Federal judge Michael Lee on Tuesday (24/10/23) awarded ex-commando Heston Russell $412,000 compensation in his defamation case against the ABC but at the same time found Heston Russell gave deliberately false evidence.
It would have to be very rare that someone who is found to be a perjurer walks away with a fist full of dollars in a defamation case.
But the whole case is strange as the ABC should have settled long ago, Heston Russell walks away with $412,000 cash but with a reputation that is probably more damaged than if he hadn’t instituted the case and he was even exposed for selling a pornographic picture of himself on the internet.
To top it off the ABC agreed to pay Heston Russell some of the “costs on an indemnity basis” which is a higher rate than normal but it gets worse.
Justice Lee acknowledged both parties consented to costs on an indemnity basis after that date but said he would have made different orders but for that consent.
“I made a finding that Mr Russell gave deliberately false evidence to the court,” he said. “It is obvious but worth remarking that it is fundamental to the just resolution of disputes the witness tells the truth.”
Last week, Justice Lee said “no party emerges from this case without criticism”. (Click here to read more)
The biggest issue possibly facing Heston Russell is that the platoon he commanded was reported in 2019 to be under investigation for war crimes. The SMH reported in 2019:
One summary execution being investigated by the Brereton inquiry was carried out by a member of the Commandos November platoon during an operation in southern Afghanistan on October 3, 2012. The commando has confessed that he shot a detained Afghan man in the back of the head, according to documents detailing his admissions. The confession suggests that other detainees were killed in the same manner and that other commandos had participated in a summary execution.
“Various members [of the platoon] … also carried out orders to get rid of the prisoners by shooting them,” says one document outlining the confession, which has been filed with lawyers.
The soldier who unlawfully killed a detainee on October 3, 2012 also disclosed a more senior commando directed him to “take the prisoner … and get rid of them” in a discreet location. The commando said “he was told it was OK because he was a bad guy”.
The commando has confessed that he subsequently “executed with his pistol” the prisoner, whom he describes as an “innocent man”. (Click here to read more)
Given the above, Heston Russell’s Commandos November platoon is almost certain to still be under investigation for war crimes and having a judge say, “I made a finding that Mr Russell gave deliberately false evidence to the court”, which is the definition of perjury, wont be helpful if Heston Russell is called to give evidence regarding the alleged war crimes.
The defamation case
The Australian former army commando was defamed in reports alleging members of the platoon he led in Afghanistan executed a prisoner because the detainee would not fit on a helicopter.
The allegation came via a US marine, who heard a “pop” over the radio in mid-2012 followed by advice there would be six prisoners on board, not seven.
The claim was published in October 2020 and revived in November 2021, when the ABC reported the Department of Defence had confirmed a criminal investigation into the November platoon, which the department later disputed. (Click here to read more)
The ABC should have settled
In December 2021 the ABC Media Watch show published the below video which made it obvious the ABC had a weak defence in Heston Russell’s defamation case, yet the ABC did not settle. (Click anywhere on the below video to watch)
“Russell’s solicitor sent an offer to ABC’s lawyers to settle for $99,000 plus legal costs and the removal of the articles from publication in September 2022.” (Click here to read more) But the ABC still refused to settle.
Now the ABC will have to pay costs of both parties which will be somewhere around $3 million whereby if they had settled with Russell in 2022 when he offered “$99,000 plus legal costs” it probably would have been less than $500,000 in total.
Russell set up an OnlyFans account and the ABC wrote a story in December 2021 titled “Former soldier and Values Party founder Heston Russell lied about selling porn online while fundraising for veterans charity” which starts off:
A high-profile former soldier who plans to run for federal parliament sold pornography while fundraising for a veterans charity and lied about it.
Australian Values Party founder Heston Russell misled the charity about his use of the website OnlyFans and handed over less than a third of the money he claimed to have raised, according to the charity’s staff. (Click here to read more)
The ABC’s OnlyFans article quoted from and linked above is still on the internet whereas the ABC was forced to take down the 2 articles defaming Heston Russell.
While giving evidence about the OnlyFans account Heston Russell was found by Justice Lee to have given “deliberately false evidence to the court”.
The ABC reported regarding Russell’s perjured evidence at the trial:
Mr Russell was questioned about a receipt he sent to ABC journalist Joshua Robertson in relation to another story about a dispute he was having with a veteran charity over money he raised on OnlyFans.
He initially agreed it was a genuine invoice, but after the court heard the document had been altered, Mr Russell conceded it was a “replication” of the original, claiming he was confused by the question. (Click here to read more)
The ABC should have settled, and I think overtime Heston Russell might reflect back and wish he had never instituted the defamation case.
I think we will be hearing more about Heston Russell in the future.
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Categories: Federal Court of Australia