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




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--

"... plainly kept this significant fact to himself, (he) was to be
the arbiter of which documents were relevant. The opportunity was
plainly open for Captain Gemmell to comply with the chief
executive's instructions to collect all documents 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 documents 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
documents 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 documents
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 assisting 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 assistant. 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 crevassed 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 passing 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 assisting 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 Attitude 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:

"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".

The general complaint that Air New Zealand had adopted an adversary
approach and withheld evidence until a late stage needs to be assessed
against the control exercised by counsel assisting the Commission
concerning the order in which witnesses were to be called and the way in
which the Inquiry progressed. Before the initial hearing to settle
questions of procedure he supplied the airline with a "Memorandum as to
areas to be covered by Air New Zealand evidence". It is dated 13th June
1980 and specifies 21 topics. Then on 19th June he circulated a
"Memorandum to counsel engaged in the DC10 Inquiry" advising that the
parties were to prepare initial briefs which he would then put in
sequence. And at the preliminary hearing on 23rd June it was arranged
that a basically chronological order should be followed after Mr
Chippindale had been called as the first witness. On the following day
counsel for the Civil Aviation Division took issue with the requirement
that its brief of evidence should be handed in before Mr Chippindale had
appeared and the Commissioner ruled that briefs of evidence would be
withheld until shortly before the witness was to be called. Mr
Chippindale's evidence occupied the first fortnight of the inquiry and
thereafter the actual order in which the witnesses were to be called was
arranged by counsel assisting the Commission who stated in advance the
days and times at which those concerned should come forward. Thus the
first Air New Zealand witness to give evidence was the chief engineer
who appeared before the Inquiry on 22nd July.

It was said that the airline had not been invited through its counsel to
make its position known by means of an opening address at the
commencement of the public hearing. No doubt the Commissioner would have
permitted such an address but the occasion for it did not seem to arise
and he himself did not require the matter to be dealt with on this basis
by any of the parties. And in the result witnesses were called from
among the personnel of the airline in order to deal with various
questions in an ordered fashion. Thus it was not until all evidence had
been called that counsel for the various parties made submissions to the
Commissioner.

At the conclusion of the evidence counsel for the airline invited
counsel assisting the Commission to inform him what were the main issues
upon which closing submissions were requested. However the extended
written answer to that enquiry includes no suggestion whatever that the
conduct of airline witnesses or the post-accident conduct of the
employees was in issue. And the Commissioner himself said this in
paragraph 375 about the airline's submissions:

"... counsel for the airline adopted, in the course of their
detailed and exemplary final submissions, the very proper course of
not attributing blame to any specific quarter but leaving it to me
to assemble such contributing causes as I thought the evidence had
revealed."

In that regard some of the statements which were made on behalf of the
airline are not unimportant. At one point counsel said--

"By now it should be apparent to the smallest mind that the Company
has not espoused, and does not espouse, a proposition that the
accident can be contributed to a sole cause, let alone a sole cause
of pilot error. If from the evidence adduced, there emerges or is
implicit a criticism of the Company's flight crew, that criticism
has been moderate, informed and responsible."

And in the same context--

"I would, with respect, also remind Your Honour that in the very
nature of these proceedings there has not been an opportunity for a
formal opening where one might have expected just that. But I would
further suggest, Sir, that the evidence advanced by the Company,
which has been in an attempt to bring every witness who can
contribute something towards the causal factors and everything else
has been done, not selectively, and there have been witnesses who
have plainly, unequivocally, acknowledged their fault, their error.
There has not in any way been a parade of witnesses all seeking to
criticize the flight crew and thus, as it were, exonerate
themselves. There has been an endeavour, without selection, to
reveal all the evidence to reveal all the documents ...".

This statement by senior counsel for the airline as to the manner in
which he had attempted to handle his responsibilities should be enough
to answer the complaint in the Appendix that "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". The
tribute the Commissioner paid counsel in paragraph 375 (the same counsel
appeared in this Court for the applicants) is not altogether consistent
with those last remarks. In any event the appendix continues--

"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."

A final comment should be made about the criticisms of the airline
concerning the position it adopted concerning pilot error as a cause of
the accident.

In the course of his evidence (at p. 272) Mr. Chippindale was asked by
the Commissioner: "Was not the position Capt. Collins must have clearly
have thought he was flying toward McMurdo over McMurdo Sound?" He said,
"It is my belief that this could be the only possible reason for him to
continue". That is an important answer. It means that in this respect
Mr. Chippindale had reached the same conclusion as the Commissioner but
for general reasons of logic whereas the latter was influenced by his
finding that Captain Collins had made use of the New Zealand Atlas or a
chart in order to plot the position of the waypoint and the route to be
taken by the aircraft.

Copyright (c) 2007. knowncrafts.net. All rights reserved.