The Afghan commander who is seeking asylum in New Zealand refused requests to provide his evidence from Afghanistan for a defamation case that has cost taxpayers more than $1 million.
"We did request evidence to be provided via video link or sworn affidavit, but these options were declined," a New Zealand Defence Force spokesman told the Herald yesterday.
The commander was flown to New Zealand by the NZ Defence Force in 2014 and, after giving evidence that did not survive scrutiny, failed to board his return flight and applied to remain here as a refugee.
Prime Minister John Key said on Monday that it would be "concerning" if the Afghan commander used the trial as a means of resettling in New Zealand but added: "You'll have to take that up with the minister."
Defence Minister Gerry Brownlee has described the situation as "somewhat unsatisfactory" but refused to comment on specifics, citing a confidential agreement the Defence Force signed when it made a six-figure out-of-court settlement with war reporter Jon Stephenson in October 2015.
But the journalist said there was nothing in the settlement to prevent the minister commenting.
"It's disappointing that the Government continues to make misleading statements about this case," Stephenson said. "The settlement agreement does not prevent the minister discussing whether the litigation revealed evidence of criminal offending, whether he and senior officials were briefed about this, and whether they've taken any action in response."
The Herald yesterday asked Mr Brownlee whether he was briefed about issues with the commander's evidence and the decision to abandon a retrial.
"The decision to settle is covered by legal privilege and no further comment will be provided," Mr Brownlee said.
Would there be an inquiry into whether or not the commander committed perjury, and whether the Defence Force was gamed?
Mr Brownlee: "No."
Would the Immigration Service be informed that the commander's evidence appears not to have stood scrutiny?
Mr Brownlee: "The Immigration Act 2009 prevents me from commenting on this matter."
This week the Herald revealed that the Afghan police commander had not returned to Afghanistan after the case was settled and was now seeking asylum in New Zealand.
It is unlawful under the Immigration Act to deport a person until their refugee application has been determined.
The Defence Force said it did not offer the commander support in his refugee application. It yesterday declined to comment about whether it communicated with the Immigration Service regarding the visa the witness required in order to come here to give evidence.
Stephenson sued the then Defence Force chief, Lieutenant General Rhys Jones, and the force, claiming he was defamed in a press release General Jones issued in May 2011 in response to a Metro magazine article by Stephenson about the handling of detainees in Afghanistan and whether SAS troops had passed prisoners to authorities known to use torture.
The Defence Force rigorously defended the lawsuit until months after the commander testified at a secret High Court sitting in Wellington on December 2014. According to the court list, the hearing was "to take evidence".
It is not known what the commander said in sworn testimony but he was expected to repeat what he told a New Zealand police officer in Kabul - that Stephenson had not visited or interviewed him - a statement that the commander was not prepared to sign.
The Defence Force settled with Stephenson late in 2015. It said it now accepted the journalist had gone to the camp and interviewed the commander.
How it unfolded
April 2011: Jon Stephenson's article Eyes Wide Shut published in Metro magazine.
May 2, 2011: NZDF head Lieutenant General Rhys Jones issues press statement that suggested Stephenson had not entered the Afghan Crisis response Unit base in Kabul and interviewed the commander as he had reported.
May 17, 2011: Afghanistan-based NZ police officer takes statement from commander believed to have denied being interviewed by Stephenson, but commander refuses to sign the statement.
September 2012: Stephenson sues for defamation.
July 2013: Jury trial fails to reach verdict but General Jones concedes after hearing evidence that Stephenson did enter base and interview the commander.
December 2014: Afghan commander flown out by NZDF, gives evidence at secret hearing in High Court at Wellington after which NZDF decides not to proceed to a retrial.
October 2015: NZDF settles with Stephenson, accepts that he did go to CRU base and interview the commander, expresses "regret", pays Stephenson a six-figure sum; Herald reports that NZDF used 15 lawyers at a cost of $643,000.
February 29: Herald reveals that the commander did not return to Afghanistan as scheduled and is understood to have applied for asylum.