The journalist whose work led to Australia’s most decorated soldier being branded a war criminal has repeatedly denied engaging in professional misconduct.

Nick McKenzie returned to a Federal Court witness box on Friday to explain a secret recording of a conversation between him and Ben Roberts-Smith’s onetime mistress.

McKenzie spoke to the woman, known as Person 17, ahead of her giving evidence against Roberts-Smith in the marathon defamation trial he spectacularly lost.

Roberts-Smith had sued Nine newspapers over a series of articles co-authored by McKenzie which were published in 2018 and he insisted were false. 

The Victoria Cross recipient has appealed a June 2023 finding he was complicit in the murders of four unarmed prisoners while serving in Afghanistan with the SAS. 

His lawyers contend the conversation between McKenzie and Person 17 show the reporter had access to legally privileged information that helped Nine win its case.

They further allege that information was supplied by Roberts-Smith’s then estranged wife Emma Roberts and her best friend Emma Scott.

In the conversation, McKenzie tells Person 17 ‘they’re actively like briefing us on his legal strategy in respect of you’ and ‘I’ve just breached my f***ing ethics’.

The journalist whose work led to Ben Roberts-Smith being branded a war criminal has repeatedly denied engaging in professional misconduct. Roberts-Smith is pictured at court on Friday

The journalist whose work led to Ben Roberts-Smith being branded a war criminal has repeatedly denied engaging in professional misconduct. Roberts-Smith is pictured at court on Friday

After a recording of the conversation was played in court on Friday afternoon McKenzie was asked about his use of the phrase ‘briefing us on his legal strategy’.

‘I don’t have a recollection of saying the words or that conversation,’ he said.

‘I do recall the events around that conversation and I do know in my own mind I never believed I had legally privileged information… ‘.

In a sometimes heated exchanged with Roberts-Smith’s barrister Arthur Moses, SC, McKenzie denied he was lying or trying to mislead the court. 

Roberts-Smith, who sat in the front row of the public gallery again as he had done on Thursday, occasionally shook his head at McKenzie’s evidence. 

The clandestine recording was sent anonymously to solicitor Paul Svilans from Mark O’Brien Legal, the firm which acted for Roberts-Smith in the defamation trial, at 2.54am on March 15.

It was attached to an email from ‘ellroyferris@proton.me’ which was headed ‘Paul: secret McKenzie recording’.

The 85-second audio clip, purported to have been recorded on April 24, 2021, starts off with a reference to Ms Roberts and Ms Scott.

Nick McKenzie 9above) returned to a Federal Court witness box on Friday to explain a secret recording of a conversation between him and Ben Roberts-Smith's onetime mistress

Nick McKenzie 9above) returned to a Federal Court witness box on Friday to explain a secret recording of a conversation between him and Ben Roberts-Smith’s onetime mistress

‘You know the fact they’re actively like briefing us on his legal strategy in respect of you… ‘ McKenzie is recording saying.

‘… 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 we’ve got this, and they’re not hostile to you despite your worst fears. They’re not.

‘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.’

The next passage is where Roberts-Smith’s lawyers submit McKenzie admits to unethical conduct.

‘I shouldn’t tell you,’ he tells Person 17. ‘I’ve just breached my f***ing ethics in doing that… 

‘This has put me in a s*** position now. If Dean knew that and then you know I’d get my a*** f***ing handed to me on a platter.’

Dean is Dean Levitan, one of the lawyers for Minter Ellison, the firm which acted for Nine.

Roberts-Smith (above) had sued Nine newspapers over a series of articles co-authored by McKenzie which were published in 2018 and he insisted were false

Roberts-Smith (above) had sued Nine newspapers over a series of articles co-authored by McKenzie which were published in 2018 and he insisted were false

McKenzie goes on to tell Person 17 that Roberts-Smith is the target of a police investigation ‘no one knows about’.

‘It’s a sensitive ongoing police investigation,’ he says. ‘Phone taps, task force… there’s a whole new task force being stood up in Brisbane, an entire new task force.

‘There’s police living in his apartment block under assumed identities as we speak. Like, the guy is f***ed.’

After the tape was played, McKenzie said it captured only a fraction of a much longer conversation but he could not recall most of what the pair had discussed.

He had no reason to believe any information he was given was legally privileged and thought what Person 17 told him had lawfully come from Ms Roberts or Ms Scott.

‘To the best of my knowledge I never had any legally privileged information,’ he said.

McKenzie said he had been surprised when the recording of his conversation with Person 17 emerged but he was aware she had made a complaint about him.

Person 17 had served a draft statement of claim stating she was going to sue McKenzie and Nine ‘in respect of your conduct towards her in preparing her to give evidence’.

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

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

Mr Moses put it to McKenzie that Person 17’s claim should have alerted him to certain allegations she had made.

Among those were that McKenzie had told Person 17 lawyers for Roberts-Smith were going to accuse her of having written an anonymous letter about her affair with their client which Ms Roberts had obtained.

Another claim was that McKenzie had told Person 17 that Roberts-Smith’s lawyers would allege she could not have been pregnant at a particular time because she had been seen walking around London on her own. 

A third claim was that the lawyers would allege Person 17 could not have attended her local police station at a time she said she had because she was in Brisbane.

McKenzie said he could not recall any of those claims being made in his conversation with Person 17.

‘I don’t recall the conversation,’ he said. 

‘All I’ve had to work on is a snippet of audio and my best recollection of what occurred surrounding the time of the conversation.’ 

McKenzie repeatedly denied Mr Moses’s assertions he was trying to cover up wrongdoing.

Roberts-Smith is pictured meeting Queen Elizabeth II shortly after he was awarded his VC

Roberts-Smith is pictured meeting Queen Elizabeth II shortly after he was awarded his VC

‘I accept that getting legally privileged information would be wrong,’ he said. ‘I do not accept I ever got legally privileged information.’

Justices Nye Perram, Anna Katzmann and Geoffrey Kennett have reserved their decision on whether to allow Roberts-Smith to re-open his appeal. 

On Thursday, McKenzie had passed within a couple of metres of Roberts-Smith as he left the court room and the two men had not even exchanged glances.

When the reporter stepped out of the witness box after five hours’ testimony on Friday, he walked by Roberts-Smith and looked him straight in the eye.

Roberts-Smith’s gaze followed McKenzie all the way out the door. 

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