ocular illusion as it existed on the approach to Mt. Erebus at 12.50 p.m. on 28 November 1979.

Paragraph 165 of the Commissioner's report also merits quotation. We have underlined some of it, indicating that in this particular part of his report the Commissioner seems to accept that when they first heard of the crash the management of the airline must have been unaware of the true nature and danger of a whiteout. If so, they would have had no reason to suppose that the pilot would have elected to fly at such a low level without real visibility. That is an aspect which could well have been strongly relied on if, when giving evidence before the Commissioner, they had realised that they were being accused of trying to cover up the cause of the crash from an early stage:

While largely agreed about the whiteout conditions, the Commissioner and the Chief Inspector took quite different views as to whether the crew had been uncertain of their position and visibility. This disagreement is associated with a major difference as to the interpretation of the tape recovered from the cockpit voice recorder covering the conversation on the flight deck during the 30 minutes before the crash.

Both the Commissioner and the Chief Inspector found difficulty in arriving at an opinion about what was said and by whom. Whereas the Chief Inspector thought that the two flight engineers had voiced mounting alarm at proceeding at a low level towards a cloud-covered area, the Commissioner thought that Captain Collins and First Officer Cassin had never expressed the slightest doubt as to where the aircraft was and that 'not one word' was ever addressed by either of the flight engineers to the pilots indicating any doubt. This is not a question on which the present proceedings call for any opinion from this Court, nor are we in any position to give one.

A major point in the Commissioner's reasoning, and one that helps to explain the difference between the two reports, is that on the basis of evidence from the wife and two daughters of Captain Collins he accepted that, at home the night before the flight, the Captain had plotted on an atlas and two maps a route of the flight; and he drew the inference that Captain Collins must then have had with him a computer print-out. Any such print-out would have been made before the alteration and consequently would have shown the longitude of the southernmost waypoint as 164° 48' E. The Commissioner accordingly concluded that Captain Collins had plotted a route down the Sound. No doubt this tended to reinforce his view that the Captain, flying on nav track, had never doubted that he was in fact over the Sound.

The Challenged Paragraphs

The background already given is needed for an understanding of the case. But we repeat that the case is not an appeal from the Commissioner's findings on causation or other matters. The applicants

acknowledge that they have no rights of appeal. What they attack are certain paragraphs in the Commission report which deal very largely, not with the causes and circumstances of the crash, but with what the Commissioner calls 'the stance' of the airline at the inquiry before him. The applicants say that in these paragraphs the Commissioner exceeded his powers or acted in breach of natural justice; and further that some of his conclusions were not supported by any evidence whatever of probative value. Their counsel submit that a finding made wholly without evidence capable of supporting it is contrary to natural justice.

The arguments on the other side were presented chiefly by Mr Baragwanath and Mr Harrison, who had been counsel assisting the Commission and appeared in this Court for the Attorney-General, not to advance any view on behalf of the Government but to ensure that nothing that could possibly be said in answer to the contentions of Mr Brown and Mr Williams for the applicants was left unsaid before the Court. This was done because it has not been usual for a person in the position of the Commissioner to take an active part in litigation concerning his report. Mr Barton, who appeared for the Commissioner, did not present any argument, adopting a watching role. He indicated that he would only have played an active role if the Commissioner had been required for cross-examination. As already mentioned, it was agreed otherwise. At that stage the Commissioner, by his counsel, very properly stated that he would abide the decision of the Court.

Mr Baragwanath's submissions were to the general effect that the Court had no jurisdiction to interfere with the opinions expressed in the Commission's report, which were not 'findings' and bound no one; and that in any event they were conclusions within the Commissioner's powers, open to him on the evidence and arrived at without any breach of natural justice.

We now set out the various paragraphs under attack, bearing in mind that they cannot properly be considered in isolation from the context in the report. The paragraphs vary in importance, but it is convenient to take them in the numerical order of the report. We will indicate as regards each paragraph or set of paragraphs the essence of the complaint. After doing this we will state how we propose to deal with the complaints.

Destruction of Documents

Paragraphs 45 and 54, which affect particularly the chief executive at the time of the crash, Morrison Ritchie Davis, are as follows: