ABC’s attempt to win defamation case against Heston Russell, ex-army commando, is quashed

A judge sensationally struck down ABC’s third defense of the truth as the broadcaster battles allegations that it defamed a former army commando by suggesting he was under investigation for war crimes in Afghanistan.

Heston Russell is suing ABC over stories published in late 2021 that claimed an Australian platoon was under investigation for its operations in the Middle East.

The television report and two online articles, which featured Russell’s name and images of him, included allegations by a US Marine that he indirectly witnessed Australian soldiers execute a prisoner by tying up pigs in 2012.

In February, the Federal Court found that Russell had been defamed and ruled that the matter should proceed to a hearing to determine whether ABC and its two journalists, Mark Willacy and Josh Robertson, had any defense available.

Now, the commando has scored another victory in its battle of David and Goliath after Judge Michael Lee on Friday struck down the station’s defense of truth, a decision made if the material presented fails to reveal a reasonable cause of action or defending.

Representing ABC, Nicholas Owens told the court that the extent of Russell’s alleged involvement in the alleged murder was his role as commanding officer in the Qarabagh mission.

“The only way we put it is that his involvement was based on his legal and factual status with effective command and control over the troops, (over) the command that committed the assassination on that mission,” Owens said.

‘If that falls outside of what your honor meant by ‘involved’, we have to withdraw it.

“When we say that Mr. Russell was present, we mean that he was present at the mission: he was the commanding officer of this mission on the ground. That does not mean that he was physically close to all members of the platoon during the mission.

Russell’s lawyer, Sue Chrysanthou, said the defense was “completely useless”.

“In my 20 years of experience as a defamation lawyer, this is the worst defense I have ever seen,” Ms Chrysanthou told the court.

‘The case is so desperate that even at its height the details are unable to prove the truth in defense of the charges.’

Ms Chrysanthou criticized ABC for its conduct, saying “untenable defences” were exacerbating court costs while adequate pleadings were not made to support the “serious” allegations against her client.

“The client as an individual is bringing an expensive action… It’s unfair to go up against a body that has no cost constraints,” he said.

In February, the Federal Court found that Russell had been defamed by late 2021 articles published by ABC that implied he was involved in the alleged murder of an Afghan prisoner.

‘The cost incurred when the case is so hopeless exceeds the costs of the interlocutory hearing.’

Judge Lee told Mr Owens that ‘participation’ must at a minimum mean ‘accepting the conduct by passively observing…not simply being the person in charge’.

It removed parts of ABC’s defense on the basis of its misinterpretation of its meaning of ‘participation’.

The judge ordered that ABC deliver a fourth version of its defense with submissions by April 20 and that the broadcaster pay Mr. Russell’s discarded court costs.

Last month, Judge Lee ruled that the articles implied that Mr Russell was the subject of an active criminal investigation by the Office of the Special Investigator and was reasonably suspected of involvement in war crimes.

It also found that the articles implied that Mr. Russell habitually and willfully crossed the line of ethical conduct and behaved so immorally that US forces refused to work with him.

However, Judge Lee found that the articles did not imply that Mr. Russell was the commando responsible for shooting the bound prisoner or that he was about to face unlawful homicide charges.

Russell will have a chance to criticize the new defense before April 23. The matter will return to court on April 24.