Nine journalist Nick McKenzie to face cross-examination on secret Roberts-Smith recordings
Nine investigative reporter Nick McKenzie will face cross-examination in Ben Roberts-Smith’s defamation appeal, as the ex-SAS soldier demands files from the ABC’s MediaWatch program.
Investigative journalist Nick McKenzie will take the stand in Ben Roberts-Smith’s bid for a retrial in his defamation appeal, a high-stakes move that allows the Nine reporter to be cross examined about a secret recording in which he appears to admit to unethical behaviour.
The Australian can also reveal that Roberts-Smith’s lawyers have subpoenaed the ABC to produce file notes or other evidence of discussions between McKenzie and the MediaWatch program after host Linton Besser appeared to defend the journalist in a broadcast in March.
McKenzie may be the only witness called when the application to re-open the appeal is heard next week, with lawyers for the Nine newspapers expected to ask the court to set aside subpoenas served on two lawyers who acted for the media company during the defamation trial.
Roberts-Smith, in his interlocutory application, claims there was a miscarriage of justice in his failed defamation case against the newspapers in light of claims McKenzie allegedly obtained information relating to his legal position during trial.
In the recording, McKenzie tells Robert-Smith’s former mistress that the soldier’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,” McKenzie tells the woman, who became known as Person 17 during the defamation trial.
MinterEllison lawyers Peter Bartlett and Dean Levitan have been subpoenaed to give evidence at the two-day hearing starting on May 1, but that application is expected to be strongly opposed by Nine at a hearing before Justice Nye Perram in the Federal Court on Wednesday.
Roberts-Smith’s lawyers have subpoenaed documents from Person 17, Emma Roberts and Danielle Scott but are not expected to call them to give evidence in the witness box.
Nine’s barrister in the defamation case, Nicholas Owens, now a Federal Court judge, will not be called to give evidence, despite a suggestion by Roberts-Smith’s silk Arthur Moses in a hearing last month that he might be required to do so.
It appears Nine may not be challenging the veracity of the recording itself, which was made secretly in a meeting between McKenzie and Person 17, who had claimed the war veteran hit her.
An audio excerpt of the conversation was emailed anonymously to Roberts-Smith’s lawyers at 2.54am on a Saturday morning before ultimately being broadcast by Sky News commentator Sharri Markson nine days later.
McKenzie is expected to argue that information he received from Emma Roberts and Danielle Scott about the soldier’s case was not legally privileged.
During the defamation trial, Roberts-Smith launched a separate action accusing Roberts of improperly accessing his emails over 100 times, and issued subpoenas to Nine for any leaked material she had supplied. The publisher said it had no such documents and the Federal Court dismissed the challenge, accepting 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,” judge Robert Bromwich ruled.
Roberts-Smith’s lawyers will question whether Nine produced all the evidence it was required to produce on subpoena during the defamation trial. They will also argue that his ex-wife’s evidence to Justice Anthony Besanko in the defamation trial contradicted her evidence before Justice Bromwich in the separate action.
They have subpoenaed the ABC to produce any communications between the MediaWatch program and McKenzie, following a March broadcast in which host Linton Besser examined the case against the journalist.
When MediaWatch approached Sharri Markson for comment she replied: “I would have thought you’d be asking your long-term friend and former colleague, Nick McKenzie, what he meant when he said he’d breached his ethics, rather than trying to identify the source of a recording that a Federal Court judge found significant enough to schedule an urgent hearing for.”
Besser then noted: “Just for the record, I’m as much a friend of Nick McKenzie as I am of Sharri Markson.”
The ABC is expected to oppose any application which would require its journalists to reveal their sources.
Roberts-Smith, in his case against Nine, claimed he was defamed and wrongly portrayed as a war criminal, bully, and domestic abuser. The Federal Court in June 2023 found Roberts-Smith had committed murders while serving with the SAS in Afghanistan but had failed to prove he abused his mistress.
The Victoria Cross recipient has requested the Federal Court set aside the judgment against him, or alternatively, order a retrial.
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