Witnesses in Ben Roberts-Smith’s war crimes defamation case could be hauled before the court again for fresh cross-examination if the former soldier can proceed with his bid to reopen his appeal, following explosive recordings involving a Nine journalist.
A brief case management hearing was held on Monday morning in Sydney’s Federal Court for the parties to consider a timetable to hear Roberts-Smith’s application to reopen his appeal.
Roberts-Smith was represented in court by his barrister Arthur Moses SC, while the former SAS soldier’s parents were also present for the short hearing.
There was a legal discussion on how long to set aside to deal with the application, with Nine’s legal representative telling the court a two-day hearing would be “prudent”.
Mr Moses flagged potential issues which may emerge when hearing the application, such as the need for the further cross-examination of witnesses in the case.
Mr Moses said his view is it would be “more appropriate” for the matter to be heard by the Full Court rather than a single judge, flagging a barrister who represented Nine in the defamation case is now a sitting judge.
“There are questions that will arise of apprehension of bias given that one of the individuals involved is now a sitting judge of this court,” Mr Moses said.
Mr Moses argued it could be a “safer course for the Full Court to deal with it”.
The barrister also provided the court with a USB, which contained the audio of the recording with Nine journalist Nick McKenzie.
Justice Nye Perram said he will contact the parties in relation to further directions.
“We have to wrap this up,” he added.
Roberts-Smith is seeking to amend his grounds of appeal to include a “miscarriage of justice” following explosive audio recordings involving star Nine journalist McKenzie.
In a statement provided to Sky News, Sue and Len Roberts-Smith, a former Western Australia Supreme Court Justice, said they would once again support the Victoria Cross recipient after his ongoing “vilification” by Nick McKenzie, Nine media, Fairfax and “others for almost a decade now”.
“We note that the Respondents admit the recording published of the conversation McKenzie had with Person 17 is genuine; that it did occur,” they said.
“The conversation is extremely concerning on a number of levels.”
As well as his time on the Supreme Court bench, Mr Roberts-Smith was also the Judge Advcocate General of the Australian Defence Force and a Major General.
The audio recording, first revealed by Sky News Australia, captures a conversation from early 2021 between McKenzie and a witness he was trying to encourage to cooperate in the defamation case.
In the recording, McKenzie can be heard claiming to have breached his own ethics by obtaining part of Roberts-Smith’s legal strategy from the soldier’s ex-wife Emma Roberts and her friend Danielle Scott.
“I’ve just breached my f**king ethics… This has put me in a sh** position now,” McKenzie said.
“If Dean knew that and Peter knew that, I’d get my ass f**king handed to me on a platter.”
McKenzie was referring to his lawyers at MinterEllison, Peter Bartlett and Dean Levitan, who are not accused of any wrongdoing.
Roberts-Smith’s legal team is arguing the 46-year-old’s war crimes case be retried in the wake of the developments.
“In the circumstances…. the nature of the information improperly obtained and its concealment until after the conclusion of the trial and appeal, it is in the interests of justice – both as between the parties and more broadly in relation to the administration of justice – that the matter be retried,” the application states.
Roberts-Smith’s parents raised questions on which legal strategy of their son’s the journalist was referring to and whether it affected Nine and McKenzie’s own case.
“Worryingly, that might be impossible to know. The issue is whether or not it resulted in an unfair trial,” they said.
“Questions too, about what privileged information or material Ben’s ex-wife Emma and her friend Danielle Scott told McKenzie or gave to him.
“Further, if McKenzie was prepared to speak to P 17 as he did on the recording, did he have similar conversations with other witnesses? If so, who; and what did he say to them?
“The Appeal Court would never have become aware of that conversation had this recording not been provided anonymously to Ben’s lawyers, who immediately raised it with the Respondents’ lawyers and then made the present application to the Court.”
In a statement to Sky News, a Nine spokesperson said there had been “no breach of legal privilege or ethical concerns”.
“Any claims of a miscarriage of justice are baseless and a continuation of the sustained campaign of mistruths peddled by Ben Roberts-Smith and his media backers,” the spokesperson said.
“Nine has full confidence in the reporting and actions of Nick McKenzie.”
Roberts-Smith lost his multi-million-dollar defamation case against Nine newspapers in June 2023 after Justice Anthony Besanko found allegations the former soldier committed war crimes while deployed in Afghanistan were “substantially true”.
Roberts-Smith launched an appeal of the judgment in July 2023, with those proceedings heard by the Federal Court in February last year.
A decision in the appeal is yet to be handed down.
