Former commando Heston Russell awarded $390000 in damages ...

Former commando Heston Russell has been awarded $390,000 in damages in his defamation case against the ABC, after a judge rejected the broadcaster's public interest defence.

The retired special forces major sued the ABC and two of its investigative journalists in the Federal Court over stories that reported allegations from an ex-US marine nicknamed "Josh".

Josh made accusations against unidentified soldiers that an unarmed Afghan prisoner was executed in 2012 because there wasn't enough room in a helicopter.

Mr Russell commanded the November Platoon at that time and sued based on 2021 publications being read with earlier reporting about the allegations from Josh, who said he heard a "pop" over a radio but was not an eyewitness.

Justice Michael Lee had already ruled 10 defamatory imputations were conveyed by the stories.

Today, the judge rejected the ABC's public interest defence.

Justice Lee said he generally accepted the evidence of journalist Mark Willacy, who testified about his dealings with the source and what other information he possessed at various times.

The court previously heard the 2021 article was published following an unsuccessful Freedom of Information (FOI) request, interpreted as having "confirmed" there was an investigation.

Justice Lee said he had no doubt Willacy believed publishing the matter was in the public interest.

However, he also considered the journalists' reading of the FOI response, Josh's allegations and the seriousness of them, Willacy's drafting choices, and the lack of urgency other than a means to "vindicate his earlier reporting".

"Taking his conduct as a whole, his belief was not reasonable in the circumstances," Justice Lee said during a summary of his 119-page decision.

The judge said the 2021 article "overstated the cogency of the evidence in the ABC's possession" and was published following several "missteps", including the failure to seek a response from the veteran.

But he was not satisfied the publication was motivated by any improper intention.

Justice Lee believed Willacy and his editor, Jo Puccini, had become "defensive" about any criticism of their initial article after Mr Russell started to engage publicly about it.

He said they considered it "emblematic of a broader culture war attack on all the other war crimes reporting of ABC investigations".

The court found Mr Russell had himself directed traffic to the publications after he "self-identified" and sought about "taking control of the public narrative".

Justice Lee said he was "no shrinking violet in drawing attention to himself and the publications".

He said Mr Russell's evidence of the hurt caused was not persuasive.

"His actions are consistent with someone who has not suffered significant hurt, but rather embraced the public controversy occasioned by the dispute and used it to further his personal causes and profile."

The judge, however, accepted evidence from other people, including relatives, who explained the toll on the veteran.

The case took a major twist two weeks out from the trial amid an argument about Josh's identity, when the ABC dropped its public interest defence after being ordered by the court to hand over documents that would reveal his identity.

In a surprise reversal that same week, the broadcaster sought to reinstate the defence and proceed to a trial after revelations Mr Russell's lawyers may have already established Josh's identity.

Before that course was taken, the ABC issued a press release describing the protection of sources as "crucial" and insisting it wanted an opportunity to defend the journalism, but a "greater principle" was at stake.

Justice Lee today described that release as "at best, misleading" and a "death over dishonour" approach.

"The press release was an exercise in damage control expressed in such a way as to hold up ABC Investigations as an exemplar of journalistic standards against an overreaching court," he said.

"Evidently, the ABC wanted to promote the message that the court was forcing its journalists to reveal their sources when, in truth, the ABC had been responsible for its inability to maintain the statutory source privilege."

Mr Russell came under scrutiny during his cross-examination over testimony about a receipt he sent ABC journalist Josh Robertson in relation to a separate story, which was not the subject of the proceedings.

Robertson was looking into a dispute between Mr Russell and a veteran charity over money raised on his OnlyFans account when he was sent the receipt for fitness equipment bought with some of the funds.

The veteran initially insisted in court it was a genuine invoice, but after the judge heard of alterations made to the document, he conceded it was "a replication of the original invoice", and claimed he was "confused by the question".

Justice Lee today rejected those claims of confusion and said leaving aside his "false evidence" about a peripheral issue, the veteran was "generally not an impressive witness".

"He was regularly non-responsive and was unwilling to make concessions he regarded as contrary to his case," he said.

"All in all, I do not consider it safe to place any reliance upon his evidence."

Outside court, Mr Russell said his three-year fight to clear his name was the hardest battle of his life. 

"I've had to fight harder for the last three years, mentally and emotionally, than I ever had to fight ... physically in combat, I do not exaggerate," he said. 

"This whole ordeal has traumatised me and some of my soldiers more than any enemy we ever faced overseas.

He said the defamation case against the ABC was part of an oath he made to his grandfather, who fought in Korea and Vietnam

"He said ... 'Don't let them do to your soldiers what they did to mine when we came back from Vietnam'."

Mr Russell's counsel, Sue Chrysanthou SC, said she would seek indemnity costs for the entirety of the proceedings based on a settlement offer.

The court heard that offer, made in mid-September last year, was for $99,000 and the removal of the articles.

The case will return to court on October 24.