Author alleges Govt, airline devised plan to stop appeal

Press, 26 October 1984, Page 1

Author alleges Govt, airline devised plan to stop appeal

PA Wellington The Muldoon Government and Air New Zealand devised a scheme “of considerable subtlety” to stop his appeal to the Privy Council, said the Mount Erebus Royal Commissioner, Mr Peter Mahon, yesterday. He made this accusation at the National Press Club launching of his book, “Verdict on Erebus.” It was one of several echoes from the November, 1979, crash of Air New Zealand’s scenic flight No TE9OI in which 257 passengers and crew died. Mr Mahon also alleged that having failed to stop his appeal, the Government “propaganda machine” swung into action and the then Attorney-General, Mr McLay, campaigned for abolition of the right to appeal to the Privy Council. Until then, Mr McLay had been “devoutly in favour” of retaining the right to appeal, Mr Mahon said.’

Mr McLay had first said that the Government would take no part in the appeal. But advisers were startled to find in London only two days before the hearing that the Government intended to oppose the application “with every means in its power”. “In other words, having agreed to pay the costs of the appeal the Government decided without any notice to attempt to stop the appeal from being heard,” he said.

In his address to the news media yesterday, Mr Mahon also dissected the judgment of the Court of Appeal and of the Privy Council which in part went against his 1981 report as Royal Commissioner into the crash on Mount Erebus.

He said the Privy Council made factual errors in its judgment, perhaps as many as 20, and some of them “very spectacular.” The Law Lords, in effect, rubber-stamped the minority view of the New Zealand Court of Appeal.

This said that though he specifically acquitted certain Air New Zealand employees of suggestions of misconduct in his inquiry report, he really convicted them “if you read the report as a whoje.” Mr Mahon also alleged that an approach was made in a personal letter to the Privy Council Law Lords by the Chief Inspector of Air Accidents, Mr Ron Chippindale, “in general terms, defamatory of myself in that it indicated that I was not competent to decide the issues which the inquiry had raised.”

Mr Mahon said that he did not reveal to the Privy Council what he called “these irregularities” because it was obvious from the first day of the hearing in London that the appeal would be dismissed.

“In my opinion, nothing that we said or did would have made any difference,” he said.

Mr Mahon said that as a matter of historical tradi-

tion, the Privy Council was careful not to give offence to the Governments of Commonwealth countries when the Government itself was involved in an appeal. He linked the decision of the Privy Council on his Mount Erebus appeal with its earlier decision on the question of Western Samoan overstayers. “The Privy Council had ruled against the Government, and the utmost resentment had been expressed in Government circles in New Zealand at this result,” he said. The Government had taken “grave offence” at their lordships’ interpretation of a statute which it thought was crystal clear. “You will now see the nature of the tactical device adopted by the Government in the Mount Erebus appeal,” Mr Mahon said. “If the Government represented itself as an independent and neutral participant and strongly pressed the Privy Council not to

give leave to appeal, then there was every chance that my application for leave would be defeated,” he said. However, “this carefully constructed plot” fell to pieces. The five Law Lords, like most lawyers in New Zealand, had never heard of the suggestion “that you had to warn witnesses that you might not believe them,” which was the “innovation” ruled by the Court of Appeal.

Mr Mahon said that he decided to resign as a judge of the High Court because of the minority judgment of the Court of Appeal delivered by its president, Mr Justice Woodhouse, and Mr Justice McMullan. “In the view of these judges, even though I had acquitted nominated airline employees in my report to the Governor-General, this was really a false opinion and I had in reality expressed implied views of the opposite sense,” he said. “This meant that various

management personnel had been defamed by me under the cloak of privilege; such was the over-all effect of the minority judgment.

“In view, of the obvious imputation of bad faith which it contained, I decided that I had no alternative but to resign.” His appeal to the Privy Council was dismissed on the grounds that “I should have warned these individuals of accusations which in fact I had never , made against them.” Mr Mahon said that every observation made in the Privy Council judgment referring to the actual course of the inquiry was wrong. But he doubted if the Law Lords were entirely to blame. Further report, page 2

“The day-to-day circumstances which surrounded the hearing of the Royal Commission were entirely unknown to them because no evidence had ever been given by anyone as to the course which the proceedings took,” Mr Mahon said. “The mistakes made by the Law Lords in this area mainly consist of uninformed speculation.” One error of fact, he said, was when their lordships said it had been undisputed at the hearing that he held the chief executive of Air New Zealand guilty of organising the destruction of all documents which would have disclosed the computer mistake (which Mr Mahon

had alleged set the flight on course for crashing on Mount Erebus.)

“I checked this startling assertion with counsel, and need hardly say that no such concession was ever made on my behalf before the Privy Council,” he said. “On the contrary, the submissions made on my behalf before the Privy Council are a matter of record. It was strongly contended that I at no stage made any such accusation.”

Mr Mahon said it was perfectly clear that he had accepted the explanation of the chief executive (Mr Morrie Davis) that he was concerned only about leakages to the news media. “Lord Diplock, who delivered the judgment of the Privy Council, had plainly forgotten what counsel on

my behalf had told him.” Mr Mahon said that before the hearing in London the Crown Law Office made a. private approach to the Court of Appeal asking its views on the nature and extent of submissions made on his behalf to the Court of Appeal. “Government lawyers were then supplied with a memorandum from the Court of Appeal giving the requested opinions, and this memorandum was later distributed round the courtroom in London,” he said. “My English counsel were appalled to find that the Court of Appeal had entered into private communication with the Government lawyers without my New Zealand counsel being given any opportunity to be heard.”

Mr Mahon said the English counsel “really could not believe that any appellant court in the Commonwealth could have entertained a secret communication of this kind from one party when an appeal was pending from the Court of Appeal.” Mr Mahon said that informed observers could hardly be blamed for taking the view that this was “a clumsy patchwork judgment designed to placate the Air New Zealand management and in particular, to smooth the ruffled plumage of the New Zealand Government bearing in mind the Western Samoan decision.”