Lawyers representing the ABC have argued it is “absolutely vital” the media is free to “report upon allegations of war crimes” as it defends a defamation case brought by a former special forces commando.

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.

The trial entered its second day on Monday and Nicholas Owens SC, representing the ABC, told the court in his opening address that 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 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.

During the trial, the ABC will need to persuade the court that its journalists genuinely believed the publication of the articles were in the public interest.

Mr Owens told the court that “belief was present in the minds of all respondents” that the two articles were in the public interest.

On Friday, high-profile defamation barrister Sue Chrysanthou SC, representing Mr Russell, slammed the ABC’s behaviour as “breathtaking in its audacity”, telling the court that 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.

“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 on Friday.

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

Mr Willacy is expected to take to the witness stand on Monday afternoon.

Earlier this year, Justice Michael Lee found 10 defamatory imputations put forward by the national broadcaster were carried following a preliminary hearing in November 2022.

Justice Lee found the most serious meanings were that Mr Russell was involved in the killing, “habitually left ‘fire and bodies’ in his wake” and “knowingly crossed the line of ethical conduct” while serving in Afghanistan.

One of the articles featured a US Marine helicopter pilot, given the pseudonym “Josh”, who said he was not a witness but heard a “pop” on the radio he believed was a gunshot and was told there were now six prisoners instead of seven.

“Let’s assume there was a gunshot – which is a big assumption … who’s to say if it was a gunshot, who shot it and why it’s Australians compared to all the other people there?” Ms Chrysanthou said.

The court was told the allegations arose from Josh, who contacted Mr Willacy about his time in Afghanistan working alongside Australian soldiers.

Ms Chrysanthou read out an email from Josh who conceded his memory was “pretty hazy” but he wanted to “reinforce the narrative you’re writing about”.

“I’m definitely open to speaking about things through email or otherwise with the obvious caveat being this all happened a long time ago in the midst of constant combat operations where I had very little sleep, where I was constantly working with people from various companies,” the email said.

“I am not sure I could provide you with useful information.”

Ms Chrysanthou slammed the ABC for an “inexcusable abuse of power” by publishing “false articles and using their PR machine to issue press releases about it”.

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

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 continues.



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