Mystery witness in defamation appeal bid is Ben Roberts-Smith’s former mistress
Ben Roberts-Smith’s former mistress is the mystery witness whose secretly recorded conversation with a journalist has sparked a bid to re-open his defamation appeal against the Nine newspapers.
Ben Roberts-Smith’s former mistress is the mystery witness whose secretly recorded conversation with investigative journalist Nick McKenzie has sparked an 11th-hour bid by the war veteran to reopen his defamation appeal against the Nine newspapers.
Roberts-Smith, in an interlocutory application, claims there was 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.
The Federal Court has responded quickly to Roberts-Smith’s application, with Justice Nye Perram – one of three judges who reserved their decision on the appeal in February last year – calling a case management hearing for Monday to “discuss the parties’ perspectives” on how to address the issues.
The shock intervention comes after Sky News Australia on Monday published a recording of McKenzie in which he appears to tell Roberts-Smith’s former mistress – identified during the defamation trial as Person 17 – that he had access to part of the soldier’s legal strategy during the case.
In the recording, McKenzie tells the woman 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 her.
“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.”
Nine had claimed Roberts-Smith cheated on his wife with the professional, married woman, during a wild six-month affair that allegedly ended with him punching her after she embarrassed him by getting drunk at a function in Parliament House.
However, in his judgment, Justice Anthony Besanko said he was “not satisfied Person 17’s evidence is sufficiently reliable to establish the assault occurred and that (the imputations) are substantially true”.
Person 17’s credibility was repeatedly challenged on the witness stand.
At one point during the trial, the woman claimed she was approached on a beach by a stranger and shown photos of herself and the war hero having sex up against a window in a room at the Milton Hotel in Brisbane.
The woman said the mysterious figure demanded she tell Roberts-Smith’s wife about the affair, or the photos would be made public.
Justice Besanko found that Nine had made out a defence of contextual truth on Person 17’s allegation of assault – that even though one claim might be untrue, it was outweighed by those that were substantially true. The judge found that Roberts-Smith had committed several murders of unarmed civilians.
Roberts-Smith launched an appeal against the war crimes findings on various grounds, but has now added “miscarriage of justice” with his new application.
In an attached affidavit, Roberts-Smith’s longtime lawyer, Monica Allen, says the audio file of the conversation between McKenzie and Person 17 was sent to a solicitor at Mark O’Brien Legal at 2.54am on March 15 in an email from ‘ellroyferris@proton.me’.
Nine days later parts of the audio were broadcast on Sky News.
There is no indication in the affidavit of how the conversation came to be recorded or the real identity of “Ellroy Ferris”, a name that does not appear on any electoral roll.
In his new application, Roberts-Smith says McKenzie “engaged in wilful misconduct in the proceedings below by improperly and unlawfully obtaining and retaining information concerning (Roberts-Smith’s) legal strategy concerning the trial that was confidential and privileged”.
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 but Roberts-Smith says that decision, and Ms Roberts’s evidence, need to be reconsidered in light of the recordings
The former SAS soldier says if he had known of McKenzie’s alleged misconduct, he could have moved to strike out Nine’s defences because of it, or made “different forensic decisions at trial”.
He claims Justice Besanko’s assessment of the credit of Ms Roberts and/or Person 17 might have been different, leading to the possibility that his assessment of Roberts-Smith’s credit in relation to the war crimes allegations may also have been different.
Justice Besanko’s findings in relation to the defences of justification and contextual truth may also have been different, the former soldier argued.
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.”
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