Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of t | Page 9

part of a
context which could lead to inferences adverse to Captain Gemmell
being drawn from the paragraphs complained of.
The applicants say that there was a mistake of fact, no evidence of
probative value and no fair opportunity to answer the criticisms or
findings which they claim to be implicit in these paragraphs. The last
point, the natural justice one, has a special feature in the case of
Captain Gemmell. The applicants say that the findings, apart from one
made under mistake (paragraph 352), were based on information or
evidence gathered by the Commissioner after the public hearings; and
that, while an opportunity of meeting the new matter was given to the
Chief Inspector of Air Accidents, none was given to Air New Zealand
or Captain Gemmell.
Another special feature is that the Commissioner himself ultimately
concluded (paragraph 360) 'However, there is not sufficient evidence to
justify any finding on my part that Captain Gemmell recovered
documents from Antarctica which were relevant to the fatal flight, and
which he did not account for to the proper authorities'.
Alleged 'Orchestration'
We now come to the most serious complaint. It concerns paragraph 377

of the report, a paragraph building up to a quotable phrase that has
become well known in New Zealand and abroad:
377. No judicial officer ever wishes to be compelled to say that he has
listened to evidence which is false. He always prefers to say, as I hope
the hundreds of judgments which I have written will illustrate, that he
cannot accept the relevant explanation, or that he prefers a contrary
version set out in the evidence.
But in this case, the palpably false sections of evidence which I heard
could not have been the result of mistake, or faulty recollection. They
originated, I am compelled to say, in a pre-determined plan of
deception. They were very clearly part of an attempt to conceal a series
of disastrous administrative blunders and so, in regard to the particular
items of evidence to which I have referred, I am forced reluctantly to
say that I had to listen to an orchestrated litany of lies.
The applicants claim that these findings were not based on evidence of
probative value and that the affected employees were not given a fair
opportunity of answering such charges. The general allegation in the
statement of claim that the findings attacked were made in excess of
jurisdiction has in our view a special bearing on this paragraph. The
applicants say that the paragraph affects a considerable number of
employees--namely Mr Amies, Mr R. Brown, Mr Davis, Captain Eden,
Captain Gemmell, Captain Grundy, Captain Hawkins, Mr Hewitt,
Captain Johnson and Mr Lawton. These include all the employees
affected by the other paragraphs under challenge.
We accept that reasonable readers of the report would take from it that
the conspiracy which the Commissioner appears to postulate in his
references to 'a pre-determined plan of deception' and 'an orchestrated
litany of lies' was seen by him as so wide as to cover all those persons.
Paragraph 377 is the culmination of a series of paragraphs beginning
with paragraph 373 and separately headed by the Commissioner 'The
Stance adopted by the Airline before the Commission of Inquiry'. They
include specific references to the chief executive, described as 'very
able but evidently autocratic' in the context of an allusion to what
'controlled the ultimate course adopted by the witnesses called on
behalf of the airline'. There are also specific references to the executive
pilots and members of the navigation section.
It is possible that some individual witnesses did give some false

evidence during this inquiry. The applicants accept that this was for the
Commissioner to consider and that it is not for us to interfere with his
assessment of witnesses. But the complaint goes much further than that.
It is that there is simply no evidence on which he could find a
wholesale conspiracy to commit perjury, organised by the chief
executive, which is what this part of the report appears to suggest. Our
conclusion that here the Commissioner went beyond his jurisdiction
and did not comply with natural justice--a conclusion to be explained
more fully later in this judgment--makes it unnecessary for us to decide
whether there was any evidence that could conceivably warrant such an
extreme finding. It is only right to say, however, that if forced to decide
the question we would find it at least difficult to see in the transcript
any evidence of that kind.
The language of paragraph 377 has evidently been carefully selected
for maximum colour and bite, and the Commissioner has sought to
reinforce its impact by bringing in his status and experience as a
judicial officer. While unfortunate, it is no doubt that result of a search
for sharp and striking expression in