A judge has slammed the ABC for a “death over dishonour” press release which incorrectly implied the Federal Court was trying to force journalists to reveal confidential sources.
Federal Court Justice Michael Lee presided over a trial between Heston Russell and the national broadcaster, on Monday ruling in the former special forces commando’s favour and awarding him $390,000 in damages.
Mr Russell sued the ABC and two investigative journalists 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 sued over, 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 with Australian soldiers and said he was not a witness but heard a “pop” on the radio he believed was a gunshot.
In the weeks before the trial, the ABC was ordered by Justice Lee to hand over unredacted documents identifying Josh.
But in a major twist, the national broadcaster refused and told the court it was going to drop the public interest defence entirely.
The ABC also conceded Mr Russell was entitled to judgment and issued a press release on July 12.
“Commitments made and kept by journalists to sources are central to ensuring journalists retain the ongoing trust of people speaking truth to power,” ABC News Director Justin Stevens said in a statement at the time.
Just two days later, Nicholas Owens SC fronted Justice Lee and made a surprise reversal, reinstating the public interest defence on the condition Mr Willacy did not have to reveal his source.
Justice Lee on Monday described the press release issued by ABC as “misleading” and acknowledged “no responsibility on the ABC’s part for the fact it was its own “editorial choices” which meant it could not reveal the source.
“The press release was an exercise in damage control expressed in such a way as to hold up ABC Investigations as an exemplar of journalistic standards against an overreaching court,” Justice Lee said.
“Evidently, the ABC wanted to promote the message that the court was forcing its journalists to reveal their sources when, in truth, the ABC had been responsible for its inability to maintain the statutory source privilege.”
In his judgment, the judge said the “death over dishonour” press release and withdrawal of the defence would have undermined any vindication of Mr Russell in securing judgment.
“In that the ABC could say to the world it was the Court that prevented the respondents from honourably defending themselves,” he wrote.
He referred to how the press release did not mention that the ABC offered to reveal the source to Mr Russell’s legal team before it “later changed tack” because the journalists complained.
Evidence was provided to the court which revealed Mr Russell’s legal team had already found the identity of the source, prompting the order to be vacated.
Justice Lee said there were ample ways for a journalist to protect their source by invoking the special privilege and to more specifically avoid “acting in a way which enabled that identity to be ascertained”.
“Like, say, publishing the sources’ photograph to all and sundry,” Justice Lee wrote.
In his judgment, Justice Lee said those responsible within ABC Investigations equated any criticism of the reporting as “volleys in a culture war”.
He said the broadcaster had a desire to defend its reporting and prove critics wrong, which motivated the publications sued upon.
The judge said it was this dispute which resulted in “expensive and protracted litigation” which was a result of the ABC’s “defensive mindset” which inhibited a proper remedial response to criticism.
In the days before the trial began, Justice Lee told the court the trial was “developing into a bit of a farce”.
Representing Mr Russell, Sue Chrysanthou SC told the court the public interest defence was “so hopeless it should have never been pleaded”.
The trial saw six days of evidence from Mr Russell, Mr Robertson, Mr Willacy and other workers at the ABC who had a part to play in publishing the articles.
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.
The matter will return to court later this month.