Journalist ‘surprised’ at threat to sue over alleged ethics breach

Nine investigative reporter Nick McKenzie said he was “surprised” a witness threatened to sue Nine over his “breach of ethics” after a secretly recorded phone call between the pair was finally played in a Federal Court appeal by Ben Roberts-Smith.

Ben Roberts-Smith arrives at Federal Court on Friday to appeal following his failed defamation case. Picture: NewsWire / Max Mason-Hubers

Nine investigative reporter Nick McKenzie said he was “surprised” a witness threatened to sue Nine over his “breach of ethics” after a secretly recorded phone call between the pair was finally played in the Federal Court.

Mr McKenzie shifted uncomfortably in the witness box on Friday as the recording was broadcast to the courtroom on four separate screens, laying out word for word the moment he reassured a witness that he had confidential information from within Victoria Cross recipient Ben Roberts-Smith’s legal camp.

The SAS veteran’s legal team, led by barrister Arthur Moses SC, alleged the 85 second “targeted snippet” of conversation between Mr McKenzie and a person identified as Person 17 amounted to a miscarriage of justice.

Mr Roberts-Smith lost a defamation case against Nine newspapers and Mr McKenzie over reports that he had committed war crimes while serving with the Australian Defence Force in Afghanistan.

He appealed against that decision and is seeking to get the appeal reopened.

In the secretly taped call, Mr McKenzie is heard reassuring Person 17, a former lover of Mr Roberts-Smith, that he knew about the legal strategy planned against her by the veteran’s lawyers.

Specifically he tells her that Danielle Scott, best friend of Mr Roberts’ then estranged wife Emma, is “actively like briefing us on his legal strategy, in respect of you”.

“We anticipated most of it, one or two things now we know which is helpful,” he is heard to say before adding: “I’ve just breached my f***ing ethics.”

Journalist Nick McKenzie arrives at the court on Friday for the appeal by Ben Roberts-Smith. Picture: NewsWire / Max Mason-Hubers

Mr Moses grilled Mr McKenzie on whether he knew Person 17 was wavering about giving evidence in the defamation trial at the time of their call.

Mr McKenzie said he was surprised Person 17 had turned on him and threatened to sue him and Nine for “breach of ethics” and that a call between them had been leaked.

Mr Moses said references to “legal strategy” and “breached ethics” during the call proved the reporter knew he had been given legally privileged information.

However, Mr McKenzie said he “never thought” any of the information was privileged and was nothing more than “gossip” between friends and “hearsay from the friend of an (estranged) wife”.

Arthur Moses KC, who is representing Ben Roberts-Smith.

Nine managing director of publishing Tory Maguire.

In his final submissions Mr Moses said Mr McKenzie’s conduct raised questions over his “ethical compass” and “credibility” particularly when he was asking the court to accept “his version of the damning evidence”

Mr Moses said the reporter refused to accept his “truly awful conduct” was improper and “crossed the line” and instead maintained it was justified as it served the story.

Nine’s barrister John Sheahan, KC, argued the information disclosed in the call was not privileged because the information was available from other sources.

He said there had been a fair trial and argued the alleged access to another side’s legal strategy did not undermine the verdict, or “require both parties be brought back for a retrial”.

The Full Court of the Federal Court, Justices Nye Perram, Geoffrey Kennett and Anna Katzman, have reserved their judgement.