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 (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.