Ben Roberts-Smith Appeals Defamation Loss, Citing Secret Recording as Evidence

Ben Roberts-Smith’s ongoing legal battle took a dramatic turn as he seeks to overturn a landmark defamation ruling that found him complicit in war crimes. The former Special Air Service corporal's legal team is pushing to introduce a secret recording allegedly involving investigative journalist Nick McKenzie, which could be pivotal in their argument for a retrial. The case centers around a 2023 decision by Federal Court Justice Anthony Besanko, who ruled against Roberts-Smith after he sued The Sydney Morning Herald and The Age for articles asserting he had committed acts of murder during his military service in Afghanistan. In a recent hearing, Roberts-Smith's barrister, Arthur Moses, articulated that the alleged misconduct by McKenzie, specifically in relation to the secret recording, represents a potential miscarriage of justice. This recording, which was sent anonymously to Roberts-Smith’s lawyers, features McKenzie discussing Roberts-Smith's legal strategies, raising serious ethical concerns regarding the journalism process involved in reporting the defamation case. The legal team for the media outlets is contesting the admissibility of this recording, arguing it might have been obtained illegally and could lead to unfair prejudice in the ongoing case. Their fears are compounded by the potential ramifications such evidence could have on McKenzie’s reputation if upheld by the court. Legal experts have highlighted that if any misconduct by McKenzie is proven, it could not only open the door for Roberts-Smith to appeal but significantly undermine McKenzie’s standing as a journalist. Roberts-Smith's arguments hinge on proving whether the information McKenzie received was privileged, if he knowingly compromised that privilege, and whether his actions affected the fairness of the original trial. Such legal intricacies come at a time when public sentiment towards both Roberts-Smith, once a celebrated military figure, and McKenzie, a noteworthy journalist, are critical in shaping both parties' futures. The implications of this case go beyond their personal challenges; they underscore significant questions regarding media ethics, accountability, and the legal processes surrounding defamation and the military.