‘Dishonest man’: ABC takes aim at Heston Russell in defamation case

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The ABC has accused Heston Russell of engaging in “very deliberate dishonesty” in his defamation case against the national broadcaster, as the judge raised questions about whether the former commando had lied in court.

Nicholas Owens, SC, acting for the ABC, submitted on the final day of the Federal Court trial in Sydney on Wednesday that Russell was a “dishonest man” who should receive damages “very much at the lower end” of the scale if he won the case.

Former commando Heston Russell outside the Federal Court earlier this month.Credit: Nick Moir

Owens alleged Russell had engaged in “very great and very deliberate dishonesty before your Honour” and had shown “a clear willingness to lie”.

Russell, a former platoon commander, is suing the ABC for defamation over two articles published online in October 2020 and November 2021, and a related television broadcast.

Justice Michael Lee has ruled the articles, read together, conveyed a range of defamatory meanings including that Russell, as commander of the November platoon, “was involved in shooting and killing an Afghan prisoner” in mid-2012. The ABC is seeking to rely on a public interest defence.

Both Lee and Owens referred on Wednesday to Russell’s admission during his evidence that he gave a “fake” document to an ABC journalist who was researching a separate story on a different topic in 2021. That story is not part of his defamation case.

Russell’s barrister, Sue Chrysanthou, SC, said on Wednesday: “A plaintiff is not here to justify his whole life; it’s not a roving inquiry.”

But Lee responded: “There’s a difference between going in a witness box and going on oath and telling [an alleged] … lie to a judge and having a roving inquiry into somebody’s life.”

During cross-examination last month, Russell was asked about a document he sent ABC journalist Josh Robertson before the reporter wrote a December 2021 article about Russell’s alleged dealings with veterans’ mental health charity Swiss 8.

Russell initially told the court this document was a genuine invoice for fitness equipment he ordered in 2020 for Swiss 8, his employer at the time. He later agreed it was not genuine, and told the court he was “confused by the question”.

He said that while it was not the genuine invoice “it did represent the correct invoice”, which he could not locate at the time. He denied trying to mislead Robertson and said the altered document was an “exact representation of what occurred”.

There were “text messages with the director of Swiss 8 saying … [the fitness equipment had] arrived” at the charity’s premises, Russell told the court.

Chrsyanthou said on Wednesday that “what my client is accused of doing, and which he admitted, was altering an invoice and sending it to a journalist”. She said this was “irrelevant to the cause of action” in this case.

Lee said that “to take the premeditated steps, if that [is] what occurred, to deliberately go through a process of manipulating a document and sending it to somebody where you know they’re going to rely on it in circumstances where what you’re trying to do is justify allegations made by a charity that you had not remitted funds to the charity seems to me, if proved, pretty bad behaviour”.

Owens alleged on Wednesday that Russell “engaged in a further deception to try to justify the first lie”, and Lee could infer Russell sought to procure a second invoice that reflected his version of events in court.

But Chrysanthou said Russell “did not create the [second] document and that was not suggested to him” in court.

She said that “the point of a defamation claim is to compensate for what the media said, not for something else”.

“That is because there’s no perfect plaintiff,” she said. “In every single case you read, the plaintiff missteps at some point in the proceedings. I cannot think of a case where a trial judge has said, ‘I accept every single thing that the plaintiff said.’ It just doesn’t happen. Journalists are not expected to be perfect, either.”

The judge will deliver his decision at a later date.

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