Roberts-Smith’s ex-mistress threatened to sue Nine over reporter’s conduct
Ben Roberts-Smith’s former mistress threatened legal action against Nine newspapers over reporter Nick McKenzie’s conduct and ‘breach of ethics’ in the war veteran’s defamation case.
In a shock development it has been revealed that Ben Roberts-Smith’s former mistress threatened to sue Nine newspapers over reporter Nick McKenzie’s conduct in preparing her to give evidence in the defamation case brought by the former soldier.
In the Federal Court on Friday McKenzie said he was “utterly surprised” when he learnt a secretly recorded conversation he had with the woman had been sent to his lawyers but acknowledged that the woman had previously raised concerns about him providing privileged information from the former soldier’s lawyers.
The recording, first broadcast on Sky News, was a snippet of a phone conversation between McKenzie and the woman, known in the case as Person 17, in which the journalist appears to admit having access to the war veteran’s privileged legal strategy from Mr Roberts-Smith’s former wife, Emma Roberts, and her friend Danielle Scott.
In cross-examination by Mr Roberts-Smith’s barrister, Arthur Moses SC, on Friday McKenzie said it had come as a surprise when his lawyers were sent the recording a month ago but conceded that he was aware that Person 17 had previously made a complaint to Nine about his “breach of ethics”.
McKenzie has denied ever having received Mr Roberts-Smith’s privileged legal information, or having discussed with his own lawyers the possibility that any of the information might be privileged.
On Friday, Mr Moses asked McKenzie if he had told Person 17 that Mr Roberts-Smith’s lawyers were going to allege that she had written an anonymous letter about her affair with the war veteran, which his wife, Emma Roberts, had received.
After an objection by counsel for Nine the question was allowed.
“I don’t recall saying that”, McKenzie answered.
“You don’t deny it, do you?”
“I don’t recall the conversation,” McKenzie replied.
“You said to her that Mr Roberts-Smith’s lawyers were going to allege that she could not truly have been pregnant at a time she claimed to have been pregnant because she was seen walking around the streets of London alone at that time? You said that to her in the conversation you had with her on the 24th of April, 2021, correct?”
“I don’t recall,” McKenzie replied.
Mr Moses asked McKenzie if he had told Person 17 during the conversation that Mr Roberts-Smith’s lawyers were going to allege that she could not have attended her local police station at a time she claimed to have done so because she was actually in Brisbane at that time.
McKenzie said he did not recall the conversation.
McKenzie said he was “unable to be precise” about the legal strategy he was referring to in the conversation and had not taken notes of it.
“All I’ve had to work on is a tiny snippet of audio and my best recollection of what occurred surrounding the time of the conversation,” he said.
Mr Moses put it to McKenzie that he had known about these issues previously because Person 17 had served him with a draft Statement of Claim that she was going to sue him and Nine “in respect of your conduct towards her in preparing her to give evidence in this case”.
“She lodged a draft Statement of Claim, of allegations, that’s correct,” McKenzie replied.
McKenzie said he did not have a detailed recollection of the conversation but insisted: “I do recall the events around that conversation, and I do know in my own mind, I never believed I had legally privileged information.”
The journalist rejected a proposition by Mr Moses that he was lying and trying to deceive the court with his explanation of the words he used.
“What I meant in respect to what Danielle had told me was things like – Emma has been told by Roberts-Smith to lie in court – that’s what I meant by legal strategy,” McKenzie said.
Earlier in the hearing, McKenzie was shown a series of communications between himself and Danielle Scott but denied ever having received Mr Roberts-Smith’s privileged legal information, or having discussed with his own lawyers the possibility that any of the information might be privileged.
“Are you suggesting that at no stage in your dealings with Ms Scott did she ever suggest to you that she had access to Mr Roberts-Smith’s email accounts?” Mr Moses asked.
“I don’t recall her ever suggesting that to me,” McKenzie replied.
“You say that you never, to your knowledge, had any information about Mr Roberts-Smith’s confidential legal advice or confidential legal strategy devised by his lawyers?”
“Yes, none whatsoever.”
The journalist said Ms Scott was “the best friend of a woman who was estranged from her husband, who was to be a witness, who was to lie to advance her husband’s case, gossiping to her best friend, who was in turn telling me”.
Asked where he thought Ms Scott was obtaining her information, McKenzie replied that there was “a flood of information”, most it from the thousands of files from a USB stick that Mr Roberts-Smith had buried in his backyard but had been discovered by Roberts and Scott.
The Victoria Cross recipient’s father, former WA Supreme Court judge Len Roberts-Smith released a statement noting that the information that had come to light was “extraordinary and of great concern” but now a matter for the appeal judges..
“On an entirely different matter, the whole process starting from the Crompvoerts Report and extending through the Brereton Inquiry itself, was a travesty,” he said.
Mr Roberts-Smith (snr) called for a Royal Commission to examine the process which led to the Brereton Inquiry and into the conduct of that Inquiry, “which did so much damage to so many members of the Australian Defence Force and their families”.
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