Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of t | Page 7

during 1978 and 1979. I cannot for a
moment accept that suggestion. First Officer Rhodes made a specific
inquiry at McMurdo within a few days of the disaster and ascertained
that the destination waypoint of the first Air Traffic Control flight plan
for 1979 had been plotted by the United States Air Traffic Control
personnel, and there was evidence from the United States witnesses that
this would be normal practice. In my view the word 'McMurdo' would
merely be regarded, and was indeed regarded, by McMurdo Air Traffic
Control as referring to the same McMurdo waypoint which had always
existed. In my opinion, the introduction of the word 'McMurdo' into the
Air Traffic Control flight plan for the fatal flight was deliberately
designed to conceal from the United States authorities that the flight
path had been changed, and probably because it was known that the
United States Air Traffic Control would lodge an objection to the new
flight path.
(f) I have reviewed the evidence in support of the allegation that the
Navigation Section believed, by reason of a mistaken verbal
communication, that the altered McMurdo waypoint only involved a
change of 2.1 nautical miles. I am obliged to say that I do not accept

that explanation. There were certainly grave deficiencies in
communication within the Navigation Section, but the high
professional skills of the Navigation Section's staff entirely preclude
the possibility of such an error. In my opinion this explanation that the
change in the waypoint was thought to be minimal in terms of distance
is a concocted story designed to explain away the fundamental mistake,
made by someone, in failing to ensure that Captain Collins was notified
that his aircraft was now programmed to fly on a collision course with
Mt. Erebus.
These paragraphs are attacked on the grounds, in short, that the
members of the navigation section said to be adversely affected by
them--according to the applicants, Mr R. Brown as regards (e) and
Messrs Amies, Brown, Hewitt and Lawton as regards (f)--were not
given a fair opportunity of answering the findings or allegations.
To understand this complaint one needs a clear picture of what it was
that the Commission found or alleged against the navigation section.
When studying the report as a whole we have encountered difficulties
in this regard, difficulties not altogether removed when we explored
them during the argument with Mr Baragwanath. But our
understanding is that in essence the Commissioner suggests that the
original change of the southernmost point to one in the Sound, 25 miles
west of McMurdo Station, was probably deliberate on the part of the
navigation section (although he refrained from a definite finding) and
that in November 1979 they deliberately made a major change back to
the vicinity of McMurdo Station but deliberately set out to conceal the
change from the American personnel there. The motive for the 1979
change ascribed by the Commissioner to the navigation section appears
to be that they considered that the New Zealand Civil Aviation
Division had only approved a route over Mount Erebus, yet at the same
time that the American 'authorities' would object to that route,
regarding the route down the Sound as safer. In short the theory (if we
understand it correctly) is that the navigation section were in a dilemma
as there was no route approved by all concerned.
Beyond argument, it would seem, there was slipshod work within the
airline in the making of the change and the failure to expressly notify
flight crews. But the allegations of deliberate concealment and a
concocted story are another matter. The complaint is that they were

never put squarely to the members of the navigation section. The
Commissioner himself did put to the chief navigator, Mr Hewitt, that
'Someone may suggest before the inquiry is over' that the word
'McMurdo' was relayed to McMurdo to conceal a long-standing error in
the co-ordinates. Mr Hewitt replied 'Certainly not, sir' and there, the
applicants point out, the matter was left, without further questions to
witnesses by anyone or any reference in counsel's final submissions.
On the other hand Mr Baragwanath urged in substance that the
witnesses from the navigation section must have understood that their
evidence was under suspicion; that they had ample opportunities to
explain how and why any mistakes occurred; and that it was for the
Commissioner to assess their explanations, taking into account any
impressions they made on him individually as witnesses.
Captain Eden
First Officer Rhodes, an accident inspector, had been one of the party
who went to the Antarctica very shortly after the crash. He was
representing the Air Line Pilots Association as well as working with
others in the party. When he first gave evidence at the inquiry he was
called by counsel for the association. Apparently concern was felt