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‘Real evidence’ of public interest in war crimes article, ABC says
ABC’s barrister insisted there was “real evidence” of public interest behind the publication of articles that alleged a former special forces commander was involved in the murder of an Afghanistan man.
Naomi Neilson
In an October 2021 article, ABC released an article that alleged Heston Russell, as the leader of a platoon of commanders, had been “involved in the shooting and killing of an Afghan prisoner” in 2012 because the man was not able to fit on a US aircraft.
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Mr Russell is now suing the Australian Broadcasting Corporation in the Federal Court for damages over a November 2022 article that linked back to the original and claimed the platoon was being criminally investigated.
He is also suing over a related television broadcast.
Both articles relied on the evidence of a former US marine with the pseudonym ‘Josh’ who said he was not at the 2012 incident but had heard a “pop” that sounded like a gunshot over the radio.
He said what followed were voices saying their prisoner count had dropped from seven to six.
In his closing submissions, ABC barrister Nicholas Owens – fresh off his win in the Ben Roberts-Smith defamation trial – said there is “real evidence” of the public interest in the second article, starting with a Freedom of Information request made by journalist Mark Willacy.
It is the first time the public interest defence has been used.
Mr Owens explained on Wednesday that Mr Willacy made specific requests about the November platoon and was contacted by the Office of the Special Investigator who said the FOI had been referred to them and he would not have “much luck getting that information”.
He argued that OSI “clearly” informed the journalist that the matter had been referred to an organisation capable of criminal investigations and that it was about the November platoon.
“What is happening, undeniably, is an OSI investigation into the Josh allegation connected to the November platoon,” Mr Owens said.
“There cannot be any serious debate about the belief … that it would be in the public interest to bring that to the attention of the public.”
Mr Owens further argued that a consequence of public interest journalism, as demonstrated by the OSI response, was that “authorities can then go and have a proper look at things”.
Justice Michael Lee questioned Mr Owens about a failure by Mr Willacy to directly raise the FOI request and his interpretation of it with Mr Russell. Instead, Sue Chrysanthou said her client had been asked some “useless” questions and was not directly informed.
“It just seems to me to be very odd,” Justice Lee said.
Mr Owens said the journalists “knew what he would say”.
“They knew … he would deny it,” Mr Owens said.
Justice Lee was not convinced, adding it seemed “contrary” to the “usual intercourse between a journalist ringing someone up who is going to have an article about this published” to not have specific inquiries about the FOI request and the main context of the article.
“It would be very unlikely Mr Russell would say anything new than he did over the previous 12 months,” Mr Owens maintained.
Justice Lee also took issue with the representation of Mr Willacy and colleague Josh Robertson – both named in Mr Russell’s defamation case – as investigative journalists.
“This is a representation to the world that there is a certain rigour of approach and they have particular and specialised skills over and above the ordinary run of the mill journalists,” Justice Lee said.
“If one is looking again through the prism of reasonableness and having regard to context, that is something that is relevant.”
Prior to Mr Owens’ submissions, Ms Chrysanthou finalised her openings on Wednesday morning, following on from her claims that the ABC had willingly worked “outside of their codes of conduct”.
Ms Chrysanthou said it is “not in the public interest to misinform”.
On Wednesday morning, Justice Lee raised with Ms Chrysanthou the discovery during the trial that Mr Russell had altered a document.
Mr Russell had maintained he had handed over a genuine invoice in response to Mr Willacy’s question of why only $5,000 had been given to a veterans’ charity despite his own claims he raised $15,000.
However, when he was shown the changes, Mr Russell admitted the invoice had been altered and the journalists were not informed.
Near the end of Ms Chrysanthou’s closing submissions, Justice Lee said the dishonesty “goes to the heart of justice”.
Ms Chrysanthou insisted this was not purposefully dishonest, adding like “some people having bad hair days”, there is “no perfect plaintiff” and “journalists are not expected to be perfect either”.
