Decorated veteran Ben Roberts-Smith’s bid for a second chance to clear his name is on the line as an award-winning journalist faces a judge about a taped phone call.
Nick McKenzie wrote a series of reports for Nine newspapers in 2018 describing the former soldier as a war criminal, an allegation a judge later found was true on the balance of probabilities.
Roberts-Smith is pushing to reopen his appeal against the judge’s finding that he had been complicit in the murder of four unarmed civilians while deployed in Afghanistan.
He argues there was a miscarriage of justice because McKenzie unlawfully obtained details about the former soldier’s legal strategy from his ex-wife, Emma Roberts.
The Victoria Cross recipient claims Ms Roberts accessed her ex-husband’s email accounts and leaked sensitive information to McKenzie, who used it to shape his legal strategy.
In a taped call between McKenzie and Roberts-Smith’s ex-lover, the journalist tells her Ms Roberts and her friend had been “actively briefing us on his legal strategy”.
“I shouldn’t tell you. I’ve just breached my f***ing ethics in doing that, like this has put me in a s*** position now,” the journalist said.
The towering Roberts-Smith fronted the Federal Court on Thursday alongside his parents, who have previously called McKenzie’s phone call “concerning”.
The information came to light after the ex-soldier’s 10-day appeal was heard in early 2024 but should be considered before the three appeal judges deliver their decision, his lawyers argue.
If his appeal is unsuccessful, only the High Court could overturn the war criminal finding.
Roberts-Smith rose to prominence in 2011 after being awarded Australia’s highest military honour, the Victoria Cross, for single-handedly taking out machine-gun posts to protect pinned-down colleagues in Afghanistan.
His reputation however was tarnished in 2018 after McKenzie’s explosive reports alleging the special forces veteran was complicit in the murder of four unarmed men during his deployment in Afghanistan.
In June 2023, Justice Anthony Besanko found the reports had been proven on the balance of probabilities – a lower standard than in a criminal proceeding.
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.
