An ABC journalist says he reported a platoon of Australian commandos was under investigation for its conduct in Afghanistan because his interpretation of a freedom of information request's rejection made it more probable than not.
ABC Investigations journalist Josh Robertson told the Federal Court on Thursday the request for documents, rejected to avoid prejudicing a potential investigation, effectively confirmed an investigation was underway.
Robertson said he considered other possibilities aside from a criminal investigation.
"It seemed overwhelmingly more probable that my interpretation was correct," he said.
Ex-commando Heston Russell is suing the national broadcaster over two articles in October 2020 and November 2021 claiming commandos from the November platoon he led executed an unarmed prisoner in Afghanistan in mid-2012 because there was no room on a helicopter.
As platoon leader, Mr Russell was identified. He denies the allegations and is suing for damages saying his feelings were hurt and his reputation ruined.
The ABC has argued public interest after the Federal Court ruled the articles contained defamatory statements and threw out a truth defence.
Robertson's name appears alone on the November 2021 article, based on a draft by Mark Willacy and excerpting large portions from his earlier report in October 2020.
Robertson said it was not unusual for him to take the story when the freedom of information (FOI) response came while Willacy was off, and their boss Jo Puccini "flagged that she'd like the story done today".
Puccini had been contacted by investigators seeking a "highlight reel" of Australian commandos in Afghanistan, and Willacy said investigators were asking him questions too, Robertson said, bolstering his belief.
Willacy suggested Robertson contact Mr Russell, which he also discussed with Puccini.
"Heston Russell had made very clear, very publicly and repeatedly that he was speaking up for his platoon," Robertson said.
Puccini told Robertson to "keep it straight" when interviewing Mr Russell, who would only agree to a live and unedited interview and asked why the broadcaster had not responded to his editorial complaint.
He said he had not been contacted about any investigation, and was unaware if platoon members had been, adding that he was looking forward to the outcome of an ABC editorial review and the apology he presumed would follow.
Robertson, describing it as "generous", included those details in his draft, but about 20 minutes after being "good to publish", Puccini questioned whether the presumed apology needed reporting.
Mr Russell had already “had a huge platform on (Sydney commercial radio station) 2GB”.
His barrister Sue Chrysanthou on Thursday said that was a year earlier, and "utterly irrelevant" to whether it was fair to include his response in November 2021.
Robertson said a passage paraphrasing Mr Russell's denial the helicopter incident ever happened was amended, not “fixed”, after the former commando took exception.
He said he summarised Mr Russell's "position of denial" and after asking whether a question of semantics was "seriously his complaint" Robertson was taken through a list.
Robertson's "sloppy" work got the story, concocted to lionise the ABC's reporting by linking it to an investigation, wrongly, Ms Chrysanthou said.
He did not even bother to ask Mr Russell about the allegation, then "in an underhanded, sneaky way," cobbled together denials to concoct a story seeking to defame him and his platoon.
Robertson also sought to "malign my client and November platoon" in the witness box, suggesting the alleged investigation was ongoing, as Willacy had done on Wednesday, Ms Chrysanthou said.
"Do you understand some of the list of his complaints now?"
"I understood them previously but I do not agree with them," Robertson said.
The trial continues.
