Matthew Backhouse

Matthew Backhouse is an APNZ journalist based in Auckland.

Family: Guilty plea would help bring closure

Private Michael Ross. Photo / Supplied
Private Michael Ross. Photo / Supplied

The family of a soldier who drowned during a training exercise hope the Defence Force's expected guilty plea to a health and safety charge would help prevent a repeat of the "myriad" errors that led to his death.

Private Michael Ross died on Lake Moawhango, near Waiouru, after he fell from an inflatable boat and struggled in vain to inflate his faulty lifejacket last September.

The force is expected to plead guilty to a charge of failing to take all practicable steps to ensure the 29-year-old's safety when it appears before Auckland District Court next month.

The matter was due to be heard for the first time at Taihape District Court yesterday but a court representative said counsel for the accused had indicated a guilty plea would be entered ahead of sentencing in Auckland.

A close member of Private Ross' family who did not wish to be named said a guilty plea would help bring closure.

"Nothing's going to bring him back, but we believe that by getting a guilty plea, it will help to expedite the whole thing and get it over with, and get some closure.''

The findings of a Defence Force court of inquiry into the incident have not yet been released, but it considered safety failings raised under Parliamentary privilege by Labour MP Phil Goff, including an empty gas canister that made it impossible to inflate the lifejacket.

The family member said he hoped the force would learn from the mistakes highlighted by the inquiry.

"There's got to be something put in place. There was just a myriad of things that were going wrong - he didn't really have much chance with regards to the boat breaking down, the boat being half-inflated, the life vest not working, the safety boat going back with not enough staff on it."

The family member said the failed lifejacket was among the most distressing elements of the death.

"As far as we're concerned, the lifejacket didn't work because the canister which makes it work had already been dispelled - somebody had used it and put it back in the stock."

A Defence Force spokesman would not comment on the plea indication, but confirmed next month's hearing was the first opportunity to enter one.

Defence Minister Jonathan Coleman said it would be inappropriate to comment while the matter was before the courts and the inquiry was ongoing.

But he added the military would learn some hard lessons from the incident.

"We've made it clear that the Government's expectation is that every possible step must be taken to prevent this from happening again. The Defence Force has embarked on a series of changes to ensure health and safety is a priority."

Dr Coleman said there would also be more external oversight from a new military health and safety investigations unit.

The specialist unit would be part of the Crown's independent health and safety agency being set up as part of the Pike River reforms.

The Ministry of Business, Innovation and Employment, whose health and safety group brought the charge against the force, would not comment until the case was concluded.

The charge, under the Health and Safety in Employment Act, carries a maximum penalty of $250,000.

Employment law expert Susan Hornsby-Geluk said Mr Ross' family was likely to be paid all or "a fairly sizeable chunk" of any fine imposed by the court.

Ms Hornsby-Geluk, a partner at Dundas Street Employment Lawyers in Wellington, said a six-figure penalty would be a "relatively high award".

"It's not too unusual for there to be prosecutions under the Health and Safety in Employment Act, particularly where there is a fatality such as this. Obviously there is a twist when it comes to the Defence Force," she said.

"In this instance the fatality did not occur in a combat situation but even then, the circumstances of the employment are such that there is going to be an inherent element of danger in the type of work these people undertake [and] obviously that would be taken into account in determining whether or not the Defence Force had taken all practicable steps."

Ms Hornsby-Geluk said she did not expect the prosecution to "open up the floodgates" because each case would be considered on its specific merits.

- APNZ

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