A defamation trial between a special forces commando and the ABC is entering its final stages on Tuesday after the national broadcaster published articles claiming he was involved in the shooting of an unarmed prisoner.

Heston 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.

After a three-week break, the trial is returning before Justice Michael Lee on Tuesday where both sides will give their final closing remarks.

However, Mr Russell may not be there to see his trial come to a close after being stranded in Ibiza following severe weather which grounded more than 100 flights.

The final two days of closing submissions brings to a close the trial, which began on July 28 when high-profile defamation barrister Sue Chrysanthou SC, representing Mr Russell, slammed the ABC’s behaviour as “breathtaking in its audacity”, telling the court its case was “absolutely doomed”.

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.

Ms Chrysanthou said the ABC failed to firm up “shoddy, uncorroborated and reckless” journalism.

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.

A public interest defence is aimed at protecting investigative journalism and relates to publications that concern an “issue of public interest” where the defendant “reasonably believed the publication of the matter” was in the public interest.

“When a serious allegation is made to a journalist by a source it should be critically assessed, it should be tested and corroborated before it is published,” she told the court.

“Shoddy, uncorroborated, reckless reporting is not in anyone’s interest.”

ABC’s barrister, Nicholas Owens SC, in his opening address argued it is “absolutely vital” the media is free to “report upon allegations of war crimes” as public interest sits “well above truth”.

He told the court it was “difficult, with respect, to think of a topic of much less weight” than allegations of war crimes.

“We say the undeniably weighty aspect of the public interest then is of critical importance,” Mr Owens said.

The trial saw six days of evidence from Mr Russell, Mr Robertson, Mr Willacy and other workers at the ABC who had a part to play in publishing the articles.

Ms Chrysanthou tendered 21 affidavits in support of Mr Russell, including written support from former and current Australia and US defence force personnel, as well as commentator Alan Jones and Liberal Senator Hollie Hughes.

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.

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.

It was claimed in the articles that the platoon murdered a prisoner who was unarmed and handcuffed because there was no room on the extraction flight, according to the statement of claim.

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

NCA NewsWire understands the costs of the case have already exceeded $1m.

The hearing before Justice Michael Lee will continue on Tuesday.



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By Rahul

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