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

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 by the airline that some of his evidence might be taken to reflect on Captain Gemmell (the Flight Manager, Technical, and former Chief Pilot) so First Officer Rhodes was recalled as a witness by counsel for the airline. He said that he had 'no reason to doubt Captain Gemmell in any way shape or form'. There was some