Part 2

These paragraphs occur in the context of a discussion of the change in the computer waypoint shortly before the flight and the failure to draw it to the attention of the flight crew. The reference to the chief executive having 'determined that no word of this incredible blunder was to become publicly known' is, taken by itself, at least an overstatement, because in paragraph 48 the Commissioner in effect qualifies it. He says there that it was inevitable that the facts would become known and 'perhaps' the chief executive had only decided to prevent adverse publicity in the meantime. Clearly the airline disclosed to the Chief Inspector that the change of more than two degrees of longitude had been made in the computer early on the day of the flight and not mentioned to the crew; these matters are referred to in paragraphs 1.17.7 and 2.5 of the Chief Inspector's report. They were matters which the Chief Inspector did not highlight; evidently he did not regard them as of major importance. For his part the Commissioner (in para. 48 of his report) states that the Chief Inspector did not make it clear that the computer flight path had been altered before the flight and the alteration not notified to the crew.

We are not concerned with whether or not the Commissioner's implied criticism of the Chief Inspector's report is correct. The complaint made by the applicants is that the criticisms of Mr Davis in the two paragraphs that we have set out are based on mistake of fact, not on evidence of probative value. It is also said that he was not given a fair opportunity to put his case in relation to such findings, but what the applicants most stress is the way in which the Commissioner dealt with the evidence.

In particular they point out that the evidence of Mr Davis, not contradicted by any other evidence and correctly summarised in paragraph 45 of the Commissioner's report, was that only copies of existing documents were to be destroyed; that he did not want any surplus document to remain at large in case its contents were released to the news media by some employee of the airline; and that his instructions were that all documents of relevance were to be retained on the single file. Their counsel submit in effect that in converting this direction for the preservation of all relevant documents into a direction for the destruction of 'irrelevant' documents--a word used by the Commissioner as if it were a quotation from Mr Davis--the Commissioner distorted the evidence. And it is said that the description 'one of the most remarkable executive decisions every to have been made in the corporate affairs of a large New Zealand company' is, to say the least, far-fetched.

Counsel for the applicants point also to the fact that there is no evidence that any document of importance to the inquiry was destroyed in consequence of the instructions given by Mr Davis. The gist of the contrary argument presented by Mr Baragwanath was that Mr Davis was fully cross-examined about his instructions; and that 'it was open to the Royal Commissioner to find that there were in existence documents which never found their way to that file and that the procedures were tailor made for destruction of compromising documents'.

Alteration of Flight Plan

Paragraph 255 (e) and (f), in numerical order the next passages complained of, refer to the fact that when the co-ordinates in the Auckland computer were altered a symbol was used which had the effect of including in the information to be sent to the United States air traffic controller at McMurdo Station the word 'McMurdo' instead of the actual co-ordinates (latitude and longitude) of the southernmost waypoint. The Commissioner said:

(e) When the TACAN position [a navigational aid at McMurdo Station enabling aircraft to ascertain their distance from it] was typed into the airline's ground computer in the early morning of 28 November 1979, there was also made the additional entry to which I have referred, which would result in the new co-ordinates not being transmitted to McMurdo with the Air Traffic Control flight plan for that day. It was urged upon me, on behalf of the airline, that McMurdo Air Traffic Control would consider the word 'McMurdo' as indicating a different position from that appearing on Air Traffic Control flight plans dispatched from Auckland during 1978 and 1979. I cannot for a moment accept that suggestion. First Officer Rhodes made a specific inquiry at McMurdo within a few days of the disaster and ascertained that the destination waypoint of the first Air Traffic Control flight plan for 1979 had been plotted by the United States Air Traffic Control personnel, and there was evidence from the United States witnesses that this would be normal practice. In my view the word 'McMurdo' would merely be regarded, and was indeed regarded, by McMurdo Air Traffic Control as referring to the same McMurdo waypoint which had always existed. In my opinion, the introduction of the word 'McMurdo' into the Air Traffic Control flight plan for the fatal flight was deliberately designed to conceal from the United States authorities that the flight path had been changed, and probably because it was known that the United States Air Traffic Control would lodge an objection to the new flight path.

(f) I have reviewed the evidence in support of the allegation that the Navigation Section believed, by reason of a mistaken verbal communication, that the altered McMurdo waypoint only involved a change of 2.1 nautical miles. I am obliged to say that I do not accept that explanation. There were certainly grave deficiencies in communication within the Navigation Section, but the high professional skills of the Navigation Section's staff entirely preclude the possibility of such an error. In my opinion this explanation that the change in the waypoint was thought to be minimal in terms of distance is a concocted story designed to explain away the fundamental mistake, made by someone, in failing to ensure that Captain Collins was notified that his aircraft was now programmed to fly on a collision course with Mt. Erebus.

These paragraphs are attacked on the grounds, in short, that the members of the navigation section said to be adversely affected by them--according to the applicants, Mr R. Brown as regards (e) and Messrs Amies, Brown, Hewitt and Lawton as regards (f)--were not given a fair opportunity of answering the findings or allegations.

To understand this complaint one needs a clear picture of what it was that the Commission found or alleged against the navigation section. When studying the report as a whole we have encountered difficulties in this regard, difficulties not altogether removed when we explored them during the argument with Mr Baragwanath. But our understanding is that in essence the Commissioner suggests that the original change of the southernmost point to one in the Sound, 25 miles west of McMurdo Station, was probably deliberate on the part of the navigation section (although he refrained from a definite finding) and that in November 1979 they deliberately made a major change back to the vicinity of McMurdo Station but deliberately set out to conceal the change from the American personnel there. The motive for the 1979 change ascribed by the Commissioner to the navigation section appears to be that they considered that the New Zealand Civil Aviation Division had only approved a route over Mount Erebus, yet at the same time that the American 'authorities' would object to that route, regarding the route down the Sound as safer. In short the theory (if we understand it correctly) is that the navigation section were in a dilemma as there was no route approved by all concerned.

Beyond argument, it would seem, there was slipshod work within the airline in the making of the change and the failure to expressly notify flight crews. But the allegations of deliberate concealment and a concocted story are another matter. The complaint is that they were never put squarely to the members of the navigation section. The Commissioner himself did put to the chief navigator, Mr Hewitt, that 'Someone may suggest before the inquiry is over' that the word 'McMurdo' was relayed to McMurdo to conceal a long-standing error in the co-ordinates. Mr Hewitt replied 'Certainly not, sir' and there, the applicants point out, the matter was left, without further questions to witnesses by anyone or any reference in counsel's final submissions.

On the other hand Mr Baragwanath urged in substance that the witnesses from the navigation section must have understood that their evidence was under suspicion; that they had ample opportunities to explain how and why any mistakes occurred; and that it was for the Commissioner to assess their explanations, taking into account any impressions they made on him individually as witnesses.

Captain Eden

First Officer Rhodes, an accident inspector, had been one of the party who went to the Antarctica very shortly after the crash. He was representing the Air Line Pilots Association as well as working with others in the party. When he first gave evidence at the inquiry he was called by counsel for the association. Apparently concern was felt by the airline that some of his evidence might be taken to reflect on Captain Gemmell (the Flight Manager, Technical, and former Chief Pilot) so First Officer Rhodes was recalled as a witness by counsel for the airline. He said that he had 'no reason to doubt Captain Gemmell in any way shape or form'. There was some cross-examination by counsel for the association but no reference was made to Captain Eden in any of the questions. The Commissioner said in paragraph 348 of his report:

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.

Exception is taken to that paragraph as making findings of intimidation against Captain Eden without any such allegation ever having been put to him. Captain Eden gave evidence later in the inquiry than First Officer Rhodes and the transcript shows that he was asked nothing by anyone about their discussion.

Captain Gemmell

The following paragraphs of the report are attacked for their references to this senior officer:

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.

353. After the evidence given before the Commission had concluded, I gave some thought to the matters just mentioned. I knew that the responsibility for recovering all property on the crash site lay exclusively with the New Zealand Police Force, and that they had grid-searched the entire site. All property recovered had been placed in a large store at McMurdo Base, which was padlocked, and access to the shed was only possible through a senior sergeant of Police. I asked counsel assisting the Commission to make inquiries about the flight bags which had been located on the site but which had not been returned to Mrs Collins or Mrs Cassin.

354. The Royal New Zealand Air Force helicopter pilot who flew the property from the crash site to McMurdo remembered either one or two crew flight bags being placed aboard his helicopter, and he said that they were then flown by him to McMurdo. This was independently confirmed by the loadmaster of the helicopter, who recollected seeing the flight bags. The senior sergeant of Police in charge of the McMurdo store was spoken to, and he 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. ...

359. The following facts seemed to emerge:

(1) 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. ...

These paragraphs followed a discussion by the Commissioner of a submission by counsel for the Pilots Association that a number of documents which would have tended to support the proposition that Captain Collins had relied upon the incorrect co-ordinates had not been located; and in that context the Commissioner recorded Captain Gemmell's denial that he had recovered any documents relevant to the flight which had not been handed over to the chief inspector. There was also a reference shortly afterwards in the report to Captain Gemmell having brought back some quantity of documents with him from Antarctica. On its own this would be innocuous, but it is part of a context which could lead to inferences adverse to Captain Gemmell being drawn from the paragraphs complained of.

The applicants say that there was a mistake of fact, no evidence of probative value and no fair opportunity to answer the criticisms or findings which they claim to be implicit in these paragraphs. The last point, the natural justice one, has a special feature in the case of Captain Gemmell. The applicants say that the findings, apart from one made under mistake (paragraph 352), were based on information or evidence gathered by the Commissioner after the public hearings; and that, while an opportunity of meeting the new matter was given to the Chief Inspector of Air Accidents, none was given to Air New Zealand or Captain Gemmell.

Another special feature is that the Commissioner himself ultimately concluded (paragraph 360) 'However, there is not sufficient evidence to justify any finding on my part that Captain Gemmell recovered documents from Antarctica which were relevant to the fatal flight, and which he did not account for to the proper authorities'.

Alleged 'Orchestration'

We now come to the most serious complaint. It concerns paragraph 377 of the report, a paragraph building up to a quotable phrase that has become well known in New Zealand and abroad:

377. No judicial officer ever wishes to be compelled to say that he has listened to evidence which is false. He always prefers to say, as I hope the hundreds of judgments which I have written will illustrate, that he cannot accept the relevant explanation, or that he prefers a contrary version set out in the evidence.

But in this case, the palpably false sections of evidence which I heard could not have been the result of mistake, or faulty recollection. They originated, I am compelled to say, in a pre-determined plan of deception. They were very clearly part of an attempt to conceal a series of disastrous administrative blunders and so, in regard to the particular items of evidence to which I have referred, I am forced reluctantly to say that I had to listen to an orchestrated litany of lies.

The applicants claim that these findings were not based on evidence of probative value and that the affected employees were not given a fair opportunity of answering such charges. The general allegation in the statement of claim that the findings attacked were made in excess of jurisdiction has in our view a special bearing on this paragraph. The applicants say that the paragraph affects a considerable number of employees--namely Mr Amies, Mr R. Brown, Mr Davis, Captain Eden, Captain Gemmell, Captain Grundy, Captain Hawkins, Mr Hewitt, Captain Johnson and Mr Lawton. These include all the employees affected by the other paragraphs under challenge.

We accept that reasonable readers of the report would take from it that the conspiracy which the Commissioner appears to postulate in his references to 'a pre-determined plan of deception' and 'an orchestrated litany of lies' was seen by him as so wide as to cover all those persons. Paragraph 377 is the culmination of a series of paragraphs beginning with paragraph 373 and separately headed by the Commissioner 'The Stance adopted by the Airline before the Commission of Inquiry'. They include specific references to the chief executive, described as 'very able but evidently autocratic' in the context of an allusion to what 'controlled the ultimate course adopted by the witnesses called on behalf of the airline'. There are also specific references to the executive pilots and members of the navigation section.

It is possible that some individual witnesses did give some false evidence during this inquiry. The applicants accept that this was for the Commissioner to consider and that it is not for us to interfere with his assessment of witnesses. But the complaint goes much further than that. It is that there is simply no evidence on which he could find a wholesale conspiracy to commit perjury, organised by the chief executive, which is what this part of the report appears to suggest. Our conclusion that here the Commissioner went beyond his jurisdiction and did not comply with natural justice--a conclusion to be explained more fully later in this judgment--makes it unnecessary for us to decide whether there was any evidence that could conceivably warrant such an extreme finding. It is only right to say, however, that if forced to decide the question we would find it at least difficult to see in the transcript any evidence of that kind.

The language of paragraph 377 has evidently been carefully selected for maximum colour and bite, and the Commissioner has sought to reinforce its impact by bringing in his status and experience as a judicial officer. While unfortunate, it is no doubt that result of a search for sharp and striking expression in a report that would be widely read. He cannot have overstated the evidence deliberately. Similarly at senior management level in Air New Zealand there would have been a natural tendency to try to have the company's case put in as favourable a light as possible before the Commission; but it was adding a further and sinister dimension to their conduct to assert that they went as far as organised perjury.

Costs

The applicants ask for an order quashing one of the Commissioner's decisions as to costs. The decision in question and the reasons for it are stated in an appendix to the report:

... I asked the airline for its submissions on the question of costs. The general tenor of the submissions is that the establishment of this Royal Commission was directed by the New Zealand Government and that the airline should not be ordered to meet any part of the public expenditure so incurred. As a statement of general principle, this is correct. But there is specific statutory power to order that a party to the inquiry either pay or contribute towards the cost of the inquiry, and that the power should be exercised, in my opinion, whenever the conduct of that party at the hearing has materially and unnecessarily extended the duration of the hearing. This clearly occurred at the hearings which took place before me.

In an inquiry of this kind, an airline can either place all its cards on the table at the outset, or it can adopt an adversary stance. In the present case, the latter course was decided upon. The management of the airline instructed its counsel to deny every allegation of fault, and to counter-attack by ascribing total culpability to the air crew, against whom there were alleged no less than 13 separate varieties of pilot error. All those allegations, in my opinion, were without foundation. Apart from that, there were material elements of information in the possession of the airline which were originally not disclosed, omissions for which counsel for the airline were in no way responsible, and which successively came to light at different stages of the Inquiry when the hearings had been going on for weeks, in some cases for months. I am not going to burden this recital with detailed particulars, but I should have been told at the outset that the flight path from Hallett to McMurdo was not binding on pilots, that Captain Wilson briefed pilots to maintain whatever altitudes were authorised by McMurdo Air Traffic Control, that documents were ordered by the chief executive to be destroyed, that an investigation committee had been set up by the airline in respect of which a file was held, and that one million copies of the Brizindine article had been printed, a fact never revealed by the airline at all. So it was not a question of the airline putting all its cards on the table. The cards were produced reluctantly, and at long intervals, and I have little doubt that there are one or two which still lie hidden in the pack. In such circumstances the airline must make a contribution towards the public cost of the Inquiry.

...

6. The costs incurred by the Government in respect of this Inquiry have been calculated by the Tribunals Division of the Department of Justice at $275,000. A substantial liability for the burden of such costs must lie upon the State but in my opinion the State ought to be in part reimbursed in respect of the cost to the public of the Inquiry, and I accordingly direct that Air New Zealand Limited pay to the Department of Justice the sum of $150,000 by way of contribution to the public cost of the Inquiry.

The order is in any event invalid because the amount is far greater than the maximum allowed by the long out-of-date but apparently still extant scale prescribed in 1903 (1904 Gazette 491). It is only fair to the Commissioner to say that the scale seems never to have been drawn to his attention by any counsel, although he gave an opportunity to make submissions on costs. But there is a deeper objection to the validity of the order, to which we will come shortly.

Conclusions

Having set out the various complaints we now state our conclusions more specifically than in the earlier part of this judgment.