‘Sneering and supercilious’: Reporter Nick McKenzie takes stand against Ben Roberts-Smith’s silk
Nick McKenzie will be grilled this week by Ben Roberts-Smith’s barrister Arthur Moses SC – and there’s already no love lost between Nine’s star reporter and the fearsome silk.
When Nick McKenzie walks into the witness box of the Federal Court on Thursday to testify in what may be the most consequential moment of his career, all eyes will turn to the rear of the court to see if his nemesis, Ben Roberts-Smith, has arrived at his favourite window seat.
The Victoria Cross recipient, who attended almost every day of his defamation trial against the Nine newspapers, has not appeared at any of the hearings in his appeal against judge Anthony Besanko’s finding that he was a war criminal. But the prospect of seeing the tables turned against McKenzie, the investigative reporter whose sleuthing led to his downfall, may prove too tempting.
The 11th-hour bid to reopen the appeal is the endgame in a titanic struggle between Australia’s most decorated soldier and its most decorated journalist: the recipient of the Victoria Cross for conspicuous gallantry locked in combat with the winner of 16 Walkley Awards, the country’s highest journalism honour.
And now on the table: the possible upending of the country’s biggest and most expensive defamation case.
McKenzie never took the stand in the defamation trial, but now, after a secret recording suggested he obtained what Roberts-Smith says is privileged information about his legal strategy, the reporter has chosen to confront the allegation head-on.
It’s a bold but risky move by the highly respected McKenzie. Friends say he is anxious to present his side of the story and confident he will be shown to have acted ethically, despite his secretly recorded comments.
He will argue that none of the information he received from Roberts-Smith’s ex-wife Emma Roberts and her best friend Danielle Scott was legally privileged.
But giving evidence means also exposing himself to cross-examination by the former soldier’s lawyer. And not just any lawyer: Arthur Moses, the fearsome Sydney silk who was on the losing side of the defamation case.
There is no love lost between the journalist and the barrister. In his book about the case, Crossing the Line, McKenzie is damning of Moses, describing him as “sneering and supercilious” and suggesting his cross-examination of some witnesses was “ineffectual” and actually helped Nine’s case.
In court last week, Moses tore into McKenzie’s conduct, claiming his answers to the allegations in an affidavit were “a pyramid of lies” and accused him of throwing his own lawyers under the bus by asserting that he had given them all the information he had obtained but had not been warned some of it might be privileged.
Moses suggested “there’s going to be a contest” between McKenzie on the one hand and the lawyers on the other. “It’s probably a reason why they’ve got separate representation,” Moses said. Peter Bartlett is now represented by Tom Blackburn SC, and Dean Levitan by Nicholas Bender SC.
Nine has lost the services of Nicholas Owens, its senior counsel in the defamation trial and now a Federal Court judge, who at one point Moses had suggested might also be called upon to testify over his knowledge of these matters, a bid he has abandoned.
McKenzie goes into the witness box backed by a relatively new legal team, headed by John Sheahan KC, who is less familiar with the intricate details of the case than Moses and his instructing solicitor, Monica Allen, now of BlackBay Lawyers, who have both been on Roberts-Smith’s team from the start.
Nine is fighting hard to keep Bartlett and Levitan out of the witness box and it would be surprising if Moses succeeds in that bid.
However, if he fails, he can ask the court to draw inferences from their lack of evidence, as neither has put on affidavits in the case.
But Moses’s real target is McKenzie. The barrister declined a request by Justice Nye Perram to give an indication of how he planned to approach his cross-examination of the journalist, adding ominously: “I won’t be, of course, providing Mr McKenzie with any, as it were, indications of where things may be going for him next week.”
But Moses faces an uphill battle, first to prove that any information McKenzie received about Roberts-Smith was legally privileged, and if successful, then to prove the unlawful access was so significant that it might have changed the outcome of the trial.
McKenzie was recorded telling Roberts-Smith’s former mistress, known in the defamation case as Person 17, that Roberts and Scott were “actively briefing us on his legal strategy in respect of you”.
It appears he was trying to convince her she had nothing to fear from giving evidence against her former lover.
But Person 17 did not give evidence about Robert-Smith’s alleged war crimes; she was claiming he had punched her after she got drunk at an event in Parliament House. Besanko found the allegation had not been proved, so any strategic benefit Nine might have gained from the information appears not to have been enough to sway Besanko on that part of the case.
Moses will argue the issues raised may nevertheless have adversely affected Besanko’s view of Roberts-Smith’s credibility.
But before he gets to that point, the barrister has to prove that any material Roberts and Scott gave to McKenzie was legally privileged information obtained from Roberts-Smith’s email account. Beyond McKenzie’s own claim that the pair were briefing Nine on Roberts-Smith’s case, the evidence seems thin at this point.
On Wednesday, Moses claimed that since Roberts-Smith filed his new action “there have been two startling and telling developments” which he claimed called into question the adequacy of Nine’s compliance with the subpoena requests.
Nine’s lawyers had “admitted for the first time”, Moses said, that Levitan made a handwritten note of a meeting on March 14, 2021 at Roberts’s home, attended by McKenzie, Bartlett, Levitan, Scott and another unidentified individual. In a previous hearing, the court was told there was “nothing to produce”, Moses said, claiming that statement to the judge was false.
A second development claimed by Moses was that in his affidavit, MacKenzie acknowledged he recorded two lengthy conversations with Scott in August 2020 that he had provided to Levitan but which were not produced at the trial.
Moses also raised an email from McKenzie to Levitan and Bartlett referring to an email sent by Roberts-Smith’s lawyer at the time, Mark O’Brien, to his client about a matter relating to former AFP commissioner Mick Keelty.
Moses said that raised a reasonable inference (“100 per cent, your Honour”) that Scott had access to Roberts-Smith’s emails and the Nine lawyers had failed to question it.
Nine barrister Robert Yezerski SC sharply rejected that, pointing out McKenzie’s information actually came from a text exchange between Scott and Roberts.
“Mr Moses unfortunately and regrettably made a series of assertions that Mr McKenzie had lied, that he had given false evidence in respect to this email,” Yezerski said. “ Those allegations should be withdrawn, and an apology should be made.”
Moses did not apologise.
The gloves will come off on Thursday.
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