Federal Court of Australia

Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223

ORDERS

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

1    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.

2    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.

3    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).

4    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.

5    My reasons are structured as follows:

B    BACKGROUND AND PRINCIPAL PLAYERS

C    FACTUAL FINDINGS AS TO THE CONDUCT OF THE ABC

D    THE SEPARATE HEARING AND THE IMPUTATIONS

E    SERIOUS HARM

F    THE PUBLIC INTEREST DEFENCE: THE LAW

G    THE PUBLIC INTEREST DEFENCE: CONSIDERATION

H    FURTHER FACTUAL FINDINGS AS TO DAMAGES

I    ASSESSMENT OF DAMAGES

J    CONCLUSION AND ORDERS.

B    BACKGROUND AND PRINCIPAL PLAYERS

6    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

7    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.

8    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).

9    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

10    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.

11    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.

12    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.

13    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

14    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”).

15    “Task Force 66” was deployed in Afghanistan in 2012 and included Alpha and Bravo companies.

B.4    Key Players at the ABC

16    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.

17    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.

18    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.

19    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.

20    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.

21    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.

22    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”

23    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.

24    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.

25    I now turn to the processes applicable to the publication of the October Article and the impugned matters.

26    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.

27    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.

28    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.

29    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.

30    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

31    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.

32    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.

33    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.

34    As to the first of these matters, the suspicions were not some irrational fancy.

35    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.

36    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?”

37    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).

38    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.

39    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).

40    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.

41    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.”

42    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 …

43    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.

44    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.

45    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 …

46    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

47    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?

48    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.

49    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.

50    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).

51    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?”.

52    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”.

53    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, the 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 Ben 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.

54    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.

55    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.

56    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.

57    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?”

58    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.

59    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.

60    I now turn to making specific factual findings.

C.2    Josh’s Allegations

61    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.

62    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.

63    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.

64    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”.

65    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”.

66    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”.

67    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.

68    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 …

69    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.

70    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 …

71    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.

72    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.

73    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.

74    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.

75    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.

76    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.

77    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.

78    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”.

79    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

80    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

81    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.

82    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).

83    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.

84    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

85    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”.

86    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 Braden 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.

87    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”.

88    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

89    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.

90    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 …

91    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.

92    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

93    Notably, the explanation that Josh was not named for “fear of retribution” appeared in the next draft.

94    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.

95    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.

96    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.

97    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.

98    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.

99    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.

100    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”

101    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).

102    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.

103    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.

104    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.

105    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.

106    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.

107    All in all, the production process undertaken in relation to the October Article amounted to little more than an elaborate close proofreading.

108    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

109    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.

110    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

111    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?

112    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”.

113    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.

114    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

115    Following further confirmation of Josh’s military activities by Mr Willacy, the October Article was published on 21 October.

116    The following may be said of the October Article as published.

117    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.

118    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.

119    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 …

120    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

121    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.

122    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.

123    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.

124    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

125    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

126    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.

127    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’”.

128    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”.

129    Mr Russell also wrote two opinion pieces in November 2020. The first was published in the Courier Mail on 13 November, and relevantly states, “Now, for the last two months, I have been requested to also provide evidence to support an AFP investigation”. The second was published on 20 November in The Daily Telegraph, the Herald Sun and the NT News. There, Mr Russell asserted:

I was crucified in my conversations with General Brereton ... I made a couple of tactical decisions that in context I want the Australian public to understand. I authorised my guys to fire warning shots because I was sick of us shooting people who were dropping weapons and running away ... So I authorised my guys to fire warning shots because we could not catch the people and we were legally authorised to shoot them. But basically that was a breach because Australians are not authorised to fire warning shots … Gen Brereton and his team basically used that, my permitting my guys to do that, to unpick the entire legitimacy of my moral and ethical leadership and actions in combat.

130    It is worthwhile saying something of Mr Willacy’s public response to these denials. On 7 May 2021, during a stage interview with Mr Masters at the Walkley Awards, Mr Willacy explained he had “spent two months” working on the October Article, only to find himself frustrated at “this idea”, apparently perpetuated by The Daily Telegraph, that “we make sh** up and we don’t”:

And I found it a bit disappointing that you know, yeah, come after me if I’ve made a mistake or I’ve been loose with my journalism, come after me, I welcome it. But this journalist didn’t even call me. Didn’t ask to speak to the people I’ve spoken to. And I just found it annoying that in one day someone can pull down reporting or will try to pull it down, that takes two months.

Um, and so I found that there was this competition that was healthy and collegiate within our organisation. And there was others that I found, yeah, a bit cheap at times.

131    These remarks capture Mr Willacy’s belief in his journalism; however, that the notion he welcomes people coming after him alleging his journalism has been “loose” is difficult to reconcile with his reaction to criticism revealed in this case, including from Media Watch.

C.5.2    Relevant Findings in the Brereton Report

132    On 10 November 2020, a redacted version of the Brereton Report was released. Messrs Willacy and Robertson both read the report around this time. While its focus was undoubtedly on the SASR, it was clear that some adverse findings were made concerning the commandos:

(1)    Chapter 3.03, “Command and Collective Responsibility”, contained the following statements:

25.    [Redacted] commanded [redacted] Platoon, [redacted] Company Commando Group, FE[redacted], SOTG [redacted], as to which see Chapter 2.51 ([redacted]).

26.    While [redacted]’s approach to the rules of engagement was somewhat cavalier – [redacted] – the Inquiry has not elicited any evidence that suggests that he knew, or suspected, that prisoners were being killed.

(4)    Chapter 2.51, to which reference was made in connexion with the Platoon commander referred to in the above example, was redacted in its entirety. Annexure C to Chapter 1.01, however, set out a consolidated list of findings and recommendations in other parts of the Report. In relation to Chapter 2.51 it said:

On the available evidence, save for what is described in Chapter 2.43 [redacted], rumours concerning the killing of prisoners by members of [redacted], [redacted], in [redacted] of SOTG [redacted], are not substantiated.

(Emphasis added).

(5)    The finding in relation to Chapter 2.43 was described as follows:

There is credible information that at some stage during Special Operations Task Group Rotation [redacted] or [redacted], [redacted] wilfully and unlawfully caused the death of an unknown male Afghan, when he was hors de combat, being unarmed and under control, by shooting him, and that he did so at the direction of a superior. This may have been on [redacted] 2012 at [redacted].

It is possible that, at the same time and place, [redacted] male Afghan, who was hors de combat, being unarmed and under control was also wilfully and unlawfully killed. However, there is insufficient credible information to make a finding to that effect.

(Emphasis added).

C.5.3    Further Research by Mr Willacy

133    Sometime in December, Mr Willacy had a conversation with Confidential Source A in which the pair spoke generally about November Platoon. Mr Willacy does not remember precisely what was said but has a contemporaneous note of soldiers’ names he recognises as being in November Platoon, including Mr Russell’s name. Around the turn of the year, Mr Willacy had a further conversation with Confidential Source A, in which Confidential Source A said he had heard Mr Russell attracted negative comments in the Brereton Report, and that he had acted without regard for the rules of engagement.

134    In May 2021, Mr Willacy watched what was known in this proceeding as the “souvenir video” for the 2nd Commando Regiment during their deployment to Afghanistan in the period 17 July 2012 to 1 December 2012. He had received the souvenir video from Mr Oakes sometime in 2020 and observed: (a) two separate incidents of an Australian commando shooting out of a helicopter towards an individual on the ground; (b) the firing of a javelin missile by an unspecified soldier; and (c) a tribute to the HMLA-469 unit, being the unit of which Josh was a member.

135    After the publication of Rogue Forces in August 2021, Mr Willacy was contacted by a former 2nd Commando Regiment soldier who had participated in more than half a dozen tours of Afghanistan, including Rotation 18 in 2012 (Confidential Source B). Mr Willacy asserts journalist privilege pursuant to s 126K of the EA in relation to the identity of Confidential Source B. By this time, he had known Confidential Source B for approximately a year.

136    Mr Willacy met in person with Confidential Source B, who apparently expressed a view to the effect that November Platoon were the “worst team”, that the DEA “took their dealings with November Platoon up the chain”, that a senior US military source had said to Confidential Source B he “only went out with that platoon once” and was “never going out with those mother f***ers ever again”, that Mr Russell was in the platoon in question and that Confidential Source B had been interviewed by the IGADF in relation to these issues.

137    Mr Willacy told Confidential Source B about the Helicopter Allegation. Confidential Source B thought it sounded credible. He admitted he had not heard the exact allegation but suggested there were serious allegations around November Platoon executing PUCs, such that it would not surprise him if the Helicopter Allegation was true. Under cross-examination, however, Mr Willacy properly accepted that by relaying the Helicopter Allegation to Confidential Source B, he may have influenced Confidential Source B, who disliked November Platoon and Mr Russell, to say “exaggerated, negative things” about them: T400.6–14. Indeed, Mr Willacy told the Court under cross-examination he spoke with another source in about July 2020 who memorably criticised Confidential Source B as, among other things, a “signaller” and a “show pony” with “a way with words”: T252.11–15. This description was not referred to in Mr Willacy’s affidavit evidence, where he gave evidence he regarded Confidential Source B as credible.

138    Confidential Source B also explained that the 2nd Commando Regiment was in Southern Afghanistan in late 2012, that he was personally on that deployment, and the only platoons from 2nd Commando Regiment on Rotation 18 were Oscar and November Platoons.

C.5.4    The OSI’s Interest in the October Article

139    I have already mentioned the interest taken by the OSI in the allegations put forward in the October Article. By way of elaboration, on 28 August 2021, Mr Willacy received an email from Mr Ross Barnett (the director of investigations at the OSI) requesting an opportunity for the OSI to take a statement from him to:

establish a solid relationship of trust, confidence and confidentiality with you as we expect to need to talk to you again as our investigations progress and your relationship with key witnesses is very important to us. After that we are keen to talk through your knowledge of the key players you speak of in your book and your knowledge of the war crimes alleged in the book …

140    Mr Willacy attended the AFP offices in Brisbane on 1 and 2 September 2021 for those purposes: T326.28–29. He signed a statement on 2 September 2021 setting out those matters but excluding any information as to Josh and the allegations advanced by him: T326.21–36.

141    On 13 October 2021, Mr Willacy volunteered his emails with him to the OSI “as background only and not [to] go into your official record at all”. Mr Willacy claimed in that email there had been “potential threats emanating from Heston Russell following the broadcast of my story. I heard from a former ADF officer who was in touch with Heston Russell that Russell had spread the word around that they were trying to find Josh”: T330.32–37.

142    Mr Barnett expressed an interest in investigating Josh’s allegations further.

143    On 1 November, Ms Puccini received a letter from the OSI requesting a copy of a compilation of helmet camera footage recorded by members of the 2nd Commando Regiment and footage of Mr Willacy’s interviews with Josh. That letter explained the OSI was “review[ing] the findings of the [IGADF Afghanistan Inquiry]”; “work[ing] with the [AFP] to investigate the commission of criminal offences under Australian law arising from or related to any breaches of the laws of armed conflict by members of [Defence] in Afghanistan from 2005 to 2016” and established to “develop briefs of evidence in respect of any offences that are established, for referral to the Commonwealth Director of Public Prosecutions for prosecution.” It continued to say it would “assist our investigation if [the ABC] could provide the OSI with the [requested material]” and that “[t]o avoid prejudicing any ongoing investigations, we ask that this request be regarded as confidential”.

144    Mr Willacy was visited at his home a few days later and questioned by Mr Barnett and two OSI team members. The focus of the OSI was the 2nd Commando Regiment (T356.1–9) and November Platoon (T403.29–40), including alleged executions of non-combatants. They also confirmed they had verified Josh’s record, that his deployment period overlapped with November Platoon and the OSI intended to speak with him.

145    Mr Willacy gave evidence he did not recall any member of the OSI team informing him that Mr Russell was the subject of a criminal investigation.

146    It is well here to deal with Mr Russell’s submission that the OSI was interested in meeting with Mr Willacy because it was labouring under the misapprehension that Josh had squarely accused November Platoon of the Helicopter Allegation. This might have some truth in it, but it is also likely that Mr Barnett saw Mr Willacy as someone with whom the OSI should establish an ongoing relationship, owing to the sources and material he had collected in preparing numerous articles and reports and in writing Rogue Forces.

C.5.5    Further ABC Reporting on Mr Russell

147    Once Mr Russell had self-identified as the commander of November Platoon, his name came across desks at ABC Investigations with increasing frequency. Ms Puccini gave evidence that not all the possible stories arising from these communications met the ABC’s “public interest threshold” and it was decided they would not be pursued: T677.35–36.

148    One story the ABC decided to publish concerned legal action and an investigation by NSW Fair Trading regarding fundraising by Mr Russell’s company, Voice of a Veteran Pty Ltd. On 10 September 2021, Mr Robertson co-wrote with Ms Kate Banville and Mr Oakes an article entitled “Former commando Heston Russell sued over unpaid ‘veteran supporter pins’ as he prepares to register political party” (Supporter Pins Article).

C.5.6    The Bookshop Interaction

149    One of the more curious occurrences in the period between publication of the October and November Articles took place at the Avid Reader Bookshop in Brisbane on 28 September 2021, at a book launch for Rogue Forces.

150    The launch event involved a book signing and an interview between Mr Willacy and journalist Mr Peter Greste. Mr Willacy told the Court he brought with him a friend who had previously served in the SASR because he was “concerned [his] book might attract people who want[ed] to hurt [him]”.

151    Mr Russell was in the audience and filmed part of the event on his mobile phone. Mr Willacy gave evidence he understood the act of filming to be one of “attempted intimidation”. Mr Russell’s position is that he filmed the event for his social media. Mr Willacy mentioned Mr Russell in response to a question from an audience member about the impact his book might have on veterans noting Mr Russell’s work in relation to veteran suicide and mental health issues.

152    Once the formalities had concluded, Mr Russell approached Mr Willacy with a friend. There are discrepancies in the accounts as to how long the conversation lasted and precisely what was said was also contested. It is agreed however that the October Article was discussed at length. Mr Willacy gave Mr Russell his contact details and offered to discuss his complaints, but Mr Russell did not take up this opportunity. It is unnecessary to resolve the conflicts in the evidence about these matters.

C.5.7    The First Complaint by Mr Russell

153    On 17 October 2021, just shy of one year after the publication of the October Article, Mr Russell sent a complaint to the ABC’s Audience and Consumer Affairs Department (ACA) about the October Article “on behalf of November Platoon” (First Complaint). The First Complaint called for an “independent review” of the October Article and provided (at [6]):

“We were all being recorded on our comms,” he (‘Josh’) said. Have you requested access to these from the Department of Defence including the submission of a FOI? (Every mission’s [sic] communications were indeed recorded).

154    The First Complaint was handled by Ms Kirstin McLiesh, then Head of ACA.

155    The complaint was received well after the ABC’s six-week acceptance period. Ms Puccini requested a meeting with Ms McLiesh and Mr John Lyons (who was at the time Executive Editor and Head of Investigative Journalism), as well as Messrs Maley and Willacy “to ensure confidential sources were protected in the complaint handling process”. During the meeting, Ms Puccini also indicated her view that the ABC should accept the complaint in the light of Mr Russell’s “public campaign” to date, to ensure he would not use any rejection of the complaint to suggest the ABC was trying to hide something.

156    Ms Puccini’s concern and, as she put it, “frustration” about Mr Russell’s media campaign is reflected in the following email she sent to Mr Willacy around this time:

Is this too provocative a response to a question about Heston?

“Liam you’ll appreciate that I can’t comment about that while there’s an abc investigation and other police investigations going on into the matter”

Or something like that. Something that might freak Heston out a little

Too much?

157    Ms Puccini could not recall with precision the circumstances in which this email was sent but inferred “Liam” was likely a reference to Mr Liam Bartlett, a reporter known for his work on the 60 Minutes programme. Although this email does not reflect well on Ms Puccini, it is easy to be critical of private emails and it should be recognised that Ms Puccini did not send a response in these terms; and she accepted it would have been “inappropriate” to respond to a press inquiry with the stated motive (T745.15–21); “[t]hat’s why I didn’t do it”, explaining:

[i]t was a moment of frustration to a colleague because we – I wasn’t able to get out information that would have made known that it was a serious enough allegation for the OSI to be interested in and that’s it. I didn’t act on it. I moved on.

158    Returning to the chronology, on 2 November, Ms McLiesh requested information from Mr Russell as to his reasons for the delay in making the complaint. Mr Russell responded emphasising the seriousness of the allegations made and representing he and other members of November Platoon had assumed the ABC would initiate its own review.

159    On 18 November, the ACA notified Mr Russell (and, separately, Mr Willacy and Ms Puccini), that it intended to investigate Mr Russell’s complaint.

160    Mr Russell was not advised of the outcome of the investigation until 29 March 2022, some four months after the publication of the November Article.

C.5.8    Conversation between Mr Willacy and Mr Hamilton

161    On 17 November 2021, four days before the publication of the November Article, Mr Willacy belatedly contacted Mr Hamilton (as noted above, a previous DEA team leader), on LinkedIn, requesting an “off-the-record chat” in relation to the deployment of the 2nd Commando Regiment with the DEA on counter-narcotics missions.

162    Mr Hamilton responded within a few hours, “I’d be happy to to [sic] speak to you. Especially about the work we did with 2nd Commando. It was the highlight of my professional career”.

163    Messrs Hamilton and Willacy had a video call on or about 17 November, during which Mr Willacy asked Mr Hamilton about November Platoon and Mr Russell. Mr Hamilton explained the FAST operations between the DEA and other forces in Afghanistan in 2011 and 2012. He said the 2nd Commando Regiment were the “most professional guys” who were “easy to work with”, and that he had not experienced “heavy handedness” by them.

164    Reflecting evident resistance to what he was being told, Mr Willacy put forward a number of negatively loaded and leading propositions about November Platoon: “it’s just that a few of the guys have raised to me again and again, this is just between you and I, that there was a few things that happened with November platoon that even the Aussie guys were not comfortable with …”; “Would it be fair to say, the November boys who are a little bit heavy handed than sort of what’s come from Oscar towards us anyway?”; “So the November they just moved a bit too fast and maybe the attitude wasn’t quite right. That’s an accurate rendering, you think?”; and “Do you remember much about young Heston? He was very young at that time, and he’s a very having met him … he’s a very confident young bloke”.

165    Mr Hamilton was having none of it. In response, he described Mr Russell as:

a very confident young man. A little bit, a little bit boisterous maybe. Yeah. I had a great deal of respect for him. And I mean, the guy physically was a man was a stud. I mean, he, I think I mean I don’t know this for sure but I think he had the respect of his platoon. You know, he command I remember he commanded. He had a great command presence on the ground. He was very confident on target you know, the one or two times we went out on or went out with them and that’s really all I remember.

166    Mr Willacy did not ask Mr Hamilton if he could utilise his comments in any future reporting about November Platoon or Mr Russell. He did not feature Mr Hamilton’s comments in the November Article nor correspond further with Mr Hamilton in relation to it.

167    I pause here to note three matters.

168    First, I asked Mr Willacy why, if all he was seeking to do was elicit information in a neutral way, he would put such leading propositions to Mr Hamilton, to which he responded, “Well, I wouldn’t put a leading proposition like that to someone on the record on camera interview. But I thought – in a background check conversation, I thought it would be okay but I get your point”: T364.9–13. The nature of this interaction supports the submission of Mr Russell that (at least by this time) Mr Willacy was more focussed on obtaining confirmation of views he had already formed than in obtaining information which could clarify or challenge the information already conveyed as to Josh’s allegations.

169    Secondly, given its terms, it is odd that Mr Willacy did not include anything about it in his first affidavit. His position was that he recollected the communication when he affirmed his affidavit and believed such material would have been in existence, but could not find a contemporaneous note, recording or transcript at the time. He described its exclusion from his first affidavit as an “oversight”: T190.6–46.

170    Thirdly, as will be seen, this conversation is neither referenced nor alluded to in the November Article, despite taking place only days before its publication. As I understand it, the justification proffered was that the discussion between Messrs Hamilton and Willacy was off the record, and, in Mr Willacy’s terms, “not for reporting … This is just for background and context and goes no further”. What is apparent, however, is that Mr Hamilton’s views did not qualify or apparently inform any non-attributed information contained in the November Article or prompt further enquires or reconsideration of what had previously been published, prior to publishing the Linked Article.

C.6    The November Article

C.6.1    FOI Application

171    On 23 October 2021, in the light of Mr Russell’s First Complaint, Mr Willacy submitted a request for documents to Defence pursuant to the FOI Act (FOI Application).

172    By the application, Mr Willacy sought:

(1)    audio copies of recorded mission communications including radio communications) for November Platoon, 2nd Commando Regiment, during missions in Afghanistan between 1 June 2012 and 31 July 2012;

(2)    mission summary reporting by and/or about November Platoon, including numbers of detainees taken off target and “Enemy Killed in Action” data, between 1 June 2012 and 31 July 2012;

(3)    communications, including emails and reports, between Defence and the DEA between 1 January 2012 and 31 August 2012; and

(4)    any complaints and/or disciplinary action taken against members of November Platoon in the calendar year 2012.

173    Mr Willacy told the Court he was “reasonably confident” he would get a non-response or “TPP response” from Defence (that is, a response that information could not be released because it might disclose Defence “tactics, policies and procedures”): T368.23–28; T962.20–21. When asked by senior counsel for Mr Russell whether the FOI Application was “a ruse to generate a story”, Mr Willacy did not embrace the pejorative characterisation but responded (T368.30–34):

Well, if it’s a story, it’s a story.

And you generated it?---Sometimes, we do generate stories, by going to look for them. Yes.

174    Sometime in late October or early November, Mr Barnett informed Mr Willacy that the FOI Application had been referred to the OSI, and that he did not think Mr Willacy was likely to be successful in obtaining the information. Mr Willacy took this to mean the information would be withheld because it was part of an investigation.

175    On 19 November 2021 at 7:19am, Mr Willacy received the FOI Response from Defence, indicating his request had been refused. It made specific reference to, and extracted, s 37(1)(a) of the FOI Act (at [5]) and paragraph 5.86 of the guidelines made under s 93A of the FOI Act (Guidelines) (at [6]) and stated, “I found that the documents contained information, if disclosed, could reasonably be expected to prejudice the conduct of a current investigation of a possible breach of the law” (at [7]). The FOI Response went on to refer to paragraphs 5.92 and 5.79 of the Guidelines (at [8]) and concluded “The release of this information prior to the conclusion of the investigation could impact the direction of the investigation. Further, I consider the pre-emptive release of the documents, which may be used as evidence by the investigating body, could also jeopardise the outcome of the investigation” (at [9]).

176    For reasons discussed below, Mr Willacy was not at work but emailed a copy of the FOI Response to Ms Jackson and Ms Puccini at around 7:25am, stating, “[t]his is very helpful, worth a story I think”. He told the Court he believed a story should be published urgently because he was concerned Defence’s response would be featured on Defence’s FOI disclosure log and risk being reported on by another media organisation: T403.5–16; T515.20–41; T516.25–45. Senior counsel for Mr Russell made much of the fact that the FOI disclosure log is only updated where Defence provides documents in response to an application, submitting that Mr Willacy must have known this was the case, given his experience in completing FOI applications and that accordingly, there was no urgent need to publish the November Article. But I accept that Mr Willacy and Mr Robertson believed that the FOI Response might be published on the disclosure log by Defence, in the light of their awareness that: (a) Defence’s webpage relating to FOI requests which states that “FOI request outcomes are disclosed on the FOI disclosure log page”; and (b) other agencies do publish outcomes where no documents are released: T245.10–27; T515.20–22. In any event, this seems to me to make much ado about nothing: it is not disputed the ABC intended, following receipt of the FOI Response, to push out an article as promptly as possible.

177    I find that Mr Willacy perceived the FOI Response confirmed an investigation into November Platoon was underway and that circumstance was “worth a story” which might cause further witnesses to come forward.

178    Ms Puccini and Mr Willacy had a telephone conversation about the proposed article, and by 8:03am, Mr Willacy had prepared and sent a draft of the November Article to Ms Puccini and Mr Robertson with the covering email: “Let’s discuss. But whoever does the attached should do radio news too”.

179    This email was the first Mr Robertson had heard of the proposed story, but he took it as an indication he would be responsible for it. He was aware Mr Willacy would be on leave and that the OSI had been in communication with the ABC about November Platoon and had recently conducted work on potential stories relating to Mr Russell as well as the Supporter Pins Article. He understood, based on this information, that the OSI was investigating November Platoon, and assumed the investigation, at least in part, concerned Soldier X: T510.35–41.

180    It is relevant to note that Mr Robertson had, by this time, seen the souvenir video and was told by both Mr Willacy and Mr Oakes the person shooting from the helicopter was allegedly Mr Russell. Mr Robertson prepared a draft article about this allegation in September but determined not to pursue publishing it as it was “rough as guts”, and he was “unable to satisfy [himself] that a publication about that allegation at the time would be in the public interest”: T506.23–35.

181    It is also necessary to address here the repeated submission by Mr Russell that Mr Willacy’s involvement in the November Article was deliberately concealed for some nefarious purpose. I am unconvinced this was the case. Despite the scepticism of senior counsel for Mr Russell, the most likely explanation for Mr Willacy’s exclusion from the by-line is that he was on leave, having lunch and drinks with friends and the issue was not at the forefront of Mr Robertson’s mind. I do not consider there was some sort of conspiracy to hide his involvement: if so, it would have been a poorly executed one as the November Article included a link to the FOI Response, which names Mr Willacy as the requesting party.

C.6.2    Steps Taken Prior to Publication

182    Notwithstanding his indication that Mr Robertson or another journalist should take carriage of the story, Mr Willacy contacted the OSI media team in the following terms at 8:43am, seeking a response by midday:

Can the OSI confirm it is investigating November Platoon over an incident described in the ABC news link below or for any other incident in Afghanistan during the time period specified in the ABC’s FOI to Defence?

https:l/www.abc.net.au/news/2020-10-21/soldiers-killed-man-who-could-notfit-on-aircraft-says-us-marine/12782756

Would it be possible to have a response by midday today?

183    In the meantime, Mr Robertson set upon preparing Mr Willacy’s draft for publication.

184    Mr Robertson was candid as to the steps taken (and not taken) by him in the lead up to publication, making several appropriate concessions. He understood he was responsible for the story, and that he was taking responsibility for the “entire content” and all allegations advanced: T511.29–30; T514.27–30.

185    Ultimately, Mr Robertson formed the view he did not need to investigate the allegations put forward in Mr Willacy’s draft himself. He understood that the article would be a “follow” to the October Article, namely that it would “build on investigative work, but it wasn’t an investigative piece, per se, because it’s done as a follow, in a response to, you know, a document that lobs – it’s done, sort of, within hours”: T533.27–29. He told the Court he trusted the work of his colleague and was content to rely on casual conversations they had previously had about Josh’s allegations, November Platoon and Mr Russell: T487.33–36. This is so notwithstanding his acceptance of the abstract proposition that when given information as an investigative journalist, one needs to check it, regardless of its provenance: T506.44–46.

186    The Court heard Mr Robertson had the following strands of information available to him.

187    First, Ms Puccini had been contacted by the OSI in relation to providing footage, including of Mr Willacy’s interview with Josh, to the OSI. He also knew Mr Willacy had been in “serial” discussions with the OSI “in relation to various special forces matters but including November Platoon, and he said they were asking about Heston Russell, but I didn’t have the belief that Heston Russell personally was being criminally investigated”: T544.14–18.

188    Secondly, he thought the allegations made by Josh were against November Platoon: T481.22–25; T482.1–3, 14–17: T483.18–22. Furthermore, having read the October Article and the draft of the November Article, he was impressed by Josh’s willingness to “put his face behind the allegation”, seeing this as a “marker, in my experience, of … somebody who lends more credibility to their account”: T486.9–12.

189    Thirdly, he considered the FOI Response and formed the view that although only three of four categories requested specifically referred to November Platoon, he considered all categories were relevant to any investigation of November Platoon. He gleaned from the reasons for decision that there was a “current or pending investigation”, and that such an investigation would not be on foot unless the OSI considered there was a reasonable basis to suspect there had been a possible breach of the law. Reasonable suspicion is, in his view, a “prerequisite” for devoting resources to an investigative pursuit: T498.29–37. He also inferred it was a criminal investigation. He accepted, however, that if he had not had this understanding of the FOI Response, he would not have believed the story was in the public interest: T571.1–9.

190    I should set out here several aspects of Mr Robertson’s evidence in cross-examination.

191    First, Mr Robertson intended to allege that November Platoon was the subject of the Helicopter Allegation and was under investigation for that killing: T495.39–46; T496.1–5. Secondly, he had no awareness Josh had placed caveats on his account owing to “fuzzy” memory and said he would have regarded this as relevant to his assessment of whether to publish the allegation: T488.35–489.40. Thirdly, assuming Josh never directly implicated the 2nd Commando Regiment, Mr Robertson told the Court he may not have put his name to “Josh told ABC Investigations that his team was providing aerial covering fire for the Australian soldiers of 2nd Commando Regiment”: T494.15–22. Fourthly, and similarly, he would not have referred to the commandos if Josh had referred only to Australian soldiers, unless it was “inescapable that it was the commandos”: T494.39–43. Fifthly, he did not know whether Mr Russell was the subject of an active criminal investigation: T566.35–40. Sixthly, he also had no information of any allegation directly against Mr Russell: T566.42–45.

192    On the information before him, Mr Robertson amended Mr Willacy’s draft to simplify and strengthen the lead. Mr Willacy’s draft emphasised that Defence had:

refused to release audio recordings and reports relating to the conduct of an Australian Commando platoon in Afghanistan in 2012, saying to do so would compromise an ongoing investigation and prejudice any possible trial.

193    Mr Robertson changed the focus slightly such that primary focus was placed on the existence of an active criminal investigation rather than the refusal of the FOI Application; Mr Willacy agreed. He also recommended Mr Robertson seek comment from Mr Russell and speak to Ms Puccini and ABC Legal.

194    Mr Robertson expressed these views to Ms Puccini and ventilated queries as to whether Mr Russell should be contacted. Ms Puccini advised he should be contacted because he had previously criticised the ABC’s coverage in the media. Before doing so, Mr Robertson conducted internet searches as to Mr Russell’s response to the October Article so that he could include Mr Russell’s recently publicised position.

195    Mr Robertson’s searches revealed Mr Russell’s position was to deny the allegations, and he included this in the draft: “Heston Russell later said he was present on operations and denied that his soldiers had ever harmed a prisoner, calling on the ABC to retract the story and apologise”.

196    Shortly before midday, Mr Willacy received the following response to his request to the OSI, which he forwarded to Mr Robertson and Ms Puccini: “Consistent with your earlier enquiry, we do not comment on specific allegations or investigations”. Mr Robertson included it in the current draft.

197    In the mid-morning, Mr Robertson had phone conversations with both Mr Willacy and Ms Puccini, before sending proposed radio and online stories to both around midday (and sending the online story to Mr Dan Harrison, a digital editor). Mr Willacy proposed certain amendments to the radio story. Meanwhile, the current draft article was “referred up”, including to Messrs Lyons and Maley. Notably, Ms Puccini circulated the draft with the following covering email:

Can you please have a look at this ASAP? Sally Jackson wants to release a statement with the story embedded once it’s published

We will go to Heston Russell once you have approved

(Emphasis added).

198    A short time later, Mr Lyons responded, “I’m good with this story all”, which Mr Robertson believed constituted his approval of the publication of the story.

199    Before 1pm, Mr Robertson emailed Ms Puccini and Mr Harrison asking whether they had any last minute views as to what he should ask Mr Russell. Ms Puccini responded with the following admonition:

No just keep it straight

Is he aware of an investigation

Has he been contacted by investigators

To his knowledge has anyone at November platform [sic] been contacted

200    During the day Mr Willacy was copied in on a number of internal emails regarding the November Article but gave evidence he did not read them until much later in the day, and that he did not respond to them. None of the emails were directed to him for response and both he and Mr Robertson considered Mr Robertson had carriage of the story. Mr Robertson accepted he took responsibility for the allegations in the November Article because the by-line bore his name only: T511.29–39.

C.6.3    Mr Robertson’s Contact with Mr Russell

201    At around 1pm, Mr Robertson called Mr Russell for comment. Mr Russell gave evidence he was “disturbed” by the fact Mr Robertson recorded the conversation without his consent or knowledge (this evidence was given notwithstanding Mr Russell secretly recorded people without their knowledge, and then released and used those recordings for his own benefit (T79.42–80.26; T81.25–44)). He also advanced a submission Mr Robertson violated certain ABC codes, policies, and guidance notes in recording the conversation. But Mr Robertson did not contravene the policies set out in Mr Russell’s written submissions (at [172A]), which are directed towards obtaining material by deception, not to recording lawfully (given Mr Robertson’s location in Queensland) as a substitute to notetaking.

202    Mr Russell said he would only participate in a live, unedited interview and queried why the ABC had not yet responded to his First Complaint. While Mr Robertson was aware of Mr Russell’s concerns about the October Article because of the Telegraph Article and other press appearances, at no time prior to the above conversation was Mr Robertson aware that an editorial complaint had been made about the October Article. He informed Mr Russell it was “out of his hands”. Mr Robertson asked if Mr Russell was aware of a criminal investigation into November Platoon; if he was aware of any members of November Platoon being contacted by investigators; and whether he had been contacted by investigators. He answered no on each occasion and, when asked if he had anything further to add, noted he was looking forward to the ABC conducting a review of the October Article and issuing an apology.

203    As is evident, Mr Robertson did not stray from the questions proposed by Ms Puccini. Importantly, because of Ms Puccini’s email, he did not put to Mr Russell that the ABC would be re-publishing the substance of the October Article: T547.11–16. By failing to do so, he deprived Mr Russell of a specific opportunity to state a position in defence of himself and November Platoon. Indeed, Mr Robertson properly accepted it was an obvious decision as a matter of fairness to speak to Mr Russell about what was about to be published and to record a response to the allegations that were going to be made in the article: T533.44–534.2. He accepted that the story, which was already drafted, went well beyond his questions: T553.43–47. If a genuine response was being sought, Mr Russell should not have been left to guess that Mr Robertson intended to state, as fact, that a criminal investigation was underway and that he intended restate the allegations from the October Article and link them to his question about a criminal investigation.

204    After the call, Mr Robertson amended the draft article to include a comment from Mr Russell as follows:

When contacted by the ABC, Heston Russell said he was not aware of the investigation, nor of investigators contacting any member of his former platoon. ~I'm looking forward to the ABC conducting their internal review of their November Platoon I marine heard a 'pop' story and an apology being issued," he said.

205    At about 1:15pm, Mr Robertson sent a copy of the revised draft to Ms Puccini and Mr Harrison, copying in Mr Willacy. Ms Puccini responded at 1:23pm: “Thanks. I’m good to publish”.

206    But Ms Puccini was dissatisfied upon further reflection. As noted above, and reflecting the defensiveness within ABC Investigations, her perception of being part of a culture war and the suspicions in relation to Mr Russell, at 1:43pm she sent a further email to Messrs Robertson and Harrison as follows:

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?

207    Mr Robertson wrote back in agreement a minute later: “I’m totally ok with not giving him air to do that because it was a less than relevant aside at the end”. He described his rationale as wanting to avoid equipping Mr Russell with a “big stick” with an “ABC logo on it to hit us”: T561.15–17. Further, he considered it sufficient to feature an unreserved denial by Mr Russell (T545.41–42); he asked Mr Russell if there was “anything else” he would like to say, to which Mr Russell said nothing, but Mr Robertson considered it appropriate to include a summary of the denial: T546.1–11.

208    Mr Robertson did not think it was necessary to include in the November Article that the October Article was the subject of an editorial complaint; he does not, as a journalist, feel obliged to explain precisely the story that will result to those he questions (T548.1–6), but nonetheless thought his explicit questions as to a criminal investigation into November Platoon were “a fairly large cue about what I’m looking at”: T546.23.

C.6.4    “Digital” Editing and Final Steps

209    The baton then passed to Mr Harrison as digital editor.

210    At 1:57pm, Mr Harrison emailed Mr Robertson and Ms Puccini (copying in Mr Willacy) with a first draft of the digital story. In his role as digital producer, Mr Harrison was responsible for drafting the Key Points and adding the internal story hyperlinks and related stories hyperlinks at the bottom of the page. He also, consistently with Mr Robertson and Ms Puccini’s views, removed the quote from Mr Russell as to his demand for an apology.

211    Mr Harrison had inserted a bullet point in the Key Points which stated: “The ABC last year reported a US Marine’s allegations that the November platoon killed an Afghan prisoner after being told he would not fit on an aircraft”. This reflected his (entirely understandable) reading that it seemed to him to be “central to the November Article”.

212    Mr Harrison then emailed the draft to Mr Robertson and Ms Puccini with his changes, copying in Mr Willacy. Mr Robertson read the Key Points and did not alter them, accepting that the “distinction between Josh’s claims and the November Platoon in the October Article may have been lost on [him] at the time”.

213    Meanwhile, Mr Willacy was enjoying his day off, out with mates at a hotel (T367.31–32; T404.30; T404.42–43), and Ms Puccini was at a Walkley Award judging event. Ms Puccini did not read the article properly once it reached the digital editing stage, and so had not seen the final product, including the Key Points, telling the Court it did not come to her attention until raised by Ms McLiesh in the complaints process: T765.10–21. She admitted she “made an error” in failing to review the final draft closely: T767.13–15.

214    The final step taken before publication was an email exchange between Mr Robertson and ABC Legal.

215    The November Article was published at 3:24pm. It included links to the October Article in three places.

216    The following mobile alerts were published, “The Defence Department has confirmed a platoon accused of unlawfully killing an Afghan prisoner is now the subject of a criminal investigation” and “An Australian platoon accused of unlawfully killing an Afghan prisoner is now the subject of a criminal investigation, the Defence Department says”. The following “teaser titles” were used across the ABC’s online platforms:

(1)    “Defence confirms active criminal investigation into conduct of Australian Commando platoon in Afghanistan”;

(2)    “Australian Commando platoon’s conduct in Afghanistan under criminal investigation, Defence confirms”;

(3)    “Australian platoon accused of unlawfully killing Afghan prisoner the subject of criminal investigation, Defence confirms”; and

(4)    “Platoon that was accused of killing Afghan prisoner to save space on aircraft now under criminal investigation, Defence confirms”.

217    Within minutes of publication, Mr Robertson sent Mr Willacy a text message, “The eagle has landed”, along with a link to the published article. Mr Robertson gave evidence he was not consciously referring to the popular Jack Higgin’s novel or 1976 film telling the story of a fictitious German attempt to assassinate the Prime Minister during a visit to Norfolk, but rather, simply intended to indicate to Mr Willacy that “it has happened, it has been done”: T563.35. Messrs Robertson and Willacy and Ms Puccini also tweeted the November Article almost immediately. Other ABC employees also tweeted about it.

218    Later that day, the ABC published a self-congratulatory press release, reminiscent of that published in the wake of the Telegraph Article:

Stories about alleged war crimes can be deeply distressing for everyone involved, but the conduct of Australian forces, particularly in combat situations, is of crucial concern to all Australians. It’s the role and responsibility of the media to report these matters of vital public interest unflinchingly and fairly.

A complaint regarding the October 2020 story “US marine says Australian special forces soldiers made ‘deliberate decision to break the rules of war” is being investigated by the ABC’s Audience & Consumer Affairs unit.

Before accepting the complaint, A&CA initially sought further information about it, as the usual window to consider editorial complaints is within six weeks of publication and this complaint was received almost a year after the story was published.

The story was the result of extensive work over two months, including multiple interviews with the key source, who stands by his account.

We do not comment in detail on our war crimes stories outside our careful reporting, as that has the potential to jeopardise confidential sources – people who themselves are or were members of the military – and adversely impact sensitive and important investigations.

Mark Willacy has committed more than two years to comprehensively researching and investigating stories about allegations of serious misconduct by Australian special forces in Afghanistan, including the findings of the Brereton Report, which found evidence of 39 unlawful killings of prisoners and civilians by, or at the instruction of, members of the Australian special forces, most notably the SAS.

Willacy is one of Australia’s best and most highly-awarded journalists. The issues investigated in his reporting are highly newsworthy and represent matters of public interest worthy of examination.

Willacy’s reporting has been based on concerns raised from within the ranks of the elite unit by serving and former members, SAS operators, support staff and intelligence officers.

Stories he has produced have been followed up by the Brereton Inquiry and sparked a war crimes investigation by the AFP. At all times Defence has been provided with an opportunity to respond to the issues raised in the reporting …

219    Pausing here, it is worth highlighting Mr Willacy’s repeated assertions (including to the OSI) that he had investigated the substance of the October Article for “months”. This is less than accurate, yet this comment was repeatedly deployed to add rigour to Mr Willacy’s reporting. His evidence initially was that he investigated the allegations for three months, including sending “dozens of emails” over 24 separate dates (T209.8–12), then it was that the work occurred “over three months” (T304.25–28), but then it was accepted that he did not spend even close to 40 days on it but “was working on it over the period”: T349.30–350.11. Indeed, he also gave evidence he was off work in August and September 2021 to conduct work on Rogue Forces.

C.7    The Television and Radio Broadcasts

220    Shortly before 4pm, Mr Robertson was asked by other ABC staff whether he was available to appear on ABC News in relation to the November Article. He agreed to appear and provided questions to the television team for the purpose of the programme. The Television Broadcast aired at around 5pm and was made available for later viewing.

221    The Radio Broadcast was also published around the country and made available for later listening.

C.8    Mr Russell’s Response

222    Although the events following initial publication are directly relevant to the defence only as they relate to continuing publication, they are apparently relied upon by Mr Russell as shedding some light on the reasonableness of contemporaneous belief that publication was in the public interest. Hence, I will deal with them in this section of my reasons although, as will be seen, these events, to the extent they are relevant, relate far more to issues of the extent and aggravation of damage.

223    In any event, on the day of publication, Mr Russell emailed Mr David Anderson, Managing Director of the ABC, along with Mr Willacy, the ABC Board, Mr Gaven Morris, and Mr Craig McMurtrie, “volunteer[ing]” to conduct a live interview with ABC. He did not receive a response, although the email was discussed internally and came to the attention of each of Messrs Willacy and Robertson and Ms Puccini.

224    On 23 November 2021, Mr Russell published a YouTube video and a statement, raising an issue as to the presence of November Platoon in Afghanistan at the time the events the subject of the Helicopter Allegation were said to have taken place:

The fact is that November Platoon was not deployed to Afghanistan until the middle of July 2012 ... November Platoon did not commence outside the wire operations in Afghanistan until August 2012 … November Platoon did not even conduct a mission into or enter Helmand Province until September 2012. Nearly two months after the alleged incident was supposed to have taken place.

C.9    The Amendment of the November Article

225    Upon hearing of Mr Russell’s response, Ms Puccini understandably asked Mr Willacy whether Mr Russell’s version of events impacted upon the November Article. Mr Willacy said it did not, but that the article should be updated to reflect that there were categories of the FOI Application directed at a wider date range (including one limb reflecting the entire 2012 calendar year). This was done on 23 November, and an editor’s note was also added to explain the change. Mr Willacy maintained, in his oral evidence, that he did not believe the November Article was structured in such a way as to accuse November Platoon: T286.18–287.19; T306.12–13.

226    Mr Russell’s position is that the amendment and note were disingenuous because the first two bullet points of the FOI Application concerned June and July 2012, while the third did not mention November Platoon at all, and was a claim for all communications between the Defence and DEA from 1 January to 31 August 2012, unlimited by topic. The fourth bullet point sought all complaints or disciplinary action against November Platoon for 2012. Mr Willacy knew that Josh had repeatedly said that the incident occurred in June or July 2012, and that it was at the beginning of his deployment, which started in May, and once said it was perhaps late July or early August: T183.11–15; T247.16–22; T423.14–17.

C.10    The Telegraph Article

227    On 24 November, Mr Charles Miranda of The Daily Telegraph published an article headlined, “Defence fires back at ABC over war crimes probe”, setting out comments from Defence including that, in direct opposition to the headline of the November Article, “Defence has not confirmed there is a current criminal investigation involving November Platoon in Afghanistan in 2012” and “Defence is not currently conducting an investigation into this matter.”

228    Notwithstanding these public statements by Defence, the headline of the November Article (“Defence confirms…”) was not altered. Mr Willacy sensibly accepted it should have been (T431.16–36) but, for reasons I do not understand, both Mr Robertson and Ms Puccini rejected this proposition: T539.26–28; T577.7–21; T621.1–622.40; T777.36–778.44.

C.11    The December Article

229    On 4 December, the ABC and Mr Robertson published a further article entitled, “Former soldier and Values Party founder Heston Russell sold porn online while fundraising for veterans [sic] charity” (December Article).

230    Importantly for present purposes, the December Article repeated the allegation that Mr Russell led a platoon “accused of killing an Afghan prisoner to save space on aircraft now under criminal investigation, Defence confirms”.

C.12    The Media Watch Programme

231    On 6 December, the ABC broadcast an episode of Media Watch, which partly concerned the October Article, the November Article and the December Article.

232    In the days before this, the Media Watch team asked the following (with respect, prescient) questions of Mr Willacy in relation to the November Article, sending a copy to Ms Puccini:

1.    Why didn’t you interview and quote another US crew member to corroborate Josh’s account?

2.    Why didn’t you speak to November platoon before publishing?

3.    Why didn’t you interview Heston Russell once he outed himself as commander of November platoon?

4.    Do you now think you had enough evidence to publish the Oct 2020 story, based on only the account of one unnamed person present during the alleged execution of a prisoner by November platoon?

233    One might have thought these well directed questions may have resulted in some introspection and mature reflection upon whether the reporting was open to fair and legitimate criticism. After all, these queries were not emanating from sections of the media that could be dismissed by those within ABC Investigations as “bottom feeders” or protagonists in a culture war. But the internal communications in evidence reveal defensiveness and a perception that any questioning of the October Article or November Article undermined the important war reporting of ABC Investigations generally. What happened is that Mr Willacy and Ms Puccini consulted Ms Jackson for “advice” and “perspective”. Ms Jackson then responded as an “ABC spokesperson”. The responses echoed the public comments outlined above, for example: “[t]he story was based on credible information from interviews with multiple sources”; “the ABC spent two months checking his detailed account”; “the Department of Defence rejected an ABC freedom of information request … on the grounds that there was an active investigation”; and “Mark Willacy has been reporting on alleged war crimes for 2 ½ years”.

234    Media Watch advanced a perspective with which I generally agree, describing the amendment to the November Article as “a strange way of acknowledging they screwed up on the dates”, and summarising their criticisms as follows:

should the ABC have asked more questions and found more support for the allegation before publishing?

And from what we’ve seen, the answer is yes.

Mark Willacy and ABC Investigations have a great track record. We certainly don’t believe their story was “garbage” or “fabricated”, as Ben Fordham and Heston Russell have called it.

But we believe the ABC pressed publish too soon and should either have waited or told viewers the allegation of unlawful killing was uncorroborated and might not be true.

It should also have given Heston Russell a right to answer the allegations once he’d made it clear back in October 2020 that he was the November platoon’s commander.

We’ll see what happens to that complaint.

But in the meantime, the ABC Investigations Unit has hit back at Russell by publishing [the December Article] on the weekend …

235    Consistently with the initial reaction to the questions raised, a string of defensive correspondence ensued whereby Mr Willacy and Ms Puccini complained directly to Media Watch and eventually escalated an alleged “serious factual error” to the ACA (despite, at that time, not having a right to do so as ABC staff), complaining that:

[t]he statement Paul Barry made on Media Watch – that we accused November Platoon of killing an unarmed prisoner – was made without qualification, nor context. It was not presented as Paul Barry’s view but rather as a statement of fact. And it is wrong.

236    Mr Willacy and Ms Puccini’s commitment to their construction of the November Article reflects their obduracy in admitting error on this topic. Indeed, as Media Watch’s Mr Timothy Latham correctly put it in response to the complaint, it is “somewhat flummox[ing] … because [the] story is about November Platoon and while [they] may not have explicitly said so, there can be no other conclusion”. I agree.

C.13    The Second Complaint by Mr Russell and the ABC’s Response to the First and Second Complaints

237    Mr Willacy and Ms Puccini submitted their response to the First Complaint in December 2021. It contained several statements, the veracity of at least one of which was dubious, being that Josh’s allegations “were thoroughly vetted over a more than two-month period”. Although it might be correct that “[t]his reporting has also sparked war crimes investigations by the IGADF, the AFP and the Office of Special Investigator”, this does not mean every criticism could be peremptorily rejected. Again, the response reflects the nature of the defensiveness as to admitting any error and its public campaign to maintain the position that: “[n]ot a single story we have published has proved to be incorrect or inaccurate. It has led to the discovery of crimes and alleged perpetrators”.

238    Mr Russell submitted an editorial complaint about the November Article on 16 December 2021 (Second Complaint), which included his expression of frustration that the ABC had reported November Platoon denied ever harming an Afghan prisoner, rather than denying they had been involved in the conduct the subject of the Helicopter Allegation.

239    The ABC amended the November Article and added the following editor’s note on 19 January 2022: “The story was further amended January 19, 2022 to reflect Heston Russell’s denial of the specific allegation made by a US Marine who said Australian commandos shot and killed an Afghan prisoner”.

240    Following correspondence between Ms McLiesh, Ms Puccini and Mr Willacy, on 16 February the ABC sent an email to Mr Russell stating that aspects of his Second Complaint had been addressed before his complaint was received and otherwise finding there was no breach of the ABC’s editorial policies. Ms McLiesh found that the October Article needed a clarification to prevent readers from misinterpreting the article as accusing November Platoon of murder. Ms McLiesh also found that the November Article was in breach of standard 2.1 as to accuracy for errors in characterising Josh’s allegation.

241    Ms McLiesh escalated concerns the November Article was obviously understood as asserting the Helicopter Allegation pertained to November Platoon. Eventually, after apparently having been dragged to face reality, Mr Robertson and Ms Puccini belatedly proposed that the first Key Point be changed to make clear that Josh alleged that Australian commandos, not November Platoon, killed an Afghan prisoner after being told he would not fit on an aircraft.

242    A further change was added to the November Article on 11 March, as follows:

A key point for this story initially stated that a US Marines helicopter crew chief alleged that November platoon killed an Afghan prisoner after being told he would not fit on an aircraft. It was amended on March 11, 2022 to reflect that the marine’s allegation did not identify a particular platoon.

243    Later, on 18 March, the ABC added the following clarification to the October Article:

On October 21, 2020, the ABC published this story comprising two elements: firstly, a US Marine Corps helicopter crew chief’s allegation that Australian soldiers of the 2nd Commando Regiment shot and killed a bound Afghan prisoner after being told he would not fit on the US aircraft coming to pick him up; and secondly, accounts from members of the 2nd Commando Regiment’s Oscar Platoon that the 2nd Commando Regiment’s November Platoon had a bad reputation among the Americans based on their behaviour in the field.

The US Marine Corps helicopter crew chief did not claim that the commandos he alleged killed a prisoner were from November Platoon and nor did the ABC’s story.

244    Negotiations then ensued about the wording of the press release, in which Ms Puccini and Mr Willacy were heavily involved. On 21 March, Ms Jackson sent proposed wording. Ms Puccini suggested the release record that the “error occurred during the production process of the story”; she also argued, misguidedly, that the wording should be changed because “Kristin agreed” that “the only person who misinterpreted it was Heston Russell”.

245    On 16 February, the ABC emailed Mr Russell stating that aspects of his editorial complaint about the November Article had been addressed before his complaint was received and otherwise finding there had been no breach of editorial policies.

246    On 29 March, the ABC provided its decision in relation to the First Complaint, finding it had not breached the ABC’s editorial policies. On the same date, it revised its decision as to the Second Complaint, upholding one aspect of Mr Russell’s complaint, as to the Key Point in the November Article which stated, “The ABC last year reported a US Marine’s allegations that the November platoon killed an Afghan prisoner after being told he would not fit on an aircraft”.

247    The ABC published a press statement about the Second Complaint on 30 March, explaining the amendments made and notes added, and noting:

An aspect of this complaint was subsequently upheld for inaccuracy. ABC News has explained that an error in the story and an alternate headline arose in the production phase for the story. These have been amended and a correction has been published at the bottom of the story.

248    It is a further reflection of the mindset within ABC Investigations, to which I have repeatedly referred, that both Mr Robertson and Mr Willacy thought it appropriate to take to Twitter following publication of the press release, respectively writing, “And, so, ICYMI, my report about defence confirming an active criminal investigation into November platoon stands” and:

Contrary to the spin of Heston Russell and his media fan club, the ABC has confirmed my story on the alleged killing of an Afghan prisoner was fair and accurate. Oh, and its being investigated by war crimes investigators. Much more to come.

C.14    Continuing Publications

249    As noted above. the November Article and Linked Article are continuing publications, in the sense that since the time of their initial publication they have been available online. Publication of these articles occurs each time they are downloaded and comprehended by a reader: Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 (at 606–607 [44] per Gleeson CJ, McHugh, Gummow and Hayne JJ).

D    THE SEPARATE HEARING AND THE IMPUTATIONS

250    The first judgment sets out my reasons for finding the following imputations were conveyed by the impugned publications (adopting an updated nomenclature for the purposes of these reasons):

251    I did not deal with Mr Russell’s “true innuendo” case at the separate hearing, as this aspect of the case was premised upon a factual contention neither evidenced nor agreed pursuant to s 191 of the EA. In the light of my findings as to meaning, little turns on this issue other than (in theory) quantification of any damages. Accordingly, it is addressed below in Section I.

E    SERIOUS HARM

252    By amendment in July 2021, the Defamation Act provides that it is an element of a cause of action for defamation that “the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person”: see s 10A(1) of the Defamation Act; sch 1, cl 6 of the Defamation Amendment Act 2020 (NSW) (Amendment Act). Section 10A is modelled on s 1 of the Defamation Act 2013 (UK) (UK Act), which has been considered by superior courts in the United Kingdom (see, in particular Lachaux v Independent Print Ltd [2020] AC 612 (at 622–624 [10]–[16] per Lord Sumption (with whom Lord Kerr of Tonaghmore, Lord Wilson, Lord Hodge and Lord Briggs JJSC agreed)), and by Brereton JA (with whom Macfarlan JA agreed) in Rader v Haines [2022] NSWCA 198 (at [19]–[29]).

253    In combination with the repeal of the defence of triviality in s 33, s 10A is intended to give effect to the view that courts and respondents in this country were too often burdened with “trivial, spurious and vexatious backyard claims”: New South Wales, Parliamentary Debates, Legislative Assembly, 29 July 2020 (at 3); see also Professor D Rolph, ‘A serious harm threshold for Australian defamation law’ (2022) 51 Australian Bar Review 185 (at 185–186).

254    Whether a publication “has caused, or is likely to cause” serious harm is an objective question, directed to the proven or probable consequences of the publication on the applicant’s reputation. It depends upon “a combination of the inherent tendency of the words and their actual [or probable] impact on those to whom they were communicated”: Lachaux (at 623–624 [14] per Lord Sumption JSC with whom Lord Kerr of Tonaghmore, Lord Wilson, Lord Hodge and Lord Briggs JJSC agreed).

255    Mr Russell relies on numerous particulars of serious harm in relation to the November and Linked Articles and the Television Broadcast (see amended statement of claim (at [12.1]–[12.19], [13.1]–[13.17])), including but not limited to: (a) the reach of publications by the ABC; (b) the ABC’s portrayal of itself as a respected and reliable news source; (c) the seriousness of the imputations carried by the publications; (d) the sharing of the October and November Articles on social media; (e) the ABC’s presentation of Josh as an “eyewitness”, which is said to give credence to the allegations; (f) the ABC’s “stubborn adherence” to the content of the November and Linked Articles despite criticism of them; (g) Mr Russell’s status as the only named and pictured member of November Platoon; (h) the continued publication of the November and Linked Articles; (i) Mr Russell’s receipt of “hateful messages” as a result of the publications; and (j) that Mr Russell, his family and his friends have been approached and spoken to about the allegations in the publications.

256    In the light of my findings as to meaning in the first judgment, the respondents admit serious harm in relation to the initial publication of the November and Linked Articles and the Television Broadcast.

257    For completeness, it is worth recording that the respondents submit that if the Court finds a change of circumstance has occurred resulting in the public interest defence being lost, Mr Russell is required to reprove serious harm in relation to the continuing publication of the November and Linked Articles.

258    For reasons that follow, it is unnecessary to determine this issue. Having noted this, s 10A refers to “the publication of defamatory matter”, being the download and comprehension of a continuing publication online. It seems to me to follow that an applicant must establish that those continuing publications (as distinct from those made earlier) have caused, or are likely to cause, serious harm. Consistently with the position in the United Kingdom, this necessitates reconsideration of serious harm at any later date upon which a public interest defence, which once operated, ceases to apply: see Banks v Cadwalladr [2023] EWCA Civ 219; [2023] 3 WLR 167 (at 179–181 [40]–[51] per Warby LJ, with whom Singh LJ and Victoria P agreed).

F    THE PUBLIC INTEREST DEFENCE: THE LAW

259    In the further amended defence to the amended statement of claim (FADASOC) (at [66]–[67]), the following is pleaded:

66.    The November Article, the Linked Article, the TV Broadcast and the Radio Broadcast each concerns an issue of public interest.

67.    The ABC, Robertson and Willacy reasonably believed that the publication of each of the November Article, the Linked Article, the TV Broadcast and the Radio Broadcast was in the public interest.

260    The respondents rely on lengthy particulars, set out in sch 2 of the FADASOC.

261    A superior court in this country has not, until now, had cause to examine closely s 29A and its cognates, namely: s 139AA of the Civil Wrongs Act 2002 (ACT); s 29A of the Defamation Act 2005 (Qld); s 27A of the Defamation Act 2005 (SA); s 29A of the Defamation Act 2005 (Tas) and s 29A of the Defamation Act 2005 (Vic). It was addressed by Wigney J in Murdoch v Private Media Pty Ltd [2022] FCA 1275 (at [55]–[86]) in the context of a strike-out application, and by Rares J in Barilaro v Google LLC [2022] FCA 650 (at [382]–[390]) on the question of aggravated damages, where the defence was abandoned on the first day of trial.

262    Statutory reforms to create new defences or delimit or otherwise modify existing defences are usefully contextualised by appreciating the antecedent development (or lack of development) of the law that has led to a perceived need for statutory change or refinement. This need for far more than a superficial textual analysis might be thought particularly important in the modern law of defamation because, as Gummow J explained in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 (at 411 [123]), it has not been “open to the development and rationalisation that is acceptable elsewhere in the common law”, and may only be explained in the light of its historical origins: see also P Milmo QC and W V H Rogers (eds), Gatley on Libel and Slander (Sweet & Maxwell Ltd, 9th ed, 1998) (at [1.11]).

263    This section of my reasons, which discusses the defence, is arranged as follows:

F.1    AN OVERVIEW OF SECTION 29A

F.2    THE NEW DEFENCE OF PUBLIC INTEREST: CONCEPTUAL ROOTS AND ANTECEDENTS

F.3    A PRELIMINARY ISSUE: “MATTER” AND “DEFAMATORY MATTER”

F.4    THE PRINCIPLED APPROACH TO THE PUBLIC INTEREST DEFENCE

F.1    An Overview of Section 29A

264    Section 29A was inserted into the Defamation Act on 1 July 2021, by cl 27 of sch 1 of the Amendment Act. It is in the following terms:

29A Defence of publication of matter concerning issue of public interest

(1)    It is a defence to the publication of defamatory matter if the defendant proves that—

(a)    the matter concerns an issue of public interest, and

(b)    the defendant reasonably believed that the publication of the matter was in the public interest.

(2)    In determining whether the defence is established, a court must take into account all of the circumstances of the case.

(3)    Without limiting subsection (2), the court may take into account the following factors to the extent the court considers them applicable in the circumstances—

(a)    the seriousness of any defamatory imputation carried by the matter published,

(b)    the extent to which the matter published distinguishes between suspicions, allegations and proven facts,

(c)    the extent to which the matter published relates to the performance of the public functions or activities of the person,

(d)    whether it was in the public interest in the circumstances for the matter to be published expeditiously,

(e)    the sources of the information in the matter published, including the integrity of the sources,

(f)    if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person’s identity to be kept confidential (including, for example, to comply with an applicable professional code or standard),

(g)    whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person,

(h)    any other steps taken to verify the information in the matter published,

(i)    the importance of freedom of expression in the discussion of issues of public interest.

(4)    Subsection (3) does not—

(a)    require each factor referred to in the subsection to be taken into account, or

(b)    limit the matters that the court may take into account.

(5)    Without affecting the application of section 22 to other defences, the jury (and not the judicial officer) in defamation proceedings tried by jury is to determine whether a defence under this section is established.

265    The defence in s 29A has three elements: (1) the matter concerns an issue of public interest; (2) the publisher believed the publication of the matter was in the public interest; and (3) the publisher’s belief that the publication of the matter was in the public interest was reasonable. Underlying all is the imperative of considering “all of the circumstances of the case” (s 29A(2)).

266    The Explanatory Note to the Defamation Amendment Bill 2020 (NSW) (Explanatory Note) articulates the purpose of s 29A (at 9–11):

[Section 30] set out factors that the court could take into account in deciding the reasonableness of the defendant’s conduct, including the extent to which the matter was in the public interest. These factors were based on the decision of the House of Lords in Reynolds v Times Newspapers Ltd (2001) 2 AC 127 (the Reynolds case) concerning a comparable defence of qualified privilege under the general law of the United Kingdom.

The general law in Australia at the time also recognised a similar, though narrower, defence of qualified privilege. In particular, there was case law that rejected the more liberal defence recognised in the Reynolds case. See, for example, Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1165]–[1170].The defence at general law required a reciprocity of duty and interest, or community of interest, between publisher and recipients. It did not provide a defence for publication to the world at large.

The purpose of the defence under section 30 of the 2005 Act was to create a defence that extended to circumstances where there was not necessarily the reciprocity of duty and interest, or community of interest, between publisher and recipients required by the general law defence. However, section 30 has been largely unsuccessful in liberalising the approach taken by the courts to publications concerning issues that may be of public interest.

…

The purpose of [the factors in s 29A(3)] is to provide some non-exhaustive guidance to the court. Not all, or any, of these factors must be satisfied. They are not intended to operate as a checklist of relevant factors.

Whether the defence is established will be a matter for the jury.

One of the objects of the 2005 Act was to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance. The new defence is aimed at promoting that object.

… [the amendments to s 30] recasts the factors that may be taken into account in determining whether the defence under section 30 is established so as to minimise duplication with the factors for the new public interest defence. As with the new public interest defence, the purpose of these factors is to provide some non-exhaustive guidance to the court. Not all, or any, of these factors must be satisfied. They are not intended to operate as a checklist of relevant factors.

(Emphasis added).

267    The Explanatory Note also states that s 29A is a progeny of the defence of “publication on matter of public interest” in s 4 of the UK Act: New South Wales, Parliamentary Debates, Legislative Assembly, 29 July 2020 (at 2870); Explanatory Note (at 9–11); see also the position in New Zealand in Durie v Gardiner [2018] NZCA 278; [2018] 3 NZLR 131; Lange v Atkinson [2000] 3 NZLR 385; and Canada, in Grant v Torstar Corp [2009] 3 SCR 640.

268    Section 4(1) provides that it is “a defence to an action for defamation” for the defendant to establish that (a) “the statement complained of was, or formed part of, a statement on a matter of public interest”; and (b) “the defendant reasonably believed that publishing the statement complained of was in the public interest”. As with s 29A, the Court is required to have regard to “all the circumstances of the case” (s 4(2)).

269    Section 4 has been considered in a number of cases in the High Court and also by the Court of Appeal and the Supreme Court of the United Kingdom: see, in particular, Economou v de Freitas [2016] EWHC 1853 (QB); Economou v de Freitas [2018] EWCA Civ 2591; Doyle v Smith [2018] EWHC 2935 (QB); Serafin v Malkiewicz [2020] UKSC 23; [2020] 1 WLR 2455; Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB); and Banks v Cadwalladr [2022] EWHC 1417 (QB); [2022] 1 WLR 5236.

270    The decisions are instructive but should be approached with some caution given three differences between the provisions. The first is that s 29A recasts the language used in the UK Act (which refers to “statements on a matter of public interest”) to take into account the language used in the Defamation Act (which refers to the “publication of defamatory matter”). The second is that s 29A specifies certain factors the Court may consider, drawing on factors relevant to the defence derived from Reynolds v Times Newspapers Ltd [2001] 2 AC 127, where s 4 does not specify any matters of potential relevance. Thirdly, two conditions are placed upon the court’s task in s 4 which are not present in s 29A: (1) if the “statement complained of” was or formed part of an accurate and impartial account of a dispute to which the claimant was a party, the court must “disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it” (s 4(3)); and (2) the court must “make such allowance for editorial judgement as it considers appropriate” (s 4(4)).

271    It is trite but important to emphasise that notwithstanding s 29A is drawn from s 4, neither section can be divorced from its distinct domestic context and it would, therefore, be dangerous to import unreservedly interpretations of s 4 into the approach to be taken to s 29A: see, to similar effect, the comments of Lord Wilson (with whom Lord Reed PSC, Lord Briggs, Lady Arden and Lord Kitchin JJSC agreed) in Serafin (at 2469 [53]). Reynolds and the line of cases reflecting it catch the light somewhat differently in the Antipodes. The similarities and differences are best understood with reference to the genealogy of the “public interest” and “reasonableness” in the law of defamation in Australia, to which I now turn.

F.2    The New Defence of Public Interest: Conceptual Roots and Antecedents

272    The right to publish defamatory statements concerning matters of “common convenience and welfare of a modern plural democracy” has long been recognised, borne out primarily through common law and statutory formulations of the defence of qualified privilege: Toogood v Spyring (1834) 1 Cr M & R 181; (1834) 149 ER 1044 (at 1049–50 per Parke B). At common law, the defence requires a respondent to establish three matters: first, the communication was published on a privileged occasion; secondly, the communication was related to the occasion; and thirdly, there was no malice in the publication: Palmer v McGowan (No 5) [2022] FCA 893; (2022) 404 ALR 621 (at 658 [165] per Lee J), citing Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; (2010) 241 CLR 79 (at 96–97 [55] per Heydon J).

273    The “welfare of society” and the “public interest” are closely allied (Bennette v Cohen [2009] NSWCA 60; (2009) Aust Torts Reports 82-002 (at 62,818 per Ipp JA)) but they are not the same. As Griffith CJ clarified in Howe & McClough v Lees (1919) 11 CLR 361 (at 368–369) (see also Bashford v Information Australia (at 386 [54] per McHugh J)), references to the welfare of society in foundational cases concerning qualified privilege should not be taken to mean the person who made the communication was under an obligation to the public and was justified in publishing it to the public at large. Rather, the common convenience and welfare of society should be understood as meaning the interests of society in general require that a communication made to a particular person in particular circumstances should be protected.

274    It is this requirement of reciprocity which generally precludes the applicability of the defence to large audiences, such as are reached by mass media publications: see Palmer v McGowan (at 658 [164]). Indeed, as explained by Gillard AJA in Herald & Weekly Times v Popovic (2003) 9 VR 1 (at 22 [73]), the problem for the media is “at least twofold”:

namely, it has never been the duty of any part of the media to publish for profit untrue facts about a person to the public … and secondly, because the media publishes to so many persons, it is nearly impossible to conclude that every publishee, or the great majority of them, had an interest in receiving the particular information …

275    One can, however, detect signs the defence of qualified privilege might have matured differently, which go some way to explaining the intuition that matters published in the public interest deserve the protection of the law.

276    In his comprehensive history of the defence of qualified privilege, The Making of the Modern Law of Defamation (Hart Publishing, Oxford, 2005), Professor Paul Mitchell traces the notion of “duty” back to the first edition of jurist Thomas Starkie’s Law of Slander, Libel, Scandalum Magnatum and False Rumours, published in 1812. Professor Mitchell also explains Scots writer John Borthwick introduced the concept of “interest” a short time later in his Treatise on the Law of Libel and Slander (Edinburgh, 1826), outlining a new category of privileged communications, being those made to someone “who has an interest in the matter or for whose material benefit it is that the fact should be made known” (at 236).

277    As Professor Mitchell outlines (at 153), these concepts took flight in Starkie’s second edition, A Treatise on the Law of Slander and Libel and incidentally of Malicious Prosecutions (London, 2nd edn, 1830), where Starkie explained (at 292):