A former special forces soldier who is suing the ABC for defamation may not be able to see the end of his trial in person, as he is stranded in Europe.
Heston Russell is suing the ABC and two investigative journalists for defamation over stories published in 2020 and 2021 he claims made it look like he was being investigated for shooting an unarmed prisoner.
The stories Mr Russell claims defamed him, written and produced by journalists Mark Willacy and Josh Robertson, aired on television, radio and online in October 2020 and more than a year later on November 19, 2021.
Throughout a six-day trial earlier this month, the court was told the allegations arose from a US Marine named “Josh”, who contacted Mr Willacy about his time in Afghanistan working with Australian soldiers.
In an email to Mr Willacy, “Josh” said he was not a witness but heard a “pop” on the radio he believed was a gunshot.
Mr Russell was present for every minute of the trial in Sydney’s Federal Court building at Queen’s Square, sitting in the back of the court as his legal team described the “violation” he felt when the articles were published.
The trial is expected to come to a close this week, with two days of final submissions set down for Tuesday and Wednesday from both Mr Russell’s legal team and the ABC.
However, it seems Mr Russell may not be able to make it after being stranded in Europe when his flight was cancelled due to severe weather.
Severe warnings were issued across holiday hotspots of Majorca, Ibiza, Menorca and Formentera on Sunday, with more than 100 flights cancelled or diverted due to strong winds and rain.
After spending time in Ibiza, the former soldier took to his Instagram page early Monday morning to show hundreds of travellers stranded at the airport.
“Airport carnage … flights are cancelled …” he wrote on the video, which shows travellers sprawled out on the floor of the airport.
It is understood Mr Russell is trying to make his way to Sydney by Tuesday morning.
On the first day of the trial against the public broadcaster, high-profile defamation barrister Sue Chrysanthou SC, representing Mr Russell, slammed the ABC’s behaviour as “breathtaking in its audacity”, telling the court its case was “absolutely doomed”.
The ABC is seeking to rely on a new public interest defence that was introduced in July 2021 in NSW and is being tested for the first time in this case.
Earlier this year, Justice Lee found 10 defamatory imputations put forward by the national broadcaster were carried following a preliminary hearing in November 2022.
Justice Lee found the most serious meanings were that Mr Russell was involved in the killing, “habitually left ‘fire and bodies’ in his wake” and “knowingly crossed the line of ethical conduct” while serving in Afghanistan.
While the stories contained a denial from Mr Russell, he claimed the use of his name and photo implied he was involved in the death of an Afghan prisoner.
Mr Russell fought back tears as he gave evidence earlier this month, telling the court he was “absolutely shocked” when the articles came to light.
The former soldier is asking for the ABC to remove the article, pay aggravated damages and stop repeating the allegations.
The hearing before Justice Michael Lee will resume on Tuesday.