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”.
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”.
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.
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.
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”.
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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.”
Roberts-Smith argued that in light of the recording, the judgment in favour of McKenzie, Fairfax News, 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.