Channel 9’s legal threat to woman over leaked Ben Roberts-Smith trial tape

The Nine Network reportedly accused a woman of leaking a tape that allegedly shows the media company had unlawfully obtained information regarding former soldier Ben Roberts-Smith’s defamation trial.

Ben Roberts-Smith arrives at the Federal Court in Sydney. Picture: Christian Gilles / NewsWire

The Nine Network reportedly accused a woman of leaking a tape that allegedly shows the media company had unlawfully obtained information regarding former soldier Ben Roberts-Smith’s defamation trial and also threatened to sue her.

In a secretly recorded call, Nine investigative reporter Nick McKenzie told Person 17 – a former lover of Mr Roberts-Smith – that a friend of Mr Roberts-Smith’s estranged wife was “actively, like, briefing us on his legal strategy” before adding “I’ve just breached my f...ing ethics”, the Federal Court has heard.

Mr Roberts-Smith unsuccessfully sued Mr McKenzie and Nine over a series of stories that alleged he had committed war crimes while serving in Afghanistan between 2009 and 2013.

He is now appealing that decision.

At one point Person 17 sent emails to Nine stating she could expose the claim that the network had unlawfully obtained privileged information about Mr Roberts-Smith’s legal strategy and that she had the audio recording of Mr McKenzie as proof, Sky News host Sharri Markson reported on Sunday.

In an email, Person 17 wrote that “these women were passing on confidential & privileged information to Nick as far back as mid-late 2020 … what are you going to do, when all of that comes out to the judge?”

Ben Roberts-Smith, pictured outside the Federal Court in Sydney.

She also wrote: “There is evidence of Nick … telling me what these women were supposedly saying prior to giving evidence”.

Nine and Mr McKenzie have strenuously denied receiving any confidential or privileged information.

Sky News broadcast the tape in March, prompting Mr Roberts-Smith to try and reopen his appeal case in court – a case that is now ongoing.

After the story broke, Nine’s lawyers threatened to sue Person 17 and also accused her of leaking the recording to Mr Roberts-Smith and Sky News.

Nick McKenzie (R) leaves the Federal Court in Sydney. Picture: Christian Gilles / NewsWire

This is despite Nine calling her as a witness and claiming she was a victim of domestic violence during Mr Roberts-Smith’s first defamation trial.

Nine did not prove the domestic violence allegations to be true in the defamation trial.

Person 17 sent back a legal letter denying she had leaked the recording.

In the Federal Court last week, Mr McKenzie said he was surprised the call between him and Person 17 had been leaked.

Mr Roberts-Smith’s barrister, Arthur Moses SC, put it to Mr McKenzie that mentioning “legal strategy” in the call showed the reporter knew he had accessed legally privileged information.

But Mr McKenzie said he did not think any of the information was privileged and described it as “gossip”.

Nine’s barrister, John Sheahan KC, argued Mr Roberts-Smith had been given a fair trial in relation to his service overseas and that any alleged access to the opposing side’s legal strategy did not undermine the verdict against him.

Mr Sheahan said it also did not require “both parties be brought back for a retrial”.

The case in relation to Mr Roberts-Smith’s appeal continues.

Nine was asked to comment.