Ben Roberts-Smith has amended his appeal with the Federal Court after secret recordings caught Nine journalist Nick McKenzie claiming to have acted “unethically” and that he had been briefed on some of the war veteran’s legal strategy during his defamation case.
Roberts-Smith amended his appeal on Thursday afternoon and in a statement said all he had ever hoped for was “a fair process”.
“My lawyers have today filed an application with the Full Court seeking leave to: rely upon additional evidence, including an audio recording in which a journalist admits to being briefed with my confidential legal strategy as well as evidence that my emails were improperly accessed over 100 times in 2020 and 2021 and; to amend my grounds of appeal to include a miscarriage of justice,” he said.
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“I have continued to fight for justice throughout this process and today that fight continues.
“As a soldier I spent the majority of my adult life serving this country and putting my life on the line defending our rights as Australians.
“All I have ever asked for was a fair process where the truth and justice can prevail.”
The West Australian reported yesterday that the decorated soldier’s legal team had demanded an urgent explanation from lawyers for Nine and McKenzie about what other information he was privy to during the trial following the leak of the audio.
The newspaper also said it was understood Roberts-Smith’s lawyers were not ruling out seeking to have McKenzie face questioning in the witness stand.
The appeal change comes days after Sky News revealed the star reporter was recorded telling a witness that Roberts-Smith’s ex-wife, Emma Roberts, and her friend, Danielle Scott, had provided him with some of the former soldier’s legal strategy.
Roberts-Smith fought — but lost — a defamation case he brought against Nine newspapers after he was accused of committing war crimes in Afghanistan.
McKenzie told the witness — a woman he was trying to convince to give evidence for Nine — that the intelligence he had received about the soldier’s legal strategy was “helpful” in Nine’s case.
In the recording, McKenzie can be heard saying: “You about, um, Danielle and Emma, like trying to tell you — and again, I know you won’t burn me so do not tell Dean please or Monique (Nine’s lawyers), or anyone that I’ve told you this — you know the fact that they’ve actively like briefing us on his legal strategy, in respect of you.
“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, you know we’ve got this and they’re not hostile to you, despite your worst fears. They’re not,” he said.
“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.
“I shouldn’t tell you. I’ve just breached my f…ing ethics in doing that, like this has put me in a s..t position now, like if Dean knew that and Peter knew that, I’d get my arse f…ing handed to me on a platter.”
Roberts-Smith, a Victoria Cross recipient, was waiting for the outcome of his appeal, with the decision yet to be handed down.