Judges make sensational call over high-flying Nine reporter Nick McKenzie’s conduct after he was confronted in court with his OWN dirty laundry

Three Federal Court judges have cleared journalist Nick McKenzie of any misconduct after a secret recording emerged of him speaking to a witness in Ben Roberts-Smith’s defamation trial.

McKenzie was the co-author of a series of reports accusing Roberts-Smith of committing war crimes while serving with the Special Air Service Regiment in Afghanistan.

Roberts-Smith sued Nine Newspapers over those publications in a defamation case which ran for 110 days and cost the parties an estimated $25million.

Federal Court judge Anthony Besanko dismissed Roberts-Smith’s claim in June 2023 and found on the balance of probabilities the former corporal had been complicit in the murder of four unarmed Afghans.

Roberts-Smith appealed that judgment and a hearing was held last February, resulting in the Full Court of the Federal Court dismissing his appeal on Friday. 

Justices Justices Nye Perram, Anna Katzmann and Geoffrey Kennett also found McKenzie had done nothing wrong in relation to a secret recording between him and a woman known as Person 17 in the original trial.

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 Anthony Besanko found had not been proved.

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

Ben Roberts-Smith (above) has failed to overturn findings he was complicit in the murder of four prisoners while serving in Afghanistan with the Special Air Service Regiment

‘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’s lawyers contended McKenzie had received legally privileged information which led to a miscarriage of justice.

McKenzie denied he had received any material he knew to be privileged and on Friday the Full Court unanimously accepted his evidence.

Roberts-Smith issued a statement following the Federal Court’s decision to dismiss his appeal, accusing McKenzie of unethical professional conduct.

‘While I accept the decision of the Full Court of the Federal Court of Australia today, I continue to maintain my innocence and deny these egregious spiteful allegations,’ he said.

‘We will immediately seek to challenge this judgment in the High Court of Australia, including the misconduct by Mr McKenzie.

‘It is extremely disappointing that the Full Court chose to exclude critically relevant evidence of the unethical conduct of journalist Nick McKenzie.’

Roberts-Smith said media reporting had revealed ‘Nine unashamedly used its power, influence, and money to secure the silence of a witness 10 days before my appeal commenced in February 2024’.

Roberts-Smith has launched a scathing attack on reporter Nick McKenzie, whose work led to him being branded a war criminal, accusing him of unethical conduct. McKenzie is pictured

‘That witness was prepared to give direct evidence of Mr McKenzie’s use of my privileged material.

‘Sunlight is said to be the best disinfectant, and I believe one day soon the truth will prevail.’ 

McKenzie described the dismissal of Roberts-Smith’s appeal as ‘an emphatic result’.

‘I want to pay tribute and express my deep gratitude to the brave SASR soldiers who not only fought for their country in Afghanistan but fought for the Australian public to learn the truth: that Ben Roberts-Smith is a war criminal,’ he said.

‘I also want to acknowledge the victims of Roberts-Smith, including the Afghan children and women who have lost their fathers and husbands who were murdered on the directions of Roberts-Smith.

‘I am grateful that the full bench of the Federal Court has now scrutinised our journalism and the brave testimony of SASR soldiers and vindicated our efforts to tell the Australian public the truth.

‘Finally, it should not be left to journalists and brave soldiers to stand up to a war criminal. 

‘Australian authorities must hold Ben Roberts-Smith accountable before our criminal justice system.’

Roberts-Smith is pictured being greeted by Queen Elizabeth II at Buckingham Palace in 2011

Nine had argued in the appeal hearing that Justice Besanko’s findings were sufficiently supported by evidence, including that the war crimes claims were substantially true.

The Full Court’s decision clears the path for Roberts-Smith to pay out tens of millions of dollars, after the cost of the defamation proceedings was tipped to exceed $25 million back in 2023.

He was also ordered on Friday to pay Nine’s costs of the ten-day appeal and related court skirmishes he also failed to win.

Roberts-Smith first rose to prominence in 2011 after he was awarded Australia’s highest military honour for single-handedly taking out machine-gun posts to protect pinned-down colleagues in Afghanistan.

McKenzie and Masters reported claims that Roberts-Smith machine-gunned a man with a prosthetic leg, which he then encouraged soldiers to use as a drinking vessel.

On the same day in 2009, Roberts-Smith was alleged to have ordered the execution of an elderly prisoner to ‘blood the rookie’ during a raid on a compound known as Whiskey 108.

The former special forces soldier was accused of kicking a handcuffed prisoner off a cliff in the village of Darwan before dragging him to a creek and ordering his execution on September 11, 2012.

Nine’s coverage claimed Roberts-Smith ordered another prisoner be shot and killed after a weapons cache was discovered in the village of Cinartu.

Roberts-Smith has not been charged over the allegations.

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