THE CROATIAN SIX: AN AUSTRALIAN GROSS MISCARRIAGE OF JUSTICE

Reasonable Doubt:  Spies, Police and the Croatian Six

Author: Hamish McDonald

• Publisher: Doosa Press, 2019
• ISBN:  978 0 646 99896 – 1
• RRP: $30

Reviewed by Gerard Henderson

Anyone who believes that the police, prosecutors, juries and judges always get it right would be well advised to read journalist Hamish McDonald’s Reasonable Doubt.  Likewise those who believe that we can rely on the judgment of senior politicians, public servants and intelligence officials.

In fact, the book’s title is something of a misnomer. Sure, the jury in this case should not have found that the accused were guilty beyond reasonable doubt. Rather, the evidence indicates that they were framed by corrupt police in what is one of the most serious miscarriages of justice in Australian legal history.  In short, the Croatian Six were innocent.  But, as the author states early in the book: “White and Catholic, they were seen as the terrorists of the era.”

But first, some background.  In 1979 Croatia was part of the federation of Yugoslavia – which included Serbia, Slovenia, Macedonia, along with Bosnia and Herzegovina. The nation was a brutal communist dictatorship led by Josip Broz Tito (1892-1980) who presided over a highly efficient secret police – the UDBA. The UDBA was not unlike the East German Stasi. Moreover, the UDBA was intent on projecting power outside of Yugoslavia by targeting opponents of Tito’s regime.  Particularly anti-communist Croatians living in the West.

On 8 February 1979, NSW Police – under the leadership of the corrupt policeman Roger Rogerson (who is currently serving time for murder) – raided a house in the Sydney suburb of Burwood.  Several Croatian Australians were arrested and charged with conspiracy to commit terrorism in Australia.  There were other raids in Sydney that night.  All up, Maks Bebic, Vjekoslav Brajkovic, Mile Nekic, Ilija Kokotovic, Joseph Kokotovic and Anton Zvirotic faced court – the Croatian Six.

On the morning of 8 February 1979 Vico Virkez, who claimed to be a Croatian Australian, had phoned the Yugoslav consulate in Sydney advising that several of his colleagues were planning terrorist attacks that night in Sydney.  The consulate – which housed many UBDA operatives – informed NSW Police. Virkez was living in Lithgow at the time.

The evidence in Reasonable Doubt indicates that NSW Police members made up the accused’s confessions – none of which were signed.  They also attacked one of the accused who bore visible injuries. In short, the Croatian Six were framed.

In the late 1960s and into the 1970s there were several attacks on Yugoslav property in Australia – most of which resulted in very little damage. However, one bombing outside a travel agency in Sydney owned by the Yugoslavian government injured 18 passers-by, two seriously.  The Australian Intelligence and Security Organisation (ASIO) – and on at least one occasion NSW Police – were of the view that most, if not all, of these attacks were “false flag” attacks.  Meaning that they were undertaken by UDBA agents in Australia in an effort to discredit Croatian Australians who opposed the Tito regime.

This was not the view of the Labor Party, which was in opposition until Gough Whitlam led it to an election victory over William McMahon’s Coalition in December 1972.  In the lead-up to the change of government, the left-wing of the Labor Party – in particular Lionel Murphy and Jim Cairns – clashed with the Coalition’s attorney-general Ivor Greenwood over this matter.  Whitlam supported the position taken by Murphy and Cairns.

The likes of Murphy and Cairns did not much like Catholics or anti-communists. Croatians happened to be both.  Not long after the Whitlam government came to office, Murphy, who was attorney-general, led a raid late one night on the ASIO office in Canberra – followed by another raid early the following morning on ASIO’s national headquarters in Melbourne.

Murphy was convinced that ASIO was covering up Croatian terrorism.  It wasn’t. Murphy’s career was effectively finished at this point.  He was appointed by Whitlam to the High Court of Australia in February 1975.  However, the hostility engendered towards Croatian Australians was still extant when Roger Rogerson broke down the front door at 9 Livingstone Street in Burwood just over four decades ago.

The trial of the Croatian Six opened on 14 April 1980 in the NSW Supreme Court.  All six were charges of conspiracy to set off explosives of a kind that would damage property and engender life.  It was alleged that the targets included the Elizabethan Theatre in Newtown (which was to hold a concert to be attended by 1500 people) along with Sydney’s water supply.  The trial lasted for ten months, following which the jury deliberated for 68 days.  The prosecution’s case essentially rested on the confessions of the Croatian Six – all of which were unsigned.  It is now widely accepted that it was not uncommon for NSW police (and other police forces) at the time to verbal the accused, invent interviews and construct statements.

In Reasonable Doubt, Hamish McDonald makes a convincing case that the trial judge Adam Victor Maxwell, who was educated at Knox Grammar and Sydney Church of England Grammar School in Sydney, was hostile to the accused both during the trial and in his summing up.  All six defendants were sentenced to 15 years jail with a non-parole period of 10 years.

When the Croatian Six case went to the NSW Court of Criminal Appeal (October 1982) the senior judge – Gordon Samuels – happened to be one of Maxwell’s closest friends.  All three appeal judges dismissed the case.  Subsequently, the High Court (March 1986) threw out the appeal after deliberating for about ten minutes. The Croatian Six were released on parole in 1989 – after serving their minimum terms (which commenced when they were arrested in 1979).

And so it came to this. Six Croatian Australians were convicted of planning to commit terrorist acts without a confession and in the absence of any compelling forensic evidence.  Moreover, the case against the Coalition Six was over-the-top.  The Crown alleged that the accused planned to blow up the Elizabethan Theatre in Sydney where a popular band was playing and to attack Sydney’s water supply.  It was not at all clear why the Croatian Six would have believed they could engender support for their cause by an act of mass murder directed at their fellow Australian citizens and residents.  All members of the Croatian Six supported independence for Croatia.  Their enemy was Tito’s regime in Belgrade – not Australia.

Nevertheless, a jury found the Croatian Six guilty beyond reasonable doubt.  The trial judge indicated that he agreed with the verdict.  The NSW Court of Criminal Appeal found that the verdict was safe. And the High Court of Australia declined to become involved.

In 1991, ABC TV presenter Chris Masters interviewed Vico Virkez – who had returned to Yugoslavia a decade earlier while the Croatian Six case was underway. Virkez – who was living in Serbia, not Croatia – told Four Corners that he was not a Croat and had given false evidence at the trial.  In other words, he was an agent of the UDBA engaged in a “false flag” operation against Croatian Australians. That’s nearly three decades ago – and nothing much has happened since.

In 2016, John Blaxland and Rhys Crawley completed The Secret Cold War – the third volume of ASIO’s official history. The authors concluded that the Croatian Six were the victims of “a wrongful conviction”. John Schindler, formerly with the US National Security Agency, has said that the conviction of the Croatian Six was probably one of the most successful agent provocateur operations conducted by Tito’s secret police.

The NSW Court of Criminal Appeal and the High Court of Australia made their determinations before Vico Virkez told Four Corners that he was not a Croatian and that he told the trial of the Croatian Six what NSW Police had instructed him to say lest he be charged with a similar serious crime.  Virkez served a short term for a less significant crime at a trial presided over by Justice Maxwell.  He was given early bail and allowed to leave Australia, never to return.

In 1984, Labor attorney-general Gareth Evans and his successor Lionel Bowen refused requests to re-open the case. In July 1994, the NSW executive council refused applications from the Croatian Six for an inquiry into their convictions.

In 2010 the Australian government issued a White Paper on Counter-Terrorism, covering all terrorism attacks and failed terrorist plots in Australia going back to 1970.  The case of the Croatian Six was not even mentioned.  However, in August 2012 Nicola Roxon, the attorney-general in Julia Gillard’s Labor government, declined to refer the matter of the Croatian Six to the Inspector-General of Intelligence and Security.

In 2012 the matter was referred to the NSW Supreme Court which commissioned Graham Barr to investigate the matter.  He was unable to locate transcripts from the trial (McDonald easily obtained this material for his book) and relied very much on the findings of Gordon Samuels and others in the NSW Court of Criminal Appeal.  It was a hopelessly inadequate investigation.

There was an extremely strong case for another review of the case of the Croatian Six before the publication of Reasonable Doubt. However, it has become stronger following McDonald’s research for this book.  Hamish McDonald located a minute from a senior member of NSW Police arguing that an ASIO document which named Virkez of having connections with an “intelligence official attached to the Yugoslav Consulate-General in New South Wales”.  The minute was written on 28 February 1979 – less than three weeks after Rogerson burst into the Burwood residence.

The document, prepared by the Commonwealth Government’s special Inter-Departmental Committee for Protection Against Violence (SIDC-PAV) on 28 February 1979, regarded what came to be called the Croatian Six Case, as revealing “the depth of the penetration of Croatian extremist groups by the YIS [Yugoslavian Intelligence Service] in Australia”.  In other words, the SIDC-PAV did not believe Virkez’s claim.

In a document dated 14 March, the NSW Police’s assistant commissioner Roy Whitelaw urged that the SIDC-PAV document not be shown to the Croatian Six’s defence since “it could blow a hole right through the police case”.

These documents, produced for the first time in Reasonable Doubt, are emphatic evidence that the Croatian Six were subjected to a gross miscarriage of justice in that they were denied access to crucial evidence of help to their case.  All victims of this injustice are still alive.  It is not too late for the case to be re-opened by the NSW or Commonwealth governments – or both.

Reasonable Doubt is not an easy book to read as it moves from the Australian legal system to life in Yugoslavia – before during and after Tito – and back to the Australian legal system.

However, Reasonable Doubt is the most important book published in Australia for many years.

The evidence suggests that – in view of the anti-Croatian sentiment prevailing in Australia at the time which was driven by a hostile media – the Croatian Six did not receive – and could not have received – a fair trial.  It’s time to address the errors of the NSW Supreme Court and the NSW Court of Criminal Appeal close to half a century ago.  Hamish McDonald’s compelling study explains why.

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Gerard Henderson is Executive Director of The Sydney Institute and the author of, among others, Menzies’ Child: The Liberal Party of Australia (2nd edition, HarperCollins 1998); Santamaria – A Most Unusual Man (MUP 2015).

Gerard Henderson’s review of Tony Jones’ The Twentieth Man (Allen & Unwin) was published in The Sydney Institute Review Online under the heading “Tony Jones Re-runs The Left’s 1970s Sectarian Attack on Croatian Australians”.