Graeme Edgeler: NZDF under fire over Stephenson story

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On Anzac Day 2011, Metro magazine published 'Eyes Wide Shut', an almost 8000-word article by journalist Jon Stephenson looking at the role of the New Zealand Special Air Service unit in the war in Afghanistan. He detailed allegations that the New Zealand Government and New Zealand Defence Force had placed SAS troops in Afghanistan in a position where they had little choice but to be complicit in the mistreatment of Afghan detainees by US troops, and the torture of others by Afghan authorities.

Through interviews with villagers captured during raids said to involve SAS troops, as well as interviews with SAS soldiers, and information obtained through the Official Information Act, Stephenson laid out an argument that New Zealand soldiers had been placed in a position where they were prevented from fulfilling their obligations under the Geneva Conventions, and were at risk of prosecution for war crimes.

Some within the NZDF felt it that the article was unfair, unbalanced, and inaccurate. A week later, the Chief of the Defence Force, Lieutenant General Rhys Jones, released a statement to the media. His statement took issue with several allegations reported in the article, describing the more limited involvement he said SAS troops had in some of the operations Stephenson described, and maintaining that SAS personnel had always acted to ensure the New Zealand met its obligations under the law of armed conflict.

In response to a single paragraph in which Stephenson described a meeting he had at the compound of the Afghan Crisis Response Unit (CRU) (which members of the SAS worked with), with a man he described as "the CRU commander, 'Colonel M'," Lt Gen Jones stated: "The CRU commander says he has never spoken to this journalist ... The journalist did not enter the HQ - the guards turned him away at the gate."

Journalists make mistakes. They sometimes get details wrong, or misunderstand or are misled by sources, but an allegation that a journalist has flat-out lied in an article, and fabricated an interview with someone, is an allegation of a very serious breach of professional ethics. That's how Jon Stephenson read the NZDF statement, and he took great offense. He maintained he had entered the CRU base, and had interviewed the CRU commander, and asked the NZDF to withdraw its allegation. Around 18 months later it hadn't and the statement remained on its website, and Stephenson sued the NZDF and Lt Gen Jones for defamation.

The NZDF did not defend its claim as being true, but defended the defamation claim by saying it had a defence of "qualified privilege". The NZDF asserted that as it had been "attacked" by Stephenson, it was entitled to respond in kind. Shortly before Stephenson finished his evidence before the jury which heard the case over the last two weeks, Lt Gen Jones' lawyer advised Stephenson that Jones now accepted that he had been in the CRU base, and had probably interviewed the CRU commander. He and the NZDF continued to defend the defamation claim, however.

The jury was asked to determine whether the claims made in the media release were actually defamatory (would people think less of Stephenson as a result of them?), whether the NZDF had been attacked in a way which entitled them to respond in the way it did, and whether it had taken improper advantage of their opportunity to respond. Just because someone makes a claim about you, doesn't mean you can make up false claims about them. If you are motivated by malice, if you know your claim is false, or if you don't take enough care in trying to confirm its accuracy, your response isn't protected.

A lot of the evidence in the case was about whether the NZDF had been careful enough before it made its claim. It sent a Detective serving with New Zealand's Provincial Reconstruction Team elsewhere in Afghanistan to interview the CRU commander and his deputy, but didn't do so until after the statement was published.

No attempt was made to question any of the CRU personnel who guarded the gate. And it was accepted by NZDF witnesses, including Lt Gen Jones, that while they had doubts about whether Stephenson had visited the CRU base, they weren't certain he hadn't, and that one of the reasons for releasing the statement was that by discrediting the story, the NZDF hoped to stop calls for an inquiry into the allegations it contained.

We may never know whether this was enough to protect the NZDF from paying damages for the false claim the NZDF now concedes that it made about Stephenson. It took the statement off its website during the trial, but on Thursday last week, the jury advised it could not agree on a verdict (in defamation proceedings, this means a decision on at which at least nine of the 12 of the jurors agree). Some jurors may have considered the statements simply weren't defamatory, or they may all have agreed they were defamatory, but disagreed over whether the actions of the NZDF meant it couldn't rely on the qualified privilege defence it tried to run.

With the mistrial, there is still a live case before the court, and Stephenson and Jones will need to decide whether to request a new jury, or if a settlement can now be reached. Stephenson says his claim was not about money, but about vindicating his reputation, and with Lt Gen Jones and the NZDF now accepting that Stephenson did not simply make up an interview an "Eyes Wide Shut" agreement may be possible.

• Graeme Edgeler is a Wellington lawyer who blogs at publicaddress.net/legalbeagle