An Air Force Iroquois searches for survivors on the morning of the 2010 crash. Photo / File
A new question has emerged over how our military handled the fallout over the fatal Anzac Day helicopter crash in 2010 after a high-level review highlighted inexplicable
delays when it came to decisions over charging senior commanders.
The review by Michael Heron QC found military police completed a report in April 2012 saying there was evidence to support laying charges against the commander of the Iroquois helicopter squadron and the command wing above it.
It also found evidence a case against those commanders was problematic "when the issues were long-standing, systemic, which pre-dated (the commanders') involvement, and where evidence suggested higher command was aware of the issues".
The delays identified by Heron showed the decision over charging senior commanders ran right up to April 22, 2013, just three days short of the three-year statute of limitations deadline available under the Armed Forces Discipline Act.
With just three days until that deadline, NZ Defence Force received its own "internal legal advice concerning command responsibility for the accident" and decided against taking a prosecution.
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Heron said it was possible the delay could be seen as a means to run the investigation into the statute of limitations. He said he had been assured by a key Royal NZ Air Force commander at the time that was not the case.
"NZDF and the Minister could, in my view, ask questions as to the process followed in reaching the decisions about prosecutions relating to command responsibility," Heron wrote in his report.
"On the documents the differing process seems anomalous and the delay could give rise to a perception of letting matters drift."
Heron said he was assured that was not the case "but NZDF could provide the Minister reassurance on the process adopted". He also said it was unlikely the delays would have changed the outcome.
Minister of Defence Ron Mark has written to Andrew and Pauline Carson - whose son Ben was killed in the crash - to let them know he agrees with Heron's findings and was asking NZDF to urgently respond.
"I well realise that nothing can make up for or ease the loss you have suffered but I very much hope this report can provide some assurance and comfort in the aftermath and that it can be accepted as the final chapter in the formal processes associated with this horrific event."
Heron's review came about as a result of a campaign by the Carsons, and the family of surviving crew member Sergeant Stevin Iain Creeggan, to have an independent review of the crash.
It was a challenge picked up by NZ First leader Winston Peters, and carried through by Mark - a former NZ Army serviceman - when he secured the Defence portfolio.
The 2010 crash had - by then - been subjected to a string of inquiries that studied the events that led to the early morning flight of Iroquois, heading to Wellington to do an Anzac Day flyover, losing a helicopter above Pukerua Bay north of Wellington.
The crash killed Flight Lieutenant Hayden Madsen, Flying Officer Dan Gregory and Corporal Ben Carson.
The Carsons have found fault with many aspects of the air force's handling of the crash aftermath, including the military Court of Inquiry and the resulting military police inquiry that saw no successful prosecutions of those in the surviving aircraft, or in the command chain.
Investigative reporting by the NZ Herald turned up evidence that led to further reviews in 2012 and 2013 that addressed health and safety loopholes, while the sole survivor Creeggan took the bold approach of suing his own commanders in the Wellington District Court. NZDF initially defended the private prosecution, then conceded defeat and pleaded guilty.
Heron's review endorsed the Court of Inquiry process and its work to discover the cause of the accident and the related factors that contributed. He described the Court's work as "meticulous, thorough, professional and ultimately revealing to NZDF".
Heron said Creeggan's private prosecution against NZDF made up for the "lack of a thorough independent health and safety investigation by a competent authority". It was a "significant omission", he found, that Creeggan's efforts "to some extent addressed".
But it was questions of liability and what happened with the military police investigation that engaged Heron's Terms of Reference, which required him to check the systems in place to carry out inquiries and the work done to meet the standard necessary.
There was a prosecution against the officer who issued orders and farewelled the three helicopters as they lifted off. He was standing in for an absent commander and a guilty verdict was overturned on appeal. That officer later came forward as a whistleblower.
Military police then turned to the pilots who flew that morning for doing so without reaching the necessary legal standard required under defence orders. Heron's report has revealed for the first time that consideration was given to laying a charge of manslaughter against the formation leader.
The third report by military police "was to formally advise command of the completion of the investigation regarding allegations against commanding officers" of the Ohakea-based helicopter squadron and the Auckland-based command squadron.
"Ultimately, (military police) found there had been systemic organisational failures … rather than specific individual failures that could not … be addressed by a service police investigation."
While there was evidence to support laying charges, those deeper and long-standing problems that went high in the command chain made it difficult to recommend prosecuting individuals, the military police report found.
Heron said the military police report was completed in April 2012 and went to the high-ranking Air Component Commander that same month. Defence Legal Services then sought a copy of the report from the ACC in September 2012.
Sections are redacted although one line left in a sea of black reads: "Liability of other more senior officers was also considered."
The internal legal advice was completed and provided on April 22, 2013, a decision not to lay charges followed and the statute of limitations expired on the third anniversary of the crash.
Heron said even with the delay in the progress and consideration of charges "it is unlikely that the conclusions reached would have differed".
However, his review also said: "The documents could give rise to the perception that there was a lack of enthusiasm for pursuing (Armed Forces Discipline Act) charges against senior officers and could invite speculation that (statute of) limitation issues were used to preclude action (where an earlier review might not have had those issues)."
Andrew Carson said that was exactly the speculation he and wife Pauline had nursed in the years since their son was killed.
Having it spelled out in black and white by Heron was a "vindication", he said.
The Carsons had long sought someone to be held responsible for the death of those in the helicopter that morning, and for the lifelong injuries Creeggan sustained. The decision that no charges be laid coming at almost the exact point it became impossible to do so had sown doubt since the moment it unfolded.
The Court of Inquiry found - in part - that the accident was caused by a "can-do" risk-taking, rule-breaking culture in the squadron. It was supported by system-wide poor health and safety systems.
Carson said he had expected at the time there would be prosecutions of those who had flown aircraft outside the orders they were given, including at altitudes lower than they were allowed.
"Twelve people were given the orders and within 20 minutes they were directly disobeying them with tragic results."
"Of all 12 of them, why didn't somebody stand up and say, 'we shouldn't be doing this'. You would think the other pilots and even the crewmen would say, 'this isn't correct'."
Yes, he said, even his son Ben.
The inquiry took place despite resistance from families of others who died in the crash, who asked the matter be left where it was.
An NZDF spokesman said in a statement: "The NZDF notes that the review commissioned by the Minister of Defence made recommendations and that the Minister will direct the NZDF to respond to those matters and report back to him.
"The NZDF will report back to the Minister urgently on those matters."
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