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War hero fights allegations that he committed war crimes 

War hero fights allegations that he committed war crimes 

Published on March 8, 2023 by Grace Brophy and Daniel O’BrienGrace Brophy and Daniel O’Brien

Heston Russell is an Australian former Special Forces Major who was deployed four times to fight in Afghanistan between 2011 and 2012.

In 2020, the ABC reported that a US marine helicopter pilot had accused Australian commandos of shooting and killing an unarmed Afghan prisoner during a mission to Afghanistan in 2012.

In response to this publication, Mr Russell commenced proceedings against the ABC and two of its investigative journalists for implying that he had committed war crimes.

Mr Russell stated that the ABC’s reporting of the serious allegation caused “serious harm” to his reputation, particularly because he was the only individual named in the publication.

Court documents filed in the Federal Court of Australia claimed that Mr Russell “may be reasonably suspected…of the war crime of attacking civilians”.

The alleged act was investigated by the Inspector General of the Australian Defence Force (IGADF), who ultimately found that there was no credible evidence Mr Russell was involved in any war crime.

The ABC defended its publication, relying on the defence of ‘contextual truth’. This defence can be relied on when a defendant can establish that one or more of the imputations are substantially true, and as such, further imputations do not cause further harm to the plaintiff’s reputation.

The ABC alleged that Mr Russell was the commander of a platoon that was being investigated for war-crimes and claimed that its publication was in the public interest.

A preliminary hearing was heard in November 2022, where Justice Michael Lee found that a number of assertions made by the ABC did hold defamatory meanings. The matter will now proceed to trial to determine whether the ABC can rely on any defences.

Mr Russell is seeking that the ABC remove the publication, aggravated damages and costs.

Please call us on (02) 9291 7185 for a free initial consultation to discuss your legal options and how we may be able to assist you.

Daniel O’Brien – dobrien@codea.com.au
Grace Brophy – gbrophy@codea.com.au

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