Former commando Heston 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, the federal court has ruled.
The ruling paves the way for the matter to continue to the next stage. The case will now proceed to the ABC defending its reporting in a hearing next month.
Justice Michael Lee on Wednesday found a series of ABC articles and broadcasts 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”.
The judgment found Russell was also defamed by imputations in the ABC reportage that he “had behaved so immorally when deployed in Afghanistan that American forces refused to work with him” and that “Russell, as the commander of November Platoon, habitually left ‘fire and bodies’ in his wake when deployed in Afghanistan.”
Russell, a former major in the Australian special forces who served four tours of Afghanistan, had consistently denied all wrongdoing and allegations against him, and that he was the subject of a formal investigation.
The ABC is defending its reporting as substantially true, and has argued there was public interest in its coverage. The court will hold a hearing to consider the defences mounted by the broadcaster.
At issue in the case are two online news articles, a television news item and a radio broadcast that relate to the alleged actions in Afghanistan in 2012 of the November platoon, which Russell commanded.
The initial article details the testimony of a US marine pilot, named in the article as Josh, who alleged Australian commandos shot and killed a bound Afghan prisoner because there was no room for him to be transported on the helicopter.
The article, Lee said in his judgment, “is damning”.
“Vivid and sensationalist headings are used throughout, for example, ‘Australian special forces soldiers made “deliberate decision to break the rules of war”’, and ‘Lots of fire and bodies were often left in their wake’ … These headings reinforce the marine’s account,” he said.
The second article reported that defence authorities were conducting a criminal investigation into the alleged actions of the November platoon in Afghanistan in 2012.
Russell is named in the report, which also includes an image of him in uniform. He is the only member of the platoon identified.
The radio and TV broadcasts were contemporaneous with the second article.
Lee found 10 defamatory imputations were made by the publications. The ABC has been given four weeks to file an amended statement of defence, and Russell two weeks beyond that to respond.
The case will return to court on 24 March.
• The headline on this article was amended on 3 February 2023 to clarify that the court ruling was a preliminary step in a legal process.
