A controversial decision not to send a WorkSafe investigator to the scene of a Gisborne forestry fatality severely compromised a probe into the accident, an investigator has told the grieving family.

And officials say people they believe have information about the accident are refusing to talk, resulting in a lack of evidence which could affect the chances of a successful prosecution.

The Herald has obtained a recording of a meeting in April between WorkSafe investigator Ben Mitchell-Allam and the grieving whānau of Jason Rawiri, updating family on the inquiry into his October 2022 death.

Mitchell-Allam says that five months on, fundamental details about how Rawiri died and who may be responsible remain unknown due to a deficit of crucial information.

He admits being forced to rely on reports provided by the very people and organisations that may ultimately be prosecuted over the 42-year-old’s death.

Mitchell-Allam blames a contentious decision to send police officers to the accident site rather than expert WorkSafe investigators, who would usually conduct witness interviews, take photographs and record important scene details for the basis of any potential prosecution.

Rawiri’s family and their supporters now fear that failures and lost evidence may have undermined the chances of successful criminal proceedings, and the prospect of holding anyone to account.

In a statement, WorkSafe admits it may be difficult to reach the “evidential sufficiency” for prosecution due to some individuals refusing to speak to investigators.

“It’s a horrible situation to be in,” Mitchell-Allam tells the family in the recording.

“It’s impossible to go and investigate to the full extent of our ability because we didn’t go to the scene, I just don’t have the information I need. It’s really hard for me because I’ve got nothing to go on.”

The Herald revealed last year that WorkSafe relied on a “memorandum of understanding” with police when it chose not to send an investigator after Rawiri was fatally struck by a tree at Ngātapa - a short drive from Gisborne city - on October 14.

The decision drew fierce criticism. Forestry worker advocates labelled it disrespectful to the dead man and his whānau, who were owed a fulsome and meticulous investigation.

Workplace Relations and Safety Minister Michael Wood also sought an explanation from the labour watchdog, saying investigations must be completed to high standards, and noting the industry’s high fatality rate.

In the recorded meeting, Mitchell-Allam tells the family some of the available information “just doesn’t make sense” and those who could “fill in the gaps” are refusing to speak to him and cannot be compelled to talk.

“I’ve read through the statements that police took and there’s something not there,” he said.

“You look at the sequence of events and there’s just information missing. There’s a reason for that but without that information, I’m never going to be able to get to the absolute core of what took place.”

Jason Rawiri died in a forestry accident near Gisborne on October 14 aged 42.

Mitchell-Allam says those workers who are refusing to talk may be doing so due to “loyalties”.

“Nobody’s going to employ [them] because it’s a small industry and it’s a small community. Word gets around.

“[But] people do change their mind.”

Mitchell-Allam says police conducted a scene examination “to the best of their abilities”.

“But they’re not health and safety investigators. They’re community constables and general police so they weren’t looking for the things we’d look for.

“You can’t get away from the fact that we didn’t go and it’s only my personal view but I think we should have been out there, either that afternoon or the day after, as we do with other things.

“I don’t know why the decision was made not to... other than I’ve been told there were resourcing problems. So not enough people I guess is what that means.”

Minister for Workplace Relations and Safety Michael Wood asked WorkSafe why it did not send an investigator to the forestry fatality. Photo / Jason Oxenham

Mitchell-Allam says that due to a lack of evidence, he has been forced to rely on reports provided by the logging company which employed Rawiri, McIndoe Logging, and Forestry Management New Zealand, to piece together events.

“We didn’t go to the scene so I’m relying on information from the very people who may get prosecuted. There’s no getting away from the fact that we should have been there.”

Mitchell-Allam tells the family his report will ultimately go to the Coroner to determine whether to hold an inquest.

That would usually only happen if the Coroner was unhappy with the information provided by WorkSafe or police, he says.

“I’m going to be pretty honest in my report that I haven’t been able to do what I would consider a thorough investigation because I don’t have the information.

“Usually we’ve got information from the scene or notebook conversations with people on the day, but we don’t have any of that. So the Coroner may ask for an inquest because I’m not going to be able to give conclusive answers.”

Rawiri’s sister Bubba Baker told the Herald her family had received very little information from authorities.

“We feel that we’ve been totally shut out. This has been so painful for us, and disrespectful to our brother.”

In her opinion, those in the know were maintaining “a wall of silence”.

Tāngata Humāria Charitable Trust trustee Candice Gate said WorkSafe should have prioritised its resources and sent an investigator to the accident site, particularly given the number of young Māori men dying on the East Coast.

Not doing so had damaged the chances of a successful prosecution in this case.

“We again as an industry have another death on our hands with no meaningful outcomes to prevent it happening again,” Gate said.

“WorkSafe is not doing its job. It’s failing our people. We are not in safe hands.”

In a statement, WorkSafe said it was unable to send an investigator to the fatality scene “and acknowledges the distress this has caused for whānau”.

However, it had endeavoured to keep whānau informed during the investigation.

A spokesman said police were “highly skilled in this area” and the scene examination was led by an experienced detective.

WorkSafe was in contact with police throughout the scene attendance “to ensure any specialist health and safety information was collected”.

“Comments made by the investigator about the collection of information at the scene relate to some individuals who would not speak on the day of the incident and continue to refuse to talk to WorkSafe,” the spokesman said.

“Without all information willingly being provided to investigators, it may be difficult for WorkSafe to meet the evidential sufficiency in terms of identifying reasonably practicable actions which were not in place.”

McIndoe Logging director Rodney McIndoe said police carried out the investigation on behalf of WorkSafe and were on the scene five minutes after the accident.

“They have all the evidence.”