Ben Roberts-Smith may call judge to witness box in new appeal bid

Ben Roberts-Smith’s lawyers may call Nicholas Owens – now a Federal Court judge – to give evidence if they succeed in a bid to reopen his appeal against Nine newspapers.

Ben Roberts-Smith leaves the Federal Court in Sydney. Picture: NCA NewsWire / David Swift

In a bombshell move, lawyers for Ben Roberts-Smith have foreshadowed that they may call former silk Nicholas Owens – now a Federal Court judge – to give evidence if they succeed in their bid to reopen the war veteran’s appeal in the Federal Court against the Nine newspapers.

Arthur Moses, appearing for Roberts-Smith, told the Federal Court on Monday it might have to consider questions of “apprehension of bias” in the event it was necessary to cross-examine Mr Owens, who represented Nine in its successful defence of Robert-Smith’s defamation action.

The application to reopen the appeal follows claims that Nine investigative journalist Nick McKenzie “improperly and un­lawfully” obtained ­information about the VC recipient’s legal strategy during the long-running defamation trial.

On Monday, judge Nye Perram heard submissions in a case management hearing on Roberts-Smith’s claim there was a miscarriage of justice in his failed defamation case against Nine newspapers after Sky News Australia last week published a recording of McKenzie speaking to Roberts-Smith’s former mistress.

In the recording, McKenzie tells the woman – identified during the defamation trial as Person 17 – that Roberts-Smith’s former wife, Emma Roberts, and her friend Danielle Scott had been “actively briefing us on his legal strategy” in respect to her.

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

On Monday, Mr Moses told the court it was possible that McKenzie, Ms Roberts and Mr Owens might be called to give ­evidence.

Nicholas Owens from Nine's legal team. Picture: NCA NewsWire / Nikki Short

Mr Owens might be questioned regarding meetings held in April 2021, Mr Moses said, suggesting it might be more appropriate for the matter to be heard before the Full Court rather than a single judge.

“It may be more appropriate for the Full Court to deal with this under the doctrine of necessity because … there are questions that will arise of apprehension of bias, given that one of the individuals involved is now a sitting judge of this court, in terms of his name will come up and inferences may need to be drawn in respect of his involvement or otherwise at meetings and what was said – we don’t know”, Mr Moses said.

“As your honour has quoted in other judgments, it’s the Donald Rumsfeld issue in terms of what we know and what we don’t know. So we have to be careful about how it is managed but we think the safest course would be for the Full Court to deal with it because the doctrine of necessity would mean the court had no other option than to deal with it in that manner, even though it involves a judge of the court.”

Justice Perram accepted there “may well be” a possibility of cross-examinations before the Full Court.

Roberts-Smith was not present in court but his parents, Sue and Len Roberts-Smith, attended, issuing a statement “to support our son Ben who has been subject to vilification ... for almost a ­decade now.”

Journalists Chris Masters, right, and Nick McKenzie, left, with Nicholas Owens, rear, leave the Federal Court of Australia in Sydney in 2023.

Nine had claimed Roberts-Smith cheated on his wife with Person 17 during a six-month affair that allegedly ended with him punching her after she embarrassed him by getting drunk at a function in Parliament House..

Although finding Roberts-Smith had executed unarmed civilians in his 2023 judgment, judge Anthony Besanko said he was not satisfied Person 17’s evidence was “sufficiently reliable” to establish the assault occurred.

Even before the defamation trial began, Roberts-Smith had accused his Ms Roberts, of accessing the email account he used to communicate with his lawyers and leaking it to Nine and its lawyers.

The former SAS soldier launched a separate legal action seeking to have his lawyers question Ms Roberts about whether she had passed on the emails, which included his communi­cations with the official war crimes inquiry.

Roberts-Smith’s lawyers said Nine had served him a notice to produce emails or attachments that could not have come from anywhere else but the email account and if Roberts had passed legally privileged information to Nine, it could “contaminate” the whole case.

Judge Robert Bromwich ruled against Roberts-Smith and accepted Ms Roberts’s explanations that the emails were accessed only for legitimate purposes.

“(The case) goes no further than bare possibilities and suspicions, with many such assertions in relation to Ms Roberts being shown to be ill-founded,” the judge said.

Now Roberts-Smith wants the appeal court to re-examine the evidence Ms Roberts gave before Justice Bromwich in light of McKenzie’s recorded conversation.