Ben Roberts-Smith has requested a retrial, claiming there was a “miscarriage of justice” due to alleged “misconduct” by Nick McKenzie, a journalist he unsuccessfully sued for defamation. According to court documents, Roberts-Smith believes McKenzie engaged in wilful misconduct by improperly obtaining and retaining confidential information about his legal strategy. This discovery was only made known to him after the trial and he believes it would have changed the trial’s outcome.

Originally, the defamation case, which lasted for a year in a Sydney federal court, was brought by Roberts-Smith against McKenzie and Fairfax newspapers. It involved allegations of murder and war crimes against the decorated war veteran while he served in Afghanistan. Roberts-Smith lost the case in June 2023 with Justice Anthony Besanko ruling in favor of McKenzie and others, concluding that on the balance of probabilities, Roberts-Smith had committed such crimes.

Roberts-Smith has appealed the decision and sought to include claims of miscarriage of justice in relation to an audio recording allegedly featuring McKenzie. The recording, which was sent to a solicitor representing Roberts-Smith, reportedly captures McKenzie discussing a witness’s evidence and commenting on the strategy of Roberts-Smith’s ex-wife and her friend.

The grounds for the appeal were presented in a hearing before the federal court in Sydney. Roberts-Smith contended that any discussions about briefing strategies were confidential and privileged. He argued that McKenzie’s alleged actions compromised the integrity of the trial.

Nine, which acquired Fairfax in 2018, responded to the allegations, firmly denying any breach of legal privilege or misconduct. They expressed full confidence in Nick McKenzie’s reporting and actions.

Source: https://www.theguardian.com/australia-news/2025/mar/31/ben-roberts-smith-defamation-case-retrial-nick-mckenzie-ntwnfb