The ABC has waved the white flag in its defamation fight against war hero Heston Russell.
The national broadcaster’s surrender comes just two weeks before the matter was set for trial.
The former special forces commando Russell sued the ABC and two of its journalists for defamation, claiming that stories published about him made it look like he was being investigated for shooting an unarmed prisoner.
The stories, written and produced by journalists Mark Willacy and Josh Robertson, aired on television, radio and online on November 19, 2021.
The ABC dropped the ‘truth’ defence and indicated they would defend their articles about Russell relying on public interest.
But on Wednesday the ABC’s barrister Lyndelle Barnett advised the court they had “withdrawn the public interest defence” and accepted that Russell was entitled to judgment.
It is believed costs in the case will exceed $1 million.
Russell alleged an ABC article published in 2021 claimed soldiers from the November commando platoon were being investigated over actions in Afghanistan in 2012.
It was claimed the platoon murdered an unarmed prisoner rather than put him on an extraction flight.
The article quote a US helicopter pilot said he heard a “pop” on the radio which he believed was a gunshot.
Russell has called on the ABC to apologise, take down the articles, and pay aggravated damages on top of court costs.
The ABC’s barrister said they would prefer to surrender the case rather than give up the identify of their source for the story whom they had promised to protect.
“It is not a course that has been taken lightly, but it does demonstrate the significance of those promises to my clients,” Barnett said.
In a judgment earlier this year, Justice Lee said it was “strange” that the source’s identity was protected since as he was pictured in articles and footage of him was also aired on multiple television programs.
“Both articles record he does not want to be identified because he 'fears retribution',” the judgment, Justice Lee said.
“If those responsible for publication of 'Josh's' photograph within the ABC though there was substance in 'Josh's' fear of retribution, they must have assumed his potential assailants were a somewhat incurious and lazy lot.”