Disgraced veteran to learn fate over war crimes claims

Decorated war veteran Ben Roberts-Smith will learn on Friday whether he had successfully overturned findings that he was, on the balance of probabilities, a war criminal.

Justice Anthony Besanko delivered the bruising judgment in 2023 after the former elite soldier sued Nine newspapers and journalist Nick McKenzie over reports that claimed he had committed war crimes.

Roberts-Smith launched an appeal, which was heard over 10 days in the Federal Court in February 2024.

More than a year later, the Victoria Cross recipient is finally set to learn the outcome of his appeal when the Full Court delivers its decision on Friday.

It will also rule on whether to reopen the appeal after Roberts-Smith argued there was a miscarriage of justice because McKenzie had unlawfully obtained details about his legal strategy.

It came after a secret recording emerged of McKenzie telling Roberts-Smith's ex-lover that two crucial witnesses were "actively briefing us on his legal strategy" during the initial trial.

"We're not learning like we anticipated most of it. One or two things now we know, which is helpful," the award-winning journalist is heard saying.

"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."

Lawyers for Roberts-Smith said there was a real possibility the outcome of the trial would have been different if McKenzie hadn't obtained privileged information.

But McKenzie's lawyers said there was no proof any information had been used or that the use would be so serious as to affect the outcome.

McKenzie maintains he didn't know any of the information he received was privileged and says he passed on relevant communications to his lawyers.

Roberts-Smith rose to prominence in 2011 after he was awarded Australia's highest military honour, the Victoria Cross, for single-handedly taking out machine-gun posts to protect pinned-down colleagues in Afghanistan.

But his reputation was tarnished in 2018 when McKenzie wrote explosive reports alleging the special forces veteran was complicit in the murder of four unarmed men during his deployment in Afghanistan.

In June 2023, Justice Anthony Besanko found the reports had been proven on the balance of probabilities - a lower standard than in a criminal proceeding.

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