Judge blasts ‘disturbing’ ABC press release in Heston Russell defamation case

Justice Michael Lee has criticised the public broadcaster for taking ‘no responsibility’ in a decision that would have forced them to reveal the identity of a confidential source.

Former Commando Heston Russell arriving at the Federal Court in Sydney.

A Federal Court judge has criticised the ABC for its “disturbing” decision to issue a press release which incorrectly implied that the court was forcing journalists to reveal confidential sources.

Judge Michael Lee lambasted the broadcaster on Wednesday, during the final day of closing submissions in a defamation case brought by former commando Heston Russell, who alleges two ABC articles implied he was complicit in the execution of an ­Afghan prisoner.

The ABC’s first article, in October 2020, relied on evidence of pseudonymous “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.

When the ABC was ordered to hand over documents identifying Josh, they refused and chose to drop the public interest defence, issuing a press release on July 12 speaking to the importance of protecting confi­dential sources.

ABC news director Justin Stevens said in a statement at the time: “Commitments made and kept by journalists to sources are central to ensuring journalists retain the ongoing trust of people speaking truth to power.”

When the ABC was ordered to hand over documents identifying Josh, they refused and chose to drop the public interest defence, issuing a press release on July 12 speaking to the importance of protecting confi­dential sources.

ABC news director Justin Stevens said in a statement at the time: “Commitments made and kept by journalists to sources are central to ensuring journalists retain the ongoing trust of people speaking truth to power.”

Two days later, the ABC re­instated the public interest ­defence and it is now the sole ­defence ­relied upon in the case.

On Wednesday, Justice Lee criticised the broadcaster for grandstanding and failing to accept fault in the matter. “(They were) trying to suggest the court was making them reveal their sources, when they’ve got a statutory protected privilege which they couldn’t invoke because of their own conduct.

“That was notably absent from the press releases, which was this self-congratulatory (statement) to make them look like great fellas to the journalistic community.”

Nicholas Owens SC.

But Nicholas Owens SC, acting for the ABC, took issue with Justice Lee’s complaint.

“The question is whether Mr Russell has been aggravated, not Your Honour,” Mr Owens said, admitting his comment may be construed as facetious.

In his closing submissions, Mr Owens said Mr Russell was a “dishonest man” and urged Justice Lee to take his character into account when deciding damages.

Mr Owens was referring to evidence given by Mr Russell, who admitted he made changes to a charity invoice before giving into journalist Josh Robertson, in an attempt to prove he had donated money he had raised through Only Fans to a veterans affairs charity.

Justice Lee has retired to consider his decision.

It is the third time in the space of a month that the ABC’s media relations has come under ­scrutiny.

The ABC has admitted public statements indicating a Four Corners crew had no prior knowledge about a planned protest outside Woodside Energy chief executive Meg O’Neill’s private residence were wrong.

The ABC’s head of media relations, Nick Leys, also wrote to The Australian this month claiming fact-checker RMIT FactLab had no links to the ABC, despite FactLab’s own website saying it worked “hand-in-hand” with the public broadcaster’s RMIT-ABC FactCheck.