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The ABC’s Media Watch host Paul Barry didn’t pull any punches.
It was “hard to disagree” that former special forces soldier Heston Russell’s defamation fight with the broadcaster over reports suggesting he was involved in killing an Afghan prisoner was “becoming extremely damaging for the ABC and unbelievably expensive”, Barry said on Monday.
Heston Russell and his barrister Sue Chrysanthou, SC.Credit: Louie Douvis
Barry said he was not optimistic a new public interest defence – largely untested, and aimed at protecting investigative journalism – would rescue the ABC from an expensive defeat in a Federal Court case that has reportedly cost close to $1 million in legal fees to date.
“Hopeless,” was the characteristically blunt assessment of the ABC’s prospects offered in court last week by Russell’s barrister, Sydney silk Sue Chrysanthou, SC.
But the ABC soldiers on, after a series of unusual pretrial manoeuvres, and the trial is set to start in Sydney next week on Friday.
‘Fire and bodies’
Russell is suing over two online stories, published by the ABC in October 2020 and November 2021, that Justice Michael Lee has found conveyed a series of six defamatory meanings, when read together as one article. The articles were connected because the second linked to the first.
The most serious meanings were that Russell, as commander of the November platoon of Australia’s 2nd commando regiment, “was involved in shooting and killing an Afghan prisoner during an operation in Helmand province in mid-2012”, “habitually left ‘fire and bodies’ in his wake” and “habitually and knowingly crossed the line of ethical conduct” when deployed in Afghanistan.
Russell, who ran unsuccessfully for election to the Senate last year under the banner of his own Australian Values Party, is seeking damages, a take-down order and orders restraining the ABC and its journalists from repeating the imputations.
The claims of ‘Josh’
Mark Willacy, one of three ABC Investigations journalists who wrote the first story, has reported extensively on war crimes allegedly perpetrated by Australian special forces in Afghanistan.
Mark Willacy has reported extensively on alleged war crimes by Australian troops in Afghanistan.
The first article reported allegations by a former US marine, given the pseudonym Josh, that soldiers from Australia’s 2nd commando regiment shot dead an Afghan prisoner in 2012 after they were told the prisoner would not fit on a US aircraft. He did not see the alleged killing but said he heard a “pop” over the radio and Australian soldiers advised there were now six prisoners instead of seven.
Josh did not name any soldiers said to be responsible for the alleged killing, but unnamed members of the 2nd commando regiment’s Oscar platoon were reported elsewhere in the article as alleging the November platoon had a bad reputation among Americans. Russell, who was not named, was commander of the November platoon during its deployment to Afghanistan in 2012.
Media Watch believed the ABC “pressed publish too soon” on this first report, Barry said in a separate broadcast in December 2021, before the defamation case was launched.
But an ABC spokesperson said in a written response to Media Watch that the broadcaster spent two months checking Josh’s “detailed account”.
The second article, bearing the byline of one of Willacy’s colleagues, repeated Josh’s allegation. A “key point” in the article said his allegation concerned November platoon. The ABC would later say the key point – in a dot point list outside the main body of text – was an error. The article included a denial from Russell, who was named and pictured.
A key point in the initial version of the ABC’s article in November 2021.
Willacy and the ABC Investigations team won the 2020 Gold Walkley, Australian journalism’s top gong, for a separate Four Corners report in March that year which revealed footage of a Special Air Service soldier allegedly gunning down an unarmed man in a wheat field in Afghanistan in 2012.
Oliver Schulz has been charged with war crime murder over a shooting in Uruzgan province in May 2012.
Former SAS soldier Oliver Schulz, who appeared in the video, was arrested in March this year and became the first Australian serviceman or veteran to be charged with the war crime of murder. Schulz was granted bail in March after the court heard his trial is unlikely to proceed until 2024 or 2025.
But the history of the Russell reporting has been more complex.
Russell responds
Russell responded to the ABC’s first article on Ten’s The Sunday Project in November 2020.
“You were the commanding officer with the platoon all the time, and you never saw anything that has been alleged?” presenter Peter van Onselen asked.
“Absolutely. That is correct,” Russell replied.
Asked whether “you say that no prisoner was ever summarily executed that you saw”, Russell replied: “So, we’re responding to the direct allegation that this marine on a mission heard seven detainees turn to six and heard a pop and that that was the execution, and that never happened.”
Russell said in a statement last Saturday that his case was “not about criticising ‘Josh’” but holding the ABC to account for publishing what he described as “serious, uncorroborated allegations”.
Breach of accuracy standards
Russell complained to the ABC’s audience and consumer affairs unit about both articles.
The unit found in March last year that the first article “was not materially misleading” but “could be misinterpreted by some readers” as suggesting Josh’s allegation was made against November platoon because it was named in a separate part of the article. It concluded the story should be clarified, although it found no breach of the ABC’s accuracy standards.
Separately, the broadcaster told Russell in an email that month that the second article breached the ABC’s accuracy standards in that “reasonable efforts were not made to ensure that the US marine’s allegation was correctly reported”. It apologised and said the error in the key points, naming November platoon, “arose in the production phase for the story”.
Changes to the stories
The second story has been changed three times since it was first published, including to amend the key point to remove the reference to November platoon and refer generically to Australian commandos. Russell’s denial and photo remain in the story.
A clarification was added to the first story in March last year, stating that Josh “did not claim that the commandos he alleged killed a prisoner were from November platoon and nor did the ABC’s story”. References to November platoon remain in one section of the article.
The court saga
Russell launched defamation proceedings against the ABC in September last year over both articles and a related television broadcast.
The ABC initially sought to rely on a limited truth defence as well as the public interest defence, before expanding its truth defence to include the gravest meaning the court found was conveyed: that Russell was involved in shooting and killing an Afghan prisoner.
Nicholas Owens, SC, for the ABC, told the court in March that Russell’s alleged involvement “was based on his … status as a commander with effective command and control over” November platoon, rather than suggesting he pulled the trigger.
However, the ABC dropped the truth defence entirely in May after Chrysanthou argued it was “wholly unmeritorious and hopeless” and Lee struck out its supporting particulars. The broadcaster opted not to redraft this part of its case.
In an unusual move, the ABC said two weeks before the trial that it would also withdraw its public interest defence in a bid to avoid complying with a recent court order to hand over documents to Russell’s lawyers revealing Josh’s identity. Russell’s camp said it wanted this information to make pretrial inquiries, including contacting witnesses and checking whether Russell ever worked with Josh in Afghanistan.
The broadcaster issued a statement saying it “wanted the opportunity to defend our journalism in court” but “a greater principle” – honouring a promise not to name a source – was at stake. However, Lee noted the ABC was not seeking to rely in Josh’s case on Commonwealth laws giving journalists a privilege against identifying a source in evidence, “despite invoking this ‘shield law’ for other confidential sources in the case”.
The ABC sought to rely instead on a principle known as “the newspaper rule” which may protect media defendants from disclosing sources before a trial, although Lee noted the protection “generally does not exist at trial”.
The broadcaster conceded that withdrawing its public interest defence meant Russell was entitled to judgment in his favour and the sole remaining issue was damages.
The about-face
Less than 48 hours later, the ABC revived its public interest defence in an embarrassing about-face after the court heard Russell’s lawyers believed they had already discovered Josh’s identity through internet searches. The ABC published a photo of him in both articles.
Lee said it was “quite bizarre” the ABC had suggested it could avoid the need to comply with the court order by dropping its defence because there was “every likelihood” it would still have had to disclose the material for the hearing on damages.
The ABC has disputed that the material is relevant to a claim for aggravated damages.
Chrysanthou alleged in court that the ABC engaged in a “disgraceful publicity campaign” about why it dropped its defence. The broadcaster had previously sought to mount its truth defence using Josh as a witness, she said, “which would have necessarily meant he turned up and got in the witness box or gave an affidavit”.
Showdown looms
The parties are now headed for a showdown in the Federal Court when the seven-day trial starts in Sydney on Friday.
To make good the public interest defence, the ABC and its journalists will need to persuade the court they reasonably believed the publication of the reports was in the public interest.
The unpredictable and high-stakes case seems an unlikely vehicle for testing the strength of that protection, but Paul Barry concluded on Monday: “The ABC could still win and prove Media Watch wrong.”
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