Commando claims ABC article 'defamatory'

Lawyers for former commando Heston Russell have questioned readers' "impression" of an article published by the ABC they say painted him as a war criminal. 

The article, published in November 2021, included claims of an investigation into an Australian platoon operating in Afghanistan as well as allegations by a US marine he indirectly witnessed Australian soldiers executing a hogtied prisoner.

Mr Russell launched defamation proceedings against the ABC and two journalists over the article, which continued in the Federal Court before Justice Michael Lee on Wednesday.

High-profile defamation lawyer Sue Chrysanthou SC, who is representing Mr Russell, argued the article's assertion his platoon was under investigation, along with the publication of his name and picture, left the reader with the impression he was involved in the shooting.

"The only commando identified in any of the publications is my client. A huge colour photo of him and his full name," Ms Chrysanthou told the court.

"This isn't an analysis of a haiku, it's something where a person is flicking through their phone on a bus or reading these things first thing in the morning." 

The national broadcaster is arguing defences of contextual truth, in that Mr Russell was the commander of the platoon which was under investigation, and that the content of the article was in the public interest.

Lawyers for the ABC say it is true members of November platoon were the subject of a criminal investigation by the Office of the Special Investigator into their conduct in Afghanistan, according to court documents. 

Ms Chrysanthou argued Mr Russell was implicated as either being guilty of shooting the prisoner himself, or of somehow being involved, despite the article not directly naming him as responsible.

She said an "ordinary" person reading the article would be left with that impression.

"It is a shocking allegation of murder ... and the only person the reader is left with being responsible for it is my client," Ms Chrysanthou told the court.

The ABC stated in court documents it contacted Mr Russell prior to the article being published and asked if he had any knowledge of an investigation, which he said he did not.

Ms Chrysanthou said Mr Russell's denial of the allegations which was included in the article, rather than adding balance, would most likely be interpreted as him "lying".

"The reader would think, 'well he would deny it wouldn't he'," Ms Chrysanthou said.

Lawyer for the ABC, Lyndelle Barnett, said there were several "hoops the reader had to jump through" to arrive at the conclusion Mr Russell was guilty of murder.

"Taking the article as a whole, including the denial, the reader would fall short of empathic guilt in my submission," Ms Barnett told the court. 

She argued that allegations of wrongdoing against one or more members of the platoon did not implicate the group as a whole and would not be interpreted as such by readers.

"The ordinary person wouldn't take it to mean it was every member of a platoon that was shooting a prisoner," Ms Barnett said.

Mr Russell is seeking for the ABC to remove the article and pay aggravated damages on top of his court costs.

Google Analytics show the article was viewed 86,847 times from when it was published until October 2022.

The next hearing date has been listed for March 24.