Heston Russell defamation case: ABC report ‘shoddy, uncorroborated’, court hears

The ABC’s star source in a story implying ex-commando Heston Russell killed an Afghan soldier repeatedly described his memory as ‘fuzzy’ and asserted he would be a ‘useless’ informant.

Retired Special Forces officer Heston Russell.

The ABC’s star source in a story implying ex-commando Heston Russell killed an Afghan soldier repeatedly described his memory as “fuzzy” and asserted he may be a “useless” informant, a court has heard, as the national broadcaster’s reporting is slammed as “shoddy" and "uncorroborated.”

The revelations emerged on the first day of a five-day defamation trial between Mr Russell and the national broadcaster, which also heard the soldier admit to fraudulently altering an invoice he later gave to a journalist, in an attempt to prove he had donated pledged funds to a charity, that he had raised through Only Fans.

Mr Russell has alleged two ABC articles, through the use of links and his photograph, implied he was complicit in the execution of an Afghan prisoner who was captured during a joint drug enforcement operation ­between Australia and the US.

The stories, written and produced by ABC journalists Mark Willacy and Josh Robertson, who are also respondents in the matter, aired on television, radio and online in late 2021.

Heston Russell arrives at the Federal Court on Friday. Picture: NCA Newswire / Monique Harmer

The articles contained allegations from a US soldier under the pseudonym ‘Josh’ that he heard Australian forces shoot the prisoner in a “deliberate decision to break the rules of war” because there were too many of them to fit into the aircraft.

But on Friday, Mr Russell’s barrister Ms Chrysanthou read aloud correspondence between Mr Willacy and Josh, in which Josh claimed his memory was “hazy” and he would be unable to share “actionable information” with the journalist.

“My memory is pretty hazy, so I can‘t really give you anything specific enough to follow up with, but I wanted to reinforce the narrative that you’re writing about based on my own experiences,” Josh wrote in an email to Mr Willacy, according to Ms Chrysanthou.

“I‘m definitely open to speaking about things through email or otherwise, with the obvious caveat being that this all happened a long time ago, in the midst of constant combat operations, where I had very little sleep, and was constantly working with people from different units and countries.

“I likely won‘t be able to provide you with actionable information that could go anywhere useful in any specific investigations, only the bits and pieces I remember.”

Ms Chrysanthou accused Mr Willacy of falsely claiming Josh had referred to the soldiers as commandos, in order to make his story “different” and not simply about the SAS.

“(Josh) didn‘t say the commandos. He didn‘t say the commandos,” Ms Chrysanthou said.

“Had Mr. Willacy use different language, like ‘the ABC believes Josh was working with the commandos given the timing of his mission’ … it wouldn’t have been as great a story, because what it comes down to is there were lots of stories about the SAS … but Mr Willacy wanted a story about the commandos, because that was new and different.”

In her opening statement for the landmark defamation hearing, Ms Chrysanthou slammed the “shoddy, uncorroborated, reckless reporting” of the ABC journalists.

“Freedom of speech does not include the publication of lies,” she said. “We’ve seen conduct which is directed not to ensuring proper journalism, but to protecting bad journalism.”

ABC investigative reporter Mark Willacy.

The ABC, Mr Robertson and Mr Willacy rely upon the defence of public interest, which was introduced in NSW in July 2021 and remains largely untested. Ms Chrysanthou asserted the broadcaster’s defence was “doomed”.

Under cross-examination on Friday, Mr Russell revealed he had made changes to a charity invoice before giving it to Mr Robertson, in order to disprove an article which accused him of failing to donate money he had raised through Only Fans, despite promising to do so.

Nicholas Owens SC, acting for the ABC, accused Mr Russell of lying in the courtroom, and claimed it demonstrated the former commando was willing to make up stories if it was for his own advantage.

Mr Russell claimed he only altered the document to reflect the actual invoice, which he was unable to locate by Mr Robertson’s timeline.

“It’s a duplication of a document that I’ve edited to reflect what was the final document,” he said.

Mr Russell fought back tears on the stand, claiming he was “simply seeking” for the article to be corrected and had attempted to go through the usual editorial complaint protest, before electing to sue the broadcaster.

“Up until this point, I thought that I had done everything I could by the book, submitting complaints and going through the process,” he said.

“I was just learning myself how to try and correct a mistake made about my platoon in Afghanistan, and then I literally remember standing there and feeling like the weight of an entire organisation that I was paying for, that everyone in this room is paying for, crashing on me and attacking me.”

The Australian understands the costs associated with the case have so far exceeded $1 million.

Veteran Heston Russell. Picture: Shae Beplate

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 trial will last for five days, and began just two weeks after the ABC called an emergency hearing in the Federal Court where they declared they would be “withdrawing the public interest defence” before sensationally backflipping on the decision.

The ABC made the announcement to withdraw its public interest defence claiming it did not want to comply with court orders to reveal Josh’s identity to Mr Russell’s lawyers.

Ms Chrysanthou argued she wanted the information to make witness inquiries, but the broadcaster said it would rather pull out of the fight than hand over a source. The ABC conceded Mr Russell was entitled to judgment in his favour.

But less than 48 hours later the ABC reinstated its defence after Ms Chrysanthou revealed her team had discovered the identity of Josh from some Google searches, referencing the mountain of information the ABC made available about him in the articles.

Mr Russell is asking for the ABC to remove the article, pay aggravated damages on top of court costs, and orders stopping them from repeating the allegations.