An investigative journalist with the ABC has been accused of sourcing stories which linked a former Australian special forces commando to war crimes from an unreliable witness.
Former soldier Heston Russell, who served four tours in Afghanistan, is suing the national broadcaster over allegations he was involved in the shooting of an unarmed Afghan prisoner.
In an interim hearing in February, the Federal Court found investigative pieces published by the ABC in October 2020 and November 2021 conveyed several defamatory meanings against Mr Russell, including linking him to war crimes and claiming he left “fire and bodies” in his wake during his overseas service.
Justice Michael Lee ruled the articles also conveyed the ex-commando was being investigated for his conduct in Afghanistan.
The ABC is arguing a public interest defence.
Mr Russell is seeking the ABC remove the articles — written by journalists Mark Willacy and Josh Robertson — pay aggravated damages and be banned from repeating the defamatory claims.
In scathing opening remarks for the five-day trial on Friday, Mr Russell’s defence lawyer, Sue Chrysanthou SC, said Mr Willacy relied on a key witness who “sounded more like a person who’s heard things from a lot of people but doesn’t really know much himself”.
“Shoddy, uncorroborated, reckless reporting is not in anyone’s interest… The public interest defence in this case is absolutely doomed”.
The article in question referenced a US Marine helicopter pilot by the pseudonym of “Josh”, who said he heard a “pop” on the radio he thought was a gunshot during a mission in Afghanistan in 2012.
Ms Chrysanthou told the court the “entire saga” started when Josh emailed Mr Willacy on July 15, 2020, after reading another article by the journalist about Australian SAS soldiers allegedly planting guns on innocent villagers.
“Josh explains who he is, talks about a helicopter crash, then he says ‘my memory is pretty hazy’,”.
“Then he talks about something he didn’t see but his friend saw – one of the Aussies who shot a man sitting on a wall. You’ll recognise that’s an allegation that found its way into the October article”.
Referencing several email exchanges between the pair, Ms Chrysanthou told the court Josh was flying in a helicopter when a helicopter pilot on the ground informed him they were one person over capacity and a “few seconds later he heard a gunshot,” and then there was one less person.
“Let’s assume it was a gunshot — which is frankly a big assumption given there was a helicopter in the air and one on the ground and we don’t know what’s happening on the ground — who’s to say who shot it and why it was an Aussie as opposed to all the other people there?”
“It’s a question that might arise to a rational, reasonable reader”.
The October 2020 article did not name any soldiers linked to the alleged killing, but alleged Americans thought badly of the November platoon, of which Mr Russell was the commander in 2012.
The second article repeated Josh’s allegation, said it concerned the November platoon and linked to the first article. It included a denial from Mr Russell, who was named and pictured. The ABC later “corrected” the story to remove the reference to the platoon.
When the defamation proceedings were first lodged, the ABC responded it would argue a truth defence.
That would have required it to show, on the balance of probabilities, that the most serious defamatory imputations were substantially true.
It dropped that defence in May, leaving a public interest defence intact. But even that was the subject of a major backflip during a dramatic July 12 hearing into the case.
Nicholas Owens SC, for the ABC, said it would drop its public interest defence after the court ordered it to handover documents that would reveal its key source, saying it would rather pull out of the fight than do so.
But Ms Chrysanthou claimed there was already enough publicly available information online for them to have identified the source themselves.
They submitted the ABC itself had published a photo of the former US marine, using the pseudonym Josh.
In response, the ABC sensationally reinstated its public interest defence.
The specific public interest defence it is relying on only became law in NSW in July 2021, and has not yet been tested in a full trial.
Ms Chrysanthou earlier told the court the ABC’s reversal and reinstatement of the defence had been an “utter waste of time and costs”.
The trial continues.
More to come.