Lawyers for a former special forces officer have argued an ABC article portrayed him as a war criminal, despite not directly alleging he had committed crimes.
Heston Russell is suing the ABC and two of its investigative journalists over stories published in 2020 and 2021 which he argues gave readers the “impression” he was responsible for shooting an unarmed prisoner and was being investigated.
One article, published in 2021, asserted an Australian commando platoon was being investigated over its actions in Afghanistan in 2012 as well as allegations made by a US marine helicopter pilot that – on a 2012 mission – he heard the “pop” of an unarmed and handcuffed prisoner being executed by Australian soldiers because there was no room for them on the extraction flight.
Russell was the commanding officer of November platoon, 2nd Commando Regiment, in 2012, and present on the platoon’s missions. He was quoted in the article as denying the allegations and saying his platoon had never harmed a prisoner. He called on the ABC to apologise.
Russell’s lawyer, Sue Chrysanthou SC, argued in the federal court on Wednesday that the article’s assertion his platoon was under investigation, along with the publication of his name and picture, left the reader with the impression he was involved in the shooting.
“The only commando identified in any of the publications is my client – a huge colour photo of him and his full name,” Chrysanthou told Justice Michael Lee.
“It is a shocking allegation of murder … and the only person the reader is left with being responsible for it is my client.
“It is frankly divorced from reality to suggest the reader would not immediately, seeing the lovely, shiny photograph of my client in this article, and reading how despicably the commandos behaved, such that the marines refused to work with them ever again, would not think that this guy is the commander of a unit that killed people.”
The ABC is arguing a defence of contextual truth, in that Russell was the commander of the platoon which was under investigation, and that the allegations raised in the stories were in the public interest.
Court documents filed by the ABC claim it is true that members of November platoon were the subject of a criminal investigation by the Office of the Special Investigator into their conduct in Afghanistan.
Chrysanthou argued Russell was implicated as either being guilty of shooting the prisoner or of being involved in criminal wrongdoing – despite the article not directly naming him as responsible.
She said an “ordinary” person reading the article would be left with that impression.
“This isn’t an analysis of a haiku, it’s something where a person is flicking through their phone on a bus or reading these things first thing in the morning,” she told the court.
The barrister said Russell’s denial, included in the article, rather than effectively countering the allegations would probably be interpreted as him lying.
“Publishing a mere denial isn’t sufficient. The reader needs to leave … understanding that the allegation is false,” Chrysanthou said. “The reader would think, ‘Well he would deny it wouldn’t he’.”
Acting for the ABC, Lyndelle Barnett, said there were “multiple layers the reader had to jump through” to arrive at the conclusion Russell was guilty of murder and the “ordinary, reasonable reader” would not arrive at that conclusion.
She argued that allegations of wrongdoing against one or more members of the platoon did not implicate the group as a whole and would not be interpreted as such by readers.
“The ordinary person wouldn’t take it to mean it was every member of a platoon that was shooting a prisoner,” Barnett told the court on Wednesday.
Russell wants the ABC to remove the article and pay aggravated damages on top of court costs. The case continues.
Additional reporting Australian Associated Press