Croatian Six conspiracy ‘kept away from Malcolm Fraser’

A conspiracy by high-ranking officials stopped Malcolm Fraser from being alerted to an extraordinary plot to pervert the course of justice.

Vico Virkez on a farm in Yugoslavia in 1991. Source: ABC / Four Corners

A conspiracy by some of the ­nation’s highest-ranking officials 42 years ago stopped then prime minister Malcolm Fraser from being alerted to an extraordinary plot to pervert the course of justice, which ended with six men jailed for 10 years, according to Fraser’s senior legal adviser.

In a briefing note revealed by The Australian on Wednesday, senior commonwealth lawyer Ian Cunliffe wrote to Fraser ­advising him that a key witness in the terrorism trial of the so-called Croatian Six was an agent of the Yugoslav government.

However, Mr Cunliffe has told The Australian the brief was never delivered to Fraser, on the orders of Prime Minister’s ­Department deputy secretary J.D. Enfield.

“It was a conspiracy at the highest levels,” Mr Cunliffe said. “Acting on the information was something I believed we should do but it was very firmly rejected; it was vetoed by people with more power and authority than me. Mr Enfield was very clear: the prime minister must not be informed.”

The briefing note revealed by The Australian

Mr Cunliffe had wanted to alert Fraser after a NSW jury was told “there is not a skerrick of evidence” that the witness, Vico Virkez, was a foreign agent.

Mr Cunliffe’s briefing note warned the prime minister: “The Australian Federal Police believes Mr Virkez has been operating in Australia as an agent of the Yugoslav government … for tactical reasons, the NSW ­authorities want Mr Virkez to be convicted.”

The NSW authorities wanted the commonwealth’s help in ­allowing Virkez to be deported ­instead of jailing him.

But Mr Cunliffe advised: “Clearly the commonwealth cannot be part of such a deal.”

Another version of the unsigned letter carries a notation by a second senior government lawyer sharing Mr Cunliffe’s concerns: “Ian, I believe we should put this note up ASAP: we are being drawn into the area of ‘shady deals’ and the PM should know the risks. I believe he would react as I have proposed.”

But the prime minister was kept in the dark, Mr Cunliffe says.

Testimony by Virkez, who was freed after the trial, was used to convict all six Croatians of terrorism, with sentences of 10 years or more in prison.

“They preferred to see innocent people convicted rather than have anything which might disclose that there had been involvement with somebody who was a Yugoslav intelligence service who was trying to pull an agent provocateur stunt,” Mr Cunliffe said.

In another letter marked “Secret” and obtained by The Australian Mr Cunliffe wrote to Enfield on February 10, 1981, the day after the conviction of the men, pointing out his concern that the court had been misled about Virkez.

In response, a handwritten ­notation on the file says: “I do not accept this conclusion.”

Another notation at the top of the brief says: “The PM has not been involved so far and is not to be involved.”

Mr Cunliffe says the signature on each of the notations is that of Enfield, who is no longer alive.

“They preferred the commonwealth stay out of it – it was a NSW issue,” Mr Cunliffe said. “It’s a matter for the NSW authorities what they do. But I as an ­officer of the Supreme Court of NSW thought that was abominable.”

the Croatian Six – Max Bebic, Vic Brajkovic, Tony Zvirotic, Joe Kokotovic, Ilija Kokotovic and Mile Nekic. Pictures: ABC

The dramatic development comes as NSW Supreme Court judge Robertson Wright considers whether a judicial review should be held into the convictions of the six men, all still alive. Thousands of pages from the original trial – then the longest-running criminal trial in the country – have been digitised in anticipation of a review. A decision is expected this year.

The fresh legal action followed the publication of a book, Reasonable Doubt, by journalist Hamish McDonald, and an application by Sydney barrister Sebastian De Brennan to the NSW Chief Justice. Mr Cunliffe has also tried for years to have the case properly investigated.

Mr Cunliffe welcomed the inquiry and said he would appear to give evidence if asked.

The cover-up by NSW police and commonwealth government officials is revealed in a National Archives file of 252 documents containing letters between ASIO, the AFP and the prime minister’s office. The documents trace the behind-the-scenes drama from February 1979, when NSW authorities arrested the Croatians for conspiracy to commit terror offences on the basis of unsigned confessions and the testimony of an “inside informant” – Virkez - who had walked into a police station in the NSW coalmining town of Lithgow and accused the men of wanting to set off bombs throughout Sydney.

Police arrested the six men: Max Bebic, Vic Brajkovic, Tony Zvirotic, brothers Joe and Ilija Kokotovic and Mile Nekic. They seized explosives and other incriminating evidence – from Virkez’s home and car.

The next month – still a year before the trial – ASIO informed NSW police that Virkez was a ­Yugoslav spy, masquerading as a Croatian nationalist to discredit the Croatian community in Australia. He had been in regular contact with an officer of Yugoslavia’s secret service, the UBDA, based at the country’s Sydney consulate.

In the end, Virkez, whose testimony sent the six men to jail for a decade, was handed a two-year sentence. Soon after his release, he was deported to Yugoslavia where he lived as a free man.

Tracked down by the ABC in Bosnia and Herzegovina, Virkez admitted his evidence of the bomb plot had been false and that he had been coached in what to say in court by NSW police.