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ABC targeted ex-commando in 'PR exercise', lawyer says

Nikki Short/AAP PHOTOS

Former army commando Heston Russell enjoyed an outstanding reputation before the ABC seriously defamed him to stroke its own ego, his barrister says.

Mr Russell is suing the national broadcaster over two reports alleging commandos from the platoon he led executed an unarmed prisoner in Afghanistan in mid-2012 because there was no room on a helicopter.

The second ABC article in November 2021 reported an investigation into the platoon had been confirmed by the defence department when it had not been, linking it to the earlier article reporting the allegation in October 2020.

Mr Russell was named as platoon leader by the broadcaster.

He denies the allegations and is suing for damages, saying his reputation was ruined and his feelings hurt by the reporting.

The ABC's lawyers will give closing addresses on Wednesday.

Mr Russell's barrister Sue Chrysanthou SC told the Federal Court on Tuesday the ABC seriously harmed Mr Russell's public standing and had admitted doing so.

The articles by journalists Mark Willacy and Josh Robertson were wrong, she said, and the ABC could not prove the allegations, forcing it to rely on a defence that publishing them was in the public interest.

Mr Russell acknowledged the publications concerned issues of public interest, but Ms Chrysanthou said that was not the reason later articles went online.

"There was a significant body of evidence which demonstrates these articles were a PR exercise," she said.

The article claiming Defence had confirmed an investigation into the platoon's conduct was based on a Freedom of Information request being denied and the department had not provided any confirmation.

Ms Chrysanthou said Willacy's FOI requests were worded to ensure they would be rejected, and then interpreted by Robertson in a "dishonest, unmeritorious" way to report the alleged investigation.

That report was merely "ego protection" for Willacy after criticism from rival media outlets he described as "bottom feeders".

In addition, nobody could explain who was responsible for a press release accompanying the later article and why it was issued, she said.

ABC Investigations put itself forward as an "elite group of award-winning journalists" and knew its reporting would be treated as credible, requiring it to be held to a higher standard.

"There is no public interest in being lied to by the ABC about a serious allegation of murder in relation to a group of soldiers who were not afforded the opportunity to even respond," Ms Chrysanthou said.

November platoon was also identified despite the US marine making the allegation not naming a platoon, or even identifying the involvement of commandos as part of a broader special forces campaign.

"He did not think it was Oscar platoon, but he had no evidence it was November platoon," Ms Chrysanthou said, recounting a portion of Willacy's evidence she described as an admission about a lie.

Willacy's defence would only make sense for someone who had no idea what they were doing, Ms Chrysanthou said.

"He's too experienced for it to be a mistake," she said.

Justice Michael Lee said on Tuesday the potential awarding of damages could depend on what he makes of Mr Russell's conduct in the trial, and whether his evidence is believed.

"I have significant reservations about accepting his evidence on any matter that is contested," Justice Lee said.

Mr Russell was cross-examined about an invoice sent to Robertson about charitable donations, later acknowledging it was not genuine.

"Whether that was deliberately false evidence or occasioned by confusion is something I have to decide," the judge said.

Ms Chrysanthou said alterations to the invoice were limited to the address, not the amounts.

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