Demand for answers as recordings expose ‘unethical’ reporter
Ben Roberts-Smith is considering a fresh legal bid to clear his name after secret recordings revealed Nine reporter Nick McKenzie claiming he had acted unethically and had been briefed with some of the war veteran’s legal strategy during his defamation case.
The West Australian understands the decorated soldier’s legal team are now demanding an urgent explanation from lawyers for Nine and McKenzie about what other information he was privy to during the trial.
It is also understood Mr Roberts-Smith’s lawyers are not ruling out seeking to have McKenzie face questioning in the witness stand.
It comes after revelations the star reporter was recorded telling a witness that Mr Roberts-Smith’s ex-wife, Emma Roberts, and her friend, Danielle Scott, had provided him with some of the former soldier’s legal strategy.
Mr Roberts-Smith fought — but lost — a defamation case he brought against Nine newspapers after he was accused of committing war crimes in Afghanistan.
McKenzie told the witness — a woman he was trying to convince to give evidence for Nine — that the intelligence he had received about the soldier’s legal strategy was “helpful” in Nine’s case.
In the recording, McKenzie can be heard saying: “You about, um, Danielle and Emma, like trying to tell you — and again, I know you won’t burn me so do not tell Dean please or Monique (Nine’s lawyers), or anyone that I’ve told you this — you know the fact that they’ve actively like briefing us on his legal strategy, in respect of you.
“We anticipated most of it, one or two things now we know which is helpful but the point, the reason I told you that was to say like, you know we’ve got this and they’re not hostile to you, despite your worst fears. They’re not,” he said.
“I’ve told you that so many times now, as well. And I had to tell you that extra bit to sort of prove it in your mind.
“I shouldn’t tell you. I’ve just breached my f…ing ethics in doing that, like this has put me in a s..t position now, like if Dean knew that and Peter knew that, I’d get my arse f…ing handed to me on a platter.”
Mr Roberts-Smith, a Victoria Cross recipient, has appealed the judgment, with the decision yet to be handed down.
The West has obtained a letter written by Mark O’Brien Legal principal Paul Svilans on behalf of Mr Roberts-Smith to MinterEllison partner Peter Bartlett, who acts for Nine, requesting answers to a list of concerns.
They included an alleged failure to “avoid saying whether Mr McKenzie was privy to other information concerning our client’s case”.
Or whether the recorded conversation in April 2021 “formed part of a broader set of disclosures or discussions about the litigation”.
The letter, sent on Monday, also queried Nine’s contention that the information concerning Mr Roberts-Smith’s legal strategy was not “privileged on the basis that it either lacks confidentiality or falls within the iniquity exception”.
“Yet you do not assert whether Mr McKenzie understood it to be privileged or confidential at the time of the conversation,” Mr Svilans wrote.
The letter continues, “Your assertion that the information ‘had no impact on the outcome of the case’ is risible and speculative in the extreme.
“Respectfully, and rhetorically, how could you possibly know that?
“Your letter fails to deal with these comments from Mr McKenzie, despite the fact your client’s own words amount to an apparent admission of unethical conduct and acknowledgement of the serious consequences he anticipated if his actions were exposed.
“These are not ambiguous remarks open to innocent interpretation; they are clear, candid and highly incriminating.
“If Mr McKenzie genuinely believed he had done nothing improper or if the information was innocuous or already in the public domain, why would he make such comments?
“Your failure to address these comments only serves to heighten concern as to the adequacy and credibility of your client’s position.”
Mr Svilans did not respond when asked if MinterEllison replied to the letter on Tuesday morning.
It is not suggested any lawyers from MinterEllison have engaged in any wrongdoing.
In June 2021, Mr Roberts-Smith launched a separate legal suit against his ex-wife, alleging she had leaked his confidential emails to lawyers and war crime investigators to Nine newspapers on the eve of his defamation trial.
He also alleged Mr Roberts’ friend, Ms Scott, may have accessed his emails.
But the claim was dismissed, with Federal Court Justice Robert Bromwich finding the claims went “no further than bare possibilities and suspicions”.
Perth barrister Tom Percy said if it was found that there appears to have been a serious breach of legal privilege, which was not known at the time of the defamation trial, then the court would have a discretion to reopen the case.
Mr Percy said it is possible that McKenzie could be subpoenaed to testify about the issue.
“These kinds of situations are rare but not unknown,” Mr Percy said.
“Ultimately, the decision to reopen would depend on whether the new information, taken at its highest, had the capacity to impact the pending judgment.”
In the secret recordings, McKenzie also revealed to the woman Mr Roberts-Smith was subject to an undercover police investigation and that he was “f…ed”.
Nine says it has reviewed the recording and says there is “no breach of legal privilege or ethical concerns”.