Roberts-Smith’s ex-mistress threatened to sue Nine over reporter’s conduct

There has been a surprise update in the defamation retrial hearing for former soldier Ben Roberts-Smith.

In a surprise update in the defamation retrial hearing for former soldier Ben Roberts-Smith, it has been revealed that a witness earlier threatened to sue Nine newspapers over reporter Nick McKenzie’s alleged conduct.

Roberts-Smith 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.

The Victoria Cross recipient is claiming a miscarriage of justice in his failed defamation case against Fairfax Media after recordings surfaced last month of McKenzie allegedly admitting to accessing information relating to the veteran’s legal strategy before the trial.

Journalist Nick McKenzie said he was surprised the recording had been brought up by Nine’s lawyers. Picture: NewsWire / Max Mason-Hubers

Both McKenzie and Roberts-Smith arrived in the Federal Court in Sydney on Friday for another day of tense questioning.

McKenzie took the stand on Friday morning and was cross-examined by Arthur Moses SC, acting on behalf of Roberts-Smith.

The reporter took his time to answer questions carefully as he sat across from the former soldier who was flanked by family members.

McKenzie was questioned by Mr Moses about his dealings with Danielle Scott, a close friend of Roberts-Smith’s former wife Emma, and the reason he had recorded phone conversations with her.

“I was pretty paranoid … initially … I did not know her, but she was assisting me in a litigation so I recorded her and gave that to my lawyer to assist … and so he could assess it,” he said.

McKenzie told the court it was “his practice” at the time when Ms Scott contacted him that he would tell his lawyers what she had told him.

‘Utterly surprised’

As the cross-examination continued, the bombshell recordings that were made public last month were played in the Federal Court.

In the recording, McKenzie’s voice sounded tense and distracted as he tells a witness that he was given the information by Ms Roberts and Ms Scott and he is 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**king ethics in doing that, like this has put me in a sh*t 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**king handed to me on a platter.”

Arthur Moses is representing Roberts-Smith. Picture: NewsWire / Max Mason-Hubers

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

Mr Moses asked the reporter if he was surprised when the recording was brought to his attention by lawyers in an email this year, to which Mr McKenzie replied he was “utterly surprised”.

Mr Moses proposed to Mr McKenzie he was aware about the allegations he had breached his conduct previously because person 17 had served him with a draft Statement of Claim in which “she threatened she was going to sue you and Nine in respect of your conduct in the proceedings before Justice Besanko, correct?”

Mr McKenzie replied that yes, Person 17 had in fact lodged a draft Statement of Claim.

Meanwhile, as Mr Moses’s tense cross-examination continued for several hours on Friday morning, Justice Nye Perram reminded the solicitor that he would need to conclude the examination, adding he has been “extravagant” with his use of time.

“There comes a time when there must be consequences,” Justice Perram warned.

“I’m doing my best,” Mr Moses replied.

A cold stare

In his evidence, Mr McKenzie continually denied that he either accessed privileged information or that he knew any of the information he had been sent was in fact privileged.

By way of explanation, Mr McKenzie told Mr Moses that his “natural conclusion” in hearing information from the best friend (Ms Scott) of a woman who had been estranged from her husband (Ms Roberts) was “gossip” which she in turn told him.

“Why would anyone think this is legally privileged … this is hearsay from the best friend of a wife that has become estranged from her husband,” he said.

After a gruelling five hours giving evidence on the stand, McKenzie was finally excused from the federal court on Friday afternoon.

McKenzie was also cross-examined for an hour on Thursday afternoon and told the court that journalists “always try to act within the law”; however, he said there were “occasions” where journalists might do things that “conflict with the law”.

McKenzie said it was a “complicated answer” and later explained there were “instances where it’s our job to find information that’s been hidden”.

Roberts-Smith is appealing his failed defamation case. Picture: NewsWire / Max Mason-Hubers

Mr Moses went on to ask McKenzie if he as a journalist had ever used subterfuge to access information – to which McKenzie replied “on occasion” if it was “in the public interest”.

Roberts-Smith is contending his ex-wife had access to his email account and that she and her friend Ms Scott passed his privileged messages on to McKenzie.

Roberts-Smith is seeking to reopen his appeal, led by the “fresh evidence” – the recording of McKenzie made public last month.

Closing submissions were heard by both parties on Friday afternoon.

A decision is expected at a later date.