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A former special forces commando has won his defamation case against the ABC after a Federal Court judge ruled the national broadcaster could not prove articles were reported in the public interest.

Heston Russell sued the ABC and two investigative journalists for defamation over stories published in 2020 and 2021 he claims made it look like he was being investigated for shooting an unarmed prisoner.

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.

Throughout a nine-day trial over July and August, the court was told the allegations arose from a US Marine named ‘Josh’, who contacted Mr Willacy about his time in Afghanistan working with Australian soldiers.

In an email to Mr Willacy, ‘Josh’ said he was not a witness, but heard a ‘pop’ on the radio he believed was a gunshot.

Heston Russell with barrister Sue Chrysanthou SC

Mr Russell was present for every minute of the trial in Sydney’s Federal Court building at Queen’s Square, sitting in the back of the court as his legal team described the ‘violation’ he felt when the articles were published.

On Monday, Justice Michael Lee ruled in favour of Mr Russell and found the national broadcaster could not prove the articles were reported in the public interest.

He awarded Mr Russell $390,000 in damages.

During the trial, Mr Russell’s barrister Sue Chrysanthou SC, urged the judge to reject the ABC’s public interest defence.

‘There is no public interest in being lied to by the ABC about a serious allegation of murder in relation to a group of soldiers who were not afforded the opportunity to even respond,’ she told the court.

Ms Chrysanthou said there was a ‘significant body of evidence’ that demonstrated the articles in question were a PR exercise and ‘ego protection’ for Mr Willacy.

She told the court the articles were a ‘vindication of his original story’.

ABC journalist Mark Willacy 

At trial, Justice Lee said the evidence from ABC witnesses, including journalist Mark Willacy, showed ‘a very great sense of defensiveness, of circling the wagons against criticism and the degree of suspicions’.

The judge previously ruled 10 defamatory imputations were conveyed by the stories, but it was up to the ABC to prove there was ‘public interest’ in publishing them.

Ms Chrysanthou said the submissions from either side were further apart than ‘two ships in the night’.

‘There’s one ship, let’s call that Heston, that is gliding over the seas of legal principle and the ocean of actual evidence that Your Honour heard,’ she said.

‘Then there’s the ABC ship, that is stuck on the rocks of complete self-delusion, hypocrisy and a misstatement of the relevant law.’

She told the court a major issue in the case was that the ABC ‘don’t seem to understand the notion of confession and avoidance’, as the broadcaster claims they ‘wholly unintentionally’ accused Mr Russell of the allegations.

While the articles contained a denial from Mr Russell, he claimed the use of his name and photo implied he was involved in the death of an Afghan prisoner.

Meanwhile Nicholas Owens SC, representing the ABC, argued that public interest reporting shouldn’t be ‘subject to requirements of corroboration’.

‘The applicant, in effect, wishes to hold journalists to higher standards … because requirements for corroboration really is a pretty small portion of the criminal law now,’ Mr Owens argued.

‘The suggestion that a journalist needs to corroborate things would be, we say, to hold them to an entirely unrealistic standard.’

More to come

Content source – www.soundhealthandlastingwealth.com

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