Herston Russell – ABC’s third truth defence was struck out by a judge on Friday.
By TITA SMITH FOR DAILY MAIL AUSTRALIA
ABC’s third attempt to win costly court battle against ex-army commando is struck out by the judge after the soldier sued over war crime claims: ‘Worst defence I’ve ever seen’ ”
A judge has sensationally struck out the ABC’s third truth defence as the broadcaster fights allegations it defamed an ex-army commando by implying he was under investigation for war crimes in Afghanistan.
Heston Russell is suing the ABC over stories published in late 2021 that claimed an Australian platoon was under investigation over its operations in the Middle East.
The TV report and two online articles, which featured Mr Russell’s name and images of him, included allegations from a US marine he indirectly witnessed Australian soldiers execute a hogtied prisoner in 2012.
In February, the Federal Court found Mr Russell had been defamed and ruled the matter should proceed to hearing to determine whether there were any defences available to the ABC and its two journalists, Mark Willacy and Josh Robertson. Now, the commando has had another win in his David and Goliath battle after Justice Michael Lee on Friday struck out the broadcaster’s truth defence – a decision which is made if the material tendered discloses no reasonable cause of action or defence.
Representing the ABC, Nicholas Owens told the court the extent of Russell’s argued involvement for the alleged murder was his role as the commanding officer on 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 commando who committed murder on that mission,’ Mr Owens said.
‘If that falls outside what your honour meant by “involved”, we have to withdraw that.
‘When we say Mr Russell was present, we mean he was present on the mission – he was the commanding officer on this mission on the ground. That doesn’t mean he was physically proximate to every member of the platoon during the mission.’
Mr Russell’s counsel Sue Chrysanthou said the defence was ‘utterly hopeless’. ‘In my 20-year experience as a defamation barrister, this is the worst defence I have ever seen,’ Ms Chrysanthou told the court.
‘The case is so hopeless that even at their highest the particulars are incapable or proving the truth defence of imputations.’
Ms Chrysanthou slammed the ABC for its conduct, saying the ‘untenable defences’ were exacerbating court costs while no proper pleadings were being submitted to support the ‘serious’ allegations made 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 restriction as to costs,’ she said.
‘The cost incurred when the case is so hopeless overwhelms the costs of interlocutory hearing.’
Justice Lee told Mr Owens ‘involvement’ must mean at the minimum ‘acquiescing conduct by watching on passively.. not merely being the person there who was in charge’.
He struck out parts of the ABC’s defence on the basis on the misapprehension of his meaning of ‘involvement’.
The judge ordered that the ABC serve a fourth version of its defence with submissions by 20 April and that the broadcaster pay Mr Russell’s court costs thrown away.
Last month, Justice Lee ruled articles implied 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.
He also found the articles implied Mr Russell habitually and knowingly crossed the line of ethical conduct and behaved so immorally that American forces refused to work with him.
However, Justice Lee found the articles did not imply Mr Russell was the commando responsible for shooting the hogtied prisoner or that he was about to face charges of unlawful killings.
Mr Russell will have an opportunity to critique the fresh defence by April 23. The matter will return to court on April 24.
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