Inside Story

Held captive by cold war politics

More than forty years later, lawyers are using evidence of an ASIO cover-up to clear the names of the Croatian Six

Hamish McDonald 5 March 2021 3011 words

The case that gripped Sydney linked Australia to the “captive nations” of Eastern Europe. Illustration by Rosie Handley

It began as an aside during an unrelated case: the killing of five Australian television newsmen at Balibo, in what’s now Timor-Leste, in 1975. In the absence of any firm response from Australia’s federal government, lawyers working with the bereaved families had found a legal hook they hoped would persuade the NSW coroner to hold an inquest. So, in 2007, I spent two months in the old coroner’s court on Sydney’s Parramatta Road listening to former officials, signals intelligence operatives, Timorese civil war veterans and even former prime minister Gough Whitlam testify to what they knew.

One witness was Ian Cunliffe, a former federal government lawyer who’d served on Justice Robert Hope’s late-1970s royal commission into the intelligence services. He had seen an Indonesian signals intercept concerning the Balibo deaths that he felt had been covered up.

Asked by his lawyer if he knew of other instances of intelligence being withheld from the government, Cunliffe instanced “a criminal trial in Sydney involving six defendants.” Canberra officials had agreed to keep material from the prime minister, he said, and had been willing to make intelligence material disappear if it was subpoenaed by defence lawyers.

During the court’s morning tea break, I asked Cunliffe which case he was referring to. “The Croatian Six,” he replied cryptically.

I had only the faintest recollection of the details of a case that had gripped Sydney nearly three decades earlier. As a young federal press gallery reporter I’d seen Labor’s Lionel Murphy and the Liberals’ Ivor Greenwood, two QCs from different sides of the street socially, do battle over Croatians living in Australia.

Murphy and many others on the left felt that the zealously anti-communist Australian Security Intelligence Organisation had ignored the threat of right-wing extremists, including former supporters of Croatia’s far-right wartime Ustase regime. Their fears seemed to be confirmed when a small group of Croatian Australians launched an armed incursion into Yugoslavia in 1972, crushed by Belgrade. Bombs went off outside Yugoslav travel agencies in Australia and military-style training camps were found in the bush.

Murphy and his supporters saw the contemporary Yugoslavia of Josip Broz Tito as a model of an open, non-aligned type of communism that reformists elsewhere could emulate. His feud with ASIO culminated in his controversial raid on the agency’s headquarters in 1973, accompanied by a posse of federal police. The idea that Australia’s Croatian community harboured fugitive war criminals was kept alive through the 1980s by author and broadcaster Mark Aarons; more recently, two thrillers drawing on the events of the early 1970s, written by ABC journalist Tony Jones, have helped sustain the violent reputation attached to Croatians.

Croatians and migrants from the other “captive nations” of Eastern Europe, on the other hand, had no illusions about communist regimes. They were more likely to support the Coalition, lend their services to branch-stacking efforts and help ASIO watch for Reds.

Cunliffe’s crisp response to my question set me off on a years-long tangent from my usual journalistic focus on Asia. It led me to research Balkan enmities, their diaspora echoes in Australia, and how some politicians and security agencies had favoured particular sides. It took me into the discredited NSW police culture of the 1970s and the inner workings of a high-profile Supreme Court trial.

Even then, it was an old case. In February 1979 a Yugoslav named Vico Virkez had walked into the police station in Lithgow, 150 kilometres west of Sydney, and said he was part of a Croatian conspiracy to plant bombs around Sydney that night. He was told to go home and act normally.

Later, police arrived from Sydney, arrested him and his tenant Maks Bebic, and discovered crude gelignite bombs in Virkez’s old Valiant car. With names supplied by Virkez, police also raided three homes around Sydney, in each of which they found two half-sticks of gelignite in the possession of a total of five other Croatian Australians, Joe and Ilija Kokotovic, Anton Zvirotic, Vjekoslav “Vic” Brajkovic and Mile Nekic. Taken to the old Central Investigation Branch at the back of Central Court, the five confessed to the bomb plot, as had Bebic in Lithgow.

That was the police version, anyway, and along with Virkez’s account it was enough for a jury to convict the six men of conspiracy in a terror-bombing plan, and for Justice Victor Maxwell to sentence each of them to fifteen years’ jail in early 1981. Those decisions were upheld on appeal the following year. All served their time with maximum remissions for good behaviour and were out of prison by the end of the 1980s. Their jailing didn’t improve the Croatian community’s already blackened image.

As I read the files, it quickly became clear that I was not the first person to have been tipped off by Cunliffe. Virkez, the informer, had been allowed to travel back to Yugoslavia soon after giving his evidence, and reporter Chris Masters had tracked him down to a village in the Serb-populated north of Bosnia in 1991. There, on camera, Virkez admitted he was actually a Serb, real name Vitomir Misimovic. He revealed that his evidence of the bomb plot had been false, that he had been coached in what to say in court by NSW police, and that the Croatian Six were, as far he knew, innocent.

After the interview featured on the ABC’s Four Corners, two defence lawyers from the original trial, David Buchanan and Ian McClintock, applied to the NSW attorney-general for the convictions to be reviewed. Three years after the broadcast, attorney-general John Hannaford decided against a review on the advice of two senior state government lawyers, Keith Mason and Rod Howie — advice still not public because of claimed legal privilege.

So, some thirteen years later, I set out on a much fainter trail. I discovered that Joe Kokotovic had split up with his wife Lydia while in jail, had a new family and was looking after his brother Ilija. Maks Bebic, married with two children, had started again in Geelong as a house painter. Vic Brajkovic had separated from his wife and daughter. Anton Zvirotic was somewhere in Melbourne. Mile Nekic had gone back to Croatia, but his time in Long Bay Jail had opened up his talent as an artist and his paintings had attracted considerable fame. All of them still insisted on their innocence.

The NSW Supreme Court’s registry pulled out the transcripts of the original trial, all 5000 pages in twenty boxes, and I spent weeks reading through them in between my other work for the Sydney Morning Herald.

It became clear that Justice Maxwell believed strongly in the integrity of the NSW police. All six defendants claimed to have been coerced during interrogation. The five taken to the Sydney CIB had listed bashings, kicks, partial strangulation and other physical violence, all of it denied by detective after detective.

Yet the defence found doctors and a nurse from Long Bay’s clinic who testified in a voir-dire hearing, with the jury absent, that Vic Brajkovic had arrived in jail with bruises to his face, loss of hearing in one ear consistent with having been kicked in the head, and burn marks around the neck consistent with strangulation. The defence also showed that the mugshot taken when Brajkovic was charged had been overexposed to hide the injuries.

Maxwell ruled that these revelations brought into question the voluntary nature of the written confession Brajkovic was said to have given — which he hadn’t signed but which was attested as genuine by a station inspector — and it could not therefore be brought as evidence. But he was making no reflection on police conduct, he added. And he refused to reveal to the jury during the trial that the confession, attested by police, had been ruled unreliable.

The judge also refused leave for the defence to summon police who had arrested a seventh Croatian that night in February 1979. A raiding party had brought in student Josip Stipic, and the magistrate at his committal hearing was told that they had found detonators in the drawer of his desk. After each officer had given this evidence, defence lawyer Jim McCrudden showed photographs of Stipic’s room: there was no desk, therefore no drawer, only a table. The magistrate discharged Stipic.

In his summing up, Maxwell told the jury it was a matter of whether to believe thirty-nine police officers or the six defendants, and a question of who had the motive to lie. The fact that he had suppressed two examples of police giving false evidence didn’t seem to bother him. It was, he said, “black and white.”

What also jumped out of the transcripts was the mystery of the informer Virkez. He had been tried separately by Maxwell, allowed to plead guilty on a lesser charge and held in custody until giving his evidence. Released, he was deported to Yugoslavia, where he received no penalty.

The voir-dire hearings included efforts by the defence lawyers to subpoena information about Virkez from ASIO and other federal agencies. Maxwell upheld Canberra’s objections on national security grounds without ASIO’s having to admit it had any such material. Crown prosecutor David Shillington could then argue, as he did, that there was “not a skerrick of evidence” that Virkez was some kind of Yugoslav agent or provocateur.

By the time I read the transcripts, the police involved in the case had all retired or in some cases been cashiered. The former CIB squads had been disbanded as hotbeds of corruption in 1979. Roger Rogerson, who led the raid on the Kokotovic house, had been dismissed in 1986. James Wood’s royal commission into the force had cut a swathe through the remaining ranks, and the Special Branch — which kept an eye on political and diplomatic troublemakers — had also been dissolved.

The former Special Branch officers who had joined the raids all refused to talk, as did several others. The NSW police said the Special Branch’s records were exempt from freedom of information requests. All they produced from other records was a collection of press clippings and charge sheets.

Rogerson was the only one willing to talk, so I went to see him at his home in the southwestern Sydney suburb of Padstow. Behind its neatly clipped lawn and security door, he was waiting for me, his famous charm on display: the steady blue-eyed gaze, the ready smile. His stoop from a back injury was showing, though it was much less pronounced than his crab-like walk a decade later when he was convicted of murdering a young drug dealer.

Seated in his den, he struggled to remember anything at all about the case. I reminded him about his interview with the ABC’s Neil Mercer in 1991, in which he’d admitted that the state’s CIB squads regularly fitted up known criminals. “The planting of a gun or explosives…” he told Mercer. “You know, a couple of sticks of jelly, found in their car or in their possession… It was all done in the interests of, ah, truth, justice and ah, and ah, keeping things on an even keel, and keeping the crims under control.”

“I never did it myself,” he hastened to tell me. “But there are many old stories, you might say urban myths, of famous policemen.” As for planting the gelignite on the Croatian Six, “you’d want to have guys with you whom you trusted implicitly,” and in this case there were just too many people from different squads. Even if he came out and said the Croatians were bashed and fitted up, everyone would put it down to “a jealous old bloke” getting back at the police force that dismissed him without a pension.

I put all this into a long piece for the Herald in 2012, arguing for a fresh look at the convictions on the basis of the Wood royal commission’s findings, new material emerging from scholars like John Schindler of the US Naval War College about the murderous war waged on the Croatian diaspora by Yugoslavia’s security service, the UDBa, and Virkez’s withdrawal of evidence.

David Buchanan, joined by a younger lawyer, Sebastian De Brennan, put a fresh application for a judicial review to NSW chief justice Tom Bathurst, appointed after the Coalition had taken government in New South Wales the previous year. Bathurst asked an acting justice, Graham Barr, to assess whether a review was warranted.

Barr reported that he’d found nothing in what he read to cause him any unease about the convictions. The police evidence was enough to convict, he said, whatever the doubts about the Virkez evidence, and Rogerson, after all, had explained the problems about planting evidence. The police of 1979 could not be held retrospectively to present-day standards that require the taping of interviews and ban unsigned “verbals” of the kind attributed to the Croatians.

In November 2016, though, another opening emerged. Military historians John Blaxland and Rhys Crawley published the third volume of the Official History of ASIO, covering 1975–89, the final years of the cold war. In a book vetted by the organisation and based on free access to its archives, they wrote that Virkez had been working as an informant to a suspected UDBa officer in the Yugoslavian consulate-general in Sydney, that ASIO regarded many of the alleged Croatian bombings as “false-flag” operations by the UDBa, and that ASIO had failed to note the seriousness of Yugoslav intelligence activity here. The result, they concluded, was the “wrongful conviction” of the Croatian Six.

I returned to the case, filing applications to see the ASIO records on which Blaxland and Crawley had based their conclusion. In mid 2017, I travelled to the former Yugoslavia in an effort to find records of the disbanded UDBa and former personnel who might talk. It brought the tortured Balkan history very much alive to me, and I met many young historians delving into the UDBa story. They agreed that getting Virkez to set up the Croatian Six was entirely characteristic of UDBa operations.

A senior former UDBa official in Belgrade agreed. But before switching their services to the new independent Croatia, the local UDBa had cleansed the Zagreb archives of incriminating material. The former federal UDBa archive was locked up in Belgrade by the present-day Serbian intelligence service, who did not respond to a request for access. Vico Virkez had died in 2014.

Then, in January 2018, a message arrived from the National Archives that certain files had been opened, though with redactions. I went to Canberra and found myself reading through two files on Virkez. They showed that he had been working with a UDBa handler in the Sydney consulate for six months before the arrests, speaking by telephone and meeting in Sydney, in all cases monitored by ASIO.

After the arrests, ASIO quickly concluded Virkez was the man working with the UDBa officer and circulated this information around state police forces through an intelligence channel. The reaction at NSW police headquarters was dismay. Assistant commissioner Roy Whitelaw contacted ASIO to say that if the men’s defence team became aware of this information, “it could blow a hole right through the police case.”

ASIO was initially inclined to let the NSW police reveal the information about Virkez as long as the source and wire-tapping involved were not revealed. It appears that Whitelaw opted not to pass it on, certainly not as far as crown prosecutor Shillington. With the court case set, ASIO then opted to throw a blanket around the evidence, persuading federal attorney-general Peter Durack to strenuously oppose the defence subpoenas during the trial and appeal.

Under its chief at the time, Harvey Barnett, ASIO tried to tone down its assessment of Virkez from “agent” to mere “informant.” Barnett wrote in the file that this reduced the likelihood of ASIO’s being accused of having been party to a miscarriage of justice. The Hawke government’s attorneys-general, Gareth Evans and Lionel Bowen, then signed off on moves to prevent Ian Cunliffe, by then secretary of the Australian Law Reform Commission, from raising his misgivings regarding the suppression of evidence about Virkez.

As Whitelaw correctly saw, this blew a big hole in the case against the Croatian Six — not just the information itself but the act of hiding it. As the counsel for the NSW Crown, Reg Blanch QC, admitted in 1986, during the brief and forlorn attempt by the Croatian Six to appeal to the High Court, it was “almost automatic” that a miscarriage of justice would be created by failure to convey relevant evidence to the defence.

This cover-up was detailed in my book on the affair, Reasonable Doubt: Spies, Police and the Croatian Six, which was published in 2019. Soon after, concerned lawyers — De Brennan and solicitor Helen Cook, with opinion from David Buchanan SC — began working pro bono on a new application to the NSW chief justice, who is still Tom Bathurst QC.

The application includes more recent evidence revealed by ABC Radio National producer Joey Watson in his two-part documentary on the Croatian Six, broadcast early last month on The History Listen. Watson rang all the surviving police he could trace. Some couldn’t remember anything; others told him to “fuck off”; but one talked, not for attribution, and said his raiding party had found no gelignite. (None was photo-graphed at the scene, fingerprinted or shown to the court.)

The application was served in the Supreme Court on 15 February 2021, with copies to NSW attorney-general Mark Speakman SC and NSW solicitor-general Michael Sexton SC. Their decision is expected later this month. Whether a case often compared to the Guildford Four and Birmingham Six convictions in Britain will receive an open review rests in their hands. •

5 April 2024 update: In August 2022, after a series of delays, the NSW Supreme Court ordered a judicial inquiry into the convictions. That inquiry is currently taking evidence in Sydney.


The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.