Claim ABC had ‘shocking breach of ethics’ as journalist grilled in former special forces commando defamation case

A senior journalist has been grilled on the stand and accused of a “shocking breach of ethics” as the ABC fights a defamation claim from a former commando.

A senior investigative journalist with the ABC has denied claims he was “irresponsible” and engaged in a “shocking breach” of ethics when he reported on allegations of war crimes he “failed to corroborate”, in a fiery exchange in court.

Heston Russell is suing the ABC and two investigative journalists for defamation over stories published in 2020 and 2021 that he claims made it look like he was being investigated for shooting an unarmed prisoner.

The stories Mr Russell claims defamed him, written and produced by journalists Mark Willacy and Josh Robertson, aired on television, radio and online in October 2020 and more than a year later on November 19, 2021.

The court was told the allegations arose from a US Marine named “Josh”, who contacted Mr Willacy about his time in Afghanistan working alongside Australian soldiers.

Mr Willacy took to the stand on Monday where he was grilled in cross examination about his discussions with Josh, who said he was not a witness but heard a “pop” on the radio he believed was a gunshot and was told there were now six prisoners instead of seven.

High-profile silk Sue Chrysanthou SC, representing Mr Russell, said Mr Willacy had accused soldiers of “a callous, horrific murder” posted on the ABC from a witness who “did not even see the murder”.

Mr Willacy conceded: “He did not see it, no”.

ABC Investigations reporter Mark Willacy has been accused of a “shocking breach of ethics”. Picture: NCA NewsWire /Gaye Gerard

The court heard Josh had conceded in an email to Mr Willacy his memory was “pretty hazy” and he couldn’t remember specific details due to being in the midst of “constant combat operations where I had very little sleep and was constantly working with people from various companies”.

“I want to suggest to you, that conduct, having regard to the fact that you have no other witness on the ground and Josh’s disclaimers in relation to his memory, was a shocking breach of your ethics as a journalist,” Ms Chrysanthou said.

Mr Willacy said he did not agree with the assertion.

Ms Chrysanthou continued to press: “Naming the second commando regiment of committing the murder ... was an irresponsible and terrible thing to do”.

“I don’t agree with that,” Mr Willacy responded.

The court was told Mr Willacy spoke to a senior member of the defence force, known in the proceedings as “Confidential source A”, who said Mr Russell was named in the redacted Brereton report into alleged war crimes in Afghanistan.

The ABC journalist accepted the confidential source may have been breaching the law by handing over the sensitive information.

“I think you know Ms Chrysanthou, journalists often deal with sources who are very delicately placed,” Mr Willacy said.

The court was told Josh did not name any specific soldiers and never said he thought Commandos were involved.

Mr Willacy told the court while it was true, Josh said it was “Australian special forces” and it was a conclusion the journalist came to after “conducting his own research” through private and public sources.

Heston Russell is suing the ABC for defamation. Picture: NCA NewsWire /Gaye Gerard

Part of this research included reading a chapter of colleague Chris Master’s book, No Front Line, which Mr Willacy said referred to a period of Josh’s deployment in Afghanistan in 2012.

He told the court he came to the conclusion it “could only be the two commando unit that he worked with”. This unit involved November Platoon.

Ms Chrysanthou also grilled Mr Willacy about the information he had about November Platoon prior to the publication of the articles based on Josh’s allegations.

She suggested Josh’s claims the alleged unlawful killing occurred in June or July 2012 meant it could not involve Mr Russell, as his platoon was deployed later in the year.

But Mr Willacy said Josh’s memory could not be credible and said it was most “likely” the alleged crimes occurred in later months.

“I’ve dealt with dozens of veterans ... getting dates right is very, very difficult,” Mr Willacy said.

“And in fact, it was a major challenge for all the SAS work that I did. So you have to really try and piece it together. It’s very difficult work.”

He told the court while there were no complaints about commandos deployed in mid-2012, the men in “rotation 18” were a “particular problem”.

Mr Willacy said Australian missions were “very bloody”, with the court hearing a commando, known as Soldier X, allegedly confessed to a Mormon priest he had murdered a prisoner in Afghanistan.

Former Commando Heston Russell is seen leaving the Federal Court in Sydney with his legal team. Picture: NCA Newswire /Gaye Gerard

“PUBLIC INTEREST ABOVE TRUTH”

ABC’s barrister, Nicholas Owens SC, opened his case to the court on Monday morning, arguing it is “absolutely vital” the media is free to “report upon allegations of war crimes” as public interest sits “well above truth”.

He told the court in his opening address it was “difficult, with respect, to think of a topic of much less weight” than allegations of war crimes.

“We say the undeniably weighty aspect of the public interest then is of critical importance,” Mr Owens said.

The ABC is seeking to rely on a new public interest defence that was introduced in July 2021 in NSW and is being tested for the first time in this case.

A public interest defence is aimed at protecting investigative journalism and relates to publications that concern an “issue of public interest” where the defendant “reasonably believed the publication of the matter” was in the public interest.

Mr Russell and his legal team have slammed the ABC. Picture: NCA NewsWire /Gaye Gerard

The ABC will need to persuade the court that its journalists genuinely believed the publication of the articles were in the public interest.

Mr Owens told the court “belief was present in the minds of all respondents” that the two articles were in the public interest.

He quoted a landmark US freedom of the press case, which found the media was protected even when publishing false statements, before saying the ABC had a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open”.

“Does the work of a journalist in society receive its greatest and most fundamental justification in the reporting of truth as it would be determined ultimately by a court of law?” Mr Owens told the court.

“We say, with respect, absolutely not. The journalist plays, we say, a far more important role in society than that.”

“We say free speech and public interest rises well above truth.”

Mr Russell, who was commander of November Platoon at the time of the allegations, last week fought back tears as he told the court he was “absolutely shocked” when he saw the November 2021 article saying his platoon was being investigated.

Ms Chrysanthou tendered 21 affidavits in support of Mr Russell, including written support from former and current Australia and US defence force personnel, as well as commentator Alan Jones and Liberal Senator Hollie Hughes.

Evidence on hurt feelings and damage to reputation have also been tendered to the court.

In her opening address, Ms Chrysanthou said the ABC failed to firm up “shoddy, uncorroborated and reckless” journalism.

“When a serious allegation is made to a journalist by a source it should be critically assessed, it should be tested and corroborated before it is published,” she told the court on Friday.

“Shoddy, uncorroborated, reckless reporting is not in anyone’s interest.”

ABC Investigations Reporter Mark Willacy (right) is seen arriving at the Federal Court in Sydney. Picture: NCA Newswire /Gaye Gerard

Earlier this year, Justice Michael Lee found 10 defamatory imputations put forward by the national broadcaster were carried following a preliminary hearing in November 2022.

Justice Lee found the most serious meanings were that Mr Russell was involved in the killing, “habitually left ‘fire and bodies’ in his wake” and “knowingly crossed the line of ethical conduct” while serving in Afghanistan.

While the articles contained a denial from Mr Russell, he claimed the use of his name and photo implied he was involved in the death of an Afghan prisoner.

In his statement of claim, Mr Russell said an ABC article published in 2021 alleged soldiers from the November commando platoon were being investigated over their actions in Afghanistan in 2012.

It was claimed in the articles that the platoon murdered a prisoner who was unarmed and handcuffed because there was no room on the extraction flight, according to the statement of claim.

Mr Russell is asking for the ABC to remove the article, pay aggravated damages on top of court costs and stop repeating the allegations.

NCA NewsWire understands the costs of the case have already exceeded $1m.

The hearing before Justice Michael Lee continues.