Ben Roberts-Smith lawyers accuse investigative reporter of ‘cheating’

In the Federal Court, lawyers for Victoria Cross recipient Ben Roberts-Smith have accused journalist Nick McKenzie of “cheating” by forwarding on messages from inside the former soldier’s legal team.

Lawyers for Victoria Cross recipient Ben Roberts-Smith have accused investigative reporter Nick McKenzie of “cheating” by forwarding on messages from inside the former soldier’s legal team.

Mr Roberts-Smith is attempting to reopen his appeal against the outcome of his defamation trial against Nine Newspapers and Mr McKenzie after a secretly taped conversation suggested the journalist was receiving a “heads-up” on the war veteran’s legal strategy.

The trial ended with the Federal Court finding to a civil standard that the former SAS corporal, who maintains his innocence and has not faced criminal charges, had committed war crimes in Afghanistan.

Barrister Arthur Moses SC, acting for Mr Roberts-Smith on Tuesday, argued court that lawyers acting for Nine during the trial should also be called to give evidence when Mr McKenzie steps into the witness box to give evidence on Thursday.

The legal move came after a tape emerged in which Mr McKenzie revealed he was receiving information from Mr Roberts-Smith’s estranged wife Emma and her best friend Danielle Scott.

Lawyers for Victoria Cross recipient Ben Roberts-Smith (above) have accused investigative reporter Nick McKenzie of “cheating”. Picture: NewsWire / Jeremy Piper

“They’re actively, like, briefing us on his legal strategy, in respect of you,” he is heard to say on the recording.

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

Mr Moses told the court “your opponents are not meant to know what you are about to do” and added that having that knowledge was “cheating”.

He said he “hoped” MinterEllison lawyers Peter Bartlett and Dean Levitan, who acted for Nine during the defamation case, had told Mr McKenzie that communications between lawyers and their clients were privileged.

But the only way to be sure was to ask them in court.

“We are alleging there is a miscarriage of justice and we are entitled to test this,” he said.

Mr Moses said fresh documents provided under subpoena overnight had revealed previously unknown messages from Ms Scott to Mr McKenzie on moves being made by the former soldier’s legal team.

One Signal message from Ms Scott to Mr McKenzie said Ms Roberts was going to write to the Commonwealth Director of Public Prosecutions about a breach of the Family Law Act.

Nick McKenzie will enter the witness box to give evidence on Thursday. Picture: Christian Gilles

She added it was “always better to be on the front foot in knowing what they are planning” and said “you owe me two times beers”.

Mr Moses said this was “a heads-up about what the lawyer on the other side is going to do.”

The question he wanted to ask in court on Thursday was “how do you know about it?”

He said the questions needed to be asked because Mr McKenzie had only passed on the information he thought was relevant.

“He set his Signal messages to self-destruct,” Mr Moses said, meaning there was no other record of what information he had been given.

Lawyers for Mr Bartlett, Mr Levitan and Nine opposed the bid to hasignave them called to give evidence.war

Justice Nye Perram will deliver his decision before the hearing begins on Thursday.

Originally published as Ben Roberts-Smith lawyers accuse investigative reporter of ‘cheating’