Identifying war hero Willie Apiata 'adversely impacted' his Afghanistan service

Thursday, 22 November 2018

Willie Apiata VC was honoured for his service in Afghanistan in 2004.

Identifying Victoria Cross recipient Willie Apiata hampered his military service when he returned to Afghanistan, a lawyer for the Defence Force has argued.

Former SAS corporal Apiata was honoured with the military's highest award for bravery for his actions in Afghanistan in 2004. That attracted widespread publicity - as did the publication of his photograph during combat in Kabul in 2009.

Hit and Run journalist Nicky Hager arrives at the High Court on day two of the hearing.

At an inquiry into claims made in the book Hit and Run, Paul Radich argued that the identities of past and serving SAS soldiers should be kept secret.

'The importance of anonymity to them underlies the essence of the service itself,' he said.

* Nicky Hager attacks Defence Force for making the inquiry about reputation

Lawyer Davey Salmon, is representing Hit and Run co-author Jon Stephenson.

* Defence Force unit to fight Hit and Run claims**

But he was questioned by inquiry co-chair Sir Terence Arnold about Apiata's return to Afghanistan. Radich said he understood the publicity 'adversely affected' his operational capability.

Radich explained the ranks of the elite soldiers are small, with limited numbers on stand-by. 'If this is compromised the ability of New Zealand to respond comprehensively with this special force is restricted,' he said.

He also said they may become targets for exploitation or extremists, and their personal safety and 'wellness,' as well as that of their families, must be protected.

The Wellington-based Government inquiry is testing events described in Hit and Run, SAS raids in Afghanistan in 2010 and death of six civilians.

Paul Radich QC is representing the Defence Force.

HEARINGS 'SHOULD BE PUBLIC'

Former National MP Wayne Mapp was Defence Minister at the time of the operations under scrutiny and will give evidence to the inquiry.

His lawyer Bruce Gray QC said he believed the inquiry hearings should be 'public to the greatest extent possible' and its credibility would be 'enhanced by the possibility of public scrutiny'.

He added: 'There will be some material which will not be public and therefore some work by the inquiry will be in private, and public.'

Mapp did not seek to influence that: 'He will be an environment taker,' Gray said. 'Dr Mapp looks forward to coming and helping the inquiry where he can.'

Media organisations have joined to forces to argue the inquiry should be open and public. Lawyer Alan Ringwood is representing Stuff, NZME, TVNZ, Mediaworks, Radio New Zealand and Bauer.

Ringwood said there was 'very great public interest' into the raids and the reputation of the Defence Force. This was one of the main reasons for establishing the inquiry, he said.

'It is not possible for all members of the public who are interested in a court proceeding or inquiry to attend the hearings and observe the process in person. The news media acts as a watchdog or surrogate for the public in attending and reporting on court proceedings and inquiries,' he said.

The media accept there will be evidence which for reasons of national security should remain classified or vulnerable witnesses who are at risk and who require protection, he said.

But the 'default presumption' should not be that evidence will be heard in private and then kept private. Documents that have been properly cleared and redacted should be provide to the media, to increase public understanding, he said.

Ringwood said the media wanted the inquiry to follow the example of Britain's 'Chilcott' inquiry into the 2003 Iraq occupation. That committed to hearing as much evidence as possible in public proceedings.

Sir Terence said there may be a distorted view by the public if some evidence is public and some kept secret. 'Does that help the public understand or does that create a concern?' he asked.

Ringwood replied: 'An incomplete view is better than no view at all…the public will be seeing something of what happened at the inquiry and that will give them confidence.'

NATIONAL SECURITY RISK

Earlier, New Zealand's intelligence agencies said sharing top secret information collected by other countries could put national security at risk.

Crown lawyer Aaron Martin pointed out that for every intelligence report the Security Information Service provides to a 'foreign partner', it receives 170 international reports.

And for every report the Government Communications Security Bureau passes to partners, it receives access to 99 in return.

Classified material, and that held by overseas military and NATO, is at the heart of a two-day public hearing into whether the rest of the inquiry hearings should be held in secret.

Key evidence is likely to be helicopter footage shot by the US Defence Force. The New Zealand Defence Force claims it has been denied permission to share it.

Government agencies - including the GCSB, SIS, Ministry of Foreign Affairs and the Department of the Prime Minister and Cabinet - are worried disclosure of 'foreign-controlled' material could compromise security and international relations.

Martin argues it would put New Zealand's reputation as 'a trusted international partner' at risk. Disclosure is likely to have a prejudicial effect on the agencies ability to seek and receive information from international partners in the future.

He said there is likely to be 'significant' secret information that can be shared with the inquiry , but not with the public or those without security clearance.

Lawyers for the villagers or Khak Khuday Dad and Naik, and the Hit and Run authors, are worried it will be withheld from them or their clients. They believe the inquiry should follow a largely open process, that should have access to all of the information, and be able to cross-examine witnesses.

The inquiry is examining claims in the book, by investigative journalists Nicky Hager and Jon Stephenson. The book detailed three raids by SAS soldiers in 2010 in Tirgiran Valley. The authors said six civilians died and 15 were injured, and the events were later covered up by the military.

The inquiry chairs Sir Terence Arnold and Sir Geoffrey Palmer invited core participants to argue how hearings should progress. They are also trying to thrash out how vulnerable witnesses - like the villagers, confidential journalistic sources, and SAS soldiers - should be treated.

Davey Salmon, acting for Stephenson, argued the participating lawyers be given security clearance to see the top secret material.

This system worked well when he previously represented the Kiwi war correspondent in a three year defamation battle, he said. The Defence Force settled that case in 2015.

'It is eight years since these events and they are no longer hot, they are stale…they were stale three years later during Mr Stephenson's defamation trial,' he said.

He said of the arrangements used in the defamation proceedings: 'We know these these things work..setting up straw men or horror stories abut how the hearing has to be closed is a distraction'.

Salmon said the additional cost of those arrangements were trivial when contrasted with the amount of money the Defence Force will spend 'defending its position'.