Ben Roberts-Smith, a decorated veteran, is attempting to overturn a judge’s ruling that depicted him as complicit in the murder of four unarmed civilians in Afghanistan. This legal move is further complicated as award-winning journalist Nick McKenzie faces scrutiny regarding a recorded phone conversation that may have disclosed sensitive information pertaining to Roberts-Smith’s legal strategy.
McKenzie wrote a series of impactful reports for Nine newspapers in 2018, labelling Roberts-Smith a war criminal—an assertion that was later upheld by a judge in 2023. Roberts-Smith is claiming that there has been a miscarriage of justice, alleging that McKenzie illegally acquired confidential information from his ex-wife, Emma Roberts, which was used to influence the journalist’s reporting and, consequently, the judicial outcome.
The situation escalated with a taped conversation in which McKenzie appeared to admit that Roberts-Smith and a friend were providing him insights into Roberts-Smith’s legal approach. During the call, McKenzie expressed concern about potentially breaching journalistic ethics, stating, "I shouldn’t tell you. I’ve just breached my fing ethics in doing that, like this has put me in a s position now."
Roberts-Smith attended a court session alongside his parents, who expressed alarm over McKenzie’s revelations. His legal team argues that this new evidence should be reviewed by the three judges overseeing his appeal, which was heard in early 2024. Should his appeal fail, the only recourse left would be to take the case to the High Court to contest the ruling.
Rising to fame in 2011 when he received the Victoria Cross for exceptional bravery in Afghanistan, Roberts-Smith’s honour has since been overshadowed by allegations stemming from McKenzie’s investigative reports. The judicial finding in June 2023 by Justice Anthony Besanko confirmed the allegations against him on a "balance of probabilities," a standard lower than that required in criminal cases.
With stakes high for Roberts-Smith as he seeks to establish his innocence and rebuild his reputation, the unfolding legal drama underscores the complexities surrounding media ethics and the consequences of wartime conduct.