An investigative reporter with the ABC has refuted claims he was “sloppy” and tried to “cobble together” a denial when seeking comment from a former special forces commander about allegations of war crimes, in a fiery exchange in court.

Heston Russell is suing 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.

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.

Mr Robertson took to the witness stand on Wednesday where he was questioned by Mr Russell’s barrister Sue Chrysanthou SC under cross-examination.

He was questioned about contacting Mr Russell for a response prior to publishing the November article, which the court was told was a “follow” and a draft was prepared by Mr Willacy.

The story was the result of a denial of a freedom of information (FOI) application from Defence, which said there was an active investigation into the conduct of November platoon in Afghanistan in mid-2012.

Mr Russell had already lodged an editorial complaint with the broadcaster, where he questioned whether an FOI application had been placed in relation to the initial Josh allegation.

The court was told he had also given interviews in other media outlets, slamming the allegations.

In the phone call, Mr Russell said he would participate in a “live, unedited” interview before answering basic questions about the alleged investigation.

Ms Chrysanthou accused Mr Robertson of being “wrong” when he took denials from public information and drafted a paraphrased quote from Mr Russell.

“Is that seriously his complaint, that he’s worried that we’re going to say ‘He said he’s never harmed someone, but somebody stubbed their toe’? I mean, that’s …” Mr Robertson said before he was cut off.

Ms Chrysanthou pressed: “His complaint is that you’re sloppy Mr Robertson, his complaint is that you got it wrong”.

“His complaint is you didn’t bother to ask him and instead, in a very underhanded sneaky way, tried to cobble together a denial, instead of just asking him when you rang him on the phone,” she continued.

The journalist accepted he did not tell Mr Russell in his brief phone call that he would be repeating the allegations, and said he “understood” the soldier’s complaints but did not agree with them.

Ms Chrysanthou continued to suggest Mr Robertson, together with Mr Willacy and the ABC, “concocted a story” that was not news or in the public interest to “defame Mr Russell and his platoon”.

“I think it’s a very self-serving interpretation … and wrong” Mr Robertson responded.

He denied all claims he did not want to hear Mr Russell’s side of the story.

“You were wilfully blind to any exculpatory material that he could have provided you over the phone and that’s why you didn’t ask … because you did not want to write an article that was in any way fair to Mr Russell or November platoon,” Ms Chrysanthou said.

Mr Robertson said it was “not true”.

The court was told Mr Robertson had received an email from the editor of the ABC Investigations team, who asked whether a comment from Mr Russell, which said he looked forward to an apology from the broadcaster for its reporting, needed to be included in the article.

The email referenced his “huge platform” on 2GB and said it did not need to be “amplified, especially when we know what we know about him”.

Ms Chrysanthou asked whether Mr Robertson thought it was “irrelevant” that Mr Russell had a platform at another news company.

“No I don’t think it was irrelevant … my recollection is that Ben Fordham did story after story after story after story after story about Mark Willacy’s reporting,” he said.

The barrister suggested it was “utterly relevant, that on the question of fairness and ethical journalism” in relation to the November article.

“It was your story, you asked him a question, he’s given you an answer. You thought it was fair and appropriate to include it. And I want to suggest, you thought it was unfair to then remove it,” Ms Chrysanthou said.

Mr Robertson said he did not think it was unfair to remove Mr Russell’s comment.

Mr Russell, who was commander of November platoon at the time of the allegations, last week fought back tears as he told the court he was “absolutely shocked” when he saw the November 2021 story saying his platoon was being investigated.

Earlier this year, Justice Lee found 10 defamatory imputations put forward by the national broadcaster were carried following a preliminary hearing in November 2022.

Justice Lee found the most serious meanings were that Mr Russell was involved in the killing, “habitually left ‘fire and bodies’ in his wake” and “knowingly crossed the line of ethical conduct” while serving in Afghanistan.

While the stories 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.

Mr Russell is asking for the ABC to remove the article, pay aggravated damages and stop repeating the allegations.

The hearing before Justice Michael Lee continues.


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By Rahul

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