Prospector says:
I have read the Erebus Papers some years ago, and I must agree with what is printed in John Kings "New Zealand Tragedies, Aviation.”
Its author was Stuart Macfarlane, a senior lecturer in law at the University of Auckland, who roundly criticized the two highest Courts in the New Zealand legal system, First he pointed out the family connections between two of the Court of Appeal judges and Air New Zealand staff and counsel. Then he made the bizarre accusation, for somebody at his level in the law system, that the Privy Council was, at best, somewhat economical with the truth and made its judgement purely to clear the establishment, which included Ron Chippendale, the government and the government airline of any blame.
The cumulative effect is that the Privy Council constructed a fantasy world which bore no relation to the truth."
If that is the opinion a senior law lecturer has of his peers in the Highest court in the land, than his opinion on anything to do with Erebus is surely to be taken with a shovel full of salt.
Stuart Macfarlane argues that there were contradictions in both appeals.
This is backed up by Robert Elliot Allinson in
Saving Human Lives
… Thus the very basis of the Law Lord’s ruling is a blatant contradiction.
The question then arises, how can five of the greatest legal minds of the Commonwealth (not to mention five Justices of the Court of Appeal in New Zealand) have made such a series of egregious blunders in their reasoning? The only explanation that makes sense out of this is that the Law Lords were guided by the practical consideration of attempting to absolve the pilots of blame, Air New Zealand of blame, and to find fault with Justice Mahon’s verdict which tended to place too much blame (in their opinion) on Air New Zealand while at the same time upholding his finding on causation.
Needless to say, one cannot reconcile all of these objectives (which are self-contradictory) without involving oneself in self-contradictory reasoning.
It is only somewhat astounding that such self-contradictory reasoning – and there are other examples pointed out by Mr. Macfarlane in his masterly Erebus Papers and additional examples pointed out below – now is permanently recorded in print in the law reports.
And in Appendix 2 (citations deleted for clarity – it’s hard going reading this stuff.)
…. In giving testimony, the briefing officers maintained that they had presented the route as being over Mt. Erebus. This was contested by the surviving pilots (those pilots present at the briefing who were not aboard Collins’ flight) who maintained that the route was presented as being over McMurdo sound. The briefing officers did not wish to appear to have informed the pilots that the route was over McMurdo sound because to have done so would have removed all blame from the pilots and at the same time placed it on the shoulders of either themselves or management or both.
The Woodhouse ruling of the Court of Appeal and the Privy Council ruling both, by implication, accepted the version of events related by the briefing officers. In so doing they ignored completely the conflicting testimony of the surviving pilots and the confirming evidence of pilots from previous briefings. That the conflicting evidence was ignored may be inferred from the oblique reference of the Privy Council that ‘… their Lordships have examined the evidence of primary facts [they must here be referring to the testimony of the surviving pilots, i.e. the pilots present at the briefing but who were not aboard Collins’ flight] relevant to this matter [the adoption of the McMurdo routing] that was given at the hearings. This they did, not for the purpose of assessing its reliability, but simply to see whether any positive evidence that supported such an inference [that there was a deliberate adoption of the McMurdo routing] existed; and that none was to be found’.
Why was the testimony of the surviving pilots (those who had not been on board flight 901) ignored?
By ignoring any conflicting evidence, by implication, the PC accepted the version of events as presented in the testimony of the briefing officers. In this case the PC accepted that the briefing officers were telling the truth when they testified that their route was over Mt. Erebus. This then forms the self-contradiction that is at the basis of the judgement of the PC discussed above.
The reason that Justice Mahon placed so much weight on the concept of a conspiracy was that it was by finding the evidence of the briefing pilots not credible that he was able to reach his verdict on causation.
The PC placed so much emphasis on Justice Mahon being out of line for his conspiracy finding because they did not wish to make it appear that deceiving evidence had been given by the Air New Zealand witnesses. If the conspiracy portion of Mahon’s ruling can be overturned, then it might appear more plausible that the evidence of the briefing officers was reliable. This despite the fact that the Law Lords themselves state that they accept as correct that Justice Mahon found some evidence unreliable. They are careful not to say which evidence as if to imply that it was the evidence of the surviving pilots (<snip>) for if they were to agree that it was the evidence of the briefing officers that Justice Mahon was correct in finding unreliable their entire case would have fallen apart.
Hardly the “bizarre accusation” King claims. Seems to me that there are a few facts tied together with logical reasoning in there.
Then Prospector says about Macfarlane
If that is the opinion a senior law lecturer has of his peers in the Highest court in the land, than his opinion on anything to do with Erebus is surely to be taken with a shovel full of salt.
Why should it “be taken with a shovel full of salt”?
Would you care to tell us exactly where Macfarlane and Allinson are in error when they say “…the very basis of the Law Lord’s ruling is a blatant contradiction.”