Book: Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission of Inquiry into the Mount Erebus Aircraft Disaster

S >> Sir Owen Woodhouse, R. B. Cooke, Ivor L. M. Richardson, Duncan >> Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission of Inquiry into the Mount Erebus Aircraft Disaster




"So far as I understand the evidence, I do not believe that either
the airline or Civil Aviation Division ever understood the term
'whiteout' to mean anything else than a snowstorm. I do not believe
that they were ever aware, until they read the chief inspector's
report, of the type of 'whiteout' which occurs in clear air, in
calm conditions, and which creates this visual illusion which I
have previously described and which is, without doubt, the most
dangerous of all polar weather phenomena."

It would seem that if those at airline headquarters were unaware of the
deceptive dangers of the whiteout phenomenon they could not have
deliberately ignored it as a factor that should be taken into account in
favour of the aircrew.


Instructions of the Chief Executive

In paragraph 41 and following paragraphs there is reference to "what
happened at the airline headquarters at Auckland when the occurrence of
the disaster became first suspected and then known". It is explained
that the navigation section became aware of the fact that when the
McMurdo waypoint co-ordinates were corrected in November 1979 the
movement was not one of 2.1 miles within the vicinity of Williams Field
but a distance of 27 miles from longitude 164 deg. 48' E; and that "by 30
November the occurrence of this mistake over the co-ordinates was known
not only to the Flight Operations Division but also to the management of
the airline. In particular it had been reported to the Chief Executive
of Air New Zealand, Mr. M.R. Davis". At that point there follows the
serious allegation in paragraph 45 already cited--

"The reaction of the chief executive was immediate. He determined
that no word of this incredible blunder was to become publicly
known."

On the face of it the unqualified idea expressed in that sentence is
that Mr. Davis had decided to suppress from everybody outside the
airline all information about the changed flight track. But if that
meaning were intended it has been greatly modified in paragraph 48.
There it is said--

"It was inevitable that these facts would become known. Perhaps the
chief executive had only decided to prevent adverse publicity in
the meantime, knowing that the mistake over the co-ordinates must
in the end be discovered."

Of course if the decision were merely "to prevent adverse publicity in
the meantime" then such an attitude could not in any way be consistent
with an attempt "orchestrated" by Mr. Davis to hid from official
scrutiny what finally was held by the Commissioner in paragraph 393 to
be "the single dominant and effective cause of the disaster". Despite
that, paragraph 48 goes on to say this:

"This silence over the changing of the co-ordinates and the failure
to tell the air crew was a strategy which succeeded to a very
considerable degree. The chief inspector discovered these facts
after he had returned from Antarctica on or about 11 December
1979. In his report, which was published in June 1980, the chief
inspector referred to what he termed the 'error' in the McMurdo
destination point, and the fact that it had been corrected a matter
of hours before the flight left Auckland."

It is difficult to understand why the Commissioner considered "this
silence over the changing of the co-ordinates and the failure to tell
the air crew" had been "a strategy which succeeded to a very
considerable degree". The information had been given to the chief
inspector immediately on his return from Antarctica. That much is
acknowledged in the two sentences that follow. It becomes apparent,
however, that this was criticized not because the information had been
kept away from those to whom it most certainly had to be given, those
charged with the important responsibility of inquiring into the causes
of the disaster. Mr. Davis was criticized for nothing more than his
failure to release the material to the outside world. That is made plain
by a subsequent statement towards the end of the Report which leads on
to the very severe pronouncement in paragraph 377 that the Commissioner
had been obliged to listen to "a predetermined plan of deception ... an
orchestrated litany of lies". The relevant passage is in paragraph 374:

"The fact that the navigation course of the aircraft had been
altered in the computer had been disclosed by the chief inspector
in his report dated 31 May 1980, 6 months after the disaster. But
it was not until the Commission of Inquiry began sitting that the
airline publicly admitted that this had occurred."

The effect of the absence of general publicity that the information was
given rather than its ready provision by the airline to Mr. Chippindale
on the day after his return from the crash site is described in the
remaining portion of paragraph 48 which continues in the following way:

"Then the chief inspector went on to say in his report (paragraph
2.5):

'The error had been discovered two flights earlier but neither crew
of the previous flight or that of the accident flight were advised
of the error by the flight despatcher prior to their departure.'

The chief inspector did not make it clear, however, that the
computer flight path of TE 901 had been altered before the flight,
and that the alteration had not been notified to the air crew. Had
that fact been disclosed in the chief inspector's report then the
publicity attending the report would undoubtedly have been
differently aligned ... the news blackout imposed by the chief
executive was very successful. It was not until the hearings of
this Commission that the real magnitude of the mistake by Flight
Operations was publicly revealed."

Concerning that last part of paragraph 48 it seems that the
Commissioner's remark immediately following the extract from paragraph
2.5 is inaccurate. It appears to suggest either that the chief inspector
was unaware of the fact that the alteration to the co-ordinates "had not
been notified to the air crew"; or that if he had been made aware of
that fact then he had failed to bring it to public attention in his
report as the next sentence suggests. But Mr. Chippindale was both aware
of all this and he said so. In paragraph 1.17.1 he explicitly stated:

"This error was not corrected in the computer until the day before
the flight. Although it was intended that it be drawn to the
attention of the previous crew, immediately prior to their
departure this was not done, _nor was it mentioned during the
pre-flight dispatch planning for the crew of the accident flight_".
(Emphasis added.)

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 pass 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 assess it.


"Irrelevant" Documents

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 documents 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 documents were to be destroyed_. He said 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. The chief executive insisted that his instructions were that
all documents 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 documents 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 documents"--

that is, _all_ documents 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 documents'". 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 documents_ has
become an unacceptable instruction that _irrelevant documents_ (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 documentary evidence. He said in paragraph 52:

"As will be explained later, there was at least one group of
documents 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 documents of
First Officer Cassin.... (He) had left his briefing documents 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 documents of First Officer Cassin, 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 documents' 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 Cassin in that capacity. He
had been asked by the Airline Pilots Association, 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 Cassin'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 documents. 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 documentary 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 associated 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 Association 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 amassing 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 entitled
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 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."

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