Investigative journalist Nick McKenzie has agreed in Ben Roberts-Smith’s bid to reopen his appeal for his defamation case he has used “deceptive methods and subterfuge” to obtain information “on occasion if it is in the public interest”.
McKenzie was cross examined on Thursday afternoon by Roberts-Smith’s lawyer, Arthur Moses SC. It’s part of a two day hearing in which the war veteran is arguing the appeal should be reopened in light of new evidence that he claims shows there was a “miscarriage of justice” in the defamation proceedings caused by McKenzie’s alleged “misconduct”.
The defamation proceedings, which ran for a year, were brought by Roberts-Smith against McKenzie and then Fairfax 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.
On Thursday, McKenzie was repeatedly asked by Moses to justify his methods as an investigative journalist, specifically in relation to a 2010 incident where he was charged alongside two colleagues for unlawfully accessing a Labor Party database for a story published in the Age.
McKenzie accepted his methods had been unlawful, but asserted he had not crossed a line and had been up front about those methods in the published story.
Asked if it would be improper of him to access somebody else’s information unlawfully, McKenzie responded that was “a very broad position”.
“There are instances where it is our job to find information that has been hidden,” McKenzie said.
McKenzie agreed that once the litigation had commenced in the Roberts-Smith case, he had continued to search for evidence which would contribute during the case.
When asked if it was fair to say that he was “highly motivated during the proceedings to dig up anything” his legal team could use because he was “desperate to achieve a breakthrough”, McKenzie said he wouldn’t say it “in those terms”.
“Throughout the whole proceeding I was really anxious to prove that Ben Roberts-Smith was a war criminal, and we had to find evidence to do that,” he said, after being asked how he would describe it.
McKenzie was also questioned over his communications with Roberts-Smith’s ex-wife, Emma Roberts, and her friend Danielle Scott, during the litigation proceedings.
Two of those conversations were had with Scott in August 2020 and, the court heard, were not included in the original trial.
Asked by Moses if he was aware those recordings were not discovered in the trial, McKenzie said he provided them to his lawyers and he’s not aware if they were exhibited in a schedule as a privileged communication.
The court heard that McKenzie had forgotten that the recordings existed until the latest bid to reopen the appeal, and he can’t recall if he kept a copy of them.
At the centre of Roberts-Smith’s bid to re-open his appeal is a “secret” recording made without McKenzie’s consent or knowledge and which on Thursday was ruled admissible evidence.
According to an affidavit filed by one of Roberts-Smith’s solicitors, McKenzie in the recording allegedly told a witness in the defamation proceedings, known as person 17, that Roberts-Smith’s ex-wife and her friend were “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, McKenzie also said in the recording: “I shouldn’t tell you. I’ve just breached my fucking ethics in doing that.”
The court heard the recording was sent on 15 March this year 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”.
On Thursday, before a panel of of judges, Nine barrister Robert Yezerski SC argued the recording should be rejected by the court because it was recorded without McKenzie’s knowledge or consent, and whoever published it was guilty of an offence.
Yezerski said the recording was “more likely than not” made in Queensland, where is it is not an offence to record a conversation in private, but it is an offence to publish that recording.
He also argued the 85-second recording was a “snippet or extract” from a conversation that could have lasted between 15 to 45 minutes, and that “whoever sent the recording” did so with a “view to assisting” Roberts-Smith.
“What we don’t know is whether any of the middle has been cut out … or whether there has been slicing and editing within the recording,” Yezerski told the court.
“The intention of whoever made the recording and edited it did so with a view of causing maximum benefit to the appellant and maximum harm to the respondents generally.”
“There is real reason to treat it with great caution.”
Arthur Moses SC, who acted on behalf of Roberts-Smith, argued that the recording should be admissible because there was no evidence pointing to who sent the recording, or how it was recorded, adding there was much “we don’t know”.
“All we have is the evidence before us,” he told the court.
Moses also argued the evidence had probative value because it “contains an admission by McKenzie of a serious nature”.
The hearing before Justice Perram, Justice Katzmann, and Justice Kennett continues.
