Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission Part 6

The "pre-flight dispatch planning" mentioned in those last words was the occasion of final briefing of the aircrew immediately before the aircraft left Auckland on the morning of 28th November 1981.

A different comment upon paragraph 48 is central in this part of the case. It is very hard to understand why the chief executive officer of this airline should have had any duty to pa.s.s on for debate and public prejudgment the same material that in accord with his responsibility had been properly and immediately placed before the appointed official required and well equipped to a.s.sess it.

"Irrelevant" Doc.u.ments

At the beginning of this judgment a different aspect of paragraph 45 is explained by contrast with the following paragraph 46 which correctly summarizes instructions given by Mr Davis for the disposal of surplus copies of doc.u.ments lest they be leaked to the news media. In paragraph 46 it is explained by the Commissioner that "his instructions were that _only copies of existing doc.u.ments were to be destroyed_. He said that he did not want any surplus doc.u.ment to remain at large in case its contents were released to the news media by some employee of the airline. The chief executive insisted that his instructions were that all doc.u.ments of relevance were to be retained on the single file"

(emphasis added). There was no evidence before the Royal Commission to any contrary effect. But in the preceding paragraph a different impression is given. The relevant part of paragraph 45 reads--

"He directed that all doc.u.ments relating to Antarctic flights, and to this flight in particular, were to be collected and impounded.

They were all to be put on one single file which would remain in strict custody. Of these doc.u.ments"--

that is, _all_ doc.u.ments relating to the Antarctic flights--the sentence continues:

"all those which were not directly relevant were to be destroyed.

They were to be put forthwith through the company's shredder."

Then in paragraph 54 the actual instruction is taken into a further dimension where it is described as "this direction on the part of the chief executive for the destruction of 'irrelevant doc.u.ments'". And one serious complaint made by the applicants about the Royal Commission Report is that what could be an understandable direction for the _retention_ of one copy on a master file _of all relevant doc.u.ments_ has become an unacceptable instruction that _irrelevant doc.u.ments_ (related to the Antarctic flights nonetheless) _should be destroyed_. We think the complaint is justified.

At the same early stage of the Report the Commissioner gave his attention to the question as to what if anything was done about the suppression of doc.u.mentary evidence. He said in paragraph 52:

"As will be explained later, there was at least one group of doc.u.ments which certainly were in the possession of the airline as from the day following the disaster, and which have never been seen since. I am referring here to the flight briefing doc.u.ments of First Officer Ca.s.sin.... (He) had left his briefing doc.u.ments at home. They were recovered from his home on the day after the disaster by an employee of the airline. As I say, they have never been seen since."

In the following paragraph 53 he observed--"If the explanation of the chief executive is to be accepted, then in the opinion of someone the briefing doc.u.ments of First Officer Ca.s.sin, the co-pilot, were thought to be irrelevant to the disaster"; and in paragraph 54--"it follows that this direction on the part of the chief executive for the destruction of 'irrelevant doc.u.ments' was one of the most remarkable executive decisions ever to have been made in the corporation affairs of a large New Zealand company".

Those remarks require some brief comment. It must be explained that the "employee of the airline" mentioned at the end of paragraph 52 was Captain Crosbie. It is true that he was "an employee of the airline" but he did not go to the home of First Officer Ca.s.sin in that capacity. He had been asked by the Airline Pilots a.s.sociation, the group which throughout the inquiry had very properly been concerned to protect the interests of the two deceased pilots, to act on their behalf for the purpose of bringing immediate aid and comfort to the two widows. His evidence was to the effect that he had gone to each of the homes for that purpose; that sometime later a member of Mrs Ca.s.sin's family had invited him to take away a box containing such items as flight manuals; and he said he had done no more than that. He flatly denied taking any flight doc.u.ments. But even if he had, the alleged conspiracy has always been limited in the Royal Commission Report to the executive pilots and other officers in the management area. It has never been suggested that it had extended as well to the airline pilots. As may be expected, throughout both investigations they have done their conscientious best to protect the valued reputations of their deceased colleagues.

There was doc.u.mentary evidence before the Inquiry to the effect that on 30th November 1979 an in-house committee of Air New Zealand met on the instruction of Mr Davis for the purpose of deciding how to collect together all available information relevant to the accident. It seems that it began its practical work on Monday 3rd December. In that regard and as an example of the way in which the applicants say the cover-up allegation could have been answered by those affected they placed material before this Court which would suggest that the formation of such a committee is a conventional step taken by an airline when confronted with any serious disaster, that it was required by this company's Accident Investigation Procedures Manual, and that this committee was appointed accordingly. If it had been before the Inquiry it would have supported the view that Mr Davis had decided the chairman should not be a.s.sociated with the flight operations side of Air New Zealand and for that reason he appointed Mr Watson who had charge of certain related companies. There is also an affidavit sworn by Captain Priest who was appointed by the Airline Pilots a.s.sociation to sit as its representative on the committee. Taken at its face value it is to the effect that he took part in the committee's work from the meeting on 3rd December. In the affidavit he has explained: "My position on that Committee was an ALPA watchdog--there were two other independent members"; that as the inquiry progressed "it became apparent that the committee was ama.s.sing a large amount of papers"; and that Mr Watson then announced that he had been directed by the chief executive to get all the information onto one file and any surplus disposed of to avoid information getting into the wrong hands. The affidavit indicates that it was then agreed by the committee itself that this should be done on the basis that the master file was to be available to the committee members at any time and it appears that Captain Priest joined in that decision. It is not for us to decide what would have been the effect or significance of all this material if it had been placed before the Royal Commission but since the conspiracy to deceive theory that is developed in the Royal Commission Report apparently stems from the instruction given by Mr Davis clearly the officers so gravely affected were ent.i.tled to be warned in advance and so be given the opportunity to have such information fairly and properly considered.

Search at Mt. Erebus

The issue of doc.u.mentary 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 doc.u.ments 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 a.s.sisting 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 a.s.sist 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 a.s.sisted in a search for the in-flight recording equipment (consisting of the c.o.c.kpit voice recorder and the "black box") and the recovery of any other equipment or doc.u.ments 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 creva.s.ses or covered by drifting snow. He pointed out that although the c.o.c.kpit 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 quant.i.ty of doc.u.ments from the crash site and brought them back to Auckland"; that only three of the flight doc.u.ments 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 a.s.sociated 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 pa.s.sed 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 doc.u.ments 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 a.s.sociation. He appeared as a witness before the Royal Commission on two occasions. During his first appearance he was called by the a.s.sociation. 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 a.s.sociation'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 doc.u.ments 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 a.s.sociation 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 c.o.c.kpit 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 doc.u.mentation from the crash site which was beginning to return in significant quant.i.ties from the various people on the crash site including the police."

The following portion of the cross-examination then refers to doc.u.ments described as "the technical crews flying records, the collection of log books, licences and other relevant doc.u.mentation". 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 doc.u.ments back to Auckland."

Those statements are in no way related to the a.s.sessment 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 a.s.sociation 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 doc.u.ments