‘I didn’t leak recording’: Roberts-Smith’s ex-lover
Ben Roberts-Smith’s ex-lover issued a legal threat to the ABC’s Media Watch program, claiming host Linton Besser painted her as ‘a dishonest and unreliable person’ who deliberately leaked the recording.
Ben Roberts-Smith’s former lover has denied she was responsible for leaking a secret recording that up-ended the war veteran’s defamation appeal, issuing a legal threat to sue the ABC’s Media Watch program for claiming she was the source and for portraying her as “an adulterer”.
Lawyers acting for the woman, known as Person 17 in the case, sent the ABC a concerns notice – a precursor to defamation action – claiming Media Watch host Linton Besser painted her as “a dishonest and unreliable person” who deliberately leaked the recording to impugn the standing of Nine journalist Nick McKenzie.
Person 17’s threat to sue is the latest in a series of legal moves sparked by the secret recording of her conversation with McKenzie, in which the reporter claims that a friend of Roberts-Smith’s estranged wife, Emma Roberts, was “actively, like, briefing us on his legal strategy”.
Roberts-Smith has sought to reopen his appeal against the defamation finding, saying Nine’s alleged access to his privileged legal information gave rise to a miscarriage of justice.
After the recording was sent to Roberts-Smith’s lawyers, and later broadcast on Sky News, Nine lawyers wrote to Person 17 accusing her of leaking the audio and threatening to take legal action against her.
However, in a concerns notice to the ABC, Sydney lawyer Rebekah Giles alleges the imputation by Media Watch that Person 17 leaked the conversation was “false and seriously defamatory”, and complains about Besser’s suggestion the woman had carried out “an illicit affair”.
In the Media Watch broadcast Besser said: “The most obvious problem in all of this is we’ve only heard only the tiniest and surely most damaging snippet from what was clearly a longer conversation. So we contacted Person 17 to ask for access to the full tape, whomever recorded it. She declined to respond to our queries.”
Person 17 claimed Media Watch had falsely suggested she was “an adulterer who had engaged in an affair with Mr Roberts-Smith, acted criminally and illegally in so engaging in that affair, (and) was responsible for Mr Roberts-Smith’s and Ms Roberts’s bitter and acrimonious separation”. Person 17 argued there was nothing “illicit” about engaging in an affair.
The concerns notice alleges the program falsely suggested she had “deliberately leaked the most damaging snippet from what was clearly a longer conversation with Mr McKenzie in order to impugn the standing of Nick McKenzie, a journalist of the highest integrity and standing.”
That “unfairly and wrongly impugned the trustworthiness of our client”, the notice says, asking “what possible motivation Person 17 has, to leak material beneficial to Mr Roberts-Smith, and ultimately detrimental to herself”.
Person 17, in an earlier statement of claim served on Nine, alleged the reporter breached ethical obligations towards her.
Person 17’s identity has been protected by orders made by judge Anthony Besanko in the defamation trial. The concerns notice states only that “the extent of identification will be a matter for evidence”.
Person 17’s lawyers wrote to the ABC before the Media Watch broadcast expressing concern that Besser was aware of the identity of the woman and her husband and had contacted her directly, in a “potential breach” of Justice Besanko’s orders.
“That was entirely inappropriate and regardless of whether Mr Besser was ‘cordial’ in his correspondence was a threatening and intimidatory act, particularly after our client expressed her concern about him contacting her directly,” the concerns notice states.
“Our client was concerned by Mr Besser’s evasive response about how he came to be aware of their identities. In our view, it was obvious the broadcast was aimed at dissuading her from participating in ongoing proceedings.”
The concerns notice demands the ABC removes the references complained of, provides an explanation for how Besser became aware of the woman’s identity and publishes an apology acknowledging “the extreme bravery and tenacity of Person 17”.
The references remain online on the ABC’s website; the broadcaster has not apologised.
In the defamation trial, Justice Besanko found Roberts-Smith had, on the balance of probabilities, committed war crimes but Person 17’s evidence was not sufficiently reliable to find he had assaulted her as she alleged.
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