Special forces hero who claims the ABC implied he was a war criminal has a small win in his legal fight with the state broadcaster
The ABC will have to defend articles and television reports including the name and image of an ex-army commando after a court ruled they may have defamed him by implying he was under investigation for war crimes.
The November 2021 stories claimed an Australian platoon was under investigation over its operations in Afghanistan and included allegations from a US marine he indirectly witnessed Australian soldiers execute a hogtied prisoner.
Ex-special forces major Heston Russell was named in the reports, which also included images of him.
Former special forces veteran and founder of veterans support organisation Voice of a Veteran Heston Russell is suing the ABC for defamation
In the Federal Court on Wednesday, Justice Michael Lee ruled the ABC stories conveyed defamatory meanings.
The court ordered in November it would separately determine some claims before proceeding.
Articles and television reports 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, habitually and knowingly crossed the line of ethical conduct and behaved so immorally that American forces refused to work with him, Justice Lee said.
He found some other claimed imputations were not carried.
Russell’s barrister Sue Chrysanthou SC indicated those imputations would still be pressed even if the court had ruled they did not arise.
Justice Lee said Ms Chrysanthou’s concerns would be assuaged once she had read and considered his judgment.
A trial between Mr Russell and the ABC will go ahead
‘Knowing my personality Your Honour, I don’t think that’s likely,’ the high-profile defamation lawyer said.
The ABC’s barrister Lyndelle Barnett also planned to consider the judgment before deciding whether to press contextual implications in an amended defence.
‘If that truth defence stays I can tell Your Honour we will be pushing that interlocutory application,’ Ms Chrysanthou said.
‘We’ll cross that bridge if we come to it,’ Justice Lee said.
The court will consider a defence from the ABC on substantial truth, contextual truth and public interest, Justice Lee said.
The lawyers agreed for an amended defence filed by March 1 to be responded to by March 15, with a case management hearing scheduled for March 24.
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