For 14 days in July and one day in October 1983, Lords Diplock, Keith, Scarman, Bridge and Templeman considered the appeal of Justice Mahon against the findings of the Court of Appeal. Again, it is important to state that the scope of the proceedings did not include a reconsideration of the causes of the accident, merely the ultimate validity under law of the Commissioner’s conclusions regarding the integrity of several of the key witnesses
Worthy of early note are what can only be described as the Lords’ efforts to mitigate what they obviously realised would be the damning effect of their judgement. Very early in their summation they state: ”they would desire to place on record their tribute to the brilliant and painstaking investigative work undertaken by the Judge… in the course of hearings which lasted for 75 days…Deserving of mention also are the patience and courtesy with which those hearings were conducted by the Judge… The Judge and those counsel who were assisting him, however, laboured under a severe handicap to which, in their Lordships’ view, the unfortunate sequelae of the Royal Commission Report are in large part attributable. That handicap was pressure of time.”20
Then, in the dying stages of the dissertation, they intimate their pain at delivering a judgement that will reflect adversely on an esteemed member of the legal profession: “their Lordships have very reluctantly felt compelled to hold that… the Judge failed to adhere to those rules of natural justice…” They continue: “To say of a person who holds judicial office, that he has failed to observe a rule of natural justice, may sound to a lay ear as if it were a severe criticism of his conduct which carries with it moral overtones. But this is far from being the case… [T]his kind of failure… is simply one possible ground of appeal among many others and attracts no particular attention…”21
In arriving at their judgement, the Privy Council make it clear early on that they believe the Judge erred in his assessment of the evidence before him – and it is on these grounds that the judicial review is warranted. The Lords postulate that the piecemeal collection of evidence by the time-pressured inquiry would have impeded the Judge’s ability to assess that evidence. They highlight the diversion from the agreed order of witnesses called, the abandonment of the requirement for written briefs to be presented to counsel in advance of the witnesses’ appearances,22 and the absence of opening statements by counsel as flaws of process. However, they also acknowledge that at an inquiry – as opposed to during court proceedings – “the emergence of facts, and the realisation… of their relative importance, [will] be more elusive and less orderly…” 23
A consideration of legal matters follows, and is similar in content and nature to the discussion contained within the Woodhouse and Cooke judgements of the Court of Appeal.
The first issue addressed specifically is that of the order of costs. The Lords agree with the Court of Appeal that the order of costs was based upon Mahon’s conclusion that Air New Zealand and its agents before the Commission were guilty of organised perjury, and that in making the costs order “the Judge failed by inadvertence to observe the rules of natural justice...”24 The rules of natural justice Mahon was said to have breached were: that any finding must be made upon evidence of probative value (and must not be ‘logically self-contradictory’ 25); and that any relevant conflicting evidence must be heard (the principle of audi alteram partem – ‘hearing the other side’). The Lords acknowledge that the evidence showed “inexcusable blunders and slipshod administrative practices by the management of Air New Zealand” 26 but that these occurrences were not constituent parts of an organised plan of deception.
The body of the judgement reinforces this over-arching opinion by addressing each of the items of concern brought to the Court of Appeal by the original applicants. (There is a particularly easy-to-follow summary of the sequence of events surrounding the four changes of position of the McMurdo waypoint on pages 679-680). The only evidence considered by the Lords to undeniably contain aspects of false testimony was that of the executive pilots who claimed to have had no specific knowledge of flights in the Antarctic below 6000 feet. However, the Lords do not accept these falsehoods to be “concerted attempts to deceive anybody as to what had happened.” 27
Interestingly, in the eyes of a pilot, the Lords’ decision that the map comprising Exhibit 164 28 was not “material of probative value… for a route southwards from Cape Hallett down McMurdo Sound” 29 is perhaps the one that seems most curious from a practical – if not a legal – perspective.
The law Lords’ condemnation of Justice Mahon’s decision-making logic and processes is comprehensive, and one can only imagine the effect it must have had upon the New Zealand judge as he read it. Indeed, the commandment that their decision should not “have any adverse effect upon the reputation of the Judge” seems directly to acknowledge their awareness of the hurt, damage and public sensation it would cause.
Please read the 25 pages penned by the eminent Lords of the Privy Council (and make reference, if need be, to the following glossary of not-so-everyday terms appearing therein) and consider them, along with all that precedes this final chapter in the Erebus saga, in order to come to your own conclusions about the motivation behind the actions that define a tragedy that ultimately killed 257 people.
VIEW LEGAL GLOSSARY