FEDERAL COURT OF AUSTRALIA
Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223
File number: NSD 745 of 2022 Judgment of: LEE J Date of judgment: 16 October 2023 Catchwords: DEFAMATION – defamation proceeding brought by former commander of special forces “November Platoon” against public broadcaster and two journalists – where various imputations found to have been carried concerning conduct of platoon in Afghanistan – consideration of serious harm requirement in s 10A of the Defamation Act 2005 (NSW) (Defamation Act) – where defences all but fell away excepting new defence of public interest in s 29A of the Defamation Act – consideration of common law and statutory antecedents to s 29A – genealogy of “public interest” and “reasonableness” in the law of defamation in Australia – proper approach to s 29A ultimately open-textured and value-laden – focus on all the circumstances of the case – respondents believed publication of impugned matters was in the public interest – respondents’ belief was not reasonable – defence failed
DAMAGES – where applicant sought general damages for non-economic loss – where applicant sought aggravated damages for no less than 58 circumstances of aggravation – whether general damages may be reduced on account of the conduct of a plaintiff during litigation – whether aggravated damages should be awarded where adverse credit finding made in relation to applicant – general damages awarded but aggravated damages refused
Legislation: Australian Broadcasting Corporation Act 1983 (Cth)
Evidence Act 1995 (Cth) s 126K, 191
Freedom of Information Act 1982 (Cth) 37(1)(a), 93A
Civil Wrongs Act 2002 (ACT) s 139AA
Criminal Code Act 1899 (Qld) s 377, 377(8)
Defamation Act 1957 (Tas) s 16
Defamation Act 2005 (NSW) Pt 4 Div 3, ss 4, 4(1), 4(2), 8, 10A(1), 29A, 29A(1), 29A(1)(a), 29A(1)(b), 29A(2), 29A(3)(a), 29A(3)(b), 29A(3)(c), 29A(3)(d), 29A(3)(e), 29A(3)(g), 29A(3)(h), 29A(3)(i), 33, 34, 35(1), 35(2), 35(2A), 35(2B), 35(3), 39
Defamation Act 2005 (Qld) s 29A
Defamation Act 2005 (SA) s 27A
Defamation Act 2005 (Tas) s 29A
Defamation Act 2005 (Vic) s 29A
Defamation Amendment Act 2020 (NSW) sch 1, cll 6, 27
Defamation Act 1889 (Qld) (repealed) ss 17(c), 17(d), 17(e)
Defamation Act 1901 (NSW) (repealed)
Defamation Act 1912 (NSW) (repealed) s 30
Defamation Act 1958 (NSW) (repealed)
Defamation Act 1974 (NSW) (repealed) s 3(b), 22, 22(2A), 22(2A)(c), 22(2A)(d), 22(2A)(f), 22(2A)(g), 22(2A)(h), 30, 30(3), 30(3)(b), 30(3)(c), 30(3)(d), 30(3)(e), 30(3)(g), 30(3)(h), 30(3)(i)
Defamation Act 1957 (Tas) (repealed) s 15(b)
Defamation (Amendment) Act 1909 (NSW) (repealed) s 6
Defamation Act 2013 (UK) ss 1, 4, 4(3), 4(4), 4(6)
Human Rights Act 1998 (UK)
Slander & Libel Act or Injuries to Character Act 1847 (repealed)European Convention for the Protection of Human Rights and Fundamental Freedoms opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 June 1952)
Cases cited: Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; (2010) 241 CLR 79
Allbutt v General Council of Medical Education (1889) 23 QBD 400 (CA)
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Austin v Mirror Newspapers Ltd [1986] AC 299
Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57
Banks v Cadwalladr [2022] EWHC 1417 (QB); [2022] 1 WLR 5236
Banks v Cadwalladr [2023] EWCA Civ 219; [2023] 3 WLR 167
Barilaro v Google LLC [2022] FCA 650
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Bennette v Cohen [2009] NSWCA 60; (2009) Aust Torts Reports 82-002
Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474
Blackshaw v Lord [1984] 1 QB 1
Bonnick v Morris [2003] 1 AC 300
Botany Bay City Council v Jazabas Pty Ltd [2001] NSWCA 94; [2001] ATPR 46-210
Browne v Dunn (1893) 6 R 67
Calwell v IPEC Australia Ltd (1975) 135 CLR 321
Campbell v News Group Newspapers Ltd [2002] EWCA Civ 1143
Chapman v Ellesmere [1932] 2 KB 431
Cheiko v National News Pty Ltd (No 5) [2016] NSWSC 29
Chetwynd v Armidale Dumaresq Council [2010] NSWSC 690
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commercial Union Insurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Coxhead v Richards (1846) 2 CB 569
Coyne v Citizen Finance Ltd (1991) 172 CLR 211
David Syme & Co Ltd v Mather [1977] VR 516
Davies v Snead (1870) 5 LR QB 608
Dun v Macintosh (1906) 3 CLR 1134
Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575
Doyle v Smith [2018] EWHC 2935 (QB)
Durie v Gardiner [2018] NZCA 278; [2018] 3 NZLR 131
Economou v de Freitas [2016] EWHC 1853 (QB)
Economou v de Freitas [2018] EWCA Civ 2591
Flood v Times Newspapers Ltd [2010] EWCA Civ 804; [2011] 1 WLR 153
Flood v Times Newspapers Ltd [2012] 2 AC 273
FlyMeNow Ltd v Quick Air Jet Charter GmbH [2016] EWHC 3197 (QB)
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Grant v Torstar Corp [2009] 3 SCR 640
Haddon v Forsyth [2011] NSWSC 123
Hanson-Young v Leyonhjelm (No 5) [2020] FCA 34
Herald & Weekly Times v Popovic (2003) 9 VR 1
Herron v HarperCollins Publishers Australia Pty Ltd (No 2) [2022] FCAFC 119
Howe & McClough v Lees (1919) 11 CLR 361
Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359
John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164; (2005) Aust Torts Reports 81–789
John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290; (2001) 52 NSWLR 373
John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227
Joseph v Spiller [2012] EWHC 2958 (QB)
Kumova v Davison (No 2) [2023] FCA 1
Lachaux v Independent Print Ltd [2020] AC 612
Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB)
Lang v Willis (1934) 52 CLR 637
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Lange v Atkinson [2000] 3 NZLR 385
Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783
Macintosh v Dun [1908] AC 390
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423
Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
Murdoch v Private Media Pty Ltd [2022] FCA 1275
Murphy v Nationwide News Pty Ltd [2021] FCA 381
Nagle v Chulov [2001] NSWSC 9
O’Hara v Sims [2009] QCA 186
O’Sullivan v Farrer (1989) 168 CLR 210
Palmer v McGowan (No 5) [2022] FCA 893; (2022) 404 ALR 621
Perera v Peiris [1949] AC 1
Praed v Graham (1889) 24 QBD 53
Rader v Haines [2022] NSWCA 198
Reynolds v Times Newspapers Ltd [2001] 2 AC 127
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50
Russell v Australian Broadcasting Corporation [2023] FCA 38
Russell v Australian Broadcasting Corporation (No 2) [2023] FCA 808
Serafin v Malkiewicz [2020] UKSC 23; [2020] 1 WLR 2455
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Summers v Fairclough Homes Ltd [2012] UKSC 26; [2012] 1 WLR 2004
Suttcliffe v Pressdram Ltd [1991] 1 QB 153
Sykes v Reserve Bank of Australia (1998) 88 FCR 511
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
Toogood v Spyring (1834) 1 Cr M & R 181; (1834) 149 ER 1044
Triggell v Pheeney (1951) 82 CLR 497
Turley v Unite the Union [2019] EWHC 3547
Waller v Loch (1881) 7 QBD 619 (CA)
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492
Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58
Whiteley v Adams (1863) 15 CB (NS) 392; 143 ER 838
Wright v McCormack [2023] EWCA Civ 892Council of Attorneys-General, Review of Model Defamation Provisions (Discussion Paper, February 2019)
Descheemaeker, E, ‘A man must take care not to defame his neighbour: the origins and significance of the defence of responsible publication’ (2015) 34(2) University of Queensland Law Journal 239
Explanatory Note, Defamation Act 2013 (UK)
Explanatory Note, Defamation Amendment Bill 2020 (NSW)
Gould, K, ‘The more things change, the more they stay the same … or do they?’ (2007) 12 Media and Arts Law Review 29
Keating, GC, Reasonableness and Risk: Right and Responsibility in the Law of Torts (Oxford University Press, 2022)
Kenyon, AT, ‘Lange and Reynolds Qualified Privilege: Australian and English Defamation Law and Practice’ (2004) Melbourne University Law Review 406
Milmo, P and Rogers, W V H (eds), Gatley on Libel and Slander (Sweet & Maxwell Ltd, 9th ed, 1998)
Mitchell, P, The Making of the Modern Law of Defamation (Hart Publishing, 2005)
New South Wales Attorney-General’s Task Force on Defamation Law Reform, Defamation Law – Proposals for Reform in NSW (2002)
New South Wales Law Reform Commission, Defamation (Discussion Paper No 32, 1993)
New South Wales Law Reform Commission, Report of the Law Reform Commission on Defamation (Report No 11, 1971)
New South Wales, Parliamentary Debates, Legislative Assembly, 13 September 2005
New South Wales, Parliamentary Debates, Legislative Assembly, 29 July 2020
Parkes, R, Mullis, A et al (eds), Gatley on Libel and Slander (Sweet & Maxwell Ltd, 13th ed, 2022)
Queensland, Parliamentary Debates, Legislative Assembly, 19 July 1889
Rolph, D, ‘A Critique of the Defamation Act 2013: Lessons for and from Australian Defamation Law Reform’ (Legal Studies Research Paper No. 17/98)
Rolph, D, ‘A serious harm threshold for Australian defamation law’ (2022) 51 Australian Bar Review 185
Starkie, T, A Treatise on the Law of Slander and Libel and incidentally of Malicious Prosecutions (London, 2nd edn, 1830)
Stone, J, Legal System and Lawyers’ Reasonings (Stanford University Press, 1964)
United Kingdom, Hansard, House of Commons (12 June 2012)
Walker, S, ‘Lange v ABC: the High Court rethinks the “constitutionalisation” of defamation law’ (1998) 6 Torts Law Journal 9
Williams, G, Textbook of Criminal Law (Stevens & Son, 2nd ed, 1983)Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 515 Date of hearing: 28, 31 July; 1–4, 7, 29–30 August 2023 Date of last submissions: 8 September 2023 Counsel for the applicant: Ms S Chrysanthou SC with Mr N Olson and Mr T Smartt Solicitors for the applicant: Company Giles Counsel for the respondents: Mr N Owens SC with Ms L Barnett and Ms M Cowden Solicitors for the respondents: Australian Broadcasting Corporation Legal Services ORDERS
NSD 745 of 2022 BETWEEN: HESTON RUSSELL
Applicant
AND: AUSTRALIAN BROADCASTING CORPORATION
First Respondent
JOSHUA ROBERTSON
Second Respondent
MARK WILLACY
Third Respondent
ORDER MADE BY:
LEE J
DATE OF ORDER:
16 OCTOBER 2023
THE COURT ORDERS THAT:
1.The proceeding be stood over to a date and time to be fixed within the next seven days for the entry of judgment in favour of Mr Russell in the sum of $390,000 together with interest at the rate of 3 per cent per annum and for determination of the applications made by Mr Russell to enjoin the respondents and for costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
LEE J:
A INTRODUCTION AND OVERVIEW
Mr Heston Russell, a former Major and Commando Officer within the Special Operations Command of the Australian Defence Force (Defence), sues the Australian Broadcasting Corporation (ABC) and two of its journalists, Mr Joshua Robertson, and Mr Mark Willacy, in defamation, in relation to four publications.
In February, for the reasons set out in Russell v Australian Broadcasting Corporation [2023] FCA 38 (first judgment), I determined almost all questions of meaning, finding that some imputations were conveyed, and many were not, including rejecting imputations pleaded in relation to the publication known as the Radio Broadcast. These reasons assume a familiarity with the first judgment. This hearing deals primarily with any defences to the publication of the November Article, the Linked Article (being the November Article read together with the October Article) and the Television Broadcast, and, if the defences fail, the issue of relief.
There have been several developments since the first judgment by which various defences pleaded by the ABC have all but fallen away. The one remaining defence also died but rose again on the third day (as was explained in Russell v Australian Broadcasting Corporation (No 2) [2023] FCA 808 (second judgment)). In the end, what remains is the defence of public interest as provided for in s 29A of the Defamation Act 2005 (NSW) (Defamation Act).
For reasons that follow, no party emerges from this case without criticism, but my conclusion is that the respondents have not established the public interest defence and, as a consequence, Mr Russell is entitled to judgment and an award of ordinary compensatory damages.
My reasons are structured as follows:
BBACKGROUND AND PRINCIPAL PLAYERS
CFACTUAL FINDINGS AS TO THE CONDUCT OF THE ABC
DTHE SEPARATE HEARING AND THE IMPUTATIONS
ESERIOUS HARM
FTHE PUBLIC INTEREST DEFENCE: THE LAW
GTHE PUBLIC INTEREST DEFENCE: CONSIDERATION
HFURTHER FACTUAL FINDINGS AS TO DAMAGES
IASSESSMENT OF DAMAGES
JCONCLUSION AND ORDERS.
B BACKGROUND AND PRINCIPAL PLAYERS
The trial took place over nine days and involved the tender of affidavits, documentary evidence and oral testimony of seven witnesses. The evidentiary record includes a joint statement of agreed facts pursuant to s 191 of the Evidence Act 1995 (Cth) (EA). I record in this section of my reasons some overview findings as to the principal players, the relevant chronology, and some uncontroversial facts. As the headings above make clear, I will make further factual findings of relevance to the public interest defence and the assessment of damages below.
B.1 Inquiries into Conduct of Australian Forces in Afghanistan
The backdrop to this dispute was Australia’s contribution of troops to the recent hostilities in Afghanistan and allegations of serious misconduct by Australian soldiers.
In 2016, the then Chief of Army required the Inspector General of the Australian Defence Force (IGADF) to investigate and report upon the allegations and the IGADF appointed Major General the Honourable Paul Brereton AM RFD as an Assistant IGADF to conduct an inquiry (IGADF Afghanistan Inquiry), culminating in what is commonly referred to as the Brereton Report, released in November 2020. The primary focus of the Brereton Report was the Special Air Service Regiment (SASR).
In January 2021, the Commonwealth established the Office of the Special Investigator (OSI). The purpose of the OSI was to: (a) review the findings made in the Brereton Report; (b) work with the Australian Federal Police (AFP) to investigate the commission of criminal offences under Australian law arising from misconduct by members of Defence in Afghanistan from 2005 to 2016; and (c) develop briefs of evidence in respect of any offences established, for referral to the Commonwealth Director of Public Prosecutions (DPP).
B.2 Mr Russell
Mr Russell joined the army in 2003, at the age of seventeen. His family’s connexion with the military may be traced back five generations, to his great-great-grandfather who served with the First Australian Imperial Force on the Western Front during the Great War.
He became the commander of November Platoon within the 2nd Commando Regiment, Alpha Company (November Platoon), in November 2010, and was first deployed to Afghanistan in October 2011. Relevantly, he was the commander of November Platoon during a deployment to Afghanistan within Special Operations Task Group (SOTG) Rotation 18 in 2011–2012.
Mr Russell served for sixteen years, including in Iraq, electing to discharge in January 2019. He was awarded several medals and awards for his service, including in recognition of his conduct in Afghanistan.
Following a stint as an operations manager at fitness group “Barry’s Bootcamp”, Mr Russell asserts he now primarily focusses upon veterans’ advocacy and charity work. In any event, he seems to spend a great deal of time on social media and has over 103,000 “followers” on Instagram and a personal website. He posts on a variety of matters (including criticism of the ABC and updates on this proceeding).
B.3 November Platoon
The 2nd Commando Regiment comprises Alpha, Bravo, Charlie, and Delta companies, each containing two or three platoons. Alpha Company consisted of November and Oscar Platoons (the latter being mistakenly referred to in aspects of the evidence as “October Platoon”).
“Task Force 66” was deployed in Afghanistan in 2012 and included Alpha and Bravo companies.
B.4 Key Players at the ABC
Messrs Willacy and Robertson are journalists in the ABC’s Brisbane Bureau, of which Mr Willacy is the Bureau Chief. Both are journalists for “ABC Investigations”, which might be described as an enclave within the general “News” division of the ABC. ABC Investigations publishes its work across the ABC’s various news and current affairs programmes and platforms, and collaborates with other units, in particular, Four Corners and 7.30.
At all relevant times, Messrs Willacy and Robertson reported to Ms Jo Puccini, based in Sydney, who performed the role of “Investigations Editor”. Unless an editorial decision needed to be (to use the awkward expression in the evidence) “upwardly referred”, Ms Puccini was the editorial decision maker for publications by the journalists who reported to her.
Mr Willacy has been a journalist with the ABC since 1995, including as a foreign correspondent in the Middle East and Afghanistan, and as senior reporter for ABC Investigations since 2014. He has had a distinguished career. He has been awarded the Walkley Award for journalism on seven occasions, including in 2020, for a Four Corners programme entitled Killing Field, concerning the killing of unarmed non-combatants by Australian forces in Afghanistan. His third book, Rogue Forces, was published in August 2021 and concerns the conduct of Australian forces in Afghanistan. It was awarded the 2022 Prime Minister’s Literary Award for non-fiction.
Since 2019, Mr Willacy has focussed on investigating alleged war crimes by Australian soldiers, primarily being those allegedly committed by the SOTG during the Afghanistan War.
Mr Robertson has been a journalist since 2005, joining the ABC in 2017. He is also an experienced and well-regarded journalist and has known and worked with Mr Willacy since 2017. On the evidence before me, Mr Robertson’s first publication in relation to alleged war crimes by Australian soldiers was the November Article, although Mr Robertson’s evidence was that Mr Willacy had kept him abreast of relevant developments in his reporting from time to time.
The dramatis personae also includes Ms Alexandra Blucher and Mr Daniel Oakes, journalists for ABC Investigations in Brisbane and Melbourne respectively. Relevantly, Ms Blucher was the “producer” of the October Article. The role of producer involves coordinating the dissemination of a story on various media, including selecting vision and images for use in television broadcasts and online articles, editing audio for radio broadcasts, reviewing scripts and draft copies, and conducting additional research where required.
Mr Oakes is a senior reporter who has investigated and reported on potential war crimes by Australian soldiers since approximately 2017. While doing so, he has accrued a few contacts including current and former members of the Defence community. As explained below, Mr Oakes contacted several of his sources and attempted to contact members of November Platoon prior to the publication of the impugned publications.
B.5 “ABC Investigations”
I remarked in my first judgment (at [32]) that the appellation “ABC Investigations” suggests a certain rigour and depth to the work conducted by the team. Indeed, Mr Willacy and Ms Puccini accepted that when ABC Investigations is referred to in a story (for example, in the by-line of an article, as was the case with the November and Linked Articles, or in the introduction to a television segment, as was the case with the Television Broadcast), a representation is made to the audience that an investigation has been conducted, and that not insignificant time and resources have been directed towards it.
The impression that ABC Investigations is constituted by journalists held out to be an elite corps is reinforced by its description at various points in the evidence as “independent” of the ABC more generally. But this is an inapt descriptor. The unit only sits apart from the general News division insofar as it has its own Investigations Editor and Head of Investigative Journalism. Where matters require escalation, they are directed to the Director of News, then the Director of News, Analysis and Investigations and, finally, the Managing Director. Matters may also be filtered through from ABC Investigations to the ABC’s editorial unit and then to the Managing Director.
I now turn to the processes applicable to the publication of the October Article and the impugned matters.
At all relevant times, the general editorial process began with a journalist “pitching” a story to Ms Puccini. Ms Puccini would then consider whether, in her opinion, the story met a threshold of public interest, defined in the ABC’s Glossary to its Editorial Policies as follows:
The ‘public interest’ cannot be exhaustively defined. It includes but is not confined to:
•exposing or detecting crime;
•exposing significantly anti-social behaviour;
•exposing corruption or injustice;
•disclosing significant incompetence or negligence;
•protecting people's health or safety;
•preventing people from being significantly misled by a statement or action of an individual or organisation in relation to a matter of public importance;
•disclosing information that assists people to better comprehend or make decisions on matters of public importance.
There is also a public interest in the internationally recognised civil and political rights, which include freedom of expression.
Stories were also supposedly required to meet the ABC’s Code of Practice, as well as its editorial policies and guidelines, including as to accuracy; independence, integrity, and responsibility; fair and honest dealing; appropriate attribution and provision of anonymity of sources; and impartiality. Ms Puccini told the Court journalists at the ABC are “bound” and “obliged to abide by” these standards: T693.13–14. ABC journalists also subscribe to a code of ethics published by the Media, Entertainment and Arts Alliance, a union and advocacy organisation (MEAA Journalist Code of Ethics): T196.27–31.
Once a journalist had drafted a story, they would provide it to Ms Puccini who would review the draft and determine whether it was ready for publication, or otherwise instruct the journalist to make any necessary edits or conduct further research. The next stage was, if appropriate, any “upward referral” or referral to ABC Legal before the draft would be provided to a digital producer and inputted into the ABC’s content management system.
The digital producer would add “Key Points”, being short bullet points featured in large print, capturing the main points (presumably as teasers or for the benefit of those who have difficulty taking in information of complexity, or those scanning the article or otherwise uninterested in descending into the detail). The digital producer would also add headlines, images, hyperlinks, and captions to the story and return it to the journalist and Ms Puccini for review and approval. Where legal advice had been sought, the headlines and Key Points would usually also be submitted to ABC Legal for review. Once a final review and approvals were complete, certain stories were subedited further by digital editors or producers.
Finally, the story would be uploaded onto the ABC website and, if it was sufficiently significant, accompanying radio and television segments would be prepared and published, following a similar editorial process.
C FACTUAL FINDINGS AS TO THE CONDUCT OF THE ABC
C.1 General Observations
As will be seen, the Court’s task in relation to the s 29A defence is to determine whether, in all the circumstances, the publisher reasonably believed the publication of the impugned matter was in the public interest.
Although what follows is regrettably lengthy, when one has regard to the statutory task, it is appropriate to set out in detail my findings as to the steps taken by the ABC in preparing and publishing the November Article, Linked Article and Television Broadcast and the subjective state of mind of relevant persons at the time of publication. Consideration of the Linked Article requires consideration, at least to an extent, of the anterior steps taken in relation to the publication of the October Article which, it will be recalled, is not sued upon.
I attend to making these findings below, but at the outset, it is worth remarking on two striking and connected points that emerged in stark relief after seeing the ABC’s evidence unfold, which go some way in explaining why this matter has proceeded to a trial. The first is the suspicion harboured by Mr Willacy, Mr Robertson, and Ms Puccini at various times of wrongful conduct by the November Platoon in general and Mr Russell in particular. The second is the view held within ABC Investigations that criticism of the October and November Articles had become a proxy for a broader “culture war” attack on the war crimes reporting of ABC Investigations.
As to the first of these matters, the suspicions were not some irrational fancy.
Mr Russell’s response to the ABC’s reporting had one peculiar aspect. Days after the publication of the October Article, Mr Russell identified himself as the commander of November Platoon in an interview with Mr Peter van Onselen on Network Ten’s programme The Project (Project Interview). Mr Russell confirmed he was “with the platoon all the time”, such that “November Platoon was never deployed on any of our 20 missions into Helmand, Afghanistan, without me”. One might expect this to be followed by an assertion that he had never witnessed wrongdoing by men under his control. But when questioned, “And you say no prisoner was ever summarily executed that you saw”, Mr Russell gave an answer that might be regarded by some as oddly non-responsive. He replied, “So, we’re responding to the direct allegation that this marine on a mission heard seven detainees turn to six and heard a pop and that was the execution that never happened”. Ms Puccini, to my mind unsurprisingly, gave evidence she considered Mr Russell’s response to be “curious” as he was careful to deny only the specifics of the allegation put forward in the October Article.
Mr Russell has since reaffirmed this approach in engaging with the allegations. In an editorial complaint submitted to the ABC on 16 December 2021, he complained a statement given by him had been misleadingly paraphrased as a denial of any wrongdoing and asked, “[h]ow can this be stated as such or is this the Journalists [sic] poetic licence?”, continuing, “I have always spoken specific [sic] to the ‘Marine Heard a Pop’ incident and professed that this did not happen. I have not ever provided such broad statements and would like to know who approved this?”
This may all be true and literally correct but is not an approach apt to dispel some suspicion of wrongdoing, however speculative such suspicions may be. Moreover, there were also dealings between the ABC and the OSI, which caused those within ABC Investigations to think that they may be onto something of substance. The OSI requested access to the footage and material which formed the basis of the October Article, and conducted two in-person interviews with Mr Willacy, during which the OSI confirmed they had conducted background checks into Mr Willacy’s source and intended to consult the source as part of their investigations. Mr Willacy, Mr Robertson, and Ms Puccini were spurred on by what they considered to be the interest of the specially established investigator in the allegations canvassed in the October Article (although I will return to those dealings, and what I consider they demonstrate, below).
As to the second matter, I gained the impression that a highly defensive mentality arose within the ABC in relation to the work done by ABC Investigations and, in particular, Mr Willacy. Four aspects of the evidence provide good examples of this mindset.
First, shortly after the October Article was published, Mr Jonathon Moran of The Daily Telegraph published an article entitled “Heston Russell: Ex-commando says alleged Afghan murder never happened” (Telegraph Article).
For reasons that are unclear on the evidence, the national broadcaster thought it necessary to criticise the Telegraph Article in forceful terms and dismiss, in a supercilious tone, the author as an “Entertainment writer”. The ABC published a detailed press release, headed “Response to today’s story by Jonathon Moran in News Corporation titles”, in which it: (a) branded the Telegraph Article “a weak attempt to undermine the ABC’s important journalism on this public interest issue” and a “slur on months of dedicated reporting”; (b) reproduced the questions the ABC received from News Corp and their answers, in full, undermining Mr Moran’s recount of that exchange; (c) emphasised the ABC “stands by the reporting done by our award-winning journalist Mark Willacy and the Investigative Reporting Team”; and (d) implied the veracity and gravity of the ABC’s reporting by suggesting a causal link between Mr Willacy’s reporting on war crimes generally and actions taken by the IGADF.
The press release also acknowledged Mr Russell’s criticism of the October Article, retorting, “Russell was not named in our report. We have no knowledge that he was even on the raid in question.”
Around the same time, and as explained in detail below, Mr Willacy had been corresponding with his source whose allegations formed the basis of the October Article, a United States Marine known in this proceeding as “Josh”. The pair had a phone call, in which they discussed “standing by the story”: T296.15. Shortly after, Mr Willacy sent the following email to Josh:
Let me know if you hear from any Aussie journos! But as suggested, I’d just say I stand by my account, read the ABC story, and I won’t answer any questions. Murdoch’s people are tabloid bottom-feeders …
There was evidence as to Mr Willacy’s state of mind at the time of composing the email and he was asked whether it would be fair to say he was encouraging Josh to say what is recorded in the email and to avoid contact with “Murdoch’s people”. Mr Willacy agreed with the first proposition and, as to the second, explained that persons like Josh (at T297.9–28):
… didn’t have a great trust in certain sections of the media …
MS CHRYSANTHOU: You were saying, “Don’t trust them. Just trust me.”?---You probably judge from [Josh’s] tone that he was no fan of Donald Trump, for example. He had particular views we discussed. And yes, I wanted him to trust me. I think he did trust me.
So when you say he didn’t like Donald Trump, you’re suggesting the difference between right wing and left wing media. Is that where you’re going?---I’m suggesting that he had a – yes, a distrust of right wing media.
All right. But your co-respondent [Mr Robertson] spent seven years working at the Courier Mail?---Then he went The Guardian.
Okay?---He obviously tried to absolve himself of all those sins.
We do not really need to explore why Mr Willacy considered working for a News Corp publication required expiation of sin and why working with The Guardian would bring about the necessary propitiation, but it does rather confirm the mentality within ABC Investigations of which Ms Puccini spoke. What relevantly matters is that although there is no evidence that Josh had been contacted by any other Australian journalists, Mr Willacy perceived a need to appeal to Josh’s distrust of “tabloid bottom-feeders”, encourage him to stand by his account and protect the October Article from criticism.
Ms Puccini also came in to bat for her colleague on Twitter, responding to a tweet from Mr Moran from her personal account on 28 October:
I have no issue with people disputing accounts although not sure Russell “was there”. My issue was the appalling front page. Accusing a journalist of writing “Fiction” is the worst kind of defamation, not just of him but also accusing the US marine of lying. It’s sad …
On the same date she retweeted the ABC’s press release, writing:
It’s a shame The Tele invests in tearing down excellent journalism instead of exposing what went on in Afghanistan. @markwillacy’s reporting, over months, has revealed alleged crimes by men who are still serving in our special forces, still representing our country
Later, there was another exchange between Ms Puccini and Mr Robertson about Mr Russell’s access to the media. Mr Robertson sent a draft of the November Article (which included a comment from Mr Russell calling for an apology in relation to the October Article) to Ms Puccini for approval. She responded swiftly approving the inclusion of the comment, only to change tack not twenty minutes later:
Just thinking do we need the “apology” comment? He's had a Huge platform on 2gb. I don’t know that we need to amplify it. Especially when we know what we know about him. Thoughts?
I am confident that from the time Mr Russell started to engage with the media, Mr Willacy and Ms Puccini 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. They were justifiably proud of their earlier work and took the criticism to heart.
Other than the Telegraph Article and exchanges with the ABC’s own Media Watch, which are discussed below, the criticisms of the reporting of Josh’s allegations were not referred to in any detail at the hearing. I am unable to form any view as to their merit or fairness, but it is sufficient for present purposes to remark upon the mindset within ABC Investigations which, colloquially put, was to circle the wagons against any criticism of the treatment by ABC Investigations of Josh’s allegations.
A second example arose during Ms Puccini’s cross-examination. An impetus for the publication of the November Article was the response from Defence to a freedom of information request submitted by Mr Willacy for material in relation to November Platoon (FOI Response). Defence denied access to all documents pursuant to s 37(1)(a) of the Freedom of Information Act 1982 (Cth) (FOI Act) on the basis that it “would, or could reasonably be expected to … prejudice the conduct of an investigation of a breach, or possible breach, of the law …”. Mr Willacy forwarded Defence’s response to Ms Puccini and Ms Sally Jackson, an ABC “communications lead”, writing, “[t]his is very helpful. Worth a story I think”. When senior counsel probed Ms Puccini on what she understood by “very helpful”, the following exchange took place (at T755.35–40):
MS CHRYSANTHOU: And the reason you wanted to tell the public there was an investigation, in your mind, into the Josh allegation is because the 2GB broadcasting was about the Josh allegation, wasn’t it?‑‑‑Well, no. The 2GB broadcasting strayed into abuse and deriding all the war crimes coverage. I mean, it was – it’s a culture war, this issue. It’s not – this Josh allegation was a way to – to criticise all the war crimes reporting …
(Emphasis added).
Upon publication of the November Article, Ms Puccini took to Twitter again, sharing a link to the November Article and writing: “FOI response confirms an incident we reported is under criminal investigation. Will @2gb correct its assertion that it isn’t?”.
Thirdly, Mr Robertson also turned to Twitter around this time and engaged in a series of keyboard skirmishes with members of the public in defence of the October and November Articles. He shared links to the October Article noting, “It’s the role and responsibility of the media to report these matters of vital public interest unflinchingly and fairly”, tweeted a screenshot of the FOI Response with the words “current investigation of a possible breach of the law” highlighted and captioned “Here’s the FOI decision received by the ABC in which Defence revealed the current criminal investigation into conduct by November Platoon in Afghanistan in 2012”, reposted the link to the November Article “ICYMI” (shorthand, I am told, for “in case you missed it”) and told a critic of the reporting to “read better”.
A fourth example demonstrates the persistence of the conflict perceived by the ABC. In November 2022, Mr Willacy had what he described as a “frank” telephone conversation with Mr James Willis, producer of Ben Fordham Live on radio station 2GB Sydney (2GB). Mr Willacy gave evidence he was “aware that 2GB had been engaging in a campaign alongside Heston Russell to criticise the October Article and November Article”, and that Mr Fordham had “covered the issue more than a dozen times”. Upon receipt of a media query from 2GB in relation to the ABC’s defence of this proceeding, Mr Willacy determined to call Mr Willis. There is a difference in recollection surrounding precisely what transpired between them. It is unnecessary to resolve it, but both Mr Willacy and Mr Willis recalled a tense exchange which apparently descended into a barrage of assertions as to how each media organisation operates.
Having sketched the thematic background, this is an appropriate juncture to say something generally of the credit of the ABC’s key witnesses, before turning to the findings of fact of relevance to the determination of liability in this case.
Consistently with their contemporaneous actions, Mr Willacy and Ms Puccini were, at times, combative witnesses. As noted above, Mr Willacy is a distinguished journalist and underlying his oral evidence was a strong belief in the quality and importance of his work and an antipathy to criticism of it, including the measured (and as will be seen justified) criticism expressed by Media Watch. As discussed further below, his commitment to his work extended to an obstinate assertion he did not believe the November Article could be read as accusing November Platoon of the misconduct alleged by Josh and set out at length in the article itself. To his credit, however, Mr Willacy made a series of reasonable concessions during his evidence. I am satisfied he believed publication of the October and November Articles was important, appropriate journalism, and in his participation in their publication, he did not set out to convey anything he believed at the time was wrong. I generally accept his evidence.
Ms Puccini was at times palpably frustrated by her participation in a process by which the ABC’s conduct was being questioned. Certain of her answers were odd, for example, her assertion she could not remember her involvement in the preparation of the press release published in the wake of the short-lived abandonment of the public interest defence, discussed in my second judgment (at [10]), notwithstanding the events had occurred not three weeks prior to her cross-examination and the tender of contemporaneous text messages demonstrating her involvement: T724.8–10. Others showed equivocation, for example, her initial refusal to accept, unlike Mr Willacy (see T40.33–42), that the issuance of a press release upon the publication of the November Article was highly unusual: T724.22–725.5. Ultimately, she acceded to this proposition: T725.7–8.
Perhaps the most curious aspect of her oral evidence was that in approving the November Article, she intended to suggest November Platoon was under investigation, but not for the allegations advanced by Josh and referred to at length in the November Article: T723.7–30; T734.1–735.17. This directly contradicted her tweet upon publication of the November Article, set out above (“FOI response confirms an incident we reported is under criminal investigation”), and her affidavit evidence that following Mr Russell’s public response to the November Article, she discussed with Mr Willacy whether Mr Russell’s denials “impact our story … Why is he saying he wasn’t in Helmand?”
I stress I do not consider Ms Puccini set out to mislead the Court, but her defensiveness meant she was chary about giving any answer she considered would amount to a concession.
By contrast, Mr Robertson was an engaging witness who provided thoughtful and candid answers to the questions asked of him. By way of aside (and reflecting his background as a philosophy undergraduate who had apparently read Immanuel Kant), he had a familiarity with the structure and limitations of human knowledge and jousted effectively with his cross-examiner. I also generally accept his evidence. Although he was heavily involved in the November Article, he was a relative newcomer to “war crimes” reporting and, unlike Mr Willacy and Ms Puccini, was uninvolved in the ABC’s corporate affairs.
I now turn to making specific factual findings.
C.2 Josh’s Allegations
On 15 July 2020, Mr Willacy received an email from Josh, who described himself as a helicopter crew chief in the HMLA-469 unit of the United States Marine Corp (US Marines), deployed in Afghanistan in 2012.
I explained in my second judgment that the respondents initially relied upon the so-called common law “Newspaper Rule” to protect Josh’s identity, although at no stage sought to invoke the source privilege in s 126K of the EA in relation to him (despite asserting s 126K privilege in relation to several “confidential sources”). They did not rely on the statutory privilege expressly designed for protection of sources of journalists in relation to Josh because they could not, given that the ABC had published identifying material. Before the hearing, Mr Russell’s lawyers uncovered Josh’s identity and read an affidavit (protected by an interim confidentiality order to be revisited at the trial) establishing his identity beyond peradventure. No application for a final confidentiality order was made by the ABC, and by the third day of the trial, no confidentiality order subsisted. Given the breadcrumbs dropped by the ABC, the whole confidentiality issue became somewhat farcical, but there is no point in going out of my way to refer to Josh by his real name in these reasons; I will continue to use the pseudonym.
Prior to receiving the email, Mr Willacy did not know Josh and had never previously communicated with him. It is unnecessary to form a view for present purposes as to how Josh obtained Mr Willacy’s contact details, but I infer he had engaged with Mr Willacy’s reporting (most recently an article co-authored with Ms Blucher and published on 14 July entitled, “Witnesses say Australian SAS soldiers were involved in mass shooting of unarmed Afghan civilians”, and a 15 July article co-authored with Mr Rory Callinan entitled, “The same AK-47 was photographed on two dead Afghan civilians killed by Australian soldiers”), and determined to contact him using the contact details available via the ABC website or Mr Willacy’s Twitter account.
Josh advanced three allegations: first, a second-hand account that an “Aussie” shot an unarmed Afghan man sitting on a wall (Throwdown Allegation); secondly, that Josh heard but did not see “the[m]” (apparently a reference to Australian soldiers) shoot and kill a prisoner under control (PUC) because the prisoner would not fit in a helicopter (Helicopter Allegation); and thirdly, a second-hand account that “they” had killed an Afghan family, including a small child. He also made a series of general observations as to “Australians” in Afghanistan, including that they “left burning villages and dead bodies in their wake”, went on “a month long rampage”, and committed acts which were “blatantly f***ed up”.
It is immediately obvious upon reading Josh’s email that he was careful not to overstate the extent and quality of his recollection. Indeed, he added an important qualification to the end of his email, explaining, “my memory is fuzzy enough that I’d be useless anyways when it comes to giving specific enough details to go on”.
Upon receipt of Josh’s email, Mr Willacy conducted online searches and concluded Josh was a US Marine. He swiftly formed the view that Josh’s allegations were “potentially credible” for the following reasons. First, “similar allegations” had been made in the collection of stories known as the “Afghan Files”, published by the ABC and Mr Oakes, and triggering a raid by the AFP on the ABC in 2018, and in a recent article published by The Age concerning a member of November Platoon known as “Soldier X”, who allegedly confessed to executing unarmed Afghan prisoners. Secondly, Mr Willacy had investigated and considered similar allegations in his own reporting and had, by that stage, received what he considered to be many “credible” accounts from confidential sources alleging Australian soldiers had killed civilians and PUCs. Thirdly, there had already been extensive public reporting (including in the 15 July article by Messrs Willacy and Callinan) and confidential sources had discussed “throwdowns” by Australian soldiers, that is, planting military equipment on civilians or PUCs to make it appear the person had been armed, and that the killing was justified. Fourthly, he was aware that the IGADF Afghanistan Inquiry was investigating what he perceived to be “similar claims”.
Mr Willacy was at the time conducting research for what became Rogue Forces. He determined to respond to Josh to ascertain whether his allegations warranted inclusion in his book or resulted in other leads. He responded on 15 July, asking Josh for further detail as to the timing of his deployment, and whether they could continue their correspondence on a confidential basis.
Josh replied on or about the same day, cautioning as to an “obvious caveat” on his account:
… it all happened a long time ago in the midst of constant combat operations where I had very little sleep and was constantly working with people from different units and countries, so I likely won't be able to provide you with actionable information that could go anywhere useful in any specific investigations, only the bits and pieces I remember. It's been on my conscience for awhile though obviously, and if someone like you is doing the work to piece together a narrative that can stick and force some action, I would be happy to answer any questions you had to the best of my abilities …
Mr Willacy told the Court he was impressed by Josh’s candour. His willingness to admit where he was unsure of details gave Mr Willacy faith in the honesty of his account and his credibility as a source. It is certainly open to conclude that Josh’s readiness to admit the “obvious caveat[s]” on his account demonstrates truthfulness and sincerity on his part. But a more obvious and significant conclusion is that Josh may not, because of the admitted frailties of his memory, have had his facts right, such that the viability of the story depended upon further research and confirmation. Put another way, fuzziness of recollection might be consistent with candour and could, depending upon the circumstances, provide comfort a witness is not prone to exaggeration nor overstatement, but fuzziness of recollection also heightens the possibility of error and the need for increased scrutiny and circumspection.
Mr Willacy did press on, seeking further information about Josh’s background and to draw out further details as to the Helicopter Allegation. Importantly, he asked Josh to specify, “[w]as it the SAS or the Commandos?”. This was the first attempt in the correspondence to attribute the alleged conduct to a subset of Australian soldiers. Indeed, Mr Willacy admitted the most specific label Josh attributed to the alleged wrongdoers at any point was “Task Force 66” which, Mr Willacy understood, comprised both Alpha and Bravo companies (that is, over 300 persons): T204.1–7. However, it was around this time that Josh provided Mr Willacy with a link to an article published in the Sydney Morning Herald and concerning the deaths of two commandos described as being from the 2nd Commando Regiment (Herald Article), and informed Mr Willacy:
… the people killed in the crash from this news article were flying with us and the article lists them as Aussie [commandos], but that’s as specific as I could be about what unit we worked with and I have no idea if we were working with different units within the task force for the missions we were on …
This is one of very few instances in which Josh implicates the commandos. However, it should be noted that under cross-examination, Mr Willacy accepted at numerous points that Josh never told him he worked with the 2nd Commando Regiment nor the commandos generally: T275.12–32; T275.44–46; T276.22–40; T277.44–45: T421.10–17.
Mr Willacy “cross-check[ed]” material facts in Josh’s story against Chapter 23 of Chris Masters’ No Front Line (Allen & Unwin, 2017) concerning Rotation 18 of the SOTG of which, as noted, November Platoon was part. Mr Willacy considered Mr Masters’ book a de facto official history of Australia’s role in the Afghanistan War. Mr Willacy found that: (a) the time of Josh’s deployment period of May to November 2012 materially overlapped with that of Rotation 18 of the SOTG (which he understood was deployed from about 18 July 2012 to late November 2012); and (b) in Rotation 18, FE-Bravo was described as undertaking drug raids with US Marines under the auspices of the US Drug Enforcement Administration (DEA), which activity was consistent with Josh’s information that he helped provide air support for Australian soldiers undertaking drug raids. Mr Willacy knew from other sections of No Front Line that references to “FE-Bravo” or “Bravo company” were reference to the 2nd Commando Regiment.
Mr Willacy also conducted online searches in relation to Josh’s identity and uncovered he had served in HMLA-469 in the period May–November 2012 in Helmand Province. This confirmed his view that Josh had worked with November Platoon, and he pursued this line of enquiry with conviction, writing:
It does sound like you did operations with 2 Commando. They did a lot of anti-drug work with DEA in Afghanistan. They are also under investigation here by the Inspector-General of the Australian Defence Force for possible war crimes in Afghanistan. The Inspector-General has the power to recommend charges of war crimes, so there could very well be a reckoning. And to me, your insights would be invaluable to this book I'm working on.
It was suggested by senior counsel for Mr Russell that at this point, Mr Willacy’s mind was already “closed” against any suggestion the soldiers the subject of the allegation were not soldiers from Rotation 18. To make this point good, Mr Willacy was asked why he did not discover in this proceeding Chapter 22 of No Front Line (which concerns Rotation 17, whose deployment also overlapped with that of Josh). Mr Willacy said he believed from what he had been told and from the allegations he had been made aware of it was more likely Josh was referring to Rotation 18 and narrowed his enquiry on this basis. He admitted, however, that if one was to view Josh’s account in the light of only Chapters 22 and 23, one would conclude Josh’s allegations concerned Rotation 17, rather than Rotation 18: T188.1–5. There is some force in the submissions made on behalf of Mr Russell, but I do not think Mr Willacy was initially consciously committed to connecting the allegations with Rotation 18. However, it is fair to conclude he was quick to draw conclusions from material which he thought was reliable and this served to narrow his ambit of further enquiry.
Mr Willacy and Josh arranged to speak over Skype on or around 21 July 2020. Mr Willacy recorded the conversation with Josh’s consent. They spoke for approximately one hour, during which Josh repeated the substance of the Throwdown Allegation and the Helicopter Allegation and provided the following by way of elaboration. First, he said he could not remember the number of prisoners present when the Helicopter Allegation took place, noting there were “close to half a dozen. So we’ll just say seven for the sake of explaining”. Secondly, he stated the Helicopter Allegation took place “somewhere up north, I don’t remember exactly where and I want to say it was probably late June or early July, if I had to guess”. Thirdly, in response to a question from Mr Willacy about whether he could see anything down below, Josh responded, “it was all comms”. Fourthly, he repeated that the soldiers he had worked with generally wore “baseball hats” (often backwards) and “tennis shoes” instead of boots, had “very long” hair which was “pretty wild usually”, “huge beards” and “gauged ears”. The Court was helpfully informed that ear gauging is the curious practice of piercing one’s earlobe and placing a stretching device in the pierced hole.
As a result of this conversation, Mr Willacy formed the view that Josh was “a credible source … detailed, cogent and comprehensive … careful not to overstate things” and that his accounts were internally consistent. He believed he had adequately “tested” the allegations by revisiting them with Josh on a video call: T205.19–21.
At the end of the call, Mr Willacy asked Josh if he could speak to other US Marines from his unit in relation to the allegations. Josh was reticent to connect Mr Willacy with any of his colleagues, explaining he believed they wanted to put Afghanistan behind them, but noting he would try to reach out. He did not, however, put Mr Willacy in touch with anyone and Mr Willacy did not follow up. Rather, Mr Willacy formed the view that he did not expect Josh to provide him with further leads and, in any event, did not consider it necessary to confirm Josh’s story with another US Marine for the October Article to be published.
Mr Willacy continued to probe for further detail from Josh, particularly in relation to the Helicopter Allegation. On 31 August, Mr Willacy emailed Josh, setting out questions and proposing details which might trigger his memory, such as:
(1)“Typically, how big were the Australian Commando teams that your group would drop in the field?”
(2)“Can you remember as best you can the actual back and forth between the Australians on the ground and your pilot over the comms? (I assume it was your pilot). Even the sort of language you guys used in radio comms would be great (call signs and that sort of stuff, if you can remember)”; and
(3)“Explain how awkward the silence was when you heard the shot over the comms, how you immediately knew what it was, and the looks you guys gave yourselves and what the trip back to base was like”.
Josh responded on 2 September, in more specific terms than his previous accounts, but importantly reiterating his hesitance as to the reliability of his memory. Notably, and consistently with his lack of detail, he referred only to “Aussies” without ascribing any further specificity; could not recall precise circumstances, the timing of the alleged events or the “exact numbers” of soldiers present and so fell back on guesses and a lack of generality (“I would guess it was sometime around 1-3 AM … but couldn't say specifically, and I couldn't be certain of the date, only that it was likely somewhere between mid June-July”; “probably around 20 [soldiers] or so would be my guess depending on the mission”; and “[t]ypically we would come back for the extract and there would be a lot of destruction left behind”). There were only three points Josh asserted with surety: first, that he “never actually saw any DEA guys with the Aussies in the time I worked with them”; secondly, “[t]he night the prisoner was shot, we were somewhere pretty far up north of Bastion, not sure exactly where, but it was close enough that we didn't need to leave the ground forces to go refuel”; and thirdly, and importantly, he was specific about his lack of specifics, noting:
I wish I could help you with the specifics there … Wish I could be more specific with the details, but those were some extremely hectic times where we worked with a ton of different units on a variety of missions with not much sleep to be had in between, so most of it is pretty fuzzy. Let me know if there's any other questions I can help you with, and I'll do my best to answer them if l can pull some clarity from all the fog. Keep up the hard work of shining a spotlight on the things people want to ignore, including myself at the time, it will give the public a more accurate picture than the black/white worldview a lot of them have.
C.3 First Conversation with Confidential Source A
In August 2020, Mr Willacy spoke with a source known as Confidential Source A (owing to a claim for privilege pursuant to s 126K of the EA). In advance of that conversation, Mr Willacy noted down he intended to discuss Josh’s allegations with Confidential Source A. Mr Willacy cannot recall if he discussed Josh’s allegations with Confidential Source A but gave evidence that Confidential Source A told him they had heard the IGADF was interested in speaking to Mr Russell and three other commandos from November Platoon deployed between July and November 2012.
C.4 The October Article
In about September 2020, Mr Willacy decided he would not refer to Josh or his allegations (which, as Mr Willacy understood it, related only to the 2nd Commando Regiment) in the draft which became Rogue Forces. The concept for the book had narrowed to concern only a single unit in the SASR.
Mr Willacy continued to seek further information from Josh. On 1 October, he wrote to Josh asking:
… what you thought if I was to run a news story about what you saw over there with the Australians. As per our arrangement, I wouldn't identify you by name (I’d give you a pseudonym). Of course, I would still feature your story in the book, but I am told the Inspector General of Defence could be releasing his long-awaited report this month and I think your story would be good to get out there before that happens as a news feature.
(Emphasis added).
Why Mr Willacy told Josh he would feature him in his book when he had, by that stage, determined his account was no longer required for the book is perplexing and inadequately explained. An available conclusion is that Mr Willacy made this less than frank representation to procure Josh’s continued co-operation, but it is unnecessary to reach a conclusion as to why this was said. What is clear was Mr Willacy’s desire to push out a “timely” article given the pendency of the Brereton Report and Mr Willacy’s belief “the story was worthy and in the public interest and, yes, that there might be something that comes back because often that’s what happens”: T232.31–35.
Josh responded confirming Mr Willacy could “do whatever [he thought made] sense” with his story. Mr Willacy subsequently arranged a further video call which took place on or around 5 October and was recorded. During that call, Josh confirmed he had spoken to past colleagues to ascertain whether they would be interested in going on the record, and that no-one was content to do so. Mr Willacy again did not take any further steps, including steps independently of Josh, to contact anyone in Josh’s unit: T235.32–33.
C.4.1 Preliminary Steps
In early October 2020, following discussion with Mr Willacy, Ms Puccini sought editorial advice from Mr John Maley (Editorial Policies Director) as to the risks attending the publication of a “single person account”. Mr Maley explained the ABC occasionally ran allegations of public interest which had not been corroborated by another source, provided the ABC had done its homework and was not “blaming anyone”.
Based on this generalised advice, Ms Puccini considered a single person account could be published depending on the circumstances: T696.38–44. She justified this position under cross-examination with reference to two previous stories published by the ABC:
(1)Mr Dusty Miller was a medic who saw an injured Afghan being taken away by an SAS soldier. The following day the son of the man found his dead body with boot prints on his chest: T700.24–27. The ABC published a story with only the account of Mr Miller and the account of the deceased’s son; and
(2)Mr Braydon Chapman saw a fellow SAS soldier shoot an Afghan with his arms in the air. The ABC published a story based on a helmet-cam video in which members of the squadron discussed the killing days after it was said to have occurred: T700.45–701.16.
Ms Puccini recounted counselling Mr Willacy in relation to the viability of publishing the Helicopter Allegation. She, with respect prudently, asked him to attempt to find another witness, preferably an Australian, to verify the story, or, failing that, the find a commando to talk about missions generally. She instructed Mr Willacy to “talk to Defence … although they probably won’t say anything useful” and to “check out [Josh’s] bona fides”.
Around this time, Mr Willacy enquired with Mr Oakes as to whether he would contact his sources to “corroborate” Josh’s account.
C.4.2 Research and Drafting
Mr Willacy gave evidence he wanted to publish an article prior to the release of the Brereton Report, which was expected to be published in October or November. He sent a first draft of the October Article to Ms Blucher and Ms Puccini on 10 October.
On 12 October, Ms Puccini responded with the following questions:
I'm happy with this. just a few questions:
1) did he actually see it happen? if so, can we describe that? if not, i think we need to expand on that. say that he didn't see it but believes it happened because xxx.
2) given we aren't naming him, are we showing his face? i think we need to explain why we're not naming him properly ... fear of retribution?
3) in the section towards the bottom where his colleague talks to the commando i think it would be good to build that out a bit. were the commando and the colleague both at the raid? if so i reckon we should say so …
This reply is consistent with Ms Puccini’s evidence that she “trust[ed]” Mr Willacy’s journalism (T714.12–13) and that “[w]ith Mr Willacy and all the other journalists on the team, I don’t do their journalism for them”: T714.4–8. At no point did she or anyone else check Mr Willacy’s work against the information he had at the time of preparing the October Article: T715.25–29. Ms Puccini did concede, consistently with her initial view, that the ABC “could” have sought to contact other persons implicated in the allegations, rather than relying on Josh’s “recollection” alone: T717.39–40.
Mr Willacy responded to Ms Puccini less than an hour later:
To answer your questions ...
I)He saw them wrangling prisoners but didn’t see them kill one. They all heard the pop on the radio and then them report one less prisoner. I thought it was pretty much explained in his grab?
2)Yes, he’s happy for us to show his face. He just doesn’t want people to be able to Google his name. He does fear a backlash
3) Yes, they were. I’ll state that
Notably, the explanation that Josh was not named for “fear of retribution” appeared in the next draft.
Contemporaneously, Mr Oakes had a brief telephone conversation with a member of Oscar Platoon, whom Mr Oakes had previously spoken to and who had deployed on several rotations in Afghanistan, including Rotation 18. Mr Oakes asked the source if he remembered anything like the Helicopter Allegation. The source said he had not but that he “did hear other stuff. It was certainly at a high level”, continuing:
Our platoon commander pulled our platoon together and said that the [DEA] have said in no uncertain terms have said they won't operate with November platoon any more due to their behaviour in the field, and us at Oscar would have to take the burden of all counter narcotic operations as a result, but we must not relay these concerns to November platoon.
At the same time, a JTAC who was a captain in the [Royal Australian] Air Force was assigned to our rotation and he said the aircrews are at the point of not wanting to support FE-Bravo operations any more, and this had political and operational consequences.
Mr Oakes did not ask this source any further questions, nor did he seek to speak to the commander referred to by the source. He emailed the above passage to Mr Willacy for proposed inclusion in the October Article and, the following day, spoke to a further source from Oscar Platoon, providing Mr Willacy with the following quote:
I remember talking to [DEA agent] afterwards, and he said ‘we’re not going out with those f***ing guys ever again’. Every DEA team that went through there loved working with us and had no problem, but November platoon was the first platoon that the DEA said they wouldn’t work with. They didn't give any specifics, but it was just a look. Something obviously went down.
Mr Oakes was a generally measured witness who conceded the mere fact that a serious allegation is plausible to another person who has been in the same situation is not, without more, a sufficient basis upon which to conclude the allegation is true: T656.19–21. But he did not think Mr Willacy had mis-stepped in publishing Josh’s allegations as he did.
Mr Willacy did not enquire of Mr Oakes how, or from whom, he obtained these comments; he relied upon his belief he knew and trusted Mr Oakes’ “methods” (“[h]e’s a very, very credible and hard-working journalist”): T236.12–13. Mr Oakes also told the Court he sought to contact members of November Platoon, but no-one was prepared to talk to him, on or off the record.
Mr Willacy added the following to the draft on 12 October, in the section discussing the Helicopter Allegation:
It was part of a wider joint Australian Special Forces-US Drug Enforcement Agency campaign targeting illicit drug operations that were financing the Taliban insurgency.
We had done the drug raid, the Aussies actually did a pretty impressive job, wrangling all the prisoners up,” Thomas said. “We just watched them tackle and hog tie these guys and we knew their hands were tied behind their backs.
By this addition, Mr Willacy connected the Helicopter Allegation and the contention the DEA refused to work with November Platoon, notwithstanding the want of evidence they were linked. Tellingly, Ms Puccini noticed this on her next review, and questioned Mr Willacy, asking whether he thought November Platoon was responsible, and whether the draft should clarify the allegations relating to the DEA were separate from the Helicopter Allegation. Mr Willacy said he could not be sure the Helicopter Allegation concerned November Platoon, but that he did not think the DEA comments should be set apart because there was no suggestion another platoon had perpetrated the alleged conduct or otherwise behaved badly. In effect, Mr Willacy said that if a distinction was drawn, it might “point the finger at the other platoon [Oscar Platoon]. We do have that context of bad behaviour with the November Platoon”: T285.35–286.19. Ms Puccini did not raise the issue again.
On the morning of 13 October, Mr Willacy sent a “legalled and edited” draft of the October Article to Ms Clare Blumer, a digital editor, and copied in Ms Blucher. That afternoon, Ms Blumer provided comments, including a query as to the proposed use of the term “executed”. Mr Willacy responded addressing the comments, and further correspondence passed between Ms Blumer and Mr Willacy as to the appropriate headlines to be used.
C.4.3 The Final “Fact Check”
Ms Blucher gave evidence that once Ms Blumer had sent a near-final version to Mr Willacy and Ms Blucher that same day, Mr Willacy asked Ms Blucher to conduct a “final fact check”. Mr Willacy was silent on the issue, and Mr Oakes could not recall this process occurring, but assumed that it would have as standard procedure for “a publication of this nature”: T671.31–32. Mr Russell invited the Court to infer that whatever evidence Mr Willacy might have given about this issue would not have assisted him or the ABC, suggesting an inference of the type explained by Handley J in Commercial Union Insurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 (at 418–419) should be drawn. He also asked the Court to take the further step of inferring no fact checking occurred at all. But I can see no reason to disbelieve Ms Blucher’s evidence that something described as a “fact check” took place (although as to what occurred, see below).
Ms Blucher had a meeting with Mr Willacy, at which she had access to a printed copy of the digital copy for the October Article and a copy of the transcripts from Mr Willacy’s interviews with Josh in July and October: T585.32–36. Ms Blucher does not recollect whether she had access to any further materials, such as the emails between Mr Willacy and Josh.
Ms Blucher went through the copy line by line, asking Mr Willacy “what he had to back up each line”. Where sources were quoted, she asked Mr Willacy whether what was in the copy was consistent with what he had been told by his sources. Ms Blucher also compared the digital copy with the interview transcripts. She then called Mr Oakes and read him each quote he had sourced, asking him to confirm whether the quotations in the draft matched what his sources had told him.
Ms Blucher was satisfied each line of the proposed copy was based on information provided by the sources and trusted that both Mr Willacy and Mr Oakes had satisfied themselves as to the reliability of their sources. She did not consider it her job to assess the reliability of the sources.
The real difficulty is that the so-called fact-checking process, in effect, amounted to little more than checking that the words in the draft, particularly those taken from sources, had been written down correctly. Indeed, Ms Blucher’s evidence was that (T603.6–14):
I think that that was sufficient because … I believe that [Mr Willacy] – I believe that he was capable of providing very credible sources who were saying what we’ve got in the story and me asking him those things is enough.
When pressed to explain the utility of such an exercise, Ms Blucher could say no more than “[t]o make sure that what we’ve got in the article is the same as what [Mr Willacy] was told.” This was said to be sufficient because, in Ms Blucher’s view, Messrs Willacy and Oakes were journalists of integrity in whom she reposed trust (at T604.8–13):
… if you are deciding whether to include an anonymous source in a story and whether or not you ask to find out the identity of that source, you have to consider what the – a reason why you might not, you know, request that you speak directly to the source or get the identity of the source. It’s – it is the reputation of that staff member or the credibility of that staff member and experience of that staff member, from memory.
All in all, the production process undertaken in relation to the October Article amounted to little more than an elaborate close proofreading.
The only other notable step taken in the initial drafting process was that Mr Willacy sought and obtained legal advice from ABC Legal in relation to the October Article twice, on 12 and 15 October.
C.4.4 Second Conversation with Confidential Source A
Shortly before the publication of the October Article, Mr Willacy met with Confidential Source A. The purposes of the conversation were to discuss Josh’s allegations and to discuss other names and information he received while researching for Rogue Forces.
Mr Willacy relayed to Confidential Source A the Helicopter Allegation and the Throwdown Allegation. As to the former, it is said Confidential Source A expressed a view that the allegations were credible and that the IGADF was investigating November Platoon in relation to the execution of PUCs. Mr Willacy’s contemporaneous notes record the name “Russell” in connexion with this conversation.
C.4.5 Contact with Defence
On the morning of 20 October, Ms Blucher submitted the following questions to Defence, requesting a response by 5pm:
I work for ABC Investigations and have a query regarding a 2 Commando Regiment operation in mid-2012 in northern Helmand Province.
I’d like to request a television interview with a relevant spokesperson for Defence about the story.
If an interview is not possible, please provide responses to the following questions.
1.Is Defence aware of any allegations that in mid-2012 a member or members of 2 Commando Regiment in Afghanistan shot an Afghan detainee during an operation in northern Helmand Province?
2.Did Defence investigate any such allegation or allegations?
3.Did United States Coalition partners ever raise concerns about the treatment of Afghan detainees by Australian Special Forces?
Defence responded at approximately 6:20pm: “It is not appropriate for Defence to comment on matters that may or may not be the subject of the Afghanistan Inquiry”.
The Defence comment was added to the draft October Article. Mr Willacy was of the view this was an important addition to demonstrate that the ABC had approached the relevant agency to satisfy its obligation to prepare and provide a balanced report.
No FOI request was made of Defence. Mr Willacy deposed this was because he knew from experience any such request would be denied because the IGADF Afghanistan Inquiry was still on foot.
C.4.6 Publication
Following further confirmation of Josh’s military activities by Mr Willacy, the October Article was published on 21 October.
The following may be said of the October Article as published.
First, it states that Josh alleged the asserted wrongdoing was committed by the 2nd Commando Regiment. But the high-water mark was Josh’s assertion he had worked with commandos identified in the Herald Article, and that he had worked with Task Force 66. And yet, the language deployed (for example, “Josh told ABC Investigations he was a door gunner providing aerial covering fire for the Australian soldiers of the 2nd Commando Regiment during a night raid in mid-2012” (emphasis added); Josh recounted “commandos then called up the US aircraft to pick them and about seven prisoners up”; and Josh attributed the Throwdown Allegation to commandos) plainly suggests ABC Investigations obtained specificity from Josh. Mr Willacy, to his credit, and correctly, ultimately accepted it was wrong for the October Article to state that Josh had told the ABC that he was working with the commandos that night: T275.12–32; T275.44–46; T276.22–40; T277.44–45: T421.10–17. Mr Robertson also properly conceded this point (T493.30–494.46) but the more combative Ms Puccini would not: T707.32–40; T708.40–46; T709.2–T710.19; T711.42–44.
Secondly, the account ultimately presented was not, even based on the limited information available to Mr Willacy, internally consistent. For example, Mr Willacy accepted that Josh never told him that it was the commandos he was working with that night: T276.33–34. He said he deduced this conclusion because of his information that it was the commandos who were working with the DEA: T284.20–21. However, the basis for drawing this conclusion was infirm as it put to one side the fact that Josh had expressly told him on 2 September that he never saw the DEA with the Australians he worked with in July 2012.
Thirdly, the Helicopter and Throwdown Allegations are linked to the comments from Mr Oakes’ sources despite there being no connexion between them. Josh’s account of the Throwdown Allegation is immediately followed by a heading, “We’re not going to work with those f***king guys”, and the following passage:
A member of 2nd Commando’s Oscar platoon who served on that deployment has confirmed that the Americans were unhappy with the conduct of some of his comrades.
‘Our platoon commander pulled our platoon together and said that the [DEA] has said in no uncertain terms that they won’t operate with [2nd Commando] November platoon any more …
Moreover, the “Key Points” displayed in bold, enlarged font at the top of the article present it as a coherent whole:
Key points:
•A US marine says Australians were known to leave “fire and bodies” in their wake in Afghanistan
•Australian soldiers from 2nd Commando Regiment told the ABC the US Drug Enforcement Administration refused to work with the November platoon in Afghanistan
•It is unclear if the alleged killing is covered in the Inspector-General of the Australian Defence Force’s inquiry
Consistently with my findings in my first judgment, any rational reader would glean from this that November Platoon was the subject of criticism and, it is implied, the object of suspicion in relation to the specific allegations canvassed.
Fourthly, no reference is made to Josh’s memory being incomplete or fuzzy, despite Josh repeating his concerns about his memory (including as recently as 2 October). Readers were not told of the “caveats” on Josh’s account: T209.19–40. Mr Willacy’s view was that notwithstanding Josh was consistent about his level of recollection during their interchanges, Mr Willacy had done independent work by which he was satisfied in his mind that there was a sufficient basis upon which he could be more specific than Josh: T207.28–39. Although the role of this deductive or inferential reasoning by the author in informing what was published was not made clear.
Fifthly, and in a similar vein, the caveats provided by Mr Oakes’ two sources, “it was certainly at a high level” and “they didn’t give any specifics”, were not included.
Sixthly, the ABC Investigations team acknowledged there were steps which could have been taken in the research and drafting process which were not taken. There were obvious sources of potential corroboration which Mr Willacy did not seek out, notwithstanding Ms Puccini’s suggestion he seek to verify Josh’s allegations. Three examples suffice. First, no attempt was made to speak to the “platoon commander” referred to in Mr Oakes’ comment (T278.16–30; T658.23–38); Mr Willacy accepted it would have been “helpful” and was a necessary step: T279.3–7. Ms Puccini accepted she could have asked either Mr Willacy or Mr Oakes whether they had spoken to the platoon commander, that it was “perhaps” an obvious step and that his name was ascertainable: T717.22–718.29. Secondly, no-one sought to speak to the “DEA agent” referred to, being Mr John “Bret” Hamilton, who worked with November Platoon in his role as team leader of the DEA’s Foreign-deployed Advisory and Support Team (FAST). Thirdly, Mr Willacy admitted he should have clarified that Josh had said he saw no DEA agents with Australian soldiers at any time, whereas Mr Willacy was of the view the DEA was present and prepared the October Article on this basis.
C.5 Events following the Publication of the October Article
The material events of the year following the publication of the October Article may be classed into seven topics, broadly in chronological order: first, Mr Russell’s public self-identification and denials of the allegations; secondly, the release of the Brereton Report and further research conducted by Mr Willacy; thirdly, the OSI’s interest in the allegations put forward in the October Article; fourthly, the ABC’s reporting into other aspects of Mr Russell’s life; fifthly, an interaction between Messrs Russell and Willacy at a launch event for Rogue Forces; sixthly, the first editorial complaint by Mr Russell on behalf of November Platoon (First Complaint); and seventhly, a conversation between Mr Willacy and Mr Hamilton.
C.5.1 Mr Russell’s Self-Identification and Denials
Following the publication of the October Article, Mr Russell embarked upon a media campaign by which he identified himself as commander of November Platoon and denied, specifically, the Helicopter Allegation.
As noted above, the Telegraph Article was published on 28 October 2020, leading to the publication of the press release discussed above (at [40]–[41]). On the same date, an interview with Mr Russell was broadcast on Sky News, elements of which were recounted in a further article published by The Daily Telegraph the next day, attributed to Ms Sally Coates, and entitled “Ex-special forces soldier Heston Russell says veterans used as ‘punching bags’”.
On 1 November, the Project Interview aired and, ten days later, Mr Russell was interviewed by Mr Fordham on 2GB. Mr Russell was introduced by Mr Fordham at the commencement of the interview as follows: “Heston Russell was there, he says it simply didn’t happen. He’s on a mission to clear his name and the names of others”. Mr Russell repeated the Helicopter Allegation and expressed his disappointment that “individual circumstances [may be] put under the microscope … without context”.
The parties agreed as to the principled approach in assessing Mr Russell’s entitlement to damages. Those principles are uncontroversial, and I recently set them out in Palmer v McGowan (at 712–713 [425]–[429]).
In brief, the award of damages is governed by the provisions of Pt 4 Div 3 of the Defamation Act. By s 34 of the FCA Act, the Court is required “to ensure that there is an appropriate and rational relationship” between the harm sustained and the damages awarded.
General damages for non-economic loss are now (contrary to the historical approach) to be awarded separately to any award of aggravated damages: s 35(2B) of the Defamation Act.
Pursuant to s 35(1) of the Defamation Act, general damages are capped at an indexed sum, which is currently $459,000 (as at 1 July 2023): s 35(3) of the Defamation Act; New South Wales Government Gazette No 250 (9 June 2023) (at 15). The cap in force at the time of judgment applies and may only be awarded in a “most serious case”: s 35(2) of the Defamation Act. Further, it may only be exceeded if the Court is satisfied that the circumstances are such as to warrant an award of aggravated damages: s 35(2A) of the Defamation Act.
In reaching a landing as to general damages, there are several factors to be considered including: (a) the severity of the defamatory stings; (b) the purposes of an award of damages in defamation, being consolation for hurt to feelings, recompense for damage to reputation and vindication of reputation; and (c) the extent of publication. I have remarked many times before that consideration of these factors is an intuitive, evaluative process conducted at large, but within the parameters of Pt 4 Div 3.
The Seriousness of the Defamation
The respondents accept the imputations carried by the impugned publications are serious but submit two factors should qualify my conclusion as to the seriousness of the defamation. First, allegations of reasonable suspicion and investigation are necessarily less serious than allegations of guilt; and secondly, it is not insignificant Mr Russell was named as part of a class of persons reasonably suspected of wrongdoing and subject to investigation.
The concession made by the respondents as to seriousness is properly made. I accept an allegation of guilt and the allegation being directed to a specified individual only would be more serious, but this does not gainsay the proposition that the meanings conveyed were of conduct that would be perceived by right-thinking people to rank high in the calendar of wrongful behaviour. Further, as is evident from my first judgment, some the imputations conveyed (see Linked Imputation 3, Linked Imputation 4, Linked Imputation 5 and Linked Imputation 6) go beyond allegations of reasonable suspicion and investigation. Any damages awarded must take account of, and partly be informed by, the seriousness of all the meanings conveyed.
Damage to Reputation
Mr Russell’s mother, brother, sister and close friend, Ms Asser, give unchallenged evidence as to the adverse effect of the publications on Mr Russell’s reputation. Australian Defence personnel and members of the United States armed forces also attested to Mr Russell’s prior good reputation in the military community. Public figures Mr Alan Jones and Senator Hollie Hughes, as well as Mr Willis of 2GB, did the same as to Mr Russell’s reputation in the broader community. I generally accept the ABC’s reporting as to November Platoon caused harm to his reputation.
But this case has some unusual aspects. It must always be kept in mind that damages in tort are compensatory and vindicatory. Care must be taken in determining damage to reputation caused by the November and Linked Articles and the Television Broadcast, on account of three related matters.
First, I must exercise caution in isolating the effect of the October Article (not sued upon) from the damage caused by the impugned publications. Secondly, it is not insignificant that Mr Russell self-identified as the commander of November Platoon following the publication of the October Article and had set upon taking control of the public narrative by the time the impugned matters were published. Thirdly, Mr Russell himself directed traffic to the impugned matters and drew attention to his self-professed “campaign against the ABC” over an extended period.
What is evident is that Mr Russell was no shrinking violet in drawing attention to himself and the publications in respect of which he makes complaint. He had the social media skills and media contacts to allow him a platform to put across his side of the story recounted in the October Article well before the respondents conveyed the defamatory imputations. This was not a man that could not procure a platform to push back on the substantive allegations made against him and November Platoon, and this is what he proceeded to do. My task, in determining the damages to be awarded, “is to ensure that there is an appropriate and rational relationship between the harm sustained by [Mr Russell] and the amount of damages awarded”: see s 34 of the Defamation Act. Any suggestion these matters are somehow irrelevant to an assessment of causally connected and rationally assessed damages must be rejected. Mr Russell’s reputation had been affected by the publication of the October Article and his reputation had also been affected by the public controversy that ensued and he promoted; it would be acontextual to consider the damages sustained by the publication of the defamatory matters without regard to this reality.
Hurt to Feelings
Mr Russell asserts he suffered substantial subjective hurt resulting from the impugned publications, and that his evidence on this issue is corroborated by his family, friends and former colleagues.
In writing, the respondents submitted “there is no challenge to Mr Russell’s evidence as to the hurt he suffered as a result of the publication of the November Article, the Linked Article and the Television Broadcast” but later contended “the Court ought to be very sceptical of anything Mr Russell says where he stands to benefit from it”: T1049.31–32. Mr Russell contends that in emphasising the need for the Court to be sceptical, the respondents did not particularise their attack on Mr Russell’s credibility in relation to the “invoice issue” and are in breach of the requirement that it was necessary to put squarely to Mr Russell the respects in which his evidence was being challenged: Browne v Dunn (1893) 6 R 67 (at 70 per Lord Herschell LC).
This criticism, with respect, is superficial. As I said in Palmer v McGowan (at 719 [462]):
… I have specifically taken into account that the evidence as to hurt feelings was not cross-examined upon. It is often remarked that unchallenged evidence that is not inherently incredible ought generally to be accepted by the tribunal of fact (although such evidence may be rejected if it is contradicted by established facts or the particular circumstances point to its rejection): Precision Plastics Pty Limited v Demir[1975] HCA 27; (1975) 132 CLR 362 (at 370–371 per Gibbs J); Ashby v Slipper[2014] FCAFC 15; (2014) 219 FCR 322 (at 347 [77] per Mansfield and Gilmour JJ). This is not a case where this aspect of Mr Palmer’s evidence is relevantly contradicted or undermined by established facts, but this is not the end of the matter. As I recently noted in Transport Workers’ Union of Australia v Qantas Airways Limited[2021] FCA 873; (2021) 308 IR 244 (at [284]–[288]), when the law requires proof of any fact, the tribunal of fact must feel actual persuasion as to its occurrence or existence before it can be found. A party bearing the onus will not succeed unless the whole of the evidence establishes a reasonable satisfaction on the preponderance of probabilities such as to sustain the relevant issue. In this way, the facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied: Jones v Dunkel[1959] HCA 8; (1959) 101 CLR 298 (at 305). Despite the criticisms referred to in Transport Workers’ Union of Australia v Qantas (at [286]), this approach is well entrenched and unquestionably represents the current state of the law. Hence it is appropriate I pose the relevant question in this part of the case as being whether, on the whole of the evidence, including the unchallenged evidence, I have reached a state of actual persuasion or reasonable satisfaction that Mr Palmer suffered hurt to feelings by reason of the defamatory publications.
In this regard, I did not find Mr Russell’s oral evidence as to hurt to feelings persuasive. His actions are consistent with someone who has not suffered significant hurt but rather embraced the public controversy occasioned by the dispute and used it to further his personal causes and profile. With that said, I accept the evidence of other persons that the impugned publications have had a personal toll. Hence, despite any misgivings I have as to the genuineness of Mr Russell’s own evidence, including as to the extent of his reaction, a finding as to the existence of real hurt to feelings is inevitable given that no less than seventeen persons gave such unchallenged evidence, and such evidence was not inherently implausible.
More particularly, his family explained they perceived Mr Russell was, as his sister Tarlee Russell put it, “plainly extremely distressed”, and that there was a “drastic change in his regular behaviour and personality”. His mother, brother and Ms Asser recounted their concerns he would harm himself; specifically, his mother recalled occasions where she had contacted Mr Russell, heard nothing from him, and travelled some distance to see him out of fear for his wellbeing. His broader network of friends and contacts spoke of his anger, disbelief, and feelings of, as Mr Dan Fortune put it, being “under siege and … feeling shame … like a death by 1000 cuts”, and that Mr Russell saw the publications “as an overwhelming attack on himself, the commandos, November Platoon and veterans generally”. It is difficult to reconcile some of this evidence as to the extent of hurt with the objective facts as to Mr Russell’s conduct in taking repeated steps to direct attention to himself and to the allegations, but I am satisfied the damages awarded must reflect that he has suffered real hurt to feelings.
Extent of Publication
I have set out the evidence as to the extent of publication of the impugned matters above in H.2. Mr Russell submits, and I accept, that the likelihood is that publication is likely higher than these already substantial figures. The figures only include views up until the day before the first day of the hearing. Given the significant publicity generated by the trial, it is likely that further views have accumulated in relation to the November Article and the Linked Article.
Certain other submissions advanced by Mr Russell on this issue might be thought to be peculiar in the light of his own conduct in directing traffic to the publications via the dedicated page on his website and his social media. His final written submissions provided as follows (at [389]–[390]):
389.There is evidence that the articles have been republished on other websites. For example, Mr Sudweeks saw them on a Facebook page which regularly posts articles about the ADF: CC.28.p170, [4]. This kind of republication is the natural and probable consequence of the ABC’s publication of the articles (noting, for example, that a bar near the top of the paginvites readers to “Share this article” and “Copy Link”), and it should be held liable for it.
390.In addition, there is evidence that the publications have been read overseas. For example, Mr Dennis gives evidence of reading the October Article and the November Article while he was in the US: CC.11.p86, [11].
The first-appearing “highlight” reel on Mr Russell’s Instagram page is entitled “ABC Defamation Case”, and the first-appearing tab on his website is entitled “Heston Sues the ABC”. A direct link to the “Heston Sues the ABC” section of his website is provided in the “bio” at the top of his Instagram page with the call to arms, “Join me & my campaigns via the link below”.
The “Heston Sues the ABC” section of Mr Russell’s website includes a link to the November and Linked Articles, under the heading “Update – continue reading below for ABC’s excellent #fakenews story and the real response from Defence”, with the caption:
The ABC came out with an article implying that they received a specific response that November Platoon is under criminal investigation, but per the Defence response, this could actually mean that the release of the requested information could impact on another or any other allegations under investigation.
It says that there is a “current investigation of a possible breach of law” without naming any platoon and as per the ongoing OSI investigation into all allegations in general.
The suggestion that the ABC “should be held liable” for republication of the articles must be seen in the context of Mr Russell directing traffic towards the November and Linked Articles and continuing to do so throughout the trial: T74.12–77.21. In any event, publication was extensive, and this must also be considered.
I.2 Aggravated Damages
Principles
Aggravated damages are more properly called aggravated compensatory damages; at common law they have traditionally been awarded to compensate an applicant for harm that has been exacerbated by a respondent’s conduct in publishing the defamatory matter or by subsequent conduct: see Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 (at 496 per Hunt J); Waterhouse v Broadcasting Station 2GB (at 74–75 per Hunt JA). They are usually awarded in relation to injury to feelings but are not so limited.
It has long been accepted the Court is entitled to look at the whole conduct of the respondent from publication to the time of judgment: Praed v Graham (1889) 24 QBD 53 (at 55 per Lord Esher MR, with whom Lindley and Lopes LJJ agreed). The applicant must establish that the respondent’s conduct was improper, unjustifiable, and lacking in bona fides (Triggell v Pheeney (1951) 82 CLR 497 (at 513–514 per Dixon, Williams, Webb and Kitto JJ).
In its current form, s 35(2A) provides only that “[s]ubsection (1) does not limit the court’s power to award aggravated damages if an award of aggravated damages is warranted in the circumstances” (emphasis added). Accordingly, the statutory text now places no emphasis on aggravating circumstances which are part of the circumstances of publication.
I raised with counsel whether, given the breadth of the present statutory language (“in the circumstances”), any conduct of Mr Russell in the litigation could be considered in determining whether an award of aggravated damages is warranted.
Of course, s 35(2A) does not affect the operation of the general law except to the extent the Defamation Act provides otherwise (whether expressly or by necessary implication): s 6(2). The explanatory materials do not indicate that Parliament intended to broaden the circumstances relevant to an award of aggravated damages beyond the conduct of the respondent. I agree with the joint position of the parties that I must put to one side any conduct of Mr Russell in relation to the litigation, and the relevant focus must be on the conduct of the respondents.
Disposition
Senior counsel for Mr Russell identified the following three most significant aggravating circumstances: first, the preparation and publication of the November Article (in particular, the interpretation of the FOI Response; Mr Robertson’s failure to put the precise allegations to Mr Russell; and the press release which accompanied the publication of the November and Linked Articles); secondly, the respondents’ “dishonest reaction” to public statements by Mr Russell and Defence seeking to correct the November Article; and thirdly, the respondents’ conduct of the litigation, in particular, “the hopeless truth defence that was filed in February about Qarabagh, about the helicopter, about the quota video, about the Americans never wanting to work with [Mr Russell] again”: T988.3–6.
What is missing from this selection is the actions of the ABC in publishing the misleading press release by which it sought to justify the abandonment of the public interest defence discussed at [430]–[433] above. This was understandable – as Mr Owens SC engagingly put it, just because a circumstance aggravates the Court does not mean it warrants an award of aggravated damages.
Taking the circumstances in turn, I find as follows.
First, I have found the November Article overstated the cogency of the evidence in the ABC’s possession and was published following several missteps, including the failure to procure fairly and consider a response from Mr Russell. But, on balance, and notwithstanding a not insignificant part of the motivation for publishing was directed to vindicating the position of the ABC, I am not satisfied the respondents were sufficiently motivated by any improper intention. The accompanying press release was an attempt to push back against criticism of the ABC over the reporting of ABC Investigations, but whatever its shortcomings, I am satisfied those responsible for the publication considered the reporting to which it referred to be important and for the public benefit. I do not think the conduct relied upon rises to a sufficient level to be described as improper, unjustified, or lacking in bona fides.
But even if I was wrong in this characterisation of this conduct, I have not been persuaded on the evidence that the conduct increased or aggravated the harm the defamation caused to Mr Russell. Mr Russell was, by the time of publication of the November Article and press release, embroiled in a retaliatory exchange with Mr Willacy and the ABC which found reflection in articles, press releases, social media posts and media appearances by Mr Russell. The remarks of Lush J in David Syme & Co Ltd v Mather [1977] VR 516 (at 526) are apposite here; aggravated damages cannot be awarded “merely for reasons of indignation felt by the jury, but only if the evidence points to the conclusion that the blow to the plaintiff’s pride, however it may be called, has been or must have been worsened by what was done”.
Secondly, the respondents’ reaction to public statements by Mr Russell and Defence seeking to correct the November Article is concerning. The editorial amendments to the November Article were workshopped and crafted in such a way as to admit where the ABC had erred in a narrow and literal sense, but not to reflect any wider acknowledgement of other facts which had come to light. But again, although it does not reflect well on those involved, I am not satisfied this conduct rose to the level of being improper, unjustified, or lacking in bona fides (and again, if I am wrong, the evidence does not persuade me that the blow to Mr Russell’s pride, however it may be called, has been or must have been worsened by this aspect of the respondents’ conduct).
Finally, as to the third circumstance, it must be remembered it is not the case every unsuccessful respondent must face the prospect of damages being increased because they have elected to defend the action: Coyne v Citizen Finance Ltd (1991) 172 CLR 211 (at 237 per Toohey J). The justification defence may have been weak and I accept, for instance, that in the light of the evidence presently before the Court, and the ABC’s reporting on the Qarabagh Allegation, the attempt to justify Linked Imputation 3 (that Mr Russell, as a commander of November Platoon, was involved in shooting and killing an Afghan prisoner during an operation in Helmand province in mid-2012) by reference to the Qarabagh Allegation was misconceived. But highly experienced and able counsel settled the pleading and there was, prior to the strike out of the truth defence, a good faith dispute as to what the impugned matters conveyed and as to how my findings as to meaning were to be properly understood. Although I recognise that conduct characterised as unjustified to aggravate compensatory damages, and breaches of ethical obligations are different concepts, I do not consider there was any more going on than a genuine attempt to defend the case. In the end, what went on is best characterised as an incident of hard fought litigation. Again, even if this conduct met the threshold of improper conduct, I am not satisfied by the evidence of Mr Russell that it sufficiently “rub[bed] salt in the wounds inflicted by the libel”: Suttcliffe v Pressdram Ltd [1991] 1 QB 153 (at 170 per Lord Donaldson).
For completeness, I should also note Mr Russell’s repeated assertion the ABC was obliged to act as a model litigant. This contention is probably wrong as a matter of law (for reasons I do not propose to detail), but it is also unimportant for present purposes. As I noted in argument, in determining whether the ABC’s conduct of the litigation aggravated the damage suffered by Mr Russell, the Court is concerned with finding conduct of a type inappropriate for any litigant.
In summary, although there are aspects of the conduct of the respondents that are worthy of criticism and caused me concern, I have not reached the level of satisfaction that the identified aspects of the respondents’ conduct were unjustified, improper, or lacking bona fides such as to warrant an award of aggravated damages. Moreover, even if I was satisfied any one of the three circumstances of aggravation met this threshold, the difficulties I have in accepting Mr Russell’s evidence of his subjective reaction mean, in accordance with the principles I explained in Palmer v McGowan (at 719 [462]), I have not reached the level of persuasion or reasonable satisfaction that any of the circumstances have, in truth, aggravated Mr Russell’s damage.
It is sufficient to dispose of the three circumstances of aggravation to reject the entirety of Mr Russell’s claim for aggravated damages. As I am not convinced any one of these circumstances has aggravated Mr Russell’s damage, it would be futile to set out detailed reasons why and how the dozens of remaining circumstances also do not reach the necessary thresholds. I would reach the same conclusion even if the particularised conduct was assessed in any combination.
I.3 Quantum
As noted above, in the end, I am required to ensure that there is an appropriate and rational relationship between the harm I have found sustained and the damages awarded. I am conscious of comparable awards but do not think it productive to canvass them and, as is often said, no two cases are exactly comparable and what is awarded cannot be arrived at by any purely objective computation. Taking all the matters I have raised relevant to compensatory damages into account and bearing in mind: (1) consolation for such hurt that has been casually related and has been proven; (2) reparation for the harm done to Mr Russell’s reputation; and (3) the need for vindication of reputation, I assess damages in the amount of $390,000.
I.4 Interest
Finally, an interest rate of 3–3.5% per annum is generally awarded in defamation proceedings: Hanson-Young v Leyonhjelm (No 5) [2020] FCA 34 (at [8]–[16] per White J). In the circumstances, I am satisfied a rate of 3% per annum is appropriate.
J CONCLUSION AND ORDERS
Among other things, the ABC Code of Practice sets out standards of fair and honest dealing in the conduct of journalism. This includes an institutional commitment to accuracy including “a willingness to correct errors and clarify ambiguous or otherwise misleading information”. In this regard, it is recognised “[s]wift correction can reduce harmful reliance on inaccurate information”. The same can be said of the MEAA Journalist Code of Ethics, which requires a journalist to do their “utmost to achieve fair correction of errors”.
These standards recognise errors sometimes happen, even in the work of the most distinguished journalists writing on topics of great public importance. Even Homer nods, let alone journalists within ABC Investigations. Even critics one does not respect, or whose motives are perceived to be unworthy, may have a point.
Mr Russell mounted a public campaign and, as I have explained, an aspect of his conduct was apt to reinforce, rather than dispel, suspicion. But he did not rush into litigation. As I have explained, those responsible within ABC Investigations, who had a distinguished record of reporting on war crimes, equated any criticism of the reporting of Josh’s allegations and Mr Russell’s belated First Complaint as volleys in a culture war. Their desire to defend their earlier reporting and prove their critics wrong partly motivated the publications sued upon and focused attention away from the substance of any legitimate criticism of the October Article. This same mindset is equally evident in the internal communications dealing with criticism of the November Article by Media Watch or the Second Complaint. Criticism was perceived as undermining the defence of ABC Investigations to external attack. This may be understandable from a human perspective, but one suspects it was not conducive to considering dispassionately whether corrections or retractions needed to be made. There may be several reasons why this dispute resulted in expensive and protracted litigation, but one of them was the existence of a defensive mindset inhibiting a proper remedial response to criticism.
Two issues remain for resolution: costs and injunctive relief. By his originating application, Mr Russell seeks orders that: (1) the ABC remove the November and Linked Articles and enjoining republication; and (2) the ABC, Mr Robertson and Mr Willacy be restrained from publishing any matter that carries any imputation found by the Court to be carried by the November and/or Linked Articles.
I will enter judgment and hear the parties on the outstanding issues at a date which is convenient to counsel, to be determined within seven days.
I certify that the preceding five-hundred and fifteen (515) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate:
Dated: 16 October 2023
- AGLC
- Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223
- Case
- [2023] FCA 1223
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to decide was whether the respondents' publication of the impugned matters was in the public interest, as required by s 29A of the Defamation Act. The court needed to determine if the respondents' belief that the publication was in the public interest was reasonable, given all the circumstances of the case. Furthermore, the court examined whether general damages could be reduced due to the plaintiff's conduct during litigation and whether aggravated damages should be awarded considering the adverse credit finding against the plaintiff.
The court found that the respondents' belief in the public interest was not reasonable, leading to the failure of the public interest defence. Consequently, Mr Russell was entitled to judgment and an award of ordinary compensatory damages. The court awarded general damages but refused aggravated damages due to the adverse credit finding. The case highlighted the nuanced and value-laden nature of the public interest defence, emphasising the importance of all the circumstances of the case in determining its application. The court's decision underscored the complexity of balancing the right to freedom of expression with the protection of individual reputation.
Orders
Orders of the court
1. The proceeding be stood over to a date and time to be fixed within the next seven days for the entry of judgment in favour of Mr Russell in the sum of $390,000 together with interest at the rate of 3 per cent per annum and for determination of the applications made by Mr Russell to enjoin the respondents and for costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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