Privy Connell dismisses Mahon appeal

Press, 21 October 1983, Page 1

Privy Connell dismisses Mahon appeal

NZPA staff correspondent London The Privy Council yesterday dismissed the appeal by a former High Court Judge, Mr Peter Mahon, against the New Zealand Court of Appeal decision in the Mount Erebus Royal Commission case, saying it wanted to “let bygones be bygones.”

The judgment of the fivemember Judicial Committee was delivered by the senior law lord, Lord Diplock, who presided over the four-week hearing in July.

Mr Mahon had appealed against the Court of Appeal decision which said he had exceeded his jurisdiction in accusing Air New Zealand witnesses before the 1980 Royal Commission he chaired of telling an “orchestrated litany of lies.” The Court of Appeal had also quashed an order by Mr Mahon that Air New Zealand pay $150,000 towards the cost of the inquiry into the 1979 Antarctic disaster, in which all 257 passengers and crew of The Air New Zealand DCIO died.

He asked the Privy Council to reverse this decision.

Mr Mahon, now living in Christchurch after resigning from the Bench after the Court of Appeal decision, was given leave to appeal to the Privy Council last December. The Government agreed to meet his costs. His appeal was heard by Lord Diplock, Lord Scarman, Lord Bridge, Lord Keith, and Lord Templeman.

The Judicial Committee made no order on costs.

They said at the end of their 38-page judgment that the time had now come for all parties to “let bygones be bygones” as far as the aftermath of the disaster was concerned. “There were what in retrospect can be recognised as having been faults or mistakes at the inquiry but which, in the circumstances in which the inquiry had to be held and the Judge’s report prepared, appear to their Lordships for the most part to have been manifestations of human fallibility that are easy to understand and to excuse,” they said. “The time has surely come by now for them to be allowed to be forgotten.” It was in this spirit that they proposed making no order on costs.

The Judicial Committee said the New Zealand Court of Appeal had been unanimous that Air New Zealand was entitled to have the costs order made against it by Mr Mahon set aside. This was bn the ground that he had made it for reasons which he was not entitled to rely on in law. This was his finding of a conspiracy by members of the Air New'Zealand management to commit perjury at the inquiry. The Court of Appeal had held that in making this finding, Mr Mahon had acted contrary to natural justice and in excess of his jurisdiction.

The Judicial Committee said Mr Mahon’s appeal to the Privy Council could be disposed of on the ground that, in the process of arriving at his finding — that there had been a “pre-deter-mined plan of deception” and a “litany of lies” — “which was the reason he made the costs order, the Judge failed by inadvertence to observe the rules of natural justice applicable to a decision to make a finding of this gravity that, put at its highest in the Judge’s favour, was collateral but not essential to his decisions upon any of those matters upon which his terms of reference required him to report.”

The Judicial Committee said Sir Patrick Neill, Q.C., senior counsel for Mr

Mahon, had relied on three matters entitling him to find that senior Air New Zealand officials were guilty of a pre-determined plan of deception, including conspiracy to commit perjury. These were:

© “The deliberate destruction on the orders of Mr Davis, the chief executive, of all documents which would disclose the mistake that had been made over the co-ordinates in the flight plan used for briefing Captain Collins (the DCIO captain) and the different coordinates in the flight plan issued to the aircrew for use in the aircraft’s computer on the actual flight.

.. ® “The concealment that there had been an intentional adoption by the airline management, as the southernmost waypoint for their Antarctic sightseeing flights, of the waypoint used at Captain Collins’s briefing with co-ordinates that would take the aircraft over icecovered sea to the west of Mount Erebus and well clear of it.

® “The denial by senior, officials of Air New Zealand that they knew that aircraft engaged in sightseeing flights to Antarctica, when they got there in visual meteorological conditions with visibility at 20km or more, flew at heights lower than 6000 ft.” On the destruction of documents, the judgment said the destruction or deliberate concealment of documents which might point to there having been slipshod management of its Antarctic flights by Air New Zealand was, in the law lords’ view, “quite the most serious charge of deception” in the Royal Commission report. But they said there was no material of any probative value upon which to base a finding that a plan of this kind existed.

That the linkage between Mr Mahon’s costs order against Air New Zealand and his belief in the existence of a plan to destroy documents or prevent them

coming to light had a major influence in inducing him to make the costs order was made apparent in extracts from a passage in the paragraph immediately before the one containing the costs order itself, the judgment said.

Mr Mahon said he should have been told by Air New Zealand at the outset “. . . that documents were ordered by the chief executive to be destroyed, that an investigation committee had been set up by the airline in respect of which a file was held . . .”

“So it was not a question of the airline’s putting all its cards on the table,” he said. “The cards were produced reluctantly, and at long intervals, and I have little doubt that there are one or two which still lie hidden in the pack. In such circumstances the airline must make a contribution towards the public cost of the inquiry.” The judgment said the Court of Appeal and the Judicial Committee were entitled to reject Mr Mahon’s findings of fact on the intentional adoption of a new southernmost waypoint sited in McMurdo Sound which formed, in part, the basis of his finding of a conspiracy to commit perjury.

The president of the Court of Appeal, Sir Owen Woodhouse, in his judgment, had drawn attention to various inconsistencies in the reasoning by which Mr Mahon reached the conclusion that the adoption of the western waypoint was intentional. “Once the Judge (Mr Mahon), by a process of reasoning that was self-con-tradictory, had reached the fixed conviction that there had been a deliberate adoption by the airline management of the western waypoint as the southernmost waypoint for Antarctic flights, it was inevitable that he should reject as false all evidence of primary facts that conflicted with that finding,” the Judicial Committee said.

“In order to satisfy themselves that there were not any other grounds, besides those which the Judge (Mr Mahon) himself has stated, upon which the inference that he had drawn about deliberate but dissimulated adoption could be supported, their Lordships have examined the evidence of primary facts relevant to this matter that was given at the hearings. “This they did, not for the purpose of assessing its reliability but simply to see whether any positive evidence that supported such an inference existed: and none was to be found.” The Judicial Committee said it accepted that Mr Mahon’s report contained many other findings of fact by him upon which there had been conflicting evidence, the reliability of which it was for him to assess.

A court whose functions were limited to judicial review had no jurisdiction to act otherwise than to accept his assessments as correct.

Blit the particular and crucial findings on the adoption of the waypoint and destruction of documents were open to rejection on judicial review for the reasons that the Judicial Committee had given.

“And, as these findings admittedly constituted a substantial part of the material upon which were based the allegations... of a ‘predetermined plan of deception’ and ‘an orchestrated litany of lies’, those accusations against the management of the airline must be treated as. conclusions that, in the circumstances, he was not entitled to reach, and the costs order which constituted the punishment imposed upon Air New Zealand for the conduct found in that paragraph must accordingly be set aside,” the judgment said.

On the question of Air New Zealand’s knowledge of low flying in the Antarctic, the Judicial Committee said it accepted unreservedly that Mr Mahon was entitled to take the view that, on this particular matter, the evidence given by several of the executive pilots was false.

But, even though false, there were two reasons why it could not have formed part of a predetermined plan of deception adopted in } ‘an attempt to conceal a series of disastrous administrative blunders.”

One was that, to permit flights down McMurdo Sound and in the McMurdo area at levels ranging from 1500 ft to 3000 ft in visual meteorological conditions with visibility not less than 20km was not a blunder at all.

It was a method of conducting the sightseeing flights that Mr Mahon himself had commended in his report as complying with the Civil Aviation regulations and as preferable to maintaining 6000 ft as a minimum permitted altitude.

The Judicial Committee said the second reason was that the only stipulated minimum altitude which was of any relevance to the disaster was the 16,000 ft necessary to be maintained for a safe flight directly over Mount Erebus.

“If, in seeking to support the case put by Air New Zealand that this minimum altitude should have been strictly maintained by the crew of the fatal flight, those witnesses whom the Judge disbelieved on this issue were, as their Lordships must accept, being untruthful, they were also being singularly naive,” it said.

“Quite apart from the mass of evidence of flights down McMurdo Sound at low altitudes and the publicity given to them, once it was accepted that pilots were at liberty to, and did, diverge laterally from the original flight .plan over Mount Erebus, the requirement to maintain a minimum altitude of 16,000 ft on a sightseeing flight in visual meteorological conditions could not be justified on any rational basis.

“Against this background it is not conceivable that individual witnesses falsely disclaimed knowledge of

low flying on previous Antarctic flights in a concerted attempt to deceive anybody as to what had happened.”

The judgment said Mr Mahon’s report contained numerous examples and criticisms of Air New Zealand’s slipshod system of administration and absence of liaison between sections

and between individual members in flight operations.

Grave deficiencies had been exposed in the briefing for Antarctic flights. “The explanation advanced by witnesses for the airline as to how it came about that Captain Collins and first officer Cassin were briefed on a flight path that took the aircraft over the ice-covered waters of McMurdo Sound well to the west of Mt Erebus but were issued for use in the aircraft’s computer, as the nav.track a flight path which went directly over Mt Erebus itself, without the aircrew being told of the change, involved admissions of a whole succession of inexcusable blunders by individual members of the executive staff,” the judgment said.

None of this was challenged before the judicial committee, and no attempt was made on behalf of Air

New Zealand to advance excuses for it.

“These appalling blunders and deficiencies, the existence of which emerged piecemeal in the course of the 75 days of hearing, had caused the loss of 257 lives,” the judgment says. “Their Lordships can well understand the growing indignation of the Judge when, after completing the hearings and for the purpose of preparing his report, he brought them together in his own mind and reflected upon them.

“In relation to the three matters that were principally canvassed in this appeal and upon which he based his finding that there had been a pre-determined plan to deceive the Royal Commission and a conspiracy to commit perjury at its hearings, their Lordships have very reluctantly felt compelled to hold that, in the various respects to which their Lordships have referred the Judge failed to

adhere to those rules of natural justice that are appropriate to an inquiry of the kind that he was conducting and that in consequence it was not open to him to make the finding that he did in paragraph 377 (the ‘predetermined plan of deception’ and “litany of lies’ paragraph) of his report.”

The judicial committee said members had read and re-read Mr Mahon’s findings on the cause of the disaster which had not been challenged in the New Zealand Court of Appeal. “Having done so, they would desire to place on record their tribute to the brilliant and painstaking investigative work undertaken by the Judge (Mr Mahon), with the support of counsel appointed to assist him, in the course of hearings which lasted for 75 days and other investigations which he or counsel assisting him undertook in addition to the public hearings,” it said.

A past chairman of the British Press Council and former lecturer in air law, Sir Patrick Neill, Q.C., led the team of counsel for Mr Mahon. With him was an Auckland barrister, Mr W. D. Baragwanath, who was counsel assisting the Royal Commission; Mr N. Bratza; and Mr R. S. Chambers. Counsel appearing for Air New Zealand were Mr Robert Alexander, Q.C. a prominent London silk; Mr

Lloyd Brown, Q.C.; and Mr R. J. McGrane, both of Auckland. The latter two appeared for the airline at the Royal Commission hearMr Robert Smellie, Q.C., of Auckland, appeared for the Attorney-General, Mr McLay, named as fourth respondent. With him were Mr David Widdicombe, Q.C., and Mr N. C. Anderson, who appeared for the office of air accident investigations at the commission.