Defamation discharge

Australia Broadcast Center

19-05-2025

HUGH RIMINTON: Another huge day in court, another crippling blow for our most decorated living war hero … his appeal dismissed. More costs to pay to the Nine Media Group. 10 News First (Sydney), 16 May 2025
Hello welcome to Media Watch I'm Linton Besser.
And we turn tonight to a landmark moment in the battle between Australia's most decorated soldier and its most decorated journalist, with former SAS corporal Ben Roberts-Smith suffering a grave defeat and The Age's Nick McKenzie celebrating an historic win:
NICK MCKENZIE: To have our journalism scrutinised fully, thoroughly, to have the testimony of our witnesses, those brave SASR soldiers, scrutinised yet again, and yet again, the finding is utterly compelling. Ben Roberts-Smith did do these things. Ben Roberts-Smith is a war criminal. 9News Afternoon (Sydney), 16 May 2025
It's now been seven years since McKenzie first published allegations that the Victoria Cross recipient had killed or was complicit in the killing of four prisoners while serving in Afghanistan
Two years ago, Roberts-Smith failed in an attempt to sue for defamation. He appealed that decision and on Friday the Full Court of the Federal Court delivered its verdict:
'Having carefully considered all these matters we are unanimously of the opinion that the evidence was sufficiently cogent to support the findings that the appellant murdered four Afghan men ' 9News (Sydney), 16 May 2025
The court's complete judgement will not be released until tomorrow to allow the government to vet it for any security concerns, but it has delivered its full verdict on Ben Roberts-Smith's sensational last-minute allegation of a conspiracy, in which Nick McKenzie had exploited improper access to the ex-soldier's legally privileged material.
And the central evidence for this claim?
An 85-second snippet of a telephone call between McKenzie and one of Nine's witnesses in the case a woman known only as Person 17 in which he tells her he has sources who are:
NICK MCKENZIE: actively, like briefing us on his legal strategy, in respect of you. Sharri, Sky News Australia, 24 March 2025
On the tape McKenzie also said:
NICK MCKENZIE: I shouldn't tell you. I've just breached my f***ing ethics in doing that, like this is where like, this has put me in a s**t position now Sharri, Sky News Australia, 24 March 2025
For Roberts-Smith, a smoking gun-hard evidence McKenzie had engaged in 'wilful misconduct" by unlawfully accessing privileged legal material.
On Friday however, three eminent justices said it was nothing of the sort, rather the recording was ambiguous unreliable and crucially:
There is no way of knowing how long the whole conversation was and what topics were being discussed before and after this decontextualised snippet. Nor can one be confident that the contents of the recording have not been doctored Federal Court of Australia, Roberts-Smith v Fairfax Publications Pty Limited (Reopening Application) [2025], 16 May 2025
In contrast to Roberts-Smith's attack on McKenzie's conduct, Friday's ruling found the reporter to be a witness of credit and that his desire to reassure a sensitive witness and his apparently incriminating words on the tape:
… indicates that he had an incentive to exaggerate
He may also have had an incentive to try to earn Person 17's trust by suggesting that he was taking her into
his confidence and risking his own position. Federal Court of Australia, Roberts-Smith v Fairfax Publications Pty Limited (Reopening Application) [2025], 16 May 2025
And as for the mystery of who was behind the recording?
… we accepted that on the balance of probabilities it was established that Person 17 made the recording and at some point communicated it to at least one other person. Federal Court of Australia, Roberts-Smith v Fairfax Publications Pty Limited (Reopening Application) [2025], 16 May 2025
The court did not make a finding as to who sent the recording to Roberts-Smith's lawyers, a potential criminal act, and it certainly made no suggestion that it was Person 17, but it did raise the possibility that whomever did so might have desired harm to come to Nick McKenzie.
If so, they certainly hit their mark:
WAR CRIMES SHOCK
EXPLOSIVE SECRET RECORDINGS The West Australian. 25 March 2025
'UNETHICAL' JOURNO IN THE LINE OF FIRE The West Australian, 26 March 2025
'BREAK LAW' TO GET A STORY The West Australian, 2 May, 2025
Published by The West Australian these articles failed to acknowledge the paper's proprietor Kerry Stokes, who had helped to fund Ben Roberts-Smith's case, had a pecuniary interest in blowing up Nine's defence.
Not least because the total court costs are estimated to have run to almost $30 million.
Stokes' television arm also papped Nine chairwoman Catherine West …
REPORTER: Catherine why are you avoiding us? Seven News (Sydney), 7 May 2025
… after damaging allegations Nine had agreed a secret deal with Person 17 buying her silence for $700,000:
REPORTER: Did you sign off on the $700,000 hush money payment? Seven News (Sydney), 7 May 2025
… which Roberts-Smith claimed on Friday had prevented Person 17 from giving:
… direct evidence of Mr McKenzie's use of my privileged material during the trial. Statement of Ben Roberts-Smith VC, MG, 16 May 2025
Ben Roberts-Smith says he will continue the fight and on Friday pledged to take his case to the High Court, but the fact this story and the events surrounding it have twice withstood such exacting and forensic scrutiny, endorsed by no less than the full Federal Court, is a resounding vindication not just of those whistleblowers in uniform who exposed the monstrous acts of Australia's most famous soldier but also for the great and necessary enterprise of investigative reporting.