Chapter 7

The issue of documentary evidence is given extended attention in a section of the Report headed, "Post-accident conduct of Air New Zealand" which is exclusively concerned with suggestions of possible items that might have been withheld from the Inquiry. The discussion is introduced at paragraph 342 by a statement that "This instruction by the chief executive for the collection of all Antarctica documents had some unfortunate repercussions". The observation is then developed by reference in particular to the work of Captain Gemmell, the technical flight manager for Air New Zealand, while assisting Mr Chippindale at the crash site.

Captain Gemmell had received instructions in the early hours of the morning of 29th November 1979 to travel to McMurdo in order to assist Mr Chippindale's investigation into the cause of the accident at the scene. However, by reason of weather conditions it was not possible for him to be taken by helicopter to the ice slope until 3 p.m. on 2nd December. Then, clad in protective clothing and roped to mountaineers, he assisted in a search for the in-flight recording equipment (consisting of the cockpit voice recorder and the "black box") and the recovery of any other equipment or documents which might indicate how the accident had happened.

Three days earlier, at about 8.30 a.m. on the very morning after the accident, three mountaineer staff members at Scott Base had managed to get there in order to search for survivors. And Mr Woodford, who was one of them, has described the scene in a letter received by the Royal Commissioner during the public hearings. The letter, which is amplified in a affidavit put before this Court, is set out later in this judgment. Mr Woodford explained that when he got to the scene he found a black flight bag with Captain Collins' name printed on it. It was lying open on the snow and it was empty. Already material in the form of books and papers that had not been destroyed when the aircraft disintegrated on impact had been blown by winds over the ice-slope or into crevasses or covered by drifting snow. He pointed out that although the cockpit voice recorder had been located quite quickly when he was back at the crash site with the party from New Zealand on 2nd December the "black box" could not be found until later that evening after it had been decided to begin digging systematically for it. It was found buried under snow at a depth, he said, of 20 to 30 cms.

But although the bag was empty it was suggested at the hearing that while at McMurdo Captain Gemmell might have "collected a quantity of documents from the crash site and brought them back to Auckland"; that only three of the flight documents carried on the aircraft had been produced to the Royal Commission; that it was "curious" to find that each favoured the case "which the airline was now attempting to advance"; and all this against counsel's theory that before Captain Gemmell had left Auckland on 29th November he was aware of possible problems associated with the amendment to the destination point co-ordinates. Captain Gemmell flatly denied having that knowledge while in the Antarctic; and he rejected totally any suggestion that he had recovered anything from the site which had not been passed across in terms of Mr Chippindale's instructions. In that regard he answered two propositions put to him by the Commissioner (at page 1834) in the following way:

"Well the suggestion may be made to me in due course that because of the discovery that Capt Collins did not know of the alteration in the nav track consequently someone in the co. would have been instructed to locate whatever documents there were on the crash site and elsewhere that might throw light on that question. You say that no such instruction was given to you.... Certainly not.

But it would have been a reasonable instruction would it not.... No it would not have."

Intimidation of a Witness

At this point it is necessary to mention a different suggestion which was also rejected by Captain Gemmell. It was put to him during cross-examination that he had carried back from McMurdo a blue plastic envelope containing personal property recovered from the accident site. In evidence given later by First Officer Rhodes the envelope was supposed to have been entrusted to Captain Gemmell by Mr Chippindale for delivery in New Zealand since Captain Gemmell was about to depart from the base several days before the others. First Officer Rhodes had himself been in Antarctica as a member of Mr Chippindale's investigation team, representing there the Airline Pilots Association. He appeared as a witness before the Royal Commission on two occasions. During his first appearance he was called by the Association. He did not refer then to a blue envelope; but because it was thought that the material may have been mentioned by him to the Association's counsel he was recalled to give evidence, this time by counsel for the airline.

Before turning to the evidence given by First Officer Rhodes during his second appearance it is worthwhile making a preliminary comment. No complaint has ever been made by Mr Chippindale about a missing blue envelope or papers within it. If Captain Gemmell had been entrusted with such a mission which he had failed to discharge Mr Chippindale would seem to be the first person who would want to know why. He himself gave evidence before the Royal Commission for a period of ten days and during all that time he was never asked about this matter. Nor was he recalled to deal with it after it had been raised with Captain Gemmell or after First Officer Rhodes gave his further evidence. That fact alone might be thought sufficient to dispose of the matter. And in the end the Commissioner himself decided that neither this nor other evidence could justify a finding against Captain Gemmell that he "recovered documents from Antarctica which were relevant to the fatal flight, and which he did not account for to the proper authorities".

It is necessary to describe all this because the second appearance of First Officer Rhodes resulted in a finding in paragraph 348 of the Royal Commission Report which reflects seriously upon the conduct of another executive officer of the airline, Captain Eden. The paragraph is another of those challenged in the present proceedings.

It seems that First Officer Rhodes agreed to give evidence on the second occasion in order to remove any false impression that he himself doubted the integrity of Captain Gemmell. The following extract from the transcript explains the position (a condensed version appears in paragraph 347 of the Report):

"You've already given evidence and stated your qualification. I think you have offered to give some supplementary evidence relating to activity at the Erebus crash site ... Our discussion with Capt. Eden last Friday indicated this would be appreciated.

I think just as Capt. Gemmell was there representing the co. you were there as a rep. of ALPA.... Thats correct.

May we take it that you worked in conjunction with Capt. Gemmell and other members of the team involved.... Correct.

And in so doing you were present at the crash site with Capt. Gemmell.... No we had different tasks as I was in the area with Capt. Gemmell at some stages.

So far as your observations are concerned what would you have to say regarding Capt. Gemmell's conduct and behaviour in the course of his duties there.... I have no reason to doubt Capt. Gemmell in any way shape or form.

Have you ever suggested otherwise to anybody.... I have not."

Then he was cross-examined by counsel for the Association whose witness he had been earlier. He was asked about Captain Gemmell's work at the actual scene of the disaster and his explanation about that matter is reflected in the following question and answer:

"Did you see Capt. Gemmell at any time in the cockpit area or thereabouts working on his own.... I qualified that before. Working on your own is a relative term. At all stages there would be somebody adjacent for your own safety and well-being. I did not at any stage see Ian Gemmell Capt. Gemmell or Ian Wood or David Graham in total isolation in any part of the wreckage."

Then there is mention of material that may have been returned by Captain Gemmell to New Zealand--

"You heard question the other day concerning Capt. Gemmell returning from McMurdo with an envelope containing property can you tell us about that.... At the stage that Capt. Gemmell was returning to N.Z. he was asked by the Chief Inspector of Accidents if he would return to N.Z. with one or more envelopes I cannot recall how many containing photos and perhaps other information to be used in the conduct of the inquiry at a later date but specifically at that early date the intention was for Capt. Gemmell to brief the Minister and the Dir. of CAD and senior execs, of Air N.Z. as to what had transpired at that early date in the investigation. As Mr Chippindale would be staying in the Ant. and the remainder of his team would be with him or else in the US.

What about private property.... The envelopes which Capt. Gemmell return to N.Z. with may have contained some documentation from the crash site which was beginning to return in significant quantities from the various people on the crash site including the police."

The following portion of the cross-examination then refers to documents described as "the technical crews flying records, the collection of log books, licences and other relevant documentation". He said that at first there was reluctance on the part of Air New Zealand to release this material "as it was not clear at that stage in many peoples minds what my duties were". It was not immediately appreciated that he was acting on Mr Chippindale's behalf. He was then asked--

"And Air N.Z. and Capt. Gemmell released to you the material which you'd previously sought.... Correct".

Concerning all this evidence the Commissioner expressed the following conclusions in paragraph 348:

"Captain Eden is at present the director of flight operations for the airline. He appeared in the witness box to be a strong-minded and aggressive official. It seemed clear from this further production of First Officer Rhodes as a witness that it had been suggested to him by Captain Eden that he should either make a direct allegation against Captain Gemmell or else make no allegation at all, and that since First Officer Rhodes seemed to have no direct evidence in his possession, he was therefore obliged to give the answer which Captain Eden had either suggested or directed. However, First Officer Rhodes was not entirely intimidated because as will be observed from the evidence just quoted, he insisted on saying that Captain Gemmell had brought an envelope containing documents back to Auckland."

Those statements are in no way related to the assessment of Captain Eden's evidence or as Captain Eden as a witness. They are observations that Captain Eden had attempted to influence or direct the evidence to be given by First Officer Rhodes by a process of intimidation. Counsel for First Officer Rhodes' own association had made no suggestion to that effect. Nor is there any hint by First Officer Rhodes himself that he was present as anything but a voluntary witness. The answer he gave to the opening question would not seem to support suspicions of intimidation. And that answer is itself followed by quite a generous tribute to Captain Gemmell. But the reputation of Captain Eden and the support given Captain Gemmell is dismissed by a finding of intimidation. It should be said as well that although Captain Eden himself appeared to give evidence three days later not a word was said to him by anybody to suggest that earlier he had been guilty of attempting to intimidate a witness.

Specific documents

To the extent that the Royal Commission Report has pointed to any particular classes of documentary material that did not reach the Inquiry the list is not a long one. It comprises--

1. Unidentified papers within the blue envelope--No complaint about this was ever made by Mr Chippindale as we have mentioned.

2. Papers given to First Officer Cassin as briefing material--It has been explained that if any complaint could be made about this matter it would affect Captain Crosbie, the unnamed "employee of the airline" referred to in paragraph 52. It was he who went to the Cassin home for compassionate reasons as the spokesman for the Airline Pilots Association. He denies ever receiving the material. Even if he had, the Report has not challenged the conduct of any of the line pilots. This matter would seem to be irrelevant.

3. Documents or papers that may have been shredded by Mr Oldfield following the decision of the in-house committee which met during the week beginning 3rd December 1979--This matter requires no further discussion.

4. Pages within the cover of a ring-binder notebook of Captain Collins--This matter too was handled by Captain Crosbie. However, it requires some specific mention because in paragraph 352 it has been associated with Captain Gemmell and as all counsel now acknowledge this has been done in error. The paragraph is one of the specific paragraphs challenged by these proceedings.

5. Briefing or other flight documents (including a New Zealand Atlas) taken onto the aircraft within Captain Collins' flight bag; and similar papers within a flight bag owned by First Officer Cassin--This matter also requires discussion.

The Ring-binder Notebook

The Commissioner found that Captain Collins carried with him on the fatal flight a small pocket diary usually kept in his breast pocket; and a ring-binder losse-leaf notebook carried in his flight bag. It is said in paragraph 351 "that the chief inspector had obtained possession of the small pocket diary, but it did not contain any particulars relating to Antarctica flights". At the hearing Mrs Collins described the diary and said that on 12th December 1979 Captain Crosbie had returned it to her together with certain other items of personal property belonging to her husband. She explained that there were no pages in the ring-binder when she received it "other than some loose papers which are still folded inside the front cover". The question arose as to what had happened, to the balance of the contents of the notebook. Captain Crosbie himself was called by counsel for the Airline Pilots Association to give evidence before the Commission. He explained that his involvement in all post-accident matters was as a welfare officer for the association; and in that capacity he had been given by the police personal property for distribution to next-of-kin. When asked about pages which normally would have been within the ring-binder covers he said that most of the recovered items had been damaged considerably by water and kerosene, and in answer to the Commissioner, who had asked "How could the ring-binder cover itself be intact and yet the pad of writing paper disappear?", he said, "I suggest the cover survived the water and kerosene but the paper contents didn't". He added in answer to questions by counsel--

"If papers were removed from the ring binder who would have done that.... I would have myself I presume.

Do you recall doing that.... No not specifically. I was involved in destroying a lot of papers that were damaged and would have caused distress some because of that and some because it was the obvious thing to do."

As a further sample of the kind of material that might have been provided by the criticized officers had they been given the opportunity we were referred to a signed statement by Captain Crosbie forwarded to the police (who by then were investigating the allegations of conspiracy) on 5th May 1981. In the statement he has said after he had given evidence before the Inquiry he recalled that because of the poor condition of the notebook and severely damaged paper inside it and "rather than present this to Mrs Collins" he had disposed of the pages himself. Then having cleaned the cover he dried it in the sun and returned it to Mrs Collins. It would seem to be an understandable reaction although once again the effect this kind of material might have had if it had been put forward is not for us to assess. In any event, concerning this matter the Commissioner said in paragraph 352--

"As to the ring-binder notebook, it had been returned to Mrs Collins by an employee of the airline, but all the pages of the notebook were missing. _Captain Gemmell_ was asked about this in evidence. He suggested that the pages might have been removed because they had been damaged by kerosene. However, the ring-binder notebook itself, which was produced at the hearing, was entirely undamaged." (Emphasis added.)

It is clear that the Commissioner has wrongly attributed the explanation given by Captain Crosbie concerning the removal of missing pages to Captain Gemmell. The latter was never questioned at all about possible reasons for the missing pages. The fifth and sixth respondents have formally acknowledged that the reference to Captain Gemmell in that paragraph is wrong.

Contents of Flight Bags

It has been explained that the Commissioner was satisfied that Captain Collins had used the New Zealand Atlas to plot the last leg of the flight path from Cape Hallett to McMurdo and may have used a chart of his own for the same purpose. In addition there were his briefing documents and those received by First Officer Cassin. Those received by the latter have been discussed. The Commissioner held that they had not been taken aboard the aircraft. But he was concerned with whatever else may have been carried onto the DC10 by First Officer Cassin in his flight bag; and about the contents of Captain Collin's flight bag which he believed would include the atlas and briefing documents. In fact the only evidence concerning the possible survival of the first officer's flight bag, let alone its contents, was a name-tag which finally reached Mrs Cassin through Captain Crosbie, the welfare representative. Since there is no description of the contents and it has been held that the briefing material was left behind anyway, the fate of the bag itself would seem to be immaterial.

On the other hand it is known that after the accident Captain Collins' bag was seen on Mt. Erebus. The matter has been mentioned. The bag did not reach his widow as it would normally have done if it had been received and returned to New Zealand and this fact is the focus of attention in the Royal Commission report.

In order to examine the matter it will be remembered that the mountaineer, Mr Woodford, arrived by helicopter searching for survivors on the morning of 29th November. In the letter he sent to the Royal Commission he said he found the bag then and: "My recollection is that it was empty when I first inspected it. It certainly contained no diaries or briefing material." Apparently the bag had been thrown from the disintegrating aircraft at the time of impact and its contents lost in the snow or scattered by winds before the arrival of the mountaineers. But whatever the reason for their absence from the bag it is the contents that matter in this case--not the flight bag itself. And according to the letter they had already disappeared from the bag three days before the New Zealand party arrived there. So like the bag of First Officer Cassin it might be thought that this item too was immaterial. However, it is discussed by the Commissioner in the following way.

First there is listed a series of documents "which clearly had been carried in the flight bag of Captain Collins" and which had not been recovered. The items comprise the New Zealand Atlas and a chart; the briefing documents; and the ring-binder notebook. Those three items have been mentioned. And finally a topographical map issued on the morning of the flight. The suggested significance of these various documents is explained by reference to the view of counsel for the Airline Pilots Association that they "would have tended to support the proposition that Captain Collins had relied upon the incorrect co-ordinates" (paragraph 344).

There follows reference to the blue envelope and the matter of Captain Eden after which paragraph 349 speaks of the flight bag:

"Then, as the Inquiry proceeded, there were other queries raised. It seemed that Captain Collins' flight bag had been discovered on the crash site. It was a bag in which he was known to have carried all his flight documents. It was said to have been empty when found, a fact which was incidentally confirmed by a mountaineer who had seen the flight bag before Captain Gemmell arrived at the crash site. The flight bag was rectangular, and constructed of either hard plastic or leather, and had the name of Captain Collins stamped on it in gold letters. It was evidently undamaged."

There is mention as well of First Officer Cassin's flight bag and the ring-binder notebook (both of which matters have now been discussed) and then it is said in paragraph 353 that after the taking of evidence the Commissioner asked counsel assisting the Commission to make inquiries about the two flight bags "which had been located on the site but which had not been returned to Mrs Collins or Mrs Cassin".

It appears from the following paragraph 354 that among others interviewed by counsel or asked for comment upon this matter were Mr Chippindale (the chief inspector of air accidents), and the senior sergeant of police who had been in charge of the property collected from the crash site when it was brought to McMurdo. It is said in that paragraph that the police officer--

"... recollected either one or two flight bags among other property awaiting packing for return to New Zealand. He said that personnel from Air New Zealand had access to the store, as well as the chief inspector, and the senior sergeant said that he thought that he had given the flight bags to the chief inspector and that the chief inspector was the sole person to whom he had released any property. The chief inspector was then interviewed on 11 December 1980 by telephone, being at that time in Australia, but he said that no flight bags were ever handed to him."

Thus the inquiries that were made in this fashion were inconclusive. However, the Commissioner was satisfied that--

"The two flight bags were lodged in the Police store at McMurdo and would have been returned in due course to Mrs Collins and Mrs Cassin by the Police. But they were taken away from the store by someone and have not since been seen." (Paragraph 359 (1))

Then in the same context he said in sub-paragraph 359 (4):

"Captain Gemmell had brought back some quantity of documents with him from Antarctica, and certain documents had been recovered from him by First Officer Rhodes on behalf of the chief inspector."

And then--

"It therefore appears that there were sundry articles and perhaps documents which had been in possession of the aircrew which came back to New Zealand otherwise than in the custody of the Police or the chief inspector" (paragraph 360).

In evidence Captain Gemmell had denied knowledge of the change that had been made to the McMurdo waypoint but the Commissioner did not accept that answer; and he is linked with the matters mentioned in paragraph 360 on the basis that he had known "about the changed co-ordinates before he went to Antarctica" and that because he--