ABC drops defence in ex-commando’s defamation suit to avoid naming source

Save articles for later

Add articles to your saved list and come back to them any time.

The ABC has sensationally dropped its defence in former Australian special forces soldier Heston Russell’s defamation case against the broadcaster rather than comply with a court order that it hand over documents to his lawyers revealing the identity of a journalist’s source.

In an urgent court hearing on Wednesday evening, the ABC’s barrister, Lyndelle Barnett, said withdrawing the defence was “not a course that’s been taken lightly”, but the national broadcaster’s reporters “do take their promises to sources very seriously”.

Ex-SAS commando Heston Russell in March this year.Credit: Oscar Colman

The ABC is seeking to have the order forcing it to hand over documents identifying the source revoked, a course of action opposed by Russell’s legal team.

Barnett said the ABC accepted that Russell was now entitled to judgment in his favour and the sole remaining issue was an assessment of damages.

Russell launched defamation action against the ABC in September last year over a television broadcast on November 19, 2021, an online article that day, and the same article combined with a linked article from October 2020.

Justice Michael Lee had ruled the broadcast and articles conveyed a total of six defamatory meanings, including that “Russell, as commander of November Platoon, was involved in shooting and killing an Afghan prisoner during an operation in Helmand province in mid-2012” and that he “behaved so immorally when deployed in Afghanistan that American forces refused to work with him”.

The broadcaster had initially sought to rely on a defence of truth to those meanings but dropped that part of its case in May, leaving a new public interest defence intact. That defence was withdrawn on Wednesday evening. The trial was slated to start on July 28.

In a preliminary decision in February, Justice Michael Lee noted the ABC reported a US marine had made allegations that Australian commandos shot and killed an Afghan prisoner. He was “given the pseudonym ‘Josh’, but strangely enough is pictured, notwithstanding both the [online articles] … record he does not want to be identified because he ‘fears retribution’,” Lee said.

“If those responsible for publication of ‘Josh’s’ photograph within the ABC thought there was substance in ‘Josh’s’ fears of retribution, they must have assumed his potential assailants were a somewhat incurious and lazy lot.”

At a pre-trial hearing on Tuesday, the Federal Court heard the ABC had made redactions to some documents handed over to Russell’s lawyers ahead of the trial.

Sue Chrysanthou, SC, acting for Russell, said “dozens of documents” had been redacted to protect Josh’s identity “and they need to be urgently provided unredacted”.

She said Josh’s photograph had been shown on the ABC’s Media Watch program as well as appearing in the online articles at the centre of the defamation case.

“It’s not a confidential source if people can figure him out,” Chrysanthou said.

But Barnett, for the ABC, told the court that Josh’s photograph had been published “in a particular circumstance where the information from him was that he doesn’t have a digital footprint and he wouldn’t be able to be identified from his photograph”.

Russell’s lawyer Sue Chrysanthou SC, pictured in 2020.Credit: AAP

“The fact that he has, to date, not been identified, with respect, shows that that was correct,” Barnett said. “If he was as easily identifiable as my learned friend thinks he was, she should have been able to identify him by now.

“The ABC is subject to guidelines and obligations which requires them to adhere to promises they have given to sources and in this instance they did give a promise to Josh that they would not disclose his name.”

Barnett said it had “been in our defence since the beginning, that we assert protection in respect of Josh’s identity”.

But Lee said on Tuesday a sensible interim solution would be to order the ABC to provide Russell’s solicitors with copies of documents removing redactions that hid Josh’s identity.

The solicitors would be bound by an implied undertaking that the information could only be used for the purpose of the litigation, Lee noted. “They’re not going to put an advertisement in The New York Times, saying ‘This is the fellow who’s an informant’,” he said.

Lee ordered on Tuesday that the ABC provide to Russell’s solicitors by 4pm on Wednesday “copies of documents that have been redacted to obscure the identity of ‘Josh’ with any such redactions removed”.

It was this order that prompted the ABC to withdraw its public interest defence rather than comply with its terms. Lee granted a stay on Wednesday preventing his order taking effect, and the ABC will seek to have the order withdrawn. The parties return to court on Friday.

The Morning Edition newsletter is our guide to the day’s most important and interesting stories, analysis and insights. Sign up here.

Most Viewed in National

From our partners

Source: Read Full Article