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ABC’s public interest defence not freedom to ‘mislead’, barrister says
High-profile defamation barrister Sue Chrysanthou slammed ABC’s reporting about a former special forces soldier and said its public interest defence does not give it the right to “mislead” readers.
Naomi Neilson
Ms Chrysanthou’s client Heston Russell is suing the Australian Broadcasting Corporation over an October 2021 article that claimed that in 2012, commandos of a platoon he led executed an Afghanistan man because there was no room on a helicopter.
Mr Russell is suing for damages, alleging his reputation was damaged and his feelings hurt by the reporting.
In closing submissions before the Federal Court, Ms Chrysanthou has accused the journalists of “publishing lies” without investigating the claims or properly giving her client the opportunity to respond.
During the trial, the Federal Court was told the information came from a US marine known as “Josh” who claimed he was not a witness but heard a “pop” on a radio that he believed was a gunshot.
“There was not one step taken by any of them to challenge the veracity of what Josh was saying. It wasn’t an investigation, it was an attempt to … bolster or justify (allegations in the October article) in any way they could, and ultimately they couldn’t,” Ms Chrysanthou said.
“The willingness to go outside their code of conduct and guidelines so they can write this story about my client in November, the following year, we say evidences impropriety in their part as journalists.”
Ms Chrysanthou also took aim at Mr Willacy’s claims he had spent two months investigating the story before he published it, insisting he had instead spent that time working on a book about the platoon.
Further, Ms Chrysanthou said that allegations it was Mr Russell’s platoon being investigated were incorrect because there was no evidence that Mr Russell’s platoon was deployed on the date alleged.
“What the real issue is between the parties is the failure by the (ABC) to face up to the fact that they have, in the most serious of terms, apparently wholly unintentionally, accused my client of these allegations. That’s their evidence, that they did not intend to say that my client was involved in a murder,” Ms Chrysanthou said.
Referring to the new public interest defence the ABC is relying on, Ms Chrysanthou told Justice Michael Lee it is “not in the public interest for the Australian public to be misinformed”.
Ms Chrysanthou used a hypothetical of a District Court judge who was linked to organised crime and who sits in on large importation cases, then discovered by a journalist who is “sitting in a pub and hears someone down the bar say something”.
“That is a very important issue of public interest; it is about the administration of justice. Is that sufficient? Is it sufficient for the journalist to then go and publish it, but then it turns out that they had it wrong or they misheard?” Ms Chrysanthou posed.
“Why is it in the public interest to be misled?
“It is not in the public interest to misinform.”
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
