‘Damning’ audio at centre of Ben Roberts-Smith defamation retrial bid

The veteran is claiming a miscarriage of justice after his failed defamation case against Fairfax resulted in him being found a war criminal by the Federal Court.

An audio recording at the centre of disgraced veteran Ben Roberts-Smith’s defamation retrial bid has been deemed “shocking” and a “direct acknowledgment of unethical conduct,” a court has been told.

The Victoria Cross recipient failed in his bid to sue Nine Newspapers in 2023 for a series of articles alleging that he had committed war crimes, with the Federal Court instead finding, on the civil standard of the balance of probabilities, that the allegations were true.

Roberts-Smith is claiming a miscarriage of justice in his failed defamation case against Fairfax media after recordings surfaced of investigative reporter Nick McKenzie allegedly admitting to accessing information relating to the veteran’s legal strategy during trial.

Ben Roberts-Smith is claiming a miscarriage of justice in his failed defamation case against Fairfax media. Picture: NCA NewsWire / Jeremy Piper

Roberts-Smith did not appear at the Federal Court on Wednesday where various submissions by his lawyers were heard ahead of a hearing into the potential defamation retrial.

Bombshell audio at the centre of the case, made public last month, revealed Mr McKenzie allegedly claimed to a witness he had been briefed on parts of Roberts-Smith’s legal strategy.

Arthur Moses SC, acting on behalf of Roberts-Smith, told Justice Nye Perram on Wednesday Mr McKenzie had allegedly made a “series of damning admissions” in the audio recording.

“To say that its contents are shocking is an understatement,” he said.

“They’re direct acknowledgments of covert and unethical conduct … they frame the entire application.”

Referring to an affidavit by Mr McKenzie, Mr Moses told the court that the reporter claims he did not know the information he received was privileged.

“This isn’t a fishing expedition … we don’t think, we know what’s gone on here,” he said.

“We know that Mr McKenzie by his own words has made admissions in the audio.”

Mr Moses added that Mr McKenzie in his affidavit had offered a “retrospective reinterpretation of what was said in the recording”.

In the recordings, Mr McKenzie told a witness that he was given the information by Robert-Smith’s ex-wife Emma Roberts and her friend Danielle Scott and he was breaching his ethics by divulging the information.

“They’ve actively like briefing us on his legal strategy, in respect of you,” he says in the recording.

“We anticipated most of it, one or two things now we know which is helpful.

“I’ve just breached my f***ing ethics in doing that, like this has put me in a s*it position now, like if Dean (Nine lawyer Dean Levitan) knew that and Peter (Nine lawyer Peter Bartlett) knew that, I’d get my arse f***ing handed to me on a platter.”

The court was also told on Wednesday that more than 2,000 WhatsApp messages between Mr McKenzie, Mr Levitan and Mr Bartlett are expected to be manually reviewed.

There is no suggestion of any wrongdoing by any lawyers in Nine’s legal team acting on the case.

Sue Roberts-Smith, has been vocal in her support of her son’s retrial bid. Photo: NewsWire/ Gaye Gerard

Several subpoenas have also since been issued on behalf of Ben Robert-Smith’s lawyers ahead of the hearing next week, including to the ABC’s MediaWatch program, and to Mr McKenzie.

The broadcaster is expected to produce evidence of discussions between Mr McKenzie and the MediaWatch program after the case against Mr McKenzie was examined in a report in March.

The former SAS soldier’s mother, Sue Roberts-Smith, who has been vocal in her support of her son’s retrial bid, made an appearance in court on Wednesday, sitting quietly and taking notes during the matter.

She and Len Roberts-Smith told reporters last month that their son “has been subject to vilification by Nick McKenzie, Nine Media, Fairfax and others for almost a decade now”.

“We note that the respondents admit the recording published of the conversation McKenzie had with Person 17 is genuine; that it did occur,” they said.

“The conversation is extremely concerning on a number of levels.”

The retrial hearing will span over two days next week in the Federal Court in Sydney.