The ABC and its journalists were locked in a “culture war” with other media outlets and became defensive over their reporting of war crimes when former special forces commando Heston Russell tried to clear his name, a Federal Court judge has found.
Mr Russell sued the ABC and two investigative journalists over stories published in 2020 and 2021 that he claimed made it appear he was under investigation for the shooting of an unarmed prisoner.
Federal Court Judge Michael Lee awarded the former soldier $390,000 in damages after finding the ABC could not prove the articles were published in the public interest.
The stories for which Russell sued, written and produced by journalists Mark Willacy and Josh Robertson, aired on television, radio and online in October 2020 and over a year later in November 2021.
The court was told the allegations came from a US Marine called ‘Josh’ who contacted Willacy about his time in Afghanistan working with Australian soldiers and said he was not a witness but a ‘banger’ on the radio heard what he thought was a gunshot.
Former special forces commando Heston Russell was awarded $390,000 in damages over ABC story
Evidence presented to the court showed that Josh told Willacy his memory was “fuzzy” and that he could not remember all the details about the accusation.
He also couldn’t tell Willacy who specifically was involved, only that it was an Australian group of soldiers.
The first article drew on Josh’s evidence, while the second was based on a failed Freedom of Information request about a criminal investigation into the conduct of an Australian commando platoon in Afghanistan in 2012.
Judge Lee found that the ABC had acted defensively from the time the articles were published to the time of the trial.
Following the articles’ publication, Judge Lee found that a “highly defensive mentality developed within the ABC in relation” to Willacy’s work, with the ABC unleashing a “culture war” against other media outlets.
Shortly after the October article was published, Jonathon Moran of The Daily Telegraph published an article entitled ‘Heston Russell: Ex-commander says alleged Afghan murder never happened’.
Judge Lee said for “reasons that are unclear … the broadcaster saw fit to criticize” the article in strong terms and “cavalierly” dismiss Moran as an “entertainment writer.”
ABC Investigations reporter Mark Willacy spoke with a man named Josh about a shooting allegation
The ABC subsequently published a detailed press release labeling the article as a ‘weak attempt to undermine the ABC’s important journalism on this subject’ and reproducing questions posed to the ABC by Moran, with Judge Lee saying it Moran’s account of the exchange “undermined.” .
In the release, the ABC said it stood behind the reporting of ‘award-winning journalist Mark Willacy’ and that, according to Judge Lee, it ‘implied the veracity and seriousness of the ABC’s reporting’.
During this time, Willacy was in contact with Josh and told the source to stick with the story.
“Let me know if you hear from Australian journalists!” Mr. Willacy wrote in an email after the phone call.
“But as suggested, I would simply say I’m sticking to my guns, reading the ABC story and not answering questions. Murdoch’s people are tabloids…’
During cross-examination, Russell’s barrister Sue Chrysanthou SC asked Willacy about the comment, pointing out that his colleague Robertson had worked at a News Corp newspaper for seven years.
Willacy responded, “Then he went to the Guardian… He was clearly trying to absolve himself of all those sins.”
Judge Lee said it was clear that Willacy considering working for News Corp “required atonement for sin” and confirmed the mentality within ABC Investigations.
Ahead of the November article’s publication, Jo Puccini, ABC’s head of investigations, sent an email to Robertson about Mr Russell’s access to the media.
A draft of the November article included a comment from Mr Russell calling for an apology for the first article.
She initially approved of Mr. Russell’s comment, but twenty minutes later changed her mind.
“I’m just thinking, do we need the ‘apology’ comment?” He has had a huge platform at 2 GB. I don’t know if we should strengthen it. Especially knowing what we know about him. Thoughts?’ she wrote.
After the article was published, Puccini then took to Twitter, now X, with a link to it and a claim that 2GB should correct its position on Josh’s allegations.
Ben Fordham and Sydney radio station 2GB criticized the ABC’s allegations
A press release was also issued following the publication which Judge Lee described as ‘complacent’.
In his judgment, Judge Lee provided further examples of what he described as ‘the continuation of the conflict perceived by the ABC’.
This includes the moment Willacy had a ‘candid’ conversation with 2GB producer James Willis after publication.
“Mr Willacy indicated that he was aware that 2GB had joined Heston Russell in a campaign to criticize the October and November article,” Judge Lee wrote, and Mr Fordham had “discussed the matter more than a dozen times ‘.
‘After receiving a media inquiry from 2GB regarding the ABC’s defense of these proceedings, Mr Willacy decided to call Mr Willis… both Mr Willacy and Mr Willis recalled a tense conversation which apparently culminated in barrage of claims about how each media organization operates.’
The judge also criticized the investigation team’s response to Media Watch’s criticism in the months following the articles’ publication.
Media Watch had sent a number of questions to ABC Investigations in December 2021, questioning why the journalists did not interview a second member of the crew or ask Mr Russell for a response once he outed himself as the November Platoon commander .
Judge Lee said you might think the “well-directed questions may have resulted in introspection and mature reflection on whether the reporting was open to fair and legitimate criticism.”
Mr Russell denied the allegations in the ABC article to News Corp journalists
“After all, these questions did not come from parts of the media that could be dismissed by those within ABC Investigations as ‘bottom feeders’ or protagonists in a culture war,” Judge Lee wrote in his judgment.
“But the internal communications in the evidence reveal defensiveness and the perception that any questioning of the October or November article undermined ABC Investigations’ important war reporting overall.”
Judge Lee described both Willacy and Puccini as “combative witnesses,” with the latter at times frustrated by her participation in a “process that called into question the conduct of the ABC.”
He found some of Puccini’s answers “strange”, such as her claim that she could not remember her involvement in “the preparation of the press release published in the aftermath of the short-lived suspension of the defense of the public interest”.
In the weeks leading up to the trial, the ABC was ordered by Judge Lee to hand over unredacted documents identifying Josh.
But the national broadcaster took a surprising step by dropping the public interest defense entirely, conceding that Russell would be entitled to judgment.
Following a case management hearing on July 12, the ABC issued a press release stating: ‘Commitments made and kept by journalists to sources are critical to ensuring journalists maintain the continued trust of people who speak the truth to the power.’
Just two days later, ABC’s barrister, Nicholas Owens SC, faced Judge Lee and reinstated the defense on the condition that Willacy did not have to reveal his source.
In his judgment, Judge Lee found the press release ‘misleading’ and acknowledged ‘no responsibility’ on the part of the ABC for its own ‘editorial choices’, which prevented it from revealing the source.
The Federal Court judge ruled that there was a defensive culture within the ABC investigative unit
“The press release was an exercise in damage control, expressed in such a way that held up ABC Investigations as an example of journalistic standards against an overreaching court,” Judge Lee said.
‘Apparently the ABC wanted to convey the message that the court was forcing its journalists to reveal their sources, when in reality the ABC had been responsible for its failure to uphold the legal source privilege.’
He found that ABC Investigations journalists equated any criticism of reporting as “salvos in a culture war”, with the broadcaster’s desire to “defend its reporting and prove critics wrong”.
The judge said the ABC believed the criticism was “emblematic of a wider culture war attack” on all war crimes reported by its journalists.