1 00:00:05,120 --> 00:00:08,240 Speaker 1: From The Australian. Here's what's on the front. I'm Claire Harvey. 2 00:00:08,320 --> 00:00:15,560 Speaker 1: It's Tuesday, February seventeen, twenty twenty six. Police investigating the 3 00:00:15,600 --> 00:00:18,880 Speaker 1: disappearance of missing four year old Gus Lamont have laid 4 00:00:19,000 --> 00:00:23,120 Speaker 1: firearms charges against seventy five year old grandmother Josie Murray 5 00:00:23,400 --> 00:00:26,960 Speaker 1: at Oak Park Station in South Australia, but they say 6 00:00:26,960 --> 00:00:30,120 Speaker 1: those charges aren't related to the search for Gus. He 7 00:00:30,240 --> 00:00:33,839 Speaker 1: vanished from the property in September. Murray has been granted 8 00:00:33,880 --> 00:00:39,839 Speaker 1: bail and will appear in court on May six. A 9 00:00:39,920 --> 00:00:43,440 Speaker 1: fresh twist in the epic Ben Roberts Smith defamation case 10 00:00:43,560 --> 00:00:47,280 Speaker 1: with new revelations about the behind the scenes legal tactics 11 00:00:47,520 --> 00:00:51,720 Speaker 1: of publisher nine Entertainment in defense of a star journalist. 12 00:00:52,120 --> 00:00:55,840 Speaker 1: Today the seven hundred thousand dollars payment Nine tried to 13 00:00:55,960 --> 00:00:59,320 Speaker 1: keep quiet Stephen Rice is here in just a moment. 14 00:01:08,959 --> 00:01:13,760 Speaker 1: Australia's most decorated living soldier has lost a defamation case. 15 00:01:13,840 --> 00:01:19,120 Speaker 1: A judge found newspaper substantially proved the decorated soldier committed 16 00:01:19,200 --> 00:01:21,360 Speaker 1: serious war crimes in Afghanistan, in. 17 00:01:21,440 --> 00:01:24,600 Speaker 2: Lightened by conclusions each proceeding. 18 00:01:24,160 --> 00:01:26,520 Speaker 3: Must be dismissed devastated with the result. 19 00:01:27,160 --> 00:01:29,800 Speaker 2: It's a terrible outcome and it's seeing correct outcome. Today 20 00:01:29,959 --> 00:01:31,880 Speaker 2: is a day of justice. It's a day of justice 21 00:01:31,920 --> 00:01:35,120 Speaker 2: for those brave men of the Sas who stood up 22 00:01:35,120 --> 00:01:38,800 Speaker 2: and told the truth about who Ben Robert Smith is. 23 00:01:38,840 --> 00:01:41,319 Speaker 2: A war criminal, a bully and a liar. 24 00:01:45,319 --> 00:01:48,080 Speaker 1: Stephen Rice is The Australian's New South Wales editor and 25 00:01:48,680 --> 00:01:52,720 Speaker 1: the Ben Roberts Smith versus Nine Entertainment defamation case has 26 00:01:52,760 --> 00:01:56,080 Speaker 1: been dragging on for years. I feel like we're finally 27 00:01:56,080 --> 00:01:58,760 Speaker 1: getting close to the end, but not without one big 28 00:01:58,920 --> 00:02:01,200 Speaker 1: last twist. What is happening, Well. 29 00:02:01,000 --> 00:02:04,120 Speaker 3: It's always for the last seven years, it's always been 30 00:02:04,360 --> 00:02:08,639 Speaker 3: one last big twist. This one is actually very significant 31 00:02:08,800 --> 00:02:14,040 Speaker 3: and pretty explosive development. It turns out that Nine, which 32 00:02:14,160 --> 00:02:18,320 Speaker 3: had been sued by Ben Robert Smith for defamation, paid 33 00:02:18,960 --> 00:02:24,240 Speaker 3: one of its star witnesses seven hundred thousand dollars to 34 00:02:24,280 --> 00:02:27,960 Speaker 3: not say anything more about the case after she'd given 35 00:02:27,960 --> 00:02:32,639 Speaker 3: evidence in it. She had made some pretty serious allegations 36 00:02:32,880 --> 00:02:38,720 Speaker 3: against nine's star reporter Nick McKenzie. She had claimed that 37 00:02:38,840 --> 00:02:43,280 Speaker 3: he had told her in a phone conversation that essentially 38 00:02:43,440 --> 00:02:47,959 Speaker 3: that he had access to Ben Robert Smith's legal defense 39 00:02:48,600 --> 00:02:52,720 Speaker 3: that he knew what Ben Robert Smith's lawyers were going 40 00:02:52,760 --> 00:02:56,040 Speaker 3: to bring up in the case. And that's a pretty 41 00:02:56,240 --> 00:03:00,000 Speaker 3: serious allegation to make. You're not supposed to have access 42 00:03:00,200 --> 00:03:04,799 Speaker 3: to the opponent's legal strategy. And she'd also claimed that 43 00:03:04,880 --> 00:03:08,040 Speaker 3: he had broken a deal with her not to identify 44 00:03:08,160 --> 00:03:12,280 Speaker 3: her as the source of his information. In the case, 45 00:03:12,800 --> 00:03:16,919 Speaker 3: she was alleged by nine to have been assaulted by 46 00:03:16,960 --> 00:03:20,560 Speaker 3: Ben Roberts Smith, and the judge later decided that there 47 00:03:20,600 --> 00:03:23,239 Speaker 3: actually wasn't enough evidence to prove. 48 00:03:23,040 --> 00:03:26,720 Speaker 1: That, so putting this in the bigger context, Nine reported 49 00:03:26,760 --> 00:03:30,720 Speaker 1: allegations against Ben Robert Smith that he had allegedly committed 50 00:03:30,760 --> 00:03:34,920 Speaker 1: war crimes while fighting for Australia as a Special Forces 51 00:03:34,920 --> 00:03:38,680 Speaker 1: soldier in Afghanistan. Some of those allegations include kicking a 52 00:03:38,720 --> 00:03:42,360 Speaker 1: man down a small cliff who was restrained, and otherwise 53 00:03:42,400 --> 00:03:46,480 Speaker 1: treating people who were in custody Afghan people with cruelty 54 00:03:46,560 --> 00:03:49,960 Speaker 1: or factor killing them. Ben Robert Smith denied the allegations 55 00:03:50,000 --> 00:03:53,320 Speaker 1: and announced his intention to sue Nine. And this is 56 00:03:53,320 --> 00:03:56,440 Speaker 1: where it gets interesting when this happens to a media organization, 57 00:03:56,960 --> 00:04:00,000 Speaker 1: the sources for the original story in this case multiple story, 58 00:04:00,080 --> 00:04:02,280 Speaker 1: or is it covered all sorts of allegations against Ben 59 00:04:02,440 --> 00:04:05,560 Speaker 1: Robert Smith. The media organization asks them to come to 60 00:04:05,600 --> 00:04:08,640 Speaker 1: court to be witnesses to prove that the story is true. 61 00:04:09,720 --> 00:04:14,640 Speaker 1: So it's not surprising that there would be ongoing conversations 62 00:04:14,680 --> 00:04:17,520 Speaker 1: between a witness and the journalist. In this case, Nick 63 00:04:17,560 --> 00:04:19,919 Speaker 1: Mackenzie seemed to be appointed the person who was in 64 00:04:20,040 --> 00:04:24,320 Speaker 1: charge of dealing with the witnesses, right. That seems quite unconventional, Rissie. 65 00:04:24,320 --> 00:04:26,240 Speaker 1: You would think normally it would be lawyers who would 66 00:04:26,240 --> 00:04:27,080 Speaker 1: be doing that kind of thing. 67 00:04:27,360 --> 00:04:30,360 Speaker 3: Well, I mean, Nick is a very good journalist, and 68 00:04:30,720 --> 00:04:35,720 Speaker 3: he is the kind of journalist that will maintain continuous 69 00:04:35,800 --> 00:04:39,320 Speaker 3: contact with everybody that he's talking about. And frankly, I 70 00:04:39,360 --> 00:04:42,520 Speaker 3: don't blame him. This was always going to be an 71 00:04:42,560 --> 00:04:46,000 Speaker 3: explosive case. I mean it was pretty clear from an 72 00:04:46,080 --> 00:04:48,560 Speaker 3: early stage that Ben Robert Smith was going to take 73 00:04:48,640 --> 00:04:51,719 Speaker 3: legal action if they went ahead with these stories, and 74 00:04:51,880 --> 00:04:54,560 Speaker 3: you need to know what your witnesses are going to say. 75 00:04:55,160 --> 00:05:00,120 Speaker 3: Mackenzie was obviously very across the witnesses amongst the soldiers 76 00:05:00,160 --> 00:05:04,160 Speaker 3: who were going to appear for nine to defend his stories, 77 00:05:04,520 --> 00:05:07,440 Speaker 3: and it's also clear that he had lots and lots 78 00:05:07,480 --> 00:05:12,600 Speaker 3: of contact with Person seventeen, ben Robert Smith's former mistress, 79 00:05:13,040 --> 00:05:14,679 Speaker 3: over quite a long period. 80 00:05:15,080 --> 00:05:18,120 Speaker 1: Now, she had made quite serious allegations that Ben Robert 81 00:05:18,120 --> 00:05:20,520 Speaker 1: Smith had pushed her down a flight of stairs, and 82 00:05:21,360 --> 00:05:23,320 Speaker 1: Nine published those allegations. 83 00:05:22,800 --> 00:05:24,640 Speaker 3: And punched her in the face. I mean, there were 84 00:05:24,760 --> 00:05:26,080 Speaker 3: very serious allegations. 85 00:05:26,520 --> 00:05:29,120 Speaker 1: So then how did the allegations come to start being 86 00:05:29,160 --> 00:05:31,960 Speaker 1: about Nick mackenzie, who certainly did not do anything like 87 00:05:32,000 --> 00:05:33,800 Speaker 1: punch her in the face or push you down the stairs. 88 00:05:33,880 --> 00:05:38,600 Speaker 3: Well, at some point Person seventeen, after she'd given evidence, 89 00:05:38,720 --> 00:05:42,200 Speaker 3: decided that the whole thing had been unfair to her. 90 00:05:42,760 --> 00:05:45,760 Speaker 3: She claimed that McKenzie had not lived up to the 91 00:05:45,839 --> 00:05:48,960 Speaker 3: deal that Nine had made with her to keep her 92 00:05:49,360 --> 00:05:52,720 Speaker 3: out of the proceedings to not to identify her as 93 00:05:52,720 --> 00:05:53,279 Speaker 3: a source. 94 00:05:56,720 --> 00:05:59,600 Speaker 1: Nine won this case, and it was heralded by the 95 00:05:59,720 --> 00:06:02,159 Speaker 1: organization as a massive win for free speech and the 96 00:06:02,160 --> 00:06:05,039 Speaker 1: press's ability to tell the truth about powerful people. It 97 00:06:05,080 --> 00:06:07,720 Speaker 1: was a devastating loss for Ben Robert Smith. But nine 98 00:06:07,720 --> 00:06:09,400 Speaker 1: didn't want this part of the story to come out, 99 00:06:09,400 --> 00:06:09,720 Speaker 1: did they. 100 00:06:10,240 --> 00:06:13,800 Speaker 3: It certainly didn't know, And to be fair to Nine, 101 00:06:14,000 --> 00:06:17,760 Speaker 3: it did prove on the balance of probabilities that Ben 102 00:06:17,880 --> 00:06:21,360 Speaker 3: Robert Smith had murdered four Afghans. So it was a 103 00:06:21,480 --> 00:06:25,320 Speaker 3: very serious finding against them, obviously, and it did destroy 104 00:06:25,640 --> 00:06:30,560 Speaker 3: Ben Roberts Smith's reputation as Australia's preeminent war hero. But 105 00:06:30,800 --> 00:06:35,880 Speaker 3: clearly things went wrong at a certain point with Person seventeen, 106 00:06:36,000 --> 00:06:38,920 Speaker 3: and we're not quite sure what that was, but at 107 00:06:38,960 --> 00:06:42,040 Speaker 3: some point she turned against them and decided that they 108 00:06:42,040 --> 00:06:45,120 Speaker 3: had done the wrong thing by her, and she actually 109 00:06:45,200 --> 00:06:48,520 Speaker 3: drew up a statement of claim, a legal document, a 110 00:06:48,560 --> 00:06:52,000 Speaker 3: threat to sue, and presented it to them, and shortly 111 00:06:52,040 --> 00:06:58,520 Speaker 3: after that they paid her a settlement, an incredibly substantial settlement. 112 00:06:58,520 --> 00:07:01,800 Speaker 3: I mean, I'm not aware of in circumstances like this 113 00:07:01,960 --> 00:07:05,560 Speaker 3: where a witness who's gone rogue, if you like, has 114 00:07:05,600 --> 00:07:09,239 Speaker 3: been paid seven hundred thousand dollars to then stay away 115 00:07:09,279 --> 00:07:09,920 Speaker 3: from the case. 116 00:07:11,520 --> 00:07:13,960 Speaker 1: Legal tactics are a whole world of their own, and 117 00:07:14,000 --> 00:07:17,240 Speaker 1: often decisions are made in cases as they progress that 118 00:07:17,720 --> 00:07:21,600 Speaker 1: don't necessarily reflect whether or not. For example, Nine felt 119 00:07:21,640 --> 00:07:23,400 Speaker 1: that it had done anything wrong here. It might have 120 00:07:23,520 --> 00:07:25,880 Speaker 1: just felt that the right thing to do for itself 121 00:07:26,400 --> 00:07:28,960 Speaker 1: was to cut this off absolutely. 122 00:07:29,120 --> 00:07:34,680 Speaker 3: This woman, Person seventeen was making serious allegations about Nine's 123 00:07:34,720 --> 00:07:38,000 Speaker 3: conduct and about McKenzie's conduct, but we don't know to 124 00:07:38,080 --> 00:07:41,720 Speaker 3: what extent those allegations are true. And in the midst 125 00:07:41,720 --> 00:07:44,800 Speaker 3: of the you know, the rough and tumble of this 126 00:07:45,160 --> 00:07:49,760 Speaker 3: thirty million dollar legal case, they decided to make it 127 00:07:49,840 --> 00:07:53,720 Speaker 3: go away. And media organizations do pay money just to 128 00:07:53,760 --> 00:07:57,080 Speaker 3: make things go away. But you know, I've still got 129 00:07:57,080 --> 00:08:01,320 Speaker 3: to say, seven hundred thousand dollars is pretty much unprecedented. 130 00:08:02,160 --> 00:08:04,960 Speaker 1: Ben Robert Smith took this legal action saying that he 131 00:08:05,040 --> 00:08:07,120 Speaker 1: just couldn't live with the fact that his name was 132 00:08:07,120 --> 00:08:10,800 Speaker 1: being black and unfairly like this. It's been disastrous for 133 00:08:11,000 --> 00:08:14,080 Speaker 1: him and we've seen other defamation actions go the same way. 134 00:08:14,320 --> 00:08:17,080 Speaker 1: Bruce Lahman versus Network ten and Lisa Wilkinson was a 135 00:08:17,120 --> 00:08:21,680 Speaker 1: similar disaster. Yep, with this experience, would your advice risy 136 00:08:21,880 --> 00:08:23,480 Speaker 1: and you are a generalist, so you might have a 137 00:08:23,560 --> 00:08:26,400 Speaker 1: vested interest here. Should people sue for defamation. 138 00:08:27,160 --> 00:08:30,360 Speaker 3: Only if you're crazy? You know? The other obvious case 139 00:08:30,680 --> 00:08:33,760 Speaker 3: is the case that Lynda Reynolds took against Britney Higgins. 140 00:08:33,800 --> 00:08:37,080 Speaker 3: Even when you win, where does it leave you? I mean, 141 00:08:37,480 --> 00:08:40,400 Speaker 3: Linda Reynolds now has her reputation back, but she may 142 00:08:40,440 --> 00:08:43,080 Speaker 3: lose her house because she can't you know, it's very 143 00:08:43,120 --> 00:08:46,480 Speaker 3: unlikely that she's going to recover the costs, the immense 144 00:08:46,520 --> 00:08:50,480 Speaker 3: cost of her case against Britney Higgins. So are the 145 00:08:50,520 --> 00:08:52,559 Speaker 3: short answer is no, don't do it. 146 00:08:53,400 --> 00:08:55,240 Speaker 1: If it had gone the other way too, if Ben 147 00:08:55,320 --> 00:08:57,800 Speaker 1: Robert Smith had decided, look, I've got a job with 148 00:08:57,920 --> 00:09:00,360 Speaker 1: Channel seven, I've got a new career, I'm rem making 149 00:09:00,360 --> 00:09:03,080 Speaker 1: myself outside the military. I'm just going to ignore this. 150 00:09:04,040 --> 00:09:06,000 Speaker 1: I feel as though there are quite a lot of 151 00:09:06,000 --> 00:09:09,640 Speaker 1: Australians out there who might think, well, violent things happen 152 00:09:09,720 --> 00:09:12,400 Speaker 1: in war. He was out there fighting for Australia. He 153 00:09:12,480 --> 00:09:14,360 Speaker 1: might have pushed a few people down, some cliffs or 154 00:09:14,360 --> 00:09:16,880 Speaker 1: shots and people, but that's what happens in war. 155 00:09:17,320 --> 00:09:19,440 Speaker 3: I think. I'm not going to say a majority, but 156 00:09:19,559 --> 00:09:23,480 Speaker 3: certainly there are many Australians who would think, look, we 157 00:09:23,600 --> 00:09:26,280 Speaker 3: send these young men off to war and we asked 158 00:09:26,280 --> 00:09:30,080 Speaker 3: them to do dirty work and they do it. In 159 00:09:30,120 --> 00:09:32,959 Speaker 3: at least one of these cases, Ben Robert Smith was 160 00:09:33,000 --> 00:09:38,000 Speaker 3: actually hunting for Heck Matula, an Afghan Taliban who had 161 00:09:38,200 --> 00:09:41,960 Speaker 3: just murdered three Australian soldiers in cold blood. I think 162 00:09:41,960 --> 00:09:43,880 Speaker 3: a lot of people would get a lot of slack 163 00:09:44,040 --> 00:09:47,800 Speaker 3: for things that happen in war zones. And look, we 164 00:09:47,920 --> 00:09:51,640 Speaker 3: understand that in this case the men that Ben Robert 165 00:09:51,640 --> 00:09:54,640 Speaker 3: Smith has been found to have killed weren't armed. But 166 00:09:55,120 --> 00:09:59,400 Speaker 3: you know, soldiers on the field often have a much 167 00:09:59,440 --> 00:10:02,040 Speaker 3: better sense than we do sitting back in our armchairs 168 00:10:02,080 --> 00:10:05,200 Speaker 3: of who the enemy actually is. So I think a 169 00:10:05,240 --> 00:10:08,319 Speaker 3: lot of Australians if Ben Robert Smith had just left it, 170 00:10:08,880 --> 00:10:10,839 Speaker 3: a lot of people would still be in his camp, 171 00:10:11,800 --> 00:10:12,520 Speaker 3: do you think. 172 00:10:12,400 --> 00:10:14,319 Speaker 1: And this is a big call, it's over now. 173 00:10:15,160 --> 00:10:18,560 Speaker 3: No, the Ben Roberts Smith case is never over. 174 00:10:19,800 --> 00:10:26,640 Speaker 1: Stephen Rice, thank you very much. Stephen Rice is the 175 00:10:26,640 --> 00:10:29,760 Speaker 1: Australian's new South Wales bureau chief. You can check out 176 00:10:29,800 --> 00:10:32,680 Speaker 1: all our journalism on this story and the biggest cases 177 00:10:32,720 --> 00:10:35,640 Speaker 1: in our legal system all the time at the Australian 178 00:10:35,800 --> 00:10:37,000 Speaker 1: dot com dot au