Former commando Heston Russell has won his defamation case against the ABC and been awarded $390,000 after a federal court judge found the public broadcaster did not prove its reporting was in the public interest.
But Justice Michael Lee did not find Russell’s “oral evidence as to his hurt to feelings persuasive” and did not award aggravated damages.
“His actions are consistent with someone who has not suffered significant hurt but rather embraced the public controversy,” Lee said.
The Russell case is the first full trial to test a new public interest defence in defamation suits, which came into force in July 2021 and relates to publications concerning “an issue of public interest” where the defendant “reasonably believed that the publication of the matter was in the public interest”.
Lee found that the ABC investigative journalist Mark Willacy, who was the author of the articles alongside his colleague Josh Robertson, had not established the public interest defence.
Lee said he had no doubt Willacy “believed the publication of the matter was in the public interest” but “his belief was not reasonable in the circumstances”.
The article published in November 2021 “overstated the cogency of the evidence in the ABC’s possession and was published following several missteps, including the failure to procure fairly and consider a response from Mr Russell”, Lee found.
But the publication was not “improper, unjustified, or lacking in bona fides” because the ABC considered it was important and of public benefit.
Lee set out the reasons for his judgment in the defamation case Russell brought against the ABC over two online news articles, a television news item and a radio broadcast that relate to the alleged actions in Afghanistan in 2012 of the November platoon, which Russell commanded.
The judge found Russell had “dissembled” in his evidence in the witness box when questioned about an invoice he had altered and that it was not safe “to place any reliance upon his evidence”.
Outside the Sydney court Russell welcomed the verdict and said the ABC had “finally been exposed for its false allegations against our 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.
“Australians deserve better from the national broadcaster that we all pay taxes for.”
In his judgment Lee found the ABC was defensive about its war reporting, and criticised one media statement about a Daily Telegraph report as having a “supercilious tone”.
“I gained the impression that a highly defensive mentality arose within ABC corporate affairs in relation to the work done by ABC Investigations and, in particular, Mr Willacy,” Lee said.
“[The ABC] considered such criticism [from News Corp] was emblematic of a broader culture war attack on all the other war crimes reporting of ABC investigations. They were justifiably proud of their earlier work and took the criticism to heart.”
Lee said Robertson, who had written one of the articles sued upon, was “an engaging witness who provided thoughtful and candid answers to the questions asked of him” and he accepted his evidence.
“Although [Robertson] was heavily involved in the November article, he was a relative newcomer to ‘war crimes’ reporting and, unlike Mr Willacy and [head of investigations and current affairs Jo] Puccini, was uninvolved in the ABC’s corporate affairs.”
The federal court found in February Russell was defamed by the ABC in a series of articles that linked him to war crimes and alleged he left “fire and bodies” in his wake during his service in Afghanistan.
Lee found the ABC defamed Russell by conveying that he was “the subject of an active criminal investigation into his conduct as a commando in Afghanistan” and “reasonably suspected … of committing a crime or crimes when he was a commando in Afghanistan”.
Russell, a former major in the Australian special forces who served four tours of Afghanistan, has consistently denied all wrongdoing and allegations against him, and that he was the subject of a formal investigation.
The ABC initially defended its reporting as substantially true but dropped the truth defence in May and subsequently argued there was public interest in its coverage.
Russell’s legal team said on Monday it was seeking indemnity costs from the ABC, arguing that Russell had offered to settle the case if the ABC removed the articles.
