Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of t | Page 6

been left to these very same officials to determine what documents they would hand over to the Investigating Committee.
These paragraphs occur in the context of a discussion of the change in the computer waypoint shortly before the flight and the failure to draw it to the attention of the flight crew. The reference to the chief executive having 'determined that no word of this incredible blunder was to become publicly known' is, taken by itself, at least an overstatement, because in paragraph 48 the Commissioner in effect qualifies it. He says there that it was inevitable that the facts would become known and 'perhaps' the chief executive had only decided to prevent adverse publicity in the meantime. Clearly the airline disclosed to the Chief Inspector that the change of more than two degrees of longitude had been made in the computer early on the day of the flight and not mentioned to the crew; these matters are referred to in paragraphs 1.17.7 and 2.5 of the Chief Inspector's report. They were matters which the Chief Inspector did not highlight; evidently he did not regard them as of major importance. For his part the Commissioner (in para. 48 of his report) states that the Chief Inspector did not make it clear that the computer flight path had been altered before the flight and the alteration not notified to the crew.
We are not concerned with whether or not the Commissioner's implied criticism of the Chief Inspector's report is correct. The complaint made by the applicants is that the criticisms of Mr Davis in the two paragraphs that we have set out are based on mistake of fact, not on evidence of probative value. It is also said that he was not given a fair opportunity to put his case in relation to such findings, but what the applicants most stress is the way in which the Commissioner dealt with the evidence.
In particular they point out that the evidence of Mr Davis, not contradicted by any other evidence and correctly summarised in paragraph 45 of the Commissioner's report, was that only copies of existing documents were to be destroyed; that he did not want any surplus document to remain at large in case its contents were released to the news media by some employee of the airline; and that his instructions were that all documents of relevance were to be retained on the single file. Their counsel submit in effect that in converting this direction for the preservation of all relevant documents into a direction for the destruction of 'irrelevant' documents--a word used by the Commissioner as if it were a quotation from Mr Davis--the Commissioner distorted the evidence. And it is said that the description 'one of the most remarkable executive decisions every to have been made in the corporate affairs of a large New Zealand company' is, to say the least, far-fetched.
Counsel for the applicants point also to the fact that there is no evidence that any document of importance to the inquiry was destroyed in consequence of the instructions given by Mr Davis. The gist of the contrary argument presented by Mr Baragwanath was that Mr Davis was fully cross-examined about his instructions; and that 'it was open to the Royal Commissioner to find that there were in existence documents which never found their way to that file and that the procedures were tailor made for destruction of compromising documents'.
Alteration of Flight Plan
Paragraph 255 (e) and (f), in numerical order the next passages complained of, refer to the fact that when the co-ordinates in the Auckland computer were altered a symbol was used which had the effect of including in the information to be sent to the United States air traffic controller at McMurdo Station the word 'McMurdo' instead of the actual co-ordinates (latitude and longitude) of the southernmost waypoint. The Commissioner said:
(e) When the TACAN position [a navigational aid at McMurdo Station enabling aircraft to ascertain their distance from it] was typed into the airline's ground computer in the early morning of 28 November 1979, there was also made the additional entry to which I have referred, which would result in the new co-ordinates not being transmitted to McMurdo with the Air Traffic Control flight plan for that day. It was urged upon me, on behalf of the airline, that McMurdo Air Traffic Control would consider the word 'McMurdo' as indicating a different position from that appearing on Air Traffic Control flight plans dispatched from Auckland 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