‘Person 17’: Conversation with Ben Roberts-Smith’s ex-lover at centre of appeal bid

The leaked audio recording at the centre of war criminal Ben Roberts-Smith’s bid to reopen his defamation appeal involved a conversation between a journalist and the former soldier’s one-time lover, the Federal Court has heard.

The former Special Air Service corporal filed an application last week to reopen his appeal to introduce new evidence about a recording of The Age and The Sydney Morning Herald investigative journalist Nick McKenzie speaking to a witness in the defamation trial.

Ben Roberts-Smith outside the Federal Court in 2022.Credit: Kate Geraghty

McKenzie, an author of the articles at the centre of the defamation case, was one of the respondents to the lawsuit.

Roberts-Smith is seeking to overturn a landmark decision by Federal Court Justice Anthony Besanko in 2023, which dismissed his multimillion-dollar defamation case against The Age and the Herald and found he was complicit in the murder of four unarmed Afghan prisoners.

Roberts-Smith’s barrister, Arthur Moses, SC, confirmed in the Federal Court in Sydney on Monday that the recorded conversation sought to be used in his appeal was between McKenzie and “Person 17”, a witness in the defamation trial whose identity was suppressed by the court.

A transcript of that conversation was set out in an affidavit filed in court.

Person 17 is a former lover of Roberts-Smith who gave evidence against him in the defamation trial.

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 last week.

According to the transcript, McKenzie, who was attempting to reassure Person 17 about giving evidence in the case, said Roberts-Smith’s ex-wife, Emma Roberts, and her friend, Danielle Smith, 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 … If Dean knew that … I’d get my arse f---ing handed to me on a platter,” McKenzie said.

Dean Levitan and Peter Bartlett are lawyers at MinterEllison, who were acting for the newspapers.

“[The] reason I told you that was to say like, you know we’ve got this, and they’re not hostile to you, despite your worst fears. They’re not,” McKenzie said in the recording.

Nine, the owner of The Sydney Morning Herald and The Age, said in a statement last week: “There is no breach of legal privilege or ethical concerns. Any claims of a miscarriage of justice are baseless and a continuation of the sustained campaign of mistruths peddled by Ben Roberts-Smith and his media backers.

“Nine has full confidence in the reporting and actions of Nick McKenzie.”

Roberts-Smith’s application to reopen his appeal is expected to be heard by the Full Court of the Federal Court.

The newspapers’ former barrister, Nicholas Owens, SC, is now a Federal Court judge. Moses said it may be “more appropriate” for three judges to hear the application than one because “one of the individuals involved is now a sitting judge”.

He said it was possible that McKenzie, Roberts and members of Nine’s legal team during the defamation case might be required for cross-examination.

Ben Roberts-Smith’s parents, Len and Sue, outside the Federal Court in Sydney on Monday.Credit: Nick Moir

Justice Nye Perram told the parties on Monday that one of the three judges who heard the appeal last year, Justice Anna Katzmann, “retires at the start of June” and “we have to wrap this up”.

The application to reopen the appeal is the first step in Roberts-Smith’s bid to overturn his damning defamation loss.

Ultimately, Roberts-Smith is seeking an order entering judgment in his favour or, alternatively, an order for a retrial.

In an application filed in court, Roberts-Smith’s lawyers said there had been a “miscarriage of justice and a denial of a fair trial” to him because of McKenzie’s conduct.

They said there was a “real possibility” the outcome of the trial would have been different if McKenzie had not engaged in this conduct, and the judge presiding over the trial may have made different assessments about the credibility of Person 17 and Roberts, who also gave evidence.

Roberts-Smith’s parents appeared in the Federal Court in Sydney on Monday. They told Sky News the recorded conversation was “extremely concerning”.

In his 2023 judgment, Besanko found the newspapers had proven to the civil standard – on the balance of probabilities – that Roberts-Smith was involved in the four murders while on deployment in Afghanistan between 2009 and 2012.

Besanko did not find the news outlets had proven he committed an act of domestic violence against Person 17, but in light of other proven allegations, he found Roberts-Smith’s reputation had not suffered additional damage and that part of his case should be dismissed. Roberts-Smith is also seeking to have the finding that he suffered no additional reputational damage overturned.

The judge found Roberts-Smith’s behaviour towards Person 17 was at times “intimidatory, threatening and controlling”.

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