The ABC has reversed a decision to drop its defence of a defamation suit brought by former commando Heston Russell, during a day of legal argument labelled “farcical” by a federal court judge.
The about-face comes two days after the ABC initially abandoned its public interest defence when ordered to reveal a confidential source.
Justice Michael Lee said on Friday that to describe the proceedings as “unusual would be an understatement” as he set the trial for later this month.
“This is developing into a bit of a farce,” Lee said as barristers for Russell and the ABC argued over whether the public broadcaster had to reveal a confidential source.
The judge said: “This is a highly unusual case given the amount of information that has already been disclosed by the ABC concerning the identity of the source.”
Lee suggested the ABC should continue its public interest defence because Russell’s legal team had revealed they already knew the identity of the broadcaster’s confidential source.
“I am no longer satisfied it is necessary for the ABC to be compelled to provide information as to the source in order to allow the trial to be conducted fairly from the perspective of Mr Russell,” Lee said.
Nicholas Owens SC, for the ABC, said investigative journalist Mark Willacy would under no circumstances reveal the name of his source and would rather go to jail.
The question of whether the source, known as Josh, was confidential was debatable because the ABC used a photograph of him in a report, Lee said.
“If those responsible for publication of ‘Josh’s’ photograph within the ABC thought there was substance in ‘Josh’s’ fears of retribution, they must have assumed his potential assailants were a somewhat incurious and lazy lot,” Lee said at an earlier hearing.
The ABC maintains Josh is not identifiable by his photograph because he has no digital footprint.
Sue Chrysanthou SC, for Russell, accused the ABC of running “a disgraceful publicity campaign” after the broadcaster put out a media release after Wednesday’s hearing.
In the media release, the ABC’s director of news, Justin Stevens, said commitments by journalists to sources ensured journalists retained the ongoing trust of people speaking truth to power.
“We wanted the opportunity to defend our journalism in court,” Stevens said.
“However, a greater principle is now at stake – our ethical responsibility to honour the promise protecting the name of our source.
“Mark Willacy and the ABC’s award-winning investigations team are experienced journalists with a strong track record of reporting on matters of public interest and the ABC supports them upholding their obligations to their sources.”
The federal court found at an interim hearing in February that a series of articles by the ABC had conveyed several defamatory meanings, including linking Russell to war crimes and alleging he left “fire and bodies” in his wake during his service in Afghanistan.
Lee found the ABC articles also conveyed that Russell was “the subject of an active criminal investigation into his conduct as a commando in Afghanistan” and “reasonably suspected … of committing a crime or crimes when he was a commando in Afghanistan”.
The ABC responded by stating it would argue a truth defence and that it had acted in the public interest.
Russell, a former major in the Australian special forces who served four tours of Afghanistan, has consistently denied all wrongdoing and allegations against him including that he was the subject of a formal investigation.
The trial is scheduled to begin on 28 July.
