SAS trooper death: Charge dismissed, Army exempt from health and safety law

Lance Corporal Nicholas Kahotea died at a military training exercise in May 2019. Photo / NZ Army

The High Court has dismissed a WorkSafe prosecution over the death of an SAS trooper who died in training.

Lance Corporal Nicholas Kahotea died during a May 2019 counter-terrorism training exercise at an Army special operations training centre in Ardmore, South Auckland.

He was trying to perform what’s called a bump landing - stepping off a hovering helicopter onto the rooftop of a building - when he fell several storeys on to concrete.

The 35-year-old was flown to Auckland City Hospital where he died.

The New Zealand Special Air Service's training facility in Ardmore, South Auckland. Photo / Mike Scott

Justice Timothy Brewer discharged the New Zealand Defence Force in a brief hearing at the Auckland High Court this morning.

He acknowledged Kahotea’s whānau and the loss of their beloved family member, who was an “elite soldier”.

“He died trying to protect us... we should all be grateful for his service,” the judge said. “I certainly am.”

Today’s hearing comes after Justice Brewer ruled in December that the Army was exempt from the Health and Safety at Work Act 2015 (HSWA).

“As should be obvious, a safety-focused statute such as the HSWA cannot apply entirely to the Armed Forces,” the judge said in a written decision on December 20.

“They exist to do dangerous things in dangerous environments, in New Zealand and overseas. They need to train to do those dangerous things,” he wrote.

WorkSafe had earlier charged the New Zealand Defence Force (NZDF) for failing to ensure Kahotea’s health and safety under the Act.

The NZDF applied to the District Court for the charge to be dismissed, but the application was declined in 2021.

It then sought a judicial review last September, once again to dismiss the charge in the current proceeding - concluded this morning with Justice Brewer’s discharge of the Army in open court.

In a statement after the High Court hearing, the NZDF said it did its best to ensure people’s safety, but the reality was soldiers were required to be in harm’s way.

“It is a very real risk that those who serve must deal with every day in their duties on behalf of New Zealand,” Special Operations Component Commander Sean Bolton said.

An Army-wide review of safety in training was done after Kahotea’s death.

“In particular, the Army conducted a Court of Inquiry which was reviewed externally by a King’s Counsel, and the NZDF fully co-operated with WorkSafe during its investigation,” he said.

He said Kahotea will be remembered as valued member of the SAS and Army.

“He was a much-loved father, brother, son, friend and an extremely capable special forces operator,” Bolton said.

Kahotea joined the Army in 2006 as an engineer, climbing the ranks to become a New Zealand Special Air Service (SAS) operator eight years later.

“He was an outstanding soldier and a top bloke,” Chief of Army Major General John Boswell said in a social media post informing the public of his death in 2019.