Miscarriage of justice … Justice Robertson Wright, Julius Caesar expert, to examine the 1981 Croatian Six trial … Third time lucky … Prosecution failed to disclose conflicted role of chief crown witness … From our Balkan affairs correspondent 

Now chief justice Andrew Bell has plunged him into a bloody field of criminal law and official secrets – in a case delving into the behaviour of the detective squads and Special Branch of the NSW Police in 1979-81; the seething milieu of the former Yugoslavia’s diaspora; and the efforts of the Australian Security Intelligence Organisation to track the local activity of Belgrade’s version of the KGB. 

Justice Wright has been designated to assess a new application for judicial review of the convictions of the “Croatian Six” – the Croatian-Australian men who got 15 years each from the late Justice Victor Maxwell after a jury found them guilty of conspiracy to plant bombs across Sydney at places linked to Yugoslavian agencies. 

The NSW Court of Appeal upheld the convictions and the High Court declined to hear a further appeal. 

Two applications for review have previously been made.  

The first came after ABC Four Corners reporter Chris Masters went to Yugoslavia in 1991 and got the principal crown witness to admit on camera that he had fabricated his evidence of the bomb plot. 

The application was rejected in 1994 by then attorney-general John Hannaford, on still-privileged advice by government lawyers Keith Mason QC (later solicitor-general) and Rod Howie QC (later a Supreme Court justice).  

The second was in 2012, marshalling new scholarship about the overseas war of the Yugoslav intelligence service, the UDBa, against Croatian activists in places like Australia; the testimony of former federal government lawyer Ian Cunliffe that crucial intelligence information relating to the case had been withheld from the trial; and the findings of the Wood Royal Commission casting doubt on the reliability of the NSW specialist detective squads and Special Branch, by then disbanded for corruption.  

This application was rejected by then acting justice Graham Barr, who ruled that whatever the involvement of the Yugoslav spooks with the chief crown witness, the Croatian Six had all confessed. 

That all but one of the confessions had been obtained in the form of unsigned “verbals” after some hours of vigorous questioning at the old CIB headquarters behind the Central Court did not raise any “sense of unease” with Barr. 

Present-day standards such as the need for recording of police interviews and access to lawyers could not be applied retrospectively. 

McDonald got ASIO to release files it kept on the contentious crown witness, one Vitomir Misimovic, a Serb masquerading as a Croat under the name Vico Virkez. 

The files show that for several months before Virkez blew the whistle on the alleged bomb plot, ASIO was tracking his contact with an UDBa officer at the Yugoslav Consulate-General in Sydney.   

After the arrests in February 1979, ASIO passed this information to the NSW Police. The file reports a reaction from then NSW Police assistant commissioner Roy Whitelaw that if this got out to the “opposition” [ie the defence] it would “blow a hole right through the police case”. 

In the event, it was withheld throughout the nine months of the trial, with crown counsel, the late David Shillington QC, assuring the jury there was “not a skerrick of evidence” that Virkez was a Yugoslav intelligence agent.  

It is indeed a thorny one for Justice Wright, as he reads through De Brennan’s argument, a submission by the NSW Crown Solicitor’s Office arguing against the case for review (written by crown counsels David Kell SC and Joanna Davidson), a response to that by De Brennan, and further crown argument to that. 

The trial transcripts in themselves amount to some 5,000 pages in 20 volumes, which fortunately have been digitised. 

It will take the judge into unfamiliar territory, as criminal law has not been much of a focus in his career. 

Possibly his extra-curricular hobby, the study of Ancient Rome and the career of Julius Caesar in particular, has enlarged his thinking to cope with the modus operandi of figures such as Roger Rogerson, who led a squad that made three of the Croatian Six arrests.