Blame the lawyers: ABC’s finding on dodgy war crimes story

A final report into how the ABC added gunshots to footage of a helicopter mission in Afghanistan has found the broadcaster’s legal team failed to pass on a letter alerting them to the problem.

An independent report has ruled the ABC’s legal department simply failed to pass on a letter warning of serious “discrepancies” in a war crimes story, almost two years before the public broadcaster came under-fire for adding gunshots to mission footage.

The investigation, conducted by a former ABC staffer, found management and the news division were not alerted to the November 2022 letter, which may have been the result of “an extraordinarily busy time” for the public broadcaster, or staff simply failing to interpret the email subject line.

The ABC has been under fire over allegations it edited helmet cam footage of a mission, adding multiple gunshots, during a report where Walkley Award-winning journalist Mark Willacy speculated Australian troops had broken the rules of war.

After the claims were first aired on Channel 7’s Spotlight last year, the ABC acknowledged its mistake and launched an independent review. Media veteran Alan Sunderland, who worked at the ABC until 2019, was appointed to head the investigation.

Retired Special Forces Commander Heston Russell successfully sued the ABC after being wrongly linked to a war crimes investigation. Picture: NCA NewsWire/ Gaye Gerard

Mr Sunderland’s final report was handed to management at Ultimo in December, but only tendered to Federal Parliament on Thursday night.

In his findings Mr Sunderland confirmed the broadcaster’s legal team received an email from lawyers representing retired Special Forces Commander Heston Russell on November 29, 2022. The letter warned of possible “discrepancies” including what appeared to be notable edits of the helicopter footage.

Mr Sunderland found there was “clearly a sufficiently detailed concern that it could and should have prompted the ABC to go back to the specific stories and check them for accuracy”.

However, after interviewing people in the ABC’s Legal team, Mr Sunderland said there was no record of the letter being passed on to editorial management or staff.

The report said the email from Mr Russell’s lawyers “appeared to have been opened” by the legal team, but “no one I spoke to can recall specifically reading the full attachment and noting the issue of altered audio”.

“The correspondence was overlooked and not passed on to ABC News for separate consideration … journalists only became aware of the potential problems in the lead up to the broadcast of the Spotlight program.” Mr Sunderland said.

Alan Sunderland and David Anderson appearing before a parliamentary hearing. Mr Sunderland left the ABC in 2019 and led the independent review into the war crimes story.

“I have spoken directly to those to whom the email was addressed, and they have also confirmed that they have no recollection of passing the email onto staff in ABC News or discussing its contents with them.

“All of the journalists and managers I have spoken to in the ABC News are consistent in saying that this letter was never drawn to their attention, and they had no idea there were accuracy concerns about the way the audio of the helicopter footage was edited.”

Mr Sunderland also said the error may have occurred because the broadcaster’s legal team misunderstood the email’s subject line and it was sent “under the cover” of the existing defamation proceedings between the ABC and Mr Russell in the Federal Court during “an extraordinarily busy time”

The audio error and inclusion of additional gunshots made national news when Mr Russell sat down with Channel 7 in September 2024, almost two years after the war veteran’s legal team had alerted the ABC to the issue.

Reporter Mark Willacy and the ABC were successfully sued by Heston Russell over wrongly linking him to war crimes allegations Picture: NCA Newswire /Gaye Gerard

The 39-page report, which does not mention ABC staff by name, also found the additional gunshots were not added to “deliberately mislead or doctor” and were “not detected” by editing staff, producers or star reporter Mark Willacy.

“I find no evidence that anybody, at any stage, made a conscious or deliberate decision to introduce additional gunshots.” Mr Sunderland said.

The report noted there were issues preparing the story as it was “edited in Sydney and the reporter was in Brisbane”.

“Both the reporter and the producer on the story, who had responsibility for overseeing the edit of the story, are adamant they did not ask for or direct that additional gunshot audio should be added at any point, and at no stage prior to the public concerns being raised some two years later were they aware that it had occurred” Mr Sunderland said.

It also claimed the video editor of the story “no longer works for the ABC … but given the passage of time they have been unable to provide me with any confirmation that they added additional gunshot audio”.

US DEA leader Bret Hamilton claimed his quotes had been “manipulated” by the ABC. Picture: Supplied

The report also responded to a story in The Daily Telegraph featuring retired US DEA official Bret Hamilton, who told this masthead he was “furious” after being edited out of context by the ABC.

Reporter Mr Willacy had Mr Hamilton in a telephone conversation he was researching a “positive” story about the joint operations between Australian and US troops in Afghanistan.

Mr Hamilton’s interview with the ABC was eventually used in a story about alleged war crimes, where he was edited to appear he thought Australian troops “should definitely be investigated” over their actions in Afghanistan.

Mr Hamilton said he was “furious” and accused the public broadcaster of “manipulating” his quotes to suit a narrative.

The report found the ABC’s editing of Mr Hamilton “lacked context and was potentially misleading” and was “not accurately represented”, however there was “no evidence that the interview was in any way an ambush”.

The ABC was also forced to delete several other war crimes reports from online after being successfully sued by Mr Russell, in a case which cost taxpayers’ millions of dollars in legal fees.

Many of the stories have also been the subject of criticism from the broadcaster’s flagship Media Watch program.

In his final comments Mr Sunderland acknowledged “errors” had occurred and “for a public broadcaster that relies on its reputation for rigorous journalism and seeks the trust of Australians, that is not an acceptable outcome”.