The podcast and video series Erebus Flight 901: Litany of Lies? runs on nzherald.co.nz on weekdays from Monday November 18 to Thursday November 28, the 40th anniversary of the Erebus disaster. Each day we'll highlight a key moment from the podcast transcript of that episode. You can listen to all the episodes in the NZ On Air-funded series in the iHeart player below or catch up on all our coverage of the disaster at nzherald.co.nz/erebus

Justice Peter Mahon would have seen his report into the cause of the Erebus crash go unchallenged, but for the choice of five words, says former Supreme Court judge Sir Ted Thomas.

Thomas was a colleague of Mahon, who he held in high esteem. He says that Mahon's way with words proved his downfall. "If he had not used the phrase '[an] orchestrated litany of lies', none of the ensuing litigation would have taken place. There was then no ground on which Air New Zealand could have challenged the report.

"He was an extremely good writer, but this might be one of those occasions when the temptation to write overcame prudence.

Advertisement

READ MORE:
Kate Hawkesby: National Erebus Memorial a classic example of bureaucrats ignoring the experts
Erebus memorial taken off fast track: Decision delayed until after local body elections
Premium - Government pushed ahead with Erebus memorial at a site its consultants said was a poor option, documents reveal
Erebus Memorial mix-up: Wrong plans shown to public at special consultation, says local politician

"The phrase was so strong, that it required forewarning. And so Mahon was at fault in not giving that warning - there is no question in my mind."

" If he had conferred on the wording that he would use, there would have been far better wording available. If he had sat down with any lawyer and discussed what he wanted to say to the media, it could have been said in a much, much better way"

(Mahon was: "a very good judge," Thomas says. And so when he heard his friend had been appointed Royal Commissioner): "Perfect appointment. Because it was quite clear that there was going to be a lot of factual findings necessary and that those factual findings would be strongly disputed. Well, Mahon had the patience and perception to go through all the evidence slowly, painfully, and reach a conclusion."

(The report - which apportioned blame to Air New Zealand and exonerated Pilot Jim Collins and his crew - marked the peak of Mahon's professional career, says Thomas. But Air New Zealand appealed.) "That was his work of a lifetime. And to see it shattered in the way it was, criticised in the way it was, was too much for him. So he responded. In a very hotheaded way.

Retired Supreme Court judge Sir Ted Thomas. Photo / supplied
Retired Supreme Court judge Sir Ted Thomas. Photo / supplied

(Mahon resigned from the Bench as a result - a regrettable decision, says Thomas.)

"He told me that he was going to resign. I tried to talk him out of it, of course, and I got others to try and talk him out of it. But he was quite bent on resigning.

(Despite no longer being a judge, but with the Government's support, he took his case to the Privy Council - expecting he would be vindicated - but lost.)

Advertisement

"I'm very, very sorry that such a good man and a good judge should end up like that. No-one in the legal profession wants to end up in the position that Mahon did, being vilified and bashed around like he was. Or even losing a case like he did in the Privy Council.

"It was almost as though he was doomed. If only someone could have - and I certainly wasn't persuasive enough - could have pulled him back."

With the benefit of hindsight, says Thomas: "never has one phrase of so few words lead to such a terrible aftermath.

"Without that one literary flourish, there would have been no subsequent litigation, no resignation, no Privy Council decision against him, no resignation by Mahon - none of that."