An ex-commando’s court win against the ABC could cost taxpayers up to $3.5million in legal fees, on top of the almost $400,000 in damages the national broadcaster has been ordered to pay out.
Heston Russell successfully sued the ABC for defamation over stories published in late 2021 that claimed his Australian platoon was under investigation over its operations in the Middle East.
The stories Mr Russell claims defamed him, written and produced by investigative 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 TV report and two online articles included allegations from a US marine that he indirectly witnessed Australian soldiers execute a hogtied prisoner in Afghanistan in 2012.
The Federal Court will consider the matter of legal costs in the case on October 24 and whether the ABC will be ordered to pay his costs on an indemnity basis – or to compensate Russell on his loss.
Daily Mail Australia understands that the digger’s legal costs are in the order of $1.5million. Before the case went to trial, Russell offered to settle his case for a much lower amount – believed to be around $99,000.
Heston Rusell celebrating his court win alongside Sue Chrysanthou, SC, who delivered closing submissions on Monday urging Justice Michael Lee to reject the ABC’s public interest defence and rule in Russell’s favour
Mr Russell (pictured) claimed that articles aired on television, radio and online in October 2020 implied he was involved in the death of an Afghan prisoner
Legal sources have confirmed that taking into account the cost of three barristers and five lawyers, the ABC’s legal costs are likely to exceed those incurred by Russell.
Taking into account Monday’s Federal Court judgment by Judge Michael Lee, and interest at 3 percent, it is possible that taxpayers are likely to foot a bill of close $3.5million as a result of the litigation.
Speaking to 2GB host Ben Fordham on Tuesday morning following his court win, comments Willacy made during his 2020 Gold Walkley award acceptance speech came back to haunt him.
“There’s this idea that we make sh*t up and we don’t… yeah come after me… if I’ve made a mistake or I’ve been loose with my journalism – come after me. I welcome it.’ he said.
Heston said: ‘The flippancy and arrogance of those statements… that piece just absolutely enrages me. And that was at the Walkleys.’
ABC News Director Justin Stevens passionately defended Mark Willacy’s journalism at the May Senate estimates hearing.
‘His journalism is beyond disrepute. He has done some of the most important investigations in this country,’ he said.
‘He’s a fantastic journalist, and I think it’s important that, aside from the specifics of legal cases, his journalism is beyond repute… defamation law can at times constrain good public interest journalism.’
In contrast Judge Lee gave a damning rejection of the ABC’s public interest defence stating that: ‘Mr Willacy….had become defensive about any criticism of the October article and considered such criticism was emblematic of a broader culture war attack on all the other war crimes reporting of ABC Investigations,’
He also criticised the ABC Investigations team for getting defensive when the ABC’s own Media Watch program began scrutinising their reporting, instead of undergoing ‘mature reflection upon whether the reporting was fair’.
Throughout a nine-day trial over July and August, 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.
In an email to Mr Willacy, ‘Josh’ said he was not a witness, but heard a ‘pop’ on the radio he believed was a gunshot.
Former special forces commando, Heston Russell (pictured, centre), with his lawyer Rebekah Giles (left) and barrister Sue Chrysanthou, SC (right) before the learning they’d won the case
Mr Russell was present for every minute of the trial in Sydney’s Federal Court building at Queen’s Square, sitting in the back of the court as his legal team described the ‘violation’ he felt when the articles were published.
During the trial, Mr Russell’s barrister Sue Chrysanthou SC, urged the judge 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.
Ms Chrysanthou said there was a ‘significant body of evidence’ that demonstrated the articles in question were a PR exercise and ‘ego protection’ for Mr Willacy.
She told the court the articles were a ‘vindication of his original story’.
A Federal court found the articles, produced by ABC journalists Mark Willacy (pictured) and Josh Robertson, could not be proven to be in the public interest and defamed Mr Russell
Mr Russell was present for every minute of the trial in Sydney’s Federal Court, sitting at the back of the court while his Ms Giles and Ms Chrysanthou, SC, said he felt ‘violated’ by the articles
At trial, Justice Lee said the evidence from ABC witnesses, including journalist Mark Willacy, showed ‘a very great sense of defensiveness, of circling the wagons against criticism and the degree of suspicions’.
The judge previously ruled 10 defamatory imputations were conveyed by the stories, but it was up to the ABC to prove there was ‘public interest’ in publishing them.
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.
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 (stock image)
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.
Meanwhile Nicholas Owens SC, representing the ABC, argued that public interest reporting shouldn’t be ‘subject to requirements of corroboration’.
‘The applicant, in effect, wishes to hold journalists to higher standards … because requirements for corroboration really is a pretty small portion of the criminal law now,’ Mr Owens argued.
‘The suggestion that a journalist needs to corroborate things would be, we say, to hold them to an entirely unrealistic standard.’