(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'.