A senior investigative reporter with the ABC has denied throwing a colleague “under the bus” by not putting his name on a story he helped write, 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 finished his time in the witness stand on Tuesday as he continued being cross-examined by Mr Russell’s barrister Sue Chrysanthou SC.
The court was told the ABC had received a complaint for both stories before a press release was issued by the broadcaster about the outcome of the editorial complaints.
Mr Willacy told the court he was involved “in what the ABC would say to both Mr Russell and publicly” about the outcome of the complaints.
“I believe I wanted the two complaints or the two story outcomes, if we could call it that, to be very separate,” he told the court.
“Because of my concerns that the media would conflate both, and actually I do believe 2GB did conflate both in the end anyway.”
The court was told Mr Willacy participated in the drafting of the media release before it was made public.
But when Mr Willacy responded internally to queries he left Mr Robertson out of his emails.
Ms Chrysanthou asked why he would leave out his colleague when his name is on the second story, which the court was told was “essentially a cut and paste” of the first article.
“I can’t recall but Josh sits right across from me, we probably discussed it, I don’t know why he was cut out … maybe he had to deal with it himself for the November version,” Mr Willacy told the court.
Ms Chrysanthou suggested the reason Mr Willacy cut his colleague out was because he was “throwing him under the bus”.
Mr Willacy responded: “No, that’s not correct.
“I wanted the media to get it right.”
The award-winning ABC journalist also denied claims he had “closed his mind” off to listening to Mr Russell, as he did not want to admit his story “was wrong”.
He told the court he had offered to have a sit down with Mr Russell, but he “never took up the offer”.
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.