Former special forces commando Heston Russell has been cleared of common assault after a magistrate declared he did not drunkenly punch a man at an inner Sydney pool party.
The 38-year-old had drank half a bottle of tequila at the Woolloomooloo party on January 2, 2022, before he threatened fellow partygoer Steven Pate, saying “I’m going to throw you over the balcony”.
But he denied punching Mr Pate during the heated incident, which took place at a Cowper Wharf Road rooftop pool party after the group had been on a Sydney Harbour yacht drinking since 11am.
Mr Russell, a one-time Senate candidate and veterans’ advocate, pleaded not guilty to one count of common assault and faced a two-day hearing last year.
Magistrate Margaret Quinn on Monday found him not guilty of the charge.
She found there were inconsistencies between the alleged victim, witnesses and Mr Russell’s version of events.
“I do make a finding there was pushing and shoving, I do make a finding there was yelling and shouting, which is what drew attention to them,” Ms Quinn told the court.
“I cannot say beyond a reasonable doubt Mr Heston Russell punched Mr Steven Pate on the evidence before me given all the inconsistencies.”
Ms Quinn said Mr Russell’s account was honest despite not putting himself in the “best light”.
“It may be a lesson to Mr Russell, drinking such an amount…caused him a lot of problems,” she said.
The former commando was accused of striking Mr Pate on the face.
Last year Mr Pate told the court Mr Russell threatened him by saying “Do you want to take me on? I’ll throw you over the balcony”.
He told the court he asked Mr Russell to go away before he was allegedly hit “out of nowhere”.
Mr Pate claimed he was standing poolside with two friends – a couple he met earlier that day – when Mr Russell came up behind them and began kissing the neck and touching the chest of one of the men, which prompted the altercation.
But during his evidence in November, Mr Russell told the court he approached the group and was met with a demand to “f**k off”.
Mr Russell told the court he had kissed one of the men at the boat party, as well as at the pool and was only informed when he approached the group that the man had a boyfriend.
The former soldier said the argument became heated and he was also told: “No one gives a f*** about you and your veteran mates killing yourself.”
But two men who were in the group told the court they denied overhearing that comment.
Mr Russell claims he was involved in a “push-and-shove” but at no point did he throw a punch.
“Absolutely not and we were that close you wouldn’t have been able to throw a punch,” Mr Russell told the court in November.
His solicitor Michael Bowe told the court on Monday his client was standing within “50 centimetres” of the other men.
Mr Bowe conceded his client had told the men he would “throw” them off the balcony, but argued it was a reaction to the other men advancing on him.
Police prosecutor Alex Borg told the court Mr Russell was too intoxicated to have a clear recollection of events, as he had to call the host of the pool party several days later to ask whether he hit anyone.
But Mr Bowe said his client had seen a newspaper story about the alleged assault and called to get an “objective” version of events.
“His memory is good, he remembers everything…he doesn’t remember a punch he didn’t throw,” Mr Bowe told the court.
Outside court, Mr Russell said he had learned a lot of “personal lessons” and was glad to put the assault case behind him.
He said he allowed himself to become “too intoxicated” and conceded there was a “miscommunication” at the party.
“I’m very sorry that it came to this in the court, there’s a lot of personal lessons for me to take away in my own conduct,” Mr Russell said.
“The law was not broken I’m glad the judge did find that as she did, that’s that.”
Last year Mr Russell successfully sued the ABC for defamation and was awarded more than $400,000 in damages.