The public interest defence had been initially advanced with a number of others but had been tossed aside. It was eventually revived three days later and became ABC’s only defence.

On Monday (16 October), Justice Michael Lee said a belief the reporting was in the public interest was not “reasonable” – as required by section 29 of the Defamation Act 2005 (NSW) – and ordered the national broadcaster pay Mr Russell $390,000 with an interest of 3 per cent per annum.

“No party emerges from this case without criticism, but my conclusion is that the respondents have not established the public interest defence and, as a consequence, Mr Russell is entitled to judgment and an award of ordinary compensatory damages,” Justice Lee said.

For a number of reasons, including the way the article was drafted and the ABC’s urgency to publish, Justice Lee rejected the public interest defence. Here, Lawyers Weekly looks into why.

The circumstances behind the case against the ABC

In October 2020, ABC ran an article based on an allegation from a US solider – given the pseudonym Josh to protect his identity – that the November platoon, headed up by Mr Russell, had executed a prisoner because they would not fit onto a helicopter.

Josh claimed he heard a “pop” over the radio and then voices confirming there would be “six prisoners, not seven”.

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This allegation was revived by the ABC in November 2021, along with a claim the Defence Department had “confirmed” the existence of an active, criminal investigation into the November platoon.

In February this year, the Federal Court found Mr Russell had been defamed by the ABC because it published allegations linking him to war crimes and claimed he had left “fire and bodies” in his wake.

What is important to note is the October article is not sued upon but is the “catalyst” for the controversy and “set the hare running”.

Following the publication of the October article, a number of key events occurred: Mr Russell outed himself as commander of the November platoon, he made his first complaint to the national broadcaster, and the Office of the Special Investigator (OSI) contacted the ABC.

A “central throughline” throughout the proceeding is Josh’s allegations, which had their origins in the October article and were the reason why the November article revived the claims.

The ‘problematic’ freedom of information request

Thirteen months after the first article was published, Mr Willacy made a freedom of information (FOI) application seeking certain documents relating to the November platoon. What he received led to the November article and the current proceedings.

Mr Willacy formed the view there was more than one document because the FOI said access to “all documents” had been denied.

Referring to the FOI response that, should the documents be disclosed, it could “prejudice the conduct of a current investigation of a possible breach of law”, Mr Willacy concluded the documents were being used in an active, criminal investigation.

While Justice Lee found Mr Willacy had “read the FOI response in a way he thought appropriate”, he accepted he had also been aware of other information “which led him to believe the Office of the Special Investigator was investigating” the November platoon.

This included comments from the OSI had access to the FOI application and had emailed his editor, Jo Puccini, with a request that ABC’s interest in the November platoon “be kept confidential”.

“But where the conclusion drawn by Mr Willacy from the FOI request became problematic is where he went so far as to conclude the FOI response ‘confirms’ the investigation on foot concerned the November platoon,” Justice Lee found.

Justice Lee added that while the FOI response may have confirmed the existence of an investigation, it did not lead to an assumption that it could “reasonably or safely be concluded that the FOI response confirms the investigation concerned the November platoon”.

With Mr Willacy on a day off at the time the November article was published, Mr Robertson took over. In drafting the article, he expressed “with certainty” of matters of “which he was not certain”, leading to “serious imputations … [which] failed to distinguish between suspicions, allegations and proven facts”.

Mr Robertson held a belief all categories of Mr Willacy’s FOI request had referred to the November platoon and therefore so should FOI’s response. However, Justice Lee said this “does not substantiate the assertion the FOI response ‘confirmed an active, criminal investigation into the November platoon”.

Allegations by ‘Josh’ and obligations of journalists

Mr Russell put to the court a number of times that Josh’s allegations should have been corroborated.

This was advanced further by evidence that Josh’s memory had been “unspecific and fuzzy” and there was little possibility of establishing definitively what occurred in Afghanistan.

Justice Lee found Josh’s memory “called for caution and pointed to the importance of verification and careful scrutiny”.

He added that “all Mr Willacy really did” to test the allegations was “satisfy” himself Josh was who he claimed to be; make “limp requests of Josh to ask his crew mates to speak to him, which Josh rebuffed”; and asked a “senior military source”, who was not present in Afghanistan at the time and who gave Mr Willacy only a “vague indication” the allegation was “credible” and “worth reporting”.

“He did not ascertain, from persons with experience in Afghanistan or anyone with any kind of expertise or on-the-ground military experience, whether Josh’s allegations were plausible.

“Tellingly, many former soldiers gave unchallenged evidence that components of the allegations were not,” Justice Lee said.

“A journalist acting reasonably would have done more to explore sources of potential corroboration.”

Self-interest driving publication of allegations

In perhaps one of Justice Lee’s most critical observations of the ABC and its journalists, he found the drafting of the November article did not distinguish between what was suspicion and what was proven.

“Mr Willacy should have known at the time of publication that any statement of fact that defence had ‘confirmed’ an investigation was at best put too highly, and at worst, misleading,” Justice Lee said.

Justice Lee added Mr Willacy had a concern the existence of an investigation could be published on the Defence Department’s website, which would mean other media reporting on the story first.

However, Justice Lee said the fact Mr Willacy had other reasons to believe the November platoon was under investigation was still not a justification for a “pressing need to publish the story”.

“Indeed, the perceived urgency was, at least to a significant level, commercial and vindicatory,” Justice Lee said.

“I am satisfied that a prominent but not exclusive motivation for the creation and then urgent publication of the story was an eagerness for Mr Willacy to prove wrong those who, in his terms, had ‘come after [him]’ and his reporting.”

“The publication was partly driven by a desire to prove Mr Russell wrong in a public forum and to vindicate Mr Willacy’s reporting and ABC Investigations.”

Justice Lee concluded that in light of all these factors, including the FOI request and Josh’s memory, it was “unreasonable” for Mr Willacy and Mr Robertson to take the view the publication of the allegations was in the public interest.