Former SAS soldier bloodied but unbowed in legal battle with Nine

Victoria Cross recipient Ben Roberts-Smith has vowed to continue his legal battle after the Federal Court threw out his appeal against “spiteful allegations” by Nine newspapers.

Ben Roberts-Smith has lost his appeal. Pictures: News Corp/Supplied

Victoria Cross recipient Ben Roberts-Smith has vowed to continue his legal battle after the Federal Court threw out his appeal against “spiteful allegations” by Nine newspapers.

The Full Court of the Federal Court upheld judge Anthony Besanko’s finding that on the balance of probabilities Roberts-Smith was complicit in war crimes while serving in Afghanistan.

The court also rejected his last ditch bid to re-open the appeal in the defamation action after a secret tape emerged of Nine investigative reporter Nick McKenzie telling a witness he had inside knowledge of the soldier’s legal strategy.

“It is extremely disappointing that the Full Court chose to exclude critically relevant evidence of the unethical conduct of journalist Nick McKenzie,” he said.

“I have only ever asked for a fair and just hearing – that has not occurred.”

Former SAS Corporal Ben Roberts-Smith VC, MG, with the Australian Special Operations Task Group in Afghanistan.

Neither Roberts-Smith nor McKenzie were in the court to hear the decision. Outside the court Nine lawyer Dean Levitan said “the smile says it all”.

Justices Nye Perram, Anna Katzmann and Geoffrey Kennett on Friday upheld the original decision in the long-running defamation action against McKenzie and Nine made on the balance of probabilities rather than the higher criminal standard of being beyond reasonable doubt.

Lawyers for Nine leave the Supreme Court on Friday. Picture: NewsWire / Nikki Short

The judges’ executive summary said “we are unanimously of the opinion that the evidence was sufficiently cogent to support the findings that the appellant murdered four Afghan men and to the extent that we have discerned error in the reasons of the primary judge, the errors were inconsequential,” they said.

But even as Nine’s lawyers were hugging and backslapping in Court One of the Federal Court the former SAS corporal’s lawyers were frantically drafting the next salvo in the ongoing legal battle.

“I continue to maintain my innocence and deny these egregious spiteful allegations,” Roberts-Smith said in the statement.

Ben Roberts-Smith during his appeal to overturn the decision in his defamation action against Fairfax Media publications. Picture: NewsWire / Max Mason-Hubers

“We will immediately seek to challenge this judgment in the High Court of Australia, including the trial misconduct by Mr McKenzie.”

The justices rejected the last minute claim that he had been the victim of a miscarriage of justice after the secret tape was sent to Sky News.

In it McKenzie tells a potential witness identified as Person 17, a former lover of Roberts-Smith, that Danielle Scott, best friend of his then estranged wife Emma, is “actively like briefing us on his legal strategy, in respect of you”.

“We anticipated most of it, one or two things now we know which is helpful,” he is heard to say before adding: “I’ve just breached my f***ing ethics.”

In his statement Roberts-Smith said the revelation of the tape by Sky News journalist Sharri Markson would be a key part of his High Court challenge.

“Thanks to the journalism of Sharri Markson, it has become known that the Nine Board unashamedly used its power, influence, and money to secure the silence of a witness 10 days before my appeal commenced in February 2024.

“That witness was prepared to give direct evidence of Mr McKenzie’s use of my privileged material during the trial.

“The actions of Mr McKenzie and the Nine Board have compromised the judicial process and forever tainted the trial before Justice Besanko. Sunlight is said to be the best

disinfectant, and I believe one day soon the truth will prevail,” he said.

Nine’s managing director of publishing Tory Maguire said the decision was a “a great day for investigative journalism”.

McKenzie thanked the SASR soldiers who gave evidence against Roberts-Smith and fought for the public to know “that Ben Roberts-Smith is a war criminal.”

“It should not be left to journalists and brave soldiers to stand up to a war criminal,” McKenzie said in a statement.

The original defamation action against Nine newspapers was funded by Roberts-Smith then employer, billionaire Kerry Stokes. The total legal bill is expected to be in excess of $30 million.

It is understood the appeal and forthcoming high court challenge have been funded by Roberts-Smith and his parents Len and Sue, who have been regularly by his side in court.

Originally published as Former SAS soldier bloodied but unbowed in legal battle with Nine