ABC journalist ‘lied onstage at Walkleys’, Heston Russell defamation case hears

The senior reporter has been accused of exaggerating the amount of research he did for an article which ex-commando Heston Russell claims implied he was complicit in the killing of an Afghan prisoner.

Ex-commando Heston Russell.

A senior ABC journalist at the centre of defamation allegations from ex-commando Heston Russell has been accused of lying on stage at a Walkley Awards dinner.

The accusations came as Mr Russell’s barrister Sue Chrysanthou engaged in a heated discussion with Federal Court judge Michael Lee over whether it is permissible for journalists to “make mistakes”.

Mr Russell has alleged two ABC articles, through the use of links and his photograph, have implied he was complicit in the execution of an Afghan prisoner who was captured during a joint drug enforcement operation ­between Australia and the US.

The stories, written and produced by ABC journalists Mark Willacy and Josh Robertson, who are also respondents in the matter, aired on television, radio and online in 2020 and 2021.

The first article, published in October 2020, relied on the evidence of “ear witness” Josh, a US Marine Corps helicopter chief who heard a “pop” over a radio and asserted Australian soldiers had killed an Afghan prisoner.

The second article, published in November 2021, stated the Defence Department had revealed there was an active criminal investigation into the conduct of an Australian commando platoon in Afghanistan in 2012.

Heston Russell and his legal team earlier in the trial.

Mr Willacy, a senior member of the ABC Investigations team, was accused by Ms Chrysanthou of lying about the research conducted for the article, when onstage at Walkley Awards dinner with Nine journalist Chris Masters.

“He told a number of lies to Mr Masters ... in particular the references to Australian commandos, but also the fact that he said he spent two months checking it out,” Ms Chrysanthou said.

“(He said he had gone) back to (Josh) getting more detail, more detail, speaking to other people who were there. He just didn’t. And he didn’t work on it for two months like he was telling people. He was working on his book.”

Ms Chrysanthou accused Mr Willacy of attributing comments to Josh that he had not made. The court heard Josh did not specifically confirm it was the Australian commandos who killed the prisoner, despite Mr Willacy writing that he had.

“When you look back at what Josh says, he just says Aussies ... or Australians,” Ms Chrysanthou said. “He never says commandos.”

Justice Lee challenged Ms Chrysanthou, saying “people make mistakes”, and arguing she was “ignoring an important part of Mr Willacy’s evidence”.

“He’s putting together information not only from Josh, but he’s also bringing to bear his experience and his other knowledge of what happens,” Justice Lee said.

“Now, he may have done that ... maladroitly and there weren’t dots put together etcetera. But what you say when you say he’s lying is that I’ve got to reject all that evidence, and say he deliberately, consciously decided to write an article which is a lie. I’d have to think about that, but that’s a step beyond ... me forming a view that there was a lack of reasonableness.”

The ABC, Mr Robertson and Mr Willacy rely on a public interest defence, which was introduced in NSW in July 2021 and remains largely untested.

Earlier in the day, Ms Chrysanthou accused the ABC of “utter hypocrisy” after pitching the “untenable” defence.

“As I was re-reading the respondents submissions last night, I wondered whether it was appropriate to describe it as ships in the night, but it‘s not,” she said.

“There’s one ship, call it Heston, that is gliding over the seas of legal principle and the ocean of actual evidence that Your Honour heard, and then there’s the ABC ship that is stuck on the rocks of complete self delusion, utter hypocrisy, and a misstatement of the relevant law.”

Closing submissions continue on Wednesday.