[ad_1]
A former special forces commando has told a court he felt “violated” by articles published by the ABC claiming he was involved in the shooting of an unarmed prisoner, before alleging the broadcaster exposed his OnlyFans account in revenge for his complaint.
Heston Russell is suing the ABC and two investigative journalists over stories published in 2020 and 2021 that he claims made it look like he was being investigated for shooting an unarmed prisoner.
On the first day of the trial against the public broadcaster, high-profile defamation barrister Sue Chrysanthou SC, representing Mr Russell, slammed the ABC’s behaviour as “breathtaking in its audacity”, telling the court its case was “absolutely doomed”.
The stories Mr Russell claims defamed him, written and produced by journalists Mark Willacy and Josh Robertson, aired on television, radio and online in October 2020 and more than a year later on November 19, 2021.
Mr Russell was the first witness called to the stand on Friday afternoon where Nicholas Owens SC, representing the ABC, questioned his credibility under cross-examination.
The former special forces soldier denied ever lying to the ABC journalists before he was taken to an unrelated 2021 article penned by Mr Robertson.
The article reported Mr Russell was in a dispute with veteran charity Swiss 8 over money he raised as an OnlyFans creator, telling the company he had raised more than $15,000 but only handing over a third of that amount.
Mr Russell had sent the journalist an invoice which showed $10,000 worth of exercise equipment was delivered to the charity in Coogee, Sydney, the court was told.
When asked by Mr Owens if it was a “genuine” invoice, Mr Russell said: “Yes”.
“Are you aware that if one looks at the PDF document using Adobe software, it’s possible to see whether any changes have been made to a document?” Mr Owens asked Mr Russell.
Mr Owens told the soldier his legal team had examined the document and found changes had been made to it on the day it was sent to Mr Robertson.
Mr Russell admitted to making the changes, but claimed it was the same details on the “final invoice” and he had edited it “to reflect that”.
“There was clearly an agenda set by my former employer and Mr Robertson… to quickly get out this article and have it looked as bad as it could… so I couldn’t find the final invoice,” he said.
He was interrupted by Justice Michael Lee, who asked why Mr Russell told him it was a genuine invoice.
“I was confused by the question and believed it did represent the correct invoice,” he said.
Mr Owens put to Mr Russell that he had created a false document to mislead Mr Robertson, but he denied the claims.
He continued to press: “You told his honor it was a genuine invoice because at that point in time, you didn’t think you’d be caught out”.
Mr Russell denied the suggestion.
“What I put to you Mr Russell, is that you are prepared to lie if you think it will advantage you and you can get away with it,” Mr Owens said.
The soldier replied: “No”.
“VIOLATED”
While answering questions from his own barrister earlier in the day, Mr Russell fought back tears as Ms Chrysanthou questioned how he dealt with the reaction to the articles in November 2021.
“I thought I had done everything that I could by the book, submitting complaints and going through the processes,” Mr Russell said as he fought back tears.
“I literally remember standing there and feeling like the weight of an entire organisation, that I was paying for, everyone in this room pays for, crashing on me and attacking me and what they are doing.
“To then be personally published, implied as a war criminal and doubling down on calling my entire platoon as war criminals.”
Mr Russell said he was outraged by the ABC’s behaviour and his professional career felt “violated” and there had been no “respect” for anyone who complained about the article.
Mr Russell said he had become “numb” to new evidence that supported him.
“You Google November platoon or my name and it causes so much trauma to me, to my soldiers, to their families, to their friends because that’s the digital footprint of our legacy and time in Afghanistan,” he said.
‘SHODDY, UNCORROBORATED, RECKLESS’
In her opening address Ms Chrysanthou said the ABC failed to firm up “shoddy, uncorroborated and reckless” journalism.
The ABC is seeking to rely on a new public interest defence that was introduced in July 2021 in NSW and is being tested for the first time in this case.
“When a serious allegation is made to a journalist by a source it should be critically assessed, it should be tested and corroborated before it is published,” she told the court.
“Shoddy, uncorroborated, reckless reporting is not in anyone’s interest.”
Ms Chrysanthou said in preparing for the trial she has “seen conduct that is directed not to ensuring proper journalism but to protecting bad journalism”.
Conduct includes issuing press releases about the defamation proceedings, which Ms Chrysanthou describes as an “inexcusable abuse of power” by the national broadcaster.
Earlier this year, Justice Michael Lee found 10 defamatory imputations put forward by the national broadcaster were carried following a preliminary hearing in November 2022.
Justice Lee found the most serious meanings were that Mr Russell was involved in the killing, “habitually left ‘fire and bodies’ in his wake” and “knowingly crossed the line of ethical conduct” while serving in Afghanistan.
One of the articles sued upon in the proceedings featured a US Marine helicopter pilot, given the pseudonym “Josh”, who said he was not a witness but heard a “pop” on the radio he believed was a gunshot and was told there were now six prisoners instead of seven.
“Let’s assume there was a gunshot – which is a big assumption -– you have a helicopter in the air, on the ground … it was over a radio,” Ms Chrysanthou said.
“Who’s to say if it was a gunshot, who shot it and why it’s Australians compared to all the other people there?”
The court was told the allegations arose from Josh, who contacted Mr Willacy about his time in Afghanistan working alongside Australian soldiers.
‘PRETTY HAZY’
Ms Chrysanthou read out an email from Josh where he conceded his memory is “pretty hazy” but he wanted to “reinforce the narrative you’re writing about”.
“I’m definitely open to speaking about things through email or otherwise with the obvious caveat being this all happened a long time ago in the midst of constant combat operations where I had very little sleep, where I was constantly working with people from various companies,” Josh told Mr Willacy, Ms Chrysanthou told the court.
“I am not sure I could provide you with useful information,” the email continued.
Ms Chrysanthou said it was “forthright and honest” of Josh to be upfront about his memory.
She said: “It’s one thing to believe a person and publish it … it’s another thing to be told this and not tell the reader that Josh himself has concerns about his own information.”
The court was told Mr Russell called out the article before attempting to have his concerns addressed through the ABC’s editorial complaints process.
But the ABC responded with “quite a malignant approach” by Mr Willacy, according to Ms Chrysanthou, with “malice” escalating because of the public reaction to the article.
Ms Chrysanthou slammed the ABC for an “inexcusable abuse of power” by publishing “false articles and using their PR machine to issue press releases about it”.
“It is so unusual and so improper that it’s really revealed conduct that is quite breathtaking in its audacity,” she said.
“We will be submitting … it was rogue.”
ABC BACKFLIP
The trial comes just two weeks after the ABC called an emergency hearing in the Federal Court where they declared they would be “withdrawing the public interest defence” before sensationally backflipping on the decision despite admitting Mr Russell was entitled to judgment.
A public interest defence is aimed at protecting investigative journalism and relates to publications which concern an “issue of public interest” where the defendant “reasonably believed the publication of the matter” was in the interest of the public.
During the trial, the ABC will need to persuade the court its journalists genuinely believed the publication of the articles were in the public interest.
In March 2022, the national broadcaster quietly updated and published corrections on two stories.
NCA NewsWire understands the costs of the case have already exceeded $1 million.
The ABC initially sought to rely on a truth defence that would include the most severe meaning Justice Lee found was conveyed, that Mr Russell was involved in the killing of the soldier.
But the defence was dropped in full in May after Ms Chrysanthou said it was “wholly unmeritorious and hopeless”. The judge struck out its supporting particulars.
While the articles contained a denial from Mr Russell, he claims the use of his name and photo implied he was involved in the death of an Afghan prisoner.
In his statement of claim, Mr Russell said an ABC article published in 2021 alleged soldiers from the November commando platoon were being investigated over their actions in Afghanistan in 2012.
It was claimed in the articles the platoon murdered a prisoner who was unarmed and handcuffed because there was no room on the extraction flight, according to the statement of claim.
Mr Russell is asking for the ABC to remove the article, pay aggravated damages on top of court costs, and orders stopping them from repeating the allegations.
The hearing, which is expected to go for five days, continues.
[ad_2]
