Beleaguered war veteran Ben Roberts Smith has had no chance of justice within the Australian legal system trying to clear his name of alleged war crimes in Afghanistan.
Over the past eight years since the Victoria Cross winner first took on Channel Nine and its dubious reporters for defamation he has been stymied by questionable decisions and actions taken by Federal Court judges, double-crossed by his ex-wife and one-time mistress, crucified by hearsay evidence given by federal member for Canning Andrew Hastie and had Channel Nine bribe witnesses to go against him.
Roberts-Smith claimed Nine’s successive, secret payments to his ex-wife and one-time mistress were part of a prolonged campaign designed to deprive him of justice in the failed defamation proceedings he brought against the media company.
The Afghanistan veteran sued his ex-wife, Emma Roberts, in the midst of the long-running defamation action against Nine’s newspapers, The Sydney Morning and The Age, accusing her of accessing confidential emails relating to his case and passing it on to the Channel Nine lawyers.
At the time, Federal Court judge Robert Bromwich found in Ms Roberts’ favour, saying her former husband’s case relied on material that went “no further than bare possibilities and suspicions” before ordering him to pay her costs.
When leading legal firm Minter Ellison sent Roberts-Smith a letter on Nine’s behalf on May 22, 2024 demanding he reimburse the organisation $207,083.20 for his failed legal action against his former spouse, he knew that Nine had been paying her costs.
Roberts-Smith claimed his ex-wife’s fees represented only a small amount of the money Nine had deployed against him throughout his long-running legal action. He also accused the media organisation of buying “new lives” for at least three Afghan men who were called to give evidence against him, and providing money to pay for the legal fees of fellow SAS soldier and federal MP Andrew Hastie.
“They paid more than $200,000 of my former wife Emma Roberts’s legal fees after my private emails were accessed over 100 times by her and her friend Danielle Scott, exposing my privileged legal strategy,” Roberts Smith told The Australian.
In May last year, Sky News published an email sent by Emma Roberts to Nine executive Tory Maguire threatening to publicly expose allegations that Nine reporter Nick McKenzie was given confidential and privileged information.
“If you have to lie & cheat to win, then you shouldn’t be playing the game at all,” she said in the email.
Details of the deed of release, including that she was paid $700,000 with a confidentiality clause, can be revealed after a separate non-publication order had lapsed.
Mr Roberts-Smith last year unsuccessfully attempted to reopen his appeal after leaked recordings of McKenzie were published.
In the recordings, McKenzie told the woman that he was given the information by Mr Robert-Smith’s ex-wife Emma Roberts and her friend Danielle Scott about Mr Roberts-Smith’s legal strategy.
“They’ve actively like briefing us on his legal strategy, in respect of you,” McKenzie said in the recording which was played to the court.
“We anticipated most of it, one or two things now we know which is helpful.
“I’ve just breached my f***ing ethics in doing that, like this has put me in a sh*t position now, like if Dean (Nine lawyer Dean Levitan) knew that and Peter (Nine lawyer Peter Bartlett) knew that, I’d get my arse f***ing handed to me on a platter.”
Ben Roberts Smith further claimed “Nine … paid Afghan witnesses and bought new lives for them and their families to give evidence against me.”
The Federal Court found that there was no evidence that Nine had paid Afghan witnesses to fabricate claims against Roberts-Smith.
Justice Perram on February 2 denied Nine’s application for a 50 year non-publication order over the deed of release, noting that most of the information was already in the public domain.
“The information in the deed has entered the public domain in the form of a number of news articles which were published between 4 May, 2025 and 7 May, 2025,” Justice Perram said in his judgment in February.
He said the suppression order “lacked utility”.
Following the dismissal of his appeal, Mr Roberts-Smith claimed that Nine silenced Person 17.
“It is extremely disappointing that the Full Court chose to exclude critically relevant evidence of the unethical conduct of journalist Nick McKenzie,” he said in a statement in May last year.
“I have only ever asked for a fair and just hearing – that has not occurred.
The latest revelations come after details of the secret deal Nine struck with Roberts-Smith’s one-time mistress were made public after Nine failed in its bid to persuade Federal Court Judge Nye Perram to extend an interim suppression order of the deed for half a century.
The document revealed Nine agreed to pay Roberts-Smith’s ex-mistress – known only as Person 17 throughout the defamation proceedings – $700,000 on January 25, 2024, eight days before the Full Court of the Federal Court was to hear the war veteran’s appeal against the finding by judge Anthony Besanko that he had murdered four detainees in Afghanistan.
This is justice, the ‘Australian way’ and if you have a lot of money almost any desired court outcome can be achieved.
