Roberts-Smith’s appeal dealt blow after ‘fishing expedition’ cut down

Disgraced soldier Ben Roberts-Smith has suffered a blow to his plans to appeal against a defamation judgment which found he committed war crimes while on duty in Afghanistan.

The former Special Air Service corporal sued the publisher of this newspaper, then known as Fairfax Media, and The Age and The Sydney Morning Herald investigative journalist Nick McKenzie, after a series of articles alleged Roberts-Smith carried out war crime murders while deployed with the SAS.

Ben Roberts-Smith departs the Federal Court of Australia in Sydney after the first day of his defamation case in 2021.Credit: Brook Mitchell

The Federal Court dismissed the case in June 2023 when a judge found, to the civil standard of the balance of probabilities, that Roberts-Smith had committed multiple war crime murders, assaulted Afghans and engaged in a campaign of bullying against Australian troops a decade earlier.

The Victoria Cross recipient appealed against the judgment and has been waiting for a decision for more than a year.

Last month, he filed an application to reopen his appeal to introduce as evidence a recording of McKenzie speaking to a woman the famed soldier had an affair with, known in the trial as Person 17.

In the call, McKenzie allegedly says Roberts-Smith’s ex-wife, Emma Roberts, and her close friend, Danielle Scott, were “actively briefing us on his legal strategy in respect of you”.

Roberts-Smith’s legal team on Wednesday defended wide-ranging subpoenas they had issued to McKenzie, the journalist’s lawyers, Person 17, Roberts, Scott, and the ABC.

“To say that (the recording) contents are shocking is an understatement,” Roberts-Smith’s lawyer Arthur Moses, SC, told the court.

Moses called the subpoenas an attempt to follow “the ripples of a breach”.

Nine’s lawyers opposed the subpoenas, characterising them as a “fishing expedition” which were too broad in scope and time-frame.

On Thursday, Justice Nye Perram appeared to agree by striking out the vast bulk of Roberts-Smith’s requests for information.

Arthur Moses, SC, is representing Ben Roberts-Smith.Credit: Anna Kucera

Eight of 10 categories of information sought from McKenzie were deleted.

Roberts-Smith’s attempts to gain information from the ABC about a Media Watch episode dealing with the case, hosted by journalist Linton Besser, were also set aside.

Subpoenas to Person 17, Roberts and Scott were also denied by Justice Perram.

Nine’s lawyers, Peter Bartlett and Dean Levitan, also had the bulk of subpoenas against them set aside.

The surviving subpoenas include communications and meeting notes between McKenzie and Nine’s lawyers with Scott and Roberts, but have been narrowed to smaller windows of time measured in months, rather than years.

McKenzie is still expected to give evidence next week in a hearing which will decide if Roberts-Smith can reopen his appeal on the grounds of a miscarriage of justice.

It means McKenzie will be subjected to cross-examination, which would be likely to focus on the secret recording and his alleged receipt of the leaked legal strategy from Roberts-Smith’s former confidants.

A Nine spokesperson previously said McKenzie and his journalism has the company’s full support.

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