A tale of two stories: How rival outlets covered the leaked Ben Roberts-Smith tapes

This week, Sky News Australia’s Sharri Markson dropped an “exclusive”, airing recordings of Nine investigative journalist Nick McKenzie in conversation with a witness to the Ben Roberts-Smith trial, described as “explosive confessions” of “unethical behaviour” on McKenzie’s part. 

In the recording, McKenzie is heard speaking to a witness, trying to convince them to give evidence for Nine as part of the proceedings. 

McKenzie is heard telling the witness that Roberts-Smith’s ex-wife, Emma Roberts, and her friend, Danielle Scott, were “actively briefing” him about the legal strategy Roberts-Smith’s team were taking concerning the witness. He goes on to say “I shouldn’t tell you”, then describes that disclosure as him having “breached my fucking ethics”. 

“If Dean knew that and Peter knew that, I’d get my arse fucking handed to me on a platter,” McKenzie says, referring to MinterEllison lawyer Dean Levitan and partner Peter Bartlett, who led Nine’s successful defence team in the trial. 

MinterEllison, including Levitan and Bartlett, are also retained by Crikey as legal counsel. 

Crikey makes no suggestion that MinterEllison or its lawyers were aware of any privileged information being accessed or that McKenzie or journalists from Nine improperly dealt with privileged information. 

McKenzie is also heard discussing a “sensitive ongoing police investigation” involving Roberts-Smith with the witness.

The marathon trial, the most significant in Australian defamation history, was dubbed the “trial of the century” and resulted in findings to a civil standard in the Federal Court that Roberts-Smith, a Victoria Cross recipient and the most decorated living Australian soldier, was a war criminal, a murderer and a bully. Roberts-Smith has appealed those findings, with a judgement reserved. 

How did Sky News Australia run the story? 

Sky News Australia ran the digital headline: “Explosive confessions from star Nine reporter caught on secret tapes expose tricks against Ben Roberts-Smith war crimes trial”.

Markson also describes McKenzie’s remarks as “devastating comments from Nine’s most celebrated journalist”. She later speculates that the “shocking audio recording … raises questions” about the findings of a separate court case Roberts-Smith lost against his ex-wife in 2022 over claims she accessed confidential emails. 

Markson then wrote the recording “will rock the legal fraternity, media circles and could even have ramifications for the so-called ‘defamation case of the century’”. 

She also received anonymous comment from a “senior, experienced solicitor” who suggested it called into question “not only the entire case, but the evidence under oath of several important witnesses”, and that McKenzie “could have jeopardised a sensitive police investigation, including the safety of undercover officers, by speaking about it to a third party”. 

In April 2021, the same year as the recording was made, the Nine papers published an article (authored by McKenzie alongside two colleagues) about the existence of an AFP investigation into Roberts-Smith and the use of burner phones. 

Markson concluded the article with questions over whether McKenzie “crossed the line” in his reporting as well as discussing the use of secret recordings in journalism produced by McKenzie. 

Markson herself is no stranger to the use of covert recordings in her own work, with “secret” recordings taken of Brittany Higgins’ lawyers speaking to her now-husband David Sharaz aired on Markson’s program in 2023. The recordings were later submitted to the Federal Court in Higgins’ former colleague Bruce Lehrmann’s defamation battle with Channel 10 and Lisa Wilkinson.

How did The Nightly run the story? 

The Nightly was significantly more reserved in how its story was conveyed, but was the only outlet at the time of writing to even touch the Markson exclusive, barring a rewrite in The Daily Telegraph, a Sky stablemate.

It included none of Markson’s added commentary, and avoided superlatives beyond the description of the story as containing “bombshell revelations”. 

The Nightly being the only other media company to follow the story is significant owing to its ownership. It is owned by Seven West Media, with whom Roberts-Smith has a significant relationship. 

Roberts-Smith joined Seven in 2012 and, after being discharged from the Australian Army in 2013, became deputy general manager of Seven Queensland before taking on the role of general manager in 2015. He stood down in 2021 and then resigned in 2023 following the outcome of the initial trial against Nine. 

Billionaire media mogul Kerry Stokes, who serves as chair of the Seven Group, bankrolled Roberts-Smith’s legal case against Nine, which cost an estimated $35 million. 

Stokes also served on the Australian War Memorial Council from 2007 to 2022, including as chair from 2015, and was criticised throughout his tenure for his relationship with Roberts-Smith as well as his activities on the board, spending hundreds of millions of dollars on the maintenance and continued upgrading of the memorial itself. 

What do Nine have to say about it? 

A spokesperson for Nine told Crikey in a statement that “having reviewed the audio clip, with support from external counsel, we can confirm there is no breach of legal privilege or ethical concerns.” 

“Nine has full confidence in the reporting and actions of Nick McKenzie, an award-winning reporter who enjoys the respect and admiration of his editors and colleagues in the newsroom.”

McKenzie, a 16-time Walkley winner, last week won the Melbourne Press Club’s 2025 Graham Perkins Journalist of the Year award, as well as the Gold Quill — the first person to receive the former award three times in the history of the Quill Awards.

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