One of Australia’s most decorated journalists has been accused of not telling the “complete truth” about incidents that could allow disgraced veteran Ben Roberts-Smith to clear his name.
Roberts-Smith is pushing to reopen his 2024 appeal to earlier defamation findings that he – on the balance of probabilities – committed war crimes in Afghanistan.
He argues there was a miscarriage of justice during his appeal because journalist Nick McKenzie, who first levelled the war crimes accusation in 2018 reports, unlawfully obtained details about the former soldier’s legal strategy.
Roberts-Smith alleges his ex-wife Emma Roberts accessed his email accounts and passed privileged communications onto McKenzie, who used them to shape his defence.
In a taped call between McKenzie and Roberts-Smith’s ex-lover – known during the defamation proceedings as Person 17 – the journalist tells her that Ms Roberts and her friend Danielle Scott had been “actively briefing us on his legal strategy”.
Roberts-Smith’s lawyer Arthur Moses SC told the Federal Court on Tuesday there were further examples of privileged information being sent to McKenzie which he hadn’t disclosed.
He cited a 2020 text from Ms Scott in which she told him Ms Roberts was going to notify authorities about a potential family law breach by her ex-husband.
“Always better to be on the front foot in terms of what they’re planning,” Ms Scott told McKenzie.
“I think you owe me two times beers now.”
On the same day, Roberts-Smith’s lawyers emailed about a family court matter and copied in one of his email addresses.
Mr Moses said the message was another example of a “heads-up” to McKenzie which contained “blatant privileged information” that should have been flagged with his lawyers.
Privileged information is confidential information that is legally protected from disclosure, such as discussions about a case between a lawyer and their client.
McKenzie wrote in an affidavit that he had passed on all relevant communications with Ms Scott to Nine’s lawyers Peter Bartlett and Dean Levitan, but he had never been told they were privileged or that he had acted improperly.
Mr Moses pushed for both lawyers to give evidence about whether they knew about the privileged communications and whether they had advised McKenzie about privilege.
“We have to know what’s going on here,” he said.
“We’re not being told the complete truth by Mr McKenzie.”
Lawyers for Mr Bartlett and Mr Levitan argued it was not established that any of the information was privileged and there was no evidence to show McKenzie had made use of it.
They said the journalist would have had to “significantly misuse” the information for it to have led to a miscarriage of justice.
Roberts-Smith argues the miscarriage of justice arose from the leak of privileged information which directed Nine’s legal strategy and influenced the assessment of his credibility.
McKenzie had set his Signal messaging app to delete messages after a short period when he was allegedly receiving confidential information during Roberts-Smith’s trial, the court was told.
Justice Nye Perram has reserved his decision on whether Mr Bartlett and Mr Levitan should be called to give evidence on Thursday.
Roberts-Smith rose to prominence in 2011 after he was awarded Australia’s highest military honour, the Victoria Cross, for single-handedly taking out machine-gun posts to protect pinned-down colleagues in Afghanistan.
In 2023, Justice Anthony Besanko ruled it had been proven to a civil standard that he had been complicit in the murder of four unarmed men during deployment in Afghanistan, as reported by Nine in 2018.
Lifeline 13 11 14
Open Arms 1800 011 046
Australian Associated Press is the beating heart of Australian news. AAP is Australia’s only independent national newswire and has been delivering accurate, reliable and fast news content to the media industry, government and corporate sector for 85 years. We keep Australia informed.
