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Former commando Heston Russell’s barrister has accused the ABC of “self-delusion and utter hypocrisy” in defending his defamation suit over articles suggesting he was involved in executing an unarmed prisoner in Afghanistan.

The Federal Court defamation trial entered its final stages on Tuesday as Sue Chrysanthou, SC, acting for Russell, delivered closing submissions urging Justice Michael Lee to reject the ABC’s public interest defence and rule in Russell’s favour.

Heston Russell’s legal team including barrister Sue Chrysanthou, SC, centre, outside the Federal Court in Sydney on Monday.Credit: Rhett Wyman

Chrysanthou said the parties’ written submissions were further apart than “ships in the night”.

“There’s one ship, call it Heston, that is gliding over the seas of legal principle and the ocean of actual evidence … and then there’s the ABC ship, that is stuck on the rocks of complete self-delusion, utter hypocrisy and a misstatement of the relevant law,” she said.

Russell is suing the ABC over two articles in October 2020 and November 2021 that Lee has previously ruled conveyed a series of six defamatory meanings when read together. They include that Russell, as commander of the November platoon, “was involved in shooting and killing an Afghan prisoner” in mid-2012. He is also suing over a related television broadcast.

The ABC is seeking to rely on a new public interest defence.

Both articles reported that a former US marine, given the pseudonym Josh, had alleged soldiers from Australia’s 2nd commando regiment shot dead an Afghan prisoner in 2012 after the soldiers were told they had one too many prisoners to fit on a US aircraft.

The first article included comments from unnamed commandos from the regiment’s Oscar platoon suggesting their comrades from November platoon had a bad reputation among Americans. Russell was commander of November platoon during its deployment to Afghanistan in 2012.

ABC investigations journalist Mark Willacy denied during the trial that he intended to point the finger at November platoon, saying that he believed “it was more likely to be them [than Oscar platoon], but I had no evidence of that”.

Willacy agreed during his evidence that Josh did not say the 2nd commando regiment was responsible for the alleged killing. He said Josh “did say they were Australian special forces” and Willacy’s own research led him to believe that “it could only be the two commando unit that he worked with”.

Heston Russell outside the Federal Court earlier this month.Credit: Dion Georgopoulos

Josh, described by the ABC as a helicopter crew chief, did not see the alleged killing but said he heard a “pop” over the radio, and Australian soldiers advised there were now six prisoners instead of seven.

Lee referred during Monday’s hearing to Russell’s “somewhat quixotic approach” during an interview with Peter van Onselen on Ten’s The Sunday Project in November 2020, in which he responded to the ABC’s first article.

Asked by van Onselen whether “you say that no prisoner was ever summarily executed that you saw”, Russell replied: “So, we’re responding to the direct allegation that this marine on a mission heard seven detainees turn to six and heard a pop and that that was the execution, and that never happened.”

Lee put to Chrysanthou: “That seems to me a very odd response. Now, to any rational person, isn’t that apt to give rise to suspicions?”

“No, your Honour, only because the nature of what the soldiers were sent to do by our government, whether it be right or wrong … involved killing people and for my client to be careful to only address himself [to that allegation was appropriate],” Chrysanthou said.

Lee said “all I’m saying is I don’t think you can say it’s irrational … for people to harbour a suspicion.”

“But a suspicion of what?” Chrysanthou replied. “The notion that there was suspicion about my client or the platoon or something that the soldiers did in Afghanistan unconnected to that didn’t justify the article that was published.”

Lee said it was important for the purposes of the public interest defence for him to understand what the ABC journalists “subjectively believed” at the time of the November 2021 article.

“Yes, but the uncontradicted evidence from each of them is none of them had a subjective belief that Mr Russell was the subject of … investigation personally, nor that he was under suspicion,” Chrysanthou replied.

The trial continues.

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