Former commando Heston Russell has won his defamation case against the ABC and been awarded $390,000 after a federal court judge found the public broadcaster did not prove its reporting was in the public interest.
The former commando initiated legal action over two online news articles, a television news item and a radio broadcast relating to alleged actions in Afghanistan in 2012, in which he was commended.
The federal court found in February Russell was defamed by the ABC in a series of articles that linked him to war crimes and alleged he left “fire and bodies” in his wake during his service in Afghanistan.
Today, Justice Michael Lee did not find Russell’s “oral evidence as to his hurt to feelings persuasive” and did not award aggravated damages.
“His actions are consistent with someone who has not suffered significant hurt but rather embraced the public controversy,” Lee said.
But Lee found ABC investigative journalist Mark Willacy, who was the author of the articles, had not established the public interest defence.
Lee said he had no doubt Willacy “believed the publication of the matter was in the public interest” but “his belief was not reasonable in the circumstances”.
He also accepted evidence from other people, including relatives, who explained the toll on the veteran.
Lee found the ABC defamed Russell by conveying that he was “the subject of an active criminal investigation into his conduct as a commando in Afghanistan” and “reasonably suspected … of committing a crime or crimes when he was a commando in Afghanistan”.
Russell, a former major in the Australian special forces who served four tours of Afghanistan, has consistently denied all wrongdoing and allegations against him, and that he was the subject of a formal investigation.
The ABC initially defended its reporting as substantially true but dropped the truth defence in May and subsequently argued there was public interest in its coverage.
Mr Russell’s counsel, Sue Chrysanthou SC, said she would seek indemnity costs for the entirety of the proceedings based on a settlement offer.
The court heard that offer, made in mid-September last year, was for $99,000 and the removal of the articles.
The case will return to court on October 24.
