Nine journalist Nick McKenzie branded an ‘untrustworthy liar’ in Ben Roberts-Smith case

One of Australia’s top investigative journalists is a liar whose evidence cannot be trusted, the lawyer representing Victoria Cross winner Ben Roberts-Smith told a court in a last-ditch attempt to overturn the war crimes finding against the ex-SAS soldier.

After questioning the Age journalist Nick McKenzie in the Federal Court, barrister Arthur Moses accused him of using memory lapses to falsely deny he obtained inside information on his opponent’s legal strategy from Mr Roberts-Smith’s ex-wife, Emma Roberts, and her close friend, Danielle Scott.

“You ought to reject him as a witness of credit,” Mr Moses told three judges hearing the case in Sydney. “He has come to the court to lie and deceive.”

Ethics on trial

In five hours of cross-examination over two days, McKenzie did not deviate from his core explanation for a recently emerged recording in which he admitted to ethical breaches. Namely that he developed relationships with sources who shared legitimate information about the case, including that Mr Roberts-Smith wanted his girlfriend to lie in court, and never broke the law.

“To the best of my knowledge, I never had any legally privileged information,” McKenzie said.

Mr Roberts-Smith’s case, which seeks to restart his seven-year lawsuit against Nine Entertainment Co, has been turned into a trial of the ethics of one of the most successful journalists in modern Australian history, a winner of 16 Walkley awards who was largely responsible for the downfall of the most-famous living military veteran.

Over two days of evidence, it emerged that McKenzie was able to build relationships with several people close to his legal opponent: Mr Roberts-Smith’s estranged wife, her best friend and his girlfriend, who was considering giving evidence helpful to McKenzie. He even spoke to the girlfriend’s husband.

McKenzie’s relationship with the girlfriend, who is only known as Person 17, eventually broke down. He said in court he believed she recorded a conversation between them in 2021 — its emergence a couple of months ago sparked the current case — in which he said: “They’ve actively, like, briefing us of his legal strategy.”

After playing the tape in court, Mr Moses suggested to Mr McKenzie that he told the woman that if she gave evidence, Mr Roberts-Smith’s lawyers would accuse her of writing an anonymous letter to his wife about their relationship.

“I don’t recall the conversation,” the journalist said.

Mr Moses asserted McKenzie shared other information about his opponent’s planned legal tactics with her: that she had lied about being pregnant and making a complaint at a police station. Once again, McKenzie said he could not remember.

The woman was so upset that she began the process of suing McKenzie over his conduct by sending him a draft lawsuit, according to evidence presented in court that was not challenged by the journalist. What happened to the potential lawsuit is unclear.

‘I’ll protect you’

McKenzie told another source, Ms Scott, in 2020: “I’ll protect you until I’m dead” and “I’m getting excited. I’ve got to keep going. Don’t do this to me.”

Ms Scott, a confidant of Mr Roberts-Smith’s estranged wife, was sharing information from a legal statement made for a court case between the couple in the Family Court.

In court on Friday, McKenzie said he was flattering Ms Scott and already had the information, which was sent to him anonymously over a messaging app.

“To the best of my recollection, when I got this phone call I already had the information I was being told,” he said. “I believe I was trying to not let on to Danielle that I already had this.

“She’s got her gossip, information, her best mate is telling her. That’s natural. Why would anyone think that is naturally privileged?”

Few of the journalist’s phone messages were available because he sometimes set them to be deleted after 30 minutes.

McKenzie and his lawyers had a meeting with Ms Roberts and Ms Scott at Ms Roberts’ home in March 2021. What they discussed could not be revealed in court because lawyers were present, a system of legal privilege that is at the centre of the case.

McKenzie did learn that Mr Roberts-Smith had buried files in his backyard on USB sticks. They contained videos and photographs from Afghanistan, included SAS soldiers drinking from the prosthetic leg of an Afghan man they allegedly executed.

The information about the stash came from an anonymous person who called and said Mr Roberts-Smith “was trawling through his backyard at night burying stuff and stashing stuff”, McKenzie said.

Case of the century

The three judges, Nye Perram, Geoffrey Kennett and Anna Katzmann, are being asked to take the momentous step of overturning a judgment that took almost seven years to reach in what was dubbed “the defamation case of the century”.

McKenzie’s barrister, John Sheahan, said the other side needed to show any confidential information influenced the case. No evidence was presented showing Nine used the other side’s strategy against it.

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

“Something went seriously wrong during the conduct of the trial in a way that compromised the integrity of the result,” he said.

Mr Sheahan said the court system requires sides to largely reveal their cases in advance in a “cards-on-the-table” approach.

“You 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 or murder or not murder.”