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| Ben Roberts-Smith demands defamation retrial citing alleged recording of Nine investigative journalist | Ben Roberts-Smith demands defamation retrial citing alleged recording of Nine investigative journalist |
| (32 minutes later) | |
| Federal court hears Nick McKenzie allegedly told a witness that Roberts-Smith’s ex-wife and her friend were ‘actively briefing us on his legal strategy’ | Federal court hears Nick McKenzie allegedly told a witness that Roberts-Smith’s ex-wife and her friend were ‘actively briefing us on his legal strategy’ |
| Ben Roberts-Smith has argued his case should be retried because there was a “miscarriage of justice” caused by the alleged “misconduct” of Nick McKenzie, the Nine journalist whom Roberts-Smith unsuccessfully sued for defamation. | Ben Roberts-Smith has argued his case should be retried because there was a “miscarriage of justice” caused by the alleged “misconduct” of Nick McKenzie, the Nine journalist whom Roberts-Smith unsuccessfully sued for defamation. |
| In an interlocutory application, published by the federal court in Sydney on Monday, Roberts-Smith claimed that McKenzie “engaged in wilful misconduct in the proceedings by improperly and unlawfully obtaining and retaining information concerning [Roberts-Smith’s] legal strategy concerning the trial that was confidential and privileged”. | In an interlocutory application, published by the federal court in Sydney on Monday, Roberts-Smith claimed that McKenzie “engaged in wilful misconduct in the proceedings by improperly and unlawfully obtaining and retaining information concerning [Roberts-Smith’s] legal strategy concerning the trial that was confidential and privileged”. |
| Roberts-Smith argued that he did not know about the alleged misconduct from McKenzie – the second respondent in the long-running defamation proceedings instigated by the war veteran – until after the trial. | Roberts-Smith argued that he did not know about the alleged misconduct from McKenzie – the second respondent in the long-running defamation proceedings instigated by the war veteran – until after the trial. |
| He claimed that had McKenzie’s alleged actions not occurred, there was “at least a real possibility that … the result of the trial would have been different”. | He claimed that had McKenzie’s alleged actions not occurred, there was “at least a real possibility that … the result of the trial would have been different”. |
| The alleged misconduct relates to an audio recording of McKenzie’s conversation with a witness who gave evidence in the original trial. | The alleged misconduct relates to an audio recording of McKenzie’s conversation with a witness who gave evidence in the original trial. |
| The defamation proceedings, which ran for a year in the federal court in Sydney, were brought by Roberts-Smith against McKenzie and Fairfax newspapers in relation to a series of stories alleging the decorated war veteran was guilty of murder and war crimes. | The defamation proceedings, which ran for a year in the federal court in Sydney, were brought by Roberts-Smith against McKenzie and Fairfax newspapers in relation to a series of stories alleging the decorated war veteran was guilty of murder and war crimes. |
| Roberts-Smith lost that case. Justice Anthony Besanko ruled in June 2023 that Roberts-Smith, on the balance of probabilities, had murdered unarmed civilians while serving in the military in Afghanistan. | Roberts-Smith lost that case. Justice Anthony Besanko ruled in June 2023 that Roberts-Smith, on the balance of probabilities, had murdered unarmed civilians while serving in the military in Afghanistan. |
| Roberts-Smith has appealed the decision. On Monday, in a hearing before the federal court in Sydney, he sought to amend the grounds of his appeal to include “miscarriage of justice” relating to the alleged audio recording of McKenzie. | Roberts-Smith has appealed the decision. On Monday, in a hearing before the federal court in Sydney, he sought to amend the grounds of his appeal to include “miscarriage of justice” relating to the alleged audio recording of McKenzie. |
| In an affidavit from one of the solicitors representing Roberts-Smith, published by the federal court on Monday, the solicitor said that the audio recording had been sent to the principal of the law firm representing Roberts-Smith, with the heading “Paul: secret McKenzie recording”. | In an affidavit from one of the solicitors representing Roberts-Smith, published by the federal court on Monday, the solicitor said that the audio recording had been sent to the principal of the law firm representing Roberts-Smith, with the heading “Paul: secret McKenzie recording”. |
| According to the affidavit, in the recording, a man that the solicitor claims is McKenzie, allegedly tells a witness that Roberts-Smith’s ex-wife Emma Roberts and her friend are “actively briefing us on his legal strategy in respect of you … we anticipated most of it. One or two things now we know”. | According to the affidavit, in the recording, a man that the solicitor claims is McKenzie, allegedly tells a witness that Roberts-Smith’s ex-wife Emma Roberts and her friend are “actively briefing us on his legal strategy in respect of you … we anticipated most of it. One or two things now we know”. |
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| He goes on to say: “I shouldn’t tell you. I’ve just breached my fucking ethics in doing that … this has put me in a shit position now. Like, if Dean [Levitan, one of McKenzie’s lawyers] knew that and then you know I’d get my arse fucking handed to me on a platter.” | He goes on to say: “I shouldn’t tell you. I’ve just breached my fucking ethics in doing that … this has put me in a shit position now. Like, if Dean [Levitan, one of McKenzie’s lawyers] knew that and then you know I’d get my arse fucking handed to me on a platter.” |
| Roberts-Smith argued that in light of the recording, the judgment in favour of Fairfax, McKenzie and others should be set aside, and there should be a judgment in favour of Roberts-Smith – or that a new trial should be ordered. | |
| Justice Nye Perram said he would make a decision on how to proceed with the appeal later on Monday. | Justice Nye Perram said he would make a decision on how to proceed with the appeal later on Monday. |
| Nine, which purchased Fairfax in 2018, said in a statement to Guardian Australia: “There is no breach of legal privilege or ethical concerns. Any claims of a miscarriage of justice are baseless. Nine has full confidence in the reporting and actions of Nick McKenzie.” |