ABC suddenly drops defence after war hero’s lawyers fume over redacted documents

The ABC has sensationally pulled its final defence in its defamation fight against former special forces commando Heston Russell, just two weeks before the matter was set to go to trial.

The ABC has sensationally pulled its final defence in its defamation fight against a former special forces commando, just two weeks before the matter was set to go to trial.

Heston Russell is suing the ABC and two of its 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, 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 ten defamatory imputations put forward by the national broadcaster were carried following a preliminary hearing in November 2022.

The matter was set to go to trial later this month with the ABC relying solely on just a new public interest test to defend the articles, after it dropped its “truth” defences following a number of strikeout applications by Mr Russell’s team.

Heston Russell is suing the ABC. Picture: NCA NewsWire / Gary Ramage

But at an emergency hearing in the Federal Court at 5.45pm Wednesday, barrister Lyndelle Barnett for the ABC told the court they had “withdrawn the public interest defence” and accepted that Mr Russell was entitled to judgment.

NCA NewsWire understands costs in the case are expected to exceed $1 million.

The urgent listing came after the court made orders requiring the ABC to produce documents that barrister Sue Chrysanthou SC contended were improperly redacted for relevance, as well as documents revealing the identity of a source dubbed as “Josh”.

On Wednesday, Ms Barnett sought a stay of orders requiring them to produce the documents, with the stay granted pending the hearing of the application on Friday.

Ms Barnett told the court the course had been taken as the ABC takes “their promises to sources very seriously”.

“It is not a course that has been taken lightly, but it does demonstrate the significance of those promises to my clients,” she said.

Mr Russell will no longer head to trial against the ABC in just a few weeks. Picture: NCA NewsWire / Steve Zemek

In his judgment earlier this year, Justice Lee said while the identity of “Josh” was protected, it was “strange” as he was pictured in articles and footage of him was also aired on multiple television programs.

“Both articles record he does not want to be identified because he ‘fears retribution’,” the judgment, handed down in February, said.

“If those responsible for publication of ‘Josh’s’ photograph within the ABC though there was substance in ‘Josh’s’ fear of retribution, they must have assumed his potential assailants were a somewhat incurious and lazy lot.”

Mr Russell’s senior counsel contends the former commando is entitled to the unredacted documents regardless of the ABC’s withdrawal of their remaining public interest defence.

Justice Lee commented that the scheduled hearing time on July 28 would now be used for an assessment of damages including Mr Russell’s claim for aggravated damages by reason of the ABC’s conduct in the proceedings.

While the articles contained a denial from Mr Russell, he claims the use of his name and photo implied 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 over their actions in Afghanistan in 2012.

Mr Russell alleges the ABC implied he killed an Afghan prisoner. Picture: NCA NewsWire / Gary Ramage

It was claimed the platoon murdered a prisoner who was unarmed and handcuffed because there was no room on the extraction flight.

A US Marine helicopter pilot said he was not a witness but heard a “pop” on the radio he believed was a gunshot.

Mr Russell launched a campaign alongside 2GB’s Ben Fordham and called on the ABC to apologise and take down the articles.

In March 2022, the national broadcaster quietly updated and published corrections on two of the stories.

Mr Russell is asking for the ABC to remove the article and pay aggravated damages on top of court costs.

The matter will return to court on Friday.