Ben Roberts-Smith: D-day for Victoria Cross recipient’s defamation appeal

D-day has finally come for Australia’s most decorated solider, who will learn on Friday if he was successful in his bid to overturn his loss in his multi-million dollar war crimes defamation case.

In what was one of the most significant defamation trials in the country’s legal history, a judge ruled allegations in Nine newspapers that Ben Roberts-Smith committed murders while on duty in Afghanistan were substantially true in 2023.

Mr Roberts-Smith has always vehemently maintained his innocence and launched an appeal, which was heard last year.

Now, more than a year later, the Federal Court is due to deliver its decision on Friday morning.

It comes after bombshell secret recordings were made public in which Nine reporter Nick McKenzie, who worked on the stories at the centre of the defamation case, could be heard speaking with a witness in the trial before she gave evidence.

In them, McKenzie told the witness, known only as Person 17 and who had an affair with Mr Roberts-Smith, that he had been “actively” briefed on the Victoria Cross recipient’s legal strategy by the soldier’s ex-wife Emma Roberts and friend Danielle Scott.

He goes on to say that he had “breaching my f...ing” ethics.

The tapes, which were first aired on Sky News, prompted Mr Roberts-Smith to lodge an urgent application to reopen the appeal before the decision was delivered.

It is understood the court will also deliver a decision on that application on Friday.

Mr Roberts-Smith’s barrister Arthur Moses, had argued that all that was required, legally, to overturn the verdict was a “reasonable possibility” leaked information could have affected the case.

McKenzie’s barrister, John Sheahan, said the court system required sides to largely reveal their cases in advance in a “cards-on-the-table” approach.

“Your legal strategy is nothing precious in our system these days,” he said.

“There was a full-and-fair trial between these parties on deeply controversial questions of murder or not murder.”

Following the hearing earlier this month, it then emerged Nine had secretly paid $700,000 to stop Person 17 from going public with damaging claims about McKenzie before the appeal was due to be heard in court.

Nine has since threatened Person 17 with legal action and has demanded she repay the money, alleging she leaked the audio. It is a claim she denies.

Confronted by 7NEWS with questions about who signed off on the hush money payment at her Sydney home last week, Nine chair Catherine West refused to answer, instead running inside and slamming the door.

Nine and the rest of the board has also refused to comment.