Ben Roberts-Smith wants ex-lover to give evidence about secret recording
Ben Roberts-Smith is seeking a new trial that allows his former mistress to give evidence about her explosive secretly recorded conversation with Nine reporter Nick McKenzie.
Ben Roberts-Smith has asked the High Court to allow a new trial in his failed defamation case that would permit his former mistress to give evidence about her explosive secretly recorded conversation with Nine reporter Nick McKenzie.
In an application to the court for special leave to appeal, Roberts-Smith argues that a new trial is required because cogent evidence from the woman about the conversation – in which the journalist claimed he had been “actively briefed” about Nine’s legal strategy – was concealed by the Nine newspapers.
In a separate notice of filing lodged with the High Court, the former SAS soldier argues he was denied the presumption of innocence in the defamation trial and wrongly branded a serial war criminal, “a criminal condemnation of the most ruinous kind”.
The High Court challenge is Roberts-Smith’s last chance of overturning the landmark finding by Judge Anthony Besanko that, on the balance of probabilities, the former SAS soldier was complicit in the murder of unarmed detainees in Afghanistan.
The High Court has not yet agreed to accept the appeal, and may not announce a decision for several weeks.
Last month the Full Court of the Federal Court upheld Justice Besanko’s verdict in favour of the Nine newspapers, and also rejected a claim by Roberts-Smith that he had been the victim of a miscarriage of justice after the release of a tape in which McKenzie claimed to have access to the former SAS soldier’s legal strategy.
In that conversation McKenzie told Roberts-Smith’s former mistress he was being “actively briefed” about the soldier’s legal strategy and that he had “breached his f..king ethics”.
On appeal, the Full Court found there was no “real possibility” that McKenzie’s conduct would have affected the outcome of the case.
The Full Bench found that McKenzie was a witness of credit and accepted his account, rejecting Roberts-Smith’s attack on his evidence. The appeal judges found no evidence that anything privileged was accessed.
The judges observed that the interests of justice might have required a new trial if cogent evidence was disclosed which had been concealed by Nine, but found there was no evidence that the newspapers had concealed the recordings.
In his new application to the High Court, Roberts-Smith says the Full Court was wrong because Nine did have prior knowledge of the conversation.
In an affidavit which was the subject of suppression orders during the Federal Court appeal, Roberts-Smith’s former lover, known in the trial as Person 17, revealed that in November 2023 – before the appeal commenced – she had threatened to sue Nine.
The woman had served a draft statement of claim on the newspapers that included her claims that McKenzie had told her he was being “actively briefed” about the soldier’s legal strategy and had breached his ethics.
“This was evidence which, if admitted, was capable of supporting a finding that (Nine and McKenzie) had indeed brought about the concealment of evidence that they had obtained legally privileged information, namely, the applicant’s strategy for cross-examining Person 17”, Roberts-Smith says in his application.
The soldier’s lawyers say the woman’s affidavit should have been allowed into evidence.
They say she should have been called to give evidence about her conversation with McKenzie and her conversation with Nine’s legal counsel at the time, Nicholas Owens, now a Federal Court judge.
“Only (Nine and McKenzie) were in a position to know what they had obtained and what had been done with that information, yet they resisted all attempts by (Roberts-Smith) to employ the processes of the court to further investigate the matter,” the application states.
The appeals court found there was no way of knowing if the secret recording had been “doctored”, but Roberts-Smith says there was no evidence of that, and McKenzie had not suggested it.
The application acknowledges that some of Person 17’s affidavit might have been inadmissable, but says that if Roberts-Smith had been permitted to rely on her evidence, she could have been cross-examined about the conversation and the integrity of the recording.
Roberts-Smith did not know what privileged information Nine had accessed and to require him to establish “a real possibility” that McKenzie’s conduct would have changed the outcome of the trial was “both unrealistic and fundamentally unfair”.
It meant the court would have to “take a chance” on whether the outcome of a trial of major public importance was affected by misconduct.
Roberts-Smith’s application for special leave also challenges the findings that he was complicit in the murder of Afghan detainees, including a farmer kicked off a cliff in the village of Darwan, and a one-legged man dragged from a tunnel at the compound known as Whiskey 108.
Roberts-Smith says that, in affirming Justice Besanko’s findings, the Full Court “erred by preferring delayed, contradictory, and memory-impaired eyewitness accounts over contemporaneous Australian Defence Force operational records of engagements”.
“The findings brand the applicant a serial war criminal, a criminal condemnation of the most ruinous kind, yet they were reached in civil proceedings absent the criminal trial safeguards of a jury, prosecutorial disclosure and proof beyond reasonable doubt,” the application says.
Last month, the Full Court appeal judges accepted the evidence of the Nine newspapers that Roberts-Smith killed the one-legged man at Whiskey 108 during a mission on Easter Sunday in 2009, observing: “The problem for the appellant is that, unlike most homicides, there were three eyewitnesses to this murder.”
The appeal court also accepted the evidence of Afghan witnesses from the village where Roberts-Smith was alleged to have kicked an unarmed man named, Ali Jan, off a cliff in Darwan in 2012, before ordering another soldier to shoot him.
Justice Besanko had given sufficient weight to discrepancies between the evidence of the Afghan witnesses, the appeal judges said, and although there were inconsistencies between their evidence and that of an Australian soldier present, Roberts-Smith’s counsel had “exaggerated their significance”.
Roberts-Smith’s application for special leave to appeal to the High Court argues the soldier was not given sufficient benefit of the presumption of innocence, considering the gravity of the allegations against him.
His lawyers argue that both Justice Besanko and the Full Court failed to properly consider the “Briginshaw principle”, which dictates that serious allegations should be treated very cautiously when a civil court makes findings.
In this case, “those findings rest on inconsistent and memory-impaired recollections adduced more than a decade after the events, in circumstances where contemporaneous ADF operational records are exculpatory, in the sense they record lawful engagements and no executions”, the application states.
“Allegations of war crimes cannot be upheld in civil proceedings unless proved to the exacting degree of cogency that (the Evidence Act) unequivocally demands.”
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