A former special forces commando has won his defamation case against the ABC and was awarded $390,000 in damages after a Federal Court judge ruled the national broadcaster could not prove articles were reported in the public interest.
Heston Russell sued the ABC and two investigative journalists for defamation over stories published in 2020 and 2021 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.
On Monday, Justice Michael Lee ruled in favour of Mr Russell and found the national broadcaster could not prove the articles were reported in the public interest and had caused the former soldier serious harm.
He awarded Mr Russell $390,000 in damages.
Mr Russell sat in the back of the court, with 2GB radio host Ben Fordham by his side as the judge read a summary of his judgment and revealed his decision.
This was the first time the new public interest defence was tested after its introduction in 2021.
Throughout a nine-day trial over July and August, 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.
In an email to Mr Willacy, “Josh” said he was not a witness, but heard a “pop” on the radio he believed was a gunshot.
Mr Russell was present for every minute of the trial in Sydney’s Federal Court building at Queen’s Square, sitting in the back of the court as his legal team described the “violation” he felt when the articles were published.
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 February, Justice Lee had ruled the articles conveyed ten defamatory imputations.
REJECTION OF PUBLIC INTEREST DEFENCE
Justice Lee on Monday read a summary of his judgment and said the arguments put forward by the ABC at trial, in which they argued the matter was of such high public interest it should be reported, was not part of “some sliding scale”.
“It is important to understand that there is not some sliding scale which means the greater the public interest in the matter, the greater the margin for error of what is published,” he told the court.
“To embrace this notion would distort and oversimplify the requirement to make a value judgment about whether the impugned publication was in the public interest by reference to all relevant circumstances.”
Justice Lee told the court he had “no doubt” Mr Willacy believed the publication of the articles were in the public interest.
But taking in his conduct on a whole, the judge said Mr Willacy’s belief was “not reasonable in the circumstances” and found the journalist had not established the defence of public interest.
He found Mr Robertson did not act reasonably when he sought a response from Mr Russell ahead of the publication of the November article, having “not procured” all the information he could have “reasonably obtained”.
Justice Lee said the November article had “overstated the cogency of evidence” and was published following a series of “missteps”.
The judge accused the ABC of having a “defensive mindset” which prevented the broadcaster from having a “proper remedial response to criticism” of reporting, whether it was from external media or from within the company.
MR RUSSELL DEEMED ‘UNRELIABLE”
Justice Lee told the court he did not find Mr Russell’s oral evidence “persuasive” and found he gave false evidence in regards to a document he had given an ABC reporter about a different topic.
“His (Mr Russell) actions are consistent with someone who has not suffered significant hurt but rather embraced the public controversy occasioned by the dispute and used it to further his personal causes and profile,” Justice Lee said.
The judge said Mr Russell drew attention to himself and the articles and described him as a “not impressive” witness.
Mr Russell’s evidence was rejected entirely.
“He was regularly non responsive and was unwilling to make concessions he regarded as contrary to his case,” Justice Lee said.
“All in all, I do not consider it safe to place any reliance upon his evidence.”
‘DEATH OVER DISHONOUR’
While parts of the ABC’s conduct, including removing the public interest defence weeks before the trial was set to begin only to reinstate it days later, had caused him concern Justice Lee was not satisfied it amounted to aggravated damages.
When the broadcaster was ordered to hand over documents identifying Josh, it refused and opted to drop the public interest defence while later issuing a press release.
“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.
Justice Lee described the press release as “misleading” and acknowledged “no responsibility on the ABC’s part for the fact it was its own “editorial choices”.
“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,” the judge said.
“Evidently, the ABC wanted to promote the message the court was forcing a journalist to reveal their sources when in truth, the ABC had been responsible for its inability to maintain the statutory source privilege.”
Justice Lee said the “death over dishonour” press release and the withdrawal of the defence would have undermined vindication of Mr Russell’s win.
“FINALLY EXPOSED”
Alongside his legal team Ms Chrysanthou and Rebekah Giles, Mr Russell told media outside court the ABC had “finally been exposed for its false allegations against Australian veterans”.
“Today the Federal Court decided it was not in the public interest for the Commandos of November Platoon to be accused of heinous war crimes without any basis,” he said.
“The evidence at trial demonstrates that the publications that I sued over were concocted at best by the so-called Investigative Journalism Unit of the ABC.”
Mr Russell said Australians deserved “better” from the national broadcaster.
He said he was grateful to the court for the “expert determination” which came just a year after proceedings commenced.
FURTHER COSTS
Sue Chrysanthou SC, representing Mr Russell told the court her client is seeking indemnity costs from the ABC.
She told the court on Monday Mr Russell had previously offered to settle the case for a $99,000 sum and the removal of the articles.
He made the offer on September 12 last year but it was not accepted by the ABC.
The matter will return to court later this month.