The US inquiry report showing the pole stump it believes led to the fatal fall of Lance Corporal Nik Kahotea.
A US inquiry into the death of an NZSAS trooper says he died after tripping on a pipe then falling from the top of an NZ Defence Force building commonly used for training by the elite unit.
The US Army Special Operation Command investigation into Lance Corporal Nicholas Kahotea’s death clashes with NZDF’s own position on his death.
Following the NZDF inquiry, Chief of Army Major General John Boswell made his own assessment of the evidence and said Kahotea died after the US helicopter moved away from the top of the building as the NZSAS trooper disembarked, leading to the fatal fall.
Kahotea’s death in May 2019 came during an NZSAS training session with US special forces helicopter pilots.
The fatal incident happened while the NZSAS was practising a technique not used by any part of NZDF, which cannot be performed by NZDF aircraft and which was a late addition to the training schedule. Kahotea was doing it for the first time, at night, in full combat rig - contrary to the NZSAS training procedure of “crawl, walk, run”.
Health and safety regulator WorkSafe sought to prosecute NZDF over Kahotea’s death but was told by the High Court it could not because the exercise was covered by a legal NZDF exemption for counter-terrorism training.
The fatal incident took place at the NZDF training grounds near Ardmore close to the NZSAS base.
Called Exercise Vector Balance, it brought together the NZSAS with two Black Hawk helicopters from the 160th Special Operations Aviation Regiment, nicknamed Night Stalkers and known for their work with special forces during the War on Terror.
Just before 8pm, Kahotea fell from about 10m to his death somewhere between preparing to leave one of those Black Hawk helicopters and the roof of NZDF’s Method Of Entry house, used in a range of scenarios in which soldiers storm buildings.
The Black Hawk helicopter had hovered next to the roof of the MOE house, pushing a side wheel against it - the “wheel bump” technique - so as to allow Kahotea, six other NZSAS troopers and a military working dog it was carrying to get on to the building.
The building’s safety side rails had been lifted out of the stanchions holding them in place, leaving the steel sleeves sticking out about 5cm above the roof.
In a 2019 memorandum to US Army Lieutenant General Francis M Beaudette, then Commanding General of US Army Special Operations Command, the investigator reported: “LCpl Kahotea stepped on a roof-railing mount that protrudes approximately two inches vertically in the process of egressing the aircraft during the one-wheel bump.
“Stepping on this mount caused him to lose his balance and fall through the gap created by the helicopter and the building.”
The US investigation report included a photograph of a Black Hawk helicopter carrying out a wheel bump against the MOE house with one of the 5cm-high stanchions circled.
It said it was “likely” Kahotea kept eye contact on those who were already out of the helicopter “and did not notice the two-inch railing mount attached to the roof’s surface”.
The US inquiry said no one saw Kahotea leave the aircraft - not the troopers left aboard or the crew chief monitoring movements.
However, the voice and data recorder captured one of the US crew - likely a pilot - saying Kahotea had “landed on the roof”, that he was then seen to “go back a little bit” before the speaker said they “saw him go down”.
The investigating officer summarised: “I find it most likely that LCpl Kahotea stepped on a roof railing mount that protrudes approximately two inches vertically. The railings were removed for the … training but the mounts which accept the railing poles are attached to the roof.
“Stepping on this mount caused him to lose his balance and fall through the gap created by the helicopter and building.”
The finding differs from that reached by Boswell, who ordered the formation of the NZDF inquiry and then received its report in his role as the “Assembling Authority”.
In the report, the Court of Inquiry said it could rule out “excess aircraft movement” when Kahotea left the helicopter “as a contributing factor to his fall”.
Boswell over-ruled the finding with a focus on three pieces of evidence, two of which were made public. The Court of Inquiry found “the airframe was stable and did not significantly deviate from its settled position” and that the NZSAS trooper - called TM3 - following Kahotea saw a 1m gap between the helicopter and the building.
Boswell said he believed the Court of Inquiry had not properly interpreted evidence from TM3 “who has been steadfast about the size (and timing) of the gap”.
He also said CCTV footage showed “discernible downward movement” in the tail of the Black Hawk. He said the technical evidence from the Royal NZ Air Force on helicopter movement was “ambiguous” and references to a 5-degree shift could be consistent with TM3′s 1m gap.
“It is my assessment that the evidence indicates that it is more likely than not that the gap between the aircraft and the roof of the building had quickly widened to one metre by the time Nik exited or while he was exiting the helicopter.”
In contrast, the US inquiry said the pilot “placed the tire against the building wall - a ‘stuck bump’ - and maintained the tail of the helicopter in the appropriate position”.
The US inquiry finding also conflicts with TM3′s evidence, withheld by NZDF but released by the US, which described moving to the open door of the helicopter. “I chose not to get off because when I sat down to get off, I could see through my (night vision wear) that there was a gap of about a metre.
“The wheel was not contacting the building and the gap was significant enough that I decided not to go, and then the crew chief came and told me not to go.” The evidence from the US crew chief stated he stopped the trooper after realising Kahotea had fallen.
TM3′s statement said: “It seemed like the helicopter was already pulling out before the crew chief told me to stop.
The NZSAS trooper also spoke to the briefing received ahead of the “wheel bump”: “We were never told to keep an eye on how large the gap is or to not go if you didn’t feel comfortable. It’s big-boy rules.”
Both the US inquiry and NZDF inquiry detailed how the night flight on which Kahotea died was a late addition to the training exercise. It came after a day of NZSAS teams doing daytime “wheel bump” training with, according to the US report, the decision made to continue at night so those who had missed out could have a turn.
The drop-off location was also changed from the day training with the pilots shifting it from the roof of the ground-floor level to the roof of the second storey.
TM3 told the US investigator: “It would probably have helped to do the one-wheel during the day so we could appreciate how the helicopter looks going into the building and how it acts while it’s doing the one-wheel. It’s not just sitting there the whole time - it’s kind of waving about.”
In a statement, NZDF said it received a copy of the 2019 US inquiry in 2021. “NZDF isn’t commenting on the US investigation. We stand by the NZDF Court of Inquiry and the NZDF Assembling Authority’s findings.” It said it would “fully assist” with inquiries and requests from the Coroner.
Kahotea’s whānau has told the Herald in a statement they believe the US holds “substantive blame” for his death although it was an “inexcusable failure” on the part of NZDF to allow the NZSAS to take part in the “unauthorised activity” that was a bump landing.
Without a court hearing to probe the fatal incident, the Office of the Coroner is the remaining forum available to investigate and is currently assessing if it will hold a full inquest into Kahotea’s death. In cases of fatal military incidents, Coroners have previously accepted NZDF’s Court of Inquiry into evidence in lieu of holding a full inquest. In the case of Kahotea’s death, the Court of Inquiry found either scenario possible although no evidence that Kahotea tripped.
They allege the Crown ignored Treaty obligations by not engaging with them.