Nine reporter ‘threw his lawyers under the bus’ says counsel for Ben Roberts-Smith
Nine reporter Nick McKenzie ‘threw his lawyers under the bus’ by suggesting they knew he’d been given privileged information but done nothing about it, a court has heard.
Investigative journalist Nick McKenzie had “thrown his lawyers under the bus” by suggesting they knew he’d been given privileged information about Ben Roberts-Smith’s legal case but done nothing about it, a court has heard.
In the Federal Court on Wednesday, barrister Arthur Moses, appearing for Roberts-Smith, said a secret recording of McKenzie discussing the case with the soldier’s former mistress was “a direct acknowledgment of unethical conduct”.
The Victoria Cross recipient claims there was a miscarriage of justice in his failed defamation case against Nine newspapers in light of claims that McKenzie allegedly obtained information relating to his legal strategy during trial.
In the recording, McKenzie tells Robert-Smith’s former mistress, known in the defamation proceedings as Person 17, that the soldier’s former wife, Emma Roberts, and her friend Danielle Scott had been “actively briefing us on his legal strategy in respect of you”.
On Wednesday, counsel for the newspapers asked the court to set aside or limit subpoenas served on MinterEllison lawyers Peter Bartlett and Dean Levitan, who acted for Nine during the defamation trial.
Nine also opposed subpoenas served on Emma Roberts, Danielle Scott, Person 17 and the ABC, which had broadcast an episode of MediaWatch featuring the case.
Nine’s counsel, Robert Yezerski, objected to the scope of the material sought by Roberts-Smith, saying many of the demands were of no relevance or served no forensic purpose.
Mr Yezerski said Roberts-Smith’s claim of a miscarriage of justice did not involve allegations of misconduct against any of the other parties who had been subpoenaed, and McKenzie was the only “relevant conduit” of any potentially privileged information, which itself was disputed.
There was also no evidence that McKenzie had knowingly and wilfully obtained information he knew to be privileged, he said.
More than 2000 WhatsApp messages between McKenzie, Levitan and Bartlett would need to be manually reviewed, Mr Yezerski said, as well as more than 1000 documents, a process that could take up to nine days.
Mr Moses, for Roberts-Smith, sought access to communications up to the end of the defamation trial, but Mr Yezerski said that was unreasonable and should extend only to the time of the alleged unauthorised access.
Mr Moses countered that what he was seeking was to discover what use was made of the information, and whether lawyers acted on the information.
“This isn’t a fishing exhibition”, Mr Moses said, “to use the words of the French president, we don’t think – we know what was going on.
“My client isn’t casting lines at random. We’re tracing what we know – the ripples of the breach that’s already surfaced by reason of Mr McKenzie’s own words.”
Mr Moses quoted McKenzie telling Roberts-Smith’s former mistress in the secretly recorded conversation: “I’ve just breached my f..king ethics … This has put me in a shit position now.”
Mr Moses said to describe the recording as “shocking” would be an understatement, and the audio made it clear McKenzie knew what he was doing was wrong.
“Mr McKenzie does not deny that the recording is genuine; he does not resolve from the language used,” he said.
“What he offers instead is a retrospective reinterpretation of what he may have meant or intended to say. The affidavit filed by McKenzie in response to the allegations was ‘speculative, reconstructive, and with respect, implausible’, he said.
“We will contend it is a pyramid of lies.”
McKenzie had claimed he did not believe the material privileged and none of his lawyers had suggested it might be privileged.
Mr Moses described the argument as “a fig leaf” and McKenzie was “in effect, using them as a shield to say; ‘I gave it all to them and they never said anything to me’.”
“Mr McKenzie has thrown them under bus with this, because he says he gave it to them,” he said. “... And what were Mr Levitan and Mr Bartlett thinking when they looked at that material and formed the view, as officers of the court, they had no obligation to raise these matters with their client, to tell him … you should not have access to this information.”
Mr Moses made clear the lawyers had not yet had the opportunity to explain their position.
A Nine spokesperson has previously expressed full confidence in McKenzie’s reporting and conduct.
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