Ben Roberts-Smith files to reopen Nine appeal over Nick McKenzie recording

The war veteran has filed an eleventh-hour bid in his defamation appeal against the Nine newspapers after journalist Nick McKenzie appeared to admit to unethical behaviour in a secret recording.

Ben Roberts-Smith arriving at the Federal Court in 2023. Picture: NCA NewsWire / Jeremy Piper

War veteran Ben Roberts-Smith has filed an 11th-hour application for a retrial in his defamation appeal against the Nine newspapers after investigative journalist Nick McKenzie ­appeared to admit to unethical ­behaviour in a secret recording.

Roberts-Smith, in the interlocutory application, claims there had been a miscarriage of justice in his failed defamation case against The Canberra Times, The Age and The Sydney Morning Herald in light of new revelations McKenzie had allegedly obtained ­information relating to his legal strategy during trial.

He says he was unaware of this until after the initial hearing and the hearing of the appeal, and has requested the Federal Court set aside the judgment against him. Alternatively, he says, a retrial should be ordered.

Roberts-Smith’s intervention comes after Sky News Australia on Monday published a recording of McKenzie in which he appears to tell a witness he had access to part of the soldier’s legal strategy during trial.

In the recording, McKenzie tells a witness that Roberts-Smith’s ex-wife, Emma Roberts, and her friend Danielle Scott had been “actively briefing us on his legal strategy” in respect to the witness.

“I’ve just breached my f..king ethics… This has put me in a shit position now,” he said.

In another part of the recording, he said: “We anticipated most of it, one or two things now we know which is helpful but the point, the reason I told you that was to say like, you know we’ve got this and they’re not hostile to you, despite your worst fears. They’re not.”

Journalist Nick McKenzie speaks to the media after Nine’s defamation win against Roberts-Smith. Picture: AFP

During the defamation trial, Roberts-Smith launched a separate action accusing Ms Roberts of accessing his emails which included confidential legal correspondence. The Federal Court dismissed the challenge.

A Nine spokesperson, in a statement to The Australian, said there was “no breach of legal privilege or ethical concerns”.

“Any claims of a miscarriage of justice are baseless and a continuation of the sustained campaign of mistruths peddled by Ben Roberts-Smith and his media backers,” the spokesperson said.

“Nine has full confidence in the reporting and actions of Nick McKenzie.”

Roberts-Smith, in a statement, confirmed his lawyers had filed the interlocutory application.

“My lawyers have today filed an application with the Full Court seeking leave to rely upon additional evidence, including an audio recording in which a journalist admits to being briefed with my confidential legal strategy as well as evidence that my emails were improperly accessed over 100 times in 2020 and 2021 and to amend my grounds of appeal to include a miscarriage of justice,” he said.

“I have continued to fight for justice throughout this process and today that fight continues. As a soldier I spent the majority of my adult life serving this country and putting my life on the line defending our rights as Australians. All I have ever asked for was a fair process where the truth and justice can prevail.”

Roberts-Smith, in his case against Nine, claimed he was defamed and wrongly portrayed as a war criminal, bully, and domestic abuser 14 times in six articles published in The Sydney Morning Herald, The Age and the Canberra Times in 2018.

The Federal Court in June 2023 found Roberts-Smith, a Victoria Cross recipient, committed serious war crimes, including murder, while serving with the SAS in Afghanistan.

Handing down his decision in the high stakes defamation action, Justice Anthony Besanko ruled that Roberts-Smith had committed murders of civilians, including of Ali Jan, the farmer kicked off a cliff in the village of Darwan, and the one-legged man dragged from a tunnel at the compound known as Whiskey 108.

Justice Besanko, in his judgment, found Nine had failed to prove that Roberts-Smith abused his mistress.

“I’m not satisfied Person 17’s evidence is sufficiently reliable to establish the assault occurred and that (the imputations) are substantially true,” he said.

“But they have made out a defence of contextual truth”.

Roberts-Smith lodged an appeal shortly after the judgment was handed down, arguing that Justice Besanko erred in finding that he kicked Ali Jan off a cliff and that he made an agreement with another soldier, Person 11, that the villager should be shot.

Federal Court judges Nye Perram, Anna Katzmann and Geoffrey Kennett reserved their decision in February last year.