Courtroom drama as high-flying reporter Nick McKenzie is confronted with his OWN dirty laundry after bringing down Australia’s most decorated soldier, writes STEPHEN GIBBS

It was billed as a potential showdown between Australia’s most decorated soldier and the acclaimed journalist who famously brought him down. 

But it took six long hours before Ben Roberts-Smith and Nick McKenzie came face-to-face in front of the Full Bench of the Federal Court on Thursday.

McKenzie was there to address untested allegations he had acted unethically during the marathon defamation action that resulted in Roberts-Smith being branded a war criminal.

By the end of the day he had conceded using ‘deceptive methods’ and ‘subterfuge’ during his work but only when it was in the public interest. 

Roberts-Smith came to watch his tormenter under cross-examination by his barrister Arthur Moses, SC, and had to wait patiently until 3.45pm for that to happen.

The former Special Air Service corporal wore a blue suit and chocolate suede RM Williams boots and was seated in the front row of the public gallery nearest the door. 

Sitting next to him were his father Len Roberts-Smith, a retired judge of the Supreme Court of Western Australia and the 46-year-old’s mother Sue.

Next to the Roberts-Smiths were Hugh and Janny Poate, the parents of Private Robert Poate who was killed in Afghanistan in August 2012 by a Taliban insurgent in the Afghan National Army. 

Journalist Nick McKenzie gave evidence in the Federal Court on Thursday to address untested suggestions he had acted unethically during the marathon defamation action that resulted in Ben Roberts-Smith being branded a war criminal. He is pictured on Thursday

During a break, Roberts-Smith shook the hand of a New Zealander who was clutching a sand-coloured SAS beret bearing the regiment’s motto ‘Who Dares Wins’ and saluted the Victoria Cross recipient as he walked down the corridor.

McKenzie, who had not given evidence in the defamation trial, was supported by The Age’s editor Patrick Elligett, Nine Publishing’s executive editor Luke McIlveen and its managing director Tory McGuire. 

Roberts-Smith is appealing against Justice Anthony Besanko’s findings in June 2023 that on the balance of probabilities he was complicit in the murders of four unarmed prisoners while serving in Afghanistan.

Those allegations had originally been raised in stories co-written by McKenzie in 2018 which were published in The Age and The Sydney Morning Herald.

Roberts-Smith wants to reopen his appeal after a secretly recorded conversation emerged between McKenzie and a witness known as Person 17 in the defamation action.

Person 17 had once been Roberts-Smith’s mistress and accused him of punching her in the head after a function at Parliament House, which Justice Besanko found had not been proved.

McKenzie was recorded in early 2021 telling Person 17 that Roberts-Smith’s then estranged wife and her friend Danielle Scott were ‘actively briefing us on his legal strategy in respect of you’.

‘I shouldn’t tell you,’ McKenzie said in the 85-second audio clip. ‘I’ve just breached my f***ing ethics in doing that.

Roberts-Smith is appealing against Justice Anthony Besanko’s findings in June 2023 that on the balance of probabilities he was complicit in the murders of four unarmed prisoners while serving in Afghanistan. He is pictured on Thursday 

‘This has put me in a s*** position now.’

Roberts-Smith’s lawyers contend McKenzie might have shared legally privileged information leading to a miscarriage of justice in the defamation trial.

Thursday morning’s hearing was taken up with legal argument which resulted in the secret recording being ruled admissible and McKenzie being called to the stand.

Early in cross-examination, Mr Moses asked McKenzie if he ensured he used only lawful means to gather information for stories.

‘That’s a complicated answer to that question,’ McKenzie said. ‘Yes, I try to act within the law.’

McKenzie said he complied with the MEAA code of ethics by using ‘fair, reasonable and honest means’ to gather news, including for his Roberts-Smith stories.

The 16-time Walkley Award winner was then read sections of Nine Publishing’s code of conduct and said he was not familiar with the contents of that documents.

Taken to a section which required Nine journalists to keep records of conversations with sources for 12 months, McKenzie said, ‘I’ve never read that before’.

Roberts-Smith came to watch his tormenter under cross-examination by his barrister Arthur Moses, SC, and had to wait patiently until 3.45pm for that to happen

Another part of the code forbade deceptive reporting methods or subterfuge unless the matter was of vital public interest and there was no other way of obtaining the story.

McKenzie said he had abided by those principles, although until Thursday he had never seen Nine’s code of conduct.

Mr Moses: ‘Do you ever use deceptive methods or subterfuge?’

McKenzie: ‘On occasion if it’s in the public interest.’

McKenzie denied improperly gaining access to someone else’s personal information in a manner which would be unlawful.

‘But there are circumstances where I have been in a situation where a police officer has wanted to expose corruption and has leaked information to me unlawfully and I have published that information,’ he said.

‘It’s a very broad proposition. There are instances where it is our job to find information that is hidden.’

McKenzie agreed he had gained unauthorised access to a Labor Party database for a 2010 story in The Age and avoided a criminal conviction for having done so after making a deal with prosecutors.

McKenzie is pictured outside the Federal Court on June 1, 2023, the day Justice Anthony Besanko found Ben Roberts-Smith had been complicit in four murders

He accepted in that instance using unlawful methods but did not accept having ‘crossed the line’.

‘There’s a lot of context that’s important to consider when trying to answer that question,’ he told the court. 

Roberts-Smith rarely reacted to any of McKenzie’s evidence beyond the occasional word in his father’s ear and the odd smile. 

Mr Moses asked McKenzie if he had been under considerable ‘psychological pressure’ during the Roberts-Smith defamation trial.

McKenzie said the legal process had been extremely stressful.

Mr Moses: ‘Do you agree that by the beginning of 2021 you have previously said that you had your balls in a vice because you believed your career would be over if you lost the case?’

McKenzie: ‘I do recall writing that in my book. I was extremely anxious throughout the whole of the seven-year legal proceedings.’

‘Throughout the whole proceedings I was really anxious to prove that Ben Roberts-Smith was a war criminal and we had to find evidence to do that,’ he said.

‘I’m an extremely anxious person and I was extremely worried that we’d lose the case at times.’

When McKenzie got out of the witness box after giving an hour’s testimony, Roberts-Smith stood, did up his suit jacket and spoke to his father. 

As McKenzie walked within a couple of metres of Roberts-Smith on his way to the door the two men did not make eye contact. 

McKenzie will continue his evidence on Friday.  

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