Ben Roberts-Smith is pushing to reopen his appeal against the judge’s 2023 finding that he had been complicit in the murder of four unarmed civilians while deployed in Afghanistan. Photograph: Bianca de Marchi/AAPView image in fullscreenBen Roberts-Smith is pushing to reopen his appeal against the judge’s 2023 finding that he had been complicit in the murder of four unarmed civilians while deployed in Afghanistan. Photograph: Bianca de Marchi/AAPBen Roberts-Smith‘Secret’ recording will be heard in court as Ben Roberts-Smith fights to overturn defamation lossPhone call contains admission of a ‘serious nature’ by investigative journalist Nick McKenzie, according to decorated war veteran’s legal team
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Jordyn BeazleyThu 1 May 2025 06.43 BSTLast modified on Thu 1 May 2025 06.44 BSTShareA “recording made in secret” has been ruled admissible in Ben Roberts-Smith’s bid to reopen his appeal for his unsuccessful defamation case against Nine newspapers – despite Nine’s lawyers arguing the audio should be treated with “great caution”.The recording is a key piece of evidence, according to the decorated war veteran’s legal team, who claimed the 85-second audio clip contained an admission by investigative journalist Nick McKenzie of a “serious nature”.Roberts-Smith, who appeared in Sydney’s federal court on Thursday, is arguing the appeal should be reopened in light of new evidence, because there was a “miscarriage of justice” caused by McKenzie’s alleged “misconduct”.Nine journalist Nick McKenzie allegedly told of Ben Roberts-Smith’s ex-wife’s planned legal actionRead moreThe 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.At the centre of Roberts-Smith’s bid to re-open his appeal is the “secret” recording. 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 recoding 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.Explore more on these topicsBen Roberts-SmithNew South WalesDefamation law (Australia)AfghanistanWar reportingnewsShareReuse this content
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