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The secret $700k payout to a Ben Roberts-Smith witness · The Front

• 0:05
  Speaker 1: From The Australian. Here's what's on the front. I'm Claire Harvey.
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  Speaker 1: It's Tuesday, February seventeen, twenty twenty six. Police investigating the
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  Speaker 1: disappearance of missing four year old Gus Lamont have laid
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  Speaker 1: firearms charges against seventy five year old grandmother Josie Murray
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  Speaker 1: at Oak Park Station in South Australia, but they say
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  Speaker 1: those charges aren't related to the search for Gus. He
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  Speaker 1: vanished from the property in September. Murray has been granted
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  Speaker 1: bail and will appear in court on May six. A
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  Speaker 1: fresh twist in the epic Ben Roberts Smith defamation case
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  Speaker 1: with new revelations about the behind the scenes legal tactics
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  Speaker 1: of publisher nine Entertainment in defense of a star journalist.
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  Speaker 1: Today the seven hundred thousand dollars payment Nine tried to
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  Speaker 1: keep quiet Stephen Rice is here in just a moment.
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  Speaker 1: Australia's most decorated living soldier has lost a defamation case.
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  Speaker 1: A judge found newspaper substantially proved the decorated soldier committed
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  Speaker 1: serious war crimes in Afghanistan, in.
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  Speaker 2: Lightened by conclusions each proceeding.
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  Speaker 3: Must be dismissed devastated with the result.
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  Speaker 2: It's a terrible outcome and it's seeing correct outcome. Today
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  Speaker 2: is a day of justice. It's a day of justice
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  Speaker 2: for those brave men of the Sas who stood up
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  Speaker 2: and told the truth about who Ben Robert Smith is.
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  Speaker 2: A war criminal, a bully and a liar.
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  Speaker 1: Stephen Rice is The Australian's New South Wales editor and
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  Speaker 1: the Ben Roberts Smith versus Nine Entertainment defamation case has
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  Speaker 1: been dragging on for years. I feel like we're finally
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  Speaker 1: getting close to the end, but not without one big
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  Speaker 1: last twist. What is happening, Well.
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  Speaker 3: It's always for the last seven years, it's always been
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  Speaker 3: one last big twist. This one is actually very significant
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  Speaker 3: and pretty explosive development. It turns out that Nine, which
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  Speaker 3: had been sued by Ben Robert Smith for defamation, paid
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  Speaker 3: one of its star witnesses seven hundred thousand dollars to
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  Speaker 3: not say anything more about the case after she'd given
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  Speaker 3: evidence in it. She had made some pretty serious allegations
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  Speaker 3: against nine's star reporter Nick McKenzie. She had claimed that
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  Speaker 3: he had told her in a phone conversation that essentially
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  Speaker 3: that he had access to Ben Robert Smith's legal defense
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  Speaker 3: that he knew what Ben Robert Smith's lawyers were going
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  Speaker 3: to bring up in the case. And that's a pretty
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  Speaker 3: serious allegation to make. You're not supposed to have access
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  Speaker 3: to the opponent's legal strategy. And she'd also claimed that
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  Speaker 3: he had broken a deal with her not to identify
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  Speaker 3: her as the source of his information. In the case,
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  Speaker 3: she was alleged by nine to have been assaulted by
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  Speaker 3: Ben Roberts Smith, and the judge later decided that there
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  Speaker 3: actually wasn't enough evidence to prove.
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  Speaker 1: That, so putting this in the bigger context, Nine reported
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  Speaker 1: allegations against Ben Robert Smith that he had allegedly committed
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  Speaker 1: war crimes while fighting for Australia as a Special Forces
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  Speaker 1: soldier in Afghanistan. Some of those allegations include kicking a
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  Speaker 1: man down a small cliff who was restrained, and otherwise
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  Speaker 1: treating people who were in custody Afghan people with cruelty
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  Speaker 1: or factor killing them. Ben Robert Smith denied the allegations
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  Speaker 1: and announced his intention to sue Nine. And this is
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  Speaker 1: where it gets interesting when this happens to a media organization,
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  Speaker 1: the sources for the original story in this case multiple story,
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  Speaker 1: or is it covered all sorts of allegations against Ben
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  Speaker 1: Robert Smith. The media organization asks them to come to
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  Speaker 1: court to be witnesses to prove that the story is true.
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  Speaker 1: So it's not surprising that there would be ongoing conversations
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  Speaker 1: between a witness and the journalist. In this case, Nick
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  Speaker 1: Mackenzie seemed to be appointed the person who was in
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  Speaker 1: charge of dealing with the witnesses, right. That seems quite unconventional, Rissie.
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  Speaker 1: You would think normally it would be lawyers who would
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  Speaker 1: be doing that kind of thing.
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  Speaker 3: Well, I mean, Nick is a very good journalist, and
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  Speaker 3: he is the kind of journalist that will maintain continuous
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  Speaker 3: contact with everybody that he's talking about. And frankly, I
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  Speaker 3: don't blame him. This was always going to be an
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  Speaker 3: explosive case. I mean it was pretty clear from an
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  Speaker 3: early stage that Ben Robert Smith was going to take
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  Speaker 3: legal action if they went ahead with these stories, and
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  Speaker 3: you need to know what your witnesses are going to say.
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  Speaker 3: Mackenzie was obviously very across the witnesses amongst the soldiers
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  Speaker 3: who were going to appear for nine to defend his stories,
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  Speaker 3: and it's also clear that he had lots and lots
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  Speaker 3: of contact with Person seventeen, ben Robert Smith's former mistress,
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  Speaker 3: over quite a long period.
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  Speaker 1: Now, she had made quite serious allegations that Ben Robert
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  Speaker 1: Smith had pushed her down a flight of stairs, and
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  Speaker 1: Nine published those allegations.
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  Speaker 3: And punched her in the face. I mean, there were
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  Speaker 3: very serious allegations.
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  Speaker 1: So then how did the allegations come to start being
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  Speaker 1: about Nick mackenzie, who certainly did not do anything like
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  Speaker 1: punch her in the face or push you down the stairs.
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  Speaker 3: Well, at some point Person seventeen, after she'd given evidence,
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  Speaker 3: decided that the whole thing had been unfair to her.
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  Speaker 3: She claimed that McKenzie had not lived up to the
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  Speaker 3: deal that Nine had made with her to keep her
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  Speaker 3: out of the proceedings to not to identify her as
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  Speaker 3: a source.
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  Speaker 1: Nine won this case, and it was heralded by the
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  Speaker 1: organization as a massive win for free speech and the
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  Speaker 1: press's ability to tell the truth about powerful people. It
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  Speaker 1: was a devastating loss for Ben Robert Smith. But nine
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  Speaker 1: didn't want this part of the story to come out,
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  Speaker 1: did they.
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  Speaker 3: It certainly didn't know, And to be fair to Nine,
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  Speaker 3: it did prove on the balance of probabilities that Ben
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  Speaker 3: Robert Smith had murdered four Afghans. So it was a
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  Speaker 3: very serious finding against them, obviously, and it did destroy
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  Speaker 3: Ben Roberts Smith's reputation as Australia's preeminent war hero. But
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  Speaker 3: clearly things went wrong at a certain point with Person seventeen,
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  Speaker 3: and we're not quite sure what that was, but at
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  Speaker 3: some point she turned against them and decided that they
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  Speaker 3: had done the wrong thing by her, and she actually
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  Speaker 3: drew up a statement of claim, a legal document, a
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  Speaker 3: threat to sue, and presented it to them, and shortly
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  Speaker 3: after that they paid her a settlement, an incredibly substantial settlement.
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  Speaker 3: I mean, I'm not aware of in circumstances like this
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  Speaker 3: where a witness who's gone rogue, if you like, has
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  Speaker 3: been paid seven hundred thousand dollars to then stay away
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  Speaker 3: from the case.
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  Speaker 1: Legal tactics are a whole world of their own, and
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  Speaker 1: often decisions are made in cases as they progress that
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  Speaker 1: don't necessarily reflect whether or not. For example, Nine felt
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  Speaker 1: that it had done anything wrong here. It might have
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  Speaker 1: just felt that the right thing to do for itself
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  Speaker 1: was to cut this off absolutely.
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  Speaker 3: This woman, Person seventeen was making serious allegations about Nine's
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  Speaker 3: conduct and about McKenzie's conduct, but we don't know to
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  Speaker 3: what extent those allegations are true. And in the midst
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  Speaker 3: of the you know, the rough and tumble of this
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  Speaker 3: thirty million dollar legal case, they decided to make it
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  Speaker 3: go away. And media organizations do pay money just to
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  Speaker 3: make things go away. But you know, I've still got
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  Speaker 3: to say, seven hundred thousand dollars is pretty much unprecedented.
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  Speaker 1: Ben Robert Smith took this legal action saying that he
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  Speaker 1: just couldn't live with the fact that his name was
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  Speaker 1: being black and unfairly like this. It's been disastrous for
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  Speaker 1: him and we've seen other defamation actions go the same way.
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  Speaker 1: Bruce Lahman versus Network ten and Lisa Wilkinson was a
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  Speaker 1: similar disaster. Yep, with this experience, would your advice risy
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  Speaker 1: and you are a generalist, so you might have a
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  Speaker 1: vested interest here. Should people sue for defamation.
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  Speaker 3: Only if you're crazy? You know? The other obvious case
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  Speaker 3: is the case that Lynda Reynolds took against Britney Higgins.
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  Speaker 3: Even when you win, where does it leave you? I mean,
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  Speaker 3: Linda Reynolds now has her reputation back, but she may
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  Speaker 3: lose her house because she can't you know, it's very
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  Speaker 3: unlikely that she's going to recover the costs, the immense
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  Speaker 3: cost of her case against Britney Higgins. So are the
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  Speaker 3: short answer is no, don't do it.
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  Speaker 1: If it had gone the other way too, if Ben
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  Speaker 1: Robert Smith had decided, look, I've got a job with
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  Speaker 1: Channel seven, I've got a new career, I'm rem making
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  Speaker 1: myself outside the military. I'm just going to ignore this.
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  Speaker 1: I feel as though there are quite a lot of
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  Speaker 1: Australians out there who might think, well, violent things happen
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  Speaker 1: in war. He was out there fighting for Australia. He
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  Speaker 1: might have pushed a few people down, some cliffs or
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  Speaker 1: shots and people, but that's what happens in war.
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  Speaker 3: I think. I'm not going to say a majority, but
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  Speaker 3: certainly there are many Australians who would think, look, we
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  Speaker 3: send these young men off to war and we asked
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  Speaker 3: them to do dirty work and they do it. In
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  Speaker 3: at least one of these cases, Ben Robert Smith was
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  Speaker 3: actually hunting for Heck Matula, an Afghan Taliban who had
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  Speaker 3: just murdered three Australian soldiers in cold blood. I think
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  Speaker 3: a lot of people would get a lot of slack
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  Speaker 3: for things that happen in war zones. And look, we
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  Speaker 3: understand that in this case the men that Ben Robert
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  Speaker 3: Smith has been found to have killed weren't armed. But
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  Speaker 3: you know, soldiers on the field often have a much
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  Speaker 3: better sense than we do sitting back in our armchairs
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  Speaker 3: of who the enemy actually is. So I think a
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  Speaker 3: lot of Australians if Ben Robert Smith had just left it,
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  Speaker 3: a lot of people would still be in his camp,
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  Speaker 3: do you think.
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  Speaker 1: And this is a big call, it's over now.
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  Speaker 3: No, the Ben Roberts Smith case is never over.
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  Speaker 1: Stephen Rice, thank you very much. Stephen Rice is the
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  Speaker 1: Australian's new South Wales bureau chief. You can check out
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  Speaker 1: all our journalism on this story and the biggest cases
• 10:32
  Speaker 1: in our legal system all the time at the Australian
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  Speaker 1: dot com dot au