Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of t | Page 8

cross-examination by counsel for the association but no reference was made to Captain Eden in any of the questions. The Commissioner said in paragraph 348 of his report:
348. Captain Eden is at present the director of flight operations for the airline. He appeared in the witness box to be a strong-minded and aggressive official. It seemed clear from this further production of First Officer Rhodes as a witness that it had been suggested to him by Captain Eden that he should either make a direct allegation against Captain Gemmell or else make no allegation at all, and that since First Officer Rhodes seemed to have no direct evidence in his possession, he was therefore obliged to give the answer which Captain Eden had either suggested or directed. However, First Officer Rhodes was not entirely intimidated because as will be observed from the evidence just quoted, he insisted on saying that Captain Gemmell had brought an envelope containing documents back to Auckland.
Exception is taken to that paragraph as making findings of intimidation against Captain Eden without any such allegation ever having been put to him. Captain Eden gave evidence later in the inquiry than First Officer Rhodes and the transcript shows that he was asked nothing by anyone about their discussion.
Captain Gemmell
The following paragraphs of the report are attacked for their references to this senior officer:
352. As to the ring-binder notebook, it had been returned to Mrs Collins by an employee of the airline, but all the pages of the notebook were missing. Captain Gemmell was asked about this in evidence. He suggested that, the pages might have been removed because they had been damaged by kerosene. However, the ring-binder notebook itself, which was produced at the hearing, was entirely undamaged.
353. After the evidence given before the Commission had concluded, I gave some thought to the matters just mentioned. I knew that the responsibility for recovering all property on the crash site lay exclusively with the New Zealand Police Force, and that they had grid-searched the entire site. All property recovered had been placed in a large store at McMurdo Base, which was padlocked, and access to the shed was only possible through a senior sergeant of Police. I asked counsel assisting the Commission to make inquiries about the flight bags which had been located on the site but which had not been returned to Mrs Collins or Mrs Cassin.
354. The Royal New Zealand Air Force helicopter pilot who flew the property from the crash site to McMurdo remembered either one or two crew flight bags being placed aboard his helicopter, and he said that they were then flown by him to McMurdo. This was independently confirmed by the loadmaster of the helicopter, who recollected seeing the flight bags. The senior sergeant of Police in charge of the McMurdo store was spoken to, and he recollected either one or two flight bags among other property awaiting packing for return to New Zealand. He said that personnel from Air New Zealand had access to the store, as well as the chief inspector, and the senior sergeant said that he thought that he had given the flight bags to the chief inspector and that the chief inspector was the sole person to whom he had released any property. The chief inspector was then interviewed on 11 December 1980 by telephone, being at that time in Australia, but he said that no flight bags were ever handed to him. ...
359. The following facts seemed to emerge:
(1) The two flight bags were lodged in the Police store at McMurdo and would have been returned in due course to Mrs Collins and Mrs Cassin by the Police. But they were taken away from the store by someone and have not since been seen. ...
These paragraphs followed a discussion by the Commissioner of a submission by counsel for the Pilots Association that a number of documents which would have tended to support the proposition that Captain Collins had relied upon the incorrect co-ordinates had not been located; and in that context the Commissioner recorded Captain Gemmell's denial that he had recovered any documents relevant to the flight which had not been handed over to the chief inspector. There was also a reference shortly afterwards in the report to Captain Gemmell having brought back some quantity of documents with him from Antarctica. On its own this would be innocuous, but it is 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