Star reporter fronts court after Roberts-Smith’s win over ‘secret recording’

The investigative reporter at the centre of Ben Roberts-Smith’s defamation case has given evidence for the first time in the years-long battle after the former soldier won a court bid to use a “secret recording” of the journalist as part of an attempt to overturn his damning defamation loss.

Nick McKenzie, a reporter at The Age and The Sydney Morning Herald, told the Full Court of the Federal Court in Sydney on Thursday that he was “really anxious” during the defamation case to prove Roberts-Smith “was a war criminal, and we had to find evidence to do that”.

Nick McKenzie and Ben Roberts-Smith outside the Federal Court in Sydney on Thursday.Credit: Peter Rae

“I’m a naturally very anxious person, and I was extremely worried that we’d lose the case at times,” he said.

The multi-award-winning journalist agreed he wrote in his book that he had felt like he had his “balls in a vice” during the litigation and that his career would have been over if he lost the defamation case over articles accusing Roberts-Smith of war crimes in Afghanistan.

McKenzie agreed he continued to act as an investigator during the lawsuit by looking for evidence that might contribute to the case, and said he was “motivated to find evidence of the truth”.

“At times there was desperation, at times there was intense anxiety, at times there was not. It was an extremely stressful time.”

Nick McKenzie (right) outside the Federal Court in Sydney on Thursday.Credit: Peter Rae

Under intense questioning by Roberts-Smith’s barrister, Arthur Moses, SC, McKenzie rejected a suggestion he had previously ethically “crossed the line” as a journalist.

Lawyers for the former Special Air Service corporal argue there was a “miscarriage of justice and a denial of a fair trial” because of McKenzie’s alleged conduct.

Roberts-Smith, a Victoria Cross recipient, launched an appeal after losing his defamation case against The Age and the Herald in 2023 and had been awaiting the court’s decision following a hearing last year. He applied to reopen his appeal after the recording emerged in March.

The former soldier had a win on Thursday after the court admitted into evidence the recording of McKenzie speaking to a witness in the defamation trial, Person 17, ahead of her anticipated appearance in the witness box.

But Roberts-Smith lost a separate bid to force two of the newspapers’ lawyers during the defamation trial to give evidence in his appeal, and was ordered to pay their costs.

Person 17 was previously in a romantic relationship with Roberts-Smith. She gave evidence for the newspapers in court during the trial in 2022.

While the recording was admitted as part of Roberts-Smith’s bid to reopen his appeal, the court has not yet decided whether it will allow the appeal to be reopened.

The 85-second recording, which the court heard appeared to be a snippet of a much longer call, was leaked to Roberts-Smith’s legal team on March 15 via a Proton email account, “ellroyferris”. The subject line of the email was “secret McKenzie recording”.

Ben Roberts-Smith outside court on Thursday.Credit: Peter Rae

Lawyers for the media outlets told the court that the unknown person who sent the recording to Roberts-Smith’s lawyers may have committed a criminal offence.

The court is hearing Roberts-Smith’s application to reopen his appeal over a two-day hearing that started in Sydney on Thursday.

Robert Yezerski, SC, one of a team of barristers acting for the mastheads and McKenzie, told the court the conversation between Person 17 and the investigative journalist had been recorded without McKenzie’s knowledge and consent.

Yezerski said the person who recorded the conversation was “very likely” Person 17.

“We know at least the beginning and end of the conversation has been excised from the recording. What we don’t know is whether any of the middle has been cut out,” Yezerski said.

‘We know at least the beginning and end of the conversation has been excised from the recording.’

Robert Yezerski, SC

He said the recording appeared to have been sent to deliver “maximum benefit” to Roberts-Smith, but potentially also to cause “maximum harm” to the Nine-owned newspapers and McKenzie. There was a real reason to treat it with caution, he said.

On Wednesday, the court set aside subpoenas to give evidence in court issued by Roberts-Smith to MinterEllison partner Peter Bartlett and senior associate Dean Levitan, who were key members of the newspapers’ legal team during the trial. The court ordered the former soldier to pay their legal costs.

A subpoena to give evidence issued to Person 17 was also set aside.

In documents filed in court, the former soldier’s legal team argue there is 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-Smith’s ex-wife, Emma Roberts, who also gave evidence.

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

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

The former soldier wants an order entering judgment in his favour or, alternatively, a retrial.

The audio of McKenzie apparently 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.

According to a transcript, McKenzie, who appeared to be attempting to reassure Person 17 about giving evidence in the case, said 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 gave evidence that he made recordings of conversations with Scott including in August 2020.

He said he believed he complied with ethical requirements in his investigation into Roberts-Smith.

During a short break, Roberts-Smith was met by two supporters outside the courtroom, including one clutching a beige military beret who saluted him as he walked down the corridor in the Law Courts building in Sydney.

The hearing continues on Friday.

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