Oral testimonies from more than twenty-five former policemen, security officials and lawyers pulled out of retirement; fifty-three huge folders bulging with documents extracted from government and judicial archives — this is the evidence gathered by the judicial inquiry attempting to decide once and for all whether six Croatian-Australians sensationally convicted of conspiracy in the NSW Supreme Court forty-four years ago were justly treated.
When final submissions were made to the inquiry last week, however, a surprising crack had appeared in the official line that all six men were guilty.
The saga began in February 1979 when a man named Vico Virkez walked into the police station in Lithgow, a small NSW town on the western side of the Blue Mountains. He claimed to be part of a conspiracy by Croatian extremists to plant bombs around Sydney that night.
Ultra-right Croatian nationalists were already suspected of having bombed a Yugoslavian travel agency in Sydney and were known to have engaged in military training on the NSW south coast, so the police were attuned to the possibility of more violence.
Virkez was told to go home, act normally, and wait. Sydney police soon arrived, found crude gelignite bombs in his car, and arrested him. They also arrested Virkez’s tenant, a Croation named Maks Bebic.
Acting on Virkez’s information, police raided two other homes in Sydney — and in each case found half-sticks of gelignite in the possession of another five Croatian Australians: Joseph Kokotovic, Ilija Kokotovic, Mile Nekic, Anthony Zvirotic and Vic Brajkovic. Interrogated at the police’s Central Investigation Branch in central Sydney, the five men confessed to the bomb plot. Back at the Lithgow police station, Bebic had confessed as well.
The case against the Croation Six first came to my notice during a coronial inquiry into a different matter in 2007. I delved into it further for the Sydney Morning Herald and eventually published a book, Spies, Police and the Croatian Six, making the argument that ASIO had withheld evidence that would have exonerated all six of the men.
Until last week, the official line at the inquiry maintained otherwise. But then, at the final hearing, counsel assisting the inquiry delivered a bombshell recommendation to the presiding judge, retired Supreme Court justice Robert Allan Hulme.
According to the pair — barristers Christine Melis and Tali Epstein — there was now “reasonable doubt” about the guilt of the Kokotovic brothers and their in-law Nekic, each of whom had been apprehended in the Sydney suburb of Burwood. But they maintained that the case against Bebic, Zvirotic and Brajkovic still stands up.
Proving who had possession of the gelignite allegedly found at the Kokotovic residence would be difficult, Melis and Epstein argued, and the “admissions” said to have been recorded but not signed around midnight at the CIB were suspect. “When these interviews are compared, they read very similarly to one another, raising a suspicion that they were constructed by police.”
Indeed, the whole case was clouded by problems. “Aspects of the investigation and prosecution into the members of the Croatian Six were affected by procedural irregularities and police misconduct,” they said. “There are inconsistencies in the evidence and starkly contrasting accounts that must be weighed in the balance when assessing the totality of the evidence.”
Making sense of all this was quite balancing act for the duo — as it will for the judge. (Submissions by counsel assisting often give a clue to an inquiry’s eventual finding, but that’s not always the case.) Barristers representing the NSW police commissioner, the individual police involved in the arrests, and the NSW director of public prosecutions have all argued against any doubts about any of the convictions. Barristers representing three of the Croatian Six (Bebic, Brajkovic and the late Mile Nekic, who died in 2022) have argued the opposite.
Melis and Epstein’s account of the case involves playing down evidence contained in a 1991 Four Corners interview with Virkez — who became the main Crown witness against the Croatian Six — by investigative journalist Chris Masters. Rather than being Croatian, Virkez turned out to be a Bosnian Serb named Vitomir Misimovic. He had infiltrated Croatian activist circles under the Croatian name Vico Virkez, he said, and fabricated the bombing conspiracy out of loyalty to Yugoslavia.
He also claimed to have been “blackmailed” into testifying for the Crown with threats to upgrade separate charges against him and deport him to Yugoslavia. He was sent back to Yugoslavia some months after giving evidence in 1980 and died there in 2014.
But Melis and Epstein found his evidence that he had been drawn into a conspiracy driven by Bebic, Brajkovic and Zvirotic “truthful and reliable.” They also accepted assessments by the Australian Security Intelligence Organisation and the Australian Federal Police that Virkez had been a mere “informant” to the Yugoslavian Intelligence Service rather than an “agent” under its direction or its “agent provocateur.”
“The inquiry should accept that Virkez insinuated himself in the company of the Croatian Six in Sydney for the purpose of informing on their movements to the Yugoslav Consulate,” Melis and Epstein said. “However once part of that group, he was brought into a genuine conspiracy of the type he described. There is nothing that casts doubt on the overall veracity of his account.”
The case against Vic Brajkovic involved further delicate steps on the highwire. At the 1980–81 trial, Justice Victor Maxwell threw out the admissions police said Brajkovic had made at his CIB interview after learning that doctors and a nurse at Long Bail Jail reported clear signs that he been bashed before he arrived there the next day. Yet a police internal affairs report on Brajkovic’s complaint about the bashing found plausible the claim by four police officers that Brajkovic had submitted himself to assault by the other accused men in the paddy wagon on the way to jail in order to blacken the reputations of the police.
This “collusion,” along with the medical evidence of an assault the officers still deny, “casts doubt” on the testimony the four police gave “both at trial and before this inquiry,” said counsel assisting. The detective-sergeant in charge of the raids, who arrested Brajkovic at his fibro-bungalow on the fringes of Sydney, must also have known about the assault but still denies it.
Counsel assisting also found that a detective from the special branch (the police’s secretive intelligence-gathering agency at the time) who accompanied the arresting police had later substituted a page in his statement to declare that, yes, he had seen a white plastic bag at the house said to contain gelignite.
Nonetheless, they observed that “the unreliability of their evidence in one area does not necessitate a conclusion they were unreliable in all regards.” Even if two of them were falsely claiming that Brajkovic said, “Yes, I make bomb,” when he was confronted with the bag’s contents at his house, four others of the ten police at the Brajkovic house remained untainted. Of the four, though, two were out in the yard at the time, and only one of the other two was invited into Brajkovic’s workroom (and still says he saw the white plastic bag and caught a glimpse of its contents).
Another difficulty for counsel assisting was accounting for the fact that the Crown prosecutor in the trial, the late David Shillington QC, assured the jury there was “not a skerrick of evidence” that Virkez was any kind of Yugoslav spy. This was despite assistant police commissioner Roy Whitelaw learning in March 1979 that ASIO phone taps had revealed Virkez was in touch with a suspected intelligence service officer at the Yugoslavian consulate during the six months before the arrests. Whitelaw told ASIO he was worried this would “blow a hole” in the police case if details of the phone taps got to the “opposition,” meaning the defence.
In the end, they didn’t. But Shillington and Whitelaw, along with Ted Turner, the police detective-sergeant running the prosecution brief, are long dead, so where this ASIO information stopped remains unclear. Roger Cavanagh, a federal police intelligence official, assured a Canberra committee just ahead of the trial that Shillington was “fully informed” about the taps — but Cavanagh is dead too.
In fact, only two links in this information trail are still alive. The first of them is Alistair Milroy, a CIB detective at the time, who took part in the raid in Lithgow that hauled in Virkez and his lodger Bebic. Later, as Turner’s offsider in putting together the police brief, he went to Canberra with Turner ahead of the trial to talk to senior federal police officials about Virkez. He also took part in consultations with Shillington and his team, at least one of them involving the federal police intelligence man Cavanagh.
The other living link is Victor Jefferies, whose brief with the special branch was to watch Croatian groups. He was active in advising the CIB in the hours after Virkez’s tip-off, and helped arrest Zvirotic at his boarding house in Ashfield that evening. Two days after the arrests, he went to Lithgow and interviewed Virkez. He quickly discovered Virkez was Serbian, had another name, was in touch with the Yugoslav consulate and was an ardent Yugoslavian. Jefferies wrote a four-page report, presumably including this important information, which he later showed to Turner. At the inquiry he acknowledged he would have seen the ASIO report on the phone taps.
None of this information surfaced at the committal hearing or the trial. Jefferies testified that his meeting with Virkez had told him “nothing new”; his written report can no longer be found. At the current inquiry he couldn’t explain why he had suppressed what he knew in court.
Jefferies denied having been under pressure from his special branch superiors to withhold the information from the court, though he told the inquiry that earlier incidents blamed on Croatian extremists meant that police couldn’t be seen to “squib or fail to act” on Virkez’s information or ignore the explosives found in his car in Lithgow.
Given the “cogent” evidence that NSW Police were aware of Virkez’s ties, counsel assisting said that grounds existed for a finding that the ASIO information received by Whitelaw was withheld from the appeals court on subpoena. “This decision may have emanated from special branch, as Jefferies was responsible for answering the subpoena,” they said. “There is no other credible explanation as to why the report was not produced on appeal and the denials by Jefferies that this was the intention should not be accepted.”
The withholding of that evidence went all the way up to the top, namely the Crown prosecutor. “On balance,” Melis and Epstein believe, Justice Hulme is entitled to conclude that Shillington was aware of Virkez’s ties to the Yugoslav Consulate. Given that Cavanagh, the federal police official, was not called because they knew what he knew, “it is open to the inquiry to find that a deliberate decision was made not to call evidence from Cavanagh because of what might have been revealed about Virkez’s connections to the Yugoslav Consulate.”
Catherine Gleeson, counsel for the NSW police commissioner, argued that it was not possible to attribute to Whitelaw any motive to conceal, and that Shillington received all relevant evidence but may have concluded the Virkez link to the Yugoslavian Intelligence Service was too slight to mention. “In his absence, no finding is available as to whether he consciously breached his obligations [of disclosure] in this regard,” Gleeson said. And it was unlikely, she added, to have swayed the guilty finding anyway.
Peter Melikan, representing ASIO and the Department of Prime Minister and Cabinet, likewise played down the extent of Virkez’s intelligence links, pointing to documents and notes made in the 1980s that downgraded him from agent to occasional informant. A former federal government lawyer, Ian Cunliffe, has testified that he queried Shillington’s “not a skerrick” comment during this period but didn’t getting much traction among federal Attorney-General’s Department officials.
Melikan’s submission was also notable for his attack on the view expressed in the third volume of The Official History of ASIO that the Croatian Six case was a “wrongful conviction.” Like counsel assisting, Melikan argued that little weight should be placed on Blaxland and Crawley’s contention: “While those remarks evidently reflect the opinions of the authors of The Official History, they are not supported by the evidence before the inquiry, which includes a large volume of ASIO material,” he said. (The book’s two authors, ANU military historian John Blaxland and the Australian War Memorial’s Rhys Crawley, had unfettered access to ASIO’s archives, and the text of their book was vetted and approved by ASIO.)
The inquiry’s counter-narrative came from David Buchanan and Sebastian de Brennan, counsel for the Croatian Six, who have been backed by Croatian community funds and a lot of pro bono work. They pointed to the lack of independent corroboration across much of the evidence. The police had not photographed the gelignite allegedly found at the three Sydney locations, if it was there at all, and had not tested it for fingerprints. Despite being told by Virkez that between 30 and 50kg of gelignite was readied in Sydney, the investigating officers didn’t take the obvious precaution of calling in army experts, clearing neighbourhoods, or searching thoroughly for other explosives after finding only small amounts in the three houses. Those quantities could easily have been planted from a CIB “stash.”
The police bashed the suspects and fabricated their admissions, argued Buchanan and De Brennan. Officers’ statements were then coordinated by arresting squad sergeants in corrupt collusion. Some of the targets listed by Virkez — a water pipeline into Sydney and a district water tank — were “incongruous” given Croatian militant activity had hitherto been directed at Yugoslavian government agencies rather than the community more broadly, which would hardly have helped their cause.
Nor was it clear that Bebic actually possessed the large amounts of gelignite found in Lithgow. He had certainly helped steal it from a construction site, believing it was to be used on an opal-mining trip to South Australia with Virkez. But it was Virkez who had control of it and used it to form the crude packages described as bombs. Bebic had identified the three Burwood men as co-conspirators only after being told to do so by Turner, who used names probably supplied to him by special branch. At the trial, Justice Maxwell then switched the onus of proof by telling the jury it was the word of the six accused, who had a motive to exonerate themselves, against the word of thirty-nine police who showed “detached competence” in the witness box.
The case, according to Buchanan and De Brennan, was a large-scale illustration of what Justice James Wood called “noble cause” or “process” corruption in his epic 1996–97 royal commission into the NSW police. In the eyes of the special branch, the Croatian Six were radical troublemakers. Here was a chance to put them away.
“Anything the CIB detectives heard especially on the night of 8 February from special branch, directly or indirectly, would only have fortified their disgust at what would have been seen as these terrorists and what they had been planning,” Buchanan and De Brennan went on. “Once Virkez had sown the seed of the idea that there was a ‘terrorist ring,’ it likely fell on entirely fertile ground — first and most importantly at Special Branch… and secondly at the elite squads of the CIB.”
Shillington’s “not a skerrick” remark contributed to the unfairness of the trial, they said. “Ultimately, what caused a miscarriage of justice was the NSW Police failure to disclose — the Petitioners would say it was more serious: the NSW Police decision to conceal — the knowledge, largely derived from Jefferies — that Virkez had a motive or motives of his own to serve.”
That was the point at which Whitelaw considered that revealing Virkez’s real motive “could blow a hole right through” the prosecution case. “Not only would the information have discredited Virkez,” they said. “It would have discredited the whole Crown case because what Virkez had told NSW Police was the catalyst for almost everything NSW Police subsequently did and said, and because the police had tried to conceal it.”
In the closing stages of last week’s hearings, De Brennan turned his attention to Roger Cavanagh, the Federal Police intelligence official so assiduous in downplaying Virkez’s connections of the Yugoslavian Intelligence Service. Cavanagh’s work had focused since the early 1970s on alleged Croatian extremism, and in 1973 he had helped raid a Sydney house occupied by Joseph Kokotovic. Yet Federal Police representation and Federal Police documents from the 1970s have been curiously absent from the inquiry.
What is Acting Justice Hulme to make of all this? Throughout the inquiry he has shown a lively and sometimes sceptical engagement with the witnesses, and occasionally pulled up the various counsel. When the police commissioner’s lawyer Gleeson endorsed the counsel assisting’s lavish praise for ex-detective Milroy’s credibility, Hulme butted in. “No one should assume I am of the same mind about his credibility,” he said, quickly adding: “Not saying I’m not.”
Hulme has lamented the fact that the legislation governing such inquiries, the Crimes (Appeals and Review) Act of 2001, expressly excludes the power to compel witnesses to answer questions in return for immunity from self-incrimination. Counsel assisting agreed this needs a legislative fix. “Attempts made by the inquirer to expedite legislative reform to address the legal lacuna reached an impasse,” they reported. (NSW attorney-general Michael Daley has been asked for comment.)
The legislation gives the inquiring judge power to decide whether reasonable doubt exists about the guilt of those making the appeal and by extension the other three, and then send his conclusions to chief justice Andrew Bell. If Hulme does find reasonable doubt he can also refer the case to the Court of Criminal Appeal for a decision on whether the conviction should be quashed, a retrial being out of the question after all this time.
Hulme can also report to the chief justice any finding of a miscarriage of justice: for instance, a finding that the withholding of vital evidence robbed the accused of a fair trial. In such a case, the Supreme Court might recommend that the state governor grant a pardon under royal prerogative.
With a mountain of evidence to assess, Hulme will probably take many months to prepare his findings. Before closing the hearings, he said he would give as full an account of the case as he could. Because it concerns events forty-six years ago, with some key participants dead, living memories clouded and “powerful arguments pulling in opposite directions,” some of the controversies might be unravelled but others not. “This inquiry is unlike any other that I can recall.”
Three days later federal and state police announced that a large stash of gelignite left with a list of Jewish institutions in a roadside caravan in outer Sydney was part of a fake plot set up for organised crime figures to reveal to authorities so their jail terms could be cut. Police suspected some such plot within days of the discovery on 19 January, but that didn’t stop competitive displays of outrage and calls for stronger anti-terrorism laws from government and opposition politicians. In this case, the police spotted a con job and said so. •
► Hamish McDonald’s account of his role in the successful effort to reopen the case
