Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission Part 7

To the extent that the Royal Commission Report has pointed to any particular cla.s.ses of doc.u.mentary 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 Ca.s.sin 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 Ca.s.sin home for compa.s.sionate reasons as the spokesman for the Airline Pilots a.s.sociation. 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. Doc.u.ments 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 a.s.sociated 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 doc.u.ments (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 Ca.s.sin--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 a.s.sociation to give evidence before the Commission. He explained that his involvement in all post-accident matters was as a welfare officer for the a.s.sociation; 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 a.s.sess. 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 doc.u.ments and those received by First Officer Ca.s.sin. 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 Ca.s.sin in his flight bag; and about the contents of Captain Collin's flight bag which he believed would include the atlas and briefing doc.u.ments. 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 Ca.s.sin 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 Ca.s.sin 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 doc.u.ments "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 doc.u.ments; 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 doc.u.ments is explained by reference to the view of counsel for the Airline Pilots a.s.sociation 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 doc.u.ments. 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 Ca.s.sin'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 a.s.sisting 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 Ca.s.sin".

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 fas.h.i.+on 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 Ca.s.sin 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 quant.i.ty of doc.u.ments with him from Antarctica, and certain doc.u.ments 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 doc.u.ments 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--

"... plainly kept this significant fact to himself, (he) was to be the arbiter of which doc.u.ments were relevant. The opportunity was plainly open for Captain Gemmell to comply with the chief executive's instructions to collect all doc.u.ments relevant to this flight, wherever they might be found, and to hand them over to the airline management."

The next sentence of that paragraph contains the finding already mentioned:

"However, there is not sufficient evidence to justify any finding on my part that Captain Gemmell recovered doc.u.ments from Antarctica which were relevant to the fatal flight, and which he did not account for to the proper authorities."

At the conclusion of this section of the Report the Commissioner said that he could "quite understand the difficulty in recovering loose doc.u.ments from this desolate mountain side, although the heavy atlas", he said, "was not in this category". But he stated that an opportunity had been "created for people in the airline to get rid of doc.u.ments which might seem to implicate airline officials as being responsible for the disaster". And he spoke of all these matters in terms of "justifiable suspicion".

The condition of Captain Collins' flight bag when it was first seen by Mr Woodford had already been mentioned. His letter dated 5th December 1980 was written immediately after some cross-examination of Captain Gemmell had been given widespread publicity and on Monday 8th December 1980 Captain Gemmell was still giving evidence. By then he was under cross-examination by counsel a.s.sisting the Commission and the latter proceeded to read into the record the text of the letter (Exhibit 266) which reads:

"Dear Sir,

At the time of the DC10 crash I was employed in Antarctica by D.S.I.R. as a survival instructor/mountaineer a.s.sistant. I was one of the three mountaineers who made the initial inspection of the site for survivors. I was also one of the three mountaineers who accompanied Messrs David Graham (Investigator) Ian Gemmell & Ian Wood (Air NZ) during their initial inspection of the aircraft.

During the first six days after the accident I was at the crash site at all times when the site was occupied.

In regard to evidence reported in the Christchurch Press today, 5 Dec 1980, I can state unequivocally that:

(1) Captain Gemmell did not spend any time inspecting the aircraft without other people being present.

(2) Captain Collins flight bag was found by me the day after the crash, this being three days before any Air N.Z. personnel or crash investigators reached the site. My recollection is that it was empty when I first inspected it. It certainly contained no diaries or briefing material.

(3) Captain Gemmell did not remove any items from the persons of deceased lying in the area...."

Counsel proceeded to read from the letter which goes on to refer to instructions concerning the creva.s.sed area of the ice-slope.

No challenge was made to the views expressed by Mr Woodford nor was he called to give evidence. And no evidence to any contrary effect was given by anybody. Yet apart from the pa.s.sing reference to the matter in paragraph 349 of the Report the point of view Mr Woodford expressed seems to have been given no attention. The extent of the evidence which could have been given by Mr Woodford if he had been called as a witness is indicated by his affidavit now put before this Court. The importance of the letter seems obvious. The bag being empty when it was seen only 18 hours after the aircraft had crashed it is difficult to understand how it could have any significance when found in that same condition three days later. Yet in this part of the Report it is left as a central issue. Mr Woodford's own concern about all this is indicated in the lengthy affidavit which he prepared for the purpose of exonerating Captain Gemmell. It was sworn by him on 21st May 1981 not very long after the Report of the Royal Commission had been made public.

A final comment should be made about Captain Gemmell's position. It concerns a submission made on his behalf to this Court that "In view of the 'not proven' verdict against Captain Gemmell and the various critical statements made about him it is a remarkable thing that he was given no opportunity for further comment when the Commissioner decided to make further enquiries of the police sergeant and Mr Chippindale at the conclusion of the hearing of evidence". If Captain Gemmell was to be left enveloped in "justifiable suspicion" this is something that certainly should have been done. Indeed if the post-hearing investigation had been sufficiently developed the Commissioner might have been satisfied (as now appears from the affidavit of Mr Stanton) that the police officer who gave information to counsel a.s.sisting the Commission about one or two flight bags was not even in Antarctica while Captain Gemmell was there. The affidavit indicates that the police officer arrived to take charge of the police store only on the evening of 6th December and by then Captain Gemmell had been back in New Zealand for two days.

Airline's Att.i.tude at Inquiry

This matter requires brief comment. It involves the issue as to whether Air New Zealand adopted an uncompromising approach to the matters under consideration by the Royal Commission so that the proceedings were unnecessarily prolonged. Concerning the matter the Commissioner said this in the Appendix to the Report dealing with the awards of costs, which must be mentioned later: