Former Soldier Wins Defamation Case Against Australian Public Broadcaster

Judge orders ABC to pay $390,000 to former commando.

Heston Russell speaks to media outside the NSW Federal Court in Sydney, Australia, on Oct. 16, 2023. AAP Image/Bianca De Marchi

Former special forces operative Heston Russell has won his case against the Australian Broadcasting Corporation (ABC) over reported allegations that he executed a prisoner during an operation in Afghanistan.

The public broadcaster has been ordered by the Federal Court of Australia to pay $390,000 (US$246,000) plus interest to Mr. Russell, but noted both parties were not free from criticism, and that the case fell Mr. Russell’s way because the ABC failed to establish the “public interest defence.”

Mr. Russell’s lawyers filed the claim against ABC in September last year, pointing to a November article published on the public broadcaster’s website that alleged he was suspected of committing war crimes by the Department of Defence and the Office of the Special Investigator.

The article was also linked to an earlier piece in October that featured allegations from the U.S. Marines chief—a door gunner providing aerial cover for Australian soldiers.

The articles claimed Mr. Russell’s platoon had shot and killed an unarmed prisoner during a drug raid in Afghanistan in Helmand Province in 2012 because there was no room for him on their helicopter.

The platoon’s leader, Mr. Russell, said the ABC took “artistic licence with the truth” and that he was not deployed in Afghanistan at the time of the alleged killing.

“By reason of the publication and republication of the November Article and Linked Article, Russell has been gravely injured in his character, his personal reputation, and his professional reputation as a former member of the armed forces and has suffered and will continue to suffer substantial hurt, distress, and embarrassment,” according to the statement of claim filed with the Federal Court.

ABC’s Public Interest Defence

The ABC relied on the defence of “public interest,” meaning even if there were inaccuracies in the reporting, it was still worth coverage.

However, Justice Michael Lee on Oct. 16, said that while the principle was “correct” there were far more issues to consider.

“It is important to understand there is not some sliding scale which means the greater the public interest in the matter, the greater the margin for error in what is published,” he wrote in his judgment.

“To embrace this notion would distort and oversimplify the requirement to make a value judgment about whether the impugned publication was in the public interest by reference to all relevant circumstances. The extent of public interest is relevant to making such allowances for editorial judgment as is appropriate but does not overwhelm the evaluative assessment,” he added.

The Epoch Times has contacted the ABC for comment on the judgment.

Judge Dismisses Russell’s Evidence

At the same time, Justice Lee was not convinced Mr. Russell had been substantially hurt by the alleged defamation saying he had embraced the ensuing publicity.

“What is evident is that Mr. Russell was no shrinking violet in drawing attention to himself and the publications in respect of which he makes complaint. He had the social media skills and media contacts to allow him a platform to put across his side of the story,” the judge said.

But Mr. Lee said he did accept evidence from 17 other witnesses on the hurt that Mr. Russell had endured.

The justice said he had not placed any reliance on the former commando’s evidence.

“I am conscious of not making too much of witness demeanour, but even leaving aside the fact he gave false evidence (albeit on a somewhat peripheral matter), Mr. Russell was generally not an impressive witness; he was regularly non-responsive and was unwilling to make concessions he regarded as contrary to his case,” he said.

“All in all, I do not consider it safe to place any reliance upon his evidence.”