Strong wording justified—Q.C.

Press, 8 July 1983, Page 9

Strong wording justified—Q.C.

Privy Council Erebus hearing

NZPA staff correspondent London The strong language that the Royal Commissioner, Mr Peter Mahon, had used in his Mt Erebus report was based on what he had heard in evidence, his counsel, Sir Patrick Neill Q.C. told the Privy Council hearing in London yesterday. The “strong, striking, purple prose—call it what you like” was the cumulative effect of the rest of the report, he said.

Sir Patrick said a careful reader of Mr Mahon’s report would have come to the same conclusion as he did in his “strong, biting language.” He was explaining the controversial paragraph 377 of the report, in which Mr Mahon said there had been a pre-determined plan of deception and he had been told an “orchestrated litany of lies.”

“I will be submitting that what is said in paragraph 377 about concocted evidence put together in concert is a conclusion you would inevitably arrive at from a series of earlier paragraphs,” he said.

There had been false evidence given- by Air New Zealand witnesses on low flying in the Antarctic and on the shift of flight plan co-ordinates for the DC-10 that crashed into Mt Erebus on November 28, 1979, Sir Patrick said. This had not been chai-

lenged by Air New Zealand in the New Zealand Court of Appeal. The only issue really was: Could Mr Mahon “properly go on and conclude that it was not coincidental that 12 airline witnesses gave false evidence?” “That’s where the issue lies between us,” Sir Patrick said. The passages in Mr Mahon’s report must have been arrived at after fair treatment of witnesses on issues squarely put, he said. The first question was whether there was material before him on the basis of which he could conclude that Air New Zealand’s executive pilots must have given concerted false evidence on low flying.

The other question was whether the airline was on notice that there was an issue involving the credibility of its executive pilots as a group. “I will show the answer is ‘yes’ to both questions,” Sir Patrick said.

Referring to passages in Mr Mahon’s report and in the transcript of evidence to the Royal Commission, he said there was ample evidence, including that the airline was on notice.

Lord Bridge, one of the five Law Lords hearing the appeal, asked: “Do you include Mr Davis?”

Sir Patrick replied: “On knowledge of low flying,

yes.” Mr M. R. Davis, the airline’s former chief executive and named as one of the respondents in the appeal, is attending the Privy Council hearing.

Mr Mahon is asking the Privy Council to restore his order that Air New Zealand pay $150,000 towards the cost of the Royal Commission.

This was quashed by the New Zealand Court of Appeal which ruled that he had exceeded his jurisdiction in his “litany of lies" comment. Lord Diplock, the senior Law Lord, is presiding over the judicial committee hearing the appeal. Soon after the hearing resumed yesterday, Mr Robert Alexander Q.C., senior counsel for Air New Zealand, told the Law Lords that the airline was not accusing Mr Mahon of acting in bad faith. There had been no suggestion of this in its case in the New Zealand Court of Appeal and there would not be in its arguments here, he

said. “That will not be at any stage a suggestion,” Mr Alexander said. Sir Patrick said he was pleased to hear that. Mr Alexander’s statement came after Lord Scarman had asked Sir Patrick if he understood Air New Zealand to be making any charge against Mr Mahon’s bona fides (good faith). “That is important, I think, when considering his mini-judgment on the appendix (to his report) on costs,” Lord Scarman said. He asked: “Is it accepted that this is an honest and bona fide statement of the judge on his reasons?” Sir Patrick replied: “No, they do not accept that.” Air New Zealand was saying the real reason that Mr Mahon ordered it to pay $150,000 towards the cost of the Royal Commission was found in the “litany of lies” paragraph, Sir Patrick said. Lord Scarman said he had not interpreted it that way, but read it as saying that the costs order was tied in with the adversary stance

adopted by the airline and that, on a proper construction, this referred back to the controversial paragraph 377. Sir Patrick said: “I must be alert to defend my client if there is any impugning of judicial integrity." He added: “What I cavil at is the punishment notion”—the idea that Mr Mahon had ordered the payment of costs to punish Air New Zealand.' During discussion on the instruction by Mr Davis after the DC-10 crash that "surplus copies” of documents should be shredded, Lord Templeman, one of the Law Lords, commented: “I would have thought it quite wrong to destroy copies. I think that was a misjudgment by Mr Davis. You don’t destroy anything on a thing like that.” Mr Mahon, in his report, said Mr Davis’s decision for the destruction of “irrelevant documents” was “one of the most remarkable executive decisions ever to have been made in the corporate affairs of a large New Zealand company.” Sir Patrick commented: “Why all these documents could not have been centralised and put under lock and key has not been explained.” Lord Diplock and Lord Scarman questioned Mr David Baragwanath Q.C., who was counsel assisting the Royal Commission and is appearing with Sir

Patrick, about the procedure for getting briefs of evidence for witnesses appearing before Mr Mahon. Lord Scarman asked why briefs had not been made available to counsel in advance. Mr Baragwanath said this had been the original intention but the briefs had not been available. Lord Scarman asked: “When did the Air New Zealand brief become available to counsel assisting the commission?” "At the stage when the witness first hit the box," said Mr Baragwanath. "I find that very surprising,” said Lord Scarman. Lord Diplock commented: “Looking at it from here, it seems a very odd procedure to have adopted." Lord Scarman: "Counsel assisting the commission knew the topics on which evidence would be required, but controversial matters were not known until the witness came into the witness box?” “Yes, we did not know, my Lord,” said Mr Baragwanath. Lord Diplock, who told counsel that the Law Lords had all done their homework and read Mr Mahon’s report, the Inspector of Air Accidents’ report and the prepared cases presented by the parties, said some of them had also read some of the evidence to the Royal Commission. (Proceeding)