By Michaela Whitbourn
A woman who gave evidence for The Age and The Sydney Morning Herald as part of the newspapers’ defence to Ben Roberts-Smith’s multimillion-dollar defamation case later threatened to sue the mastheads and one of its top investigative reporters, a court has heard.
Roberts-Smith spectacularly lost his defamation case in 2023 after Federal Court Justice Anthony Besanko found he was complicit in the murder of four unarmed prisoners while he was deployed in Afghanistan.
Ben Roberts-Smith (left) and Nick McKenzie outside the Federal Court in Sydney on Friday.Credit: Sam Mooy
The former Special Air Service corporal launched an appeal and had been awaiting the court’s decision following a hearing last year.
Roberts-Smith applied to reopen his appeal in March after a “secret recording” emerged of a phone call between The Age and the Herald’s senior reporter Nick McKenzie and a witness in the defamation trial, dubbed Person 17 to protect her identity. McKenzie co-authored the articles at the centre of the defamation case.
The conversation took place before Person 17, who had an extramarital affair with Roberts-Smith, gave evidence in the trial in 2022.
The Full Court of the Federal Court heard Roberts-Smith’s application to reopen his appeal to introduce evidence relating to the recorded conversation over a two-day hearing that concluded in Sydney on Friday.
Lawyers for the former soldier argue there was a “miscarriage of justice and a denial of a fair trial” because of McKenzie’s alleged conduct.
Person 17 alleged during the trial that Roberts-Smith punched her on the left side of her face and eye in 2018. Roberts-Smith vehemently rejected that allegation, and Besanko found Person 17’s testimony was not sufficiently reliable to prove the alleged assault.
However, Besanko found some of Roberts-Smith’s behaviour towards Person 17 was “intimidatory, threatening and controlling”.
On Friday, Roberts-Smith’s barrister, Arthur Moses, SC, put to McKenzie that Person 17 had threatened legal action against him and the newspapers after the defamation trial.
“She threatened to sue you and Nine in respect of your conduct in the proceedings before Justice Besanko, correct?” Moses said.
“Yes,” McKenzie said.
“She alleged that you had shared with her privileged information belonging to Mr Roberts-Smith?” Moses asked.
“She lodged a draft statement of claim of allegations, that’s correct,” McKenzie said.
McKenzie told the court that he did not accept that he “ever got legally privileged information”.
Roberts-Smith signs an autograph for a supporter outside the Federal Court in Sydney on Friday.Credit: Sam Mooy
Legal professional privilege protects the confidentiality of some communications between a person and their lawyer.
McKenzie rejected a suggestion by Moses that he had lied in his evidence.
The audio of McKenzie telling Person 17 he had received details of Roberts-Smith’s legal strategy in the defamation case was published by News Corp’s Sky News in March, and was emailed to Roberts-Smith’s legal team via an anonymous Proton account.
According to a transcript, McKenzie, who appeared to be attempting to reassure Person 17 about giving evidence in the case, said Roberts-Smith’s now ex-wife Emma Roberts and her friend, Danielle Scott, were “actively … briefing us on his legal strategy” in the defamation case.
“I shouldn’t tell you. I’ve just breached my f---ing ethics in doing that,” he said.
McKenzie told the court on Friday that legal strategy did not mean privileged legal advice.
“If Danielle tells me that Emma has told her that she’s been instructed [by her then-husband] to lie or fabricate evidence, and that’s the legal strategy Ben Roberts-Smith intends to use to win the case, I don’t think it’s wrong for a witness or a witness’ friend to tell me.”
Roberts gave evidence during the trial for the newspapers. She said Roberts-Smith had pressured her to lie and say they were separated at the time of his affair.
Nine’s legal team told the court on Thursday that the 85-second recording was a snippet of a longer conversation and should be treated with caution. McKenzie was unaware it was recorded.
Roberts-Smith’s barrister Arthur Moses, SC (centre), and colleagues arrive at the Federal Court in Sydney on Friday.Credit: Sam Mooy
Lawyers for Roberts-Smith have said there was a “real possibility” the outcome of the trial would have been different if McKenzie had not engaged in this conduct. Roberts-Smith is seeking an order entering judgment in his favour or a retrial.
Justice Nye Perram, one of three judges who heard Roberts-Smith’s application, said legal professional privilege was an “immunity” or an entitlement not to produce a document or other material. He questioned what might be meant by alleging a third party who received such information breached privilege.
Moses said privilege was a “substantive right”, and the alleged misconduct in this case was the “covert and unauthorised acquisition” of confidential and privileged information.
But the media outlets’ barrister, John Sheahan, KC, said in closing submissions that there was “a full and fair trial” of the issues in this case, and it was wrong to suggest that having access to an opponent’s legal strategy amounted to misconduct.
Case management procedures used in court in fact “embrace a ‘cards on the table’ approach to litigation”, Sheahan said.
He said Roberts-Smith’s legal team had failed to identify privileged items.
He also took aim at the “hyperbolic attack on the credit of Mr McKenzie”, and said the judges could “comfortably” reject it. The multi-award-winning journalist gave his evidence carefully and honestly, Sheahan said.
McKenzie was asked on Thursday about an incident in which he was charged along with two colleagues at The Age over unlawfully accessing a Labor Party database in 2010 after being given a password. Ultimately, there was no trial and no convictions were recorded after the trio participated in a court diversion program.
“He didn’t know it was an offence to do it,” Sheahan said when asked about the incident by Justice Anna Katzmann. He said the court could be “quite confident” that McKenzie was “chastened by that experience”.
Sheahan summarised McKenzie’s evidence about that experience as: “You can tell that I didn’t think I was doing anything wrong because I put this on the front page of the Melbourne Age.”
The report, published in The Age in the week before the 2010 state election, outlined how Labor kept secret files on voters.
The court will deliver its decision at a later date.
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