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Australia: Former commando Heston Russell wrongly linked to ‘shocking’ allegation of murder, court told

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Former special forces soldier Heston Russell was wrongly portrayed as the person responsible for the “shocking and callous” execution of an Afghan prisoner because there wasn’t room for him on a helicopter, a court has been told.

Russell, a former Army major who served in the defence force from 2003 to 2019, is suing the ABC and two of its journalists for defamation over two articles, a radio broadcast and a television broadcast in 2020 and 2021.

Heston Russell leaves court with his barrister Sue Chrysanthou, SC. © Louie Douvis Heston Russell leaves court with his barrister Sue Chrysanthou, SC.

He argues he was defamed by the publications, which reported on claims by a United States marine that the marine had been on a mission in Afghanistan in 2012 where Australian commandos killed a hog-tied prisoner because there wasn’t room for him on a helicopter.

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Russell was named in some of the stories as being the former commander of November platoon, part of the 2nd Commando Regiment.

In court documents, he argues the stories defamed him by wrongly suggesting he executed the hog-tied prisoner, that he was under active criminal investigation, that he committed a war crime, and that he dishonestly denied the killing.

The ABC will rely on the defences of truth, contextual truth and public interest. An initial hearing was held in the Federal Court on Wednesday to determine if defamatory meanings were conveyed by the publications, before defences are explored in a trial.

Russell’s barrister Sue Chrysanthou, SC, told the court that her client was the only soldier named in any of the articles, which made serious allegations about “despicable” behaviour of Australian commandos.

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“There’s only one platoon named; there’s only one soldier named as the leader of that platoon,” Chrysanthou said.

“It is frankly divorced from reality to suggest the reader would not immediately, seeing the lovely shiny photograph of my client in this article ... think ‘this guy is the commander of the unit that killed people’.

“It’s such a shocking and callous allegation that it’s memorable to the reader.”

Chrysanthou said the publications included a number of allegations followed by a “bare” denial from Russell that his men had never harmed a prisoner.

“In this case, it is a shocking allegation of murder. It is a despicable and callous act that is alleged,” Chrysanthou said.

“It is confirmed that there is an active criminal investigation, and the only person the reader is left with as being responsible for that act is my client.

“We say that these imputations scream from the page.”

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Lyndelle Barnett, appearing for the ABC, said the highest meaning conveyed by the publications is that Russell’s platoon is reasonably suspected of committing crimes, that he was the platoon commander, and that he was present on missions.

She said Russell’s comment to the ABC that his men had not harmed prisoners, “confirms that the allegation is against members of the platoon, not Mr Russell personally”.

“He’s denying it on behalf of his soldiers, he’s not saying ‘I didn’t do it’,” Barnett said.

Following the preliminary hearing, Justice Michael Lee will either dismiss the case, finding none of the defamatory meanings were conveyed, or proceed to a trial which will explore the ABC’s defences.

He will deliver his judgment at a later date.

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