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 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: