ABC journalist ‘withheld information’ from Heston Russell trial, court hears

Mark Willacy has been accused of intentionally withholding information from court for fear that it might contradict his allegedly defamatory articles relating to war crimes in Afghanistan.

Heston Russell, retired special forces officer. Picture: Steve Pohlner

An ABC journalist has been accused of intentionally withholding information from court for fear that it might contradict his allegedly defamatory articles relating to war crimes in Afghanistan.

Mark Willacy on Monday conceded he had failed to reach out to other key witnesses to verify the claims of the sole informant in one of the articles at the centre of a landmark defamation between the public broadcaster and ex-commando Heston Russell.

Mr Russell is suing the ABC, Mr Willacy and journalist Josh Robertson over two articles which he says, through the use of links and his photograph, implied he was complicit in the execution of the prisoner, who was captured during a joint drug enforcement operation ­between Australia and the US.

Under cross-examination in the Federal Court on Monday, Mr Willacy was asked why he did not submit critical communications between himself and US Drug Enforcement Administration (DEA) team leader Bret Hamilton into evidence.

“What you have done is to only include information that supports what your articles say,” Mr Russell’s barrister Sue Chrysanthou SC said. “You have excluded information that contradicts what your articles are saying.”

Mr Willacy responded: “I have reported exclusively on war crimes since the middle of 2019. There is a lot of material a lot of hard drives, there is material in lockers, there is material at the ABC, there has been material at my home, I did my best to collate it … as efficiently as I could.”

But Ms Chrysanthou doubled down on her accusation, repeating the claim that the journalist “excluded any information or material that contradicted your articles.”

“That’s not correct,” Mr Willacy responded.

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

The substance of the Mr Willacy’s first article relied on the testimony of a US soldier using the pseudonym ‘Josh’.

Josh told Mr Willacy that he heard Australian forces shoot the Afghan prisoner, claiming they did so because there were too many of them to fit into the aircraft.

Ms Chrysanthou also suggested Mr Willacy misled ABC readers by failing to include in the article that Josh repeatedly said he would only give information under the “caveat” that his memory of events was “fuzzy”.

“You have accused Australian soldiers of murder. Not just murder, a callous horrific murder on the ABC website, where you have a person who did not even see the murder, he deduced a murder had occurred from what he heard.” she said.

“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.”

Mr Willacy rejected Ms Chrysanthou’s claims, saying “I don’t agree with that.”

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

Justice Michael Lee interjected the cross examination, to also question why Mr Willacy did not include Josh’s caveat in the article.

“Now, caveat, literally means beware,” Justice Lee said. “Wouldn‘t it be a good idea (to print) the warning that you’re being given?”

Mr Willacy again rejected the suggestion, saying that because he had done additional research to that of ‘Josh’s’ testimony, he did not feel the need to include any reference to his poor memory.

Mr Willacy conceded that he had failed to ask appropriate questions of DEA team leader Mr Hamilton in regards to the allegations put to him by Josh. When Ms Chrysanthou asserted Mr Willacy intentionally did not ask Mr Hamilton about Josh’s allegations because “you knew his response would be absurd,” Mr Willacy responded: “Look, I think that was a genuine oversight, to be honest. That’s my failing.”

Mr Willacy also admitted he did not actively reach out to other witnesses to verify the allegations made by Josh, but instead hoped Josh would introduce him to others who would confirm the claims.

Earlier in Monday’s hearing, the ABC’s barrister Nicholas Owens SC claimed matters of free speech and public interest should sit “well above truth”.

In his opening statement, Mr Owens SC quoted from a landmark US freedom of the press case from 1964, where a court found the media were protected even when publishing false statements.

In doing so, he asserted the broadcaster 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 said.

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

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

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

Mr Russell is asking for the ABC to remove the article, pay aggravated damages on top of court costs, and orders stopping them from repeating the allegations. The Australian understands the costs associated with the case have so far exceeded $1 million.

The trial continues.