Lawyers representing a former special forces commando have slammed the ABC, claiming they are trying to keep confidential sources away by redacting “dozens of documents” on the basis of relevance.
Heston Russell is suing the ABC and two of its investigative journalists over stories published in 2020 and 2021 that he claims made it look like he was being investigated for shooting an unarmed prisoner.
Mr Russell is suing the ABC and journalists Mark Willacy and Josh Robertson over the story which aired on television, radio and online on November 19, 2021.
Earlier this year, Justice Michael Lee found ten imputations put forward by the national broadcaster did hold defamatory meanings following a preliminary hearing in November 2022.
The matter is set to go to trial later this month, with the ABC no longer relying on a “truth” defence, and instead only using a new public interest test to defend the articles.
High-profile defamation barrister Sue Chrysanthou SC, representing Mr Russell who watched the proceedings via AVL, called for an urgent listing in the Federal Court on Tuesday afternoon where she told the court she had been issued “dozens of redacted documents” by the ABC.
The court was told the ABC had redacted its own documents on the basis of relevance in regards to a Marine who was given the pseudonym of “Josh” to protect.
In his judgment earlier this year, Justice Lee said while the identity of “Josh” was protected, it was “strange” as he was pictured in articles and footage of him was also aired on multiple television programs.
“Both articles record he does not want to be identified because he ‘fears retribution’,” the judgment, handed down in February, said.
“If those responsible for publication of ‘Josh’s’ photograph within the ABC though there was substance in ‘Josh’s’ fear of retribution, they must have assumed his potential assailants were a somewhat incurious and lazy lot.”
Ms Chrysanthou told the court she had “offered herself over” to be shown how the unredacted documents have been relevant to the case.
“We have been given a piece of paper that says ‘Heston comma’ and the rest is redacted, we don’t accept it,” she told the court.
“Not only did they publish a photo, they published an interview with him, his platoon, his rank, when he was in Afghanistan, the city and state he lives … They haven’t gone to a lot of trouble to hide Josh’s identity.”
Ms Chrysanthou told the court she wanted to be told the source’s name not for “curiosity” but so she could speak to other witnesses in the US.
She argued the ABC did not want her client knowing Josh’s identity because of an “unfounded” assertion Mr Russell could be a risk to him.
The high-profile silk said Mr Willacy’s evidence was “pretty incomprehensible”, while many other names in the evidence had been redacted for no reason.
Justice Lee said representatives for Mr Russell were “entitled” to know the man’s identity as he played “such a central role” in the allegations.
The ABC is seeking to defend the articles and television reports at an estimated five-day trial at the end of the month.
While the articles contained a denial from Mr Russell, he claims the use of his name and photo implied he was involved in the death of an Afghan prisoner.
In his statement of claim, Mr Russell said an ABC article published in 2021 alleged soldiers from the November commando platoon were being investigated over their actions in Afghanistan in 2012.
It was claimed the platoon murdered a prisoner who was unarmed and handcuffed because there was no room on the extraction flight.
A US Marine helicopter pilot said he was not a witness but heard a “pop” on the radio he believed was a gunshot.
Mr Russell launched a campaign alongside 2GB’s Ben Fordham and called on the ABC to apologise and take down the articles.
In March 2022, the national broadcaster quietly updated and published corrections on two of the stories.
Mr Russell is asking for the ABC to remove the article and pay aggravated damages on top of court costs.
The matter will return to court on Friday.