The closing submissions of counsel assisting any judicial inquiry or royal commission often give a clue to the eventual findings, and so it has been with the NSW Supreme Court’s inquiry into the notorious Croatian Six case, which gripped Sydney more than forty-five years ago. Six Croatian-born men were jailed after a high-profile trial following their arrest on suspicion of having conspired to plant bombs around Sydney.
The inquiry’s head, acting justice Robert Hulme, this week found “a reasonable doubt” about the guilt of three of the six — Ilija Kokotovic, Joseph Kokotovic and Mile Nekic. Hulme referred his findings to the NSW Court of Criminal Appeal, which will now consider whether their convictions should be quashed. But he declined to question the convictions of the other three — Vjekoslav Brajkovic, Maksimilian Bebic and Anton Zvirotic — each of whom continues to protest their innocence more than twenty years after being released from jail.
The six men, all young tradies in Sydney and Lithgow at the time, were arrested on 8 February 1979 after a seventh man calling himself Vico Virkez contacted state police. Virkez told them he had become embroiled in a Croatian nationalist bomb plot against Yugoslavia’s communist government and wanted to expose it before harm was done. Police raids followed, leading to one of the longest criminal trials in British Commonwealth history and the six men’s conviction in February 1981. Each was sentenced to fifteen years’ jail and served seven to eight years before being paroled.
Gradually, though, an alternative scenario began building up. According to this version, Virkez was actually a Serb named Vitomir Misimovic, masquerading as a Croat, who had accumulated a stash of stolen gelignite in Lithgow with his gullible housemate Bebic. Once he told police that bombs were about to be set across Sydney, the state’s police heavies, the Criminal Investigation Bureau, employed their notorious methods — bashing, verballing and “loading-up” — to frame six Croatian activists irking the Tito regime.
Two applications for judicial review of the convictions, in 1994 and 2013, failed. Then the Australian Security Intelligence Organisation declassified records of phone taps showing Virkez had been communicating with an officer of the Yugoslav intelligence service, the UDBa, at the Yugoslav consulate in Sydney during the six months before the arrests.
A third bid for review was then accepted by the NSW Supreme Court, with Hulme appointed to run it. He heard evidence and submissions for almost a year, with legal teams representing the NSW Police, individual police, the state’s prosecutors, ASIO and of course the six convicted men. More than twenty police officers were brought out of retirement and quizzed about the evidence they gave all that time ago.
Hulme has digested the massive trove of transcripts, exhibits and subpoenaed documents and now, fifteen months later, has published a cautious 543-page report and a similar-sized volume of annexures. Having followed the campaign for the men’s exoneration for nearly twenty years, I was puzzled by some of his assessments — especially on the question of ASIO’s role in a likely miscarriage of justice — and the weight he has given to certain testimony.
Hulme was not inclined to entertain the alternative narrative as a whole. He finds the main part of the evidence given by Virkez, who had turned crown witness for the trial and been given a short sentence, to be credible despite Virkez’s having told the ABC’s Chris Masters on camera in 1991 that he made most of it up — an admission he later repeated to the Sydney Morning Herald’s Paul McGeough. Virkez returned to Yugoslavia after giving evidence, without punishment by its authorities, and died in 2014.
The judge likewise accepts the testimony of the then federal police intelligence official Roger Cavanagh, who flits in and out of the investigation as a specialist on threats from the Croatian extremist Ustaše organisation and other anti-Yugoslavian groups. Cavanagh played down the connection between Virkez and the Yugoslav intelligence service in the NSW Court of Criminal Appeal, portraying Virkez as a voluntary informant rather than an agent.
“The evidence does not support the contention that Virkez held considerable animus towards Ustaše Croatian organisations and activists and thereby had a motive to frame Croatian people, or to engineer a false flag style operation adverse to their interests,” Hulme found. The judge did not address the evidence that Virkez did indeed hold considerable animus towards Ustaše Croatian organisations, nor his animus towards one of the Croatian Six in particular, Vjekoslav Brajkovic.
The allegation that Virkez “played or held a higher role, such as an ‘agent provocateur’ either in the traditional or confined sense, cannot be sustained,” writes Hulme. “In his role with the Yugoslav consulate, Virkez is best described as an ‘informant’ or ‘source.’ If he is to be considered any sort of ‘agent,’ the qualifying term used by Cavanagh of ‘low-level’ is apt.”
Hulme grants that Virkez “remains a controversial character and there is a lot that remains unknown or is unclear about his background.” And he concedes that Virkez was not truthful in all respects of his trial evidence, for example when he denied he was in contact with the consulate for the purpose of spying on Croatians. But on the “core subject” of the bombing conspiracy, Hulme concludes that Virkez’s account was supported by the call he made to the consulate just before tipping off the NSW police. “The call was, in effect, a plea for help and advice; he said, ‘I am in some sort of trouble,’” he writes.
The judge argues that his evidence is “not in any way tarnished by the claims made by Virkez many years later in interviews with Masters and McGeough, two highly respected journalists who tracked him down in his native country. While those claims provided support at a superficial level for the petitioners’ case, they are replete with inaccuracies and inconsistencies that deny them credibility.”
This interpretation of Virkez’s behaviour is similar to that of the prosecution in the trial. It hardly accords with the more widely accepted picture of Virkez as a malign, cynical character who sprung a trap on his gullible housemate Bebic and the other Croatians while his delighted UDba handlers looked on from a safe distance.
Cavanagh, long retired, died in 2021 before the inquiry hearings began. Curiously, the Australian Federal Police were not represented at the inquiry, and no attempt seems to have been made to seek any records it (or its predecessor, the Commonwealth Police) might have on Virkez. Maybe Hulme had no power to call them. In one interview, Virkez said he had been in contact with “ASIO” and told to speak to a “Kavanagh.” Had Cavanagh been running Virkez as a source himself? It’s an intriguing thought.
Nor did Hulme take up the contention of the lawyers for the Croatian Six that the Wood royal commission’s 1994 finding that systemic “process corruption” existed in the CIB squads brought into question all the police evidence in this case, notably the alleged discovery of gelignite in Sydney homes and the “admissions” some of the accused allegedly made to the CIB after their arrest.
The only way for such a conspiracy to be proven would be if any of the surviving police admitted to have taken part in or known about it. But the legislation setting up this kind of judicial inquiry notably excludes the power of royal commissions and certain other types of inquiry to compel testimony and grant legal immunity in exchange. Hulme said he asked the NSW government during the inquiry for a legislative patch to fix this gap, but without success. “It cannot be known whether the exclusion of the power of compulsion did in fact work to conceal such evidence,” he said.
Hulme did find several police officers involved in Brajkovic’s arrest had severely bashed him, one using a twisted towel to throttle him, and had then conspired to mislead an Internal Affairs Branch inquiry into Brajkovic’s complaint. (The branch accepted the officers’ concocted explanation for his injuries: that he, with help from other accused, had inflicted injuries on himself to discredit police.)
Nor did the police take proper precautions for the potential discovery of massive amounts of explosives in their raids. “Indeed, by today’s standards, the nonchalant way police acted on intelligence that there might be ‘30–50kg of explosives at an undisclosed location’ was rather extraordinary,” Hulme said. “However, the inquiry does not find the inadequate or complete lack of precautions to mean that police had formulated a conspiracy to falsely accuse the Croatian Six before any raids were carried out, knowing that there was no real bomb plot. Instead, more probable is the explanation that the lack of precautions ‘was in all likelihood a product of a cavalier attitude that prevailed at the time and nothing more sinister.’”
Hulme was highly critical of Special Branch officer Victor Jefferies for withholding his knowledge of Virkez’s Serb background and Virkez’s anti-Croatian views, and for endeavouring to keep his Yugoslav consulate link hidden from the committal hearings of the charges against the Croatian Six.
He dismisses for lack of evidence the conjecture that the two half-sticks of gelignite (and associated wiring and detonators) found in each of three Sydney homes raided by separate police groups came from a “stash” of incriminating items kept by the CIB squads to “load up” suspects.
But when he discusses the convictions of the Kokotovic brothers and Nekic — arrested at the same house with sticks of gelignite on a desk at which they were preparing leaflets, according to police — he finds it unclear who possessed the incriminating items. He considers their alleged admissions of joint possession in the CIB “interviews” to be concerning. Together with the sketchy references to them by Virkez and Bebic in Lithgow, he concludes that reasonable doubt exists about their convictions.
It is when he turns to the main new evidence that led to the inquiry — the evidence of ASIO involvement — that Hulme leaves a huge gap in accountability.
ASIO records declassified in 2018 reveal that the security service was tapping telephones at the Yugoslav consulate and monitoring Virkez’s contacts with UDba. Soon after the arrests in February 1979, a secret report was circulated by its head office in Canberra. Virkez, it said, had “for a period of at least six months prior to the arrests acted as an informer on Croatian nationalist activities to a person suspected by ASIO of being an intelligence official attached to the Yugoslav Consulate-General.” The plot revealed “the depth of the penetration of Croatian extremist groups by the YIS in Australia.”
This report went to top NSW police and the Special Branch. In follow-up exchanges with ASIO, then assistant police commissioner Roy Whitelaw said “if the opposition [ie the six men’s defence team] became aware of this information it could blow a hole right through the police case.” Later Whitelaw was advised he could tell his prosecutors about it as long as the source was not made public. Through the trial and appeal, defence subpoenas for relevant intelligence information about Virkez were rejected on national security and other grounds.
As a result, the crown prosecutor, the late David Shillington QC, was able to assert, unchallenged, that there was “not a skerrick of evidence to suggest that [Virkez] was some sort of undercover agent, an UDBa or Yugoslav representative.”
Hulme’s inquiry tried to find out whether ASIO’s information had got to Shillington. Various surviving police witness said he was fully informed about everything he should know. Hulme declines to accuse him of knowingly withholding evidence important to the defence: “[I]t would be neither fair to the late Mr Shillington QC, nor reasonably supported by the evidence before the inquiry, to conclude that he abdicated his responsibilities and acted in a manner inconsistent with his overarching duty.”
The judge noted that when the Croatian Six sought leave to appeal in the High Court in 1986, the then NSW crown counsel, Reg Blanch QC (later chief judge of the NSW District Court), admitted that if the prosecution had withheld vital evidence for the defence “it would be almost automatic that there would be a miscarriage of justice.”
Hulme’s own counsel assisting submitted that the defect in the trial process by reason of non-disclosure was significant. In his finding, Hulme conceded that the nondisclosure “could meet the current day test for a miscarriage of justice in that it could be regarded as an error or irregularity that could realistically have affected the reasoning of the jury to its verdict,” helpfully citing a recent case.
“However,” Hume went on, “the ultimate question for the inquiry is whether there is reasonable doubt as to guilt of the Croatian Six. A flaw in the trial processes is an appropriate matter to report upon and might inform this question, but it is not in itself determinative… The unavailability to the defence of information and evidence concerning Virkez’s allegiance to Yugoslavian interests and his association with personnel at the Yugoslav consulate has no impact upon the question of whether there is a reasonable doubt about the guilt of any of the members of the Croatian Six.”
Hulme circled the subject again in his conclusion, where he referred to “failings” in the disclosure of information about Virkez’s association with the Yugoslav consulate and loyalty to Yugoslavia. “The extent of what was known and should have been passed on is not entirely clear,” he wrote, “but there is no doubt that there was a denial of some probative ‘ammunition’ that could have been effectively deployed in cross-examination of Virkez.”
This non-disclosure, he went on, “arguably was significant and could be regarded as an error or irregularity that could realistically have affected the reasoning of the jury to its verdict and thereby constitute a miscarriage of justice.” He repeated his reference to a recent High Court ruling to this effect.
It is puzzling that Justice Hulme didn’t consider the question of a miscarriage of justice to be within the ambit of his inquiry. After all these years, exactly whose task is it? That question must surely be considered by the two authorities to whom he has given his report: NSW chief justice Andrew Bell and NSW governor Margaret Beazley (herself a former president of the NSW Court of Appeal).
The procedures drag on. Of the three exonerated, Mile Nekic has died and the Kokotovic brothers didn’t seek this inquiry. A ruling that a miscarriage of justice did indeed occur would bring a sort of exoneration for the other three, and for the broader Croatian-Australian community, which has had to live with the stain of terrorism this case has spread over them for nearly five decades. •
► Hamish McDonald’s account of his involvement in the successful effort to reopen the case
