Former soldier Ben Roberts-Smith has faced court this month to appeal his failed defamation case against Nine newspapers.
Roberts-Smith sued the papers over articles alleging he committed war crimes in Afghanistan.
He denied all allegations and said they harmed his reputation. In 2023, a judge found some of the allegations were “substantially true”.
Both parties faced a court hearing this month to determine whether the appeal would proceed, after leaked audio of one of the journalists behind the articles surfaced.
Ben Roberts-Smith
In 2018, The Age and The Sydney Morning Herald published a series of articles about Roberts-Smith.
They alleged Roberts-Smith either ordered or personally carried out six killings of prisoners in Afghanistan, in a manner constituting war crimes.
He was also alleged to have punched a woman in a Canberra hotel room.
Several former soldiers testified at the trial, including Shadow Defence Minister Andrew Hastie, who said the view that Roberts-Smith was a bully was “widespread”.
Presiding Justice Anthony Besanko found many of the claims made by Nine newspapers about the killings were substantially true.
Besanko was not sufficiently satisfied that the assault in Canberra occurred, but accepted the ‘contextual truth’ defence.
This means that even if the assault didn’t happen, the judge ruled there was sufficient context to dismiss claims of harm to Roberts-Smith’s reputation.
The appeal
In July 2023, Roberts-Smith filed an appeal.
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In March 2025, while awaiting a judgment on whether his appeal could proceed, Roberts-Smith’s legal team received an audio recording of Nick McKenzie, one of the journalists behind the series of articles.
The recording is from a phone call between McKenzie and a key witness known in court documents as ‘Person 17’, a former partner of Roberts-Smith.
In the leaked audio, McKenzie can be heard saying he had engaged with Roberts-Smith’s ex-wife and her friend to uncover “his legal strategy”.
The admission was allegedly made to encourage the witness to take the stand against Roberts-Smith.
Lawyers for the former soldier have argued this evidence shows there was a “miscarriage of justice” due to McKenzie’s “misconduct” during the original trial.
They have used the recording as the basis of a new legal filing to re-open the appeal. It could influence the judgment on whether Roberts-Smith can proceed with his case.
McKenzie’s lawyers argued the recording should not be admitted as evidence, claiming it was taken out of context, and recorded and published without consent.
During cross-examination last week, McKenzie said on the stand that he has used “deceptive methods and subterfuge” to gain information for stories in his career, “if it is in the public interest”.
Outcome
If Roberts-Smith’s bid to reopen his appeal is granted, he and Nine will return to court.
It will not mean he has successfully appealed the judgment, but rather that he has won the right to continue to argue his appeal case.
If the case is eventually successfully appealed, the Federal Court of Appeals may hand down a new decision in Roberts-Smith’s favour, or allow a re-trial by a single Federal Court judge.
Roberts-Smith could also try to appeal to the High Court if this case is unsuccessful.
