A former commando’s legal victory against ABC could cost taxpayers up to $3.5 million in legal fees, on top of the nearly $400,000 in damages the national channel was ordered to pay.
Heston Russell successfully sued the ABC for defamation over articles published in late 2021 that his Australian platoon was under investigation over its operations in the Middle East.
The articles Mr. Russell claims are defamatory, written and produced by investigative journalists Mark Willacy and Josh Robertson, were broadcast on television, radio and online in October 2020 and more than a year later, the November 19, 2021.
The television report and two online articles included allegations by a US Marine that he indirectly witnessed the execution by Australian soldiers of a tied-up prisoner in Afghanistan in 2012.
The Federal Court will consider the issue of legal costs in this case on October 24 and determine whether the ABC will be ordered to pay its costs on an indemnity basis – or compensate Russell for his loss.
Daily Mail Australia understands the digger’s legal costs are in the region of $1.5 million. Before the case went to trial, Russell offered to settle his case for a much lower amount, estimated at around $99,000.
Heston Rusell celebrating his victory in court alongside Sue Chrysanthou, SC, who delivered her closing submissions on Monday urging Justice Michael Lee to reject the ABC’s public interest defense and rule in Russell’s favor.
Mr Russell (pictured) claimed reports 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 costs of three lawyers and five barristers, the ABC’s legal costs will likely exceed those incurred by Russell.
Taking into account Monday’s Federal Court judgment by Justice Michael Lee and 3 per cent interest, it is possible that taxpayers could be left with a bill of almost $3.5 million as a result of the litigation.
Speaking to 2GB host Ben Fordham on Tuesday morning after his victory in court, comments Willacy made during his 2020 Gold Walkley Award acceptance speech came back to haunt him.
“There’s this idea that we make up shit and we don’t… yeah, don’t sue me… if I’ve made a mistake or been cowardly in my journalism, come sue me . I am delighted. .’ he said.
Heston said: “The flippancy and arrogance of these statements…this article absolutely angers me. And it was at the Walkleys’.
ABC News Director Justin Stevens passionately defended Mark Willacy’s journalism during the Senate budget hearing in May.
“His journalism is beyond discredit. He led some of the most important investigations in this country,” he said.
“He’s a fantastic journalist, and I think it’s important that, beyond the specifics of legal cases, his journalism is beyond his reputation…defamation law can sometimes get in the way of good journalism. public interest.”
In contrast, Justice Lee flatly rejected the ABC’s public interest defense, stating that: “Mr Willacy… had become defensive about any criticism of the October article and considered that criticism to be emblematic of a broader culture war attack on all other war crimes. report from ABC Investigations,’
He also criticized the ABC Investigations team for becoming defensive when ABC’s own Media Watch program began examining their reporting, instead of subjecting itself to “careful consideration of whether the reporting were fair.
During a nine-day trial in July and August, the court was told the allegations came from a US Marine named “Josh”, who contacted Mr Willacy about his time in Afghanistan where he worked with Australian soldiers.
In an email to Mr Willacy, “Josh” said he was not a witness, but had heard a “pop” on the radio which he believed to be a gunshot.
Former special forces commando, Heston Russell (pictured, centre), with his solicitor Rebekah Giles (left) and barrister Sue Chrysanthou, SC (right) before learning they had won the case.
Mr Russell was present for every minute of the trial in Sydney’s Federal Court building in Queen’s Square, sitting at 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 lawyer, Sue Chrysanthou SC, urged the judge to reject the ABC’s public interest defence.
“There is no public interest in the ABC lying about a serious allegation of murder involving a group of soldiers who were not even given the opportunity to respond,” she told the court.
Ms Chrysanthou said there was a “significant body of evidence” showing the articles in question were a public relations exercise and “ego protection” for Mr Willacy.
She told the court the articles were a “vindication of her original story”.
A federal court ruled 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 the Federal Court in Sydney, sitting at the back of the court while Ms Giles and Ms Chrysanthou, SC, said he felt “violated” by the articles.
At the trial, Judge Lee said the ABC’s testimonies, including from journalist Mark Willacy, showed “a very strong sense of defensiveness, a willingness to run in circles in the face of criticism and the level of suspicion”.
The judge previously ruled that 10 defamatory imputations were conveyed by the articles, but it was up to the ABC to prove there was a “public interest” in publishing them.
Ms Chrysanthou said the arguments on both sides were further apart than “two ships in the night”.
“There is a ship, let’s call it Heston, that hovers over the oceans of legal principles and the ocean of real evidence that Your Honor has heard,” she said.
“Then there is the ABC ship, which is stuck on the rocks of utter delusion, hypocrisy and misrepresentation of the relevant law.”
She told the court that a major problem in the case was that the ABC “does not seem to understand the concept of admission and evasion”, as the network claims it “quite unintentionally” accused Mr Russell allegations.
While the articles contained a denial by Mr Russell, he claimed that the use of his name and photo implied he was involved in the death of an Afghan prisoner (stock image)
Although the articles contained a denial by Mr. Russell, he claimed that the use of his name and photo implied that he was involved in the death of an Afghan prisoner.
Meanwhile, Nicholas Owens SC, representing the ABC, argued that public interest reporting should not be “subject to corroboration requirements”.
“The plaintiff does indeed wish to hold journalists to a higher standard… because corroboration requirements are actually only a small part of the criminal law at present,” Mr Owens argued.
“To suggest that a journalist must corroborate things would, we say, be to hold them to totally unrealistic standards.”