Defence Force says SAS soldier Lance Corporal Nicholas Kahotea died in 'operational' counter-terror training

NZSAS soldier Lance Corporal Nicholas Kahotea was 35. Photo / NZ Army

The Defence Force is aiming to avoid a district court prosecution over Lance Corporal Nicholas Kahotea's death, arguing he was killed in "operational" counter-terrorism activities.

At Papakura District Court, WorkSafe New Zealand is resisting the Defence Force's bid to have a workplace health and safety charge dismissed.

But the NZDF today admitted other civilian or military courts or inquiries could still examine possible punishments after the Special Air Service soldier died in May 2019.

The Ardmore Battle Training Facility is a high-tech building that allows the NZSAS to conduct live firing exercises, all-weather training, helicopter use, and scenario training. Photo / Mike Scott

NZDF counsel Samantha Turner said the exercise in which Kahotea died related to a counter-terrorism response.

Defence Force lawyers today argued the Health and Safety at Work Act does not apply to military operational activities pivotal to this case.

Kahotea is believed to have jumped from a helicopter during a counter-terrorism exercise at the New Zealand Special Operations Forces (NZSOF) training centre in Ardmore.

The New Zealand Special Air Service soldier was 35 when he died at the military facility near Papakura.

Police and the Coroner investigated before WorkSafe filed charges last year against the NZDF.

The charge related to whether the Defence Force failed in its primary duty of care, as defined under the Health and Safety at Work Act.

The matter was adjourned four times before being heard in the Papakura District Court last December.

The hearing today was told an NZDF witness might be cross-examined on documents which had a "restricted" security classification.

Much of the hearing relating to issues potentially affecting national security was not only suppressed, but heard in closed court.

Judge Jane Lovell-Smith reserved her decision, meaning she will deliver her judgment at a later date.

If the charges are not dismissed, the matter will be recalled on July 22 at Papakura District Court.

Kahotea died on May 8, 2019.

The next day, Chief of Army Major General John Boswell said Kahotea was a soldier, father, friend and proud New Zealander who joined the Army in 2006.

Boswell said Kahotea served in Afghanistan, and was the recipient of multiple medals including the NATO ISAF (Afghanistan) medal.