The ABC has sensationally pulled out its final defense in a defamation battle against a former special forces commando, just two weeks before the matter went to trial.
Heston Russell, who made headlines after raising $15,000 for veterans charity Swiss 8 by selling nude photos of himself on Only Fans, is suing ABC and two of its investigative reporters over stories published in 2020 and 2021.
He claimed the stories made it seem like he was being investigated for shooting an unarmed inmate.
The stories, written and produced by journalists Mark Willacy and Josh Robertson, aired on television, radio and online on November 19, 2021.
Earlier this year, Justice Michael Lee found that ten defamation claims forwarded by the national broadcaster were upheld after a preliminary hearing in November 2022.
The matter was set for trial later this month after it dropped its ‘truth’ defense after several strikeout appeals by Mr Russell’s team, relying only on a new public interest test to defend the ABC articles.
Heston Russell (pictured) is suing ABC and two of its investigative journalists over stories published in 2020 and 2021
At an emergency hearing in the Federal Court, barrister Lyndell Barnett for the ABC told the court they had ‘withdrawn the public interest defence’.
But at an emergency hearing in the Federal Court at 5.45pm on Wednesday, barrister Lyndell Barnett for the ABC told the court they had ‘withdrawn the public interest defence’ and accepted Mr Russell was entitled to judgment.
NCA Newswire understands costs in the case are expected to exceed $1 million.
The emergency listing came after the court ordered the ABC to produce documents which barrister Sue Crisantho SC claimed had been inappropriately redacted for relevance, as well as documents revealing the identity of a source called ‘Josh’.
On Wednesday, Ms Burnett sought a stay of the order to produce the documents, with a stay granted for the hearing of the application on Friday.
Ms Barnett told the court that the course was taken because the ABC ‘takes their commitments to sources very seriously’.
‘This is not a course taken lightly, but it demonstrates the importance of that commitment to my clients,’ he said.
Mr Russell claimed the articles used his name and photo to imply he was involved in the death of an Afghan prisoner.
In his ruling earlier this year, Justice Lee said while the identity of ‘Josh’ was protected, it was ‘strange’ as he was portrayed in the article and footage of him aired on multiple television programmes.
Both articles stated that he did not want to be identified because he ‘feared reprisals,'” the ruling, handed down in February, said.
‘If the people responsible for releasing the photos of ‘Josh’ to ABC had an element of fear of retaliation in ‘Josh’, they must have assumed that his potential assailants were somewhat anxious and lazy.’
Mr Russell’s senior counsel claimed the ex-commandos were entitled to the raw documents even if the ABC withdrew them to protect their remaining public interest.
Justice Lee commented that the hearing scheduled for July 28 would now be used to assess damages, including Mr Russell’s claim for additional damages due to ABC’s conduct in the proceedings.
Although the articles contained denials from Mr Russell, he claimed that the use of his name and photo suggested he was involved in the death of an Afghan prisoner.
In his statement of claim, Mr Russell said an ABC article published in 2021 alleged soldiers from the November commando platoon were being investigated for their actions in Afghanistan in 2012.
Mr Russell (pictured) has launched a campaign alongside 2GB’s Ben Fordham calling on the ABC to apologize and take down the articles.
Mr Russell is asking the ABC to remove the article and pay additional damages on top of court costs
It was claimed that the platoon killed an unarmed and handcuffed prisoner because there was no room in the extraction flight.
A US Marine helicopter pilot said he did not witness but heard a ‘pop’ on the radio which he believed was gunfire.
Mr Russell launched a campaign alongside 2GB’s Ben Fordham calling on the ABC to apologize and take down the articles.
In March 2022, the national broadcaster quietly updated and published two story corrections.
Mr Russell is asking the ABC to remove the article and pay more damages on top of court costs.
The matter will be taken up in court again on Friday.