543-page report<\/a> and a similar-sized volume of annexures. Having followed the campaign for the men\u2019s exoneration for nearly twenty years, I was puzzled by some of his assessments \u2014 especially on the question of ASIO\u2019s role in a likely miscarriage of justice \u2014 and the weight he has given to certain testimony.<\/p>\nHulme 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\u2019s having told the ABC\u2019s Chris Masters on camera in 1991 that he made most of it up \u2014 an admission he later repeated to the Sydney Morning Herald\u2019s Paul McGeough. Virkez returned to Yugoslavia after giving evidence, without punishment by its authorities, and died in 2014.<\/p>\n
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 Ustas\u030ce 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.<\/p>\n
\u201cThe evidence does not support the contention that Virkez held considerable animus towards Ustas\u030ce 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,\u201d Hulme found. The judge did not address the evidence that Virkez did indeed hold considerable animus towards Ustas\u030ce Croatian organisations, nor his animus towards one of the Croatian Six in particular, Vjekoslav Brajkovic.<\/p>\n
The allegation that Virkez \u201cplayed or held a higher role, such as an \u2018agent provocateur\u2019 either in the traditional or confined sense, cannot be sustained,\u201d writes Hulme. \u201cIn his role with the Yugoslav consulate, Virkez is best described as an \u2018informant\u2019 or \u2018source.\u2019 If he is to be considered any sort of \u2018agent,\u2019 the qualifying term used by Cavanagh of \u2018low-level\u2019 is apt.\u201d<\/p>\n
Hulme grants that Virkez \u201cremains a controversial character and there is a lot that remains unknown or is unclear about his background.\u201d 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 \u201ccore subject\u201d of the bombing conspiracy, Hulme concludes that Virkez\u2019s account was supported by the call he made to the consulate just before tipping off the NSW police. \u201cThe call was, in effect, a plea for help and advice; he said, \u2018I am in some sort of trouble,\u2019\u201d he writes.<\/p>\n
The judge argues that his evidence is \u201cnot 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\u2019 case, they are replete with inaccuracies and inconsistencies that deny them credibility.\u201d<\/p>\n
This interpretation of Virkez\u2019s 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.<\/p>\n
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 \u201cASIO\u201d and told to speak to a \u201cKavanagh.\u201d Had Cavanagh been running Virkez as a source himself? It\u2019s an intriguing thought.<\/p>\n
Nor did Hulme take up the contention of the lawyers for the Croatian Six that the Wood royal commission\u2019s 1994 finding that systemic \u201cprocess corruption\u201d 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 \u201cadmissions\u201d some of the accused allegedly made to the CIB after their arrest.<\/p>\n
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. \u201cIt cannot be known whether the exclusion of the power of compulsion did in fact work to conceal such evidence,\u201d he said.<\/p>\n
Hulme did find several police officers involved in Brajkovic\u2019s 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\u2019s complaint. (The branch accepted the officers\u2019 concocted explanation for his injuries: that he, with help from other accused, had inflicted injuries on himself to discredit police.)<\/p>\n
Nor did the police take proper precautions for the potential discovery of massive amounts of explosives in their raids. \u201cIndeed, by today\u2019s standards, the nonchalant way police acted on intelligence that there might be \u201830\u201350kg of explosives at an undisclosed location\u2019 was rather extraordinary,\u201d Hulme said. \u201cHowever, 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 \u2018was in all likelihood a product of a cavalier attitude that prevailed at the time and nothing more sinister.\u2019\u201d<\/p>\n
Hulme was highly critical of Special Branch officer Victor Jefferies for withholding his knowledge of Virkez\u2019s Serb background and Virkez\u2019s anti-Croatian views, and for endeavouring to keep his Yugoslav consulate link hidden from the committal hearings of the charges against the Croatian Six.<\/p>\n
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 \u201cstash\u201d of incriminating items kept by the CIB squads to \u201cload up\u201d suspects.<\/p>\n
But when he discusses the convictions of the Kokotovic brothers and Nekic \u2014 arrested at the same house with sticks of gelignite on a desk at which they were preparing leaflets, according to police \u2014 he finds it unclear who possessed the incriminating items. He considers their alleged admissions of joint possession in the CIB \u201cinterviews\u201d 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.<\/p>\n
It is when he turns to the main new evidence that led to the inquiry \u2014 the evidence of ASIO involvement \u2014 that Hulme leaves a huge gap in accountability.<\/p>\n
ASIO records declassified in 2018 reveal that the security service was tapping telephones at the Yugoslav consulate and monitoring Virkez\u2019s 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 \u201cfor 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.\u201d The plot revealed \u201cthe depth of the penetration of Croatian extremist groups by the YIS in Australia.\u201d<\/p>\n
This report went to top NSW police and the Special Branch. In follow-up exchanges with ASIO, then assistant police commissioner Roy Whitelaw said \u201cif the opposition [ie the six men\u2019s defence team] became aware of this information it could blow a hole right through the police case.\u201d 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.<\/p>\n
As a result, the crown prosecutor, the late David Shillington QC, was able to assert, unchallenged, that there was \u201cnot a skerrick of evidence to suggest that [Virkez] was some sort of undercover agent, an UDBa or Yugoslav representative.\u201d<\/p>\n
Hulme\u2019s inquiry tried to find out whether ASIO\u2019s 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: \u201c[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.\u201d<\/p>\n
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 \u201cit would be almost automatic that there would be a miscarriage of justice.\u201d<\/p>\n
Hulme\u2019s 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 \u201ccould 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,\u201d helpfully citing a recent case.<\/p>\n
\u201cHowever,\u201d Hume went on, \u201cthe 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\u2026 The unavailability to the defence of information and evidence concerning Virkez\u2019s 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.\u201d<\/p>\n
Hulme circled the subject again in his conclusion, where he referred to \u201cfailings\u201d in the disclosure of information about Virkez\u2019s association with the Yugoslav consulate and loyalty to Yugoslavia. \u201cThe extent of what was known and should have been passed on is not entirely clear,\u201d he wrote, \u201cbut there is no doubt that there was a denial of some probative \u2018ammunition\u2019 that could have been effectively deployed in cross-examination of Virkez.\u201d<\/p>\n
This non-disclosure, he went on, \u201carguably 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.\u201d He repeated his reference to a recent High Court ruling to this effect.<\/p>\n
It is puzzling that Justice Hulme didn\u2019t 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).<\/p>\n
The procedures drag on. Of the three exonerated, Mile Nekic has died and the Kokotovic brothers didn\u2019t 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. \u2022<\/p>\n
\u25ba Hamish McDonald\u2019s account of his involvement in the successful effort to reopen the case<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"The closing submissions of counsel assisting any judicial inquiry or royal commission often give a clue to the…\n","protected":false},"author":2,"featured_media":46393,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[8964,1047,11091,247,8312,34680],"class_list":["post-46392","post","type-post","status-publish","format-standard","has-post-thumbnail","category-sydney","tag-history","tag-police","tag-security","tag-sydney","tag-terrorism","tag-the-law"],"_links":{"self":[{"href":"https:\/\/www.europesays.com\/australia\/wp-json\/wp\/v2\/posts\/46392","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.europesays.com\/australia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.europesays.com\/australia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/australia\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/australia\/wp-json\/wp\/v2\/comments?post=46392"}],"version-history":[{"count":0,"href":"https:\/\/www.europesays.com\/australia\/wp-json\/wp\/v2\/posts\/46392\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/australia\/wp-json\/wp\/v2\/media\/46393"}],"wp:attachment":[{"href":"https:\/\/www.europesays.com\/australia\/wp-json\/wp\/v2\/media?parent=46392"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.europesays.com\/australia\/wp-json\/wp\/v2\/categories?post=46392"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.europesays.com\/australia\/wp-json\/wp\/v2\/tags?post=46392"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}