Embattled military hero Ben Roberts-Smith – who failed to clear his name over war crime allegations – has demanded a retrial after what he claims was a ‘miscarriage of justice’.
The ex-SAS corporal suffered a stunning loss in a marathon defamation trial in June 2023, when a Federal Court judge found claims made against him by Nine Newspapers were true on the balance of probability.
Mr Roberts-Smith, who received the Victoria Cross in 2011, on Thursday lodged an appeal in the Federal Circuit Court hoping to have the ruling overturned.
The long-running case returned to public attention on Monday when Sky News released explosive audio of one of Nine’s journalists involved in the case.
Investigative reporter Nick McKenzie can be heard admitting he ‘breached his ethics’ by obtaining part of Mr Roberts-Smith’s legal strategy.
‘You know the fact that they’ve actively like briefing us on his legal strategy, in respect of you,’ Mr McKenzie is heard saying to a woman he was encouraging to cooperate in the defamation case.
‘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.
‘I shouldn’t tell you. I’ve just breached my f***ing ethics in doing that, like this has put me in a s*** position now, like if Dean knew that and Peter knew that, I’d get my a*** f***ing handed to me on a platter.’
Victoria Cross recipient Ben Roberts-Smith (pictured) is demanding a retrial after what he claims was a ‘miscarriage of justice’
Following the revelations, Mr Roberts-Smith’s legal team on Thursday filed an 11th hour application on Thursday to the Federal Court to amend the grounds of his appeal.
The veteran’s lawyers are also looking for the full defamation finding to be overturned and for there to be a new trial.
‘In the circumstances…. the nature of the information improperly obtained and its concealment until after the conclusion of the trial and appeal, it is in the interests of justice… that the matter be retried,’ the application read.
There is no suggestion that Nine’s lawyers acted improperly.
Mr Roberts-Smith said that all he wanted was a ‘fair process’.
He said his lawyers were seeking leave to rely on additional evidence, ‘including an audio recording in which a journalist admits to being briefed with my confidential legal strategy’.
Mr Roberts-Smith claims there is separate evidence that his emails were improperly accessed more than 100 times between 2020 and 2021.
He also intends to ‘amend my grounds of appeal to include a miscarriage of justice’.
In the 2023 Federal Court decision, a Justice ruled that claims made by Nine Newspapers and Federal Capital Press about Ben Roberts-Smith (pictured) while he was an SAS commander were ‘substantially or contextually’ true
‘I have continued to fight for justice throughout this process and today that fight continues,’ Mr Roberts-Smith said in a statement.
‘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.’
A Nine spokesperson told Sky News there had been ‘no breach of legal privilege or ethical concerns.
‘Any claims of a miscarriage of justice are baseless and a continuation of the sustained campaign of mistruths peddled by Ben Roberts-Smith and his media backers.
‘Nine has full confidence in the reporting and actions of Nick McKenzie.’
Daily Mail Australia has contacted Nine and Mr Roberts-Smith’s lawyer for comment.
In the 2023, Federal Court Justice Anthony Besanko ruled that all the claims made by Nine Newspapers and Federal Capital Press that Mr Roberts-Smith insisted were defamatory are either ‘substantially or contextually’ true.
Those claims included that, as an SAS commander, he kicked an Afghan prisoner off a cliff in September 2012, ordered the execution of an amputee and was implicated in three other executions of unarmed prisoners.
Nine has said the company has full confidence in the reporting and actions of investigative reporter Nick McKenzie (pictured) after explosive audio surrounding the defamation case emerged
Justice Besanko also found imputations related to domestic violence had ‘contextual truth’, even though Mr Roberts-Smith’s former mistress Person 17’s evidence was ‘not sufficiently reliable to find an assault had occurred’.
However, the veteran maintains his innocence and has not been charged or convicted with any offences.
Justice Besanko’s summary included conclusions that are only legally binding in the defamation action Mr Roberts-Smith took against Nine.
Finding Nine had shown ‘the applicant broke the moral and legal rules of military engagement and is therefore a criminal,’ does not mean the veteran committed a crime.
