Journalist Nick McKenzie takes stand in Ben Roberts-Smith retrial hearing

The disgraced war veteran has made his first public appearance since his defamation retrial bid began.

Investigative journalist Nick Mckenzie has given evidence in a long-awaited cross examination by lawyers of former SAS soldier Ben Roberts-Smith.

Roberts-Smith 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.

The Victoria Cross recipient is claiming a miscarriage of justice in his failed defamation case against Fairfax Media after recordings surfaced last month of investigative journalist Nick Mckenzie allegedly admitting to accessing information relating to the veteran’s legal strategy before the trial.

Former soldier Ben Roberts-Smith is claiming a miscarriage of justice in his failed defamation case against Fairfax Media. Picture: Christian Gilles / NewsWire

Mr Roberts-Smith’s appearance was his first since his defamation retrial bid began. Picture: Christian Gilles / NewsWire

‘We had to find evidence’

Both McKenzie and Roberts-Smith made their first public appearances in the federal court Sydney on Thursday.

McKenzie took the stand on Thursday afternoon, and took his time to answer questions where he was cross examined by Arthur Moses SC, acting on behalf of Roberts-Smith.

In his evidence, McKenzie told the court that journalists “always try to act within the law”, however, said there are “occasions” were journalists might do things that “conflict with the law”.

McKenzie said it was a “complicated answer”, and later explained there were “instances where it’s our job to find information that’s been hidden”.

Mr Moses went on to ask McKenzie if he as a journalist had ever used subterfuge to access information – to which McKenzie replied – “on occasion” if it was “in the public interest”.

Quoting McKenzie’s book Mr Moses added McKenzie had wrote he “had his balls in a vice” because he thought his career would be over.

As the hour-long cross examination continued, Mr Moses asked McKenzie if he was “highly motivated to dig up anything he could” during the proceedings because he was “desperate”.

“Not in those terms … I was really anxious to prove that Ben Roberts-Smith was a war criminal and we had to find evidence to do that,” he said.

Nick McKenzie (R) leaves the Federal Court in Sydney. Disgraced veteran Ben Roberts-Smith’s defamation retrial bid at the federal court., Picture: Christian Gilles / NewsWire

Roberts-Smith is contending that his ex-wife Emma Roberts had access to his email account and that she and her friend Emma Scott passed his privileged messages on to McKenzie.

Nine barrister Robert Yezerski SC told the court the recording, which was made public in March, should be treated with “great caution”.

Mr Yezerski argued the conversation in which McKenzie appeared to admit to “breaching his ethics” may have been edited.

“We don’t know if this was a continuous passage or whether there has been slicing or editing of the conversation we just don’t know,” he said.

The audio recording which lasts just 85 seconds is only a “fragment of the conversation”, Mr Yezerski said, adding that McKenzie often took phone calls during the time in question that lasted from 15 minutes to 45 minutes.

However, Justice Nye Perram, Justice Anna Katzmann and Justice Geoffery Kennett ruled on Thursday afternoon the transcript of the recording is admissible as evidence.

Exactly how the recording came about, and who emailed it anonymously, before signing off “all the best”, to Robert-Smiths lawyers back in March remains a mystery.

Arthur Moses is again representing Mr Roberts-Smith in his retrial bid. Picture: NewsWire / Nikki Short

Mr Roberts-Smith’s mother Sue has been a vocal supporter of her son. Picture: NewsWire/ Gaye Gerard

Roberts-Smith is seeking to reopen his appeal, led by the “fresh evidence” – a recording of McKenzie made public last month.

In the bombshell recording, McKenzie tells a witness that he was given the information by Ms Roberts and Ms Scott, and that he is 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**king ethics in doing that, like this has put me in a sh*t 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**king handed to me on a platter.”

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

Originally published as Journalist Nick McKenzie takes stand in Ben Roberts-Smith retrial hearing