War criminal Ben Roberts-Smith lodges legal bid over leaked recording

War criminal Ben Roberts-Smith has lodged a bid to reopen the appeal in his failed defamation case, claiming he was not afforded a fair process.

The move comes days after leaked audio emerged of The Age journalist Nick McKenzie telling a witness he had been privy to some of the war veteran’s legal strategy.

War criminal Ben Roberts-Smith in 2022.Credit: Kate Geraghty

In an interlocutory application filed to the Federal Court on Thursday, Roberts-Smith’s lawyers said the matter must be retried in the interests of justice, with “the nature of the information improperly obtained and its concealment until after the conclusion of the trial and appeal”.

“All I have ever asked for was a fair process where the truth and justice can prevail,” Roberts-Smith said in a statement.

Following the application, Nine, which owns The Age and The Sydney Morning Herald, said it had full confidence in its reporting and its award-winning journalist McKenzie.

“There is no breach of legal privilege or ethical concerns. Any claims of a miscarriage of justice are baseless and a continuation of the sustained campaign of mistruths peddled by Ben Roberts-Smith and his media backers,” a spokesperson for the media company said.

“Nine has full confidence in the reporting and actions of Nick McKenzie.”

The audio of McKenzie telling a witness he had received details of Roberts-Smith’s legal strategy was published by News Corp’s Sky News on Monday night.

In the audio, McKenzie is heard telling the witness he had been briefed on some “helpful” details while trying to reassure her about giving evidence in the case.

“I shouldn’t tell you. I’ve just breached my f---ing ethics in doing that, like this has put me in a shit position now, like if Dean knew that and Peter knew that, I’d get my arse f---ing handed to me on a platter,” McKenzie said. (Dean Levitan and Peter Bartlett are lawyers with MinterEllison, who were acting for the newspapers.)

Roberts-Smith’s appeal hearing was heard in the Federal Court more than a year ago, after he sued – and lost – a landmark defamation case against The Age and Sydney Morning Herald.

In June 2023, Justice Anthony Besanko found that Nine-owned newspapers had proven to a civil standard – on the balance of probabilities – that Roberts-Smith was complicit in the murder of four unarmed prisoners while on deployment in Afghanistan between 2009 and 2012.

A civil standard is lower than the criminal standard of beyond reasonable doubt. Roberts-Smith has maintained his innocence throughout his appeal.

Roberts-Smith launched the appeal in July 2023, one month after Justice Besanko handed down his judgement on the defamation case, after a 10-day hearing in February last year.

“My lawyers have today filed an application with the Full Court seeking leave to: rely upon additional evidence, including an audio recording in which a journalist admits to being briefed with my confidential legal strategy as well as evidence that my emails were improperly accessed over 100 times in 2020 and 2021 and; to amend my grounds of appeal to include a miscarriage of justice,” Roberts-Smith said.

The former Special Air Service corporal launched the proceedings in 2018 over a series of stories alleging he committed war crimes in Afghanistan.

Justice Besanko dismissed the claim, also finding the news outlets had proved that Roberts-Smith bullied a fellow soldier.

In the decision, he found the newspapers had proven to the civil standard that Roberts-Smith kicked an unarmed and handcuffed Afghan villager, identified as a man named Ali Jan, off a small cliff in Darwan on September 11, 2012, before urging a soldier under his command, “Person 11”, to shoot him.

Seven West Media owner and billionaire Kerry Stokes bankrolled Roberts-Smith’s legal costs under a loan agreement. Stokes agreed to pay the total costs for both parties in late-2023 to avoid handing over a tranche of emails between company executives relating to the case.

The Business Briefing newsletter delivers major stories, exclusive coverage and expert opinion. Sign up to get it every weekday morning.