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Lance Corporal Nicholas Kahotea died in 2019 after falling from a helicopter during a counterterrorism training exercise.
A decision not to dismiss a charge against the Defence Force in relation to the death of an SAS trooper has been declared “unlawful” by the High Court.
Lance Corporal Nicholas Kahotea, 35, died after falling eight metres from a helicopter at the Army’s top SAS training facility in the south Auckland suburb of Ardmore in May 2019.
WorkSafe charged the Defence Force with failing to ensure the health and safety of its worker.
District court Judge Jane Lovell-Smith then rejected an application by the Defence Force to have the charge dismissed.
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But in a written decision, Justice Timothy Brewer has now declared Judge Lovell-Smith’s decision unlawful, quashing it.
At a hearing about the matter in September, Sally McKechnie, acting on behalf of the Defence Force, applied for a judicial review of Judge Lovell-Smith’s key conclusions on the ground they were “founded on errors of law”.
The then-Chief of Defence Force Tim Keating had declared the training exercise was an operational activity relating to counterterrorism response, she said.
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Nicholas Kahotea was 35 years old when he died.
The Defence Force argued operational training activities did not come under section 7 of the Health and Safety at Work Act 2014, under which it had been charged.
David Johnstone, on behalf of WorkSafe, argued an exemption for all forms of Armed Forces service or activity, simply in response to terrorism, was unjustifiably broad.
In his decision, Justice Brewer agreed some exemptions for the Armed Forces existed.
“As should be obvious, a safety-focused statute such as the HSWA [Health and Safety at Work Act 2015] cannot apply entirely to the Armed Forces.
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Lance Corporal Nicholas Kahotea was farewelled with a funeral at the Papakura Military Camp.
“They exist to do dangerous things in dangerous environments, in New Zealand and overseas. They need to train to do those dangerous things.”
Justice Brewer found the training exercise was exempt from the Act.
Despite quashing the decision by Judge Lovell-Smith, Justice Brewer was not able to dismiss the charge, as that had to be done in open court.
He directed the court registry to organise a telephone conference with lawyers in February to “discuss the options for bringing the prosecution to an end”.
Kahotea, an experienced member of the SAS, was taking part in a joint exercise with the United States military which involved exiting a Black Hawk helicopter onto the roof of a building at night.
Kahotea stepped out, then fell about eight metres onto concrete. He later died in hospital.
A family spokesman previously said Kahotea was known for his kind nature.
“His service is a credit to both his immediate and wider family members.
“His commitment to his career with the Army allowed him to do what he always wanted and loved doing. Whilst we remain deeply saddened at his loss, we are extremely proud of his achievements.”
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