THE CROATIAN SIX – AN OLD TERRORISM PANIC

One summer night in 1979, Roger Rogerson and a posse of tough Sydney cops raided a Sydney house where sticks of gelignite were discovered. The Croatian family’s young men were taken off and soon joined by others, arrested in simultaneous raids across the city. For them, and the entire community of migrants from Croatia, it was the start of a nightmare, ending in 15-year jail terms for terrorist conspiracy. But even during their 10-month trial, holes appeared in the police case. Later, the chief crown witness confessed on TV he made up his crucial testimony. Decades later, a chance reference drew journalist Hamish McDonald to explore this case, uncovering evidence that authorities took pains to conceal from the court: that the crown witness was an agent of the Yugoslav secret service and had been under ASIO surveillance. Hamish McDonald is one of Australia’s best-known journalists. In an address to The Sydney Institute on Wednesday May 15, 2019, he explained what happened from his new book Reasonable Doubt: Spies, Police and the Croatian Six.

THE CROATIAN SIX – AN OLD TERRORISM PANIC

HAMISH McDONALD

One Thursday lunchtime in February 1979, a Yugoslav migrant walked into the police station at Lithgow.

He told a detective he and his housemate had stolen large amounts of gelignite and detonators from the Wallerawang power station project, and made them up into bombs. They were planning to drive down to Sydney that night, link up with other Croatian conspirators, and plant bombs across the city. As well as the usual targets of Croatian protest – a Serbian club and Yugoslav government travel agencies – the bombs would be set on the water pipeline from the Warragamba Dam, and the old Elizabethan Theatre in Newtown, where a song and dance troupe from Yugoslavia would be performing that Saturday night.

You might wonder now how even the most fanatical nationalist might think depriving Sydney of its water supply would win public support for his cause, but in the atmosphere of the 1970s, it wasn’t questioned.

From the famous contest over 1971-73 between Labor’s Lionel Murphy and his Liberal counterpart Ivor Greenwood about whether ASIO was shielding Croatian fascists and terrorists while persecuting the Left, calumny had stuck to the Croatian community.

The police told the man, Vico Virkez, to go home and act normal. Down in Sydney, the state police went into action. A well-armed squad headed over the Blue Mountains to Lithgow. At about 7.30 they stormed into the house, arrested Virkez and his housemate Maks Bebic, seized boxes of gelignite, and took them in for questioning. Bebic, according to police, confessed his part, gave the names of Sydney conspirators, and signed a typed up record.

In Sydney, the police formed four arresting parties from the Armed Hold-Up and Breaking squads at the Central Investigation Bureau, with Special Branch detectives going along. They went to four addresses in the Western suburbs, arresting six other Croatian migrants. In three of the homes, the police reported finding two half-sticks of gelignite in each. In the fourth, they said they found detonators in the drawer of a man’s desk. Towards midnight, the men were taken back to the CIB headquarters at the back of the Central magistrates’ court in Liverpool Street, and interviewed. Five of them defiantly confessed to their part in the bombing plot, the police said. But none would sign a record of this confession. A police inspector was called in, and signed them off as genuine records.

The Croatians were committed for trial in mid-1979, all six plus the whistleblower Virkez, but less another of the men arrested in Sydney, a student. After a half-dozen police had given sworn evidence they found detonators in his desk drawer, his solicitor showed photographs revealing he actually worked at a plain table that had no drawers. The charges were dismissed.

The trial opened in May 1980 in the Supreme Court at Darlinghurst for the five remaining Sydney accused plus Bebic from Lithgow. The informer Virkez got a separate trial, pleaded guilty to one charge, received a minimal sentence, then gave evidence for the Crown against the other six. He was released on parole and allowed to fly back to Yugoslavia. After eight months, the longest criminal trial in Australian and Commonwealth history, the jury found all six guilty, and Justice Victor Maxwell gave them all 15 year jail sentences. An appeal failed in the NSW Court of Criminal Appeal in 1982, as did an application for leave to appeal in the High Court in 1986.

By the 1990s, the case was coming under scrutiny. In 1991, the ABC Four Corners journalist Chris Masters tracked down the informer Vico Virkez in the Serb-populated region of Bosnia. He admitted being a Serb of Orthodox religion who had masqueraded as Croatian and Catholic. He had made up the bomb plot, given false evidence under police coaching, and thought the Six were not guilty.

 By then, a leader of one of the Sydney arresting groups, Detective-Sgt Roger Rogerson, had been cashiered from the NSW Police and was being charged himself with perjury and perverting the course of justice. In an interview with the Sydney barrister Chris Murphy, Rogerson said “loading” – ie planting evidence, and “verbals” ie fabricated and unsigned confessions – had been common practice.  The CIB had been dissolved in 1986 as a “hotbed of corruption” and the Special Branch was soon to follow.

Even so, an application for a judicial review was turned down by the then Liberal state attorney-general John Hannaford in 1994, on the advice of a Crown lawyer, Rod Howie QC, advice that is still secret under legal privilege.

By then, the Croatian Six had all been released and were reconstructing their lives. It seemed a lost cause to fight for a review. Then, in 2007, the case came up in unusual circumstances – the completely unrelated inquest into the killing of the five Australian TV newsmen at Balibo, Portuguese Timor, in 1975.

A lawyer named Ian Cunliffe had been attached to the Hope Royal Commission into Australia’s intelligence services in 1975-77. He was called to the inquest because he recalled that while inspecting the Defence Signals Directorate station In Darwin, he’d been shown an intercepted Indonesian radio message that suggested more knowledge about the killings than the government was admitting.

Cunliffe was asked if it happened that officials decided they knew better than the government what to do with intelligence material. Yes, when he was later a senior legal advisor in the Prime Minister’s Department,

he’d been part of discussions in a interdepartmental committee on security about a major criminal trial involving six defendants where officials declared certain material should not reach the prime minister, Malcolm Fraser, and a Commonwealth police officer said that if defence lawyers tried to subpoena intelligence mater, he would make sure it could not be found. Cunliffe said this was “tantamount to perverting the course of justice”.

I was covering the Balibo inquest and asked Cunliffe in the tea break was what the case. “Croatian Six,” he said, and that set me off on what became an inquiry over 12 years.

My initial attack was to make Freedom of Information requests to the departments in the security committee mentioned by Cunliffe. This cost the Herald several hundred dollars, and responses took more than a year. Typically, department officers came back first saying the request was too broad. Then more narrow requests got pedantically defined to miss the target. The NSW Police said the records of the disbanded Special Branch were still sensitive intelligence material and exempt.

 ASIO itself was exempt.

That being the case, I eventually wrote a long report for the Herald in 2012 that pursued two open-source avenues.

One was to read the trial transcripts, all 5500 pages. This revealed some flaws in Justice Maxwell’s summing up to the jury that supported the police evidence, declaring it a “black and white” situation of 39 police officers against six defendants with a motive to lie. The jury was not told that Maxwell had thrown out the alleged verbal of one defendant because medical staff at Long Bay Jail had given convincing evidence the man had been brutally bashed at the CIB. A half dozen police had sworn the confession was genuine and no violence had occurred. Attempts by the defence to get the story of the seventh man, the student with no desk, told to the jury were blocked by Maxwell. It seemed a case study for the findings of Justice James Wood, in his 1997 Royal Commission report on the state police, about what he called “process corruption” whereby police, and in particular the CIB, fitted up people they believed to be guilty.

The other avenue was the growing body of scholarship on the workings of the former Yugoslav communist state’s intelligence service, the UDBa, and its employment of “false flag” and agent-provocateur operations against troublesome elements in the ethnic disasporas.

The role of Vico Virkez would fit this picture  and a US expert on the Balkans, John Schindler at the US Navy War College, said his UDBa sources claimed as one of their most successful operations − but all attempts to explore it by the defence during the trials and appeals had been opposed by the Federal attorney-general, and blocked by the judges.

“Where national security is involved the rules of natural justice are liable to be modified,” declared Justice Maxwell in a decision not published until after the verdicts. “The requirement of the public interest that such information should be kept confidential, in my view, outweighs the public interest in the administration of justice.”

The Crown Counsel at the trial, David Shillington QC, felt able to declare that, “There is not a skerrick of evidence to suggest that this man was some sort of undercover agent, an UDBa or Yugoslav representative.”

My report inspired another application by the Croatian Six for a review of their convictions, this time to the Chief Justice, Tom Bathurst.  He appointed an acting justice, Graham Barr, to advise whether a review was warranted. Barr gave a 63-page finding in 2013, that many lawyers found deeply unsatisfactory.

Barr didn’t read the trial transcripts – he said they could not be found – nor try to interview Cunliffe, or track down Virkez, who was still alive, in the same place Four Corners had found him.

 He cited the opinion of Roger Rogerson that you couldn’t stitch someone up with so many officers from different squads involved. Applying today’s standards of policing to 1979 would be anachronistic. Whatever the story about Virkez, the confessions alone would be enough to convict. Having looked at the new material about the police evidence, Barr came to this conclusion: “I have no unease or sense of disquiet about the convictions.”

That again dashed hope of a review of the convictions. Yet in November 2016, the third volume of the Official History of ASIO was published. The authors, John Blaxland and Rhys Crawley of the ANU’s Strategic and Defence Studies Centre, had access to all ASIO records. They concluded a two-page discussion of the Croatian Six case by calling it a “wrongful conviction”.

That inspired me to get back into the case. In 2017, I spent several weeks in Croatia, Bosnia, and Serbia attempting to pick leads on the UDBa side. It was a colourful exercise, recounted in the book, and certainly found background that the UDBa were highly active in Australia, had close links with the Australian Federal Police, and minutely followed Croatian activity.

 Virkez himself, I discovered, had died in 2014.

A second approach was via the National Archives of Australia, where I lodged requests for ASIO to declassify material related to the case. After several months, this bore fruit with the release of several files, including those on Vico Virkez.

The file shows that ASIO phone-tapping had picked up contacts between Virkez and a suspected UDBa officer at the Yugoslav consulate-general in Sydney over a six-month period before the arrests, when elements of the bombing plot were mentioned.   They do not reveal whether the UDBa designed the Lithgow bomb plot as an agent-provocateur operation. But if Virkez designed the operation on his own initiative, the UDBa went along with it.

But the ASIO file also reveals that the NSW Police were consciously aware of the Virkez intelligence connection and were doing their best, at a very high level, to withhold this information from the court.

ASIO’s knowledge was given some three weeks after the arrests to Canberra’s Special Interdepartmental Committee for Protection Against Violence, or SIDC-PAV, and the minutes of this meeting were circulated to state police.

The minutes, classified “secret”, caused consternation in Sydney at NSW police headquarters. The minutes, classified “secret”, caused consternation in Sydney at NSW police headquarters.

Assistant-Commissioner Roy Whitelaw contacted the Sydney office of ASIO, which reported to Melbourne headquarters that Whitelaw was “very concerned re this paragraph as if the opposition became aware of this information it could blow a hole right through the police case”.

In subsequent discussions, ASIO said the gist of its knowledge could be told to senior state police involved in the case, as long as ASIO as the source and the methods used were not revealed. Whitelaw indicated he would tell and heads of the prosecution branch and the CIB. Yet as we have seen, none of this came into the open court, or was shared with the defence lawyers.

The implication of this is very serious, and should be grounds for review in itself. It greatly reinforces the opinion of Ian Cunliffe, that the withholding of this knowledge from the trial, was “tantamount to perverting the course of justice.”

In the High Court stage of the case in 1986, Reg Blanch QC, was appearing for the New South Wales crown. Blanch went on to become Chief Judge of the District Court of New South Wales until retiring In 2014, and as you will have read, currently reviewing the Kathleen Folbigg conviction.

In the High Court, Blanch was asked by Justice William Dean what would be the situation if the knowledge held by the federal “Crown” had been disclosed to the state “Crown”.

Blanch replied that if the material was “in the possession of the [NSW]Crown prosecutor and it was material that was hidden from the defence — then I think the result would be almost automatic that there would be a miscarriage of justice in those circumstances because of the duties of the Crown to disclose relevant material to the defence.”

As former High Court justice Michael Kirby has written (Australian Financial Review, May 2, 2013), the decision whether a conviction should be reviewed “can effectively rest upon the determination of a single official advising the Minister. That advice takes place behind closed doors. In times of scarce resources, the temptation to refuse further enquiry is very large.”

At least in Acting Justice Barr’s decision, we know his thinking, but it is still the opinion of one man.

As Kirby argued:  “Where questions of human freedom are at stake, it is not appropriate to repose final power in so few hands. For many years, the United Kingdom has adopted a system to review cases of possible miscarriages of justice. This was introduced because of the cases where alleged Irish terrorists were convicted on evidence later found to have been false, corrupted or unreliable. We have had similar cases in Australia.”

Is this not our own Birmingham Six case?