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A senior investigative reporter with the ABC sent an email to a confidential source saying not to talk to any other journalists about his allegations of war crimes, saying “Murdoch’s people are tabloid bottom feeders”, a court has been told.
Heston Russell is suing the ABC and two investigative journalists for defamation over stories published in 2020 and 2021 that he claims made it look like he was being investigated for shooting an unarmed prisoner.
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.
Mr Willacy entered his second day on the stand on Tuesday and denied claims under cross-examination that he “pointed the finger” at Mr Russell’s platoon.
The court was told the ABC had received inquiries about the first story shortly after it was released from other news outlets.
High-profile defamation silk Sue Chrysanthou SC, who is representing Mr Russell, read to the court an email Mr Willacy sent to Josh following the inquiries.
“Let me know if you hear from any Aussie journos! But as suggested, I’d just say I stand by my account, read the ABC story, and I won’t answer any other questions,” the email said.
“Murdoch’s people are tabloid bottom-feeders,” the email continued, the court was told.
Ms Chrysanthou put to Mr Willacy the comment about other media was to “encourage” Josh not to have anything to do with them.
“You were saying don’t trust them trust me,” Ms Chrysanthou said.
Mr Willacy denied the claim, saying the source didn’t have “great trust in certain sections” of the media.
He told the court a colleague who had previously worked at the Courier Mail had moved to the Guardian before working with him at the ABC.
“Let’s just say that I don’t have a great trust of the tabloid media,” Mr Willacy said.
Justice Michael Lee questioned Mr Willacy, saying it was “more than” what he was telling the court.
The judge said: “I’ve just taken note of what you said … someone left the Courier Mail to go to the Guardian and that was obviously sought to absolve himself of that … I take it from that, that your view at the time you’re dealing with him that it’s wrong to act for that second of the media.”
Mr Willacy apologised and said he was being “flippant”.
“I want to suggest to you the reason you didn’t want Josh talking to any other media is because you were concerned his story wouldn’t stack up if asked questions,” Ms Chrysanthou pressed.
When Mr Willacy responded saying it was Josh’s decision, Ms Chrysanthou suggested it was because he had “scared him off” by calling them “bottom feeders”.
She told the court Mr Willacy had known there were flaws in the story because he had engaged in some “pretty serious artistic licence with the truth when it came to what Josh had actually told you compared to what you reported”.
“That’s not correct,” Mr Willacy said.
Ms Chrysanthou suggested it was “so obvious” who Josh was in the ABC article that Mr Willacy was “worried” he could be found by journalists.
But Mr Willacy was confident he had taken “enough care” for that not to happen, conceding there was “potential” it could.
“Because you accept you put enough identifying factors and features in your article that could lead to him,” Ms Chrysanthou said.
“There was a pretty big trail of breadcrumbs.”
Mr Willacy said the breadcrumbs never led to Josh’s identity.
The court was told Mr Willacy had been questioned by a colleague about his October 2020 story before it went live, with concerns the story was pointed towards November platoon.
“What you wanted, given there was only one other platoon, was the reader to understand it was November platoon,” Ms Chrysanthou said.
Mr Willacy said he did not “specifically want that”, which Ms Chrysanthou suggested he was being “dishonest” about.
Ms Chrysanthou continued her line of questioning: “Do you accept that the article was structured in a way to point the finger at November platoon in relation to Josh’s allegation?”
He said he didn’t “recall” having that motivation.
On Monday, ABC’s barrister Nicholas Owens SC, opened his case to the court arguing it is “absolutely vital” the media is free to “report upon allegations of war crimes” as public interest sits “well above truth”.
He told the court in his opening address it was “difficult, with respect, to think of a topic of much less weight” than allegations of war crimes.
“We say the undeniably weighty aspect of the public interest then is of critical importance,” Mr Owens said.
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.
A public interest defence is aimed at protecting investigative journalism and relates to publications that concern an “issue of public interest” where the defendant “reasonably believed the publication of the matter” was in the public interest.
The ABC will need to persuade the court that its journalists genuinely believed the publication of the articles were in the public interest.
Mr Russell, who was commander of November platoon at the time of the allegations, last week fought back tears as he told the court he was “absolutely shocked” when he saw the November 2021 story saying his platoon was being investigated.
Earlier this year, Justice Lee found 10 defamatory imputations put forward by the national broadcaster were carried following a preliminary hearing in November 2022.
Justice Lee found the most serious meanings were that Mr Russell was involved in the killing, “habitually left ‘fire and bodies’ in his wake” and “knowingly crossed the line of ethical conduct” while serving in Afghanistan.
While the stories 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.
In his statement of claim, Mr Russell said an ABC article published in 2021 alleged soldiers from the November commando platoon were being investigated over their actions in Afghanistan in 2012.
It was claimed in the article that the platoon murdered a prisoner who was unarmed and handcuffed because there was no room on the extraction flight, according to the statement of claim.
Mr Russell is asking for the ABC to remove the article, pay aggravated damages on top of court costs and stop repeating the allegations.
NCA NewsWire understands the costs of the case have already exceeded $1m.
The hearing before Justice Michael Lee continues.
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