Investigative journalist Nick McKenzie has denied in a Sydney court that he saw privileged communications between Ben Roberts-Smith and his lawyers during the proceedings of the war veteran’s failed defamation case against him and Nine.
The court also heard a “secret” recording where McKenzie allegedly told a witness in the defamation proceedings that Roberts-Smith’s ex-wife, Emma Roberts, and her friend Danielle Scott were “actively briefing us on his legal strategy in respect of you”.
It was not revealed who made the recording.
It is part of a two-day hearing in which the war veteran is arguing an appeal should be reopened in light of new evidence showing a “miscarriage of justice” caused by McKenzie’s alleged “misconduct”.
Roberts-Smith brought the defamation proceedings, which ran for a year, against McKenzie and Nine newspapers over a series of stories published between June and August 2018. The stories alleged Roberts-Smith was guilty of murder and war crimes.
Roberts-Smith, a Victoria Cross recipient, lost the case. In 2023 Justice Anthony Besanko ruled Roberts-Smith on the balance of probabilities had murdered unarmed civilians while serving in Afghanistan.
Asked on Friday if the “legal strategy” he was referring to in the recording was information gleaned via legally privileged communications between Roberts-Smith and his lawyers, McKenzie said it was not.
“I never received or had legally privileged information and that’s why I’m confident I wasn’t referring to that,” he told the court when being cross-examined.
“By legal strategy what I meant was in respect of what Danielle had told me… Things like Emma had been told by Roberts-Smith to lie in court.
“That’s what I meant by legal strategy.”
The court heard McKenzie flew to Cairns to meet Scott in March 2021 and also met Roberts alongside his lawyers in the same month.
McKenzie was questioned about a screenshot he was sent by Scott in which Roberts had informed her: “[Mark O’Brien lawyers] just sent BRS an email saying AFP wants to speak with him”.
Arthur Moses SC, representing Roberts-Smith, asserted that this was McKenzie receiving information gleaned from emails exchanged between the war veteran and his lawyers. But the journalist said he did not agree.
McKenzie told the court he believed the information had been found out because “Ben got the warrant to appear, shat himself, told his wife, she told her best friend, who much later told me”.
Asked about other information shared by Scott, he said he believed it had come from Roberts “gossiping” to her “best friend”.
The court heard McKenzie gave to his own lawyers the information received from Scott and Roberts that he deemed would be relevant. He said he was unaware how or whether that was used in the defamation proceedings.
He also agreed under questioning from Moses that he had “proactively” asked Scott for any evidence Roberts had. He said the request related to an anonymous tip he had received that “BRS was crawling through his back yard at night and burying stuff and stashing stuff”.
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Moses also put to McKenzie that the witness – Person 17 – had threatened legal action against him and Nine newspapers after Roberts-Smith’s failed defamation trial.
“She threatened to sue you and Nine in respect of your conduct in the proceedings before Justice Besanko, correct?” Moses asked.
“Yes,” McKenzie said.
The court was on Friday played the 85-second “secret” recording of an earlier conversation between McKenzie and Person 17, who was at the centre of an allegation of domestic violence against Roberts-Smith. This was not proven in the proceedings, with Besanko determining her testimony was not “sufficiently reliable”. Roberts-Smith denied the allegation.
McKenzie told the court he was “utterly surprised” to learn about a month ago the recording existed after it was sent by an unknown person via an encrypted email service to Paul Svilans, one of Roberts-Smith’s lawyers, with the subject line: “Secret McKenzie recording”.
In the recording, after telling the witness about knowing about the legal strategy, McKenzie said: “I shouldn’t tell you. I’ve just breached my fucking ethics in doing that.”
McKenzie agreed he knew the witness, who appeared for Nine, was wavering and he was trying to assure her.
“She wasn’t just stressed, she was very, very stressed,” he said.
During the two hearing, Roberts-Smith sat alongside his parents in the court. When McKenzie walked out of the court on Friday afternoon after finishing his evidence, he and Roberts-Smith exchanged a sustained stare.
The hearing before justices Nye Perram, Anna Katzmann and Geoffrey Kennett was due to finish on Friday.
