), obscured. The text of the journal alleges that Mr Milat, has been charged with the so-called "Backpacker murders". These involve the murder of seven hitchhikers later found buried in bush graves in the Belanglo State Forest. Between pages 26 and 31 of the journal, the text is based upon a report including, on pages 29 to 31, an alleged conversation with Mr Milat's brother. The cover photograph, which is in colour, appears again in black and white within the text at 29 of the edition. [The cover photograph of Who Weekly, June 13, 1994 is reproduced.] On page 27, amongst other photographs, is one which shows the accused person being led from what is apparently his home by two men who appear to be detectives. That photograph is also reproduced in these reasons. [A photograph at 27 of the June 13, 1994 edition of Who Weekly is reproduced.] This second photograph shows the accused handcuffed to one of the detectives. Over his head is a coat or other garment apparently designed to obscure totally his facial features. I would be prepared to infer that this precaution was taken by the arresting officers to avoid film or photographs of the accused being taken, the publication of which might have the effect of identifying him and thereby impeding or interfering in his fair trial. The text of the article at 29 includes a statement, attributed to the solicitor representing the accused at the court on the day in which the proceedings were first returned, to the effect that, "He has instructed me that his is not guilty of the charges of murder that have been pressed against him today". Within the article are photographs of seven persons said to be the victims of the "Backpacker murders". There is also a photograph of the accused's home and motor vehicles and another photograph, allegedly that of the accused's brother, who is said to be the source of the article on the details of the accused's personal life referred to on the cover. The Attorney-General has moved the Court for the following orders. As originally sought by the Attorney-General they were amended to read as follows: "1. An order that the Opponent, itself, its servants and agents be restrained from further publication, distribution, circulation or other dissemination of photographs of Ivan Robert Marko Milat in the edition of Who Weekly dated 13 WHER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v TIME INC MAGAZINE COMPANY PTY LTD (Kirby P) June 1994, or otherwise. 2. An order that the Opponent forthwith take all steps within its power to retrieve all copies of Who Weekly magazine dated 13 June 1994 published, distributed, circulated or otherwise disseminated by it and retained within its custody and control. 3. Such further or other orders as the Court seem fit including an order that the opponent pay the costs of these proceedings. " The summons was filed in the Court this morning. The application to return the process before the Court was made late yesterday. It was given the highest degree of expedition by the Court, with an order that the publisher be notified, as indeed it was. The publisher appeared by senior counsel to resist the relief claimed by the Attorney-General. It denied any suggestion that it was guilty of contempt of court. It made no admissions. OBJECTIONS TO THE GRANT OF INTERLOCUTORY INJUNCTIONS The bases for the resistance of the orders sought by the Attorney-General were threefold: 1. That the Attorney-General had failed to establish, to the requisite standard, that there was a serious issue to be tried in any future prosecution of Time for contempt of court, in the sense that he had failed to show that the edition of Who Weekly in question carried a real risk of impeding the fair trial of the accused. Specifically, it was argued that it had not been shown by the Attorney-General that any issue of identity of the accused would, or might, be raised at his trial; 2. That, as it was put, in balancing the right of free expression and the right to fair trial of the accused, the balance in this case favoured free expression, so that injunctive relief should be withheld leaving whatever consequences for the law of contempt to follow as the law provided. In this connection a reference was made in passing to an argument about the constitutional right to free communication found by the High Court to exist in the very nature of the Australian Constitution and in the implications derived in its text. See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd and Ors v The Commonwealth of Australia (1992) 177 CLR 106; and 3. That the Attorney-General had failed to establish that there was any effective or real control on the part of Time over the distribution or retrieval of the edition of Who Weekly in question. The lack of such proved control would make the orders which were asked by the Attorney-General a futility with which the Court would not involve itself. THE ISSUES FOR THE COURT: A TRIABLE MATTER OF CONTEMPT? It is important to state that at this stage the Court is making no final determination of the issues which may be raised in any future proceedings for contempt of court which the Attorney-General might bring against Time. Counsel for the Attorney-General has told the Court today that such proceedings will be commenced by summons tomorrow. The substantial issue for the Court today is whether a triable issue or a serious matter for trial has sufficiently been shown to support the serious step of the making of orders of the kind sought by the Attorney-General. See M J Tilbury Civil Remedies, Vol I, Butterworths, 1990, Sydney, 317 (para7105 ff) and cases there cited. The orders sought, of their nature, would involve Time in the obligation to take a number of actions which could be costly, time consuming and involve a potential loss of profits of business and of goodwill. 4 UNREPORTED JUDGMENTS It is always a serious matter to make an injunctive order. Such orders should not be made lightly. Especially is this so where, as in the present case, the Crown has not offered an undertaking as to damages which it is usual for a court to extract in civil proceedings at least from ordinary, ie, non-public, litigants. For myself I would add a further consideration which suggests the need for particular care. Setting aside the issue of any constitutional right to free expression or free communication, as it has been called, now established as part of the law of Australia, the injunction is sought against a publisher to seek to terminate or diminish an attribute of free communication ordinarily enjoyed by everyone in this country. That is a precious right which the law will usually defend. See Council of the Shire of Ballina v Ringland, unreported, Court of Appeal (NSW), 25 May 1994. There is another precious right which is at stake in these proceedings. It is the right of an accused person to a fair trial, on most serious charges now brought against him. It is a right to have that trial conducted before a jury and with witnesses uninfluenced by relevant matters which have been published and which may adversely affect that right of fair trial. The right to fair trial is one which inheres not only in the accused but in the community. It is a basis for the community's general acceptance of jury verdicts affecting the liberty of accused persons. It is the duty of this Court to defend this right to fair trial. It will do so, in a case such as the present, where the requisite preconditions have been established. The test to be applied is whether "as a matter of practical reality" the publication of the photograph has "'a tendency to interfere with the due course of justice in a particular case". See John Fairfax and Sons Pty Ltd v McRae (1954) 93 CLR 351, 370. The court must be satisfied that there is a "real risk that the material alleged to be a contempt will interfere with the administration of justice in pending proceedings". See The State of Victoria and Anor v The Australian Building Construction Employees' and Builders' Labourers' Federation (1982) 152 CLR 25, 60. The modern exposition of the test is whether "a particular publication presents a real risk of serious prejudice to a fair trial, ie serious injustice". See Hinch v Attorney-General for the State of Victoria (1987) 164 CLR 15, 27. What is involved is real risk not mere fanciful speculation. Carl Zeiss Stiftung v Rayner and Keeler Ltd and Ors (No 2) [1967] 1 AC 853; [1966] 2 All ER 536 (HL). IT IS NOT NECESSARY TO ESTABLISH AFFIRMATIVELY THAT IDENTITY WILL BE IN ISSUE AT TRIAL I turn to the arguments for Time. As to the first, it has not been demonstrated to be the law that, to secure relief in circumstances such as have been presented in this case, the Attorney-General must demonstrate affirmatively that identity will be in question in the trial of an accused person. A moment's reflection will show why that could not be the law. The Attorney-General may not know, at the time of a threatened or actual publication, what the defence of the accused person will be, if any. The accused cannot be required, certainly at this very early stage of proceedings, to present or even to outline his defence. Therefore, it is against the risk that identity MIGHT at some future time arise as an issue in a criminal trial that relief is granted by the courts in cases such as the present. Since the development of photography and its use in the news media (and the later development of film, television and video) a long series of decisions, both in England and in this country, have made it plain that, to publish a photograph of photographic image of an accused person prior to the person's trial, may WHER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v TIME INC MAGAZINE COMPANY PTY LTD (Kirby P) constitute contempt of court in the sense of interference in the due administration of justice. So much was held by Lord Hewart CJ in The King v Daily Mirror and Ors; Ex parte Smith [1927] 1 KB 845 (DC). That decision was accepted as a correct statement of the common law in this State by Jordan CJ in Ex parte Auld; Re Consolidated Press Ltd and Anor (1936) 36 SR (NSW) 596 (FC). It was reaffirmed by a unanimous Full Court in Attorney General for New South Wales v Mirror Newspapers Ltd (1961) 62 SR (NSW) 421 (FC). It was applied most recently in Attorney-General for New South Wales v Channel Nine Pty Ltd (1990) 20 NSWLR 368 (CA). In the last mentioned case at 381 the Court, comprising Gleeson CJ, Priestley JA and myself, in a unanimous opinion said: "The publication of a picture of an accused person is ordinarily regarded as carrying a risk of interference with the due course of justice, unless one can rule out the possibility of any dispute of identification. " The decision in Ex parte Auld was referred to and relied upon. The cases deny that affirmative proof that identity is, or will be, an issue at the time of the publication must be established by the Attorney-General. See for example Ex parte Smith, at 850; Re Auld, at 597; Attorney General v Mirror Newspapers, at 427 and the passage in the Channel 9 case just quoted. If anything, over the sixty-five years since the problem of pre-trial publication of pictures of an accused first presented itself to the higher courts, statements of the principle have become even more emphatic. See for example Regina v The Australian Broadcasting Corporation and Ors [1983] Tas R 161 (SC). It is enough that identity might be in question. That possibility can rarely, if ever, be excluded in a serious charge such as murder. To escape the operation of the rule, it is necessary for the Court to be satisfied that the possibility of any dispute as to the risk of identification can be ruled out. Many criminal cases go to the highest courts on the dangers and suggested inadequacies of identity evidence. The rules on such evidence in this country are, and in my opinion rightly, most stringent. See eg Domican v The Queen (1992) 173 CLR 555. In these circumstances the first submission of Time must be rejected. THE PUBLIC INTEREST IN THE CASE ALONE MAY NOT WARRANT THE PUBLICATION As to the second argument, it is not the case that this is a publication in which there is discussion on a matter of public interest which happens to overlap a matter which is before the courts. That was the issue being dealt with by Mason CJ in Hinch v The Attorney-General for the State of Victoria (1987) 164 CLR 15. It is noteworthy that, in Hinch, Mason CJ at 28 specifically approved, in the course of his reasons, the decision of the Full Court of this State in Auld. He did not qualify the rule which is there stated and which has frequently been applied since. See also Hinch at 72. Nor do I believe, at least in the way in which the matter has been argued and to the degree of satisfaction required for the relief which is immediately sought, that the Constitution or any right of free communication which is implied in it, diminishes the right of the accused to fair trial which the courts must protect. That right appears to be just as much a part of the fabric of the law which the Constitution defends through its judiciary as that which it establishes or assumes to be the right of free communication. The second argument of Time must therefore, also, be rejected. THE ORDERS, IF MADE, WOULD NOT BE FUTILE 6 UNREPORTED JUDGMENTS As to the third argument, I cannot agree that the orders which are sought by the Attorney-General in this case would be futile if made. I would be loath to assume that this Court is without an effective remedy to defend its process in circumstances such as have arisen in this case. In any case, O.1 as sought would, at the least, deal with the copies of the issue of Who Weekly which were returned to Time. On the evidence before the Court, there are many such returns. The order sought would also cover any resale of the photographs of the accused, for example by the sale of plates, prints or even of the edition of the issue in question from which copies could be taken by other local or overseas media interests. O.2 would not, it is true, ensure that all copies of Who Weekly would be retrieved in fact. However, it would ensure that Time took all steps in its power to secure retrieval. This might doubtless involve arrangements through its distributor, Gordon and Gotch Pty Ltd, and possibly through direct contact with newsagents, supermarkets or their representative bodies to retrieve the issue in question. It might involve further steps of the kind to which I will later refer. The fact that entire success could not be secured does not establish that the provision of the relief sought would be a futility. It would not be. At the very least, the orders, once made, would uphold the legal rule long established in this country defensive of the right to fair trial. It would possibly prevent the issue in question, with the photographs of the accused, getting to the notice of potential jurors, or of witnesses, with the inherent risk to the accused's fair trial. I would therefore reject the substantive arguments of Time. SUBSIDIARY MATTERS The balance of the arguments in the Court were addressed to seven subsidiary questions: 1. TAKING OF ALL STEPS IN ALLEGED CONTEMNOR'S POWERS: It was urged that the terms of O.2, if made, should be amended to limit the obligation to take all steps as were "reasonably" necessary. I would reject that argument. The steps to be taken should be resolute and vigorous. They should be required to the full extent of Time's power: such is the value placed by the courts on the protection of the integrity of their process; 2. CROWN'S OBLIGATION TO GIVE UNDERTAKINGS AS TO DAMAGES: It was then argued that the Crown should be required to give an undertaking as to damages as a price for securing the relief claimed. The law on this matter is not entirely clear. Such an undertaking was required of the Crown in right of the Commonwealth in The Commonwealth of Australia v John Fairfax and Sons Ltd and Ors (1980) 147 CLR 39 at 59f. However, the order made in that case appears to have rested, in part at least, upon the language of the provisions of the Judiciary Act 1903 (Commonwealth). The equivalent provisions of the Crown Procedures Act 1988 s5 and s9 are not identical to those of the Federal Act. The State Act appears to return the matter to be determined according to the relevant position at common law. At common law, the Crown as not, at least ordinarily in the practice of this Court, required to give an undertaking as to damages when it was seeking, through the Attorney-General, to uphold the due administration of justice. Yet I must accept that the modern position of the law on this matter is uncertain. See eg Meagher, Gummow and Lehane, Equity Doctrines and Remedies (3rd ed) 653 and see also F. Hoffman-La Roche and Co AG and Ors v Secretary of State for Trade and Industry [1975] AC 295 (HL) at 362. It is enough to say, in this case, without finally determining the question for all future cases, that I would not require that the Crown give an undertaking as to damages as the price for the issue of the injunction sought; WHER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v TIME INC MAGAZINE COMPANY PTY LTD (Kirby P) 3. EXISTENCE OF OTHER PICTURES OF THE ACCUSED: An exhibit was tendered being an edition of The Age newspaper, published in Melbourne and bearing date 1 June 1994. The front page of that newspaper carried a coloured representation by sketch purporting to show the face of the accused. It is true that there is some similarity between the sketch and the photograph on the cover of Who Weekly. However, the publisher of The Age is not before the Court. Furthermore there is, as it seems to me, a great difference between a photographic representation of an accused person and a drawing. As well, The Age newspaper is distributed mainly in Melbourne and not, therefore, mainly in the catchment area from which the jurors for the accused's trial will be taken and which, as it may be inferred, is the place where many or most of the witnesses live; 4. RELEVANCE OF OTHER DISTRIBUTORS: A matter raised by the Court was whether, being made aware of the role of Gordon and Gotch Pty Ltd in the actual distribution of the issues of Who Weekly, and mindful of its duty to defend the administration of justice, the Court should not issue temporary orders to that company requiring it also to take all steps within its power to prevent further distribution and to retrieve the issues already distributed by it. I do not doubt the power of the Court to make such an order ex parte. However, as the Attorney-General did not join that company in his process, I would, at this stage, refrain from making orders against Gordon and Gotch Pty Ltd in their absence. Any further application as is proved to be necessary can be returned before the Court with expedition. The Court can then act with resolution where the legal requirements establish that it is necessary for it to do so in order to defend the right of every person and of the community to have a fair trial of serious criminal charges. That right is one of the most precious features of our form of society. It is upheld by the international principles of human rights. See eg the Universal Declaration of Human Rights, Arts 10, 11; International Covenant on Civil and Political Rights, Arts 14, 15. Is upheld by the common law. It will be resolutely enforced by this Court; 5. Irremovable stickers over the photographs: At the end of argument it was suggested by senior counsel for Time that, if orders were made, there should be added to the orders which are to be made by the Court, the following provisos. They were put forward without admissions upon the basis that they afforded the best means of ensuring a practical result which would assist in attaining the essential purpose of the orders sought by the Attorney-General. The proposed proviso to O.1: "Provided that it shall not be a breach of this order if the opponent hereafter sells copies of Who Weekly dated 13 June 1994 to which irremovable plain black adhesive stickers are affixed over each of the photographs in that magazine depicting the face of Mr Ivan Milat so as to render his face invisible." The proposed proviso to O.2 reads: "Provided that it shall be a compliance with this order if; but only to the extent that, the opponent procures that irremovable plain black adhesive sticks are affixed over each of the photographs in that magazine depicting the face of Mr Ivan Milat so as to render his face invisible. " It is not for the Court to instruct or advise a party, the subject of an order, how it must comply with orders of the nature of the injunctions which the Attorney-General here seeks. The Attorney-General does not oppose the addition of the provisos. Indeed, his counsel conceded that they might provide, if truly irremovable adhesive stickers could be secured and attached, a practical means of reducing the damage which, it is asserted, the publication of the journal with 8 UNREPORTED JUDGMENTS the photographs of the accused, had caused and would continue to cause. I would, therefore, be disposed to add the provisos to the orders which I will shortly propose; 6. LIMITATION OF THE DURATION OF THE INJUNCTIONS: The orders as sought were in general terms and without limitation as to their duration. As I previously stated, no summons is yet before the Court which charges Time with contempt of court. However, such a summons is promised shortly. It is appropriate to make provision that the orders sought should extend until 20 June 1994. On that date it would be the contemplation of the Court that the summons promised by the Attorney-General making the substantive charges, if by then filed, will be retuned before the Court. I will so propose; 7. COSTS: In the third order sought in the summons the Attorney-General asked for the costs of these proceedings. It appears appropriate at this stage simply to reserve the orders as to the costs so that they may be disposed of in due course when the interlocutory summons, perhaps in conjunction with the substantive proceedings, is finally disposed of by the Court. ORDERS The orders which I therefore propose, for the foregoing reasons, are: 1. Order that the opponent, itself, its servants and agents be restrained from further publication, distribution, circulation or other dissemination of photographs of Ivan Robert Marko Milat in the edition of Who Weekly dated 13 June 1994, or otherwise, provided that it shall not be a breach of this order if the opponent hereafter sells copies of the said edition of Who Weekly dated 13 June 1994 to which irremovable plain black adhesive stickers are affixed over each of the photographs in that magazine depicting the face of Mr Ivan Milat so as to render his face invisible; 2. Order that the opponent itself, its servants and agents forthwith take all steps within its power to retrieve all copies of Who Weekly magazine dated 13 June 1994 published, distributed, circulated or otherwise disseminated by it and retain them within its custody and control provided that it shall be a compliance with this order if, but only to the extent that, the opponent procures them, that irremovable plain black adhesive stickers are affixed over each of the photographs in that magazine depicting the face of Mr Ivan Milat so as to render his face invisible; 3. Order that the orders numbers 1 and 2 remain in force until 20 June 1994 at 4 p.m. or until further or other order of the Court or of a Judge of Appeal; 4. Grant liberty to either party upon one day's notice to the other to restore the matter to the list for further or other orders of the Court; and 5. Reserve the costs of these proceedings. In parting with the proceedings, I would only add this. It is inevitable that the publication of Who Weekly, which will be the subject of the orders which I have just proposed, will become well known in the community. There may be a temptation in other publishers, relying upon the publication in Who Weekly to reproduce the photograph of the accused Mr Ivan Milat. To any person who is subject to such temptation it is unnecessary to refer further to the stringency of the law of contempt which this Court enforces. But it is appropriate to call attention to Mr Milat's right to a fair trial. He is a citizen of this country. He is at present in custody. The gravity of the charges against him emphasises the vital need for a fair trial. He has that right by ancient law. It is a right which the courts of this country will defend and enforce. We do not have trial by or in the media in this country. We have trial by the courts and by jurors summoned without WHER MAJESTY'S ATTORNEY-GENERAL IN AND FOR THE STATE OF NEW SOUTH WALES v TIME INC MAGAZINE COMPANY PTY LTD (Kirby P) contamination of prejudicial or distracting information and upon the evidence of witnesses who should not be influenced in what they say by material which is placed before them in the media. In making these closing remarks I mean no prejudgment of any final issue that will be returnable before the Court should Time be prosecuted for contempt of court. The remarks are made simply to remind those who may have the power to make decisions in this regard of the importance of the right of fair trial. It is an element of a civilised society as we in Australia have understood it. It is a right which not only Mr Milat enjoys but which is a precious feature of the rights of every other individual in this country. The seriousness with which we treat that right is tested in a case where it is invoked to protect the fair trial of an accused whose alleged crimes are already notorious and of high media interest. I propose the orders which I have indicated. Handley JA I agree. I would only add for myself that the right to a fair trial is also a right enjoyed by the Crown as representing our community, a right which it has to see that in appropriate cases a person who is in fact guilty can be properly convicted according to law as a result of a trial which complies with all the protections which our law offers and which can stand appellate scrutiny. I have nothing further I wish to add to the remarks of the President. Sheller JA I also agree. In particular I agree with the closing remarks of the President and would myself ask and hope that any other party minded to publish photographs of the accused give consideration to the potential injustice to the community and to the accused that this may cause. I agree with the orders proposed by the President. KIRBY P: Is there any further submission before I finally pronounce the orders which I have indicated? MR HUGHES: No. MR SEXTON: No. Kirby P They, then, are the orders of the Court. 1. Order that the opponent, itself, its servants and agents be restrained from further publication, distribution, circulation or other dissemination of photographs of Ivan Robert Marko Milat in the edition of Who Weekly dated 13 June 1994, or otherwise, provided that it shall not be a breach of this order if the opponent hereafter sells copies of the said edition of Who Weekly dated 13 June 1994 to which irremovable plain black adhesive stickers are affixed over each of the photographs in that magazine depicting the face of Mr Ivan Milat so as to render his face invisible; 2. Order that the opponent itself, its servants and agents forthwith take all steps within its power to retrieve all copies of Who Weekly magazine dated 13 June 1994 published, distributed, circulated or otherwise disseminated by it and retain them within its custody and control provided that it shall be a compliance with this order if, but only to the extent that, the opponent procures them, that irremovable plain black adhesive stickers are affixed over each of the photographs in that magazine depicting the face of Mr Ivan Milat so as to render his face invisible; UNREPORTED JUDGMENTS 3. Order that the orders numbers 1 and 2 remain in force until 20 June 1994 at 4 p.m. or until further or other order of the Court or of a Judge of Appeal; 4. Grant liberty to either party upon one day's notice to the other to restore the matter to the list for further or other orders of the Court; and 5. Reserve the costs of these proceedings. Counsel for the claimant (Attorney-General): MG Sexton Instructed by: HK Roberts, State Crown Solicitor Counsel for the opponent (Time Inc): TEF Hughes QC and JE Sexton Instructed by: Allen Allen and Hemsley