Lawyers defending a defamation case brought by former soldier Heston Russell against the ABC have told a court the special forces officer “engaged in very great and very deliberate dishonesty” during the trial.
Mr Russell is suing the ABC and two investigative journalists over stories published in 2020 and 2021 that 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.
The trial came to an end on Wednesday after closing submissions from both sides, with Justice Michael Lee reserving his judgment as he told the court he would endeavour to get it done as soon as possible.
Nicholas Owens SC, representing the ABC, told the court: “On careful reflection it is our conclusion... Mr Russell engaged in very great and very deliberate dishonesty before your honour.”
“Your honour will, we say, be very skeptical of anything that Mr Russell says where he stands to benefit from it,” Mr Owens told the court.
He referred to Mr Russell’s evidence at the beginning of the trial where the former soldier admitted to editing an invoice he sent to Mr Robertson in regards to an unrelated article.
The article reported Mr Russell was in a dispute with veteran charity Swiss 8 over money he raised as an OnlyFans creator, telling the company he had raised more than $15,000 but only handing over a third of that amount.
He told the court it was a “genuine” invoice before Mr Owens revealed his legal team discovered changes were made to it.
Mr Russell admitted to making the changes after Justice Michael Lee questioned why he said it was “genuine”
“I was confused by the question and believed it did represent the correct invoice,” Mr Russell said.
Mr Owens said it was this exchange which proved Mr Russell was a “dishonest man” who should be receiving damages “at the lower end” of the scale if he were to rule in his favour.
“We say that he showed sheer willingness to lie, and he acknowledged that he had lied when presented with no other option and then engaged in a further deception to try to justify the first lie,” Mr Owens said.
Mr Russell’s barrister, Sue Chrysanthou SC, on Wednesday her client’s actions were “irrelevant” in respect to the case.
But the judge disagreed, telling the court Mr Russell took “premeditated steps” and showed “pretty bad behaviour”.
“ENTIRELY UNREALISTIC STANDARD”
Earlier in the day Mr Owens told the court 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.”
Mr Owens told the court that denials from Mr Russell after the articles were published were framed in such a way that they “heightened the suspicion” of the journalists.
He said Mr Russell’s denials were “focused very much on very specific aspects of the allegation”.
“Rather than what we might have thought would be the logical position, which is to say nothing like that ever happened,” Mr Owens said.
Mr Owens suggested Mr Russell’s reaction could be possibly explained as a “sensitivity” to what the trial referred to as the Soldier X allegation – where a member of his platoon confessed to killing an unarmed prisoner.
“In other words, knowledge that someone under his command has confessed to doing this,” he said.
While Mr Russell fronted court for every day of evidence, he failed to make it to the final days of the trial after being stranded in Europe.
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 and said he was not a witness but heard a “pop” on the radio he believed was a gunshot.
The ABC is seeking to rely on a new public interest defence that was introduced in July 2021 in NSW and is being tested for the first time in this case.
On Tuesday, Mr Russell’s barrister Sue Chrysanthou SC, urged the judge 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”.
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.
Mr Russell is asking for the ABC to remove the article, pay aggravated damages on top of court costs and stop repeating the allegations.
Justice Lee will deliver his decision at a later date.