Debate on matters of public interest such as alleged war crimes by Australian soldiers should be left "robust and wide-open" without fear of being stifled, the ABC has told a defamation trial.
Ex-commando Heston Russell is suing the national broadcaster over two articles in October 2020 and November 2021 claiming commandos from November Platoon executed an unarmed prisoner during a drug raid in Afghanistan in mid-2012 because there was no room for them on a helicopter.
As leader of that platoon, Mr Russell was named by the ABC. He denies the allegations and is suing for damages saying his feelings were hurt and his reputation ruined.
With the Federal Court previously ruling that the articles contained defamatory statements and throwing out a truth defence, the ABC has pushed forward with a public interest defence.
On Monday, ABC barrister Nicholas Owens SC said there were different ways in which a journalist could look into allegations and act before reporting on them.
“We say free speech and public interest rises well above truth," Mr Owens said.
The barrister quoted from a landmark freedom of the press case from 1964 where a US court found newspapers were protected even when publishing false statements.
“(There is) a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials," Justice William Brennan wrote.
Mr Russell agreed it was in the public interest for the media to report alleged war crimes committed by Australian soldiers, Mr Owens said.
While the ABC argues its journalists had a reasonable belief that what they were reporting on was true at the time, Mr Russell disputes this.
The October 2020 article is based on allegations from a US marine referred to as "Josh" who claimed he was a door gunner in a helicopter giving air support to Australian soldiers when he heard a "pop" over the radio he thought was the execution of the hogtied prisoner.
In the witness box, ABC journalist Mark Willacy said Josh's claims the alleged unlawful killing occurred in June or July 2012 were not credible, instead saying it was "more likely" it and other alleged crimes occurred later during the year.
"I've dealt with dozens of veterans ... and getting dates right is very, very difficult."
He said no serious allegations had been made against the commandos deployed in mid-2012, but that those in a later rotation when Mr Russell and his platoon were there were a "particular problem".
This included one commando, known as Soldier X, who allegedly confessed to his Mormon priest that he had murdered an Afghan prisoner, the court heard.
"It was very bloody in so far as the Australian missions were concerned," Willacy said.
Mr Russell's barrister Sue Chrysanthou SC described the journalist's story as a "shocking breach" of ethics, by reporting murder allegations from someone who wasn't an eyewitness without anyone else to corroborate his claims.
“Naming the Second Commando Regiment as having committed that murder … was an irresponsible and terrible thing to do," she said.
“I don't agree,” Willacy said.
The journalist admitted he made oversights when investigating the allegations, but said he thought Josh was sincere and honest.
As well as affidavits from Australian and US defence force personnel tendered to the court on Friday, Mr Russell received written support from media commentator Alan Jones and Liberal Senator Hollie Hughes.
Evidence on hurt feelings was also given by Katrina Paterson, the mother of Scott Smith, a member of November Platoon who was killed in Afghanistan on October 21, 2012.
The trial in front of Justice Michael Lee continues on Tuesday.
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