Court rejects Ben Roberts-Smith’s attack on star reporter
An appeal court has rejected an attack made by Ben Roberts-Smith’s lawyers on the credibility of the star reporter at the centre of the former soldier’s multimillion-dollar defamation battle.
The Age and The Sydney Morning Herald’s investigative journalist Nick McKenzie gave evidence for the first time in the legal feud this year, after Roberts-Smith attempted to widen his appeal against his defamation loss to include evidence of a “secret recording” of McKenzie.
Ben Roberts-Smith (left) and Nick McKenzie outside the Federal Court in Sydney earlier this month.Credit: Sam Mooy
The appeal had already been heard in February last year when Roberts-Smith applied in March this year to introduce the recording into evidence.
In decisions on Friday, the Full Court of the Federal Court dismissed Roberts-Smith’s defamation appeal and refused his application to widen the appeal.
The court rejected an attack on McKenzie’s credibility as a witness, made by Roberts-Smith’s lawyers in court.
“We reject the submission that he should be treated as a witness of no credit and generally accept his evidence,” Justices Nye Perram, Anna Katzmann and Geoffrey Kennett said. “We did not perceive any significant contradictions or implausibilities in his evidence.”
The court heard Roberts-Smith’s former lawyers received an email from an anonymous Proton account on March 15 this year headed: “Secret McKenzie recording.”
“It is clear that the recording is of part of a longer conversation and has been made by editing a longer audio file,” the court said.
“There is no way of knowing how long the whole conversation was and what topics were being discussed before and after this decontextualised snippet.
“Nor can one be confident that the contents of the recording have not been doctored by removing sections or splicing together different parts of a recorded conversation.”
During the recorded conversation in 2021, McKenzie told a prospective witness in the defamation case, dubbed Person 17, that Roberts-Smith’s now ex-wife Emma Roberts and her friend Danielle Scott were “actively … briefing us on his legal strategy in respect of you”.
“I shouldn’t tell you. I’ve just breached my f---ing ethics in doing that,” he said.
“The reason I told you that was to say ... we’ve got this, and ... they’re not hostile to you despite your worst fears.”
Person 17, with whom Roberts-Smith had an extramarital affair, later gave evidence in court for the newspapers.
Roberts-Smith’s lawyers claimed there was a “miscarriage of justice and a denial of a fair trial” because McKenzie had allegedly obtained legally privileged information about the former soldier’s strategy in the court case.
Legal professional privilege protects the confidentiality of some communications between a person and their lawyer.
McKenzie denied receiving privileged information and the court accepted his evidence.
“[It] is apparent from the contents of the recording that Mr McKenzie was seeking to reassure Person 17 and strengthen her resolve in relation to giving evidence in the defamation proceedings,” the court said.
The judges said McKenzie’s comment about a lack of hostility should be “understood to be referring to the attitude of Ms Roberts and Ms Scott”.
The newspapers had argued the recording should not be admitted into evidence because it was likely the recording was made by Person 17 in Queensland, unbeknown to McKenzie, and it was a criminal offence in most cases to communicate it to a third party.
“[E]ven assuming as we have that Person 17 shared the recording unlawfully, we concluded that the discretion … should not be exercised to exclude it,” the court said.
Ultimately, however, the recording did not persuade the court to reopen the appeal. Roberts-Smith’s application was dismissed with costs.
Roberts-Smith has foreshadowed he will seek special leave to appeal in the High Court.
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