Guilty plea over soldier's death

FAMILY: Private Michael Ross's father George Ross at the Auckland District Court for today's hearing.
FAMILY: Private Michael Ross's father George Ross at the Auckland District Court for today's hearing.

The Chief of Army, Major General Dave Gawn, is to say he is embarrassed over the lack of professionalism in his force that led to the death of a soldier in a training accident last year, Auckland District Court Judge Stephen O'Driscoll heard today.

The Defence Force has pleaded guilty to negligence over the death of Private Michael Ross, 29, in a training accident last year.

He drowned during an exercise on Lake Moawhango, near Waiouru, on September 25.

DROWNED: Private Michael Ross.
DROWNED: Private Michael Ross.

Twenty-four members of Ross' family, including his mother, Eileen, and children, were in the court for the hearing. They placed a framed picture of Ross on a court desk.

The hearing was for a health and safety charge laid by the Ministry of Business, Innovation and Employment against the Defence Force in relation to Ross' death.

The maximum penalty for the offence was $250,000, but as Ross was working for the Crown, the fine couldn't be imposed, the court heard.

MBIE counsel Saar Cohen-Ronen said the Defence Force had already made an offer of amends to the family, which would total $240,000. The family have accepted this.

This is made up of $85,000 from an agreement between the army and the family in a restorative justice process.

The family also received $141,000 in army life insurance and $15,000 in funeral and associated expenses.

The Ross family said it was grateful for the transparent process. They were pleased the shortcomings and systemic failures of the Defence Force were acknowledged and accepted by chief of Army Major General Gawn.

"And for that we really thank him for and that has enabled us as a whanau to move on and to concentrate more on how we continue to acknowledge and honour not just our whanau member, but all those other families of the other families of the NZDF," Ross family spokesman Charles Hohaia said.

The family hoped that the death of their family member would help prevent more tragedies occurring in the Defence Force.

"We would like to think there were lessons from that and things has been improved. Only time will tell in terms of the implementation of the recommendations of the court of inquiry," he said.

For the army, lawyer Craig Ruane said the Defence Force had taken the event seriously and noted Gawn had taken part in the restorative justice with the family.

The money had been paid to the family already and Gawn would later today issue a statement.

Ruane said Gawn would say that he was embarrassed at the findings of the Court of Appeal and the "lack of professionalism''.

"He felt ashamed and sorrow for the needless loss," Ruane said.

Gawn felt the army had failed every parent who had entrusted their son to them.

In the case's summary of facts, read to the court today by Cohen-Ronen, Ross was said to have died during an exercise with personal flotation devices (PFDs) on the lake.

As they were preparing for the exercise, two soldiers went into the lake to recover some targets and discovered they couldn't stay in the water for longer than 10 seconds.

This alerted the army to the cold temperature.

A man overboard procedure was set in place. It required the closest boat to anyone who fell in the water, not the boat they had fallen out of, to rescue them.

In the incident, the Zodiac rigid inflatable boat Ross was in was "soft or underinflated".

In normal circumstances the soldiers would not have boarded it, "but the soldiers were too tired and just wanted to get back across the lake at the end of the training session", the summary of facts said.

Ross wore his Minimi machinegun across his front with the sling around his neck.

"This action was inconsistent with army orders which require personnel on small vessels to secure their weapons to the vessel."

The Zodiac encountered choppy water and the occupants noticed it started to flex at the bow.

Ross was on the bow on the left side.

Other boats passed the Zodiac and their wakes caused its bow to flex even more.

"The soldiers asked the coxswain to slow down. As he slowed down the bow came back down and Private Ross was dislodged overboard."

A man overboard procedure was launched.

"Eyewitnesses described Private Ross as not looking panicked at this stage," the summary said.

"The soldiers yelled at him to deploy his PFD."

They turned back to pick him up.

A safety boat reached him and he made contact with the boathook pole and started drifting toward the rear end of the safety boat.

The summary said it was believed the propellers did not strike Ross. Nevertheless, he lost contact with the boat pole.

"He started drifting away from the safety boat, and was now bobbing up and down in the water, going under the surface and then popping back up, treading water."

He was wearing equipment weighing 15.185 kilograms and a weapon weighing 6.48kg, giving a total additional weight of 21.665kg.

As another Zodiac reached Ross, he sank below the water.

"The coxswain managed to grab Private Ross' helmet, but it became dislodged from Private Ross who was sinking deeper," the summary said.

The safety officer directed soldiers to jump in and three did, but due to the cold they could not dive very deep or for very long.

They then picked up a diver and returned, but it was cold and visibility was poor.

"Private Ross' body was located at the bottom of the lake on 2 October 2012, at a depth of approximately 42 metres."

An autopsy found he had drowned.

The personal flotation device Ross had used was forwarded to the importer's experts, Survitec Group.

They found that the gas canister was empty and had previously been punctured and deployed.

It had not been replaced.

Under its charge, the ministry said that the Defence Force failed to identify cold water as a hazard or make sure rules on carrying and security of weapons on Zodiacs were followed.

It charged that the Defence Force had failed to provide personal flotation devices to provide buoyancy.

The judge adjourned the case after hearing from the defence and would sentence the force in writing by the end of next week.