Nine's $700,000 Payment to Witness in Roberts-Smith Defamation Case Revealed
Media conglomerate Nine paid a substantial sum of $700,000 to a witness involved in its high-profile defamation case against alleged war criminal Ben Roberts-Smith. This payment was made to ensure the witness, identified as Person 17, would not disclose allegations of misconduct concerning star investigative reporter Nick McKenzie. The details of this financial arrangement have come to light after Nine's ambitious legal attempt to keep the agreement confidential for the next fifty years was unsuccessful.
Failed Suppression Order and Court Proceedings
Federal Court Justice Nye Perram declined to grant Nine's request for a suppression order that would have concealed the payment details for half a century. In an unusual judicial move, Justice Perram also removed a lengthy affidavit sworn by Person 17 from the court file. This affidavit had been submitted when an interim suppression order was initially implemented last year. Consequently, while the payment details are now public, the full extent of Person 17's allegations against McKenzie may never be fully disclosed due to this removal.
Background of Person 17 and the Defamation Case
Person 17, who was once Roberts-Smith's mistress, provided evidence against the Victoria Cross recipient during his defamation trial. She claimed Roberts-Smith had assaulted her, but later turned against Nine and McKenzie. Person 17 threatened legal action against both the journalist and the publisher, serving a draft statement of claim that alleged misconduct by McKenzie. This potential lawsuit was never formally commenced.
In the draft claim, Person 17 alleged that McKenzie told her during the defamation proceedings that Roberts-Smith's ex-wife, Emma Roberts, and her friend Danielle Scott were "actively briefing us on his legal strategy in respect of you." A secret recording from April 2021 captured McKenzie telling Person 17, "I shouldn't tell you. I've just breached my f***ing ethics in doing that. This has put me in a s*** position now."
The Defamation Case and War Crimes Allegations
Nick McKenzie and Chris Masters authored a series of articles published in Nine newspapers in 2018 that accused Ben Roberts-Smith of committing war crimes while serving with the Special Air Service (SAS) in Afghanistan. Roberts-Smith, who holds both a Victoria Cross and a Medal for Gallantry, sued Nine for defamation in a Federal Court case that spanned 110 days and cost the parties at least $30 million.
In June 2023, Justice Anthony Besanko dismissed Roberts-Smith's claim and found, on the balance of probabilities, that the former corporal had been complicit in the murder of four unarmed Afghans. However, Justice Besanko also determined that Person 17's allegation that Roberts-Smith punched her in the head after a Parliament House function in March 2018 had not been proved.
Settlement and Confidentiality Agreement
Roberts-Smith appealed the war crimes findings to the Full Court of the Federal Court. Before the appeal could be heard, Person 17 prepared a draft statement of claim against Nine and McKenzie. Following mediation discussions, the dispute was resolved through a deed of settlement signed on January 25, 2024—just eight days before the Full Court appeal was scheduled to begin.
Under this deed, Nine paid Person 17 $700,000, and she agreed to keep the terms confidential. Person 17 was prohibited from revealing any circumstances surrounding the deed or releasing information or documents related to her allegations against McKenzie.
Secret Recording and Appeal Developments
Roberts-Smith's appeal was heard in February 2024, but before judgment could be delivered, the secret recording between Person 17 and McKenzie emerged. The recording was sent anonymously to Roberts-Smith's lawyers on March 15 last year and broadcast on Sky News nine days later. The origin of how Sky News obtained the recording remains unclear.
Roberts-Smith sought to reopen his appeal, arguing that McKenzie had received legally privileged information, leading to a miscarriage of justice. On April 29 last year, Person 17 swore an affidavit expressing concerns about how Nine had presented her evidence and alleging that the publisher introduced evidence from Emma Roberts that it knew to be false.
Court Findings and Final Rulings
Over two days in early May last year, McKenzie gave evidence before the Full Court regarding the secret recording. He denied receiving any material he knew to be privileged but conceded using "deceptive methods" and "subterfuge" in his work when he believed it served the public interest. McKenzie acknowledged being aware of Person 17's complaint against him but expressed surprise when the recording was made public.
The Full Court dismissed Roberts-Smith's appeal on May 16, with Justices Perram, Anna Katzmann, and Geoffrey Kennett finding McKenzie to be a credible witness. The court unanimously accepted McKenzie's evidence that he had not received privileged material and ruled he had done nothing wrong concerning Person 17.
Aftermath and Legal Consequences
Following the Full Court's decision, Roberts-Smith issued a statement maintaining his innocence and announcing plans to challenge the judgment in the High Court of Australia. He criticized the exclusion of evidence regarding McKenzie's conduct and accused Nine of using "its power, influence, and money to secure the silence of a witness."
Justice Perram declined to continue the suppression order over Nine's agreement with Person 17 on February 2, noting that the contents were already in the public domain and that Nine had not sought to remove previously published articles. Roberts-Smith had sought an exemption from any suppression order to forward the deed to law enforcement agencies, but Justice Perram's decision made this unnecessary.
The High Court refused Roberts-Smith special leave to appeal in September, ending his legal avenues to clear his name. In response, Nine emphasized its commitment to investigative journalism, stating, "Multiple courts and esteemed judges emphatically found that Ben Roberts-Smith was not a war hero, he was a war criminal." The media giant defended its actions, asserting that the settlement deed was not a non-disclosure agreement and did not prevent Person 17 from giving evidence in court.
