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The special forces hero who claims ABC implied he was a war criminal has a small victory in his legal fight with the national broadcaster.
ABC will have to defend articles and television reports that include the name and likeness of a former army commando after a court ruled that he may have been smeared by suggesting he was being investigated for war crimes.
The November 2021 stories claimed that an Australian platoon was under investigation for its operations in Afghanistan, and included allegations of a US Marine indirectly witnessing Australian soldiers execute a bound prisoner.
Former special forces major Heston Russell was named in the reports, which also included images of him.
Former special forces veteran and founder of the Voice of a Veteran support organization Heston Russell is suing ABC for defamation
In Federal Court on Wednesday, Judge Michael Lee ruled that the ABC stories conveyed defamatory meanings.
The court ordered in November that it would separately determine some claims before proceeding.
Articles and television reports suggested that Mr. Russell was the subject of an active criminal investigation by the Office of the Special Investigator and was reasonably suspected of involvement in war crimes, habitually and knowingly crossing the line of ethical conduct and behaved so immorally that US forces refused to work with him, Judge Lee said.
It found that some other claimed charges were not carried out.
Russell’s lawyer, Sue Chrysanthou SC, indicated that those allegations would still be pressed even if the court had ruled that they did not arise.
Judge Lee said that Ms Chrysanthou’s concerns would be allayed once she had read and considered her judgement.
A trial will take place between Mr. Russell and the ABC
“Knowing my personality, Your Honor, I don’t think that’s likely,” the high-profile defamation lawyer said.
ABC’s attorney, Lyndelle Barnett, also planned to consider the ruling before deciding whether to press the contextual implications in a amended defense.
“If that defense of the truth stands, I can tell the Honorable Member that we will pursue that interlocutory request,” Ms Chrysanthou said.
“We will cross that bridge if we get to it,” Judge Lee said.
The court will consider ABC’s defense of substantive truth, contextual truth and public interest, Judge Lee said.
The attorneys have agreed that an amended defense filed by March 1 be answered by March 15, with a case management hearing scheduled for March 24.