Public interest beats truth, ABC tells defamation trial
ABC journalist Mark Willacy said the Australian missions were "very bloody". Photo: AAP
Debate on matters of public interest such as alleged war crimes by Australian soldiers should be left “robust and wide-open” without fear of being stifled, the ABC has told a defamation trial.
Ex-commando Heston Russell is suing the national broadcaster over two articles in October 2020 and November 2021 claiming commandos from November Platoon shot and killed an unarmed prisoner during a drug raid in Afghanistan in mid-2012 because there was no room for them on a helicopter.
As the leader of that platoon, Mr Russell was named by the ABC. He denies the allegations and is suing for damages saying his feelings were hurt and his reputation ruined.
With the Federal Court previously ruling that the articles contained defamatory statements and throwing out the ABC’s truth defence, the broadcaster has pushed forward with a public interest defence.
On Monday, ABC barrister Nicholas Owens SC said there were different ways in which a journalist could look into allegations and act before reporting on them.
“We say free speech and public interest rises well above truth,” Mr Owens said.
The barrister quoted from a landmark freedom of the press case from 1964 where a US court found newspapers were protected even when publishing false statements.
“(There is) a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials,” Justice William Brennan wrote.
Mr Russell agreed it was in the public interest for the media to report on alleged war crimes committed by Australian soldiers overseas, Mr Owens said.
While the ABC argues its journalists had a reasonable belief that what they were reporting on regarding the November Platoon was true at the time, Mr Russell disputes this.
The October 2020 article is based on allegations from a US marine referred to as “Josh” who claimed he was a door gunner in a helicopter giving air support to Australian soldiers when he heard a “pop” over the radio he thought was the execution of the hogtied prisoner.
Getting into the witness box, ABC journalist Mark Willacy said Josh’s claims the alleged unlawful killing occurred in June or July 2012 were not credible, instead saying it was “more likely” it and other alleged crimes occurred later during the year.
“I’ve dealt with dozens of veterans … and getting dates right is very, very difficult.”
He told the court no serious allegations had been made against the commandos deployed in mid-2012, but that those in a later rotation when Mr Russell and his platoon were there were a “particular problem”.
This included one commando, only known as Soldier X, who allegedly confessed to his Mormon priest that he had murdered an Afghan prisoner, the court heard.
“It was very bloody in so far as the Australian missions were concerned,” Willacy said.
Mr Russell gave evidence Friday that he was “absolutely shocked” when he read the reports, saying they destroyed the legacy of his platoon.
As well as affidavits from former and current Australian and US defence force personnel, Mr Russell has received written support from radio and television commentator Alan Jones and Liberal Senator Hollie Hughes.
Evidence on hurt feelings has also been given to the court in an affidavit from Katrina Paterson, the mother of Scott Smith, a member of the November Platoon who was killed in Afghanistan on October 21, 2012.
The trial in front of Justice Michael Lee continues.
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