In the old Chief Secretary’s Building, a sandstone relic of colonial New South Wales not far from Circular Quay, an episode in the state’s more recent history is being picked apart. In what is now a venue for judicial inquiries, a succession of retired policemen have testified this year about their role in events forty-five years ago.
In that era of shaggy haircuts and flared trousers, large amounts of cash still circulated through payroll deliveries, retail tills and bank branches, inevitably attracting the attention of armed hold-up men and safe-crackers. The state’s police force responded with powerful new detective squads within its Central Investigation Branch dedicated to ambushing and apprehending them.
It was, as criminologist Robert A. Dielenberg has written, the tail end of the era of “physical” policing aimed at “putting a man in cuffs.” But while that battle raged on the streets, Dielenberg says, “a gentleman-like status quo driven corruption prevailed [among police], extending all the way up to government and back down again.”
Nearly half a century later, the detectives from that time are all in their late seventies and early eighties. Many require walking sticks and other aids, but as they testify in the Chief Secretary’s Building it’s not hard to imagine them as the young hulks they were in their CIB days.
What happened in February 1979 was outside their usual work dealing with hard-bitten criminals. Suddenly they had to grapple with ancient Balkan rivalries and hatreds transplanted to the suburbs of Sydney. This was the “Croatian Six” case. At the time it looked like the biggest terrorism plot in Australia’s history; now it looks more like our biggest miscarriage of justice.
In February 1981, after an extremely long trial, the six young Croatian-Australian defendants — Maksimilian Bebic, Mile Nekic, Vjekoslav Brajkovic, Anton Zvirotic, Ilija Kokotovic and Joseph Kokotovic — were each sentenced to fifteen-year jail terms by the NSW Supreme Court’s Justice Victor Maxwell. Each failed in their appeals to the NSW Court of Criminal Appeal and the High Court of Australia.
The jury accepted police evidence that all six of them had plotted to plant bombs around Sydney to advance the cause of Croatian independence from the Yugoslavia of Josef Tito’s communist regime. The plot was thwarted at the last minute when a seventh alleged plotter, Vico Virkez, tipped off police on 8 February 1979.
A hurried raid on the Lithgow house of Virkez and his tenant Bebic did indeed find crude gelignite bombs loaded up in Virkez’s Chrysler Valiant. After Virkez gave the police more names, they raided three more houses across Sydney where they allegedly found the other men in possession of gelignite, detonators and improvised timers.
But ASIO records released in early 2018, nearly forty years after the alleged plot, cast a cloud over the prosecution case. They showed that phone taps over the preceding six months had found Virkez was in touch with an official at the Yugoslav consulate-general in Sydney whom ASIO believed to be an officer of the Yugoslav Intelligence Service, or YIS.
More than that, this information had been relayed to an assistant commissioner of the NSW Police, Roy Whitelaw, about three weeks after the arrests, along with an assessment that Virkez was an agent or possibly even an officer of the YIS. Whitelaw told ASIO he was worried this information would “blow a hole” in the police case if it got to the “opposition” — in other words, defence counsel. ASIO said he could tell police prosecutors about it as long as it wasn’t sourced to them.
But this vital piece of intelligence never surfaced at the trial or appeal. Indeed, Crown prosecutor David Shillington QC assured the jury there was “not a skerrick of evidence” that Virkez was a Yugoslav agent.
After their release in 2018 the ASIO documents helped launch a fourth application for a judicial inquiry into the convictions by members of the Croatian Six. In August 2022, after sustained opposition from a Crown-appointed legal team, Justice Robertson Wright ordered an inquiry. He cited “questions or doubts” about several aspects of the original case, including the truth of Virkez’s evidence for the Crown, the confessions and physical evidence allegedly got by police in the Sydney raids, and the alleged withholding of crucial evidence from the defence.
In March last year Chief Justice Andrew Bell appointed Acting Justice Robert Hulme to conduct the inquiry. Hulme, a lawyer and retired Supreme Court justice, brought to the job a thorough knowledge of criminal law from both the defence and the prosecution sides —including an early-career exposure to a dodgy police operation when he was secretary to justice James Wood’s 1984 inquiry into the Ananda Marga trio’s convictions in 1the 978 Yagoona bombing, which were overturned.
Since hearings began last December, the inquiry has heard forty-three days of testimony. Searches ordered by the inquiry have generated some 52,000 pages of documents that have been digitised and made easily available on computer terminals, and proceedings have been live-screened and transcribed for public access.
Facing Acting Justice Hulme are four rows of legal talent. In front is counsel assisting the inquiry Trish McDonald SC and a phalanx of juniors and solicitors. Alongside is the team representing three of the Croatian Six (Bebic, Brajkovic and the late Mile Nekic, who died in 2022): David Buchanan SC, a defence counsel in the original trial who has come out of retirement for the inquiry, barrister Sebastian De Brennan who led the application for review, and solicitor Sharon Ramsden.
In the second row are Greg Woods KC, hired by the NSW Police Association to represent some twenty of the surviving members of the arresting police, and Gabrielle Bashir SC, separately representing James Bennett, another former detective. Bennett left the police soon after the original case for a career as barrister and judge in the NSW District Court, where he still sits post-retirement as an acting judge.
On the third and fourth rows are Alex Brown for the NSW director of public prosecutions and Catherine Gleeson SC for the NSW police commissioner, plus numerous supporting lawyers. ASIO (and latterly the prime minister’s department) are represented by Peter Melican and Jake Silove.
Their fees must be chewing up a bomb — except for Buchanan, De Brennan and Ramsden, who are being funded on drip-feed by the Croatian-Australian community and other crowd-sourcing but have largely appeared pro bono.
The role of the NSW police’s former Special Branch, whose task was to anticipate political violence and spot subversion, came under particular scrutiny. Assistant Commissioner Whitelaw, a previous head of the Special Branch, has died, as has Inspector John Perrin, its head at the time of the arrests. But Victor Jefferies, its Croatian specialist at the time of the arrests, is alive and well enough to stand up to several days of questioning.
Jefferies was quizzed repeatedly about an interview he conducted with Virkez in Lithgow two days after the arrests. During that encounter, he says, he quickly deduced from Virkez’s real name, Vitomir Misimovic, that he was not a Croat but a Serb and not a separatist but an ardent Yugoslav. Virkez admitted to warning the Yugoslav consulate as well as the police about the bomb plot, and having earlier given the consulate reports on Croatian activism, but denied contact with YIS.
Jefferies wrote all this up in a report, he said, which he then gave to Perrin and showed to detective-sergeant Ted Turner and detective senior constable Alister Milroy, leading figures in the Lithgow raid who were putting together the police brief of evidence. But Jefferies said his interest wasn’t sufficiently piqued to explore whether Virkez was an agent provocateur. Nor did Milroy (later chief of the Australian Crime Commission) feel the need to delve into Virkez’s double life when he prepared an “antecedents” or background report on him.
Jefferies also said that the ASIO information about Virkez’s links with the YIS that so alarmed assistant-commissioner Whitelaw would have been circulated to Special Branch and shown to him as the officer watching the Croatian community.
None of this emerged in his statements and testimony at the committal hearing in August 1979, at least according to transcripts shown to him by counsel assisting. Jefferies even denied he had written a report on the meeting or that it had revealed intriguing new information. Why? He’d been in the witness box a long time, he now says, and was “slightly confused.”
Jefferies said he had probably taken the names of the Kokotovic brothers and Mile Nekic from Special Branch records, added them to those of Brajkovic and Zvirotic, who had been named by Virkez in Lithgow on 8 February 1979, and of Joseph Stipic, a young student activist whom a magistrate would later clear of charges because of botched police evidence. This list had then been passed on to teams hurriedly assembled at the CIB to fan out across Sydney late on the evening of the raids.
But Jefferies denied he and his chief, Inspector Perrin, had seen Virkez’s information as an opportunity to “roll up” the members of a strident new activist group, the Croatian Republican Party. These young nationalists had mounted heated demonstrations at Yugoslav national day events, and in one case had nearly rolled a police car containing Perrin after he had arrested Brajkovic at a demo outside the Yugoslav consulate.
Despite the decades that have elapsed, the ex-CIB stalwarts who appeared at the inquiry all stood by their evidence at the original trial. Yes, they had found the gelignite at the Sydney homes. No, the defendants had not been bashed during questioning back at the CIB offices in the old Remington Building facing Hyde Park. Yes, their evidence of confessions was true.
They had heard the term “verballing,” they said, but mostly from defence lawyers trying to wriggle their clients out of confessions. They’d never done it themselves, or seen it done. Same for “loading up” suspects with guns, explosives or drugs. Same for bashing. If they’d noticed the Wood royal commission report on police corruption in 1997, they were shocked or felt it generalised from isolated incidents. Some still attended an ex-CIB get-together held three times a year; while they may have mentioned to each other that they’d been summoned to this inquiry, they definitely didn’t discuss what they were going to say.
At one point Acting Justice Hulme professed himself puzzled by this combination of gaps in memories and vehement denials of misbehaviour. “If you have no recollection, what’s the basis of your denial?” he quizzed one ex-detective.
James Bennett, the detective turned judge, gave the narrative some refinement. He took issue with the proposition that a load-up could only succeed if all the police involved in a raid knew about it. He agreed with his counsel, Gabrielle Bashir, that an officer, unaware of a load-up, could be shown an incriminating item planted by another officer at the raided premises and then give corroborating evidence of having seen it there.
Justice Victor Maxwell was clearly not thinking of such a scenario when he told the jury in January 1981 that the trial came down to a “black and white” proposition: the word of the six defendants with a motive to exonerate themselves against that of thirty-nine police who would all have had to be involved in a conspiracy to plant or fabricate evidence.
Could such a scenario be applied to Bennett’s own role in the Brajkovic arrest? More senior police allegedly found a white plastic bag of explosives on the ground outside the house where Brajkovic was found and detained, brought the bag inside and invited Bennett to look at it. Bennett was not asked about this possibility.
Also raised quite a few times during questioning was the term “scrum-down,” which describes officers conferring on their evidence ahead of trials — a practice that could be used for good or bad, Wood found. Although most of the ex-detectives looked baffled by the term, counsel assisting, Trish McDonald, thought she had found one example..
After his arrest and questioning, Brajkovic showed signs of a severe bashing to medical staff at Long Bay Jail. Their testimony at a non-jury hearing during the trial caused Justice Maxwell to throw out the “admissions” police swore he had made voluntarily. Brajkovic also wrote to premier Neville Wran, who also held the police portfolio, and the police Internal Affairs Branch was ordered to investigate.
McDonald found it “beyond coincidence” that four officers accused by Brajkovic, when questioned by Internal Affairs, used almost identical language to allege Brajkovic must have willingly taken the blows from the other alleged plotters, sometime between being put in the Central Police Station cells after questioning and delivery to Long Bay, as part of a plot by the prisoners to discredit police. “This is an instance of a scrum, for corrupt purposes,” she put to one of the officers, which he denied.
Nonetheless, a Detective-Sergeant Shepard of Internal Affairs found that prisoners inflicting injuries on a willing Brajkovic “would not be beyond the realms of possibility” and dismissed the complaint. Brajkovic said he never received this finding, and when shown it at the inquiry appeared shattered by it. It was noted, Shepard delayed his report until after the trial to see what Judge Maxwell made of the allegations. Yet, as Acting Justice Hulme noted, Shepard didn’t mention that Maxwell had excluded the record of interview with Brajkovic because of the revealed injuries.
“Curious,” Hulme commented.
As for admissions to the media in 1991 by the leader of one of the raids, Roger Rogerson, that verballing and loading were standard procedure — well, this was just big talk. They had never seen Rogerson practise those techniques; he became “bitter and twisted” only after being transferred out of the CIB. (This despite some of them having been with Rogerson in June 1981 when he shot dead drug-dealer Warren Lanfranchi in highly contentious circumstances. Four of them also worked with Rogerson on the discredited Ananda Marga case).
Rogerson, who was serving a life sentence for murder, died in jail in January this year. Though he might otherwise have been called to testify to the inquiry, it seems unlikely, even with nothing left to lose, that he would have broken ranks and given a different version of events from his former colleagues.
One striking thing the testimony to the inquiry has revealed is a general lack of what nowadays would be considered sound detective work when the original case was being investigated. None of the explosive material allegedly seized in the Sydney raids was fingerprinted or even photographed in situ. Only the Scientific Squad had cameras, and they had gone home for the night. The “elite” CIB squads had no tape recorders for their interviews, not that they wanted them. Accounts of where the explosives were stored were vague, putting the custodial chain under intense scrutiny.
And despite the raids supposedly being targeted at suspected terrorist bases — the briefing at CIB had warned about the risk of trip wires, booby traps and primed explosives, one ex-detective said — the CIB squads failed to call in army bomb experts, clear the neighbourhoods or take any precautions. Most of the detectives attended in suits rather than protective attire and didn’t even have torches to search for the alleged explosives.
Buchanan, for the Croatian Six petitioners, put it to the police that they had pulled the incriminating explosives from stashes kept to load up suspects and brought them to the raided premises. Lydia Peraic, who was married to Joseph Kokotovic at the time, told the inquiry she had never seen the two half-sticks of gelignite that Rogerson’s team had allegedly found in the attic workroom of the Kokotovic family home at Burwood and showed the family.
But if any of the officers had thought of confessing to concocting or withholding evidence, Hulme at one point reminded counsel that unlike a royal commission, an inquiry like this under Section 79 (1) of the Crimes (Appeal and Review) Act 2001 gave him no powers to compel answers or to grant certificates of immunity against self-incrimination. “It’s an unfortunate state of affairs,” Hulme said. “I do not understand why parliament would choose to exclude the power, but they have.”
The testimony extended beyond the actions of NSW police. Veteran lawyer Ian Cunliffe was given the chance he’d been awaiting for more than forty years to expound in court about the questionable handling of the Croatian Six case by the Australian Federal Police (known until October 1979 as the Commonwealth Police) and security officials, suggesting that the suppression of evidence reached right into Canberra. (It was from Cunliffe, at a coroner’s hearing in 2007 on a different matter, that I first learned of doubts about the original trial.)
Cunliffe, who had been attached earlier to Justice Robert Hope’s inquiry into the intelligence agencies, was a middle-ranking legal advisor in the prime minister’s department. The Croatian Six case came across his desk in March 1980 in the form of a letter from the jailed Virkez to prime minister Malcolm Fraser. It was accompanied by a “whitewash” response drafted by the Australian Federal Police’s assistant commissioner, Roy Farmer, once a detective in the NSW Special Branch.
Cunliffe’s interest was piqued by Farmer’s response, which pointed to negotiations under way between Virkez and prosecutors. Virkez would eventually plead guilty in a separate trial, receive a short sentence, and then testify for the Crown in the trial of the other six in return for early release and deportation to Yugoslavia.
Throughout this time, AFP civilian intelligence official Roger Cavanagh (now deceased) had been visiting Virkez in his cell and meeting Detective-Sergeant Turner, the NSW officer running the case. Cavanagh’s career had flourished on the back of alarm about Croatian political violence, most publicly when he accompanied Labor federal attorney-general Lionel Murphy on his controversial “raid” of ASIO headquarters in Melbourne to see if the security service was hiding material about Croatian terrorism.
Cunliffe detailed the workings of a high-level interdepartmental committee convened to discuss the Virkez letter. Cavanagh told the committee that evidence about Virkez’s YIS connections would be made to disappear if it was subpoenaed, that Turner was not interested anyway, and that Crown prosecutor Shillington was “fully informed.” ASIO’s representative, Michael Boyle, disputed draft minutes of the committee meeting in order to “water down” his comments about Virkez having serious YIS connections.
Later, when he read a press report of Shillington’s “not a skerrick” comment in the closing stages of the trial in early 1981, Cunliffe wrote a memo to his superiors in the prime minister’s department warning that the federal government could be seen as “standing by” while a miscarriage of justice occurred. Either Shillington (who died in 2018) had misled the court, or communications had broken down.
Cunliffe also contacted a defence lawyer to tell him that evidence existed that would help an appeal, though he didn’t disclose what it was. Although he received a subpoena to appear at the appeal, he was not ultimately called. After taking up a new job as secretary of the Australian Law Reform Commission he raised his concerns about the miscarriage of justice in 1984 directly with the Hawke government’s attorney-general, Gareth Evans. He was passed on to acting federal crown solicitor Tom Sherman, who showed him the relevant files.
But Sherman’s report on this meeting said Cunliffe was “satisfied” that all relevant documents had been provided to the court. “I am very confident I didn’t say that,” Cunliffe told this year’s inquiry. Instead, he was expecting a full federal probe. But that didn’t happen, despite further confidential correspondence involving Evans’s successor, Lionel Bowen.
During Cunliffe’s testimony, Acting Justice Hulme asked him whether he thought that not only had a miscarriage of justice occurred but also that the Croatian Six should have been acquitted.
“If the jurors were told what I knew, they might have been acquitted,” Cunliffe said.
“Not withstanding other evidence?”
“Yes,” replied Cunliffe.
Michael Boyle, the now-retired ASIO official involved in the 1980 Canberra meetings, denied he had watered down the assessment of the Virkez from “agent” or possible “officer” to “informer” for the YIS. It was simply a reappraisal as further information was gathered, he said. An agent was someone who was managed or controlled by an intelligence service.
Unlike the Soviet spy agencies, the YIS was not a priority target of ASIO interest. “They weren’t actually threatening Australia’s national interests,” Boyle told the inquiry. “They were threatening Croatian interests. The Yugoslav government was a neutral but friendly power, and there were very close diplomatic relations with them. We were aware of the Yugoslav Intelligence Service interest in the Croatian militant organisations, and we were aware of the threat that the… those organisations occasionally posed to the Yugoslav government and its interests.”
Yet an ASIO report written in 1984 by an analyst identified only as S5-A and tendered to the inquiry, concluded that Virkez was an “agent” of the YIS reporting to YIS officers at the Yugoslavian consulate-general in Sydney, rather than a “low-level informer” as claimed by the Australian Federal Police (and put to the appeal court in 1982 by AFP intelligence officer Cavanagh). A 1982 report from a redacted source (probably an allied intelligence agency) quoted a YIS officer as saying Virkez had been “planted” into the Croatian community by the consulate.
While there was no evidence on file that the YIS “masterminded” the Lithgow plot, the analyst S5-A said,
It is my opinion (based only on professional judgement) that Virkez was central to a YIS plan to discredit a potentially violent Croatian organisation, the HRS [Croatian Republican Party]. I don’t believe the YIS actually wanted bombs to be planted but I do believe they wanted HRS leaders arrested with bombs or implicated in the plot. The aim, ie that Croats, particularly HRS members, be discredited, was very successful. The arrests and trial split Croatian separatist groups and destroyed the HRS. No separatist group operates without the fear of YIS penetration, following the exposure of Virkez as an informant. Suspicion amongst separatists, of each other, has meant that cooperation and unified action is impossible.
In the last days of the hearings, Brajkovic underwent hours of intense cross-examination by counsel assisting the inquiry, counsel for the police, and counsel for Bennett, about his narrative of the arrests, the interrogation, the police inquiry, and his own political history.
He stuck to his account, and gave a sense of what it felt like at the time for the Croatian Six as they awaited committal. “We are very, very deeply surprised because we are so much have our Australian way of life… at our heart, and after the things happened we couldn’t believe it,” he said. “We thought originally it will go probably one, two, three weeks and after that we’d be released, but it kept continuing, kept mounting new charges, and we lost any hope.”
Whether hope is revived for the surviving Croatian Six and the Croatian-Australian community may become apparent after counsel assisting Trish McDonald SC makes her written submission in mid-December, counsel for the petitioners and other parties write submissions in reply, and then all make final oral submissions in the open inquiry over 5–7 March. Forty-six years after the events under scrutiny, it will then be up to Acting Justice Robert Allan Hulme. •
► Hamish McDonald’s account of his involvement in the successful effort to reopen the case
