CIVIL AVIATION AUTHORITY v AUSTRALIAN BROADCASTING CORPORATION [No 1] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY P, HANDLEY and SHELLER JJA 9 June 1994, 9 June 1994 [1994] NSWCA 51 EVIDENCE — admissibility — relevance — contempt hearing — alleged tendency of broadcast to interfere in administration of justice — alleged pre judgment of Coroner's finding as to plane crash — tender of crash _ investigator's contemporaneous notes — objection to tender — held: Evidence admissible. ORDERS 1. Opponent permitted to read affidavit; and 2. Tender of notes of Mr Nigel Clarke admitted. Kirby P Before the Court is a prosecution of the Australian Broadcasting Corporation (the opponent) for contempt of court. The prosecution has been brought, by summons, by the Civil Aviation Authority (the claimant). The Court is now hearing the trial of the prosecution. The question which now arises for decision concerns in the tender of certain evidence. Evidence has been tendered in the form of an affidavit of Mr Nigel Clarke sworn 27 May 1994, which the opponent seeks to read. Mr Clarke will be a witness before the Coroner in an inquest to investigate the same plane accident (and the deaths thereby occasioned) as was the subject of the opponent's broadcast. Mr Clarke's evidence is relevant to the circumstances of the crash. He is a maintenance engineer. Prior to the crash, he conducted an inspection of the subject aircraft. When he did so, he made notes of his inspection. Those notes are annexed as Exhibit A to Mr Clarke's affidavit. The opponent now seeks to place them before the Court. Objection is taken to the reading of the affidavit and tender of the notes. The objection is based upon the ground that they are not relevant to the proceedings before the Court or any matter which may arise in the proceedings before the Court. The Court has the advantage of the written outline of the submissions which will be made on behalf of the opponent. In those submissions, the opponent contends that the broadcast could not, as a matter of practical reality, affect a witness or potential witness in proceedings before the Coroner. The argument is put that, if that tendency or effect is relevant to interference with the administration of justice in a contempt charge, it can be answered in this case by the fact that Mr Clarke is unable, or at least very unlikely, to be affected, because he recorded the central matters of his findings in the written notes which are exhibit A to the affidavit. Not having heard the full argument, the Court is not, at this stage, able to rule on whether the effect of the subject broadcast upon a witness, or potential witness, is a matter relevant to the charge. It is at least arguable - as it seems to me - that the affidavit, and the notes annexed to it, will be relevant to the opponent's case in defence of this aspect of the charge. At least I would so hold upon the understanding which I have, at this stage, of the matters which will 2 UNREPORTED JUDGMENTS finally be in contest between the parties. I would therefore allow the affidavit to be read. The annexure to it should be admitted. Handley JA I agree. 5 Sheller JA I agree. Kirby P The Court so rules. 1. Opponent permitted to read affidavit; and 10 2. Tender of notes of Mr Nigel Clarke admitted. Counsel for the Claimant: RV Gyles QC / GO'L Reynolds Instructed by: Westgarths 15 Counsel for the Opponent: MG Sexton / C Millard Instructed by: Michael Martin