A former commando’s high-profile barrister has accused the ABC of “self-delusion and hypocrisy” as she told a court there is “no public interest” in being lied to by the national broadcaster.
Heston Russell is suing the ABC and two investigative journalists over stories published in 2020 and 2021 that he claims made it look like he was being investigated for shooting an unarmed prisoner.
As the trial entered its final stages on Tuesday, Sue Chrysanthou SC, representing Mr Russell, told Justice Michael Lee to reject the ABC’s public interest defence.
“There is no public interest in being lied to by the ABC about a serious allegation of murder in relation to a group of soldiers who were not afforded the opportunity to even respond,” she told the court.
She compared the ABC’s conduct to students making a magazine.
Ms Chrysanthou said: “Now, if it was a student magazine, for Year Six people writing a story about something that happened in the playground, then maybe that’s okay.”
“They do a vox-pop of the people around to find out what they saw and heard...But that’s not okay for the ABC investigations unit,”
While Mr Russell fronted court every day of evidence, he was not sitting at the back of the Federal Court in Sydney, instead sitting stranded in Ibiza following severe weather.
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.
“NO COMPLIANCE” WITH ETHICS
Ms Chrysanthou told the court there was “no compliance” in the ABC’s code of ethics and guidelines from anyone involved in publishing the article.
“Mr Willacy took absolutely no steps to get information that might challenge Josh, none,” she said.
“To breach their own code in the pursuit of harming the applicant is improper conduct.”
She said there was a “number of pieces of evidence” which showed the journalists “were not conducting themselves as proper journalists at ABC Investigations”.
Ms Chrysanthou argued Mr Willacy “consciously” knew Josh did not specifically say which soldiers were involved in the allegation.
“(Mr Willacy) is an award-winning, experienced journalist and deliberately chose the words ‘he has told the ABC’,” she said.
“That was accepted by Mr. Willacy repeatedly in his evidence that he or Josh never said it was the commandos and that that was something that he deduced.”
She told the court the journalists, including Mr Willacy, Mr Robertson and ABC Investigations editor Jo Puccini, admitted “freely” the ethical obligations they had as employees of the national broadcaster.
She said emails show Mr Willacy “rushed to publish” the October article after being informed the Brereton report was going to be published.
Ms Chrysanthou told the court Mr Willacy did it because he “wanted more awards” and wanted to “take credit” for being the first journalist to make an allegation about November platoon.
“It is absurd. It makes no sense, what these journalists were running around doing,” she said.
ARTICLES A “PR EXERCISE”
Ms Chrysanthou said there was a “significant body of evidence” which demonstrated the articles in question were a PR exercise and “ego protection” for Mr Willacy.
“It was nothing more than ... a vindication of his original story against what he called the ‘bottom feeders’ at News Limited and 2GB,” she said.
“Ms Puccini’s tweet saying ‘do you see this 2GB, we expect an apology’, the press release no one could explain.”
Ms Chrysanthou said the submissions from either side were further apart than “two ships in the night”.
“There’s one ship, let’s call that Heston, that is gliding over the seas of legal principle and the ocean of actual evidence that your honour heard,” she said.
“Then there’s the ABC ship, that is stuck on the rocks of complete self-delusion, hypocrisy and a misstatement of the relevant law.”
She told the court a major issue in the case was that the ABC “don’t seem to understand the notion of confession and avoidance” as the broadcaster claims they “wholly unintentionally” accused Mr Russell of the allegations.
The ABC is seeking to rely on a new public interest defence that was introduced in July 2021 in NSW and is being tested for the first time in this case.
ABC’s barrister, Nicholas Owens SC will give his closing address on Wednesday.
While the articles 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 on top of court costs and stop repeating the allegations.
The hearing before Justice Michael Lee continues.