Full court retrial on the cards for Ben Roberts-Smith

The disgraced war veteran is seeking a retrial of his war crimes case after bombshell audio of an investigative journalist was leaked.

Disgraced war veteran Ben Roberts-Smith could call a federal judge to the stand in his bid to overturn findings made by the civil standard that he is a war criminal.

The Victoria Cross recipient failed in his bid to sue Nine Newspapers in 2023 for a series of articles alleging that he had committed war crimes, with the Federal Court instead finding, on the civil standard of the balance of probabilities, that the allegations were true.

Bombshell audio recently made public by Sky News revealed that journalist Nick McKenzie claimed to a witness that he had been briefed on parts of Roberts-Smith’s legal strategy, spurring the veteran to apply for a retrial.

While the 46-year-old did not appear in the Federal Court on Monday, where a brief case management hearing was held before Justice Nye Perram, his parents Len and Sue attended.

Justice Perram noted that a retrial before a full Federal Court was on the cards.

Roberts-Smith’s lawyer Arthur Moses SC told the court on Monday that it was possible that former silk Nicholas Owens, who represented Nine in the initial defamation case and is now a Federal Court judge, would be called as a witness.

Mr Moses suggested it may be appropriate for the case to be heard before a full court rather than a single judge.

Disgraced war veteran Ben Roberts-Smith’s application for a retrial of his war crimes case has been heard in a federal court. Picture: NCA NewsWire / Jeremy Piper

Justice Perram is expected to share his directions for the case by the end of the day.

Justice Anthony Besanko found in 2023 that imputations put forward across eight articles by The Sydney Morning Herald, The Age and The Canberra Times were substantially true about Roberts-Smith.

Roberts-Smith appealed the decision handed down by the court and is waiting for an outcome.

Explosive audio recordings

Sky News exposed audio recordings that captured McKenzie claiming to a witness (identified only as Person 17) that he had been briefed on parts of Roberts-Smith’s legal strategy.

McKenzie told the witness that he was given the information by Robert-Smith’s ex-wife Emma Roberts and her friend Danielle Scott and he was breaching his ethics by divulging the information.

“They’ve actively like briefing us on his legal strategy, in respect of you,” he says in the recording.

“We anticipated most of it, one or two things now we know which is helpful.

“I’ve just breached my f***ing ethics in doing that, like this has put me in a s*it position now, like if Dean (Nine lawyer Dean Levitan) knew that and Peter (Nine lawyer Peter Bartlett) knew that, I’d get my arse f***ing handed to me on a platter.”

Roberts-Smith’s parents Sue and Len attended the Federal Court in Sydney.

There is no suggestion of any wrongdoing by any lawyers in Nine’s legal team acting on the case.

McKenzie also claimed that an undercover police investigation was under way in Queensland and officers were living in the Robert-Smith’s Brisbane apartment building.

“No one knows about the police investigation. It’s a sensitive ongoing police investigation, phone taps, taskforce, there’s a whole new taskforce has been stood up in Brisbane,” he said.

“An entire new task force. There’s police living in his apartment block under assumed identities, as we speak. Like the guy is f***ed.”

Sky News was told by a source close to Roberts-Smith that the recording confirmed what he always knew and the former SAS soldier was now considering legal options with his lawyers.

“Mr Roberts-Smith is urgently considering the most appropriate next step,” the source said.

Nine responded to questions from Sky News, saying it had reviewed the audio clip with its legal counsel and confirmed there was no breach of legal privilege or ethical concerns.

“Nine has full confidence in the reporting and actions of Nick McKenzie, an award-winning reporter who enjoys the respect and admiration of his editors and colleagues in the newsroom,” a Nine spokesman said.

‘Extremely concerning’

Meanwhile, Robert-Smith’s parents have spoken out in support of their son in the wake of the bombshell audio recordings being made public.

Len and Sue said in a statement provided to the media their son “has been subject to vilification by Nick McKenzie, Nine Media, Fairfax and others for almost a decade now”.

“We note that the respondents admit the recording published of the conversation McKenzie had with Person 17 is genuine; that it did occur,” they said.

“The conversation is extremely concerning on a number of levels.”

The parents questioned which of their son’s legal strategies the journalist had been referring to and how that knowledge may have affected the conduct of the case.

“Worryingly, that might be impossible to know. The issue is whether or not it resulted in an unfair trial,” they said.

“Questions too, about what privileged information or material Ben’s ex-wife Emma and her friend Danielle Scott told McKenzie or gave to him.

“Further, if McKenzie was prepared to speak to P17 as he did on the recording, did he have similar conversations with other witnesses? If so, who; and what did he say to them?

“The Appeal Court would never have become aware of that conversation had this recording not been provided anonymously to Ben’s lawyers who immediately raised it with the respondents’ lawyers and then made the present application to the court.”

Originally published as Full court retrial on the cards for Ben Roberts-Smith