Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission of Inquiry into the Mount Erebus Aircraft Disaster: C.A. 95/81 — John Shaqi
Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission of Inquiry into the Mount Erebus Aircraft Disaster: C.A. 95/81New Zealand. Court of Appeal
History
Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission of Inquiry into the Mount Erebus Aircraft Disaster: C.A. 95/81
New Zealand. Court of Appeal
Air New Zealand; Aircraft accidents; New Zealand. Royal Commission to Inquire into the Crash on Mount Erebus, Antarctica, of a DC10 Aircraft Operated by Air New Zealand Limited
In his judgment in the Court in _Re the Royal Commission on the State
Services_ (1962) N.Z.L.R. 96, 117, Cleary J. while stressing the wide
discretion of Commissions to regulate their own procedure said plainly
that the one limitation is that parties cited and persons interested
must be afforded a fair opportunity of presenting their representations,
adducing their evidence, and meeting prejudicial matter. That judgment
was given with reference to the old s. 4A, now replaced by the section
already quoted. What Cleary J. said, particularly about the general
absence of a right to be represented by counsel, must now be read
subject to the new provisions. But his expression "prejudicial matter"
was a general one. It ought not, we think, to be read down in some way
so as to exclude suggestions of conspiracy which may have evolved in the
mind of a Commission without being specifically raised in evidence or
submissions.
A suggestion of an organized conspiracy to perjure is different from the
possibility commonly faced by individual witnesses that their evidence
may be disbelieved. Grave findings of concerted misconduct in connection
with the inquiry ought not to be made without being specifically raised
at the inquiry. Once the thesis of such a conspiracy had emerged in the
Commissioner's thinking as something upon which he might report, he
would have had power, if that question were indeed reasonably incidental
to his terms of reference, to reconvene the hearing if necessary so that
the alleged conspirators could be fairly confronted with the allegation.
See the speech of Lord Russell of Killowen in _Fairmount Investments
Ltd._ v. _Secretary of State for the Environment_ (1976) 2 All E.R. 865,
and the judgement of Lord Parker C.J. in _Sheldon_ v. _Bromfield
Justices_ (1964) 2 Q.B. 573, 578. In fact in the present case but for a
far less significant reason the Commissioner himself actually considered
the possible need to reconvene the hearing after certain enquiries had
been made on his instructions following the taking of evidence in
public. The matter is mentioned in paragraph 358 of the Report.
_Landreville_ v. _The Queen_ (No. 2) (1977) 75 D.L.R. (3d.) 380,
402-405, was decided in the end on just such a ground. It was held that
a Commissioner, who happened to be a distinguished Judge, had failed to
put to the person whose conduct was expressly subjected to investigation
by the terms of reference of the Commission a very serious allegation
upon which a finding was made in the report; and that the Commission
should have been reconvened for that purpose. There the relevant rule of
natural justice was fully embodied in a statutory provision. We think
that the position is the same under the New Zealand Commissions of
Inquiry Act supplemented by the common law.
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