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One of the first photos taken after the Erebus crash site was located - Source: DSIR -
Related
The publication of the Mahon Report in April 1981 caused "political and public pandemonium"(1) in New Zealand that extended to the highest levels. Prime Minister Robert Muldoon (a friend of Air New Zealand CEO Morrie Davis, and Deputy Chairman of the Board Des Dalgety, and, as Minister of Finance the company's principal shareholder) was "not pleased with the suggestion that there had been 'an orchestrated litany of lies' by unidentified Air New Zealand witnesses. [He] commented that 'it would have been better if Mr Justice Mahon had phrased his views 'less elegantly and more precisely.'"(2) Muldoon publicly challenged Mahon to name the 'conspirators and liars', and to provide evidence to back up his answers.
Those maligned by Mahon's conclusions also reacted strongly. Morrie Davis resigned as CEO, and he, Air New Zealand as a single entity, and Captain Ian Gemmell (Chief Pilot, Air NZ) began combined legal action demanding judicial review of Justice Mahon's findings. The applicants' request for this review to be held in the Court of Appeal was initially rejected by the High Court, where Justice Speight proposed that a High Court trial take place after matters of law were debated upon by the appellant court. However, on appeal, judges Cooke, Richardson, McMullin and Somers held that: "This case was exceptional, not only because of the magnitude of the disaster and the public importance of the issues, but also because it related to the conduct of an inquiry held by a High Court Judge. Justice might be more manifestly seen to be done if the complaints were adjudicated on in a Court other than the one of which he is a member. It was also important that the complaints be finally adjudicated on as soon as possible. These two factors plainly outweighed any disadvantages involved in a single hearing in the Court of Appeal."(3)Accordingly, the matter found its way before the Court of Appeal for six days in October 1981.
The appellant court's decision in favour of the applicants was a shattering blow to Justice Mahon, who "decided to retire immediately because he took the Court's finding to mean his credibility as a judge had been destroyed and that he was 'incapable of distinguishing truth from falsehood'."(4) Mahon's offer of resignation caused political friction between the Prime Minister (who was ready to accept it immediately) and Attorney-General McLay (a strong defender of the judge) who objected strongly to that course of action.
Mahon petitioned the government to appeal to the Privy Council, both because he held that the Court of Appeal had "misconceived the true nature of a Royal Commission" and because both Woodhouse and McMullin had children who worked for Air New Zealand, creating questions over the propriety of their adjudicating on the matter (5). Unfortunately for the judge the Privy Council concurred with the assessment of the Court of Appeal and, despite their statement that "their Lordships' recommendation that the appeal ought to be dismissed cannot have any adverse effect upon the reputation of the Judge among those who understand the legal position, and it should not do so with anyone else,"(6) it did precisely that, and effectively ended Peter Mahon's legal career.
Court of Appeal judgement
The 50 pages of the Court of Appeal judgement are a meaty read - as
one would expect of the summary of the deliberations of five judges
of the Court of Appeal - but entirely worth the time and
concentration required for their digestion. Little sense will be
made of their content, however, if the reader has not previously
considered at length the text of the Mahon Report - the focus of
the appeal, and a 'must-read' in any examination of the Erebus
tragedy
The Issues Under Review
In October 1981, Air New Zealand, Morrie Davis and Ian Gemmell brought a request for judicial review of certain findings in the Mahon Report under the Judicature Amendment Act 1972.
It is important to realise that the scope of the Court of Appeal hearing did not (and could not) include the causes of the disaster. The applicants sought "orders that the findings should be set aside and for declarations that they had been made in excess of jurisdiction and in circumstances involving unfairness and breaches of the rules of natural justice." (7)
The parts of the report at issue were that the following conclusions were explicitly expressed, or insinuated, by Justice Mahon in his report without the support of 'probative' evidence.
That Air New Zealand had orchestrated a 'pre-determined plan of deception' and committed organised perjury whilst giving evidence before the Commission.
That CEO Morrie Davis - by his instruction to destroy 'irrelevant' documents - had sought to ensure the destruction of evidence harmful to Air New Zealand's case before the Commission.
That the catalogue of errors within the flight operations and navigation divisions (that resulted in the changing of the McMurdo waypoint without the knowledge of the flight crew) reported to the Commission was a fabricated story: a story concocted to explain away the airline's deliberate actions undertaken to deceive both the Civil Aviation Division in New Zealand and the air traffic control authorities at McMurdo Sound.
That Captain Eden had coerced the testimony of First Officer Rhodes regarding the character of Captain Gemmell.
That Captain Gemmell had removed from the crash site documents vital to the investigation, but harmful to Air New Zealand's case, and not disclosed those documents to the Commission.
And, finally, the applicants claimed that Justice Mahon's order that Air New Zealand pay $150,000 towards the $275,000 cost of the Commission was invalid. Mahon had, in an appendix to the report, made this finding against Air New Zealand because he claimed their adversarial conduct and reluctant sharing of information had unnecessarily prolonged the proceedings.
Jurisdiction and judgement
The case was heard by five judges, and two judgements were
delivered: that of judges Cook, Richardson and Somers (presented
first in the following material); and that of judges Woodhouse and
McMullin. Both judgements reach the same conclusions, but the
latter gives more attention to the points of law and jurisdiction
at issue, and reaches a more comprehensive denouncement of Justice
Mahon's report.
To get a thorough understanding of the finer points of law that dictated the degree and nature of response the Court of Appeal could deliver, it is suggested that the reader pay closer attention to the judgement of Woodhouse and McMullin.
Firstly, they explain that 1977 amendments to the Judicature Amendment Act make reviews under its powers relevant to any exercise of 'statutory power', and that the Commission of Inquiry was indeed an exercise of statutory power, because it affected the 'rights' of those involved: "At common law every citizen has a right not to be defamed without justification. Severe criticism by a public officer made after a public inquiry and inevitably accompanied by the widest publicity affects that right especially when the officer has judicial status&" (8) Woodhouse and McMullin state that "[P]aragraph 377 amounted to public and official disclosures of alleged criminal conduct& [and] the individuals concerned were exposed to the hazard of prosecution... [therefore] it affords a striking instance of how contrary to the public interest it would be if the Courts were not prepared to protect the right to reputation."(9)
They clarify, previous to these statements, that the applicants did not have available to them any other form of legal redress
Natural Justice
The discussion then turns to the issue of "natural justice", and
their legal assertion that the laws of natural justice were
applicable to the activities of a royal commission. Specifically
they cite an amendment made in 1980 to the Commissions of Inquiry
Act 1908. This amendment stipulated that "any person who satisfied
the Commission that any evidence given before it may adversely
affect his interests must be given an opportunity to be heard in
respect of the matter to which the evidence relates."(10) The
essence of the 'natural justice' complaint made by the applicants
is that they were never given the opportunity to counter Justice
Mahon's conclusions about their conduct and character.
Both judgements conclude that Justice Mahon - by not directly confronting the alleged conspirators with his "grave findings of concerted misconduct"(11) - breached the laws of natural justice.
Both judgements also cover in detail each specific point of objection cited by the applicants. The judges systematically discredit Justice Mahon's assessment of the evidence available to him, and the method by which he arrived at his opinions and conclusions in each case, concluding without exception that the judge did not abide by the laws of natural justice.
Contrary tolLaw - Costs
More black-and-white (to the non-legal mind) was the judges' ruling
on the issue of costs. The decision comprises two elements:
The amount of the award was illegal. Under a "long out-of-date but apparently still extant scale prescribed in 1903" (12), the maximum amount of costs able to be made in such an instance was $600.(13)
The award of costs itself was an illegal use of the discretion granted under the Commissions of Inquiry Act 1908.
On the second matter, Justice Mahon's opinion and judgement again comes under attack. Under section 11 of the 1908 Act, Mahon had the statutory authority to "order that the whole or any portion of the costs of the inquiry& shall be paid by any of the parties to the inquiry..."(14)
The Court of Appeal judges concluded that Mahon's application of that statutory discretion was flawed.
Justice Mahon felt that the power to order costs "should be exercised& whenever the conduct of that party at the hearing has materially and unnecessarily extended the duration of the hearing."(15) With reference to Air New Zealand's conduct he opined: "There were material elements of information in the possession of the airline which were originally not disclosed& It was not a question of the airline putting all its cards on the table. The cards were produced reluctantly, and at long intervals, and I have little doubt that there are one or two which will lie hidden in the pack. In such circumstances the airline must make a contribution towards the public cost of the Inquiry." (16)
In view of those words, the Court of Appeal judges concluded that "the imposition of an order for costs in the sum of $150,000 was nothing less than the exaction of a penalty," (17) - suggesting that imposition of penalties was outside the jurisdiction of a royal commissioner - and that that penalty was imposed on the basis of the invalid finding of an orchestrated conspiracy to perjure, and therefore illegal itself.
In Excess of Jurisdiction
Justice Mahon's most damning conclusion was that of the
'orchestrated litany of lies', and it was with regard to this
opinion that the applicants claimed he had acted outside his
jurisdiction as commissioner.
Before the Court of Appeal hearing, counsel for Justice Mahon cited the Commission of Inquiry's terms of reference as the source of scope for the inclusion of these comments. Paragraph (j) required the Commissioner to report upon "facts or matters arising out of the crash that, in the interests of public safety, should be known to the authorities charged with the administration of civil aviation&" The presiding judges, however, concluded that Mahon's 'vehement and pungent' (18) comments about the integrity of the airline's witnesses were "collateral assessments of conduct made outside of and were not needed to answer any part of the terms of reference. The Commissioner had no authority or jurisdiction to deal with the affected officers in such a fashion and the findings themselves are a regrettable addition to the Report." (19)
The judges had already - in the process of individually assessing each of the other matters - discredited Mahon's sources of evidence for an organised conspiracy, thus allowing them to declare his assessment not only non-jurisdictional in nature, but also substantially invalid.
Privy Council Judgement
For 14 days in July and one day in October 1983, Lords Diplock,
Keith, Scarman, Bridge and Templeman considered the appeal of
Justice Mahon against the findings of the Court of Appeal. Again,
it is important to state that the scope of the proceedings did not
include a reconsideration of the causes of the accident, merely the
ultimate validity under law of the Commissioner's conclusions
regarding the integrity of several of the key witnesses
Worthy of early note are what can only be described as the Lords'
efforts to mitigate what they obviously realised would be the
damning effect of their judgement. Very early in their summation
they state: "they would desire to place on record their tribute to
the brilliant and painstaking investigative work undertaken by the
Judge& in the course of hearings which lasted for 75
days&Deserving of mention also are the patience and courtesy
with which those hearings were conducted by the Judge& The
Judge and those counsel who were assisting him, however, laboured
under a severe handicap to which, in their Lordships' view, the
unfortunate sequelae of the Royal Commission Report are in large
part attributable. That handicap was pressure of time." (20)
Then, in the dying stages of the dissertation, they intimate their pain at delivering a judgement that will reflect adversely on an esteemed member of the legal profession: "their Lordships have very reluctantly felt compelled to hold that& the Judge failed to adhere to those rules of natural justice&" They continue: "To say of a person who holds judicial office, that he has failed to observe a rule of natural justice, may sound to a lay ear as if it were a severe criticism of his conduct which carries with it moral overtones. But this is far from being the case& [T]his kind of failure& is simply one possible ground of appeal among many others and attracts no particular attention&" (21)
In arriving at their judgement, the Privy Council make it clear early on that they believe the Judge erred in his assessment of the evidence before him - and it is on these grounds that the judicial review is warranted. The Lords postulate that the piecemeal collection of evidence by the time-pressured inquiry would have impeded the Judge's ability to assess that evidence. They highlight the diversion from the agreed order of witnesses called, the abandonment of the requirement for written briefs to be presented to counsel in advance of the witnesses' appearances, (22) and the absence of opening statements by counsel as flaws of process. However, they also acknowledge that at an inquiry - as opposed to during court proceedings - "the emergence of facts, and the realisation& of their relative importance, [will] be more elusive and less orderly&" (23)
A consideration of legal matters follows, and is similar in
content and nature to the discussion contained within the Woodhouse
and Cooke judgements of the Court of Appeal.
The first issue addressed specifically is that of the order of
costs. The Lords agree with the Court of Appeal that the order of
costs was based upon Mahon's conclusion that Air New Zealand and
its agents before the Commission were guilty of organised perjury,
and that in making the costs order "the Judge failed by
inadvertence to observe the rules of natural justice..." (24)
The rules of natural justice Mahon was said to have breached were: that any finding must be made upon evidence of probative value - and must not be 'logically self-contradictory' (25) - and that any relevant conflicting evidence must be heard (the principle of audi alteram partem - 'hearing the other side').
The Lords acknowledge that the evidence showed "inexcusable blunders and slipshod administrative practices by the management of Air New Zealand" (26) but that these occurrences were not constituent parts of an organised plan of deception.
The body of the judgement reinforces this over-arching opinion by addressing each of the items of concern brought to the Court of Appeal by the original applicants. (There is a particularly easy-to-follow summary of the sequence of events surrounding the four changes of position of the McMurdo waypoint on pages 679-680.) The only evidence considered by the Lords to undeniably contain aspects of false testimony was that of the executive pilots who claimed to have had no specific knowledge of flights in the Antarctic below 6000 feet.
However, the Lords do not accept these falsehoods to be "concerted attempts to deceive anybody as to what had happened." (27)
Interestingly, in the eyes of a pilot, the Lords' decision that the map comprising Exhibit 164 (28) was not "material of probative value& for a route southwards from Cape Hallett down McMurdo Sound" (29) is perhaps the one that seems most curious from a practical - if not a legal - perspective.
The law Lords' condemnation of Justice Mahon's decision-making logic and processes is comprehensive, and one can only imagine the effect it must have had upon the New Zealand judge as he read it. Indeed, the commandment that their decision should not "have any adverse effect upon the reputation of the Judge" seems directly to acknowledge their awareness of the hurt, damage and public sensation it would cause.
Please read the 25 pages penned by the eminent Lords of the Privy Council (and make reference, if need be, to the following glossary of not-so-everyday terms appearing therein) and consider them, along with all that precedes this final chapter in the Erebus saga, in order to come to your own conclusions about the motivation behind the actions that define a tragedy that ultimately killed 257 people.
Legal Process Footnotes:
1 McLoughlin, David Erebus crash: myths and reality, The Dominion
Post, 12 February 2008
2 Gustafson, Barry His Way: A Biography of Robert Muldoon, page
291, Auckland University Press, 2000.
3 Court of Appeal judgement, Re Erebus Royal Commission; Air New
Zealand Ltd v Mahon NZLR 1981, page 614.
4 Gustafson, Barry His Way: A Biography of Robert Muldoon, page
292, Auckland University Press, 2000.
5 Gustafson, Barry His Way: A Biography of Robert Muldoon, page
292, Auckland University Press, 2000. (Also refer to Parts XI and
XII of Stuart Macfarlane's The Erebus Papers, Avon Press Ltd, 1991,
for further discussion on this matter.)
6 Privy Council judgement, Re Erebus Royal Commission; Air New
Zealand Ltd v Mahon, NZLR 1983, page 685.
7 Privy Council judgement, Re Erebus Royal Commission; Air New
Zealand Ltd v Mahon, NZLR 1983, page 670.
8 Woodhouse and McMullin in, 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
C.A 95/81, (Gutenberg eBook), p. 25
9 idem
10 Quoted in Woodhouse and McMullin in, 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 C.A 95/81, (Gutenberg eBook), p. 26
11 ibid p. 27
12 Cook, Richardson and Somers in, 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 C.A 95/81, (Gutenberg eBook), p 13
13 Woodhouse and McMullin, p. 50
14 Quoted in Privy Council judgement, Re Erebus Royal l Commission;
air New Zealand Ltd v Mahon, NZLR 1983, page 667.
15 Quoted in Cook, Richardson and Somers in, 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 C.A 95/81, (Gutenberg eBook), p 13
16 idem
17 Woodhouse and McMullin in, 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
C.A 95/81, (Gutenberg eBook), p. 51
18 Paraphrase of Baragwanath quoted in ibid, p. 49
19 Woodhouse and McMullin in, 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
C.A 95/81, (Gutenberg eBook), p. 50
20 Privy Council judgement, Re Erebus Royal Commission; Air New
Zealand Ltd v Mahon, NZLR 1983, page 665.
21 ibid page 685.
22 ibid, page 665.
23 ibid, page 666.
24 ibid, page 671.
25 idem
26 ibid, page 672.
27 ibid, page 674.
28 Exhibit 164 was a map upon which was drawn "a route southwards
from Cape Hallett down McMurdo Sound to the west of Ross Island and
another route northwards to Cape Hallett passing to the east of
Ross Island&that [both] run off the southern edge of [the map]
without joining up&"
Privy Council judgement, Re Erebus royal Commission; air New
Zealand Ltd v Mahon, NZLR 1983, page 682.
29 idem
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