By Ethan Rix, ABC
Ben Roberts-Smith had appealed against the 2023 Federal Court ruling. Photo: ABC News / Abubakr Sajid
War veteran Ben Roberts-Smith has failed in a bid to overturn his multi-million-dollar defamation loss against Nine newspapers, which found him complicit in war crimes on the balance of probabilities.
The former Special Air Service corporal also had an application to reopen the appeal with the inclusion of new evidence dismissed by the full bench of the Federal Court.
The Federal Court justices ordered Roberts-Smith to pay costs.
The appeal was heard in February last year after his defamation case against three Nine-owned newspapers was dismissed.
Roberts-Smith sued over a series of articles five years earlier on allegations of war crimes in Afghanistan, bullying and domestic violence against a woman in Canberra.
The Federal Court found the publisher had proven four allegations of unlawful killings in Afghanistan were substantially true to the civil standard, along with allegations of bullying.
While the alleged domestic violence was found to be not sufficiently supported by evidence, the court found any reputational harm fell away in the context of the overall decision.
The defamation case was estimated to have cost upwards of AU$25 million and lasted more than 100 days.
In the appeal, Roberts-Smith's legal team argued Justice Anthony Besanko made several legal errors, including incomplete fact finding, insufficient reasoning and arbitrary conclusions about witness reliability.
In a broad challenge to the judgement, they argued the evidence at trial fell short of the level of cogency required to support such serious allegations.
Eleventh-hour appeal grounds
In late March, they began an eleventh-hour bid to add a further ground of appeal by arguing there was a miscarriage of justice in the original trial, after they were anonymously emailed a conversation recorded in secret of investigative journalist Nick McKenzie speaking to a witness in 2021.
Roberts-Smith's counsel Arthur Moses SC told the court McKenzie had made a "series of damning and unambiguous admissions" during the conversation.
"It reflects a real-time understanding by Mr McKenzie that what he was doing - receiving and using information about the appellant's legal strategy from individuals who had unauthorised access to his private email account - was professionally improper and ethically indefensible," he said.
He alleged the journalist had received details of Roberts-Smith's confidential legal strategy from the veteran's ex-wife and her friend, which McKenzie denied under cross-examination.
"Getting information about your opponent's confidential legal strategy would be a serious breach of your ethics as a journalist, correct?" the barrister asked.
McKenzie replied: "I accept that getting legally privileged information would be wrong. I do not accept I ever got legally privileged information."
A Nine spokesperson said the claims of miscarriage were "baseless" and were a "continuation of the sustained campaign of mistruths peddled" by Roberts-Smith and his backers.
"Nine has full confidence in the reporting and actions of Nick McKenzie," they said in March.
