Investigative journalist Nick McKenzie reached agreement in a bid for Ben Roberts-Smith, re-called for his appeal for defamation cases, using "deceptive methods and segments" to obtain "sometimes in the public interest."

Roberts-Smith's attorney Arthur Moses Sc conducted a cross-check on Thursday afternoon. It was part of a two-day hearing in which veterans believed the appeal should be reopened in defamation proceedings arising from what McKenzie called “misconduct.”

Roberts-Smith's series of stories about McKenzie and Fairfax's newspapers between June 2018 and August 2018. Roberts-Smith is allegedly guilty of murder and war crimes. Victoria Cross Recipient Roberts-Smith lost the case.

In 2023, Justice Anthony Besanko ruled that Roberts-Smith had murdered unarmed civilians while serving in Afghanistan.

On Thursday, Moses repeatedly asked McKenzie to justify his approach as an investigative journalist, especially in the 2010 incident where he was charged with illegal access to a Labor database for stories published by the era.

Mackenzie accepted that his methods were illegal, but asserted that he had not crossed the line and had kept them in the published stories.

When asked if he would illegally access someone else’s information, Mackenzie replied that it was “a very broad position.”

"In some cases, it's our job to find hidden information."

McKenzie agreed that once the lawsuit began in the Roberts-Smith case, he continued to look for evidence that would help contribute during the case.

When asked whether it was fair to say that he had “a high motivation to dig anything in litigation” because he was “desperate to make a breakthrough” because he wouldn’t say “in these terms”.

"I really want to prove that Ben Roberts-Smith is a war criminal and we have to find evidence to do that," he said.

McKenzie was also questioned during the proceedings for communication with Roberts-Smith's ex-wife Emma Roberts and her friend Danielle Scott.

Two of the conversations were held with Scott in August 2020, and the court heard that it was not included in the original trial.

McKenzie was asked if Moses knew that the recordings were not found during the trial, and he provided them to the lawyers, who did not know whether they were a timeline for privileged communication.

The court heard Mackenzie forgot that the recordings remained until the latest bid reopened for appeal and he couldn't remember whether he kept copies of them.

At the center of Roberts-Smith's reopening of his appeal was a "secret" recording without Mackenzie's consent or knowledge, ruled as acceptable evidence Thursday.

According to an affidavit filed by one of Roberts-Smith's attorneys, McKenzie allegedly told a witness in the recording that Roberts-Smith's ex-wife and her friend "actively briefed us on your legal strategy in your legal strategy...we have expected both of these things.

According to the affidavit, Mackenzie also said in the recording: “I shouldn’t tell you.

The court heard the recording was sent by an unknown person on March 15 this year to one of Roberts-Smith's lawyers Paul Svilans, the subject line: "Secret Mackenzie Recording."

On Thursday, ahead of a panel of judges, nine lawyers Robert Yezerski Sc believed the recording should be rejected by the court because it was recorded without Mackenzie’s knowledge or consent, and who published the crime.

Yezeski said the recording was “more likely” to be produced in Queensland, and recording a conversation privately was not a crime, but publishing the recording was a crime.

He also believes that the 85-second recording is a "snippet or excerpt" from a conversation that may last 15 to 45 minutes, and that "who sends the recording" does so to "assist" Roberts-Smith.

"What we don't know is whether any of the middlemen in the middle has been cut... or the slices and edits in the recording," Yezerski told the court.

“The intention of any person who makes recordings and editing is to bring the most benefits to the appellant and to the respondents in general the greatest harm.”

“There are real reasons to be cautious.”

Arthur Moses SC, acting on behalf of Roberts-Smith, believes that recordings should be acceptable because there is no evidence of who sent the recording, or how it was recorded, adding that “we don’t know.”

"All we have is evidence before us," he told the court.

Moses also considered evidence to be of proof value because it "contains the acceptance of the serious nature of Mackenzie".

The hearings of Justice Peram, Justice Kazman and Justice Kennett continue.