Federal court hears closing submissions in defamation case brought by Russell against the public broadcaster

Australian Associated PressTue 29 Aug 2023 15.07 AESTLast modified on Tue 29 Aug 2023 15.09 AEST

Heston Russell, pictured outside the federal court, denies the allegations in two ABC articles and is suing for damages, saying his reputation was ruined and his feelings hurt by the reporting. Photograph: Bianca de Marchi/AAP

The former army commando Heston Russell enjoyed an outstanding reputation before the ABC seriously defamed him to stroke its own ego, his barrister has told a court.

Russell is suing the national broadcaster over two articles, from October 2020 and November 2021, that claimed commandos from the platoon he led executed an unarmed prisoner in Afghanistan in mid-2012 because there was no room on a helicopter.

The second ABC article reported an investigation into the platoon had been confirmed by the defence department when it had not been and linked to the earlier article.

Russell was named as platoon leader by the broadcaster.

He denies the allegations and is suing for damages, saying his reputation was ruined and his feelings hurt by the reporting.

His barrister, Sue Chrysanthou SC, told the federal court on Tuesday the ABC seriously harmed Russell’s public standing and had admitted doing so.

The articles by journalists Mark Willacy and Josh Robertson were wrong, she said, and the ABC could not prove the allegations, forcing it to rely on a defence that publishing them was in the public interest.

Russell acknowledged the publications concerned issues of public interest, but Chrysanthou said that was not the reason later articles went online.

“There was a significant body of evidence which demonstrates these articles were a PR exercise,” she said.

The article claiming defence had confirmed an investigation into the platoon’s conduct was based on a freedom of information request being denied.

That story was merely “ego protection” for Willacy after criticism from rival media outlets he described as “bottom feeders”, Chrysanthou said.

In addition, nobody could explain who was responsible for a press release accompanying the later article and why it was issued, she said.skip past newsletter promotion

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ABC Investigations put itself forward as an “elite group of award-winning journalists” and knew its reporting would be treated as credible, requiring it to be held to a higher standard, the court heard.

“There is no public interest in being lied to by the ABC about a serious allegation of murder in relation to a group of soldiers who were not afforded the opportunity to even respond,” Chrysanthou said.

Closing addresses in the trial continue before Justice Michael Lee.

He said the awarding of damages could depend on whether he found Russell lied in his evidence and whether his claim of hurt feelings was believed.

“I have significant reservations about accepting his evidence on any matter that is contested,” Lee said.Topics

ABC journalist ‘lied onstage at Walkleys’, Heston Russell defamation case hears

‘Self-delusion and utter hypocrisy’: ABC blasted in Heston Russell case

By Michaela Whitbourn

August 29, 2023 — 12.53pm

Former commando Heston Russell’s barrister has accused the ABC of “self-delusion and utter hypocrisy” in defending his defamation suit over articles suggesting he was involved in executing an unarmed prisoner in Afghanistan.

The Federal Court defamation trial entered its final stages on Tuesday as Sue Chrysanthou, SC, acting for Russell, delivered closing submissions urging Justice Michael Lee to reject the ABC’s public interest defence and rule in Russell’s favour.

Chrysanthou said the parties’ written submissions were further apart than “ships in the night”.

“There’s one ship, call it Heston, that is gliding over the seas of legal principle and the ocean of actual evidence … and then there’s the ABC ship, that is stuck on the rocks of complete self-delusion, utter hypocrisy and a misstatement of the relevant law,” she said.

Russell is suing the ABC over two articles in October 2020 and November 2021 that Lee has previously ruled conveyed a series of six defamatory meanings when read together. They include that Russell, as commander of the November platoon, “was involved in shooting and killing an Afghan prisoner” in mid-2012. He is also suing over a related television broadcast.

The ABC is seeking to rely on a new public interest defence.

Both articles reported that a former US marine, given the pseudonym Josh, had alleged soldiers from Australia’s 2nd commando regiment shot dead an Afghan prisoner in 2012 after the soldiers were told they had one too many prisoners to fit on a US aircraft.

The first article included comments from unnamed commandos from the regiment’s Oscar platoon suggesting their comrades from November platoon had a bad reputation among Americans. Russell was commander of November platoon during its deployment to Afghanistan in 2012.

ABC investigations journalist Mark Willacy denied during the trial that he intended to point the finger at November platoon, saying that he believed “it was more likely to be them [than Oscar platoon], but I had no evidence of that”.

Willacy agreed during his evidence that Josh did not say the 2nd commando regiment was responsible for the alleged killing. He said Josh “did say they were Australian special forces” and Willacy’s own research led him to believe that “it could only be the two commando unit that he worked with”.

Josh, described by the ABC as a helicopter crew chief, did not see the alleged killing but said he heard a “pop” over the radio, and Australian soldiers advised there were now six prisoners instead of seven.

Lee referred during Monday’s hearing to Russell’s “somewhat quixotic approach” during an interview with Peter van Onselen on Ten’s The Sunday Project in November 2020, in which he responded to the ABC’s first article.

Asked by van Onselen whether “you say that no prisoner was ever summarily executed that you saw”, Russell 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 that was the execution, and that never happened.”

Defamation

Heston Russell grilled in court over ‘fake’ document given to ABC

Lee put to Chrysanthou: “That seems to me a very odd response. Now, to any rational person, isn’t that apt to give rise to suspicions?”

“No, your Honour, only because the nature of what the soldiers were sent to do by our government, whether it be right or wrong … involved killing people and for my client to be careful to only address himself [to that allegation was appropriate],” Chrysanthou said.

Lee said “all I’m saying is I don’t think you can say it’s irrational … for people to harbour a suspicion.”

“But a suspicion of what?” Chrysanthou replied. “The notion that there was suspicion about my client or the platoon or something that the soldiers did in Afghanistan unconnected to that didn’t justify the article that was published.”

Lee said it was important for the purposes of the public interest defence for him to understand what the ABC journalists “subjectively believed” at the time of the November 2021 article.

“Yes, but the uncontradicted evidence from each of them is none of them had a subjective belief that Mr Russell was the subject of … investigation personally, nor that he was under suspicion,” Chrysanthou replied.

The trial continues.

Comment by Nelle- another disgraceful act by the gutter press, this time the ABC-these continual malicious swipes against our SAS heroes is reprehensible-they have no evidence just as all the attacks on Cardinal Pell, Christian Porter, Craig Mclachlan- hurtful words and lying allegations that ruined their reputations and their careers- journalists like Wallacy and Robertson need to have their careers restricted -the ABC has a number of lying journalists including the infamous Louise Milligan who with her scandalous allegations against Cardinal Pell which were proven to be false was rewarded for her treachery while his reputation and good name were ruined but in retrospect she has had to take a back seat after her attack on Andrew Laming ended in a payout from the ABC but of course she didn’t pay it, the taxpayer did- sadly as in many cases heard in a hostile court with a hostile judge who obviously believes the ABC -why is that these days our court system has crossed the bridge to Wokeland – but be warned as in the that case of Ben Roberts-Smith we won’t accept your scandalous attacks and will continue to support our soldiers -the gutter press may think attacking our SAS boys is the way to go but eventually will come to grief as all lies will come back to bite them because truth will always out, One wonders why these dimwits would be attacking the men who protect us and who I would hate to depend on to protect me or my country as they would be incapable