BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Secret New Zealand – described the investigation into DC10 crash into Mt Erebus in 1979 as the “biggest cover-up” in aviation history – inaccurate – unbalanced – unfair

Findings
Standard 4 –- no imbalance in regard to the comments made about the complainant’s investigation – no uphold

Standard 5 – no factual errors – no uphold

Standard 6 – no unfairness to the complainant – no uphold

This headnote does not form part of the decision

Summary

[1] The whereabouts of pages from the captain’s ring-binder notebook was investigated in an episode of Secret New Zealand which looked at the Air New Zealand DC 10 crash on Mt Erebus in Antarctica in 1979. Secret New Zealand is a series which highlights mysterious or unresolved aspects of New Zealand history and the episode complained about was broadcast on TV One at 8.00pm on 15 September 2003.

[2] Ron Chippindale complained to Television New Zealand Ltd, the broadcaster, that the item contained factual errors, was unfair to him as the Investigator-in-Charge of the accident, and had dealt with the issues in an unbalanced way.

[3] In response, TVNZ explained that the item dealt with one aspect of the Erebus disaster and maintained that it had done so in a way which did not breach the standards. It declined to uphold the complaint.

[4] Dissatisfied with TVNZ’s response, Mr Chippindale referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaint.

Decision

[5] The members of the Authority have viewed a video of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

Programme

[6] Secret New Zealand is a series which, according to TVNZ, “highlights mysterious or unresolved aspects of this country’s past”. The episode broadcast on TV One at 8.00pm on 15 September 2003 dealt with the missing pages from the ring-binder notebook of the captain of the Air New Zealand DC 10 which crashed on Mt Erebus in 1979.

Complaint

[7] Pointing out that he was, as the programme noted, the Investigator-in-Charge of the accident, Mr Chippindale noted that the item was promoted as exposing the “biggest cover-up in New Zealand aviation history”.

[8] Mr Chippindale said the programme contained five factual errors. They were:

“The presence of senior Air New Zealand captains, as some of the first at the accident site, was improper;

Captain Gemmell of Air New Zealand returned to New Zealand with the DC 10’s flight recorders;

I relinquished custody of Captain Collin’s diary, which is purported to have contained technical notes about the flight.

My report made a finding of pilot error;

The findings in my report were subject to political influence.”

[9] In regard to each point, Mr Chippindale wrote:

(i)  That he was responsible for people admitted to the site other than those responsible for body recovery and that the presence of one or more senior pilots from the airline involved in an accident was, and remained, in accordance with the International Civil Aviation Organisation standards.

(ii)  The flight recorders were returned to New Zealand while on delivery to a recorder laboratory in the US and were under the supervision of one of his senior inspectors.

(iii)  Captain Collins’ diary which had been given to him, contained “absolutely no information” about the flight or the operation of the DC 10. He had returned the diary to the Police who did not consider that it was necessary to keep it as “relevant evidence”.

(iv)  In accordance with international practice at the time, his report concluded with the action of the pilot which had made the accident inevitable. In his later inquiry, Justice Mahon had commented unfavourably that recording the proximate cause did not reflect on the chain of events which led to the accident. Mr Chippindale observed that his report had not stated that “pilot error was the cause of the accident”.

(v)  The investigation had been conducted without political interference.

[10] In conclusion to his first letter of complaint, Mr Chippindale noted that the item described the missing pages of the diary as the pivotal issue and, he wrote:

As the implication that I was responsible for the loss of the “evidence” is clear and that my report was tainted by political influence this programme is slanderous and has a direct effect on my personal livelihood.

[11] In a further letter of complaint, Mr Chippindale said that the item, in addition to being inaccurate and unfair, was unbalanced in that it had omitted any reference to matters in which the crew were at fault. They were:

• the crew had not entered the flight plan into the aircraft’s computer; and
• the crew had not complied with the company’s instructions on the altitudes which they were to maintain. The crew’s instructions allowed them to descend below 16,000 feet to 6,000 feet only in optimal weather conditions. However, the crew had descended to 1500 feet in lessthan optimal weather conditions.

Standards

[12] TVNZ assessed the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice which read:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster’s Response to the Complainant

[13] In view of the issues raised in the complaint, TVNZ contended the item had not reviewed the Erebus disaster, but had been “tightly focussed on the pilot’s ring-binder” and there had been reference to other matters only to the extent that they related to the ring-binder.

[14] TVNZ then dealt fully with each of the “factual errors” raised by Mr Chippindale.

(i) Pointing out that the statement as to the propriety of the presence of senior pilots was made by an MP as an expression of opinion and not as a fact, TVNZ did not uphold that aspect of the complaint.

(ii) TVNZ advised that Captain Gemmell of Air New Zealand had told the programme that he had returned to New Zealand with the flight recorders. It noted that the focus of the item was on material missing from the crash site, and had no particular interest in the flight recorders. The item, TVNZ said, accurately recorded the information provided by Captain Gemmell and was not necessarily at odds with the complainant’s information as Captain Gemmell and the senior inspector might have been on the same flight.

(iii) TVNZ said that the item did not suggest that Captain Collins’ diary and the ring-binder notebook was the same thing. TVNZ accepted that Mr Chippindale had had the diary which was returned during the Commission of Inquiry. The notebook, it said, was returned to Captain Collins’ widow, missing some pages, two weeks after the crash.

TVNZ said Police Inspector Mitchell – interviewed during the item – recalled that there were two items – a diary and a ring-binder notebook. The programme reported that another police officer had had the ring-binder and he had given it to Inspector Mitchell. The programme also recorded, after noting that the police officers had seen pages in the ring-binder:

And that raises a couple of interesting points. Why wasn’t the crash investigator interested? Well, for one thing he didn’t know about the changed co-ordinates yet. Even though Air New Zealand knew about it within hours of the crash, they didn’t tell the investigators for another two weeks”.

Reporter (behind pictures): “The other thing is, if the ring-binder was tucked up safely in the McMurdo police store, how did it go missing?”

[15] TVNZ continued:

The [complaints] committee noted that the programme at no point stated that you had the ring-binder notebook or that you relinquished custody of it, or that you were in any way responsible for the missing pages. The programme reported only that it was shown to a crash investigator (named as David Graham, by Inspector Mitchell) who, because he had no reason to do so, did not recognise any significance in the pages. It was reported that the ring-binder was left in secure police custody.

The committee believed that your complaint in this area arose from confusion between the diary and the ring-binder notebook, and concluded that the description of the ring-binder notebook appeared to be accurate and truthful.

(iv) Repeating that the focus of the item was on the ring-binder notebook, TVNZ said that while the programme had not reviewed the complainant’s accident report, it was not inaccurate to summarise his finding as one of “pilot error”.

(v) TVNZ said that the item had not claimed that Mr Chippindale’s report was subject to political influence. The comment about politics, TVNZ maintained, related to the time it took for the later Royal Commission of Inquiry report to be tabled in Parliament.

[16] Turning to the standards raised by the complainant, TVNZ acknowledged that there were considerable differences between the findings of the Royal Commission of Inquiry and those of the complainant as the Chief Investigator, but contended that that wider matter was neither addressed by nor relevant to the programme which was screened. TVNZ argued that the missing content of Captain Collins’ ring-binder notebook was the issue canvassed and the programme had presented a range of views on that matter.

[17] TVNZ said that the programme distinguished between factual matters, which were presented accurately, and the genuinely held opinions of those invited to participate. TVNZ did not consider that the complainant had been treated unfairly, noting that it was not suggested that he was responsible for the loss of evidence or that his report had been tainted by political influence.

Referral to the Authority

[18] Noting again that the programme had been advertised as exposing “the greatest cover-up in New Zealand aviation history”, Mr Chippindale said that the item reflected on him as it pursued the following line:

“Ron Chippindale investigated the accident
The Pilot in Command’s black covered notebook was found by the Police at the accident site
The Police say the black covered notebook contained technical evidence
The Police showed the black covered notebook to an inspector of air accidents at McMurdo Base
That inspector can only have been me
The inspector did not recognise the evidence as vital
The inspector did not secure this evidence
The Chief Inspector’s Report on the accident blames the pilot
The finding of “pilot error” suits the Airline and the Government
The Royal Commission finds differently
The Chief Inspector was influenced by political and airline pressures
Therefore the Chief Inspector contributed to “The greatest cover-up in New Zealand aviation history”.
{Political influence is also advertised as a programme focus}.”

[19] He added:

The programme assumes the change of co-ordinates to be the vital factor leading to the accident and that the pilot entered other co-ordinates in the notebook therefore the loss of the notebook is sinister.

[20] The complainant said he could, if necessary, produce evidence to show how the material in the programme was “fallacious”. Further, he wrote, the programme made a number of incorrect assumptions, and:

Many of these assumptions attempt to substantiate that the loss of the pages in the black covered notebook was critical to the outcome of the investigation of the accident.

[21] The complainant stated that the aircraft captain, contrary to company instructions, had descended the aircraft in cloud below the level of the top of Mt Erebus, and crashed into the slopes of Ross Island less than 1500 feet above sea level, some nine miles from the summit of Mt Erebus. The item was unbalanced, he wrote, as there was no effort to present the opinions of those who investigated the accident officially.

[22] In regard to the diary, he wrote:

While Inspector Gilpin may have shown the diary to Mr David Graham, Inspector Mitchell could only have shown the item to me at McMurdo (David Graham being at the site, 40 miles away, when I studied the personnel effects for relevance). With David Graham’s experience he is totally unlikely to have expressed an opinion that the contents of the black covered notebook, as described by the Police, were of no interest irrespective of whether he knew of the changed co-ordinates. From the day they are engaged, accident investigators treat such evidence as sacred until it is proved to be of no use certainly not the other way around.

Broadcaster’s Response to the Authority

[23] TVNZ contended that the item did not reflect on the complainant’s reputation or integrity, and argued that the programme had not developed the line of argument ascribed to it. It said:

We stress that the programme was tightly focussed on one particular piece of evidence linked to the Erebus disaster - a piece of evidence which the Royal Commission deemed was important but which could not be found at the time when the Commission was meeting. That piece of evidence was a ring-binder notebook - which was returned to Captain Collins’ widow without the pages which were apparently intact when the ring-binder notebook was first found at the crash site.

While the programme inevitably touched on other aspects of the Erebus disaster, it did so only insofar as those aspects had some relevance to the ring-binder notebook.

[24] TVNZ also referred to the Authority’s function to investigate and review the complainant’s letter of complaint. However, TVNZ added, it appeared that the complainant now sought to relitigate the findings of the Royal Commission.

Complainant’s Final Comment

[25] Mr Chippindale disagreed with TVNZ’s argument that the item was tightly focused on the ring-binder notebook, pointing out that it had been promoted as a great “cover-up” and had referred to Air New Zealand’s shredding of material, adding:

If there had been a cover up then it would take more than the destruction of the contents of the black ring-binder to achieve.

[26] The basis of his complaint, he wrote, was that there was no cover-up “great or small”, and he stated:

I am sure the black book, which I called a diary and the black ring-binder are the same. Nevertheless TVNZ claims to have a statement (not used in the programme) that Mr David Graham, my senior inspector at the time, studied the contents and stated they were of no value to the investigation. I am certain Mr Graham’s view would be correct, certainly the pages in the book which I viewed were of no value.

[27] The complainant questioned whether the outcome of the inquiry would have been affected even if the diary containing the co-ordinates had been available, stating:

The change in co-ordinates was discovered in the course of each investigation so the “loss” of a copy of either set of co-ordinates in the notebook was of little consequence.

[28] Mr Chippendale contended that the programme failed to show how the loss of the “black book” - however it happened - constituted a cover-up. He repeated his argument that he objected to the item’s implication that he was both negligent and a party to a cover-up.

Authority’s Determination

[29] The Authority notes that the item complained about was introduced as “the story of the greatest cover-up in New Zealand aviation history, the Erebus disaster”. The introduction said that the item would show “how a little black ring-binder came to represent all that went wrong”. The item advanced the view, the Authority observed, that pages from the ring-binder had deliberately been taken by a person (by implication an Air New Zealand employee) as part of the airline’s actions to protect itself from culpability. The item suggested that the missing pages were important and could have revealed information which would have added to and confirmed the evidence of the airline’s responsibility for the crash. Accordingly, the mystery of the ring-binder was not promoted as being the greatest cover-up in New Zealand aviation history. Also, the focus of the item’s implied criticism was Air New Zealand.

[30] Mr Chippindale complained that the item contained a number of specific factual errors and was unbalanced and unfair. He expressed particular concern that the item reflected adversely on his competence and that of his staff.

[31] The Authority’s view of the five alleged factual errors is as follows:

• The item did not state that the presence of senior Air New Zealand captains, as some of the first at the accident site, was improper. Rather, the item reported the opinion given by Maurice Williamson who at the time of the accident was an Air New Zealand employee and who later became Minister of Transport.
• While the item said that the DC10’s flight recorders might have been returned to New Zealand on the same flight as Captain Gemmell, it did not suggest that they were under his supervision.
• The item did not suggest that Mr Chippindale ever had oversight of Captain Collins’ notebook, which the item distinguished from Captain Collins’ diary.
• The item suggested that Mr Chippindale gave “pilot error” as the cause of the accident. The Authority considers that this is not an unreasonable summary of the report. The item also noted that the Royal Commission’s findings as to Air New Zealand’s responsibility were challenged successfully in the Court of Appeal, and that the subsequent appeal to the Privy Council, by the Chair of the Royal Commission, was not upheld.
• The item did not suggest in any way that Mr Chippindale’s findings were subject to political influence.

[32] Accordingly, the Authority does not uphold the complaint in regard to the alleged factual errors.

[33] Turning to the other matters raised by Mr Chippindale, the Authority considers that he has misinterpreted the item. The item noted his role as the Investigator-in-Charge, and he was shown later giving evidence to the Royal Commission. However, as the Authority has pointed out in paragraph [29] above, the item’s focus was on Air New Zealand. Mr Chippindale’s role was peripheral to the item.

[34] In view of its finding as to the complainant’s role in the item, and the descriptive comments about him while exercising that role, the Authority concludes that he was not dealt with unfairly. The item did not question Mr Chippindale’s competence to rule on the cause of the crash given the information that was available to him. Moreover, it concludes that the material which referred to the complainant was not advanced in a way which lacked balance. The Authority acknowledges that the Royal Commission’s findings were subject to both legal and political challenges, but finds that these challenges do not reflect on Mr Chippindale. Accordingly, it declines to uphold all matters raised in the complaint.

For the above reasons, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
19 December 2003

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.    Ron Chippindale’s Complaint to Television New Zealand Ltd – 16 September 2003
2.    Mr Chippindale’s Second Complaint to Television New Zealand Ltd –
       23 September 2003
3.    TVNZ’s Response to the Complainant – 6 October 2003
4.    Mr Chippindale’s Referral to the Broadcasting Standards Authority – 28 October 2003
5.    TVNZ’s Response to the Authority – 17 November 2003
6.    Mr Chippindale’s Final Comment – 21 November 2003