W.J. MacKay and the NSW Police, 1910–1948: A Dangerous Man 3031109201, 9783031109201

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W.J. MacKay and the NSW Police, 1910–1948 A Dangerous Man r ic h a r d e va ns

W.J. MacKay and the NSW Police, 1910–1948

Richard Evans

W.J. MacKay and the NSW Police, 1910–1948 A Dangerous Man

Richard Evans Deakin University Geelong, VIC, Australia

ISBN 978-3-031-10920-1 ISBN 978-3-031-10921-8 (eBook) https://doi.org/10.1007/978-3-031-10921-8 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

The police are thieves and extortioners … but at least they do not suffer any rivals. Rudyard Kipling 1

1 Rudyard Kipling, Kim (1901), Wordsworth Classics, Ware (UK), 1990, p. 61.

Acknowledgements

My exploration of the extraordinary career of W. J. MacKay began as a Ph.D. thesis undertaken at Monash University, Melbourne. I wish to thank my two supervisors, Colleen Lewis and John Arnold, for their kindness, suggestions, feedback, encouragement and support in sometimes difficult times. Staff at many institutions have been of great assistance to me. Particular thanks go to State Records, New South Wales, especially Emily Hanna, and the New South Wales Police Force, especially Larraine Tait. I also received assistance from the Matheson Library, Monash University; the State Library of Victoria; the State Library of New South Wales; National Archives of Australia; Public Record Office Victoria; ScreenSound Australia; Glasgow City Archives; and the Justice and Police Museum, Sydney. I am truly grateful for the understanding, love and support I have received from friends too numerous to name, from my extended family, and especially from my wife, Heather, and our two beautiful children, Rose and Odi. I give thanks to God for the amazing world in which we live—so full of stories!—and for the opportunity to explore and write about it (Fig. 1).

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ACKNOWLEDGEMENTS

Fig. 1 William John MacKay during the “Battle of Liverpool Street”, 1 April 1932. Sydney Mail, 6 April 1932, p. 25. Image courtesy National Library of Australia

Contents

1

Introduction 1 ‘The Dominant Personality in the Force’ 2 Structure

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‘The Ladder of Promotion’: Leadership and Succession in the New South Wales Police Force, 1910–1929 1 ‘I Do not Wish to Brag’: MacKay’s Background, Real and Imagined 2 The New South Wales Police Force in 1910 3 ‘Efictitiousvidence’: The IWW Affair 4 An Officer on the Rise 5 Hurdling Police: The Irish ‘Envoys’ 6 The Bunnerong Scandal 7 ‘I Am Energetic and Ambitious’: Seniority and favouritism

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‘Razorhurst’: The Expansion of Police Power, 1927–1930 1 The White Peril 2 The Invention of ‘Razorhurst’ 3 Snowstorm: The Creation of the Drug Squad 4 ‘A Very Dangerous Public Consequence’: Warnings and Outcomes

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7 7 11 16 23 24 27 29 33 33 34 44 47

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CONTENTS

‘Murderous Coppers’: Policing the Timber Strike and the Coal Lockout, 1929–1930 1 The Union Buries Its Dead 2 The Mythology of Rothbury 3 Police and Industrial Disputes 4 ‘It Was Bad Trouble’: The Timber Strike 5 ‘Getting Cunning’: The Strike Leaders’ Trial 6 ‘We Will “Go” the Miners’: Tragedy at Rothbury 7 ‘Inspector MacKay’s “Basher Gangs”’: Reasserting Police Power 8 ‘The Feeling Against the Police Was Very Strong’: Power and Authority ‘Fascism, with Modifications’: The New Guard, the ‘Old Guard’, and Challenges to State Power, 1931–32 1 Cutting the Ribbon 2 The New Guard and the “Secret Armies” 3 Fascism, Conservatism and the State 4 High Policing: Police and Enemies of the State 5 ‘The Future Is Fraught with the Gravest Possibilities’: The New Guard Emerges 6 ‘If It Is Necessary to Use Force the Police Will Not Hesitate’: Ultimatum ‘Belt Their Bloody Heads Off’: The Police Response to the New Guard, 1932 1 ‘Insulting Words’ 2 ‘Belt Their Bloody Heads Off’: Reasserting Physical Power 3 ‘A Parade of Police on a Scale Seldom Witnessed’: Reasserting Symbolic Power 4 ‘Fascist Legion’: Discrediting the New Guard 5 ‘Next in Line for the Post of Commissioner’ ‘A Dangerous Power’: Independence, Accountability and the Police Commissioner, 1934–1935 1 Specially Big Boots: Police Independence and Accountability

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83 83 85 93 95 97 106 109 109 111 115 117 127 129 129

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‘The Duty of the Police is Solely to the Law’: The Salisbury Dismissal ‘Beyond the Control of Anyone’: The Amendment ‘Our Brilliant Young Police Commissioner’: MacKay Reaches the Top

The SP Royal Commission: Police Power, Corruption and Scandal, 1936 1 ‘He Kept a “Tote”’: SP Bookmaking 2 ‘The Pimps System’: Policing Unpopular Laws 3 The Other Brotherhood: Freemasonry and the Police 4 ‘The Police Are Rottenly Corrupt’: The Mobilisation of Scandal 5 ‘My Unpleasant Duty’: The SP Royal Commission 6 ‘Do It Clean’: Leadership, Management and Corruption 7 Law Enforcement by Other Means: The Illegal Extension of Police Power 8 The Whistleblower The Miller Scandal: Power, Loyalty and Police Culture, 1937 1 Mowlds’ Ham and Beef Shop Revisited: The Response to Scandal 2 ‘A Bloody Phizz-Gig’: The Persecution of Constable Miller 3 ‘The Fear’: Power, Police Culture and the Code of Silence 4 ‘Is Const. Miller Victim of Police Terrorism?’: The Extension of Scandal 5 ‘It Humiliates Me’: The Miller Royal Commission 6 ‘Dangerous Men’: The Redemption of Sergeant Chuck 7 ‘A Very Severe Ordeal’: The Consequences of Scandal ‘I Am in Charge of the Police Ship’: The Minister, the Union and the Power of the Commissioner, 1938–1942 1 ‘Crawling to W.J.’: Independence, Autocracy and Intervention

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132 133 137 141 141 143 145 147 151 154 163 167 169 169 174 179 182 184 192 195

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‘Foibles or Misdemeanours’: Controlling Political Masters ‘Attack Crime from the Cradle’: The Police Boys’ Clubs ‘Give Me This Power’: The Overtime Affair An ‘Australian FBI’: The Security Service

Policing ‘the Abominable Crime’: Legislated Morality, Selective Enforcement and the Abuse of Power, 1937–1943 1 A Charge of Indecency 2 A Secret World: Homosexuality and the Police 3 ‘A Grave Public Scandal’: The ‘McNally’ Affair 4 ‘A Thorough Overhauling’: Aftermath 5 ‘Malice Could Go No Further’: The Fall of S.A. Maddocks The ‘Appalling Vista’: Police Power and Miscarriages of Justice, 1932 and 1944 1 ‘Fiendish Murder’: the Wilkinson and Denzil Killings 2 ‘Eye for Eye’: Miscarriages of Justice 3 The Hunt for William Moxley 4 ‘I don’t Know Why I Done This Thing’: Fatal Confession 5 The Pyjama Girl 6 ‘I Am a Policeman and Have a Duty to Do’: MacKay and Agostini 7 ‘Such Methods Were Conducive Only of Failure’: the Police Culture and Miscarriages of Justice The Keogh Scandal: Unaccountable Power and Systemic Corruption, 1946–1947 1 Sunny Corner: The Holiday House Affair 2 ‘There is Too Much Covered up Because of Fear’: the Keogh Scandal Conclusion 1 ‘Visionary yet Arrogant’: Assessing W.J. MacKay

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Bibliography

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Index

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CHAPTER 1

Introduction

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‘The Dominant Personality in the Force’

For two decades, from the late 1920s until his death in 1948, William John MacKay dominated policing in New South Wales to an extent unmatched before or since. Colourful, energetic, intelligent, ambitious, ruthless and reckless: he was a man one loved or hated, and many people feared. “We looked upon him as ‘the Boss’ and his word was bloody law”, said one former police officer.1 “The best commissioner I ever worked under... a policeman’s man”, said another.2 “One of the biggest bloody crooks we ever had in the New South Wales police force”, was the view of a third.3 Eric Campbell, leader of the semi-fascist New Guard, said of MacKay: “irrespective of rank he was the dominant personality in the force”.4 Truth newspaper denounced him as the “Hitler of [the] force... the

1 Andrew Moore, “A secret policeman’s lot”, in John Shields (ed), All Our Labours: Oral histories of working life in twentieth century Sydney, University of New South Wales Press, Sydney, 1992, p. 198. 2 Larry Writer, Razor, Macmillan, Sydney, 2001, p. 136. 3 Susan Borham, “Corruption in high places”, Sun-Herald [Sydney], 30 December

1990, p. 22. 4 Eric Campbell, The Rallying Point: My story of the New Guard, Melbourne University Press, Melbourne, 1965, p. 110.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Evans, W.J. MacKay and the NSW Police, 1910–1948, https://doi.org/10.1007/978-3-031-10921-8_1

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great I AM... the omnipotent Csar of the New South Wales police”.5 William McKell, Labor Premier of New South Wales from 1941 to 1947, said MacKay was “the greatest policeman the state has known... terrific courage”.6 Another Labor leader, Arthur Calwell, publicly denounced MacKay as “fascist-minded”.7 Selwyn Speight, a police reporter with the Sydney Morning Herald, called MacKay: the roughest toughest policeman I think I ever saw in my life, a Scotsman with an odd sense of humour. He did a great deal for the New South Wales police force . . . he modernised it in a way nobody else would do or could have done.8

But there were, Speight said, “always suggestions about him”.9 This book explores police power. This will be done in a particular historical context, the New South Wales Police Force in the period 1910 to 1948, and with a focus on the career of one police officer, W.J. MacKay. MacKay’s career spanned a period in which the police force was transformed—changes in which he played a major role—but his significance extended well beyond internal police matters. He was involved in many of the defining moments of a turbulent era in Australian history. He told a Royal Commission in 1937: My career in the police force in this State started in 1910. I have had 27 years in its service. Rightly or wrongly I have been thrown into most of the troubles that have occurred in those 27 years … The IWW case, general strikes, the coal-fields and Rothbury, Irish envoys and all the other happenings …10 5 Truth, 25 April 1937, p. 1. 6 William McKell interviewed by Chris Cunneen, 21 June 1984. Courtesy Chris

Cunneen [McKell interview]. 7 Commonwealth Parliamentary Debates, 27 March 1942, p. 521. 8 NLA, ORAL TRC 121/49, Interview with Selwyn Speight by Mel Pratt, 1:1/9

[Speight interview]. 9 Ibid. 10 “Minutes of Evidence of the Royal Commission of Inquiry into Certain matters

Arising From the Report of the Royal Commission on Police and of Illicit Betting, 1936”, New South Wales Parliamentary Papers [NSW PP] 1937/8, Joint Volumes of Papers [JVP ], vol. 3, p. 613.

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MacKay could have added his key role in the suppression of the semifascist New Guard during the constitutional crisis of 1932. In 1942, Arthur Calwell said of MacKay: “He is like Fouché who, during the French Revolution and later, served every government to his own advantage”.11 Calwell intended only an insult, but his comparison is valid in positive as well as negative ways. Joseph Fouché was a police minister and spy master who served the French Revolution, Napoleon, the Bourbon Restoration and Napoleon again during the “Hundred Days”.12 There were two distinct branches to Fouché’s career: the “high police” tasks of maintaining the security of the State and the “low police” functions of maintaining public safety. The latter creates the “quiet conditions” in which ordinary people can go about their daily business in peace. Both Fouché and MacKay recognised the importance of low police work, and many of their organisational changes were geared to improving it. However, both carved their careers and gained their power in the world of high policing. MacKay was at his best when “thrown into troubles”, when he exercised police power to protect the State, restoring State power so that the ordinary work of low police could resume. Later in his career, however, the “troubles” in which he was involved were often his own creation, the result of reckless and autocratic use of his personal power as Police Commissioner. In the course of his 13 years as Commissioner, MacKay was repeatedly placed under fierce pressure from powerful enemies. He was attacked by politicians—conservative and Labor, in government and in opposition—by the police union and by sections of the media. MacKay always survived. During times of peace and stability, the mechanics of power tend to be hidden behind consensual processes. When a society enters a period of change and crisis, however, power becomes more naked and more obvious in its workings. The period of MacKay’s police career, particularly between the late 1920s and the end of the Second World War, was just such a period of crisis. This book uses MacKay as an exemplar, an individual Police Commissioner whose career shows how police leaders can acquire, expand, defend

11 Commonwealth Parliamentary Debates, 27 March 1942, p. 520. 12 Nils Forsell, Fouche: The man Napoleon feared, [trans. Anna Barwell] London, 1928,

p. 149.

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and exercise power. How do those with ambitions for leadership secure preferment and power within police forces? How do police leaders secure greater powers and wider jurisdiction for the forces they lead? How do police leaders use police power to preserve order in times of civil crisis? And how do police leaders preserve both their personal power and the institutional power of the force when challenged by external forces such as public scandals, judicial inquiries or the intervention of government ministers? Can police misconduct, such as graft and process corruption, be seen as a functional extension of police power, and at what point does police power become perverted into criminal power?

2

Structure

Chapter 1 gives a brief account of W.J. MacKay’s early years and police career is given. His rapid rise in the New South Wales Police Force is used to explore patronage, power and succession within police forces, and the means by which individual officers secure personal power. Chapter 2 explores how police forces increase their power in society. MacKay was instrumental in expanding police power in the late 1920s, when police gained draconian new powers to deal with suspected criminals, and jurisdiction over drugs such as cocaine. Chapter 3 focuses on two industrial disputes which wracked New South Wales from late in 1928 to early in 1930. Both disputes demonstrate the ambivalent position of the police in times of industrial strife and the high cost of reasserting police power when it is seriously challenged. Similar themes emerge, though in a very different political context, in Chapter 4, which examines the rise of the New Guard in 1931 and 1932, and in Chapter 5, which explores the police response to this formidable threat. I question many accepted interpretations of the New Guard, the so-called Old Guard, and the police response to both. I argue that in the face of unprecedented political turmoil, MacKay used police power, sometimes unscrupulously, to protect civil order and constitutional government. MacKay was appointed Commissioner in March 1935, the culmination of a rise described in the press as “unparalleled in the history of the

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force”.13 Before MacKay took office, the conservative Stevens government passed the Police Regulations (Amendment) Act, 1934. Intended to protect the Commissioner from political interference, the amendment had the effect of making MacKay almost completely unaccountable: potentially “a dangerous man”. This amendment is used in Chapter 6 to explore the vexed issue of police independence and accountability. MacKay’s commissionership was quickly marred by scandal. Allegations of serious malpractice by police enforcing laws against SP bookmaking led to a Royal Commission in 1936. Chapter 7 examines corruption as an aspect of police power and scandal as a means of social control of police. Although MacKay was not directly implicated in corrupt behaviour, I argue that his management style contributed significantly to the problem. A police constable, Mendelssohn Miller, testified against his fellow officers at the SP Royal Commission. For this breach of police solidarity, Miller was subjected to appalling harassment in which MacKay was, at the very least, complicit. The persecution of Miller became an open scandal and led to another Royal Commission in 1937. Chapter 8 uses this scandal to explore power relations within the police culture and especially the intimidation of “whistleblowers”. The final four chapters explore different aspects of the abuse of personal power by MacKay, as a senior police officer. Chronology is looser here than in earlier chapters: this is necessary for thematic clarity. In 1938, MacKay survived a concerted effort to drive him from office. Far from becoming more cautious, MacKay became increasingly reckless in his abuse of power. Chapter 9 traces MacKay’s growing tendency to autocracy. Incidents between 1938 and 1943—primarily disputes with an increasingly-strong police union—are used to explore MacKay’s erratic and arrogant behaviour, and the means by which he managed to maintain his power despite it. Chapter 10 focuses on MacKay’s involvement in two cases in which men were charged under the laws which criminalised homosexual sex. The two cases illustrate the corrupting potential of “legislated morality” which is selectively enforced, and MacKay’s willingness to misuse such discretionary powers.

13 Argus [Melbourne], 12 March 1935, p 7.

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Chapter 11 explores wrongful convictions for serious crimes. Two murder cases are examined. MacKay was central to the apparent resolutions of both crimes, but I argue that in both cases evidence was manipulated, suppressed and fabricated, and that the results were almost certainly unjust. The external and internal pressures which lead to miscarriages of justice are examined, and it is argued that MacKay’s leadership created an environment in which such abuses were likely to increase. In 1947, MacKay was accused of transferring an honest police officer, Sergeant A.J. Keogh, at the request of illegal bookmakers. Chapter 12 examines this scandal. I argue that the Royal Commission which inquired into the matter erred in its findings, and that the Keogh scandal provides the earliest evidence of entrenched and systemic corruption reaching to the highest level of the New South Wales Police Force. MacKay died, still in office, in January 1948. The Conclusion briefly describes his end and examines the means by which he acquired, exercised, extended and defended police power. I argue that MacKay’s career is an example of the “Fouché paradox”. Like Fouché, MacKay wielded great power within and through the police, and in doing so was an effective servant of the State and of the community, but was also a menace to both: “a dangerous man”. MacKay’s pursuit of power reached a stage of perversion, in which police power became at least partly a criminal power. The police career of William John MacKay is an ideal subject through which to explore the character and development of police power in Australia in the first half of the twentieth century. In doing so, I also aim to tell an exciting true story about a remarkable police officer and his role in the power struggles of his time.

CHAPTER 2

‘The Ladder of Promotion’: Leadership and Succession in the New South Wales Police Force, 1910–1929

1

‘I Do not Wish to Brag’: MacKay’s Background, Real and Imagined

William John MacKay wrote, or at least started, an autobiography. He showed this manuscript to a sergeant, Scot Denholm, when the two were fellow patients in the police ward at Prince Henry Hospital, Sydney.1 Denholm later told colleagues that the manuscript was a self-serving story of a young Scots lad, “barefoot in the snow” but “afire with ambition”.2 The original manuscript has proved elusive, but it is likely to have been the basis for a pamphlet on MacKay prepared by the K.R. Newman for the Masonic Historical Society of New South Wales (MacKay was a prominent Mason).3 Newman writes that MacKay was born in Glasgow, on 28 November 1885, and was “raised in poor circumstances being low wages and low living conditions and a low standard of education”. MacKay was a sickly child, who was sent to live in the country for four years with an uncle and aunt. There is a story that he ran away to sea for a time, that

1 The date is uncertain, but it would probably have been in March 1947, when MacKay spent some time in hospital. SMH, 24 March 1947, p. 3. 2 John Blackler, letter to author, 17 December 2002. 3 K.R. Newman, “The Life of William John MacKay”, Masonic Historical Society of

New South Wales, n.d.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Evans, W.J. MacKay and the NSW Police, 1910–1948, https://doi.org/10.1007/978-3-031-10921-8_2

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he was bright but rebellious, and that he topped his class before leaving school at 14. MacKay frequently stressed the police blood in his veins. He told a conference in 1937: “I was born in a police station, brought up in a police atmosphere, and have done police work morning, noon and night”.4 He said he had “desired no other career”.5 In 1946, the New South Wales Police-Citizens Boys’ Clubs published a pamphlet honouring MacKay, the organisation’s founder. An outrageous piece of puffery, it provides another version of MacKay’s origins. It tells how, in 1885, “the lives of a Scottish Constable and his wife were made happier by the arrival of a lusty baby boy”, William John MacKay.6 As he grew up, he found himself getting into trouble—mostly because he lived in an industrial area: the only place to meet his friends was on the street corner … Their fun was of their own making and whatever devilment they could think up.7

It was this early experience of deprivation, the booklet said, which inspired “his rise from the bottom of the ladder to its highest rung”, which was “a feat known to all”.8 But MacKay’s claims about the poverty of his childhood do not withstand scrutiny. MacKay’s father was not a constable but an inspector first-class with 11 years’ seniority when MacKay was born.9 The MacKay family must have been reasonably prosperous by the standards of the time. MacKay joined the City of Glasgow Police, at the age of 19, on 25 January 1905.10 In later life, MacKay reminisced:

4 Steve Brien, Serving the Force: 75 years of the Police Association of New South Wales, 1921–1996, Focus, Sydney, 1996, p. 69. 5 Vince Kelly, The Charge is Murder, Rigby, Adelaide, 1965, p. 107. 6 East Sydney Police-Citizens Boys’ Club: Be-anga, East Sydney Police-Citizens Boys’

Club, Sydney, 1946. The pamphlet has no page numbers. 7 Ibid. 8 Ibid. 9 Glasgow City Archives, Police Personal Records, SR22/55/8 no.252, Murdoch McKay. 10 Glasgow City Archives, Police Personal Records, SR22/55/21 no.225; SR22/56/19 no.10996, W.J. MacKay.

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‘THE LADDER OF PROMOTION’: LEADERSHIP AND SUCCESSION …

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I have been through the mill. I do not wish to brag. I have been through it at 19 years of age in the Police Force in the Old Country … rougher people, wilder times, the hotels were open till 11 o’clock. The first thing I got was a black eye and it was the means of me being put on sly grog work because it was a good disguise.11

Reputedly, within a week of taking up his duties, he had a bottle broken over his head, leaving a permanent scar on his scalp.12 After two years in uniform, he was transferred to the detective branch.13 He quickly came to notice and was involved in some major cases—that, at least, is the received story.14 MacKay claimed that when he was only 23 he was involved in a celebrated murder case. This was the mysterious death of Marion Gilchrist, a wealthy spinster who was found murdered in her Glasgow apartment on the evening of 21 December 1908. Suspicion fell on a German Jew, Oscar Slater, who was charged with murder. The behaviour of the police and prosecuting authorities before and during Slater’s trail was scandalous. Evidence of guilt was fabricated; exculpatory evidence was withheld from the defence; prejudicial aspersions about Slater’s private life were leaked to the press. Slater was found guilty of murder and sentenced to death.15 However, his sentence was commuted to life imprisonment because of public pressure. Many people were troubled by Slater’s conviction, and a campaign to review the case gained widespread support. In 1928, his case was reheard: the original prosecution was completely demolished, and Slater was acquitted. He was awarded £6,000 in compensation for the 18 years he had spent wrongly imprisoned.16 MacKay claimed to have been prominent in the Slater investigation. He is said to have expressed disgust that he received only £68 of the £200

11 Report of the Royal Commission of Inquiry into Allegations Against the Police in Connection with the Suppression of Illicit Betting, 1936”, Judge H.W. Markell, NSW PP 1936/7, JVP, vol. 1, pp. 88–89 [SP Royal Commission Report], p. 125. 12 Truth, 19 February 1935, p. 1. 13 Glasgow CityArchives, W.J. MacKay. 14 Bruce Swanton and Lance Hoban, “William John MacKay, NSW’s 7th Commissioner of Police”, New South Wales Police News, vol. 70, no. 6, June 1990, p. 14. 15 William Roughead (ed), The Trial of Oscar Slater, 4th ed, William Hodge, Edinburgh, 1950, xii–lix. 16 Ibid.

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reward which had been offered for the arrest of the murderer. This was one of the reasons he resigned from the Glasgow Police and migrated to Australia.17 MacKay’s claim to have been involved in the Slater case is doubly ironic. First, he was prepared to boast of his involvement in a case which by the 1920s had become an infamous example of police dishonesty. Second, his claim to have been involved in the investigation was almost certainly false. He is not recorded as a witness in any of the many legal proceedings, nor did any other witness mention his name.18 If MacKay did have a role in the investigation, it must have been a very minor one. His Glasgow Police service record makes no mention of the Gilchrist case. Months before Gilchrist’s murder, MacKay receive his only recorded reward: for apprehending two thieves, he was given a certificate and ten shillings.19 Robert Reiner’s study of English chief constables notes a persistent vain streak among his subjects.20 Police who reach high rank are very ready to claim credit for innovations in police methods, or big cases in which they were involved.21 In MacKay’s case, this trait seems to have gone further. So anxious was he to be seen as the man at the centre of events that he told stories which were not merely exaggerated, but completely false. This was part of a strain of personal myth-making which runs through his life and his career. Whatever his motives, MacKay resigned from the Glasgow Police on 18 January 1910 and almost immediately embarked for Australia.22 He had recently married, to Jennie Ross Drummond. The couple arrived in

17 Swanton and Hoban, “MacKay”, p. 13. 18 Roughead, Trial of Oscar Slater, passim; Richard Whittington-Egan, The Oscar Slater

Murder Story: New Light on a Classic Miscarriage of Justice, Neil Wilson, Glasgow, 2001; “Official Inquiry into the case of Oscar Slater: Copy of statements,” Sheriff of Lanarkshire, Sessional Papers, House of Commons [UK], 1914, vol. lxvii, p. 601; Times [London], various dates 1908–1927, found through The Times Index. 19 Glasgow CityArchives, W.J. MacKay. 20 Robert Reiner, Chief Constables: Bobbies, Bosses or Bureaucrats, Oxford University

Press, 1991, pp. 96–8. 21 Bryn Caless, Policing at the Top: The Roles, Values and Attitudes of Chief Police Officers, Policy Press, Bristol, 2011. 22 Glasgow CityArchives, W.J. MacKay.

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Australia on 1 April 1910.23 There is a story of MacKay doing labouring work at first and quickly buying a smaller shovel to make the work easier; another tells of citizen MacKay apprehending a pickpocket and a detective suggesting that he join the force.24 MacKay later said he had been impressed by the detective’s clothes and had realised that police pay was better than in Scotland.25 Another source said it was “more by accident than design [that] he became Constable MacKay of the New South Wales Police Force”,though this sits ill with MacKay’s claims to have been born to police work.26 Given that he was sworn in as a constable on 9 June 191027 —less than ten weeks after arriving in Sydney—I suspect that all these stories were invention, that MacKay had always intended to join the New South Wales Police Force, and that he applied soon after his arrival.

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The New South Wales Police Force in 1910

When Constable William John MacKay, No. 9113, was sworn in, the New South Wales Police Force was still recognisably a colonial force.28 As elsewhere in the British Empire, the colony drew on two distinct styles of policing in shaping its police force. One was based on the Royal Irish Constabulary: a paramilitary force, armed and often mounted, housed in barracks, and created to maintain order in a colony whose inhabitants were of suspect loyalty. The alternative style was that of the London Metropolitan Police: an unarmed, civilian force relying heavily on the consent and support of the people.29

23 Frank Cain, “William John MacKay”, Australian Dictionary of Biography, vol. 9, pp. 296–7. 24 Truth, 19 February 1935, p. 1; Newman, “William John MacKay”. 25 Swanton and Hoban, “MacKay”, p. 14. 26 East Sydney Police-Citizens Boys’ Club, Be-anga. 27 Swanton and Hoban, “MacKay”, p. 14. 28 Bruce Swanton and Lance Hoban, “The story of James Mitchell”, New South Wales Police News, vol. 70, no. 4, April 1990, pp. 25–27; Robin Walker, “The New South Wales Police Force, 1862–1900”, Journal of Australian Studies, no. 15, November 1984, pp. 25–6. 29 John Blackler, Development of Modern Policing, Keon Publications, Wagga Wagga, 1996, pp. 29, 46, 51; John J. Tobias, “The British colonial police: An alternative police

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The Australian police forces, including the New South Wales force, adopted elements of both models, but it was the mounted constabulary of the pastoral frontier—the Irish model—which dominated.30 This changed, but an enduring legacy was the centralisation of the force. By contrast with English policing, where numerous small police forces were controlled by local authorities, the New South Wales Police Force had weak links with local communities and a central commander of great—perhaps excessive—power.31 The quality of leadership is even more important in police forces than in most organisations.32 The management of police forces presents singular difficulties. Demand for police services is often unpredictable, effectiveness is hard to measure, and the quality of the service provided depends greatly on the decisions of relatively junior staff operating with minimal supervision.33 Many police duties are unpopular with at least a significant section of the community. The Commissioner also has the vital and difficult role of being the contact point between the police organisation and its political masters.34 Adding to the burden, in the first half of the twentieth century, commissioners had only small staffs. There were no deputy commissioners. The Commissioner’s personal style was of great importance: he was the public face of the force and set its tone.35 The emphasis on leadership in police culture—almost a cult of leadership at times—is ironic in some respects. Despite the lip service paid to discipline and command, the police culture has an insubordinate style”, in Philip John Stead (ed), Pioneers in Policing, McGraw Hill, Maidenhead (UK), 1977. 30 Mark Finnane and Stephen Garton, “The work of policing: Social relations and the criminal justice system in Queensland: Part 1”, Labour History, no. 62, May 1992, p. 59. 31 Kevin Seggie, “Aspects of the Role of the Police Force in New South Wales and its Relation to the Government, 1900–1939”, PhD thesis, Macquarie University, 1988 [Seggie, “Police and Government”], pp. 24–5. 32 Daniel S. McDevitt and Mark W. Field, Police Chief: How to Attain and Succeed in this Critical Position, Charles C Thomas, Springfield, 2010. 33 Yesufu Shaka, “The reconciliation of the development and implementation of police

accountability in the United Kingdom”, ScienceRise, no. 6, December 2021, pp. 68–78. 34 Richard Macdonald, “Skills and qualities required of police leaders, now and in the future”, in Barbara Etter and Mick Palmer (eds), Police Leadership in Australasia, Federation Press, Sydney, 1995. 35 Robert Haldane, The People’s Force: A history of the Victoria Police, Melbourne University Press, Melbourne, 1986, p. 183.

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streak. The power and authority of the formal leader are not infrequently subverted by more junior officers.36 The structure and culture of many police forces, too, seem almost calculated to frustrate quality leadership. The hierarchical power structure encourages destructive traits, especially arrogance and vindictiveness, among senior officers. John Blackler describes the pattern of power relations as swinging between extremes of cronyism and vendetta.37 The franker memoirs of police officers bear this out.38 As police forces became established in the late nineteenth century, promotion from within became almost an iron-clad principle. This often had damaging consequences, particularly when the leadership was acquired substantially through seniority. Such leaders tend to be thoroughly inculcated in the police culture, lack wider experience and be stubbornly resistant to change.39 In New South Wales, just such an inward-looking and defensive system of power and succession was established early in the history of the Police Force. From 1864, almost all promotions came from within the ranks, and seniority became the main basis for promotion. Seniority meant police officers had to join the force at an early age and remain on good terms with their immediate superiors in order to succeed. This helped create a closed sub-culture, which presented a unified face to the wider world while bitter internal battles were fought for power and preferment.40 The man who became W.J. MacKay’s mentor, James Mitchell, was Inspector-General (later Commissioner; the title changed in 1926) of the New South Wales Police Force from 1915 to 1930. Police historians Bruce Swanton and Lance Hoban argue that he was “the finest administrator to have served in the New South Wales Police”.41 They credit Mitchell with steering the force through the difficult period during and

36 See, for example, Ray Whitrod, Before I Sleep: Memoirs of a Modern Police Commissioner, University of Queensland Press, Brisbane, 2001, p. 187; Sue Williams, Peter Ryan: The Inside Story, Viking, Melbourne, 2002, pp. 164–5; Age, 24 April 2004, p. 1. 37 John Blackler, letter to author, 17 December 2002. 38 See, for example, Williams, Peter Ryan, pp. 56–7. 39 Haldane, The People’s Force, pp. 164, 306; Arthur Niederhoffer, Behind the Shield: The Police in Urban Society, Doubleday, New York, 1967, pp. 5–6. 40 Walker, “New South Wales Police Force, 1862–1900”, pp. 31–5. 41 Swanton and Hoban, “James Mitchell”, p. 25.

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after the First World War, and in doing so transforming the force from a colonial to a recognisably modern organisation.42 Like his protege, Mitchell was a Scot, born in Aberdeen in 1865. He migrated with his family to Australia in 1883 and joined the police the following year.43 Mitchell became a rising star and was rapidly promoted. In December 1914, he became acting Inspector-General and was confirmed in the position a few months later.44 Mitchell began his tenure as a reformer, introducing basic training and a system of examinations for promotion.45 Vince Kelly, a long-serving Sydney crime reporter whose many books form a patchy chronicle of New South Wales policing in this period, thought highly of Mitchell: “a policeman of the best type”.46 Personally cold and an exacting leader, Mitchell was also honest and capable.47 A good illustration of Mitchell’s better qualities is his evidence before a parliamentary Select Committee which inquired into venereal disease during the First World War. There was hysteria on this issue, with allegations that prostitutes were deliberately infecting soldiers. In his evidence, Mitchell emerges as both humane and sensible.48 In 1920, Mitchell was called before another parliamentary Select Committee, potentially an embarrassing one. An Inspector McDonald was disgruntled by his lack of advancement in the force. He gained the support of some members of Parliament, and a committee was formed to inquire into his case. The committee was obviously sympathetic to McDonald, though his case was slight. Indeed, McDonald embarrassed himself in the hearings. He emerged as a disappointed man: bitter,

42 Patrick Lindsay, True Blue: 150 years of Service and Sacrifice of the NSW Police Force. HarperCollins, 2012, ch 3. 43 Who’s Who in Australia, 1927–28, p. 181; Sydney Morning Herald [SMH ], 6 October 1927, p. 12. 44 SMH , 11 December 1914, p. 8. 45 Hoban, C.E., New South Wales Police Force: 1862–1962, Government Printer, Sydney,

n.d. [1962?], p. 24. 46 Vince Kelly, Rugged Angel: The Amazing Career of Police Woman Lillian Armfield, Angus and Robertson, Sydney, 1961, pp. 6, 9–10. 47 Swanton and Hoban, “James Mitchell”, pp. 25–27. 48 “Select Committee on Prevalence of Venereal Disease”, NSW PP, 1915/16 JVP, vol.

5, pp. 54–56.

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foolish and paranoid. Mitchell, in provoking circumstances, remained calm, measured and reasonable: autocratic, but fair and intelligent.49 The McDonald affair provided a rare glimpse into the jealousies and tense power relations of the upper echelons of the police force. It was also notable for the presence of W.J. MacKay, then a sergeant and chief clerk to the Metropolitan Superintendent, M. Brooks. MacKay was a witness to a key incident, in which McDonald had behaved insubordinately. MacKay had jotted down what was said: vital evidence, it turned out, for both Brooks and Mitchell.50 MacKay would long display a talent for being in the right place at the right time, and for being extremely useful to those who could assist in his advancement. It was though his clerical skills that MacKay secured a position at Police Headquarters, on the staff of James Mitchell when he was still the Metropolitan Superintendent.51 (Among his abilities, MacKay was proficient in shorthand, a now all-but-forgotten skill. A shorthand writer was able to use a special system of signs to take down a verbatim record of speech in real time.) According to Vince Kelly, Mitchell was quick to recognise the talents of his young compatriot.52 MacKay became Mitchell’s de facto personal assistant. Already, MacKay’s influence far exceeded his rank. According to Kelly: “Though he was merely a Sergeant at Head Quarters... what MacKay wanted he usually got, and got it quickly”.53 What MacKay most wanted, by his own admission, was advancement. For that, he needed to distinguish himself in a big case. The war, and the social tensions it created on the home front, gave MacKay the opportunity he needed.

49 “Report from the Select Committee on the Case of Second-Class Police Inspector McDonald”, NSW PP, 1920, JVP, Second Session, vol. 3. See especially, pp. 7–9, 18–19. 50 Ibid., p. 11. 51 NSWSR, Colonial (Chief) Secretary [Col. Sect.] Correspondence, 5/8914, MacKay

to acting Commissioner W.H. Childs, 19 September 1929. 52 Vince Kelly, The Shadow: The Amazing Exploits of Frank Fahy, Angus and Robertson, Sydney, 1954, p. 4. 53 Ibid.

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3

‘Efictitiousvidence’: The IWW Affair

The Industrial Workers of the World—often called the “Wobblies”—was a revolutionary Marxist organisation.54 Originating in the United States, the group was established in Australia in 1907. It never grew to great strength, but it was perceived by conservative capital as a great threat in the war years.55 In July 1916, the Sydney Morning Herald published an alarmist article about an IWW “go slow” campaign, designed to erode capitalist profits. The campaign, warned the Herald, was: “full of intense purpose and above it hovers the shadow of a revolution”.56 The Herald had a nightmare vision: Imagine the go-slow doctrine vastly extended, and an incredible array of workers imbued with its spirit, led by fiery irreconcilable leaders, followed by a mass that is half reluctant yet surging with discontent . . . imagine also a police force permeated with a kindred spirit.57

This last worry, it turned out, was groundless. Two days after this article was published, the New South Wales Police Force launched the prosecutions which ultimately destroyed the IWW. MacKay’s precise role in the affair is elusive, but what is certain is that he personally benefited from it greatly. On 23 September 1916, police arrested a group of IWW members. More were arrested in following days, and charges were ultimately laid against 12 men, including Charles Reeve, Thomas Glynn, Peter Larkin and Donald Grant.58 The charges related to a spate of incidents of arson and attempted arson in Sydney over the previous three months. The Crown alleged that the men had “feloniously and wickedly” conspired to “burn down and destroy buildings and shops in Sydney and elsewhere”. 54 Jaime Caro-Morente, “The political culture of the Industrial Workers of the World: A radicalization of the Republican-Democratic political culture within the American and international labor movements”, Journal for the Study of Radicalism, vol. 15, no. 2, Fall 2021, pp. 1–34. 55 Frank Cain, The Wobblies at War: A History of the IWW and the Great War in Australia, Spectrum, Melbourne, 1993, pp. 213–4. 56 SMH , 30 September 1916, p. 7. 57 Ibid. 58 SMH, 11 October 1916, p. 11.

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Another charge related to preparing chemicals—“fire dope”—to commit these acts of arson.59 A committal hearing began on 10 October 1916. This was during the lead up to the first referendum on conscription for military service. Earlier in 1916, the Australian Prime Minister, William Morris Hughes, had returned from a trip to Europe. The horrific casualties being suffered on the Western Front had convinced Hughes that Australia needed to contribute more troops, and that only conscription could supply them. In late August, he announced that a referendum on conscription would be held in October.60 That the IWW case would be exploited by advocates of conscription was immediately obvious. In his opening address at the committal hearing, the prosecutor, Ernest Lamb KC, hammered the connection between the IWW and the campaign against conscription. He told the court that the arson campaign was “an attempt... to force the Government to abandon their policy in respect of conscription”.61 Lamb exploited the association of some of the accused with a German national who had escaped from an internment camp. While “direct German influence” could not be proven “directly”, he invited the presumption to be drawn from the fact that the accused “adopted tactics which were pleasing to our enemies”.62 The 12 men were committed for trial on charges of sedition and conspiracy to commit arson.63 The sedition charges were the easiest to prove. They relied on the public utterances of IWW speakers, especially Grant, Glynn, Larkin and Reeve. This was where Constable W.J. MacKay briefly took centre stage. MacKay, using his excellent shorthand, had been attending the IWW’s Sunday meetings on the Sydney Domain since 2 April, taking notes.64 He had become such a fixture that speakers had made a joke of it. MacKay told the court:

59 Ibid. 60 Joan Beaumont (ed), Australia’s War, 1914–1918, Allen and Unwin, Sydney, 1995,

pp. 39–52. 61 SMH , 11 October 1916, p. 11. 62 Ibid. 63 SMH , 12 November 1916, p. 4. 64 Mitchell Library, MSS 1548/6, Royal Commission [Police] 1918, “Proceedings,

King v. Reeve and others” [R. v. Reeve], p. 143.

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These men spoke quite openly in front of me—they knew I was there. I have heard them pass a joke in the crowd to me. Reeve said “Hello Mack, you have got your note book with you. I hope you are in good fettle”. Passing into the crowd, he would say “Hello Mack” when he saw me there. He knew I was reporting.65

He admitted that he had taken notes only of those parts of the speeches he believed might be in breach of the law.66 MacKay read these choice passages to the court from his notes. For example, he told the court that on 2 April Glynn had addressed the crowd and said: I don’t believe in sending soldiers to fight and sacrifice their lives to satisfy the ruling classes. Sabotage is the only weapon by which the working class can beat the master class.67

He had also recorded this passage—important because it might have alluded to arson—from a meeting on 10 September: Every day we lie in their prison, the master class will rest uneasy in their beds. Summer is coming on—it is going to be damned hot inside, and I believe it will be damned hot outside too; just so sure as a boomerang returns to the Aborigine will the master class feel the rebound of the weapons which the working class will use against them.68

MacKay also testified that he recognised Reeve’s signature on several letters which expressed seditious intent. MacKay’s evidence supported the charges of sedition, but it was only peripherally relevant to the arson and conspiracy charges, which were far more important. These depended almost entirely on the evidence of four informants. Two were brothers, Davis and Louis Goldstein; the others were Henry Scully, an industrial chemist, and F.J. McAlister, a police informer who joined the IWW specifically to gain information about it.

65 R. v. Reeve, p. 144. 66 Ibid., p. 142. 67 Ibid., p. 135. 68 Ibid., p. 139.

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The only direct evidence of the involvement of any of the IWW twelve with any of the fires came from these four men.69 Despite grave weaknesses in the prosecution case, all twelve IWW men were convicted, and all were given harsh sentences. There was disquiet about the case in labour circles, and a sustained campaign to have their cases reviewed gradually gained momentum. An investigator appointed by the New South Wales Labour Council was able to discredit the evidence of key Crown witnesses.70 In 1918, a commission of inquiry was held, under the chairmanship of Justice Phillip Whistler Street. In the published version of the report, there is a strange typographical error. The defence, Street wrote, had made “the charge that the whole case was in great part made up of efictitiousvidence [sic] to the knowledge of police”. Street did not agree: he upheld the initial decisions of the court and dismissed all accusations of police misbehaviour.71 However, following the election of the Storey Labor government in 1920, a new inquiry was held. The commissioner, Justice N.K. Ewing, found a great deal of “efictitiousvidence”. He found that the Crown’s key witnesses in relation to the conspiracy charges: must justly be described as liars and perjurers, and men who, whenever it served their own ends and irrespective of the consequences other persons, would not hesitate to lie, whether upon oath or otherwise.72

The Goldstein brothers and Scully were “all three endeavoring to protect themselves from prosecution”, the Goldsteins on forgery charges and Scully for involvement in arson. All three also expected a money reward. Ewing found that if the court had been properly informed of the character of these men “the jury would not, and ought not, to have believed their statements”.73 Ewing, however, upheld the convictions of 69 Cain, Wobblies at War, pp. 210–220. 70 Ian Turner, Sydney’s Burning, William Heinemann, Melbourne, 1967, pp. 103–119. 71 “Inquiry under the Police Inquiry Act, 1918, Report”, Justice P. Street, NSW PP,

1919 JVP, vol. 1. The quoted passage is on p. 49. 72 “Royal Commission of Inquiry into the Matter of the trial and Conviction and Sentences Imposed on Charles Reeve and Others”, Justice N.K. Ewing, NSW PP, 1920 JVP Second Session, vol. 1, p. 1 [Ewing Royal Commission Report]. 73 Ibid.

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five of the men for sedition—the charges based on public speeches—but also found that their sentences were excessive and ordered their release.74 The IWW affair is labyrinthine.75 Determining the guilt or innocence of the accused men is difficult. In his history of the case, Ian Turner accuses the police of having substantially fabricated the case against the accused but suggests there may have been an intent to commit acts of arson among some members of the IWW.76 When the IWW twelve were first convicted, a prominent businessman, J.D. Pattison, organised a meeting at the Sydney Town Hall: to recognise the fine work of the detectives … businessmen, especially those whose property was safeguarded by the detectives would be invited to contribute towards a public testimonial for the detectives.77

An embarrassed Inspector-General Mitchell, “strongly discountenanced” such a move and said there were “strong administrative reasons” why it was inadvisable. “The special claims of certain of the detectives engaged in the case will be taken into consideration in due course”, Mitchell said.78 In other words, internal systems of reward would be employed. On 4 January 1917, Mitchell wrote to the Chief Secretary listing those police who had played a role in the investigation. His list covered 21 officers “in order of merit” and made recommendations about appropriate rewards. First on the list was Constable W.J. MacKay. His “services rendered” were described thus: Along with Constable [George] Fergusson, brought under notice in the first instance that the IWW were spreading sedition and selling their book “Sabotage” which advocated the destruction of property, in the Domain on Sundays. They attended their meetings since March last; MacKay took

74 Cain, Wobblies at War, p. 223. 75 Stephen Gray, “Protest law and the First World War: The case of the Industrial

Workers of the World (IWW)”, Monash University Law Review, vol. 44, no. 2, May 2018, pp, 402–27. 76 Turner, Sydney’s Burning, p. 156. See also E.C. Fry, Tom Barker and the IWW , Australian Society for Labour History, Canberra, 1965, pp. 28–29. 77 SMH , 4 December 1916, p. 8. 78 Ibid.

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shorthand notes, the transcripts of which were the principal factors in securing the conviction of Grant, Larkin, Reeve, Glynn, and King, for conspiracy; also connected the other accused members of the IWW with these men in the Domain. Also smart detective work on being in a position to identify the handwriting of the above mentioned men. His evidence was universally admitted to have been the most convincing in securing the conviction.79

Mitchell recommended MacKay be promoted, to sergeant third class. Mitchell’s list differed markedly from that of Inspector John Walker, the head of the detective branch. Walker praised Fergusson, but did not mention MacKay at all.80 Detective Arthur Leary, another senior figure in the case, said the first notice of the IWW being connected with arson came from George Fergusson.81 MacKay’s own report on his activities was uncharacteristically modest: “While attending Domain... in March last, found that violent and seditious language was indulged in by the IWW speakers”.82 He had reported this and was directed to take shorthand notes of “future unseemly speeches”, which he did. He also bought a copy of a subversive booklet, Sabotage, and once arrested Reeve for assaulting another police officer.83 Mitchell’s high commendation of MacKay is a puzzle. All MacKay had done was take notes of public speeches, buy a book and recognise a signature: things any competent police officer could have done. If there was credit due for the IWW prosecutions, it was to those police, such as Fergusson, who gained the inside information about the arson conspiracy. Perhaps Mitchell was merely taking the opportunity to advance the career of his protégé: giving him the promotion that would set him on the path to power. But it is also possible that the key is in Mitchell’s description of MacKay having “brought under notice in the first instance”

79 Mitchell Library, MSS 1548/5, Royal Commission [Police] 1918, “Exhibits at the Royal Commission”, Exhibit 60. 80 NSWSR, Police Dept. Special Bundles, 7/6727 Papers concerning the IWW, Minutes of Evidence, 5 September 1918 [Street Inquiry, evidence]. 81 NSWSR, Police Dept. Special Bundles, 7/6728, Street Inquiry, evidence, 24 September 1918. 82 Mitchell Library, exhibits. 83 Ibid.

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the seditious activities of the IWW. Perhaps the initial idea to pursue the IWW was MacKay’s. In the report of the Ewing Royal Commission, MacKay was one of the few police to emerge with credit. One of the cases Ewing reviewed was that of Peter Larkin, who had been convicted of seditious conspiracy because of two passages from his public speeches. The Crown alleged that Larkin had said: “Far better to see Sydney melted to the ground than to see the men of Sydney taken away to be butchered”.84 This was based on MacKay’s evidence, and Ewing found that Larkin had indeed said these words. Another statement was attributed to Larkin and had been reported by Detective Thomas Lynch: We have got a little scheme on that [which] will make the master class quake in their shoes. I am not going to tell you what it is, because the police are listening, but some of you get me.85

Ewing did not accept that Larkin had made this incriminating statement: These remarks, if made … are suspicious; but no man should be convicted on suspicion alone. Lynch was relying on his memory as to this statement having been made by Larkin, but a very intelligent and capable police officer named MacKay gave evidence to the effect that he was present at this meeting … and that he also took a shorthand note of everything that these men said that he considered to be of an objectionable character.… I believe Lynch’s memory has played him false in this connection. I prefer, particularly after having seen the type of man Mackay is, to rely upon the transcript of his notes.86

Twenty years later, when MacKay was Police Commissioner, he was attacked in a pamphlet by a Communist writer, R. McWilliams. Harking back to the IWW case, McWilliams wrote: “Enter Constable MacKay and detectives Lynch and Fergusson—their big opportunity for promotion”. Beneath the flailing rhetoric—the police are dismissed as “the three stalwart tools of capitalism”—is a certain insight. McWilliams said of the 84 Mitchell Library, MSS 1548/6, “Proceedings, R v. Reeve and Others”, p. 137. 85 Ewing Royal Commission Report, p. 5. 86 Ibid.

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IWW case, “the circumstances under which they started the ladder of promotion have a deep significance”.87 In MacKay’s case, this was true. His success in the IWW affair demonstrated a pattern which would be repeated many times. The IWW prosecutions were, at least in part, a cynical exercise in the political use of police power. MacKay had a talent for being at the centre of such events. He would serve well those who could reward him, and he would profit handsomely himself.

4

An Officer on the Rise

The twelve years following the IWW prosecutions saw MacKay climb the ladder of promotion with astonishing speed. He was helped by the patronage of Mitchell, but he also worked extremely hard. He later claimed to have worked evenings and weekends, without pay and at his own initiative.88 MacKay became a trouble-shooter for Mitchell. During the Great Strike of 1917, a huge industrial dispute which began among railway workers and spread to other industries, Mackay was placed in charge of re-organising the police transport system, which had fallen into chaos. The following year, MacKay was promoted to sergeant second class and made officer in charge of a city police division. In 1920, there was a tour of Australia by the Prince of Wales:MacKay was entrusted with the preparation of the policing of the Prince’s visit to Sydney and was promoted to sergeant first class in recognition of his work.89 In 1923, MacKay transferred to the detective branch and was made officer in charge of detectives at No. 1 Division. In 1924, he was seconded to the Traffic Office to reorganise its operations.90 He was promoted again, on 1 January 1925, to acting inspector, third class. He continued to be chosen for special assignments: the police arrangements for the 1925

87 R. McWilliams, “Our” Police Force, Communist Party of Australia, Sydney, n.d. [c. 1937], pp. 8–12. 88 NSWSR, Col. Sect. Correspondence, 5/8914, MacKay to Childs, 19 September 1929. 89 Ibid. 90 Ibid.

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visit of a United States’ Navy fleet and the opening of Parliament House in Canberra in 1927.91 In January 1928, he was appointed Officer-in-Charge of the Criminal Investigation Branch. He replaced a superintendent first class, but was still only an inspector second class. He was a new broom at the CIB, beginning a process of reorganisation and modernisation.92 MacKay gathered a group of protégés around him: officers with ability who he favoured and who, in turn, were personally loyal to him. The archival record covering this period of MacKay’s career is thin. However, two episodes in which MacKay was involved and for which evidence is available—the Irish “envoys” affair and the Bunnerong corruption scandal—confirm the impression that he was an officer of great ability who was given exceptional responsibilities.

5

Hurdling Police: The Irish ‘Envoys’

The Irish “envoys” affair was a local echo of the bitter civil war which followed the creation of the Irish Free State in 1922.93 Hard-line Republicans, led by Eamonn de Valera, denied the legitimacy of the Free State and took up arms against its government. De Valera sent representatives abroad to raise money for the Republican cause.94 Two such “envoys”, Father Michael O’Flannagan and Sean O’Kelly (or O’Ceallaigh), were sent to Australia.95 Arriving in Melbourne in April 1923, they embarked on a speaking and fund-raising tour. The meetings in Melbourne caused only a small stir, but on their arrival in Sydney the envoys became the centre of a political storm. Sectarianism has faded to a distant memory in Australia, but for decades the mire of mutual prejudice between Catholic and Protestant Christians was a 91 NSWSR, Col. Sect. Correspondence, 5/8914, MacKay to Childs, 19 September 1929. 92 Ibid. 93 Mark Finnane, “Deporting the Irish Envoys: Domestic and national security in 1920s

Australia”, Journal of Imperial & Commonwealth History, vol. 41, no. 3, 2013, pp, 403–25. 94 Terry Golway, For the Cause of Liberty: A thousand years of Ireland’s heroes, Simon and Schuster, New York, 2000, pp. 273–7. 95 NSWSR, Police Dept. Special Bundles, 7/6723, Irish “envoys” case, letter of introduction from Eamonn de Valera, 10 January 1923.

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major social division. Sectarian feeling ran high in New South Wales in the 1920s, and some members of the conservative Nationalist government exploited the situation.96 The Attorney-General, Thomas Bavin, stated that it would be an offence to allow the envoys to hire a hall “for the dissemination of disloyal and seditious propaganda”, and that anyone involved, or even listening, was liable to prosecution.97 MacKay was placed in charge of the police operation and kept the envoys under close surveillance.98 On 30 April, the acting Premier, C.W. Oakes, announced that the envoys would not be permitted to speak again: “If they break the law they will have to suffer the consequences”.99 Oakes directly instructed Inspector-General Mitchell to prevent a meeting, planned for that night in the suburb of Waverly, from taking place.100 The legitimacy of such an instruction was dubious, but Mitchell did as he was asked, and MacKay was placed in charge. Because the meeting hall was closed to them, O’Flannagan and O’Kelly tried to address the crowd from on top of a table, placed inside the front gate of a nearby private home. A Daily Telegraph reporter described what followed: While the envoy-cleric was putting forward his ideas on the Irish situation in his native tongue, a half-dozen athletic individuals hopped over the gate . . Sergeant M’Kay [sic] . . took the lead … Father O’Flannagan then broke into English, and had got as far as—“Reverend chairman, sons of freedom, ladies and gentlemen”, when Detective Pattinson tapped him on the shoulder, remarking, “Sit down please, you are under arrest”.101

The two envoys and another man were arrested on charges of sedition, searched and taken to Darlinghurst police station.102 MacKay seems to

96 Sun [Sydney], 17 and 19 April, 1923, clippings in ibid. 97 SMH , 28 April 1923, clipping in ibid. 98 Ibid., MacKay to Metropolitan Superintendent, 1 May 1923. 99 Evening News [Sydney], 30 April 1923, clipping in ibid. 100 SMH , 1 May 1923, clipping in ibid. 101 Daily Telegraph, 1 May 1923, clipping in ibid. 102 Ibid., statement by Detective-Sergeant Pattinson, n.d.

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have been conscious of the sensitivity of the occasion and went to some lengths to ensure the men had no cause for complaint.103 The Sun had some fun at the expense of the “hurdling police”, publishing a picture of the fence and suggesting “that hurdling should be the great attraction at the next police sports meeting”.104 But despite its comic aspects, the police action was heavy-handed and provocative. The labour movement, civil libertarians and others sympathetic to Irish nationalism were outraged. Large protest meetings were held and a defence fund organised. Donald Grant, late of the IWW, told a crowd at the Sydney Domain that the arrest of the envoys had wide implications: “It is a question of the right to free speech, and therefore more important than the Irish question itself”.105 As sometimes happens with burning issues of high principle, the affair rather petered out. The sedition charges were never heard. The Crown applied for several adjournments in succession. Probably, the police were hoping that something would turn up to strengthen a weak case. MacKay and his men had taken copious notes of what the envoys had said at various meetings, but there was little to justify police attention. Apart from some anti-English rhetoric, most of the speeches consisted of detailed, dry and rather dull criticism of the Anglo-Irish Treaty, which had led to partition and the creation of the Irish Free State.106 Eventually, on 26 June, the court lost patience, refused to allow a further adjournment and dismissed the charges. The envoys were deported by the federal government on 16 July. By this time, the sting had gone out of the controversy. In Ireland, de Velera had conceded defeat and instructed his supporters to give up the struggle.107 In retrospect, this strange affair seems a storm in a teacup, but at the time it was a matter of great sensitivity. The fate of the envoys touched deep social fault lines: between capital and labour; imperialism and nationalism; Protestantism and Catholicism.108 For MacKay, still only

103 Ibid. MacKay to Metropolitan Superintendent, 1 May 1923. 104 Sun, 1 May 1923, clipping in ibid. 105 Daily Mail, 21 May 1923, clipping in ibid. 106 Ibid. More than 130 pages of transcribed notes of speeches survive: they are

consistently innocuous. 107 Golway, Cause of Liberty, p. 277. 108 Finnane, “Deporting the Irish Envoys”.

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a sergeant, to be entrusted with such an operation, was a remarkable testament to the high opinion Mitchell had of him. There is a darker side to the affair. In 1923, the relative powers of the Inspector-General and government ministers were unclear, but Mitchell could have resisted pressure to clamp down on the envoys had he wished to. Nothing about the material MacKay collected suggests there was any real justification for their arrest, as the eventual failure to prosecute demonstrated. The meetings addressed by the envoys had not once been disorderly, while publicly arresting them at Waverly had the real potential to incite trouble. Both Mitchell and MacKay showed a troubling willingness to infringe on civil rights at the bidding of the government of the day.

6

The Bunnerong Scandal

In 1928, MacKay was again entrusted with a case of the utmost sensitivity. This was the investigation of high-level corruption in the Sydney City Council. The Council was a major supplier of electricity, and in 1925, it had announced plans to build a new power station at Bunnerong, on Botany Bay.109 As a Royal Commission later found, the English engineering firm Babcock and Wilcox paid an enormous bribe to secure the contract to construct part of the power plant.110 The money was channelled through the Sydney manager of Babcock and Wilcox, A.J. Arnot. At the time of the tender, Silas Maling was acting General Manager of the City Electricity Department. Arnot gave Maling ₤10,000. Maling passed ₤8,000 to an Alderman in the expectation it would be distributed among members of the City Council, and kept the balance. Maling’s share of the bribe, which he described as a “present”, was equivalent to his annual salary.111 There were persistent rumours of misconduct in the tendering process. The scandal grew, and in February 1928, Maling left Australia for New 109 Shirley Fitzgerald, Sydney: 1842–1992, Hale and Iremonger, Sydney, 1992, pp. 230–

5. 110 “Report of Royal Commission Regarding the Contract Entered into by the Municipal Council of Sydney for Steam-raising Plant at Bunnerong Power-house”, Justice J.M. Harvey, NSW PP, 1928/29 JVP, vol. 1, pp. 733–84 [Harvey Royal Commission Report]. 111 Ibid., p. 7.

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Zealand.112 At the end of April, MacKay, who had known Maling for some years, was sent to New Zealand to interview him.113 The position was delicate. There was not enough firm evidence against Maling at this stage to secure his extradition. If he fled New Zealand, he might escape altogether. MacKay found Maling in a hotel in Wellington and conducted a formal interview and some private conversations. On one occasion, Maling and MacKay went for a drive together to one of the ocean beaches near Wellington “primarily”, in Maling’s words, “to see the scenery”. They talked “about things in general, and the subject of the ₤10,000 first came up when [we] were sitting in the car at the beach”.114 MacKay persuaded Maling to return to Australia. Maling cabled his solicitor saying he was doing this of his own free will. This was not strictly true, however. MacKay told Maling he had proof of a breach of stamp duty law on Maling’s part, and that it was sufficient to secure Maling’s extradition from New Zealand. (MacKay may have been bluffing; no charges were ever laid against Maling over stamp duty offences.)115 Maling returned to Australia in the company of Mackay.116 Two weeks later, a Royal Commission, under Justice J.M. Harvey, was established to inquire into the scandal. MacKay’s evidence of what Maling told him in New Zealand was of vital importance. It led to Maling being convicted on fraud charges. He was fined and jailed for six months. Arnot, who paid the bribe, was treated leniently in return for his evidence against Maling.117 In her history of Sydney, Shirley Fitzgerald suggests that the result of the Royal Commission was contrived, an exercise in damage limitation.118 Some aspects of the affair, and MacKay’s role in it, support this contention. Richard Windeyer KC, who represented several aldermen before the Commission, insinuated that MacKay, on instruction from

112 Ibid., p. 8. 113 SMH , 25 April, 1928, p. 11; 26 April 1928, p. 11. 114 SMH , 29 May 1928, p. 11. 115 Ibid. 116 Harvey Royal Commission Report, p. 9. 117 Ibid., pp. 5, 7. 118 Fitzgerald, Sydney, pp. 236–7.

2

‘THE LADDER OF PROMOTION’: LEADERSHIP AND SUCCESSION …

29

higher powers, deliberately kept his field of inquiry narrow, so as to protect the interests of some parties.119 The Bunnerong scandal again showed MacKay to have been a flamboyant police officer who acted with commendable energy and enterprise, and who got results. But there is also, as in the Irish envoys affair, as in the IWW prosecutions, the hint of something being awry, of a deeper and less edifying story concealed beneath the surface.

7

‘I Am Energetic and Ambitious’: Seniority and favouritism

The stagnating effect of a strict seniority system cannot be overstated. In Victoria, in the decades before the catastrophic 1923 police strike, just such a system had prevailed. The result was that most police waited 21 years for promotion to senior constable. As the Victorian Chief Secretary told Parliament: A man’s chances of promotion are very bad until he is nearing the end of his service. They come tumbling over one another at the end, and the men remain just a few years in the senior positions. There is no incentive to good service, zeal, or anything else.120

Despite such obvious disadvantages, most police seem to have been passionately attached to the principle of seniority.121 While seniority had never completely prevailed in the New South Wales Police Force, MacKay’s rise was spectacularly rapid, and he became the object of resentment. In 1932, ill-feeling over MacKay’s success and his own penchant for favouritism bubbled into the open. MacKay had just been made Metropolitan Superintendent, and he gave a lecture to police engaged in suppressing illegal betting. During the address, MacKay strayed into a strange personal outburst, aimed at an officer present in the room, William Jennings. Jennings had been:

119 SMH , 31 May 1928, p. 12. 120 Quoted in Haldane, The People’s Force, pp. 93–4. 121 See for example Whitrod, Before I Sleep, p. 189.

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foolish enough to say that MacKay is putting his own friends into good jobs, that MacKay selects his friends and makes then Area DetectiveInspectors, that MacKay is trying to take all the kudos from the Commissioner, and be put into the job of being Commissioner of Police; that man does not think; if he got his proper deserts he should be charged; but I prefer not to do that.122

Jennings’ own career starkly illustrated the fate of a police officer without powerful friends. He joined the New South Wales Police Force in May 1910, a few weeks before MacKay. He was promoted to sergeant in 1929. Eventually, in 1944, he was made an inspector, before retiring in 1948.123 By then, MacKay had been Commissioner for 13 years. That police officers in Jennings’ situation should become bitter is understandable. In a society marred by sectarianism, it would not have helped that Jennings was Catholic, and MacKay and Mitchell both Scots-born Presbyterians and both Freemasons. That the rise to power of officers such as MacKay was due to favoured treatment was—obviously—true. But like the systems of patronage which greased the wheels of nineteenth-century politics and administration, favouritism could be defended. The Premier of New South Wales, Charles Cowper, said of patronage in 1862: “so long as they made good appointments to the offices, the Government had a right to consider their friends before others”.124 Favouritism of the sort shown by Mitchell to MacKay was a subversion of the principles of seniority, but seniority, applied with scrupulous fairness, resulted in disaster. Favouritism could be seen as a lesser evil, provided it led to “good appointments”. Whether Mitchell’s favouritism was justified by results is hard to assess. As a police leader, MacKay had energy in abundance. His commitment to police work was nigh obsessive. He was a natural leader. But from early in his career MacKay also showed the faults which would later mar his reign as commissioner. In his pursuit of success, he was willing to do the bidding of those who could reward him and to use dubious methods to attain his ends. 122 “Report of the Royal Commission of Inquiry into Allegations Against the Police in Connection with the Suppression of Illicit Betting, 1936” [SP Royal Commission Report], p. 123. 123 NSWSR, Police Dept. Files, AK724, Police Service Cards, William Patrick Jennings. 124 Walker, “The New South Wales Police Force, 1862–1900”, p. 26.

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In August 1928, MacKay and two other officers were sent on an overseas tour to study developments in policing.125 The trip took eight months and included visits to England, France, Canada and the United States. The tour was taken, in MacKay’s words, “with a view to placing the New South Wales Police on up-to-date lines by the adoption of new methods and re-organisation”.126 In characteristic style, MacKay also apprehended a criminal wanted in Australia while he was in Bordeaux. The study tour was part of Mitchell’s grooming of MacKay to succeed him as Commissioner.127 This did not occur immediately, but it was obvious that MacKay would become Commissioner within a few years. Even so, he seems to have been worried that he might miss out. In 1929, he made an unusual and irregular application for promotion. In it, he listed his many achievements and stressed the many occasions in which he had performed duties far above both his rank and salary. “I am not discontented or avaricious”, he wrote, “but I am energetic and ambitious”.128 MacKay was not just a climber, however. While he sought to gain power within the New South Wales Police Force in the late 1920s, he was also actively seeking to expand the powers of the police as a whole. These efforts, which were strikingly successful, are the subject of the next chapter.

125 SMH , 12 July 1928, p. 11. 126 NSWSR, Col. Sect. Correspondence, 5/8914, MacKay to Childs, 19 September

1929. 127 Swanton and Page, “New South Wales” in Swanton and Hannigan, Police Source Book 2, Australian Institute of Criminology, Canberra, 1985, p. 385. 128 NSWSR, Col. Sect. Correspondence, 5/8914, MacKay to Childs, 19 September

1929.

CHAPTER 3

‘Razorhurst’: The Expansion of Police Power, 1927–1930

1

The White Peril

Probably, the first Australian crime novel to deal with the drug trade was Steven Westlaw’s The White Peril, published in 1926. The villains of the story are a “big international drug gang—ruthless, merciless and rapacious”. They use flappers to make cocaine fashionable and lure the innocent to their doom. But for the bravery and enterprise of the hero, the wonderfully-named Dick Stride, the drug gang “might have enslaved this young country and turned it into a breeding ground of vice and corruption”.1 The book’s literary merit is slight, but it is an interesting reflection of the prejudices and anxieties of the day, in particular the alarm caused by the appearance in Australia of “dope”, as cocaine was usually called. To modern eyes, the cocaine “crisis” of the 1920s seems almost idyllic. At the time The White Peril was being written, there were only about 12 known cocaine users in Melbourne. Still, the presentation of “dope” as a new and dangerous substance caught on in the popular mind.2 The cocaine trade was a perennial topic for the weekly newspaper Truth 1 Steven Westlaw, The White Peril , Hodder and Stoughton, London, 1926, pp. 75, 309. 2 Desmond Manderson, From Mr Sin to Mr Big: A history of Australian drug laws, Oxford University Press, Melbourne, 1993, pp. 95–6.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Evans, W.J. MacKay and the NSW Police, 1910–1948, https://doi.org/10.1007/978-3-031-10921-8_3

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throughout the twenties, but the paper’s interest in the drug grew to a new crescendo at the end of the decade.3 Even then the scale of the trade remained small. In the course of 1928 and 1929, the height of the Sydney “snowstorm”, only 62 offenders were prosecuted.4 In Sydney, cocaine came to be associated with the “razor gangs”, criminals who used razors as weapons. Peter Grabowsky argues that the public alarm over razor gangs and violence associated with the cocaine trade was excessive.5 He is right, but imaginary fears are real in their consequences, and the “snowstorm” of the late 1920s helped establish some important patterns in the Australian response to drugs and to organised crime. W.J. MacKay was a major actor in this process.

2

The Invention of ‘Razorhurst’

The rise of the razor gangs, or at least the perception of it, coincided with demographic shifts in Sydney. New outer suburbs were rapidly established after 1920, and these drained population from the inner city. The old inner suburbs, especially Darlinghurst, Surry Hills and Wooloomooloo, came to be seen as the domain of criminals and prostitutes, contrasted with the “normal” and “moral” outer suburbs.6 Just as important was the rise of the New Journalism, what is now loosely called tabloid journalism. The defining feature of the New Journalism was “putting the most attractive goods in the front window”: having the most interesting news of the day on the front page, rather than advertising. The focus was on people and events, rather than weighty policy issues. Sensational crime, celebrities, sport: these were the staples.7 The New Journalism was slow to catch on in Australia and was still a curiosity in the 1920s, regarded by serious-minded broadsheets such as the Sydney Morning Herald with open contempt. But it was a growing force. Daily newspapers such as the Sydney Sun and the Melbourne 3 For typical examples, see Truth, 3 August 1924, p. 1; 23 June, 1929, p. 15. 4 Manderson, Mr Sin to Mr Big, p. 96. 5 Peter Grabosky, Sydney in Ferment: Crime, Dissent and Official Reaction, 1788 to 1973, ANU Press, Canberra, 1977, p. 118. 6 Alfred McCoy, Drug Traffic: Narcotics and Organised Crime in Australia, Harper and Row, Sydney, 1980, p. 115. 7 H.M. Green, A History of Australian Literature, vol. 1, 1789–1923, Angus and Robertson, Sydney, 1961, pp. 903–5.

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Herald presented the wholesome face of the New Journalism, but the style had a sleazy side. This was represented by Ezra Norton’s weekly paper Truth. Enormously popular—Truth was the only newspaper read by many working-class people—it was thick with coverage of divorce and sexual assault cases.8 And it had a fascination, suitably disguised as moral outrage, with crime and criminals. Truth and its rivals created a semifictional world of the demi-monde in the “crime quarter” of the inner suburbs.9 Razorhurst, Gunhurst, Bottlehurst, Dopehurst—it used to be Darlinghurst, one of the finest quarters of a rich and beautiful city; today it is a plague spot where the spawn of the gutter grow and fatten on official apathy. By day it shelters in its alleys, in its dens, the Underworld’s people. At night it looses them to prey on prosperity, decency and virtue, and to fight one another for the division of the spoils … human beasts … live with no aim, purpose or occupation but crime—bottle men, dope pedlars, razor slashers, sneak thieves, confidence men, spielers, gunmen and every brand of racecourse parasite …10

Larry Writer’s book Razor charts the rise and decline of the razor gangs and the sensationalist reporting which chronicled it.11 One of the major players in the suppression of the razor gangs, he argues, was “the hard man of Darlinghurst Police Station”, W.J. MacKay: “More than any other single police officer or politician, William MacKay was responsible for the jihad [sic] on Razorhurst”.12 This is an understatement. MacKay did not just suppress Razorhurst; he was at least partly responsible for inventing it. The clamour for greater powers for the New South Wales Police Force seems to have begun in June 1927, with an editorial in the Sun. Referring to a recent shooting, in which a notorious criminal had been killed, the paper warned that Sydney was developing “Chicago Habits”.13 Organised 8 R. B. Walker, Yesterday’s News: A History of The Newspaper Press in New South Wales from 1920–1945, 1980, pp. 6, 40–2. 9 McCoy, Drug Traffic, p. 95. 10 Truth, 23 Sept. 1928, p. 5. 11 Larry Writer, Razor. 12 Ibid., p. 130. 13 Sun, 23 June 1927, clipping in NSWSR, Col. Sect. Correspondence, 5/8918.

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criminal gangs were such a menace that an extraordinary response was needed, it said. Rather than submit to the danger of continual clashes between underworld gangs, to the daily murders and the terrorisation of witnesses and juries which goes on in Chicago, the citizens of Sydney would gladly give the police any reasonable powers for which they asked. If this evil grows … because of insufficient police powers, then it will still be the fault of the police in not asking for such powers.14

The Commissioner, James Mitchell, asked for a report, and it fell to Inspector W.J. MacKay, recently transferred to Darlinghurst as officer in charge, to provide it. MacKay began by playing down the problem. “There are no organised revolver or razor gangs in this City”, he wrote, and dismissed comparisons with American organised crime: “such gangs do not exist here”.15 The recent shootings were the result of standover men becoming too greedy and aggressive, and being punished by “their outraged fellows”.16 Even so, MacKay set out a shopping list of additional powers he thought would be useful. He referred to a recent case in which two men—suspected by the police to have been involved in the shooting of a notorious criminal, Norman Bruhn—had been charged under the Vagrancy Act, but acquitted. The officer in charge of the case, DetectiveSergeant J.H. Miller, was scathing of the existing law: “In my opinion, the Vagrancy Act as administered at present... is utterly useless”.17 Miller believed that a law forbidding “consorting with convicted thieves” would: prevent gangs of Criminals congregating in brothels and Beer Houses and other Public Places, where no doubt all the serious offences are discussed, and a good quantity of the stolen property disposed of.18

14 Ibid. 15 NSWSR, Col. Sect. Correspondence, 5/8918, MacKay to Metropolitan Superinten-

dent, report re Sun article, 5 July 1927. 16 Ibid. 17 Ibid., Detective-Sergeant J.H. Miller to MacKay, 29 June 1927. 18 Ibid.

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Miller also suggested greater powers to search for guns and increased penalties for possessing unlicensed firearms.19 MacKay endorsed Miller’s assessment: It appears to me that additional legislation is necessary to effectively deal with certain classes of criminals … [the sort of person who is] continually to be found about the City in the company of criminals and prostitutes, and who lives by theft or other dishonest means, and does no honest work whatsoever.20

Early in 1928, a press campaign began for more men and greater powers for the police. Truth called for new laws preventing the carrying of razors.21 The Sunday Times editorialised that the force needed more officers.22 A letter to the Sunday News demanded government action: “Although the police are doing their duty, they are unable to convict, owing to the obsolete laws”.23 In response to these articles, Commissioner Mitchell wrote to Frank Chaffey, Attorney-General in the Nationalist government which had recently returned to power. Mitchell was calm and measured: he said that the use of razors was a recent development and unlikely to last. “Razor slashing is a passing phase just as Lysol drinking was favoured as a method of suicide a few years ago”. He said that most of the violence was between “contending factions of criminals” and that the risk to other members of the public was slight. In cases where ordinary members of the public had been assaulted—that is, where there was a complainant willing to identify the offender—it was rare for a charge not to be brought. The only legislative amendment Mitchell suggested was a tightening of pistol licensing laws.24 The Metropolitan Superintendent, Walter Childs, was also low-key in his response:

19 Ibid. 20 Ibid., MacKay to Metropolitan Superintendent, 5 July 1927. 21 Truth, 15 January 1928, clipping in ibid. 22 Sunday Times, 8 January 1928, clipping in ibid. 23 Sunday News, 8 January 1928, clipping in ibid. 24 Ibid., Mitchell to Chaffey, 18 January 1928.

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The fact that Police know the lairs and haunts of these people does not mean anything in the existing state of the law … They must be somewhere, and when not committing any offence, the Police cannot interfere with them.25

Had it been up to Mitchell and Childs, it is unlikely much would have happened. MacKay, however, was energetically pursuing the programme he had outlined the previous year, taking advantage of a “crisis” to secure what he wanted. In March, he wrote to Chaffey suggesting laws prohibiting the carrying of razors, changes to the Vagrancy Act making it easier to secure convictions and the creation of a consorting offence. MacKay’s language was unusually colourful: It is within my knowledge that numbers of thieves and prostitutes frequently congregate and hold parties about Darlinghurst and Surry Hills wherat [sic] drinking and the partaking of cocaine is a favourite pastime and the introduction of a [consorting] clause … would afford the Police powers which they do not now possess to deal with such persons.26

MacKay suggested wording for the amendment and was almost sycophantic in his offers of help: This is a subject about which quite a lot could be written and very many instances given to show how beneficial such an amendment … would be to this State … should it be deemed desirable to adopt the proposal … very good material could be made available to the Honorable the Minister to ensure such amendment being passed into law.27

Throughout 1928, the press became increasingly shrill. “Sweep the Gangsters from Sydney’s streets!” howled Truth in September: Sydney has degenerated into a violent lawlessness … Our city is already the Chicago of the south … the gospel of the gun, the razor, and gang terror, is … practiced with demoniacal thoroughness in the highways and by-ways in broad light of day.28 25 Ibid., Childs to Mitchell, 13 January 1928. 26 Ibid., MacKay to Chaffey, via Metropolitan Superintendent, 9 March 1928. 27 Ibid. 28 Truth, 16 September 1928, p. 24.

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Under the hyperbole were some consistent themes. The solution to this urgent problem? More police, with more and faster cars, and greater powers. In particular, the Vagrancy Act needed to be amended: There is only [one] way to net the vagrants in—and they are the real bone and sinew of the criminal underworld. That way lies in so amending the Vagrancy Act as to make consorting among criminals, or consorting with convicted persons, a punishable offence. This would have the double good of making convictions easy, and from preventing criminals from associating to hatch their conspiracies against property, life, law and society in general.29

The campaign was persistent, and in time, the more staid newspapers joined in. The Sydney Morning Herald enlivened its sober columns with uncharacteristic headlines: “Razor Slashing: Young Woman Arrested”, “Man Shot in Sly-grog Shop; Underworld Quarrel”and “Gang War”.30 In time, these incidents cumulatively became a “Crime Wave” which had “Cabinet Perturbed”.31 A crisis demands a response, and so there were soon: “Counter Measures; Cabinet Acts; Force to be Increased”.32 The Premier promised a new police station and 200 extra police. The Chief Secretary, Albert Bruntnell, consulted with Mitchell and MacKay, and the result was an immediate increase in the ranks of the CIB.33 By August, Mitchell had changed his attitude to the need for new laws. He wrote to Chaffey, requesting all the amendments that had been suggested by MacKay. One of them, creating an offence for carrying a razor without reasonable excuse was perhaps justified. The other suggested amendments were, by any measure, draconian. In particular, it would became an offence to “habitually consort... with reputed thieves or persons who have no visible means of support”. The onus of proof in vagrancy charges was shifted onto the defendant, who had to prove that any assets were honestly obtained.34

29 Ibid. 30 SMH , 22 June 1928, p. 12; 17 March, p. 17; 24 June, p. 11. 31 SMH , 10 July 1928, p. 11. 32 SMH , 11 July 1928, p. 11. 33 Ibid. 34 NSWSR, Col. Sect. Correspondence, 5/8918, Mitchell to Chaffey, 11 Aug. 1928.

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MacKay pressed his case again in October. He had recently visited New Zealand and Western Australia, both jurisdictions which had a consorting law, and: in both States reliable and experienced Police Officers informed me that the [consorting] clauses … had been of inestimable value in ridding [their jurisdictions] of undesirable hardened criminals … they also stated that these provisions were only used after consultation with experienced Police Officers and every care was taken to ensure that the provisions were not unjustifiably exercised.35

The subtext to MacKay’s reassurance was that the police would use their discretion to enforce the new law “justifiably”: that is, against those the police “knew” to be criminals. Such people had, implicitly, forsaken their civic rights. Notes provided to Chaffey, for use in Parliament during the debate on the legislation, were quite open about this. There is an organised society which does not recognise the law … The Police whose duty it is to enforce the law must be given every encouragement in the carrying out of their onerous and often dangerous work. They have told me that they have insufficient power to break up the meetings of these criminals … I can assure the Hon. Members that the time-honoured rights of the respectable, decent living citizens are in no way endangered. It must be admitted that the criminal element has abused those privileges and consequently is not entitled to claim the protections they have hitherto afforded … it is only trifling with crime and vice to leave the way open for criminals to consort together and concoct their despicable schemes …36

Robert Reiner, in his study of police culture, writes that police divide society into categories, one of which he terms “police property”. These are people on the fringes of society, hated and feared by the respectable middle class. Provided the police keep “property” under control, society usually turns a blind eye to how this is done.37 The Vagrancy (Amendment) Act was tantamount to official recognition of “police property”, a class of people stripped of their civic rights. As Larry Writer puts it, the 35 Ibid., MacKay to Childs, 23 October 1929. 36 Ibid., “Notes for use in debate—VAGRANCY BILL”, n.d. 37 Robert Reiner, Politics of the Police, 2nd ed, Harvester Wheatsheaf, Hemel

Hempstead (UK), 1992, p. 117.

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new law gave the police “almost unlimited powers to arrest, and judges to imprison, any person who met with associates of whom an officer disapproved”.38 The legislation was passed in 1929 and enacted the following year. MacKay took immediate advantage, creating a “Consorting Squad” within the CIB, whose task it was to break up criminal gangs. A famous passage in the discipline of criminology is Stanley Cohen’s description of a social phenomenon he terms moral panic . Societies appear to be subject, every now and then, to periods of moral panic. A condition, episode or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylised and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right-thinking people … Sometimes the object of the panic is quite novel and at other times it is something which has been in existence long enough, but suddenly appears in the limelight. Sometimes the panic passes over and is forgotten except in folklore and collective memory; at other times it has more serious and longer term repercussions …39

The Sydney “Snowstorm” of the 1920s was a classic example of a moral panic and shows how such a climate can be engineered and exploited. Larry Writer argues that Truth was instrumental in creating the climate of public opinion which allowed the introduction of the consorting law and other increases in police powers.40 This is probably true, but Writer overlooks the possibility that Truth was itself being used. Journalists frequently delude themselves about the extent to which they independently obtain information. What news organisations think of as “investigative journalism” is very often controlled disclosure by self-interested parties.41 The police and the news media have a symbiotic relationship. Crime is newsworthy, and the police are usually the only legitimate source of crime news; the police, in turn, depend heavily on the media for the public

38 Writer, Razor, pp. 128. 39 Stanely Cohen, Folk Devils and Moral Panics: The Creation of the Mods and the

Rockers, Routledge Classics, New York, 2011, p. 9. 40 Writer, Razor, p. 83. 41 Tiffen, Rodney: Scandals: Media, Politics and Corruption in Contemporary Australia,

University of New South Wales Press, Sydney, 1999, pp. 35–7.

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support necessary to their function.42 Australian police leaders have not always recognised the importance of the media, but MacKay was acutely aware of it.43 He cultivated many journalists, and although he sometimes played favourites, he was remembered fondly by most crime reporters of the time.44 According to Vince Kelly: MacKay had his occasional brushes with the newspapers, but he believed that without their co-operation the machinery of criminal detection would be seriously hampered, and he sought sincerely to maintain a basis of intelligent co-operation with the Press.45

There is, of course, a danger that this relationship can become overly close.46 Selwyn Speight, a crime reporter with the Sydney Morning Herald in the 1930s, was frank about this: “you get so friendly with the police that you almost get in their pocket”.47 While there is no direct evidence, a strong circumstantial case can be made that the press campaign for the consorting power was orchestrated by MacKay. Truth and its proprietor, Ezra Norton, would later turn against MacKay. During the razor wars, however, it was evident that Truth was getting inside information and was building up MacKay’s profile in return. Most of the articles demanding action against the razor gangs do not cite police sources, but the suggested remedies are all but identical to those MacKay was urging in his internal reports.48 MacKay was the driving force inside the New South Wales Police Force in the efforts to

42 Ellis, Justin, and Alyce McGovern, “The end of symbiosis? Australia police–media relations in the digital age”, Policing & Society, vol. 26, no. 8, 2016, pp, 944–62. 43 Sir Thomas Blamey, Chief Commissioner of the Victoria Police from 1925 to 1936, despised the press and actively harassed reporters. John Hetherington, Blamey: Controversial soldier, Australian War Memorial and AGPS, Canberra, 1973, pp. 64–9. For MacKay’s appreciation of public relations, see Writer, Razor, p. 138. 44 Speight interview, 1:1/9. 45 Kelly, The Charge is Murder, p. 9. 46 Robert Reiner, “Media made criminality, The representation of crime in the mass

media” in Mike Maguire, Rod Morgan and Robert Rainer (eds), The Oxford Handbook of Criminology, 2nd ed., Oxford University Press, Oxford, 1997, pp. 221–2. 47 Speight interview, 1:1/10. 48 For example, NSWSR, Col. Sect. Correspondence, 5/8918, MacKay to Metropolitan

Superintendent, 9 March 1928; Truth, 16 September 1928, p. 24.

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secure the new powers. Almost certainly, MacKay was also feeding material to the press to help create a climate of opinion in which these powers could be won. At the time, the consorting law was seen as a triumph, for the government, for the police force and for MacKay. Frank Chaffey made the most of the opportunity to exploit a law-and-order success. “The reign of terror is ended”, he said in 1930: the Consorting Clause gave the police more power than they sought, and the results certainly exceed anything I expected … no other Act of Parliaments has been of such assistance in ridding the streets of undesirables.49

Chaffey’s assertions were widely accepted. In 1931, Smith’s Weekly argued that: The detectives have now such a firm grip on the underworld that razor slashings are almost a thing of the past and gun play has lost most of its charm. But it is generally conceded that the authorities could go very much further by using the Consorting Act to make life really unbearable for the crooks … the iron hand of Det-Supt. MacKay is something that they really fear in the dark corners about King’s Cross. Let’s see it really in action.50 [Original emphasis.]

Breaking the razor gangs became part of MacKay’s personal legend. In 1946, Truth, which had turned against MacKay, harked back to the razor wars with a rare kind word: When the present chief of police, Mr McKay, was in charge of Darlinghurst, he made the Cross safe for decent citizens. The place is due for another sound dusting.51

49 Quoted in Writer, Razor, p. 130. 50 Smith’s Weekly, 31 October 1931, p. 3. 51 Truth, 14 July 1946, p. 37.

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3

Snowstorm: The Creation of the Drug Squad

The consorting law was not the only increase in police powers in which MacKay had a hand. During the same period, he played a role in the criminalisation of narcotics in New South Wales and firmly established the police as the agency to enforce the new laws. The police had pressed for new powers to police drugs as early as 1923. A Bill was prepared but not introduced to Parliament, largely because of fierce opposition from the Pharmacy Board, which had the major role in controlling drugs under existing legislation.52 In 1927, Commissioner Mitchell again pressed for new powers, urgently needed to “effectively deal with this evil”. Mitchell’s representations were based on a report by MacKay, who had inquired into the “dope scene”. Yet even MacKay’s report only alleged that about 15 prostitutes were taking cocaine regularly.53 The report emphasised the connection between the drug and depravity: certain undesirables—bludgers [pimps], thieves, etc.—have been disposing of large quantities of dope, known as “Snow” to women of the town and also to that class of young women who nightly frequent City Cafes dancing, drinking, etc.54

This time the police were successful, and the new law took effect in 1927. It would have displeased MacKay in one respect: some policing powers were retained by the Pharmacy Board.55 In 1928, MacKay established a Drug Squad within the CIB: its first two members were detectivesergeants Wharton Thompson and Tom Wickham, both protégés of MacKay.56 It was the first drug squad in Australia and reflected MacKay’s enthusiasm for increased specialisation.57 52 NSWSR, Col. Sect. Special Bundles, 3/2376.2, Drugs Act amendments, ministerial briefing paper, “History of ‘Drug’ Legislation in New South Wales”, 21 September 1933 [“History of Drug Legislation”]. 53 Manderson, Mr Sin to Mr Big, p. 96. 54 Quoted in ibid., p. 97. 55 Ibid,, p. 88. 56 Kelly, Rugged Angel, p. 104. 57 K.S. Astill, “Fifty years of drug law enforcement in New South Wales”, Australian

Police Journal, vol. 31, no. 4, Oct. 1977, p. 195; Seggie, “Police and Government”, p. 207.

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There soon was friction between the police and the Pharmacy Board. In 1931, the police accused the Pharmacy Board’s investigator of misconduct in a drugs prosecution.58 A power struggle ensued. The Board conducted an inquiry which blamed the police, finding that “there appears to be some underlying motive for the false charges made by Detective Sergeants Wickham and Thompson”. The police claimed the Board was biased and demanded a new inquiry. This inquiry was conducted by a retired Stipendiary Magistrate, A. Gates. Supposedly independent, he deferred to the police, and the Pharmacy Board soon found itself effectively on trial.59 MacKay told the inquiry that his Drugs Squad had worked “in perfect harmony” with the Pharmacy Board inspectors until late in 1929. Then, MacKay was approached by a woman who alleged that one Doctor Gordon Lowe had supplied her with large quantities of drugs. When the police raided Lowe, he was able to account for the drugs, but the ledger aroused MacKay’s suspicion. “I came to the conclusion that that book had just been prepared and was a fake”. Lowe must have been tipped off by an insider, “some person who was well acquainted with the schedule in which these requisites should be kept”. MacKay suspected misconduct by an officer of the Pharmacy Board and warned his detectives to cease all co-operation between the two agencies.60 However, there was more to this affair than MacKay was admitting to. Lowe himself was never charged with any offence. MacKay’s evidence on why Lowe was not charged, and whether Lowe had confessed to faking his records, was vague and evasive. MacKay said he was sure that someone from the Pharmacy Board had acted improperly: yet the Lowe investigation had been handled by Drug Squad officers, and the Pharmacy Board had had no knowledge of the raid. Forced to defend Wickham and Thompson, MacKay was consistently vague on details of important meetings and conversations, and long on general character endorsement.61

58 Manderson, Mr Sin to Mr Big, p. 89; “History of Drug Legislation”. 59 “History of Drug Legislation”. 60 NSWSR„ Col. Sect. Special Bundles, 5/5382.3, “Inquiry into the Relationship Existing Between the Pharmacy Board and the Police Drug Bureau”, July 1931, pp. 2–4. 61 Ibid., pp. 3–4, 204–5.

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MacKay:

Gates: MacKay:

I have worked with them as a constable and a sergeant for 20 years and if they were wrong I would lose all faith in human nature … I can take it then that the Police Department had absolute confidence in them? Absolutely.62

Gates took MacKay’s word. The inquiry found that Thompson and Wickham had done no wrong, that “since 1929, there has been a lack of mutual confidence and cooperation between the Pharmacy Board and the Police Department”. This could not be allowed to continue: the prompt and efficient detection and prosecution of offences under the Act is a matter of extreme public importance and should not be under divided control.63

The Pharmacy Board was soon afterwards stripped of its policing powers.64 It can be argued that this was an appropriate result. Manderson describes the behaviour of the Pharmacy Board over many years as arrogant and incompetent, and its inspectors were probably corrupt.65 The consolidation of drugs law in police hands was seen as a success at the time. The new squad, often working with the small number of women police attached to the detective branch, did prosecute a number of cocaine dealers, many of whom were connected to prostitution.66 It was not long, however, before a major amendment to the Police Offences Act increased both the penalties for drug offences and the powers of the police to detect them.67 As Manderson argues, this was the enduring legacy of the “snowstorm”: a long and destructive pattern of escalation in legal penalties for drug offences, the very ineffectiveness of which justify even greater severity.68

62 Ibid., p. 207. 63 “History of Drug Legislation”. 64 Astill, “Fifty years of drug law enforcement”, p. 197. 65 Manderson, Mr Sin to Mr Big, pp. 87–89. 66 Kelly, Rugged Angel, p. 86. 67 Astill, “Fifty years of drug law enforcement”, p. 197. 68 Manderson, Mr Sin to Mr Big, p. 100.

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4 ‘A Very Dangerous Public Consequence’: Warnings and Outcomes For all its faults as literature, Steven Westlaw’s The White Peril was prescient. The fear that drugs might create “a breeding ground of vice and corruption” has been realised.69 Drugs have become a massive social problem and have corrupted many important institutions, including police forces.70 Ironically, the actions of those wishing to emulate Dick Stride, aggressively pursuing the suppliers of drugs, have arguably made the problem worse. For the New South Wales Police Force, the power to police drugs, for which MacKay manoeuvred so persistently, has proven a poisoned chalice. The sorry history of drugs-related corruption, and the massive damage it has caused the police and society, is too well known to require recapitulation. It would be unjust to blame MacKay personally for this. The scale on which narcotic drugs would be consumed in Australian society could not have been predicted. Even if MacKay had not taken the actions he did, the outcome would have been the same. All the states of Australia formed drugs squads and framed similar legislation at about this time, mostly because of pressure from the federal government which was concerned about international treaty obligations.71 The consorting laws are a different matter. In 1962, an official history of the New South Wales Police Force praised the 1929 Vagrancy (Amendment) Act as a major step forward. At the time, the City of Sydney was infested with criminals, undesirables and nefarious groups, better known as the “razor gang” element. This legislation was imperative … [and] a Consorting Squad was formed within the Criminal Investigation branch. The activities of this new formed squad were largely responsible for the suppression of these organised criminal groups and the total extinction of the “razor gang” adherents … The Consorting Squad is considered

69 Westlaw, The White Peril , p. 309. 70 Tom Valenta and John Sherman, Drug Addiction in Australia, Michelle Anderson,

Sydney, 2015. 71 Manderson, Mr Sin to Mr Big, pp. 69, 71.

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the best training ground of all for aspiring young detectives to acquire knowledge of the “under-world” and the criminal element generally.72

These words had unintended irony. Many detectives came to know the criminal element rather too well: corrupt relationships between criminals and police in the Consorting Squad became notorious. In 1928, during the debate on the consorting amendment, Linda Littlejohn and Jessie Street, both prominent feminists, wrote a joint letter to members of the Legislative Assembly, expressing their opposition to the proposed law. Their particular concern was the potential for the unfair treatment of prostitutes, but their warning about the likely effect on the police could have applied more generally: “It will open the way to bribery and corruption of the police—a very dangerous public consequence”.73 Some 70 years later, the Wood Royal Commission would lament the extra powers the police were granted as a result of the razor wars. The consorting law was open to abuse and was abused: The special powers conferred later came to be an instrument for … the establishment of improper relationships … [which were] a powerful influence in the increased development of corruption.74

Unlike the prohibition of narcotics, the consorting law almost certainly would not have been introduced in New South Wales unless MacKay had pushed for it. The low-key responses by Mitchell and Childs to the early press campaign suggest that there was no real need for a consorting law. The abuse of the law and its corrupting potential were predictable and predicted. Both the consorting law and the police control of narcotics were the result of artificially generated crises. By 1929, however, New South Wales was sliding into a genuine crisis. Even before the onset of the Great Depression, some of the worst industrial strife in Australia’s history took place in New South Wales. MacKay played a central role in the police response, which is the subject of the next chapter. 72 Hoban, New South WalesPolice Force, pp. 60–1. 73 NSWSR, Col. Sect. Special Bundles, 5/8918, L. Littlejohn and J. Street to Members

of the Legislative Assembly, copy, n.d. 74 Final Report, Royal Commission into the New South Wales Police Service, vol. 1, Justice J.R.T. Wood, 1997, pp. 53–6 [Wood Royal Commission Report].

CHAPTER 4

‘Murderous Coppers’: Policing the Timber Strike and the Coal Lockout, 1929–1930

1

The Union Buries Its Dead

On the afternoon of Tuesday 17 December 1929, some 6,000 people gathered at Greta, a coal town in northern New South Wales, for the funeral of Norman Brown. There were so many mourners that thousands were unable to get into the cemetery and stood around the boundary fence. Among the crowd were Newcastle Region Superintendent Alexander Beattie and Inspector W. J. MacKay, officer in charge of the CIB.1 Several of MacKay’s critics accused him of personal cowardice.2 His presence at the Greta cemetery on this day belies the charge: it was an act of some courage for him and Beattie to be there. They were surrounded by Norman Brown’s fellow miners, union comrades in a bitter industrial dispute which had dragged on for nine months. The previous day, Brown, 29, taking part in a picket at the Rothbury colliery, had been killed by a police bullet. At least, ten other miners had been injured by bullets, two of them critically. The Anglican Bishop of Newcastle, Dr Long, conducted the service. He pleaded for restraint and calm, and on the day of the funeral, there 1 Description of funeral based on SMH , 18 December 1929, p. 15; Daily Telegraph, 18 December 1929, p. 2; Newcastle Morning Herald, 18 December 1929, p. 7. 2 See for example Fry, Tom Barker, p. 30.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Evans, W.J. MacKay and the NSW Police, 1910–1948, https://doi.org/10.1007/978-3-031-10921-8_4

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were no incidents. But few of those present could have doubted that more trouble was coming. The police, the agents of State power, had come into open conflict with organised labour. There was talk of the miners forming a workers’ army, of civil war.3 The task of reasserting State power on the northern coalfields would fall to MacKay. This he would achieve: swiftly, efficiently and brutally.

2

The Mythology of Rothbury

The Rothbury shootings have become part of union folklore and also part of the personal mythology of W. J. MacKay. There are several songs about the incident. One, the lyrics for which were written by playwright and novelist Dorothy Hewitt, has a rollicking chorus: Norman Brown, oh Norman Brown, The murderous coppers they shot him down.4

But strangely for such a dramatic event, Rothbury has been subject of little serious historical inquiry. Police history is inaccurate, evasive and brief in its treatment of Rothbury. “Peace”, write Swanton and Hoban, “was rapidly achieved”.5 A history of the mounted police alleges the miners “fired iron bolts from catapults”, which is untrue, and uses the passive voice—“Fire was opened”—to avoid apportioning responsibility for the shooting.6 Histories of the coal industry, similarly, touch lightly on the incident.7 More radical historians react to the event without surprise. This, after all, is what Marxist theory predicts: the iron heel of the capitalist State crushing the workers.8 Stuart Macintyre’s description is typical:

3 SMH , 18 December 1929, p. 16; Labor Daily, 17 January 1930, p. 1. 4 Warren Fahey, The Balls of Bob Menzies: Australian Political Songs, 1900–1980, Angus

and Robertson, Sydney, 1989, p. 119. 5 Swanton and Hoban, “MacKay”, p. 18. 6 J.S. O’Sullivan, Mounted Police in N.S.W., Rigby, Adelaide, 1978, p. 139. 7 A.G.L. Shaw and G.R. Bruns, The Australian Coal Industry, Melbourne University

Press, Melbourne, 1947, pp. 146–7. 8 See, for example, Andrew Metcalfe, For Freedom and Dignity: Historical Agency and class structures in the Coalfields of NSW , Allen and Unwin, Sydney, 1988, p. 9.

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The Kurri Kurri pipe band led 10,000 protesters in the small hours of 16 December up to the pit where they were ambushed by armed police. Forty men were wounded; Norman Brown died of a shot in the stomach. After Rothbury the northern coalfield was an occupied province in which police detachments conducted a reign of terror … Baton charges, violent assault and arbitrary arrest became habitual.9

The incident is described in several works of labour history, notably Wendy Lowestein’s Weevils in the Flour.10 However, the value of this material is limited. Oral testimony is uncritically repeated, even when it is easily disproved. Metcalfe, for example, repeats claims that the police used at Rothbury were armed with steam hoses and machine guns, for which there is no evidence.11 Most of the oral accounts, too, come from one person, Jim Comerford, who later became a prominent union official. Comerford told the story of Rothbury frequently, and his account did get polished with time. Comerford wrote a semi-autobiographical novel; an extract covering the Rothbury shootings was published in 1956. While his fiction no doubt reflected his experiences, it is hard to avoid the impression that his later recollections were influenced by his fiction.12 There has been only one adequate study of Rothbury: an MA thesis by Miriam Dixson, subsequently reworked in a journal article and a book chapter.13 Dixson’s focus, though, is on the mining unions and their

9 Stuart Macintyre, The Reds: The Communist Party of Australia from Origins to Illegality, Allen and Unwin, Sydney, 1998, pp. 154–7. 10 Wendy Lowenstein, Weevils in the Flour: An Oral Record of the 1930s Depression in Australia, rev. ed., Scribe, Melbourne, 1981, pp. 79, 82–8. Other examples are Edgar Ross, A History of the Miner’s Federation of Australia, Australasian Coal and Shale Employees’ Federation, Sydney, 1970, pp. 340–2; Metcalfe, Freedom and Dignity, pp. 149–56. 11 Metcalfe, Freedom and Dignity, p. 149. 12 See Jim Comerford, “Rothbury, 1929”, Overland, no. 6, February 1956, pp. 3–4;

and Lowenstein, Weevils, pp. 83–87. 13 Miriam Dixson, “The strike of the waterside workers in Australian Ports, 1928, and the lock-out of coal miners on the Northern Coalfield of N.S.W., 1929–30”, MA thesis, University of Melbourne, 1957 [Dixson, MA thesis]; “Rothbury”, Labour History, no. 17, 1970, pp. 14–26; “Stubborn resistance: The northern New South Wales miners’ lockout of 1929–30”, in John Iremonger and John Merritt (eds), Strikes: Studies in Twentieth Century Australian Social History, Angus and Robertson, Sydney, 1973. Dixson’s surname was Rechter when she submitted her thesis; to avoid confusion, I will use Dixson consistently.

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handling of the dispute. She does not investigate the incident in detail or tackle the policing issues it raises. The significance of Rothbury is such that it cannot be dismissed in passing. The coal lockout and the Rothbury shootings were cataclysmic events in the history of the northern coalfields. Rothbury shaped relations between the miners and employers, and between the community and the police, for a generation.14 It is also an important part of the personal myth of W.J. MacKay. “It was none other than MacKay who gave the order to shoot down the miners of Rothbury”, howled a Communist Party pamphlet in 1937: “A staccato order rang out. Rifles cracked! Nine workers lay prostrate. Norman Brown had been murdered. MacKay was qualifying for promotion”.15 Jack Lang, then leader of the Labor opposition, said in a memoir that MacKay: led the police sent up from Sydney to protect the [Rothbury] mine. During the disturbance the deputy leader of the Labor party … J.M. Baddeley, had been hit over the skull by a police truncheon. It was generally believed that the policeman wielding the truncheon had been MacKay.16

A popular history of the Depression describes how: “DetectiveInspector W.J. MacKay led the charge against miners at Rothbury in December 1929”.17 Frank Cain, in his article on MacKay in the Australian Dictionary of Biography, writes: MacKay was often at the forefront of such events as at Rothbury … when police, guarding the mine, fought against locked-out miners and a young miner was shot dead.18

14 Alan Walker, Coaltown: A Social Survey of Cessnock, Melbourne University Press, Melbourne, 1945, pp. 7–10. 15 McWilliams, “Our” Police Force, p. 13. 16 J.T. Lang, The Turbulent Years, Alpha Books, Sydney, 1972, p. 157. 17 Michael Cannon, The Human Face of the Great Depression, Today’s Australia

Publishing, Mornington (VIC), 1997, p. 13. 18 Cain, “MacKay”, ADB.

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Rothbury was just one incident, though the most spectacular, in a great struggle between labour and capital at the onset of the Depression in Australia. This struggle centred on three big industrial disputes—strikes by waterside and timber workers and a lockout of coal miners—which began in late 1928 and did not finally end until 1930, and which divided and all but bankrupted whole communities.19 The strike by waterside workers began in September 1928. The centre of the struggle and the worst violence was in Melbourne.20 However, there was relatively little trouble in New South Wales, where the strike ended earlier than elsewhere.21 In the timber strike and the coal lockout, however, the New South Wales Police Force and W.J. MacKay played important and often controversial roles.

3

Police and Industrial Disputes

Industrial disputes pose particular difficulties for police forces. The legal position of the parties involved in a dispute, and of the police themselves, is often ambiguous. A strike or lockout is not (usually) illegal: it is an extreme measure used to put pressure on the other party in a contractual disagreement. However, the tactics which unionists often adopt, especially picketing, may place them in conflict with police, especially if the pickets wish to prevent strike breakers from entering the workplace.22 The tension in policing between enforcing the law and keeping the peace is acute on a picket line.The police usually have the legal power to arrest picketers, but strict enforcement of such laws has been rare. Police usually opt for a low-key, minimum arrest policy. Such a peace-keeping role maintains at least the appearance of neutrality.23

19 Miriam Dixson, “The timber strike of 1929”, Historical Studies of Australia and New Zealand, vol. X, no. 40, May 1963, p. 479; Richard Cotter, “War, boom and depression”, in James Griffin (ed), Essays in Economic History of Australia, 2nd ed., Jacaranda, Brisbane, 1970, pp. 244–82. 20 Budd, “Waterfront riots”, pp. 137–44. 21 Dixson, MA thesis, pp. 43, 107. 22 David Baker: “Police, pickets and politics: The policing of industrial order in Australia”, PhD thesis, Monash University, 2000, pp. 9, 71–2, 352. 23 Ibid., pp. 22, 65–6, 74, 113.

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Such “neutrality” tends in fact to protect the economic interests of employers, but its importance in preserving the peace cannot be overstated. Most of those perpetrating violence in industrial disputes usually would be law abiding. Such people will become involved in violence against strike breakers and police only when they feel both that their grievances are legitimate, and that the police are agents of injustice.24 What causes violence between unionists and police is disputed, but some common factors can be identified.25 Violence is more likely if the dispute is protracted; if the grievances of those directly effected can be seen to represent a broader injustice; and existing institutions for resolving conflict fail. Tensions may increase if governments or employers pressure the police to take a more aggressive stance against unionists, in particular having police escort strike breakers through picket lines.26 Another factor which I have not seen identified in any literature on this subject is police incompetence. If senior officers lack the foresight to prevent a dangerous confrontation developing, and panic when such a confrontation occurs, then the safety of both the public and the police is threatened. An industrial dispute which descends into serious violence can be a serious challenge to the legitimacy of State power. When such a challenge occurs, there usually will be a swift and repressive response. The agents of State power, the police, will act to restore control and are almost always quickly effective in doing so.Such action has a high cost: it makes the police appear as agents of injustice, the partisan servants of capital, and erodes the community consent so critical to police power. Even so, when seriously challenged such factors become secondary to the imperative that the police, the foundation of State power, must reassert control. Control and order are the basic mandate of modern police. The police believe they must always win if their power is challenged; failure to do so damages the important illusion of police omnipotence.27

24 P.A.J. Waddington and Patricia Leopold, Protest, Policing and the Law, Institute for the Study of Conflict [UK], n.d. [c. 1985], pp. 3–4. 25 David Baker, “Public order policing approaches to minimize crowd confrontation during disputes and protests in Australia”, Policing: A Journal of Policy & Practice 14, no. 4, 2020, pp. 995–1014. https://doi.org/10.1093/police/paz071. 26 Ibid., 40–41; Baker, “Police, pickets and politics”, pp. iv, 2–3, 29. 27 Reiner, Chief Constables, p. 183; Baker, “Police, pickets and politics”, pp. 3, 6, 62–3.

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The policing of industrial disputes is a test of social cohesion. In Australia, the usual experience is for the legitimacy of the State and the police to be respected. This has been variously attributed to tactful policing and the comparatively law-abiding character of most unionists.28 The 1929 coal lockout fitted this pattern. Right up to the Rothbury shootings it was remarkably peaceful, even though the miners had every reason to be aggrieved.29 There was no serious trouble in nearly ten months of the dispute. Reported crime in the Newcastle police district, including the offences against good order commonly associated with picketing, actually decreased during the dispute.30 However, the timber strike, which was in full swing when MacKay returned from overseas in early 1929, was a different matter. With militant union leaders on the one side and a hard-line government and employers on the other, the dispute quickly reached levels of violence rarely experienced in Australia.

4

‘It Was Bad Trouble’: The Timber Strike

In 1928, Justice Lukin, a conservative appointment to the Industrial Court, handed down a new award covering the timber industry, reducing wages and increasing working hours.31 The award was seen by the labour movement as the beginning of a general attack on wages and conditions, and when the timber workers went on strike, they received widespread support.32 The dispute was an “extendable” protest, a struggle with implications for a wide constituency.33 The strike in New South Wales was controlled by the Disputes Committee of the Trades and Labour Council. The Committee, in turn, was dominated by Jock Garden. Garden, a Scottish immigrant, was a founding member of the Communist Party of Australia. He had left the party in 1926, but remained a radical socialist. As secretary of the Trades and Labor Council, he was one of the most powerful figures in the labour 28 Walker, “Violence in industrial conflicts”, pp. 66–7. 29 Shaw and Bruns, Australian Coal Industry, p. 147. 30 Newcastle Morning Herald, 7 January 1930, p. 7. 31 Dixson, “Timber strike”, p. 480. 32 SMH , 19 February 1929, p. 11. 33 Waddington and Leopold, Protest, Policing and the Law, p. 1.

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movement.34 Other members of the Disputes Committee included Emil Voigt and Charles Reeve, late of the IWW.35 The key figure on the government side, both in this dispute and the coal lockout, was R.W.D. Weaver, Minister for Mines and Forests in the Nationalist government. Weaver lived up to his name: he was notorious as a plotter and schemer.36 Jack Lang said of Weaver: Bitter, taunting, with a great capacity for sarcasm, he made few friends either on his own side of the house or with the Opposition, although personally I enjoyed our encounters. At least he was no hypocrite.37

Perhaps Lang recognised something of himself in his old foe: both had a penchant for inflammatory rhetoric and reckless brinkmanship. Both men, too, would find themselves needing the help of W.J. MacKay and would reward him well for his services. The timber strike was marked by levels of violence unusual in Australia. “And it was bad trouble, it really was”, said Ray Blissett, then a constable in Glebe, an inner suburb with several timber yards, “the timber workers were fighting for a principle and the timber merchants were fighting against them”.38 Many of the elements which tend to produce picket violence were present: a long-running dispute, a grievance which could be represented as a general threat to a wider group and hard-line employers determined to use non-union labour to break the strike. The employers were supported by a belligerent government, which openly took sides. Another factor, one rarely acknowledged in labour history, was present: strike leaders willing to encourage or condone violence.39 Jock Garden had a reputation as a peaceful man, and there is no record of him encouraging violence.40 The same could not be said, however, for other strike 34 Arthur Hoyle, Jock Garden: The Red Parson, A.R. Hoyle, Canberra, 1993, pp. 30–73. 35 Dixson, “Timber strike”, p. 481. 36 See W.J. Thomas, A Red Revolution for ₤500!, Central Committee of the Communist Party of Australia, Sydney, n.d. [1924?]. 37 J.T. Lang, The Great Bust, Angus and Robertson, Sydney, 1962, p. 164. 38 Mitchell Library, MS 5161, Ray Blissett, interviewed by Stephen Rapley, 2 March

1988. [Blissett interview], pt. 2, p. 21. 39 Walker, “Violence in industrial conflicts”, p. 54. 40 Hoyle, Jock Garden, p. 68.

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leaders. Some assaults which were attributed to a union “basher gang” may have had no connection to the dispute, but 22 men were convicted of acts of violence which were aimed at strike breakers, 16 receiving jail terms.41 A pamphlet about the strike written by Emil Voigt and Jock Garden did not dispute the guilt of any of those convicted for assault: it merely protested that the sentences were harsh. The pamphlet denounced police violence, but acknowledged and condoned incidents “in which scabs [strike breakers] were beaten up”.42 W.J. MacKay arrived back in Sydney from his overseas study tour on 13 April 1929 and reported for duty two days later. He was immediately directed to assist the Metropolitan Superintendent to deal with the timber strike.43 He took on this duty with characteristic energy. He directed the prosecutions for violence against strike breakers, but his activities went well beyond mere reactive policing. In the months following his return from abroad, MacKay filed a series of reports in which he recommended changes to the structure and philosophy of the police force, especially the detective branch. MacKay advocated modernisation, specialisation, and mobility. The old system of beat police, he wrote, “is stereotyped and provides little element of surprise”. MacKay wanted a force which would make use of the wireless and the motor car: “in greater mobility, producing a corresponding greater element of surprise, lies the efficiency of future policing”.44 This doctrine of a centralised, mobile force, using speed and surprise, was quickly put to use. When MacKay visited Scotland Yard, he would have learned of the techniques developed by British police to combat strikes.45 There had been a series of massive strikes in Britain, the most spectacular being the General Strike of 1926. To counter the industrial unrest, which was feared to be revolutionary, Scotland Yard’s Special Branch developed a 41 NSWSR, Police Dept. Special Bundles, 10/1829, “Activities of Communists, etc.”, CIB to Metropolitan Superintendent, 16 June 1932. 42 Emil Voigt and Jock Garden, The 1929 Lockout in the Timber Industry, 1930, p. 34–6 [Voigt and Garden, 1929 Lockout ]. 43 NSWSR, Col. Sect. Correspondence, 5/8914, MacKay to Childs, 19 September 1929. 44 NSWSR, Col. Sect. Special Bundles, 5/5427.2, MacKay to Mitchell. 45 NSWSR, Col. Sect. Correspondence, 5/5427.2, MacKay to Mitchell, “British Special

Constabulary”, n.d.

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network of spies and informers in unions and radical groups to gather “industrial intelligence”. Using this information, strike leaders would be arrested, often on spurious charges, in order to cripple strike organisation.46 MacKay would use this tactic several times, and not only against unions. He also applied his theory of surprise and mobility to put physical pressure on union rank and file. Archival evidence is scant, but other sources suggest that MacKay formed a mobile unit to violently harass the striking timber workers. Unionist oral histories of the period mention a special squad of police who would raid meetings and violently break them up.47 Ray Blissett said that a “flying squad” was formed during the strike which would raid meetings and beat up strikers.48 They were known among the timber workers as the basher gang, see, because they weren’t above jumping out of a car and giving a couple of pickets a hiding somewhere if they were causing a bit of trouble.49

Blissett said he had personally taken part in a raid on a strikers’ meeting. I remember going over there with a truck load of police one night … the Inspector [in charge] said, “You’re not given those batons to wear a hole in your pocket. When you get over there, if that mob causes trouble, use them” … it wasn’t long and there was a real donnybrook on there, a beauty.50

MacKay probably also planted agents provocateurs among the strikers. Voigt and Garden alleged this in their pamphlet, claiming the police were hoping to provoke violence.51 A claim in Parliament that police had

46 Roger Geary, Policing Industrial Disputes: 1893 to 1985, Cambridge University Press, Cambridge, 1985, pp. 59–60. 47 Lowenstein, Weevils, p. 79. 48 Blissett interview, pt. 2, pp. 19–21. 49 Ibid., pp. 23–4. 50 Ibid., p. 25. 51 Voigt and Garden, 1929 Lockout, p. 31.

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impersonated strikebreakers with the intent of provoking violence was not denied by the government.52 At the end of June 1929, the strikers adopted a new tactic. They decided to stage mass pickets, involving thousands of strikers, at particular timber yards. The climax of a mass picket came when the strike breakers knocked off work. In the words of Voigt and Garden: “The people in the neighbourhood were raised to a great pitch of excitement, and epithets and stone[s] were hurled at the scabs and the police”.53 Ray Blissett recalled: “We had to more or less line the streets to get these scabs out of the timber yards and onto the trams and send them home out of the road”.54 The timber merchants were worried about the situation, and publicly pressured Weaver, claiming the protection provided by the police was inadequate.55 The Sydney Morning Herald, too, was critical of the police for not being more aggressive with picketing unionists. It was intolerable that more was not done to stop “the lawless struttings and utterances of the gang of imported revolutionaries”.56 Action, however, was at hand.

5

‘Getting Cunning’: The Strike Leaders’ Trial

On 22 July, MacKay led a spectacular raid on Sydney Trades Hall. Detectives and uniform police descended on the Hall while the Disputes Committee was in session. The police seized documents and arrested seven members of the Committee, including Jock Garden.57 The men were charged with conspiracy to “unlawfully molest, intimidate and assault” non-union labourers during a mass picket.58 The union movement interpreted the arrests as an attempt to disrupt the strike by tying up the leadership group in legal proceedings, if not in

52 New South Wales Legislative Assembly, Parliamentary Debates [NSWPD], 24 September 1929, p. 237. 53 Voigt and Garden, 1929 Lockout, p. 31. 54 Blissett interview, p. 21. 55 SMH , 20 July 1929, p. 15. 56 SMH , 11 July 1929, p. 10. 57 Voigt and Garden, 1929 Lockout, p. 31. 58 Dixson, “Timber strike”, p. 487.

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custody.59 This was probably true. The police seized most of the Dispute Committee’s records. A few documents were later used in court, but the main effect was to disrupt management of the dispute.60 The Labor Daily, which as the masthead suggests was owned by and sympathetic to the labour movement, denounced the prosecution and compared it to the “IWW Frame-up”.61 The paper was found guilty of contempt of court and fined, but it had a point.62 As in the IWW case, the charges of conspiracy were based largely on the evidence of informers and witnesses of dubious reliability. Several of the actors, including MacKay, Reeve and Ernest Lamb KC, were the same. Unlike the IWW men, however, the strike leaders were represented by a lawyer of unusual ability: H.V. Evatt, a future leader of the federal Labor Party. The committal hearing, before Magistrate Camphin, began on 19 August. George Hudson’s timber yard in Glebe, the target of many of the mass pickets, was the focus of the case. Police witnesses, including MacKay, described violent incidents outside Hudson’s yard. The most dramatic had occurred on 17 August, a Saturday. MacKay told the court: “I arrived at Hudson’s at 11.30 a.m., and in Bridge Road near Wentworth Park I saw about 700 men, almost all armed with stakes similar to these”. MacKay produced what the Herald reporter described as “a number of stout wooden stakes, sharpened at one end, and about four feet long, and carrying placards”.63 This was a somewhat dramatic description of what were ordinary garden stakes, which the pickets used to hold handmade signs. Lamb led MacKay through his evidence: Lamb: MacKay: Lamb:

How were they [the strikers] carrying these sticks? They were being carried upright in a position similar to that in which a spear would be carried. Would you say that stick in your hand was a formidable weapon?

59 Voigt and Garden, 1929 Lockout, p. 32. 60 SMH , 27 August 1929. 61 Labor Daily, 3 and 6 August 1929, cited in SMH , 21 August 1929, p. 15. 62 SMH , 21 May 1929, p. 15. 63 SMH , 21 August 1929, p. 15.

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I would. It is similar to a javelin, and could be used in the same manner.64

At 11.45 a.m., the strikebreakers emerged from the yard and were escorted up Bridge Road. MacKay:

The [strike-breaking] workers got on a tram at Glebe Road. I saw a stake hurled towards a tram, and hit it in the manner of a javelin. I saw Inspector O’Brien struck on the head with one of the stakes, and saw his cap knocked off. I saw a man arrested, and heard him shout out, “Have a go at them”, and others say “Don’t let them take it”. A riot ensued. I saw members of the police force struggling with members of the crowd for possession of the stakes.65

Photographs of the disturbance were tendered as evidence. Evatt extracted from MacKay an admission that the photographs did not show one instance of a stick being held as a weapon. A Detective-Constable, Devereaux McDermott, told the court that he had nearly been wounded by a stake. “A man on my left thrust one of the stakes at me. I avoided the blow but it caught and tore the sleeve of my overcoat”. He produced the overcoat, which had “several gaping rents” in the sleeve. But McDermott’s evidence was vague and inconsistent, and could not explain the tears in his coat.66 McDermott’s evidence contradicted evidence earlier given by MacKay. MacKay was recalled and asked about this discrepancy. MacKay said he might have been wrong: McDermott was a younger man than he and probably had the better memory. MacKay: Evatt:

I’m getting old. Getting cunning, too.67

64 Ibid. 65 Ibid. 66 SMH , 22 August 1929, p. 12. 67 Ibid.

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A procession of witnesses, all labourers employed at Hudson’s, gave evidence about threats which they alleged had been made to them by the union leaders. None of the police witnesses corroborated these threats. Counsel for the defendants extracted admissions from the police that all the accused men had consistently tried to maintain order.68 The key witness for the Crown was Roy Bartlett. Bartlett was a sawyer and a member of the union. He had, he told the court, gone on strike with his comrades and joined in picket duty. He had been asked to go to a room at Trades Hall. There were 25 or 30 men there, one of whom was Charles Reeve. Reeve had said that if the police knew what was happening, they would all be arrested. They were forming a gang “to do away with the free labourers”.69 Reeve told us that we would be organised into gangs, and we would have iron bars, and that when we came into contact with free labourers not to waste time drawing blood, as that could be patched up, and they could go back to work the following day.70

Reeve had said: “You have got to break their –– bones. That is the only way you can keep them out of the yards”.71 The Sydney Morning Herald greeted this evidence with bold headlines: “BASHER GANG; Allegations by Former Picket; SECRET MEETING AT TRADES HALL”.72 But the case was not going well for the police. Many prosecution witnesses were unable to identify in court the men they were alleging had made threats. When the defendants changed the order in which they were sitting, several witnesses became hopelessly confused. When, on the last day of the committal, yet another witness mistook the identities of two defendants, Evatt taunted Lamb: “The Crown Prosecutor usually throws up the sponge when things get to this stage”.73

68 SMH , 27 August 1929, p. 12. 69 SMH , 30 August 1929, p. 11. 70 Ibid. 71 Ibid. 72 Ibid. 73 SMH , 4 September 1929, p. 16.

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Evatt stressed the contrast between the police evidence and that of the timber workers. Nothing the police had sworn to could be taken as evidence of a conspiracy: that depended entirely on the “volunteers” and in particular Bartlett. These men were wholly unreliable: they had made absurd errors in their testimony. “There has never been such a display of reckless swearing in a Court of justice as there has been in this Court”, Evatt said.74 Evatt directly charged the police—and this meant MacKay, as the officer in charge of the investigation—with having concocted the case and having done so on political instruction. After the seven men were arrested, the police were instructed by somebody—and I think we can guess who it was—to get any evidence they could against the defendants. Anyone who wanted to gain notoriety or sympathy was inspired to come along and say whatever he liked against the defendants and especially against Garden.75

Nonetheless, Camphin committed the seven for trial, deciding that a prima facie case had been established.76 But if MacKay and Lamb were embarrassed by the committal, worse was to come during the trail. There Bartlett was demolished as a witness. Evatt was able to prove that his evidence about meetings at Trades Hall was completely fabricated. Bartlett, it emerged, had applied unsuccessfully to join the police force in 1925.77 It was not confirmed in court, but Bartlett was almost certainly a police agent. Other prosecution witnesses admitted they had been unable to identify the defendants at the committal. One timber worker at Hudson’s told Evatt that he did not want to give evidence but “a job is a job” and the manager had “said to us loyal workers ‘If you stick to us, we will stick to you’ … they were looking around for evidence”.78 Two other witnesses

74 Ibid. 75 Ibid. 76 Ibid. 77 SMH , 30 October 1929, p. 11. 78 SMH , 29 October 1929, p. 12.

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said they had been told by senior staff at Hudson’s about the evidence they should give.79 After the Crown case concluded, the jury foreman told the judge that the jury “was of the opinion that there had not been sufficient evidence produced to convict any of the accused on any of the three counts”. The jury did not wish to hear any evidence from the defence, as it would serve no purpose. The judge said: “I think that can be taken as an indication of a verdict of acquittal”. This was formalised and the accused were discharged.80 The significance of this humiliating failure for the police has not been adequately recognised.81 The evidence at the committal and trial proves that MacKay and other detectives were corrupt. The case against the union leaders was transparently concocted. All the evidence of threats was tainted, and MacKay must have known it. Bartlett, with his story of being recruited into a basher gang, was probably a police agent. Even if he was not, his evidence was so ludicrous it would never have been used except to “build” a case. The case against the union leaders was so obviously fabricated that it damaged the legitimacy of the police. Labor politicians warned of this danger.82 The Communist Party, for its part, took full advantage of the propaganda opportunity: “When deceit and intimidation have failed, brute force in the shape of the police, the army, judges and gaols, is the weapon of the employers”.83 It was an expression of the “strong State” theory: that under economic and social pressure the capitalist State reveals its true, repressive, colours.84

79 SMH , 30 October 1929, p. 11. 80 Ibid. 81 Biographies of Garden and Evatt touch on the case, but only briefly. Seggie considers the timber strike and its challenges for the police, but of the trial says only that unionists “were prosecuted, but not convicted, of charges of conspiracy”. Hoyle, Jock Garden, pp. 68–70; Ken Buckley, Barbara Dale and Wayne Reynolds, Doc Evatt: Patriot, Internationalist, Fighter and Scholar, Longman Cheshire, Melbourne, 1994, pp. 82–3; Seggie, “Police and government”, p. 228. 82 NSWPD, 24 September 1929, p. 234. 83 NSWSR, Police Dept. Special Bundles, 7/6720, Militant Carpenter, 18 June 1929,

p. 2. 84 Geary, Policing Industrial Disputes, p. 1.

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Why did MacKay try to frame the union leaders? The obvious conclusion is that the case was mounted for political reasons. The conservative Nationalist government, particularly Weaver, was under pressure to break the strike. The committal hearing occurred during a federal election campaign, and the New South Wales government openly exploited the timber strike on behalf of their federal colleagues.85 However, as David Baker emphasises, police place great importance on maintaining peace and order. When that control is threatened, police will respond decisively, as much on their own behalf as on the State’s.86 The timber strike, particularly once the tactic of mass picketing was introduced, genuinely threatened order on the streets. Some evidence exists, too, that there was organised unionist violence.87 This does not justify fabricating a case, but MacKay’s actions may have been less politicised than they appear. MacKay may also have been acting cynically, doing a job for which he would be rewarded: a quality known in police jargon as being “biddable”.88 After the union leaders were committed for trial, MacKay made a peculiar application to the Chief Secretary, Frank Chaffey, for advancement.89 The application was irregular, and unsuccessful, but it is striking how MacKay emphasised his efforts: to combat the activities of the “Basher Gang” … and affairs connected with the Timber Strike; the majority of the “Basher Gang” are serving sentences in Gaol and the strike leaders, who were responsible for massed picketing and riot, stand committed for trial on charges of conspiracy.90

The federal election in October 1929 caused a change of government. Labor, headed by James Scullin, took power nationally for the first time since the First World War. The new government had promised during the campaign to end the long lockout of coal workers on the northern coalfields of New South Wales, already drawing into its sixth month. It 85 NSWPD, 26 September 1929, pp. 374–93. 86 Baker, “Police, pickets and politics”, pp. 4–7. 87 Hoyle, Jock Garden, p. 68. 88 Blackler, Development of Modern Policing, p. 173. 89 NSWSR, Col. Sect. Correspondence, 5/8914, MacKay to Childs, 19 September

1929. 90 Ibid.

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was a foolish promise.91 The lockout dragged on. Eventually, the New South Wales government attempted to break the deadlock, and tragedy resulted.

6

‘We Will “Go” the Miners’: Tragedy at Rothbury

The crisis in the New South Wales coal industry in the late 1920s was, on one level, complex. It was the subject of a long Royal Commission, whose voluminous reports defeat the modern reader as surely as the problems themselves defeated the industry of the day. On another level, it was simple: the industry was employing too many people to produce too much coal which was too expensive.92 In February 1929, the Northern Collieries Association demanded that miners accept a reduction in wages. The unions refused, and the miners were locked out.93 The lockout was technically illegal, as it was in breach of an existing award.94 The mines affected were all in the northern coalfields, the area inland from Newcastle which includes the towns of Greta, Cessnock, Kurri Kurri and Branxton. The unions fought for an order to reopen the mines through the Industrial Court and argued their case at the Royal Commission, all without result.95 As the dispute dragged on, grave hardship was caused among the affected mining communities.96 In November 1929, the Nationalist state government announced that it would open three mines using free labour. The first of the mines would be Rothbury, near the town of Branxton. The Herald reported “ugly rumours” of trouble afoot: “By a campaign of terrorism the strikers [sic: the miners had been locked out] hope to dissuade the volunteers from going down into the mine”.97

91 Irwin Young, Theodore: His Life and Times, Alpha, Sydney, 1971, pp. 91–6. 92 “Royal Commission into the Coal Industry, Reports and Appendices”, NSW PP

1929/30 JVP, vol. 3, pp. 305–852; Robin Gollan, The Coalminers of New South Wales: A History of the Union, 1860–1960, Melbourne University Press, Melbourne, pp. 177–87. 93 SMH , 1 March 1929, p. 13. 94 Dixson, “Rothbury”, p. 15. 95 Gollan, Coalminers, p. 189. 96 Smith’s Weekly, 25 January 1930, pp. 8, 11. 97 SMH , 14 December 1929, p. 18.

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The truth about what occurred at Rothbury on the morning of 16 December 1929 is elusive. The archival record is thin: no adequate inquiry was held, almost everyone present harboured strong partisan feelings, and thick layers of mythology have subsequently been added to events. The only detailed account of MacKay’s actions on the morning of the shooting comes from Vince Kelly: … fifteen months after the lock-out … Rothbury miners decided to break the lock out and take possession of the mine … At 5.30 a.m. on 16 December 1929 [the miners] made a mass move on the colliery. They smashed down fences, tore up railway tracks, and invaded the property, but were driven back by a baton charge led by Superintendent William J. MacKay, who had been rushed to the colliery by the Commissioner … MacKay … had arrived only the previous afternoon. Miners had been emboldened by a report that the police were issued only with dummy ammunition. This was true, at first. What they did not know was that MacKay, on his own initiative, had hurriedly provided police with live ammunition. In the miners’ dawn attack police used only their batons. Believing they had nothing to fear from bullets, the miners regrouped at 10.30 a.m. for another attempt to take possession of the mine. This time the police drew their revolvers and waited on orders from MacKay. There were more than 2,000 miners and 100 police … In the miners’ second attack newspaper reporters were handled roughly. Press cameras were seized and smashed. Police cars were overturned and their tyres slashed. Miners surrounded a company car and dragged out of it a mines supervisor. They were manhandling him when MacKay gave the signal. The police held their revolvers high and fired a volley into the air. As the miners still came on, they fired a second volley, this time as MacKay directed, into the ground, and MacKay personally led a baton swinging attack. Several police were knocked unconscious, and most of them injured. Also injured … [was state Labor member J.M. Baddeley, who claimed he was] singled out by police. Baddeley said: “If MacKay didn’t do it himself, he knows bloody well who did.” [T]he miners’ tempers were quickly cooled by tragedy. One of their comrades, Norman Brown … struck by a ricocheting bullet, was rushed to hospital, where he died. Two other miners were seriously injured and

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more than a score of police had to receive hospital treatment … the death of Brown crushed the desire of the miners for any further clashes.98

This account is farcically inaccurate. The incident occurred in the ninth month of the lockout, not the fifteenth. The mine was reopened by the state government, and the miners were picketing to prevent this. There is no evidence that the police had any dummy ammunition, or that the miners believed this to be so. There were no police cars damaged in the incident. MacKay was an inspector, not a superintendent, at this time. Most significantly, MacKay was not in command of the police; he did not provide the police with live ammunition, on his own or anyone else’s initiative; he did not personally lead two baton charges; he did not give the signal to fire. MacKay was not there. So many secondary sources assert that MacKay was present, and the de facto leader of the police, that it took me a long time to accept that they were wrong. But all the contemporary evidence available indicates that MacKay was not present at the mine when the shootings occurred.99 The police at the colliery telegraphed asking for reinforcements from Sydney at about 6 a.m. Seventy additional police arrived by special train at midday, and another 100 later in the afternoon.100 It was probably on the first of these trains that MacKay arrived. Given its many errors, Kelly’s account would be of little interest, except that MacKay himself was probably the source. Kelly was an intimate friend

98 Vince Kelly, A Man of the People: From boilermaker to Governor-General: A biography of Sir William McKell, Alpha, Sydney, 1971, pp. 56–7. 99 There are no extant police records that I have been able to discover, but numerous eye-witness accounts by journalists and others were published within a few days of the incident. Without exception, these state that Superintendent Beattie was in charge, and that his second-in-command was Inspector Boland. This accords with the official statement released by acting Commissioner Childs on 16 December. Many other police are mentioned by name in contemporary press reports, and if MacKay—already a well-known figure and unpopular with the labour press—had been present, he would certainly have been mentioned. The first reference to him in relation to the incident was in the Sydney Morning Herald on 18 December, when his presence at the funeral of Norman Brown was noted. On 15 November 1930, the Herald (page 16) stated that MacKay was not present when the shootings occurred. Department of Mines records also shows that MacKay claimed expenses for meals at Rothbury for the first time on 17 December. NSWSR, Department of Mines [DM] Files, 7/7111, MacKay to Sergeant Bower, 12 January 1930. 100 NSWPD, 17 December 1929, p. 2520.

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of MacKay.101 In his books, Kelly shows he had the inside running with MacKay, and that he is anxious to record for posterity his late friend’s great achievements.102 If MacKay had wished to distance himself from the Rothbury tragedy, he could easily and legitimately have done so. Instead, he appears to have told Kelly, and presumably others, an outrageous piece of make-believe. The extent of MacKay’s vanity—his need to be seen as the tough leader, the wielder of power—is matched only by the audacity of the lie. On the eve of the opening of the Rothbury mine, several Labor Members of Parliament, including J.M. Baddeley, travelled to Branxton, hoping to prevent trouble. R.W.D. Weaver was also there, on the mine premises: “in the front line”, as he put it.103 Baddeley appears to have done everything in his power to avoid violence; Weaver, by contrast, was frequently and needlessly provocative. “If you think you can defy the Government of this country [sic] you don’t know what you are talking about”, he told a meeting in Cessnock, “I am not going to be dominated by a mob of miners”.104 On the eve of the opening of the mine, Weaver was reported to have said “we will ‘go’ the miners”.105 In the early hours of Monday 16 December, thousands of miners converged on Rothbury from mining towns in the region. The intent was to “mass picket” the mine with about 5,000 miners and to then maintain a smaller picket indefinitely.106 Several such mass demonstrations had taken place already during the lockout, and none had led to any trouble.107 The police at the mine—it was never adequately established how many there were, but it was probably about 40—were under the command of Superintendent Alexander Beattie, officer in charge of the Newcastle police district. The first serious incident occurred at dawn. The police

101 George Blaikie, Remember Smith’s Weekly: A Biography of an Uninhibited National Australian Newspaper, Rigby, Adelaide, p. 197. 102 See for example, Kelly, The Charge Is Murder, p. 114. 103 SMH , 16 December 1929, p. 11; Daily Telegraph, 16 December 1929, p. 3. 104 SMH , 21 November 1929, p. 11. 105 He later denied having used the expression. Daily Guardian, 16 December 1929, cited in NSWPD, 17 December 1929, pp. 2529, 2544. 106 Labor Daily, 14 December 1929, cited in ibid., p. 2540. 107 Gollan, Coalminers, p. 193.

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version of events was that about three thousand miners assembled at the front fence of the colliery, and some of them forced their way onto the mine property. Beattie met them “with about 40 police” and told them to leave. The miners kept advancing, and Beattie ordered a baton charge. At this point, three shots were fired at the police, and other miners threw stones and again advanced. Beattie “instructed the police to draw their revolvers and fire into the ground” in order to “avoid any bullets going over … which might injure people who were in the background”. The miners then left the mine property, and there was no further trouble for several hours.108 Baddeley was present at this incident, and the account he gave of it in Parliament was very different. Baddeley said that the trouble started when a group of miners from Greta crossed the fence marking the boundary of the mine. (The fence, a wooden post-and-rail about waist high, was not a formidable obstacle.)109 He tried to persuade them to leave and told the police: “Leave these men to me. I know them and I can handle them. I will get them outside”.110 However, a police officer needlessly hit a miner over the head with a baton: Not satisfied with doing that the policeman also hit me in the back of the head … I was struck and knocked to the ground … It was a cowardly and despicable action on the part of the policeman.111

Baddeley said it was this action that caused stones to be thrown. The next thing I saw was that the police had drawn their revolvers and I heard them firing. It has been said that the policemen fired their revolvers into the air. All I can say is that they were shooting pretty close to me.112

Baddeley persuaded the men to retreat from the mine and conduct a meeting. There he and other officials urged the men that there should be no further disorder.113 108 SMH , 17 December 1929, p. 11. 109 Photograph, Daily Telegraph, 17 December 1929, p. 14. 110 NSWPD, 17 December 1929, p. 2424. 111 Ibid. 112 Ibid., p. 2525. 113 Ibid.

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Of the two accounts, Baddeley’s is probably closer to the truth. The most important point of difference in the two accounts is the claim by the police that the miners fired shots first. This was almost certainly untrue: not one of the reports made by journalists at the scene mentioned any shots other than those fired by the police.114 The most serious violence occurred later in the morning. At about 10.30 a.m., a car with three mining inspectors aboard approached the mine gates. Pickets, apparently believing that Weaver was in the car, rushed the vehicle. When police tried to reach the car, they were showered with stones and sticks. At this point, the police again opened fire. Again the police report claimed great provocation—the lives of the people in the car were in danger, shots were fired by someone in the crowd—and that warning shots were fired into the ground. It was during this shooting that Norman Brown, a bystander, well away from the car, was struck by the bullet which killed him.115 Even if the police report exaggerated (again there is no independent evidence of miners shooting at the police or at the car), the attack on the car was a serious incident. Firing on the crowd was probably not justified, but a baton charge would have been. However, this should not obscure the fact that neither incident should have occurred at all. Many of elements which can lead to violence in industrial disputes, noted earlier, were present at Rothbury. But the most important element contributing to the tragedy was police incompetence. The opposition leader, Jack Lang, got to the nub of the matter: Who told the police to shoot? … Who ordered them to discard tact and use bullets? Who could it be but the Government which was determined to “go” the miners?116

Weaver’s words and actions at the mine that morning are not recorded. But the presence of a forceful and intemperate authority figure like Weaver

114 Later news reports did describe shots being fired, at times very graphically, but source for all these reports was almost certainly Weaver. Ibid., p. 2543. 115 SMH , 17 December 1929, p. 11; Newcastle Morning Herald, 17 December 1929,

p. 5. 116 NSWPD, 17 December 1929, p. 2518.

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would have made the task of the police officer in charge extremely difficult. Superintendent Alexander Beattie does not seem to have been equal to the challenge. In 1929, Beattie was in the twilight of a long and not particularly distinguished career. He had joined the Police in 1896, and slowly rose through the ranks, being made superintendent in 1927 and given charge of the Newcastle district, his first appointment outside Sydney.117 It is possibly an unfair conclusion—it is based on scanty information—but Beattie comes across as the sort of stolid leader who floats up through seniority. Regardless, his leadership at Rothbury was disastrous. Had the policing of Rothbury been better planned and led, in all probability there would have been no serious violence. If the police had remained calm, and allowed union officials to control the miners, there is every possibility the tragedy would have been avoided. There had been no previous violence during the dispute, and even after the shootings, the union leaders were usually able to persuade their members to remain peaceful.118 If access to the site had been controlled, the occupants of the car would not have been put in danger in the second incident. If it was necessary for the mining inspectors to cross the picket line, this could have been accomplished by negotiating for a union official to accompany them. In his report on the incident, the acting Commissioner, Walter Childs stressed: I have every confidence in Superintendent Beattie in his supervision and control of the situation. I am satisfied from the information I have received that the individual members of the force have acted with commendable restraint and discretion.119

But this was just police closing ranks. The nature of the injuries suffered belies Childs’ reassurances. Seven police were reported as injured: the most serious injury was a suspected fractured wrist, and all the others were cuts, abrasions and bruises. Of the miners, one was killed by a bullet wound to the stomach. Two were critically injured: one shot through the 117 NSWSR, Police Dept. Files, AK724, Police Service Cards, Alexander Beattie. 118 An assault by unionists on free labourers at Ashtonfields on 10 January 1930 (see

below) was the only important exception. 119 SMH , 17 December 1929, p. 11.

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throat; one shot in the back, the bullet lodging in the spine. Both these injuries could easily have proved fatal. Other injured miners had bullet wounds to the shoulder (two cases), the wrist (two cases), the thigh (two cases) and the forehead (one case).120 The police later said that a total of 123 rounds had been fired during the two incidents.121 If this was true, then almost one in twelve of the bullets fired had caused serious injury. If, as Beattie claimed, the police had fired intending to avoid causing injury, they had failed dismally. No convincing evidence that shots had been fired by the miners was ever given. The story that police had, twice, “fired into the ground” as a warning is hard to credit. I have not found any other reference to the New South Wales Police Force firing warning shots in this manner, before or after Rothbury. The police report on the incident was not issued until late in the afternoon of 16 December.122 The long delay and the many unlikely elements in the report give rise to suspicion that it was at least partly contrived. MacKay was later scathing in his assessment of many of the police who had been at Rothbury. He described several as drunks and said Inspector Boland, Beattie’s second-in-command, was hopelessly incompetent. When he arrived at the scene, no steps had been taken to prepare for an inquest, he said, and he had been obliged to do this himself.123 There is no direct evidence that MacKay was responsible for the police report, but the timing of its release and the skill with which it created a plausible defence for the police actions suggest that it was. Whoever was responsible for it, the police report was almost certainly an attempt to obscure a simpler and much uglier story. The Rothbury tragedy was the result of poor planning and lack of leadership by senior police, a problem made worse by the bloody-minded influence of Weaver, and indiscipline, perhaps panic, by the police who fired their weapons. MacKay’s association with the Rothbury shootings is doubly ironic. MacKay was a skilled organiser, a forceful personality, and a strong disciplinarian. He was ruthless, but also astute in his controlled use of force.

120 Newcastle Morning Herald, 17 December 1929, p. 5. 121 Newcastle Morning Herald, 12 February 1930, p. 5. 122 NewcastleMorning Herald, 17 December 1929, p. 5. 123 NSWSR, Police Dept. Special Bundles,10/1838 pt., Conference of Police Superintendents, 1936, minutes.

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Had he been present on the morning of 16 December, he might well have prevented the tragedy for which he later, falsely, claimed responsibility. Until recently, police were almost never held accountable for violent action during industrial disputes. Police commissioners would invariably back the officers on the ground. If there was an inquiry, it would be a whitewash.124 Rothbury was no exception. In February 1930, an inquest was held into Norman Brown’s death. The Coroner, D.W. Reed, made no serious effort to identify the police officer who fired the fatal shot. He never established how many police were present, or who they were. He accepted expert evidence that all the injuries, including that which killed Norman Brown, were accidental, caused by bullets which had ricocheted off the ground, even though none of the bullets recovered from wounds showed the distortion a ricochet would cause. Brown was an innocent bystander and not to blame, Reed found, but he exonerated the police, who had “carried out their duty with forbearance and commendable restraint”.125 Reed’s platitudes can only have been resented by the mining community, which that summer had endured a style of policing neither restrained nor forbearing.

7 ‘Inspector MacKay’s “Basher Gangs”’: Reasserting Police Power If the government or the police felt any remorse over what happened at Rothbury on 16 December, they did not show it. The speech of the Premier, Thomas Bavin, to Parliament on 17 December was one of defiance and righteous anger. He claimed the miners at Rothbury were “the subject of persuasion by a number of men who are open and avowed revolutionaries and communists”.126 At one stage during J.M. Baddeley’s address to the same session of Parliament, Bavin interjected:

124 Baker, “Police, Pickets and Politics”, pp. 99, 101, 105. 125 Newcastle Morning Herald, 18 February 1930, p. 8. 126 NSWPD, 17 December 1929, p. 2514.

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The object of this aggregate meeting [of the miners at Rothbury] was to transact the business of their organisation. Yes, to kill free labourers!127

The conservative press had similar views. “For those victims of their own temerity who were innocent of guilty intent and who have had to pay in blood, there will be merited public sympathy”, opined the Sydney Morning Herald, but scarcely drew breath before adding: But there can be no real question of right or wrong so far as the police are concerned. They are sworn to duty, however distasteful its performance may be, to the assertion against all odds of the constitutional authority of which they are the first-line custodians … [The police] were armed with batons and revolvers precisely that they should use them in such an emergency, and the blame for what occurred rests with those who created the emergency and not with the men who gallantly rose superior to it.128

Simultaneously, there was grave apprehension, the fear of revolution. Wild rumours of civil strife were common in the weeks after the shootings. Reports circulated that the miners were arming themselves to again attack Rothbury. A paramilitary group, the Labor Defence Army (or Corps) was established, and drilling involving several hundred men did occur in some coal towns.129 Weaver publicly suggested that special constables be sworn in to maintain law and order on the coalfields.130 However, MacKay quickly demonstrated that he could restore the power of the State without help. David Baker argues that while police usually prefer to maintain peace in industrial disputes, if their control is seriously challenged, they will respond quickly and aggressively. Police power depends heavily on the aura of invincibility: the police must always win any contest.131 Under MacKay’s command, the Rothbury colliery became the centre for aggressive harassment of the miners. Using motor transport to move 127 Ibid., p. 2523. 128 SMH , 17 December 1929, p. 10. 129 SMH , 31 December 1929, p. 11. 130 SMH , 16 January 1930, p. 11. 131 Baker, “Police, pickets and politics”, p. 7.

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swiftly about the coalfields, the police raided homes and broke up meetings, sometimes assaulting people without any provocation. Communist propaganda later exaggerated the severity of the police “reign of terror”.132 Still, MacKay was undoubtedly brutal in reasserting control, and the actions of police under his command were at times reprehensible. For a week after the shootings, little trouble occurred, but tensions soon increased. Police raided the homes of union officials in Kurri Kurri, ostensibly searching for bombs and ammunition.133 On 9 January 1930, MacKay personally led a fruitless raid on the house of a union official. The Labor Daily was scathing in its report. Without a warrant the police made a mad rush down the side entrance to the place through the back yard … Inspector MacKay, coatless, with his shirt sleeves pulled up and the glint of battle in his eye, led the grand assault.134

The Labor Daily took every opportunity to attack the “zealous detective chief who figured so largely in the timber strikes”.135 A miner arrested on 10 January claimed that MacKay punched him in the jaw without provocation. The Labour Daily suggested MacKay was “humiliated at being outmaneuvered by the miners”.136 This was a reference to a successful deception by the mining unions. They had announced a mass picket of Rothbury, but had instead converged on another mine, at Ashtonfields. There, several free labourers were roughly handled and stripped naked. The Labor Daily put a cheery gloss on this incident, but it must have been terrifying for the strike breakers. This was the most serious incident of violence in which unionists were unquestionably the aggressors.137 The Labor Daily gloated:

132 L.L. Sharkey, History: Communist Party of Australia, Sydney], 1942, p. 9. 133 SMH , 23 December 1929, p. 11. 134 Labor Daily, 10 January 1930, p. 1. 135 Ibid. 136 Labor Daily, 11 January 1930, p. 1. 137 Ibid.

Australia [Communist Party of

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The people of the state … today are laughing at … Mr MacKay, the policeman who went home, at our expense, to learn something at Scotland Yard, and came back here to—break eggs with a big nobbly stick … Mr MacKay is regarded as a tower of intellect in detective circles. But his leadership on this occasion would have disgraced a Portuguese lance-corporal.138

The miners soon discovered that it was not wise to goad MacKay: his response to public embarrassment was invariably ruthless. The following Wednesday, 15 January, saw the most serious violence of the Rothbury aftermath. The Sydney Morning Herald’s reporter described how one column of marchers, about 3,000 strong, approached the Abermain No. 2 mine, intending to stage a mass picket. The procession took its final turn towards the gates. Barring the road was a strong flying squad of police … For a minute the men tried to press on. The police drew their batons. At the first few blows the pickets, though many of them were carrying sticks, turned and fled … and in all ways manifested their desire to have no part in any further fighting. Within five minutes the police had attained a notable victory.139

There was another encounter at the Abermain No. 1 mine, about ten miles away. “In one short, sharp, baton attack the miners were sent flying from the mine”.140 Later in the day, there was a meeting of miners at Kurri Kurri: It was after these meetings had been concluded … [that the] flying squad arrived. The effect of the police attack was instantaneous. The remaining miners dispersed with alacrity. The police squad left in the direction of Cessnock as soon as the town had quieted down.141

Even the Herald’s partisan reporting describes naked aggression. It was nowhere suggested that any warnings to disperse were given, or that the marches were illegal, or that the miners offered violence at any time. The worst incident was the attack on the crowd at Kurri Kurri. The union 138 Ibid., p. 4. 139 SMH , 16 January 1930, p. 11. 140 Ibid. 141 Ibid.

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meetings had been completely free of trouble, supervised by local police, and were dispersing when the flying squad arrived and “the police attack” commenced. This was a brutal reassertion of police power. The Labor Daily denounced what it called police “basher gangs”: In a wild orgy of baton charges by flying squads of the police on the coalfields today, scores of defenseless and law-abiding men were clubbed into insensibility. Every attack was unprovoked and it was launched by the police without warning … one hundred constables under Superintendent Beattie and Inspector MacKay were savage in their assault on the men.142

The Labor Daily reported that local police had attempted to restrain the flying squad, a claim supported by evidence in later court proceedings.143

8

‘The Feeling Against the Police Was Very Strong’: Power and Authority

MacKay’s tactics were, in the short term, effective. After the tumultuous events of December and January, the region became calmer, and the police at Rothbury were gradually withdrawn. The first reliable figure on the number of police at Rothbury is for 3 January 1930: 197 police were protecting 138 labourers. The largest number, 210, was reached on 10 January, the day of the Ashtonfields incident. By February, the number was down to 158, by April, 102. By June, only 30 police were still stationed at the mine.144 Miriam Dixson argues that the actions of MacKay’s flying squads were responsible for mass rank-and-file activity declining after February 1930, and not resurfacing.145 The cost, however, was great. Alan Walker, writing in 1945, quoted a local police officer: “The feeling against the

142 Labor Daily, 16 January 1930, p. 1. 143 The President of the local shire council gave evidence that he had issued a permit

for the march on Abermain No. 2 Mine. Three local police testified that the march was orderly and quiet, that there was no need to make any arrests, that they were not concerned mine property would be attacked, and that there was no need for batons to be used. Labor Daily, 6 February 1930, p. 1; 7 February, p. 5. 144 NSWSR, Dept. of Mines Files, 3/3242, Rothbury mine, personal. 145 Dixson, MA thesis, p. 244.

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police was very strong for years after 1929, against ‘foreign police’ especially”.146 Writing nearly thirty years after the lockout, Dixson noted “remarkable antipathy … towards the police in many northern coalfield towns today [which] goes back to this period”.147 Such community hostility is a serious problem for police. Violence is necessary to policing, but it must be controlled violence and its use must be seen as legitimate by society at large. Violence by police which is either not controlled (as when Norman Brown was killed) or not legitimate (both the shootings and the later attacks on unionists) erodes the community acceptance which is the foundation of police power.148 Power is most successfully preserved, not through overt force, but by structures and processes which avoid the need for force.149 Robert Reiner argues that the doctrine of minimum force policing is made possible “by converting power into authority, by making the individual constable a symbol of an impersonal and universally accepted law”.150 But the reverse is also true: stripped of the authority which stems from community acceptance and the plausible appearance of neutrality, the constable becomes the symbol of power, illegitimately applied. As such, a single police officer becomes suddenly vulnerable: not just ineffective as an agent of the law but potentially a symbolic target. And that is how the police found themselves by 1930, both in the northern coalfields and in the inner suburbs of Sydney where the timber strike had unfolded. MacKay, so prominently associated with the police action in both the timber and the coal disputes, had become a hated man. He personified actions which, in the words of the future Labor Prime Minister Ben Chifley, “had completely torn the mask of impartiality” from the agencies of government.151 On 21 January 1930, a deputation from the mining communities demanded that the Chief Secretary withdraw all but the local police from the northern coalfields. “There was no trouble until extra police were

146 Walker, Coaltown, p. 9. 147 Dixson, MA thesis, p. 244. 148 Robert Mark, “Social violence”, in J.C. Alderson and Philip John Stead (eds), The Police We Deserve, Wolfe, London, 1973, pp. 15–7. 149 Reiner, Chief Constables, p. 37. 150 Reiner, Politics of the Police, p. 110. 151 SMH , 18 December 1929, quoted in Dixson, “Rothbury”, p. 21.

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sent”, they told Frank Chaffey, “The conduct of those police has been angry and tactless”.The deputation specifically named MacKay as a source of trouble.152 In their pamphlet about the timber strike, Voigt and Garden similarly exempted local police from criticism, but unreservedly condemned the “head office section of the police force [which] was definitely organised in support of the Timber Combine”.153 The distinction made in both cases between local and “outside” police requires further comment. It is likely that local police officers sympathised with the unionists, many of whom they would have known well. These officers also had to remain and preserve order long after the flying squad had gone home. MacKay may have deliberately allowed local police to distance themselves from anti-union action—“good” local police, as opposed to hated “foreign police”—so that reestablishing community support would be less difficult. This may be giving MacKay more credit than he is due. His actions caused great damage to the reputation of the police, to moderate unionism and even to liberal democracy. The government’s attempts to blame the Rothbury tragedy on revolutionary communism were ironic.154 The Communist Party regarded the coal lockout as an event of great political promise, but the party in 1929 was small, fractious and poorly led.155 More moderate unionists had succeeded in minimising communist influence in the miners’ union for most of the dispute.156 But the shootings at Rothbury, and the more calculated violence which followed, gave credibility to communist arguments. In the years which followed, communist union officials steadily increased their influence.157 By the 1940s, a communist-controlled Miners’ Federation would prove a nightmarish problem for state and federal governments, both Labor and conservative.158

152 SMH , 22 January 1930, p. 15. 153 Voigt and Garden, 1929 Lockout, p. 34. 154 See, for example, NSWPD, 17 December 1929, pp. 2325–8. 155 Gollan, Coalminers, p. 193. 156 Hoyle, Jock Garden, p. 71. 157 Macintyre, Reds, p. 154. 158 Phillip Deery, Labour in Conflict: The 1949 Coal Strike, Hale and Iremonger, Sydney, 1978, passim.

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At the time, though, conservative newspapers were lavish in their praise of the muscular policing of recalcitrant miners. The public appreciates that the police force on the coalfields … has stood between the local community and an orgy of anarchy and destruction … the police, collectively and individually, have behaved in keeping with the highest standards of the renowned corps in which they serve.159

Inspector MacKay must have been hoping for a reward for his work, and quickly. A state election was looming, and Labor had been threatening revenge on the police force.160 On 14 October 1930, MacKay was promoted to superintendent, third class.161 His elevation did not come a moment too soon. Less than two weeks later, Jack Lang’s Labor Party swept back into government in New South Wales.162 An inquiry into the policing of both the timber strike and the coal lockout was expected.163 According to the Sydney Morning Herald, police were outraged: If there is any attempt to interfere with the administration of the force, to disturb the rights of the officers concerned, or to punish anyone for doing his duty, an ugly position will be created. All ranks are apparently prepared to adopt strong measures.164

MacKay was named as the likely target: Although Superintendent MacKay was not the senior officer during the coalfields disturbances, and although he was not present when Norman Brown was fatally shot at Rothbury, his name has frequently been referred to as having incurred the displeasure of the labour extremists. Apparently

159 SMH , 20 January 1930, p. 10. 160 SMH , 12 November 1930, p. 12. 161 SMH , 15 October 1930, p. 10. 162 Bede Nairn, The ‘Big Fella’: Jack Lang and the Australian Labor Party, 1891–1944, MUP, Melbourne, 1986, p. 207. 163 Labor Daily, 1 November 1929, p. 6.; SMH , 1 November 1930, p. 13. 164 SMH , 12 November 1930, p. 12.

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the manner in which small mobile squads of detectives set the “workers’ army” to flight is one of the principle causes of resentment.165

There never was an inquiry. If this was due to police pressure, I have found no evidence of it. More likely, the Lang government was preoccupied with the economic catastrophe which had overtaken the country. In any case, MacKay had a Fouché-like ability to prosper in spite of, or even because of, shifts in power. The Lang government soon discovered that it needed a hard man to protect constitutional government from the gravest threat it had experienced in New South Wales since the Rum Rebellion. An Australian fascism was emerging, and MacKay was to be its nemesis.

165 Ibid.

CHAPTER 5

‘Fascism, with Modifications’: The New Guard, the ‘Old Guard’, and Challenges to State Power, 1931–32

1

Cutting the Ribbon

There is no sound, and the picture is often blurred: even so, the film of Francis de Groot “opening” the Sydney Harbour Bridge, on 19 March 1932, is dramatic.1 De Groot, in military uniform and wearing a peaked cap, is on horseback. He raises his sword in the air and says something. From reports of the incident, it is possible to reconstruct his words: “In the name of the decent citizens of New South Wales, I declare this bridge open”.2 A uniform policeman, who has lost his cap, grabs the horse’s reins. He and de Groot exchange words. De Groot is saying: “I am a King’s officer, stand back, don’t interfere with me”.3 The policeman holds the reins but does nothing more. A dozen more police can be seen standing a few paces away, but none of them moves. Then, a tall figure in civilian clothes, Superintendent W.J. MacKay, strides over. The camera swings to focus on the horse’s head, but in the background de Groot can be seen being pulled from his horse by MacKay. Judging from the film, MacKay uses considerable force. De Groot lands 1 ScreenSound Australia, CTN 294616, Cinesound Review, No. 2000, 26 February 1970. 2 NSWSR, Police Dept. Special Bundles, 10/1829, statement by Sergeant A. Lendrum,

n.d. 3 Ibid.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Evans, W.J. MacKay and the NSW Police, 1910–1948, https://doi.org/10.1007/978-3-031-10921-8_5

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in an untidy sprawl, one foot still tangled in a stirrup. MacKay frees de Groot’s foot and hauls him to his feet. The two men glare at each other, and then, de Groot is led away. Regrettably, while the footage is famous, it is usually presented as if de Groot’s piece of theatre was an amusing but unimportant incident, a prank.4 But the cutting of the ribbon was symbolic of much larger things. De Groot’s words and actions were a direct challenge to constitutional government and its agencies, including the police. The New Guard was simultaneously appealing to tradition and patriotism, while pushing for radical and extra-legal action. “The time has arrived”, one supporter wrote to de Groot: when fascism, with modifications, should take an active form in Australia. As no other combination … [is] opposing the Red Pestilence, the step must be taken—sooner or later—by the New Guard.5

Several studies of the New Guard have focussed on whether the group ever seriously intended a coup in New South Wales, and, if so, whether they might have succeeded.6 These are interesting questions, but perhaps of secondary importance. Neither the Italian Fascists nor the German Nazis gained power by force, or by winning an electoral majority.7 Rather, each was invited to take power by the head of State, after a campaign which combined violence, populist politics and sheer bluff.8 In 1932, the New Guard was a powerful organisation. Had events unfolded differently, it might have been in a position to claim a serious

4 In a 1970 commemorative newsreel released by Cinesound, for example, the narrative was inaccurate—MacKay was called “Commissioner” and de Groot’s attempt to cut the ribbon was said to be “abortive”—and devoid of any reference to the dramatic political context. Even more detailed treatments, such as a long-scripted interview with de Groot, broadcast on the ABC in 1948, evaded any unpleasantness. The New Guard is mentioned only briefly, its political aims and methods not discussed beyond a reference to disliking the Premier of the day. Cinesound Review, No. 2000; Mitchell Library, MS A4946, De Groot Papers, vol. 2, script of ABC broadcast, 1948. 5 Mitchell Library, MS A4948, De Groot Papers, vol. 4, p. 170, quoted in Keith Amos, The New Guard Movement, 1931–35, Melbourne University Press, Melbourne, 1976, p. 83. 6 See for example ibid., pp. 73–7. 7 Richard J. Evans, The Coming of the Third Reich, Penguin Press, 2004. 8 Roger Eatwell, Fascism: A History, Vintage, London 1996, pp. xx–xxii.

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share of power in New South Wales. This did not happen for many reasons, but a key factor was that the New South Wales Police Force, and particularly W.J. MacKay, responded to the New Guard firmly, and at times ruthlessly.

2

The New Guard and the “Secret Armies”

The New Guard was founded by a group of former officers of the Australian Imperial Force (AIF) in February 1931. The New Guard’s stated aims were to abolish “machine politics” and to suppress “any disloyal or immoral elements in Governmental, industrial and social circles”. The group would defend individual liberties, work for “Sane and honourable representative government throughout Australia” and pledged its “Unswerving loyalty” to King and Empire.9 These were inoffensive conservative sentiments, but more disturbingly, the Guard was organised on “military principles”.10 Colonel Eric Campbell, a solicitor, quickly emerged as leader. The movement grew rapidly as the economic and political crisis in New South Wales deepened. Early in 1932, Campbell stepped up his rhetoric. He was prosecuted for using “insulting words” about Labor Premier Jack Lang, and he publicly vowed that Lang would not be permitted to open the Sydney Harbour Bridge. At the opening ceremony, Francis de Groot performed his famous ribbon cutting. This was the movement’s high point. During April, the New Guard began to splinter, as senior members reacted against Campbell’s increasing autocracy. On 6 May, Jock Garden, a prominent unionist and key Lang supporter, was assaulted at his home by members of the New Guard. Subsequent police raids led to allegations of a New Guard plot to kidnap Lang and other officials and seize power. On 13 May, the Governor, Sir Philip Game, dismissed Lang from office. Bertram Stevens, head of the newly-formed United Australia Party, was installed as caretaker Premier. After a bitter election campaign, Stevens won overwhelming endorsement at the polls in July. The New Guard then faded from prominence. Simultaneously, it became more

9 NSWSR, Police Dept. Special Bundles, 10/1829, New Guard membership form, c. March 1931. 10 Ibid., Sergeant J. Sharples to Metropolitan Superintendent, 16 March 1931.

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obviously fascist. At its peak, in early 1932, the Guard had perhaps 80,000 active members: by November 1933, as few as 1,500 remained. These loyalists followed Campbell into a new body, the Centre Party, which had no electoral success, and which soon dissolved. The best study of the New Guard, in my view, is Keith Amos’ The New Guard Movement. Amos’ work is fair-minded, accurate and well-written, but has some limitations. Amos had only limited access to police archives, and the policing issues which the New Guard presented are not analysed. Andrew Moore has written extensively about the New Guard and other conservative responses to the Depression, and policing is a major theme of his work. Moore’s interpretations of the conservative challenges to constitutional government in New South Wales during the Depression and MacKay’s role in the police response to these challenges have been widely accepted.11 However, there are serious flaws in his interpretations. Because of the widespread acceptance of Moore’s work, it is necessary to explore his arguments and use of evidence in some detail. In December 1931, the New Guard’s official organ ran a cartoon which neatly illustrated conservative fears about the threat of proletarian uprising and the frailty of police power. A giant, slouching Neanderthal figure, armed with a bomb and a bloody dagger and labelled “Red”, confronts the much smaller figure of a policeman. Behind this officer, who is armed only with a short truncheon, stands a large and muscular civilian, labelled “New Guard”. The caption runs: “Policeman: Only 3,700-odd of us, you say! Yes, but what about our 100,000 determined New Guard pals?”12 This cartoon appears on the cover of Moore’s major work, The Secret Army and the Premier: Conservative Paramilitary Organisations in New South Wales, 1930–32, but it has been altered. The figure behind the policeman is now labelled “Old Guard”.13 The change to the cartoon on the cover reflects Moore’s thesis: that the New Guard was a comparatively unimportant organisation—an “obstreperous mutation”—and that what

11 See, for example, Frank Cain, The Origins of Political Surveillance in Australia, Angus and Robertson, Sydney, 1983, pp. 221–2. 12 New Guard, 15 November 1931, pp. 14–15. 13 Andrew Moore, The Secret Army and the Premier: Conservative paramilitary

organizations in New South Wales, 1930–32, NSW University Press, 1989, front cover.

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he calls the “Old Guard” was bigger, better organised and a more serious threat to constitutional government.14 The major problem in Moore’s work is his application to events of a crude historical materialism. Moore is, in his own words: one of those for whom the jumble of the past is impenetrable unless related to that famous line from the Communist Manifesto: “The history of all hitherto existing society is the history of class struggle”.15

During the Depression, he argues, the ruling classes, worried about proletarian revolution, formed a secret army, the “Old Guard”. In the doctoral thesis which preceded his book, Moore explains: The social character—the purpose—of the Old Guard was to maintain the ascendancy of the ruling class. It was one aspect of a coordinated mobilisation and in that respect it mirrored the place of force in society as a whole. … Glittering steel and rifle barrels—belonging to the state and unofficial groups like the Old Guard—underwrite more civilised methods. Violence is fundamental to the capitalist social formation. At times of “crisis”, the ruling group, fearful that property and all that accrues from it is in peril, quickly mobilise auxiliary instruments of the state.16

That such groups will be potentially fascist is presented as a given: Fascism is less a set of ideas and programs than a stage of capitalist development … Potentially it existed wherever the ruling classes of embattled liberal democracies saw their economic and social order tumbling and socialist enthusiasms arising among the masses.17

14 The cartoon in its original form does appear inside the book: see illustrations between pages 134 and 135. Moore has written that the decision to alter the cartoon on the cover was made by his publisher. 15 Moore, Secret Army, p. 8. 16 Andrew Moore, “Send lawyers, guns and money: A study of conservative paramilitary

organizations in New South Wales”, PhD thesis, Latrobe University, 1982, pp. 475–6. 17 Moore, Secret Army, p. 8.

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This argument follows an internal logic and accords with conventional Marxist theory, but it has little else to recommend it.18 Class conflict is, at times, a useful model for explaining historical events: the industrial disputes discussed in the previous chapter, for example, obviously had an element of class conflict driving them. But to see fascism in such simple terms, as a sort of military wing of the Chamber of Manufactures, is to distort understanding. Moore bands together disparate groups and interests in one coordinated, monolithic whole. He describes a “ruling class” drawn from “the wealthy, the powerful and the socially exclusive”. They were graziers, company directors and senior legal professionals: all discreet men, pessimistic about human nature, fearful of “the mob”, reflexive in their defence of ruling class interests. Moore even suspects continuity between secret conservative paramilitary organisations which sprang up at different times between the First World War and the early 1950s.19 On the evidence, this argument cannot be sustained. Conservative interests in Australia, it is true, enjoyed many privileges and had interlinking personal connections and some shared values. But far from being “tightly and cohesively constituted”,20 they were just as prone to internal dissension as any other sector of society. Between the wars, Australian conservatism was not cohesive or competent enough even to maintain a stable and unified political party, let alone a “secret army”.21 Histories of conservative politics at this time reveal intense divisions and considerable conflict and confusion about both goals and methods.22 The weaknesses in Moore’s argument are illustrated by his analysis of the 1923 Melbourne police strike, and the rapid mobilisation of a special constabulary to deal with the breakdown of law and order. The specials 18 For a concise expression of the Marxist view of fascism, see John Stevenson, “The BUF, the metropolitan police and public order”, in Kenneth Lunn and Richard C. Thurlow, British Fascism: Essays on the Radical Right, Croom Helm, London, 1980, p. 136. 19 Moore, Secret Army, pp. 3, 6, 8, 77. 20 Ibid., p. 74. 21 James Jupp, Australian Party Politics, rev. ed., Melbourne University Press, Melbourne, 1966, pp. 125–32. 22 See for example Ulrich Ellis, History of the Australian Country Party, Melbourne University Press, Melbourne, 1963, pp. 171–93; Earl Page, Earl Page, Black Inc., Melbourne, 2001, pp. 203–11; Don Aitken, The Colonel: A Political Biography of Sir Michael Bruxner [Aitken, Bruxner], ANU Press, Canberra, 1969, pp. 129–37.

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were, he argues, “faithful souls [recruited] to subdue the fires of working class revolution” supported by “committees of the bourgeoisie”.23 The 1923 response was no aberration. The attention to detail was meticulous, sufficiently so, in fact to suggest prior organising and pre-arranged contingency planning …24

But the disorder and looting which occurred during the police strike were not political, and the strike itself was the result of ruling class incompetence.25 The underlying cause of the strike was the decision, 20 years earlier, to end police pensions. This penny-pinching act could easily have been reversed, and any sensible ruling elite, particularly one worried about revolution, would have done so. It is hard to accept that a ruling cabal could be both so prescient as to organise for a police strike and so blundering as to needlessly provoke one. Moore’s assertions about the “Old Guard” are similarly overstretched. It is necessary to Moore’s thesis that the “Old Guard” be fascist, an aggressive organisation willing to overthrow the State.26 Statements by an “Old Guard” figure that “we must discourage any talk or doctrine which is liable to create civil strife” he regards as hypocritical. To demonstrate this, he cites incidents of violence which occurred in November 1931, at a number of rowdy political meetings. But the most serious violence at these meetings, and the only incident which resulted in prosecution, was the hurling of a stink bomb.27 Moore also writes: Ultimately the metropolitan division of the Old Guard also provided concrete evidence of its support for direct action tactics. On 11 December 1931 its members attacked a communist meeting in Darlinghurst. A melee

23 Andrew Moore, “Guns across the Yarra: Secret armies and the 1923 Melbourne police strike”, in Sydney Labour History Group, What Rough Beast?: The State and Social Order in Australian History, Allen and Unwin, 1982, p. 223. 24 Ibid., p. 224. 25 Most of those charged for offences during the strike were young middle-class men,

who normally have been law abiding, indulging in a Roman holiday. Brown and Haldane, Days of Violence, p. 56. 26 Moore, Secret Army, p. 100. 27 Ibid., p. 131.

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of some ferocity was provoked and several policemen had their eyes injured by cayenne pepper, allegedly thrown by communists.28

But this incident had nothing to do with the “Old Guard”. All those who attacked the meeting, including the man who injured a policeman’s eyes (only one police officer was injured in this way), were members of the New Guard.29 This is not the only instance in which Moore attributes to the “Old Guard” the words and actions of the New Guard. Moore quotes Eric Campbell from his 1934 book, The New Road, in which Campbell openly espoused the need for a Fascist state in Australia. This is said to be “an expression of the general fascist inclination in both the main paramilitary movements”.30 But after the election of the Stevens government in 1932, as the threat of civil disorder faded, the “Old Guard” quietly packed up and disbanded.31 It no longer existed, much less plotted radical political change. One man Moore claims to have been a significant figure in the “Old Guard” is C.L.A. (Aubrey) Abbott, who was a former Country Party member and still active in politics in 1932. Moore cites as sources an interview with Abbott’s widow and an unpublished manuscript, a memoir by Aubrey Abbott.32 Mrs Abbott’s recollections cannot be checked, but the Abbott memoir is held by the National Library of Australia. Nowhere in the manuscript did Abbott refer to the “Old Guard”, though he did mention talk of “hotheads” associated with Charles Hardy’s Riverina Movement.33 Abbott strongly disapproved of such extremism.34 He said he was approached by the New Guard, and that he rejected them. He 28 Ibid., p. 133. 29 NSWSR, Prem.

Dept. Special Bundles, 9/2459, various police officers to Metropolitan Superintendent re incident on 11 December 1931, dated 18 May 1932. One of the officers present was W.J. MacKay. 30 Moore, Secret Army, p. 238. 31 Ibid., p. 234. 32 Ibid., p. 345. 33 The Riverina Movement was a populist group with a rural separatist program. See

W.A. Beveridge, “The Riverina Movement and Charles Hardy”, B.Ec thesis, University of Sydney, 1954. 34 NLA, MS 4744/9/5, C.L.A. Abbott Papers, typescript draft of “Family Background: The Upper Hunter Abbotts”, p. 345 [Abbott memoir].

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was on friendly terms with several New Guard members, and he tried to persuade them to abandon their extremist plans. I said, in Australia we did not favour revolutions and the way to change governments was by voting them out … I told [Eric] Campbell that the Premier [Lang] had been elected constitutionally and there could be no usurpation of the law by any body of men.35

Abbott warned Campbell that the police would be loyal to the constitutional government and would effectively suppress any challenge.36 In short, the Abbott memoir provides no support for Moore’s thesis. Having checked this and other sources, I have come to the conclusion that the “Old Guard”, in the sense that Moore uses the term, did not exist. There were, it is true, conservative organisations which were concerned about the possible break down of law and order, and who were hostile to the Lang government. There was a group or groups called the “Country Defence Organisation”, with several regional branches and under the overall leadership of Sir Adrian Knox. There was also a Sydneybased “Citizens’ Reserve Corps”, headed by Phillip Goldfinch. Moore combines these organisations into the “Old Guard”, and he fails to acknowledge the evidence that these groups were defensive in character, separate from each other and opposed to the New Guard’s radicalism.37 Moore argues that the “Old Guard” was well coordinated, with a command structure taking in the entire state, capable of rapid mobilisation. Members of the Country Defence Organisation did claim that this was the case, but there is every reason to be sceptical.38 Many of the same people were involved in the “New States” movements, rural separatist groups active during the Lang years. The supporters of these movements were deeply divided on both goals and methods.39 A massive secret army

35 Abbott memoir, p. 343. 36 Ibid. 37 National Archives of Australia [NAA], A6122/40, The Association (Post War) and

the New Guard (Pre War), vol. 1, 1931–1949, Colonel J.F. Lavarack, to Director, Commonwealth Investigation Branch, 11 February 1932. 38 Ibid. 39 Beveridge, “Riverina movement”, passim; Ulrich Ellis, The Country Party: A Political

and Social History of the Party in New South Wales, F.W. Cheshire, Melbourne, 1958, pp. 137–83; Aitken, Bruxner, pp. 136–7.

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is much harder to form and coordinate than an open political movement, yet the very people Moore claims were coordinating this “army” haggled for months before they created a new political party. Even then, rural and urban interests were so estranged that the new United Country Party, which embraced most of the New States movements, did not merge with the United Australia Party.40 In any case, the very discretion shown by the groups Moore calls the “Old Guard” contradicts the claim that they were fascist. As is discussed below, an integral part of fascism was populist political theatre, the open and symbolic challenge to the legitimacy of State institutions. This somewhat lengthy criticism of Moore’s thesis is necessary, because he directly accuses W.J. MacKay—who he calls as “a bully boy for the haute bourgeoisie”41 —of having been involved in a massive antidemocratic conspiracy. Moore claims that both MacKay and the Commissioner, Walter Childs, sympathised with the “Old Guard” and worked secretly with it.42 Moore claims that Aubrey Abbott was particularly useful to the “Old Guard” as he had worked in the Police Department as a young man and was friends with W.J. MacKay. “They had kept in touch and between 1930 and 1932 MacKay was scrupulously informed about the Old Guard’s activities through Abbott”.43 The source cited is the Abbott memoir. In this document, Abbott wrote that he had been friends with MacKay when they were both junior police, but apart from that he mentioned only one encounter, a casual social meeting at some time in the late 1930s.44 Andrew Moore has written a defence of his perspective: “Superintendent MacKay and the curious case of the vanishing secret army: A response to Richard Evans”, published in the journal History Australia.45 However, it is my view that Moore’s assertions about MacKay cannot be

40 Ellis, Australian Country Party, p. 193. 41 Andrew Moore, “Policing enemies of the state”, in Finnane, Policing in Australia,

p. 134. 42 Moore, Secret Army, pp. 132–3. 43 Ibid., p. 266. 44 Abbott memoir, p. 187. 45 Andrew Moore, “Superintendent MacKay and the curious case of the vanishing secret

army: A response to Richard Evans”, History Australia, vol. 6, no. 3, 2009, pp. 72.71– 72.18.

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sustained. Nothing in either the public statements or the internal documentation of the New South Wales Police Force suggests complicity with the New Guard or anyone else. MacKay had many faults but plotting to overthrow democracy was not one of them. To the contrary: in a dark hour, Mackay was an effective protector of constitutional government.

3

Fascism, Conservatism and the State

The Marxist approach to fascism is to regard it as a massive fraud, a means of manipulating the masses to prop up the capitalist State.46 But fascism is more complex than that. Fascism was an ideology which tried to create a “Third Way”, an alternative to communism and capitalism. True fascism had elements of social radicalism, a distaste for the materialist values of capitalist society and a desire to end the hatred and disharmony between workers and employers, all seen as products of liberalism.47 Fascist ideologies varied greatly from place to place, but there were some common ideological elements, including heightened nationalism, often coupled with concern for the social well-being of the people; enthusiasm for strong leadership, for a dictator untrammelled by the messiness of party politics but also responsive to the popular will. Also present were a conviction that society needed to be completely remade, from top to bottom; an impatience and energy, a quest for “action now”; and the glorification of violence as cathartic and spiritual, as well as necessary to change the existing order.48 To succeed politically, fascism had genuinely to embrace a wide spectrum of society. In the nations where fascist regimes came to power, this did occur.49 The relationship between fascism and the capitalist establishment was complex. While there were instances of employers and large landowners supporting fascist parties, this was not universal.50 Fascism, for its part, was often ambivalent about capitalism. Both Mussolini

46 Renzo de Felice, Fascism: An Informal Introduction to Its Theory and Practice, Transaction Books, New Brunswick, NJ, 1976, pp. 9, 17. 47 Eatwell, Fascism, pp. xx, 4. 48 Michael Hurst, “What is fascism?”, Historical Journal, vol. 11, no. 1, 1968, pp. 165–

185; Eatwell, Fascism, p. 4. 49 de Felice, Fascism, p. 11. 50 Eatwell, Fascism, p. 42.

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and Hitler led governments which were economically interventionist, controlling industry both through regulation and direct ownership.51 Legitimacy was vital to fascist aspirations. To gain political power, fascist parties needed to present themselves as a force for radical change and renewal, but also as a continuation of important national traditions. The use of political theatre—uniforms, mass rallies, armbands, marches— and the exploitation of potent myths were part of this process of popular legitimation.52 Many, though not all, of these elements were present in the New Guard in differing degrees at different times.53 The most noticeable missing element was a radical social programme. Eric Campbell occasionally attacked banks, but he was too firmly an individualist to indulge in populist welfare: he once condemned free milk for school children as “the thin edge of the Soviet wedge”.54 In his study of fascism, Roger Eatwell identifies common factors which allowed fascist parties to emerge and gain significant support. These were an economic crisis of such magnitude that the middle class felt threatened, corrupt and ineffective governments, and weakness and disunity among mainstream conservative parties.55 All these factors were, to some extent, present in New South Wales in 1932. Whether support was translated into power was, however, another matter. Fascist parties needed both a mass base and the support of existing elites.56 The police were an important element in this equation. In Italy, there was some police connivance at early fascist violence. In Germany, this was even more marked: the police usually turned a blind eye to violence against, even murder of, communists, Jews and other fascist targets.57 Such police connivance was not universal, however. In Britain, most of the conservative establishment consistently opposed fascist groups. Government ministers, including conservatives, refused to

51 Ibid., pp. 61, 120–2. 52 Ibid., pp. xx–xxi; Maurice Manning, The Blueshirts, Gill and Macmillan, Dublin,

1970, pp. 234–43. 53 Amos, New Guard, pp. 100–15. 54 Eric Campbell, The New Road, Briton, Sydney, 1934, p. 42. 55 Hurst, “What is fascism?”, p. 168. 56 Eatwell, Fascism, p. xxi. 57 Ibid., pp. 42, 94, 105.

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give fascist party members special constable status.58 The police infiltrated Oswald Mosley’s British Union of Fascists and, after violence occurred, asked for and were granted new powers to help suppress the organisation.59 In Ireland, the Blueshirts movement—which had some striking similarities to the New Guard—was similarly marginalised. The Blueshirts frequently claimed that they had police support, but this was untrue. The Irish police were steadfastly loyal to the elected government, and constant police pressure kept the Blueshirts in check.60 In New South Wales, the New Guard desperately sought legitimation by key sectors of the establishment, but it never occurred. Contrary to Moore’s arguments, most of the “ruling class” never endorsed fascism. Indeed, it could be argued that the threat of such extremism helped spur mainstream conservatism to regroup and reorganise. The new United Australia Party was a strained coalition of interests, but it represented a sufficiently broad consensus to form a stable government.61 Another important factor in the failure of the New Guard was the response of the South Wales Police, and that response was the work of W.J. MacKay.

4

High Policing: Police and Enemies of the State

The magnitude of the economic disaster of the early 1930s is well known, but our view of the Great Depression is informed by hindsight. We know that the economy gradually recovered, and that capitalism and liberal democracy survived. The fears people held at the time seem excessive, a collective hysteria. But this is unfair to those who lived through the Depression, and saw their world collapsing around them. With nearly one-third of the workforce unemployed by 1931, anarchy or revolution seemed realistic prospects.62 The financial crisis in New South Wales was acute. As early as November 1930, Premier Jack Lang’s private communications made the

58 Ibid., p. 177. 59 Ibid., p. 187; Nicholas Mosely, Beyond the Pale: Sir Oswald Mosley and family,

1933–1980, Secker and Warburg, London, 1983, pp. 107–17. 60 Manning, Blueshirts, pp. 1–83, 114–27. 61 Ellis, Country Party in New South Wales, pp. 189–93. 62 Warren Denning, Caucus Crisis: The Rise and Fall of the Scullin Government,

Cumberland Argus, Sydney, 1937, p. 12.

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finances of the state government sound like those of a struggling corner shop.63 At the same time, with such large numbers of people unemployed, state agencies faced unprecedented strain. By May 1932, the State Savings Bank of New South Wales had failed, pensions were not being paid, and there were rumours that the government would be unable to pay the wages of public servants.64 It was in this situation of turmoil and widespread fear that the New Guard arose. Concern about the “politicisation” of policing, writes Mark Finnane, implies deterioration from a previous state of impartial, non-political policing. This traditional view, British in origin, “is itself something of an ideological construct, an important means for establishing the legitimacy of police authority”.65 But if the notion of apolitical policing is a myth, it is not necessarily a bad thing. Myths can be useful, and that of police neutrality does tend to widen the social space for dissent, and to help protect individual liberties, even if inconsistently. Most histories of political policing are written from a more-or-less Marxist perspective. “Capitalism without actual or threatened violent repression [by police]”, writes Andrew Metcalfe in his study of class struggle in the New South Wales coal industry, “is inconceivable”.66 This is true, but not just of capitalism. All social systems, including those which suppress capitalism, require police and use actual or threatened violence against their enemies, real or perceived. This was what Joseph Fouché called “high policing”, the preservation of national stability. “Every government”, Fouché said, “needs as the first guarantee of its security a vigilant police, whose chiefs are firm and well-informed”.67 One of the difficulties of high policing is deciding when politics becomes crime. In the eyes of historical materialists, this is a simple

63 Lang to acting federal Treasurer, J. Lyons, 27 November 1930, in E.O.G. Shann and D.B. Copland, The Crisis in Australian Finance, 1929 to 1931: Documents on Budgetary and Economic Policy, Angus and Robertson, Sydney, 1931, pp. 81–3. 64 SMH , 15 April 1932, p. 9. 65 Mark Finnane, “Police and politics in Australia: The case for historical revision”,

Australia and New Zealand Journal of Criminology, vol. 23, 1990, pp. 218–19. 66 Metcalfe, Freedom and Dignity, p. 139. 67 Philip John Stead, “Joseph Fouché: The Napoleonic model of police”, in Stead,

Pioneers in Policing, p. 72.

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matter: when private property is threatened, the resources of the capitalist State are marshalled to crush the revolutionary threat.68 The reality is more complex. Robert Reiner argues that police see themselves as guardians of social order. This belief that they are performing an indispensable social duty co-exists with many other attitudes, particularly cynicism and despair about social trends, but it is often sincere for all that. The police world view divides society up into “classes”, but these classes are not socio-economic divisions. “They are police-relevant categories, generated by their power to cause problems”, either through crime and violence or by challenging police power and prestige.69 David Baker argues that: Police philosophy is one of maintaining the status quo; police desire order and tranquility on the streets. Hence, police control is related to winning public disorder situations … When there has been a perceived crisis of authority, police have commonly repressed dissent.70

Baker is discussing industrial disputes, but exactly the same principles apply to threats to the State, and thus to police power, from political extremism. The political colouring of this threat matters little, in the police world view. John Stevenson’s study of the police response to the British Union of Fascists in the mid-1930s shows that while the police were reflexively hostile to left-wing groups, this did not imply approval or tolerance of the BUF. The police, Stevenson writes, were not antileft, or anti-fascist, but “pro-police”. In particular, the police resented the BUF’s adoption of uniforms and its challenge to their own control of the streets.71

5

‘The Future Is Fraught with the Gravest Possibilities’: The New Guard Emerges

On the evening of 20 October 1931, W.J. MacKay, now a detectivesuperintendent, presided over the eleventh annual CIB banquet. The

68 Moore, “Send lawyers, guns and money”, pp. 475–6. 69 Reiner, Politics of the Police, pp. 111–21. 70 Baker, “Police, pickets and politics”, pp. 4–6. 71 Stevenson, “The BUF, the metropolitan police and public order”, pp. 146–8.

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Labor Minister for Justice (and a future premier), William McKell, told the gathering: The Government has absolute confidence in the police force of this State. We need no assistance from any outside organisation, and, what is more, we will not tolerate any interference by outside organisations with the functions of government in this state. Whatever the authority, high or low, we will not permit it to interfere with the rights of the government to govern.72

In his reply, Commissioner Walter Childs assured the government of the loyalty of the force and of its ability to maintain order.73 Many in the labour movement did not share McKell’s confidence. Two days later, a meeting of the Trades and Labour Council resolved to “fight the New Guard with their own weapons”. Jock Garden told the Council that the police “could not be looked to with confidence in this respect”, and one delegate expressed concern that MacKay was in contact with the New Guard, and that senior police were providing intelligence to the movement.74 Garden’s suspicions were understandable, given his recent experience at MacKay’s hands. However, the police attitude to the New Guard was never one of sympathy, though it took a little time for the group to be taken seriously. In January 1931, people connected to the New Guard sounded out senior police about the need for an organisation, a “loyalist” volunteer reserve, to support constituted authority. They were rebuffed. On 29 January, Childs told Lang about being approached by two men, probably connected to each other, both of whom asked about whether the police wished to organise a special constabulary to guard against violence “on the part of the Communistic element in the near future”. Childs said he had dismissed the suggestion that such a force might be needed and added that to do anything of this nature would be “disloyal to the Government”.75

72 SMH , 21 October 1931, p. 11–12. 73 Ibid. 74 Labor Daily, 23 October 1931, p. 7. 75 NSWSR, Police Dept. Special Bundles, 10/1829, Childs to Lang, 29 January 1931.

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Childs asked MacKay to investigate.76 The earliest mention of the New Guard by that name occurred on 16 March 1931, in a report by Sergeant J. Sharples. He said a “new organisation named the New Guard has been formed in the City recently”. The group was intending to petition the Governor to dismiss Lang, “and if he refuses the demand these people will then march to Parliament House and take charge, at the same time another section of the same movement will march to Canberra”. Most of the leaders were ex-military officers and “Their object is to get rid of the present Government”. He estimated their strength at about 16,000 and said that they seemed well organised “mostly on military principles”.77 MacKay made further inquires and wrote a report two days later. He repeated the story of senior police (including himself) being approached about the need for a special constabulary, and said that all police approached had rejected the need for such a group and refuted the claim it had police recognition. Anyone who asked was told “to take no part in such a venture and if already in it to get out”.78 MacKay said that the New Guard’s object seemed to be simply to support the civil power in the event of a breakdown of law and order. While he affirmed that the police would infiltrate the group, he was openly contemptuous: “I do not consider the organisation known as the New Guard worthy of being viewed seriously”.79 He made a joke of Sharples’ report that some New Guardsmen might march on the federal capital: “the fellows who take on the Canberra route are to be pitied”. The infiltration of the New Guard was accomplished with impressive speed.80 One of MacKay’s men, Detective-Constable Fleming, reported to MacKay on 26 March. Fleming described the organisation’s structure, rapid growth and political objectives, and his conclusion was very different from that of MacKay just a week earlier: Up to the present time there has been no act committed which would call for police action. I am satisfied however from conversations I have

76 Ibid., Childs to MacKay, 25 February 1931. 77 Ibid., Sergeant. J. Sharples to Metropolitan Superintendent, 16 March 1931. 78 Ibid., MacKay to acting Commissioner. A. Leary, 18 March 1931. 79 Ibid. 80 Ibid., MacKay to Childs, 19 March 1931.

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had with leading men in the movement that the future is fraught with the gravest possibilities.81

On 31 March, Fleming reported on a meeting of the branch he had joined, at which weapons were discussed. One member advised the others to obtain all the weapons they could as soon as possible, and that the leadership of the Guard had means by which “the necessary arms could be secured”. This meeting asserted that Commissioner Childs supported the New Guard. The meeting was also told that the Lang government was preparing to swear in members of the Labour Army as special constables, and that this force would in reality be directed by communists. If this were to occur, there would be a civil war.82 There are conflicting accounts of how MacKay came to be given the task of subduing the New Guard. William McKell later claimed it was his idea: he made the recommendation at a Cabinet meeting, and Lang agreed despite the objections of J.M. Baddeley, who had an understandably dim view of MacKay.83 In a memoir, Lang said that he had concluded Childs was a “timid administrator” who “had fallen down on the job and could not be trusted to take effective action”.84 Lang claimed he knew of MacKay only as the man supposed to have clubbed Baddeley over the head at Rothbury. Showing a certain lack of solidarity, Lang decided on this basis “that Mackay was the kind of man to take charge of the situation now developing”, and sent for him: I … asked him, if he found himself in temporary control of the force, did he think he could handle the New Guard. Most fervently he assured me: “You give me the job and responsibility and I will show you how it can be done”.85

Francis de Groot later claimed that MacKay had said in direct terms that his actions against the Guard were motivated by self-interest. Before

81 Ibid., report by Detective-Constable Fleming, 26 March 1931. 82 Ibid., report by Fleming, 31 March 1931. The Labour Army was another paramilitary

group, but it never had more than notional existence. 83 Kelly, Man of the People, p. 62. 84 Lang, Turbulent Years, p. 157. 85 Lang, Turbulent Years, pp. 157–8.

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the bridge incident, de Groot had challenged MacKay about “ideals, have you never heard of them?”: His reply, given in a broad Glasgow accent, was to point to opposite corners of his desk in turn and say “If ma ideals were there, an’ ma bread an butter there, my ideals could go to [buggery]”. This with a broad sweeping motion of his hand, sending those inconvenient ideal things to where he thought they should go. The Real MacKay.86

De Groot was not a particularly reliable witness, but the story rings true. MacKay could be startlingly indiscreet. Was MacKay merely an opportunist, seeking to take career advantage of political chaos, as he had done with the recent industrial strife? This was probably part of his motivation, but his dislike of the New Guard was sincere. Like the BUF in Britain, the New Guard was a challenge to police power and professional pride which quickly became intolerable. In his memoir, Eric Campbell presented a rosy picture of his relations with the police, particularly MacKay. He claimed that until May 1931, senior police were “friendly and cooperative”.87 Describing his first meeting with MacKay, Campbell wrote: My caller proved to be a big, well-built man, wearing a rather battered panama hat, a sloppy ill-fitting washing coat, baggy grey trousers and dusty shoes. He had a strong but rather ugly face and when he grinned, as he often did, he disclosed the urgent need for expert dental attention. Despite all this he was clearly a man of strong personality and ability, and with the quiet assurance of authority. … he spoke in a husky, deep voice, and his accent was a mixture of Glasgow and the lilt of the Western Highlands … He had a well-developed gift for leadership.88

Campbell claimed to have remained friendly with MacKay despite the conflict between the police and the New Guard, and that they were on first name terms.89 The archival record does not support Campbell’s

86 Mitchell Library, MS A4946, De Groot Papers, vol. 2, “Sydney Harbour Bridge”, p. 5 [De Groot, “Sydney Harbour Bridge”]. 87 Campbell, Rallying Point, p. 105. 88 Ibid., pp. 106–7, 110. 89 Ibid., p. 119.

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recollections. After December 1931, Campbell became openly abusive of the police. He called Childs a liar and a fool, and denounced statements by MacKay as “cock-and-bull stories”.90 The feeling was mutual. On 1 April 1931, MacKay reported that he had twice been approached by prominent citizens. According to these men, Campbell had claimed that MacKay was in contact with the New Guard, that Childs was in sympathy with the group, and that police stations would be used as New Guard rallying points.91 On the first occasion, MacKay simply denied the claims and advised his caller not to have anything to do with the New Guard. When a second caller repeated the same story, MacKay asked his visitor to accompany him on a visit to Eric Campbell. The two men: went to Mr Campbell’s office at 66 Pitt Street where I had an interview with Mr Campbell and in the presence of the gentleman mentioned informed Mr. Campbell that … it was a deliberate lie for him or any others of his organisation to state … that he was in touch with me or with the Commissioner of Police or any other Police officer or [that] the Police Force as a whole were in any way sympathetic to such a movement, and I said to him “The sooner you get the idea out of your head about organising such a force and permitting members of it to make rash statements about raiding parliament house and arming themselves with guns the better”.92

MacKay urged that the Chief Secretary, Mark Gosling, be informed, and that: some action be taken through the public press … to counteract the recruiting methods of this body known as the New Guard because it is evident to me as a result of my inquiries during the last two or three days [that] by impressing decent respectable citizens in various suburbs that the police are in need of reinforcement in the event of an outbreak of trouble

90 NSWSR, Prem. Dept. Special Bundles, 9/2459, police report on New Guard meeting at Manly, 14 March 1932; Mitchell Library, MS A4953, De Groot Papers, vol. 10, typescript of radio talk by Eric Campbell, broadcast 13 October 1932. 91 NSWSR, Police Dept. Special Bundles, 10/1829, MacKay to Childs, 1 April 1931. 92 Ibid.

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and that the Senior Officers of Police are in sympathy with the movement that recruits are being obtained to this movement who would not otherwise have anything whatever to do with it.93

If this was MacKay dissembling, seeking to fool Gosling about his attitude to the New Guard, he was doing it extremely well. The passages cited were obviously dictated, and they convey a sincere anger. Campbell did not back down. On 17 April, the Labor Daily reported a New Guard claim that they were “in close communication with the chief of the CID, Mr MacKay”.94 This claim was quickly denied. Mackay told the Labor Daily: The gentleman who approached me and who spoke at a supposed secret meeting … did not give the whole of the conversation that transpired between us. I warned him not to have anything to do with such an organisation … Any organisation that advocated the doctrine of force, which is not organised by authority and acknowledged by the government is illegal, and its organisers may lay themselves open to a charge of sedition. I say definitely that I have given no encouragement to this or any similar secret organisation which seeks to break the laws of the land.95

And that was what the New Guard was soon doing. Again, Campbell later put a genial gloss on the actions of the New Guard in breaking up political meetings. These incidents were, he said, “good humoured” and the police were “looking on and grinning”.On most occasions, the police “never interfered but on the contrary were quite delighted”.96 Again, the archival record contradicts Campbell. On 11 December 1931, at about 8.00 p.m., a political meeting was in progress in Victoria St, Kings Cross, when large body of New Guard arrived, singing patriotic songs. A cordon of police moved in to protect the speakers. The New Guard tried to break through the cordon and eventually succeeded. A brawl ensued. During the fighting, three police were assaulted, and one was seriously injured by having cayenne pepper 93 Ibid. 94 Labor Daily, 17 April 1931, p. 5. 95 Labor Daily, 18 April 1931, p. 6. 96 Campbell, Rallying Point, p. 105, 111.

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thrown in his eyes. The man who threw pepper, a member of the New Guard, was convicted of assault and sentenced to two years’ hard labour.97 On 13 February 1932, some journalists from the Labor Daily observed about 700 New Guard members drilling in Belmore, under the eye of Eric Campbell. Two reporters and a photographer were assaulted, and a camera damaged.When they tried to leave, New Guardsmen punched the journalists through the windows of a car.98 The Guard began seriously to flex its muscles on the evening of 26 February. A meeting of the Communist-led Unemployed Workers Movement (UWM) in Bankstown was surrounded by more than 100 New Guard. A police constable present said the meeting had been peaceful, until 9.30 p.m., when: there was a crushing in, the speaker addressing the meeting was knocked off his stand, and the citizens who were listening to the speaker … were struck, and then a general melee took place.99

There were four arrests, including two New Guardsmen.100 In Newtown, on the same night, the New Guard attacked another meeting of the UWM. A report by a local constable said about 100 people were listening to speakers when they were attacked by a group of about 70 men, some armed with pieces of timber. The constable said that the UWM meetings were regular events, and had always been peaceful.101 The rhetoric at New Guard meetings, meanwhile, became more extreme. At a meeting in Kensington on 17 February, a speaker warned of armed communist groups among the unemployed. He implied that by comparison with other senior New Guardsmen, he was a moderate.102 Another speaker, Colonel Wright, had a similar message: that the main 97 NSWSR, Prem. Dept. Special Bundles, 9/2459, various police officers to MacKay, incident on 11 December 1931, dated 18 May 1932. This was the incident Andrew Moore falsely blames on the “Old Guard”. 98 Ibid., statement by Patrick Hennessey, 18 May 1932. 99 Ibid. Constable. E.G. Anderson to MacKay, 16 May 1932. 100 Ibid. 101 Ibid., Constable R. Steele to MacKay, 17 May 1932. 102 Ibid., police report on New Guard meeting at South Kensington, 18 February

1932.

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cause of division in the Guard was between those who wanted an immediate coup and those who wanted to exhaust other options first: I will never stand for the New Guard becoming aggressive, so much as to jeopardise and sacrifice one single life, or one body, unless it is for a very good purpose. I have heard some members of the New Guard indulging in a good deal of braggadocio, they have said “we have burned our boats and now it is time we did something”. Well of course it is time we did something but first we have to take every constitutional move, exercise the greatest tact and patience and if the time comes when we have to defend our liberty God knows that we will be so organised that that we can hit so hard and quick that we will succeed quickly …103

Wright espoused a tactical philosophy that MacKay would have endorsed. When we are called upon to act we have to strike quickly because it is only a well disciplined mobile force that will be able to achieve a quick victory which will prevent a lot of trouble. It would be murder if we are not half organised because by so being we will probably spill a lot of unnecessary blood.104

In the discussion of tactics which followed, members of the New Guard were consistently described as “troops”.105 On 18 February, at Sydney Town Hall, a speaker the detective taking notes called “Major Lawson” (probably Major Leeson, a senior New Guard commander) made a virulent denunciation of communists and the Lang government: we see a sorry spectacle of a government of New South Wales dominated by our esteemed Premier Mr John Thomas LANG—Boos. Boos. Boos.Mr John Thomas LANG without political honour or decency and who will adopt any method or tactics and employ any creature however foul … he had surrounded himself with the finest lot of rogues and convicted criminals … his objective … is the sovietisation of New South Wales … and then they ask you is there any need for the New Guard—YES. YES. YES.103 Ibid. 104 Ibid. 105 Ibid.

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… and those great imposters, people of the calibre of [Donald] Grant and [Jock] Garden. VOICE: The scum of the sewer. Lawson: Gentlemen, the sewer is useful.106

6 ‘If It Is Necessary to Use Force the Police Will Not Hesitate’: Ultimatum MacKay reacted to these developments forcefully. On 2 March, he made a formal visit to Eric Campbell and other senior members of the New Guard. MacKay warned the New Guardsmen against advocating violence. Referring to speeches like Leeson’s, he charged the New Guard leadership with responsibility for violence against Communist speakers, which Campbell denied: I accept no responsibility … nor does the executive of the New Guard, they [the culprits] received no instructions … the action taken was spontaneous on the part of the persons resent.107

Campbell said that those who had behaved violently were facing court “and rightly so”.108 MacKay was not convinced. He accused Campbell of having a “Flying Gang or Mobile Battalion or Division” which made the assaults. Campbell did not reply. MacKay then made one of his characteristic impassioned speeches. A transcript is a cold, bare document: even so, it is apparent he was losing his temper, talking heatedly and quickly, scarcely pausing for breath: Your organisation has come out and indulged in threats on the life of … the Premier, threats have been made that he will not be allowed to open the bridge, and threats have been made that the communists will be made to leave this state before the end of February and there is a state of alarm in the public mind in consequence of these statements and our duty here today is to tell you that the police will not allow your organisation to usurp

106 Ibid., police report on New Guard meeting at Sydney Town Hall, 18 February

1932. 107 Ibid., MacKay to Childs, 4 March 1932. 108 Ibid.

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the power of maintaining law and order in this community and neither the Government of this country nor the responsible officers in the police desire to see or are prepared to allow decent citizens, who have been inveigled into the ranks of the New Guard by statements that the police are in need of reinforcement and that the object of the New Guard is to stand behind the police in the enforcement of law in the event of communist riots, being blindly led into outbreaks of disorder in which many of them may be involved in mental or physical distress, in consequence of coming in contact with the police and we desire to tell you that if these meetings and drillings continue and these repeated stimulations to commit acts of violence are maintained the police will take determined action against your organisation every time it comes into contact with it and it will be no use … to try to shirk your responsibilities as being instigators and parties to these acts.109

MacKay ended by warning Campbell: if it is necessary to use force to quell these drillings and meetings the Police will not hesitate to do so in the public interest.110

What followed was not always admirable conduct on the part of MacKay, but Campbell could not say he had not been warned.

109 Ibid. 110 Ibid.

CHAPTER 6

‘Belt Their Bloody Heads Off’: The Police Response to the New Guard, 1932

1

‘Insulting Words’

Even before they met, Eric Campbell knew W.J. MacKay by reputation: He was a man of ability and drive with a well-developed gift of leadership. He had made quite a name for himself as an exponent of strong-arm tactics and courage, as many a miner in the northern coalfields could testify.1

Campbell should have realised that the tactics MacKay had used against the timber workers and the miners would be employed again. MacKay’s modus operandi was well developed. An organised challenge to police power was met with a three part response. The police would tie up the leadership with a court case, even a trivial or concocted one; reassert their authority, both symbolically and physically, with a decisive show of force; and infiltrate the organisation, using agents provocateurs to discredit it and lay it open to conspiracy charges. By the time MacKay made his warning to Campbell, the first step had already been taken. At a meeting at Lane Cove on 11 January 1932, Campbell had spoken about a petition the New Guard were organising, asking for Lang’s removal from office: 1 Campbell, Rallying Point, p. 110.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Evans, W.J. MacKay and the NSW Police, 1910–1948, https://doi.org/10.1007/978-3-031-10921-8_6

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It will be cabled the same night to the King in England. We will then wait for a reasonable time … If it [the petition] is not granted then I will put before you for your adoption other means, quite lawful, quite appreciated by constitutional lawyers of the highest standing[,] but very effective.2

Campbell was alluding to a “right of revolt” against bad government which he and other extremist opponents of Lang believed existed. He was, in other words, advocating sedition. Campbell went on to make one of the rash statements which increasingly characterised his rhetoric: the people of New South Wales will not permit Mr Lang to open the [Sydney harbour] bridge … we … will be forever dishonoured if we allow him who masquerades as Premier to open that bridge.3

Twice, Campbell stated the desirability of the death of the “scoundrel” Lang. Campbell mentioned that Lang had laid the bridge foundation stone “and what a pity it did not kill him”.4 Lang was well known to own a stud bull named Ebenezer. Campbell said Ebenezer would make a better Premier than its owner: if you had a bull, you could get the family meat axe, and chop his head off if your wrath was so great, and it would not be murder. You could boil him down and make him into Oxo.5

Detective-Sergeant Alexander Lendrum had been taking notes, and a few days later Campbell was charged with using “insulting words”. The trial, which began on 20 January, was a sober farce, with Lendrum and other police dutifully testifying to feeling insulted by Campbell’s words and prosecuting counsel resolutely taking Campbell’s words literally. Opposing them was Ernest Lamb KC, appealing to the sacred right of free speech on Campbell’s behalf.

2 NSWSR, Prem. Dept. Special Bundles, 9/2459, police report on New Guard meeting, Sydney Town Hall, 22 July 1931. 3 Ibid. 4 Ibid. 5 Ibid.

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After four days of legal argument, Chief Stipendiary Magistrate Laidlaw found that most of Campbell’s speech could be “fairly regarded as criticism, perhaps of a caustic and extravagant nature, of the political actions of a public man”, but that the word “scoundrel” was insulting. He found Campbell guilty and fined him £2.6 The insulting words case had convinced Francis de Groot that the police were Lang’s tools, to be regarded as enemies and “disloyal”.7 He had taken a dislike to MacKay and wanted to show him up. De Groot met MacKay before the opening of the bridge: I had the most distinct impression that he had been threatened in some way … he was a very frightened man that day, and in view of the close approach of the bridge opening, I am afraid I took advantage of the chance to see “what made him tick”. …I now knew that as an opponent he was negligible.8

This passage shows that de Groot shared with his “Chief Commander”, as Campbell was now styled, a remarkable capacity for self-delusion. It was true that the New Guard succeeded in embarrassing MacKay at the opening of the bridge, but, as the northern coal miners had discovered, MacKay could not be embarrassed with impunity.

2 ‘Belt Their Bloody Heads Off’: Reasserting Physical Power After he cut the ribbon, de Groot was charged with offensive behaviour, malicious damage (to the ribbon) and uttering threatening words to a police officer.9 At his trial, which began on 1 April, MacKay gave evidence for the prosecution and found himself sparring with Ernest Lamb, acting for de Groot. MacKay said de Groot’s sword was a dangerous weapon, “a sword that could kill a man very easily with a blow”.10 Lamb asked MacKay to test the blade.

6 SMH , 2 February 1932, p. 13. 7 De Groot, “Sydney Harbour Bridge”, p. 3. 8 Ibid., pp. 6–7. 9 NSWSR, Police Dept. Special Bundles, 10/1829, MacKay to Chaffey, 25 March 1935. 10 Sun, 4 April 1932, p. 1.

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Lamb: MacKay: Lamb (hastily):

Could you cut your finger with that? Yes, and I could cut your finger off with it. Well don’t try!11

De Groot was convicted of offensive behaviour and fined £5.12 The real action, however, took place outside the court. On the first morning of the trial, a confrontation occurred between the New Guard and the police, what came to be known as the “Battle of Liverpool Street”. Large numbers of New Guard turned out in a show of strength outside the court, but, as de Groot bitterly recalled: It seems that MacKay did not approve of men standing in Liverpool St, and set about 200 of his bright boys to clear the street. Their way of doing this was to hit and kick anyone who did not clear off quickly enough.13

Just as had occurred on the coalfields, MacKay was reminding everyone who was in charge. Some two minutes of unedited newsreel film of the event survives. There is a large milling crowd, perhaps 2,000 strong, around the court. Campbell and de Groot walk up the steps to the court, and the air is split by competing boos and cheers. Large numbers of uniform police wearing white helmets are then shown rapidly marching. For a few seconds, the camera rests on MacKay: he is unmistakable, tall and strongly built, with heavy brows and a craggy face. He is talking calmly to a uniform officer. The aura of command that Eric Campbell mentioned is palpable. A man is shown being roughly arrested, and there are scenes of police restraining or pushing the crowd.14 No serious violence is shown: that does not, of course, mean that it did not happen. Ray Blissett was present at the Liverpool Street incident. He told Keith Amos that MacKay had personally addressed the police beforehand: Lang is Premier; it was his bounden duty to cut the ribbon … It was his duty as elected Premier to do it and he was prevented from doing this by 11 Ibid. 12 Sun, 6 April 1932, p. 9. 13 De Groot, “Sydney Harbour Bridge”, p. 31. 14 ScreenSound Australia, CTN 118282, Movietone News, “New Guard Rallies Round

De Groot”, 1932.

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the man I locked up. He has to come before the court and be dealt with according to the law and it is your duty to see that no one interferes with the normal procedures of the court. So whether you believe in the New Guard, the Labor Party or the Communist Party, go out there and belt their bloody heads off.15

And that was what occurred. Numerous complaints were made by members of the public. One of the more credible came from Neil Thomas, a company manager and a Justice of the Peace. He alleged that the police marched into Liverpool St from two directions and then formed a line on each side of the street. The police asked people to step back onto the footpath, which they did.Then: Without any warning a general scuffle took place between the police and the civilians … I saw several instances of the police literally throwing themselves at the crowd. … There seemed to be about half a dozen policemen working together, who apparently lost their heads, and were running pushing and jostling the crowd … The behaviour of the police absolutely astounded me.16

Thomas said one constable, whose number he had taken: together with about half a dozen others, set on the people like a mob of larrikins, and candidly I was ashamed to think that a section of our Police Force, who I have always held in the greatest admiration, should lower themselves by behaving as they did. I have seen police handling strikers on the waterfront, and also during the timber strike, but at no time have I witnessed such violence as was used on peaceable citizens on Friday morning last.17

The police action caused considerable resentment. The Sun reported that many rank-and-file police were unhappy about what had occurred. One officer condemned the incident as “a rough house affair”; another said some of his colleagues were known for “putting in some dirty work

15 Amos, New Guard, p. 85. 16 NSWSR, Police Dept. Special Bundles, 10/1829, complaint by Mr N.S. Thomas, 7

April 1932. 17 Ibid.

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now and again”.18 The police received a large number of abusive letters, some aimed personally at MacKay.19 The “Battle of Liverpool Street” was, however, effective in its intent. Aubrey Abbott was a witness to the incident and later met Campbell and other New Guard at the Imperial Service Club. They came in hot and ruffled, complaining bitterly about their treatment. I tried to remind Eric of the time when he told me of his plan [to depose Lang by force] and how, if the police interfered, they would be quietly shouldered away. He was not interested.20

There was even a comic song written about the episode, recorded by Jack O’Hagan and released as a gramophone record (which was quickly banned). It includes this exchange: Lang: Campbell: Lang:

How about a little drink, Colonel? Well I wouldn’t mind … By Jove, what’s that, it’s got a kick in it! Ha Ha. It’s the real MacKay.21

Probably, the most eloquent testimony to the impact of the incident on the morale of the New Guard comes from Eric Campbell himself. By the time he wrote his memoir, some 30 years later, he had convinced himself that it never happened. He claimed that there was no demonstration, and only a handful of New Guard had been present.22 Had the New Guard been on Liverpool Street in numbers, he implied, things would have been ugly for the police. This was farcical self-delusion on Campbell’s part.

18 Sun, 2 April 1932, p. 3. 19 NSWSR, Police Dept. Special Bundles, 10/1829, anonymous to MacKay, 4 April

1932. 20 Abbott memoir, p. 354. 21 Jack O’Hagan: “Colonel Campbell and Mr Lang”, in Fahey, Political Songs, pp. 147–

50. 22 Campbell, Rallying Point, p. 158.

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3 ‘A Parade of Police on a Scale Seldom Witnessed’: Reasserting Symbolic Power MacKay did not let the pressure drop. At dawn on 13 April, hundreds of police assembled in ovals and parks around Sydney to drill. A reporter from the Sydney Morning Herald saw one group of police at Waverley Oval go through its paces: “The exercises were carried in a manner that would have brought few oaths from the lips of a hardened Imperial Army sergeant major”. Speculation that the police were “preparing for trouble” was denied: “Mr. MacKay ridiculed any suggestion that the drills had any significance. He said that they were part of a policeman’s duties and took place every year”.23 This was nonsense, as was soon revealed. On 28 April, the Herald reported: A parade of police on a scale seldom witnessed in Sydney will be held tomorrow. It is expected that more than 1400 police will participate, and will march in succession through the principal streets of the city.24

All political significance was denied, but no-one could have been fooled. The Herald dryly noted the parade, supposedly “simply part of the police drill”, was “the first of its kind in New South Wales”.25 The parade was a spectacular show of force, a symbolic reassertion of police power. The Herald reporter described the scene: Heading the parade were the mounted police, two abreast, and sitting their magnificent horses like statues. Then came the police band, standard bearers, water police, wireless cars, 40 police motorcyclists, a fleet of police divisional cars, and last of all two grim-looking police vans, popularly known as “Black Marias”. Marching eight abreast the parade consisted of fifteen companies, each of which comprised about 100 men … Among the interested spectators were the leader of the New Guard (Mr. Eric Campbell), who was accompanied by Mr. de Groot.26

23 SMH , 14 April 1932, p. 9. 24 SMH , 28 April 1932, p. 9. 25 SMH , 30 April 1932, p. 13. 26 Ibid.

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Andrew Moore argues that the parade “usually interpreted as an attempt to intimidate Campbell and the New Guard … was, in reality, directed at the metropolitan division of the Old Guard”.27 There is no evidence to support this view. Jack Lang recalled that the parade was MacKay’s idea, and that the route chosen ran past the clubs and businesses frequented by the New Guard’s leaders: MacKay told me with a quizzical grin on his face “We are going where the New Guard are to be found. We are going to let them see what they will be up against if they start any trouble”.28

Lang’s memoirs are not always reliable, but there is no reason to disbelieve him in this instance. He had no reason to misrepresent the parade’s purpose. MacKay, in turn, had no reason to conceal a threat from the “Old Guard” from Lang: he had done very well out of protecting the government from its enemies. (According to Moore, MacKay had, somewhat inexplicably, turned against the “Old Guard” by this time.29 ) MacKay’s actions also belie Moore’s assertions that he was simply a careerist, pretending to crack down on the New Guard so as to counter his “credibility problem” with a Labor government.30 Even after the Lang’s dismissal, and the appointment of Bertram Stevens as caretaker Premier, MacKay did not let up the pressure on the New Guard. On 25 May, the New Guard held a rally at the Sydney Town Hall. There was a large and conspicuous police presence there, including MacKay.31 Campbell complained to Stevens that MacKay had been deliberately provocative and was hoping to incite a breach of the peace.32 More likely, the police presence at the rally was another show of strength, a statement that no matter who was in government, the police were in charge.

27 Moore, Secret Army, p. 203. 28 Lang, Turbulent Years, p. 162. 29 Moore, Secret Army, pp. 170–3. 30 Ibid., p. 132. 31 See below. 32 NSWSR, Prem. Dept. Special Bundles, 9/2459, Campbell to Stevens, 26 May 1932;

MacKay to Childs, 3 June 1932.

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The police action against the New Guard was not restricted to the open reassertion of power, however. More subtle tactics were used to damage and discredit the organisation.

4

‘Fascist Legion’: Discrediting the New Guard

The assault on Jock Garden in the early hours of 6 May 1932 by a group of New Guardsmen has been treated briefly by most historians of the period.33 Andrew Moore recognises the significance of the incident and probes it in some detail, but he dismisses the possibility of police involvement too readily.34 According to Garden’s statement to police, at about 2.00 a.m. on Friday 6 May, he was woken by a knock on the door at his home in Maroubra. He answered the door: four men, who claimed to be police, were there. They said “suspicious characters” were about and asked to go through to the backyard. Garden went with them down a side passage and was attacked by the men, who were joined by four others who had been waiting hidden. Garden called for help: his two adult sons came to his assistance and the family dog, a large Airedale, was set on the attackers. After a struggle, most of the attackers fled. One man had been bailed up by the dog—which bit him on the hand—and was unable to escape.35 The Labor Daily took full advantage of the incident in its report on 7 May. “BOO GUARD DESPERADOES BATTER ALD. GARDEN” ran the headline, and the story described how “eight members of the Boo Guard made a murderous attack” on Garden.36 The Sydney Morning Herald of the same date reported the same basic details, with one exception: it did not mention the New Guard.37 The immediate suspicion would be that the conservative Herald was shielding the New Guard, but this was not necessarily true: the Herald report was a full account of

33 Amos, New Guard, pp. 86–87; Hoyle, Jock Garden, p. 60. 34 Andrew Moore, “Who bashed ‘Jock’ Garden? A body blow to the New Guard”,

Bowyang, no. 4, September–October 1980, pp. 42–57. 35 NSWSR, Prem. Dept. Special Bundles, 9/2459, statement by Jock Garden, 6 May 1932. 36 Labor Daily, 2 May 1932, p. 5. The Labor Daily often called the New Guard the “Boo Guard”. Garden was, at the time, an Alderman on the Sydney City Council. 37 SMH , 7 May 1932, p. 27.

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Garden’s statement to the police, which did not identify his attackers as New Guard, or even suggest the possibility.38 How could the Labor Daily be so sure about the identity of the assailants? It might have been reckless reporting which turned out to be a lucky guess. More likely, though, the Labor Daily reporter had inside information. The Labor Daily consistently scooped its rivals with news on investigations into the New Guard. In return, MacKay was singled out for glowing praise. Good publicity in return for inside information was a common feature of police-press relations at the time.39 Even so, the change in Labor Daily’s attitude to MacKay is staggering. Only two years earlier, MacKay had been the head of police “basher gangs”, the hireling of capital, inept as a Portuguese lance-corporal.40 Now, “Too much praise cannot be given to Supt. MacKay” and other detectives “for the capable and assiduous prosecution of their duty, which has brought such valuable information into the hands of the government”.41 The paper praised the “lightning-like swiftness” with which the police rounded up the assailants.42 But speed was not the only remarkable feature of the case. At the centre of it is the man who failed to escape after the attack: William Scott. Scott is an enigma. In his statement to police, he said that he was 23, and an unemployed fitter and turner. He had joined the New Guard in April 1931 and was quickly made a “section commander”, despite his youth. He came to know John Dynon, a wellknown businessman and a senior New Guard officer. Scott said he also was a member of the Volunteer Military Forces (similar to the modern Army Reserve). He had made a plan of his barracks, including “certain places where arms were kept locked up”. He had given this plan to Dynon, who then invited him to join a secret inner group of the New Guard.43 Scott said he was blindfolded and taken in a car to a house where he was placed in a hood and cape of black material. There he met other 38 NSWSR, Prem. Dept. Special Bundles, 9/2459, statement by Jock Garden. 39 Whitrod, Before I Sleep, pp. 43–6. 40 Labor Daily, 11 January 1930, p. 4. 41 Labor Daily, 11 May 1932, p. 1. This change of view could not have been due to a change of individual staff members: the Labor Daily was a political newspaper, firmly controlled by a committee headed by Jack Lang. 42 Labor Daily, 7 May 1932, p. 5. 43 NSWSR, Prem. Dept. Special Bundles, 9/2459, statement by W.W.S. Scott, 11 May

1932.

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men, similarly dressed. He was sworn in to the group, which was variously called the “Pack of Cards” and the “Fascist Legion”. Each member was known by the name of a playing card: Dynon was “Joker”, and Scott was “Six of Hearts”.44 Scott’s account of his entry to this strange group was vague and unconvincing. He claimed to have been present at only one meeting at which the robes and hoods were worn, but he had one of the garments in the bedroom when the police raided his house. Scott claimed that he was trusted by Dynon to “put the fear of Christ” into two senior members of the New Guard, and had spied on the Guard’s own intelligence operations for Dynon. Yet Scott said he had been ambivalent about the Garden assault and afterwards readily gave up his fellows.45 There was a striking similarity between Scott’s encounter with the “Fascist Legion” and the informer Roy Bartlett’s supposed meeting with the timber strike “basher gang” at Trades Hall in 1929. Both stories, in turn, were similar to the police agent Fred McAlister’s claims about the arson plotters in the IWW in 1916. In each case, a junior and relatively unknown member of the organisation was, for reasons that defy explanation, recruited into a secret inner group plotting dark crimes. The evidence given about this inner group was, in each case, contradictory and vague, and lent itself to sensational headlines. The informant, in each case, almost certainly had connections to the police. Scott said he had been captured because the Gardens’ dog attacked him and bit him on the hand. I was afraid to move as the dog had me bailed up, Mr Garden and his two sons came to my assistance and called the dog off, and they took me into the house and there had a conversation with me … they later offered to drive me home.46

Garden’s version of this strange encounter is more detailed: I had a conversation with him… I said to him: “Why come to the home and do this to me? There is plenty of opportunity outside to do this,

44 Ibid. 45 Ibid. 46 Ibid.

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without coming to my home.” He said: “I am sorry now that I became embroiled in this. I am an unemployed motor mechanic”.47

Garden’s generous treatment of Scott seems odd: why didn’t he simply send one of his sons for the local police?48 Garden reported the assault in the morning—not to the local police but directly to the chief of the CIB, the man who had sought to frame him on conspiracy charges three years earlier: W.J. MacKay. MacKay took Garden’s statement and called in four detectives to investigate Garden’s complaint.49 That afternoon, the police found Scott at Trades Hall. With some reluctance, Scott provided the names of other men involved.50 This allowed the detectives to track John Dynon. The detectives called on Dynon, and he and Detective-Sergeant James had a private conversation. According to James, Dynon made an admission about the assault and agreed to speak individually to the other men involved. Dynon persuaded all of them to make full confessions. James gave no hint of what motivated Dynon to cooperate.51 The homes of the eight men charged were searched. There were New Guard armbands in Dynon’s home, but the only other things found— “secret reports” and a black gown and hood—were found in Scott’s bedroom. Meanwhile, police used the information obtained from Scott and Dynon to get search warrants for two New Guard offices: these were raided and documents seized.52 Among them was an apparently incriminating letter from a New Guard member, who suggested forming a “select band of stout fellows” for the purpose of “tarring and feathering … any particularly obnoxious vermin”, and a receipt for 64 yards of black linen.53

47 Ibid., statement by Jock Garden, 6 May 1932. 48 Arthur Hoyle argues that such apparently eccentric personal generosity was typical

of Garden, who never abandoned the non-conformist Christian ethics of his upbringing. Hoyle, Jock Garden, p. 104. 49 NSWSR, Prem. Dept. Special Bundles, 9/2459, statement by MacKay, 18 May 1932. 50 Ibid., statement by Detective-Constable Alford, 20 May 1932. 51 Ibid., statement by Detective-Sergeant James, 17 May 1932. 52 Ibid. 53 Ibid., Lieutenant Wilfred Lawson to Captain Sutherland (Sect. New Guard), n.d.; receipt issued by Sargood Gardiner Ltd., 5 April 1932.

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The Labor Daily drew sinister implications from this trip to the haberdasher: FASCIST LEGION IN THE BOO GUARD Police Inquiries Reveal the Existence of an Inner Group of Desperate Thugs SECRET PLANS ARE UNEARTHED CAMPAIGN OF TERRORISM KU KLUX KLAN HOOD IS DISCOVERED54

A photograph of a man in “The Hood of the Notorious Ku Klux Klan” accompanied this story.The hood and gowns—“Sinister Symbols of Death”—became a staple of the Daily’s cartoonists.55 One cartoon depicted Garden’s assailants dressed in hoods and gowns, though it was never suggested that they had worn them at the time.56 The hood and gown recovered from Scott’s home was the only one ever recovered by the police. At first, Eric Campbell was flippant about the Garden assault, saying that “a number of decent and thoroughly loyal New Guardsmen set out to do a job on their own account, and which they considered highly desirable in the public interest”.57 However, the incident was a public relations disaster. The Sun, generally kind to the New Guard, was sternly critical. Prominent conservatives were quick to distance themselves from the New Guard.58 The New Guard leadership realised the damage and tried to disown the attackers.59 But that day R.W.D Weaver, the turbulent former Minister for Mines, made an extraordinary allegation in Parliament. The whole incident was, he said, a police conspiracy to discredit the New Guard. Weaver claimed that Captain W.J. Warneford, a member of the New Guard, was a “police 54 Labor Daily, 9 May 1932, p. 1. 55 Labor Daily, 10 May 1932, p. 1. 56 Reproduced in Amos, New Guard, p. 88. 57 Quoted in NSWPD, 11 May 1932, p. 9253. 58 For example, the former Nationalist Prime Minister Stanley Bruce said he was “totally opposed to the extraordinarily stupid things which members of the NG have apparently done” and condemned the “type and character of the happenings”. SMH , 11 May 1932, p. 11. 59 SMH , 12 May 1932, p. 10.

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pimp” and had acted as an agent provocateur, organising the “Fascist Legion” himself. Garden had known of the plan and was party to it, and the police knew two days before the assault the names and addresses of who would be involved.60 Weaver said Warneford and another police agent, named Pointon, had had ample opportunity to plant documents in the New Guard offices. He hinted that William Scott was also an agent, who had “arranged for himself to be arrested and made no attempt to get away”. Weaver claimed that the operation was the work of “one or two officers” instructed by the Chief Secretary, Mark Gosling. Weaver denied he was referring to MacKay, but, as a government member pointed out, it was inconceivable that such a conspiracy could occur without MacKay’s knowledge. Weaver demanded a Royal Commission to inquire into the circumstances of the assault.61 At first Gosling and Lang denied all knowledge of Warneford and Pointon, ridiculed Weaver and firmly refused the call for an inquiry.62 However, on 12 May, the federal government announced its intention to establish a Royal Commission into the New Guard, and Lang reversed his position.63 This manoeuvring was, however, overtaken by events. Shortly before 6 p.m. on Friday 13 May, the Governor of New South Wales, Sir Philip Game, dismissed the Lang government. Bertram Stevens, leader of the United Australia Party, was sworn in as caretaker Premier, and a general election was called.64 The eight men accused of assaulting Garden had been tried on 9 May. All had pleaded guilty, and all had been sentenced to three months’ imprisonment.65 But in June, they appealed, and seven—Scott was the exception—made a new plea of not guilty, on the basis of new evidence.66 The court was told that the assault had been a set-up, that Scott, Warneford and Pointon had conspired with Garden to stage the incident.

60 NSWPD, 11 May 1932, pp. 9246–52. 61 Ibid. 62 NSWPD, 11 May 1932, p. 9250. 63 SMH , 14 May 1932, p. 13. 64 Ibid. 65 SMH , 10 May 1932, pp. 9–10. 66 SMH , 14 June 1932, p. 9.

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Witnesses testified to having seen Garden and Scott together on two occasions before the assault, and another witness testified that Scott’s hand was injured several days before it was allegedly bitten by the dog.67 Walter Warneford, who described himself as a psychologist, admitted under cross-examination that he was a police agent, that he was working for MacKay, and that he had joined the New Guard on his instructions. Judge Curlewis, an acerbic man, gave Warneford a difficult time. Warneford admitted he had suggested to a New Guard member that “the ‘Reds’ should be dealt with”, but said he had meant “mentally” rather than “physically”. Curlewis: Warneford: Curlewis: Warneford: Curlewis:

What, making faces at them? No, explaining things to them. Do you mean that you should go around and reason with them? Yes. Well, I don’t believe a word of it.68

However, Curlewis did not believe the conspiracy theory either. He said that odd features of the case, such as Garden’s kindness to Scott, made a conspiracy less likely: If this matter were a conspiracy then I might say that I would have handled it better than Alderman Garden did. But I cannot believe that he is such a fool … I cannot believe the evidence for one moment that Garden invited the assault himself.69

Far from reducing the sentences, Curlewis said: “I think the sentence of three months in this case is entirely inadequate and I am sorry I cannot increase it”.70 Because of his assistance to the police, however, Curlewis reduced Scott’s sentence to one month.71

67 SMH , 16 June 1932, p. 9. 68 Ibid. 69 SMH , 17 June 1932, p. 9. 70 SMH , 16 June 1932, p. 9. 71 SMH , 22 June 1932, p. 18. Scott escaped lightly in other ways, he was not charged

over his supposed leaking of military secrets to the New Guard.

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Despite Curlewis’ abrupt dismissal of the conspiracy theory, it remained widely believed.72 On 31 May, MacKay wrote a report for the caretaker Premier, warning Stevens that: the respect for and prestige of the Police … is being seriously impaired by the dissemination amongst the community, by officials of the New Guard and others, of scurrilous and unwarranted allegations, obviously founded on or emanating from the same source as the Hon R.W.D. Weaver secured his facts—that the assault on Mr John [Jock] Garden was a “frame up” or, in other words, a criminal conspiracy.73

He asked for a Royal Commission into the matter, saying that Weaver’s allegations were: utterly untrue, not founded in fact, prejudicial to Police … and an unwarranted and despicable attack on the integrity of the New South Wales Police Force serving under my control … and on myself.74

MacKay had already applied for permission to commence criminal proceedings against members of the New Guard on charges of seditious conspiracy. Ironically, he used the IWW prosecutions as a precedent.75 MacKay said that the principals in the conspiracy, “against whom material and conclusive evidence is available”, were Campbell, de Groot and five others.76 The police put considerable pressure on the new government to allow them to proceed. Childs wrote to Frank Chaffey, who was again Chief Secretary: It is impossible for such a body [the New Guard] to continue in existence and usurp functions which rightly belong to the properly constituted forces

72 An informant inside the New Guard, known as “No. Eleven”, told MacKay that Eric Campbell was claiming Bertram Stevens believed the Garden affair was orchestrated by the police. NSWSR, Prem. Dept. Special Bundles, 9/2459, report by “No. 11”, 26 September 1932. 73 Ibid., report by MacKay re New Guard, 23 May 1932. 74 Ibid. 75 Ibid. 76 Ibid.

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of the Crown, namely the Police Force … No man or body of men can be permitted to treat the police in this manner.77

No action resulted, which was not surprising. R.W.D. Weaver had been elected deputy leader of the United Australia Party on 28 April, and he became a minister in the new government. Stevens disliked him, but Weaver was popular with party members and had influence.78 He was also an unabashed supporter of the New Guard.79 On 30 November, Chaffey formally told Childs that, on the advice of the Attorney-General, the sedition charges would not proceed.80 The inquiries promised by both the federal and state governments, too, never eventuated. This was probably a sensible decision: society in New South Wales needed healing, and pursuing the New Guard, which in any event was rapidly losing members and influence, would not have helped. The lack of an official inquiry is, however, regrettable for historians. It leaves a number of questions hanging which are not easy to answer. In particular, was the Garden assault the result of a conspiracy? Andrew Moore, in his study of the incident, dismisses the allegations of a police conspiracy. He regards as false allegations that Warneford had not only inspired the assault, but had been present at the scene. Moore reaches this conclusion because Warneford had an alibi: he was with Constable Frank Fahy throughout the evening.81 But Fahy, an expert shadower, was a trusted protégé of MacKay. Fahy had worked directly for MacKay on sensitive assignments since the 1920s and could be expected loyally to deny any hint of a conspiracy.82 Moore represents a phone conversation between MacKay and Weaver on 17 May, a week after Weaver raised his allegations in Parliament, as a turning point in Weaver’s attitude. MacKay told Weaver that Weaver’s information had come from “certain men whom I know to be criminals”, 77 NSWSR, Prem. Dept. Special Bundles, 9/2459, Childs to Chaffey, 31 May 1932. 78 SMH , 28 April 1932, p. 9. 79 After Lang was dismissed, Weaver told young members of the UAP that the coming

election campaign was likely to be “riotous and of an actively aggressive character... Any young man who had red blood in his veins and grey matter in his head should join the New Guard”. SMH , 14 May 1932, p. 14. 80 NSWSR, Prem. Dept. Special Bundles, 9/2459, Chaffey to Childs, 30 Nov. 1932. 81 Moore, “Who bashed ‘Jock’ Garden?”, p. 46. 82 Kelly, The Shadow, passim.

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and offered to let him see the police files. After this, Weaver did not pursue his allegations. Moore argues that MacKay had convinced “his old friend” Weaver to distance himself from the New Guard.83 This interpretation of the phone call is not supported by the archival record. MacKay made a record of the conversation, because he was worried Weaver had planted an agent provocateur of his own, a man named Clark, in the New Guard. MacKay had warned Clark off; Weaver had phoned MacKay and protested at his interference. Weaver had said: “I am in possession of information that is not very credible [creditable?] so far as this case [the Garden assault] is concerned”. MacKay had replied that the police actions were “clean and above board”, that Weaver’s information had come from criminals, and that “that man Clark, in my opinion, is a dangerous man”.84 According to MacKay: Mr. Weaver said: “You should not say that”, I said “I do say so, and I know what I am talking about”. Mr Weaver then said “Very well”, made a few other remarks and then the conversation terminated”.85

The conversation was not the mending of fences between old friends that Moore argues it was. Indeed, Weaver remained a nagging critic of MacKay from this time on.86 Weaver’s allegations were probably substantially correct. A false allegation of conspiracy will usually be long on rhetoric and short on specifics. Weaver’s speech in Parliament on 12 May was remarkably detailed, and despite initial official denials, proved to be well informed. He correctly identified Warneford and Pointon as police agents, for example. Whether Garden would have been party to a conspiracy is hard to assess. The best study of Garden, Arthur Hoyle’s biography, presents him as simultaneously a passionate true believer and a pragmatic numbers man, willing to cut whatever deal met the political needs of the day. Garden was corruptable—he was later jailed for accepting a bribe—but his collusion with MacKay, so recently a bitter enemy, is difficult to

83 Moore, “Who bashed ‘Jock’ Garden?”, pp. 48–9. 84 NSWSR, Prem. Dept. Special Bundles, 9/2459, statement by MacKay, 17 May 1932. 85 Ibid. 86 Seggie, “Police and government”, p. 301.

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imagine.87 However, the odd circumstances of the case, particularly the fact that Garden went straight to MacKay to report the assault, do suggest that this was the case. On the evidence, it is almost certain that the Garden assault was orchestrated by MacKay, who used Warneford and Scott as agents provocateurs , possibly with the prior knowledge of Garden. If this was the case, and MacKay intended to embarrass and discredit the New Guard, he succeeded.

5

‘Next in Line for the Post of Commissioner’

Just as MacKay had been rewarded by the Bavin government for his services against organised labour, so was he rewarded by the Lang government for his actions against the New Guard. On Wednesday 30 March 1932, a special meeting of the Executive Council was held at Government House. There was only one agenda item, a recommendation that “Superintendent 3rd Class William John MacKay be assigned to the charge of the Metropolitan Administrative District”, which was approved.88 This extraordinary action made MacKay Metropolitan Superintendent, the second most senior officer in the New South Wales Police Force. At 46 years old, he was startlingly young for such high office. Only eighteen months earlier, he had been an inspector. On one level, MacKay had again proved himself “biddable”, but this should not obscure the magnitude of his achievement. When MacKay applied to the Stevens government for permission to charge the leaders of the New Guard with seditious conspiracy, he stressed the gravity of the organisation’s potential threat: I am not actuated by any selfish or personal motive against the New Guard organisation, but … from a sense of duty … the New Guard … have forged a military organisation within this state greater in strength than the combined Military, Naval and Police Forces available to the State and have embarked upon a policy of obtaining that organisation’s desires by

87 Hoyle, Jock Garden, ch. 10, passim. 88 NSWSR, Executive Council Minutes, 9/650, 30 March 1932.

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intimidation and force. If such an organisation is permitted to continue … as time passes, it will be a menace to this Realm.89

MacKay understood power, and his assessment should be given credence. The New Guard, unlike the so-called Old Guard, was a serious threat to public order, perhaps even to constitutional government, in New South Wales. Against this significant force, MacKay proved himself adept. His decisive response to the New Guard was a major factor in its rapid decline. MacKay’s elevation cause what the Herald called “surprise” in police circles.90 The implications of MacKay’s promotion were obvious: By virtue of his new position, it is considered that Mr MacKay, whose career in the police force has been meteoric, will be next in line for the post of Commissioner of Police, on the retirement of Mr Childs.91

Before MacKay succeeded Childs, however, the law relating to the New South Wales Police Commissioner was radically amended. These changes, the subject of the next chapter, meant that the new Commissioner MacKay would enjoy a level of independence unmatched in the common law world.

89 NSWSR, Prem. Dept. Special Bundles, 9/2459, report by MacKay re New Guard, 23 May 1932. 90 SMH , 30 March 1932, p. 11. 91 SMH , 30 March 1932, p. 11.

CHAPTER 7

‘A Dangerous Power’: Independence, Accountability and the Police Commissioner, 1934–1935

1 Specially Big Boots: Police Independence and Accountability In 1943, as Police Commissioner W.J. MacKay became embroiled in yet another scandal, the Bulletin called for his replacement, and snidely observed: “It has long been evident that this gentleman is too big for his boots, though the Stevens government made them specially big”.1 This was a reference to the Police Regulations (Amendment) Act, passed in 1934 and enacted the following year. The Amendment was an attempt, probably well intentioned, to protect the office of Police Commissioner from political interference. It significantly increased the formal independence afforded the Commissioner; unfortunately, it also freed him from almost any measure of accountability. Even those responsible for the Amendment quickly came to regret its passage. A perennial tension in policing is the question of how much control over the operations of the police should the responsible government minister have?2 It is extremely difficult to establish in general principle, let alone formally spell out, the limits of police independence, and

1 Bulletin, 3 February 1943, p. 8. 2 Philip C Stenning, “Governance of the police: independence, accountability and

interference”, Flinders Law Journal, vol. 13, no. 2, 2011, pp. 241–68.

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the degree of acceptable influence from police ministers.3 Every option presents evil possibilities. A police force which is merely the tool of a ruling party is obviously a threat to democracy and the rule of law. A truly independent police force, on the other hand, becomes unaccountable. This can lead not only to abuses of civil liberties in individual cases, but to a police force which is a “deviant organisation”, a threat to the rule of law in its own right. The dilemma is not new. When Sir Robert Peel’s New Police was established in 1829, the precise status of the new organisation was not made clear in the legislation. The police were, through the Commissioner, the responsibility of a cabinet minister, the Home Secretary, but the question of how much control the minister had was never really resolved. T.A. Critchley suggests that: the lack of clarity in the statute by which the force was created conceals an attempt to burke an issue that remained insoluble in any theoretical or abstract form.4

This is not quite true. Peel had a solution, but it was not politically acceptable to the English community, jealous of its liberties. Peel was an enthusiast for centralisation, efficiency and formal, clear, bureaucratic control.5 The police force he created to maintain the peace in Ireland, the Royal Irish Constabulary, reflected these ideals. Whatever its other faults, the Constabulary was never caught up in ambiguity over the powers and independence of individual police or their leader. Under its Act, the RIC was a “vast machine”, the tool of the Inspector-General. He, in turn, was a servant of the administration, in the person of the Irish Chief Secretary.6 Such clarity, desirable or otherwise, never existed in New South Wales, or anywhere else in Australia.7 Louis Waller observes:

3 Rick Sarre, “Towards the notion of policing ‘by consent’ and its implications for police accountability”, in Duncan Chappell and Paul Wilson (eds), The Australian Criminal Justice System: The mid-1980s, Butterworths, Sydney, 1986, p. 109. 4 T.A. Chritchley, “The idea of policing in Britain: Success or failure?”, in J.C. Alderson and Philip John Stead, The Police We Deserve, Wolfe Publishing, London, 1973, p. 30. 5 Ibid., p. 31. 6 Tobias, “The British colonial police”, pp. 242–58. 7 Seggie, “Police and Government”, p. 17.

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The relationship between government and police has been often viewed as ‘through a glass, darkly’ [a state of affairs which has] encouraged imprecision and even inconsistency in both considerations and explanations of this fundamental relationship.8

In the first half of the twentieth century, New South Wales police ministers rarely intervened in the running of the police force. This was partly because the minister for police was usually the Chief Secretary, who had many other duties. Political instability was also a factor: in the first 30 years of MacKay’s police career, 16 different people served as Chief Secretary.9 Only Frank Chaffey filled the role for any length of time, and he was a complacent and conservative minister, invariably defending the police from any criticism and seldom seeking to influence its leaders. Adding to the confusion on this issue is the problematic notion of constabulary independence. This is the belief that police officers have an original, rather than a delegated, authority. Police, by this argument, are not servants of the government or of the police command, but of the law. They possess the authority to enforce the law, and the decision whether to do so is theirs alone. Robert Reiner questions the very existence of constabulary independence, at least in law. He regards it as a legitimising myth, a spurious appeal to the “ancient office of constable”. He does, however, acknowledge the notion as a strong element in police culture in Britain.10 Regardless of the formal legal position, Australian police forces have consistently been authoritarian and hierarchical. A police officer who exercises independence in any manner which offends or threatens a superior officer will usually be crushed. If police independence exists in Australia, it is institutional rather than individual. The real test of independence is what happens in practice when conflict arises. John Avery, Commissioner of the New South Wales Police Force from 1984 to 1991, argues that the professional independence of police generally, and the Commissioner in particular, is a matter of administrative practice, rather than law.11 This view is supported by a comparison 8 Louis Waller, “The police, the Premier and parliament: Governmental control of the police”, Monash University Law Review, vol. 6, June 1980, p. 256. 9 Seggie, “Police and Government”, pp. 341, 383–4. 10 Reiner, Chief Constables, p. 10. 11 John Avery, Police: Force or Service?, Butterworths, Sydney, 1981, p. 70.

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between Britain and Australia. While there is no significant difference in their formal legal status, British police leaders are more independent than their Australian counterparts. When serious conflict arises between a British police chief and his or her political master, the police chief almost always wins.12 In Australia, the reverse is true.

2 ‘The Duty of the Police is Solely to the Law’: The Salisbury Dismissal The first significant attempt to define the extent of police independence in Australia occurred in South Australia, following the dismissal by the state government of Commissioner Harold Salisbury in 1978. In the wake of this crisis, a Royal Commission examined, among other things, the legal status of police commissioners. Salisbury, who had been recruited to the South Australian police from Britain, expressed his view unequivocally: As I see it the duty of the police is solely to the law. It is to the Crown and not to any politically elected Government or to any politician or to anyone else for that matter.13

The Royal Commissioner, Justice Roma Mitchell, was scathing of this view, saying it “suggests an absence of understanding of the constitutional system of South Australia or, for that matter, the United Kingdom”.14 Mitchell’s view was that the Commissioner: is not and can not be independent of the Government as judges are and must be … A police force not subject to Government control would have a dangerous power. The Government is subject to election; the police force is not. So that, although the Commissioner of police should not be subject to Ministerial interference in the day to day process of law enforcement, it is essential that he co-operate with the Chief Secretary.15

12 Reiner, Chief Constables, p. 37. 13 “Royal Commission on the Dismissal of H.H. Salisbury”, Justice R.F. Mitchell, South

Australia PP, 1978, vol. 5, no. 117 [Mitchell Royal Commission Report], p. 19. 14 Ibid. 15 Ibid., p. 43.

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Even this protection of “day-to-day” decision making—what is usually referred to as “operational matters”—is, in Mitchell’s view, limited: I do not think it is feasible to keep in office a Commissioner of police whom the Executive does not trust or with whom its relationship is unworkable. The maintenance of peace and good order is so vital to good government and to the safety of the community that it cannot properly be allowed to be endangered by continued disharmony between the Government and the Commissioner of Police.16

In short, if significant conflict occurs between executive government and the Commissioner, the government should prevail. According to Louis Waller, the Mitchell Royal Commission was able to “strip away much of the uncertainty” about government-police relations: The conclusions which can be drawn now are clear. The police force is a disciplined service under the direction and control of the executive government.17

There was one exception. In New South Wales, the position of the Commissioner was subject to ministerial direction but could be dismissed from office only by a resolution from both Houses of Parliament. The law in New South Wales has since changed, but at the time it was a level of protection unique in the common law world.18

3 ‘Beyond the Control of Anyone’: The Amendment To understand properly this ill-fated attempt to protect police independence, it is necessary to appreciate the character of the government which created it. The United Australia Party government, headed for seven years by Bertram Stevens, has received remarkably little historical attention.19 It is usually dismissed as just another manifestation of conservative 16 Ibid. 17 Waller, “Police, Premier and Parliament”, p. 256. 18 Mitchell Royal Commission Report, p. 41. 19 John McCarthy, The Forgotten Premier: Bertram Stevens and the Politics of New South Wales in the 1930s, John McCarthy, 2002.

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opportunism and sometimes defamed as the tool of quasi-fascist secret armies.20 This is an anomaly. Stevens was much less colourful than Jack Lang, but his achievements were considerable. Coming to power at a time of crisis, and heading an often fragile coalition of interests, Stevens restored stability to the basic institutions of State. He was honest and diligent, and worked hard to restore integrity and professionalism to the government and its key agencies.21 The genesis of the Amendment lay in a financial scandal which arose in the last, desperate months of the Lang government. Stevens made a speech in 1933, telling the annual conference of the Police Association: We propose to … amend the law to provide that the chief commissioner [sic] shall not be removed from office before reaching the age of retirement, excepting upon resolution of both Houses of Parliament. We propose to give the Chief of the Police Department a status which will determine his independence and freedom from political interference.22

There was justification for Stevens’ fears. Under the Lang administration, a problem arose which the Mitchell report does not canvas: the possibility of the executive branch of government giving the police illegal instructions. Soon after it came into office, the Stevens government appointed a Royal Commission to inquire into corruption by the previous administration in the allocation of licenses for greyhound racing (then often called “tin hares”) and coin-operated gambling devices known as “fruit machines”.23 During 1931, several hotels in Sydney installed fruit machines. These had previously been considered illegal, but police who questioned their installation were met with claims that the machines were authorised.24 The situation was brought to MacKay’s attention: he alerted Childs, who in turn raised it with the Chief Secretary, Mark Gosling. 20 Jupp, Australian Party Politics, pp. 128–9; Moore, Secret Army, p. 84. 21 John M. Ward, “Sir Bertram Sydney Barnsdale Stevens”, ADB, vol. 12, pp. 74–7. 22 Brien, Serving the Force, p. 52. 23 “Royal Commission on Greyhound Racing and Fruit Machines”, Justice Halse Rogers, November 1932, NSW PP, 1932 JVP, vol. 1, Second Session, pp. 993–1082. Fruit machines were coin-operated gambling machines, similar to modern “pokies”. 24 Ibid., p. 70.

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Gosling told Childs to disregard legal opinions from both the SolicitorGeneral and the Attorney-General’s office, which held that the machines were illegal, and to refrain from prosecuting hotels that installed them. Gosling was, in effect, instructing the police not to enforce the law.25 The issue of political interference in policing became more serious as the scandal grew.26 It was against this background that the Amendment was introduced to Parliament in 1934. The Chief Secretary, Frank Chaffey, told Parliament the Bill was designed to protect the Commissioner from: Any government that wants him to do things that are not right. The intention is if an attempt should be made to improperly interfere with an officer, to safeguard him in his position … The position to-day is that the Commissioner can rightly or wrongly be removed from his position or dismissed and he has no redress.27

This was not, however, how the opposition saw it. Carlo Lazzarini, a former Chief Secretary, accused the government of trying to “rob Parliament of the control and administration of the Police Department” by making it impossible for the lower house alone to dismiss the Commissioner.28 Another Labor member, Joseph Lamaro, warned of the dangers of an inadequate accountability. Whether he was specifically referring to MacKay is unclear, but his words were prophetic: We do not want weaklings or mere social figureheads appointed to the position of Commissioner of Police, but the same characteristic that makes a man a good Commissioner … when he is under the control of the representatives of the people, will make him dangerous if the occasion arises when he wants to play the role of a dangerous man.29

The Amendment was hotly debated in Parliament, but there was little wider public interest. The Sydney Morning Herald opined: 25 Ibid., pp. 70–3. The Solicitor-General’s opinion was correct at law and had already been upheld by a decision of the New South Wales Full Court. 26 Daily Telegraph, 14 March 1932, p. 1. 27 NSWPD, 27 September 1933, p. 706. 28 Ibid. 29 Ibid., p. 720.

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A police chief who could be bullied into the degradation of his office while without statutory protection would be a dubious upholder of the law in any case.30

This complacent view looked at the question from only one side. Not for the first or last time, Truth, in its rumbustious style, raised an important issue which the more sober papers neglected. “No Police Dictatorship!” Truth howled in October 1934, as the Bill was poised for passage through the Legislative Council.31 The new law would, Truth said, “make the Police Commissioner virtual dictator, if he desires”. Truth exempted Commissioner Walter Childs from such intent: “Abuse of privilege is not likely under the present Commissioner. But the future must be safeguarded”. The paper ridiculed Chaffey’s argument that the Bill was designed to secure the Commissioner from a “crank” government which might give unlawful instructions. Putting the police force beyond the reach of Lang is a problem of the moment as far as the Stevens government is concerned, and its vision has been clouded. It forgets that in the future it might be putting the police force beyond the control of anyone.32

The paper predicted corrupt police working with corrupt governments and the infringement of civil liberties. In countries where police power was excessive, “Innocent men... have been gaoled and forced into asylums”. It raised the issue of justice in internal police processes, too: “With an iron-fisted Police Commissioner in control what will happen to the Police Association [the nascent police union]? Where will members of the force look to for redress?”33 Truth’s rhetoric was at times overdone.34 Even so, the paper’s instincts were right, and its warnings were prescient.

30 Ibid. 31 Truth, 14 October 1934, p. 1. 32 Ibid. 33 Ibid. 34 The paper warned of a “swashbuckling Hitler-like militant” as Commissioner, who

would “place in peril the lives and liberty of every man woman and child in the state”. Ibid.

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4 ‘Our Brilliant Young Police Commissioner’: MacKay Reaches the Top On 10 June 1930, an armed man tried to force his way into the office of Commissioner Childs. MacKay was notified, and he “bounded up the stairs, strode up to the man, and after seizing him, took the revolver”.35 This minor incident encapsulates the sad truth of Walter Childs’ incumbency as Commissioner: he was continually overshadowed by the man who was to replace him. Childs became Commissioner and immediately faced crises beyond his capacities. By the time New South Wales had returned to political stability, his retirement was imminent, and he was universally seen to be keeping the seat warm for his dynamic successor. Even the programme of modernisation which Childs set in train, a call box system, use of radio communications, improving the motor vehicle fleet, and so on, was mostly the work of MacKay. “The planning and actual implementation of these innovations” write Swanton and Hoban in their profile of Childs, “was in fact undertaken by MacKay—Childs merely approved them”.36 For many years, MacKay had enjoyed influence far beyond his formal rank. By the time Childs was due to retire, MacKay’s power within the force was virtually unchallenged.37 On 22 March 1935, Childs finally stood down as New South Wales Commissioner of Police. His departure was marked by a huge parade at the Sydney Showground: hundreds of police and mounted troopers marched past, cars and motor bikes drove by in formation, as Childs took the salute from a podium.38 Newsreel footage shows Childs as an unprepossessing figure: portly, and a dull orator in even the few seconds of his speech which were recorded. Standing to the side while the platitudes limp out—“proud to have served... magnificent body of men... once a policeman always a policeman”—is MacKay. He is tall, trim, impressive: a man of action, strong and determined.39

35 SMH , 11 June 1930, p. 13. 36 Bruce Swanton and Lance Hoban, “The story of Walter Henry Childs”, New South

Wales Police News, vol. 70, no. 5, May 1990, pp. 19–22. 37 Andrew Moore, “A secret policeman’s lot”, p. 198. 38 SMH , 23 March 1935, p. 15. 39 ScreenSound Australia, CTN 19897, Cinesound Review No. 178, “Farewell to W.C. Childs”, 1935.

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Childs told MacKay: “I know that I leave the police force in most competent hands—in the hands of a born policeman”.40 Public opinion seems to have agreed. On his formal appointment, on 11 March, the Sydney Morning Herald described MacKay as “one of the most outstanding detectives the New South Wales force had produced... a genius for organisation... the logical successor”.41 Truth, too, was pleased. It profiled “His Romantic Rise” in the force, praising MacKay’s “personality, insight, ability and manly fair-dealing”.42 The paper’s concerns about the new law relating to the office of Commissioner remained, but it supported the appointment to the position wholeheartedly: Mr MacKay will have the powers of a dictator; but it is preferable to have a trained policeman with such powers, rather than a political wirepuller! … Everyone will be satisfied with this appointment!43

Letter writers hailed “our brilliant young Police Commissioner”.44 MacKay himself must have had high hopes for what he could achieve. The honeymoon, however, was short. Less than two years later, MacKay came under blistering attack. One critic was his former ally, R.W.D. Weaver who told Parliament: I know that there is a feeling in the House and the community that it is not wise for any member of the public to get the police against him because of the extraordinary power possessed by the force in consequence of legislation passed by this Parliament. The Commissioner of Police, Mr Mackay, is in the position of potentate or dictator.45

When institutional measures of control fail, public scandal becomes an important instrument of accountability. And by late 1936, when Weaver

40 These words are muffled on the newsreel, interpretation based on SMH , 23 March 1935, p. 15. 41 SMH , 12 March 1935, p. 9. 42 Truth, 10 February 1935, p. 1. 43 Ibid. 44 SMH , 9 April 1935, p. 5. 45 NSWPD, 17 November 1936, p. 514.

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was demanding MacKay’s head, the New South Wales Police Force was beset by the most serious scandal it had ever faced.

CHAPTER 8

The SP Royal Commission: Police Power, Corruption and Scandal, 1936

1

‘He Kept a “Tote”’: SP Bookmaking

Few major scandals have had a beginning as unremarkable as the arrest of William Mowlds, ham and beef shop proprietor, on a charge of illegal betting. At about noon on Saturday 18 November 1933, Mowlds’ shop on Marrickville Road, Dulwich Hill, was raided by Sergeant Daniel Gallivan and constables Perrett, Nelson and Miller. The police, all wearing plain clothes, came into the residence behind the shop and accused Mowlds of taking bets. Mowlds denied he had anything to do with illegal betting, but the police searched the house, arrested Mowlds and took him to Petersham police station.1 At Mowlds’ trial, the police alleged that some lists of horses and betting odds found on the premises showed Mowlds to be a starting price bookmaker, a “bettor” in the legal jargon of the time. Constables Perrett and Nelson both testified that they had seen Mowlds take two bets and phone the details to another bookmaker.2 Mowlds protested his innocence. He claimed that the lists of horses were records of bets he himself had placed with a bookmaker (which was not illegal), and that he had never accepted bets or had the telephone conversations the police reported. However, 1 NSWSR, Prem. Dept. Special Bundles, 9/2470.1, SP Royal Commission material, statement by William Mowlds, 14 December 1933. 2 Ibid.

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Mowlds was convicted and fined ₤20. On appeal, this was reduced to ₤5.3 Mowlds’ case was as unremarkable as a drink driving charge would be today. A few days after his arrest, the press reported that in the previous quarter there had been 1034 prosecutions for betting offences in Sydney and Newcastle alone. These prosecutions were startlingly successful: convictions were recorded in 96% of cases.4 These figures, noted with approval by Chief Secretary Frank Chaffey, were high, but not exceptional. In the mid-1930s, there were, on average, more than 3,000 prosecutions for illegal betting each year.5 Gambling offences made up the largest single category of arrest in New South Wales, greater even than fare evasion on public transport.6 Illegal, or at least unlicensed, bookmaking has a long tradition in New South Wales. The custom of gambling arrived with the First Fleet and was an unremarkable and widespread part of colonial society.7 Even the barber who shaved the Man from Ironbark “laid the odds, and kept a ‘tote’, whatever that may be”.8 But Protestant social reformers had campaigned against gambling since the 1870s, and in 1906 succeeded in having an act suppressing off-course betting passed in New South Wales.9 This law was spectacularly unsuccessful. “Starting price” or “SP” betting remained a substantial industry through the 1920s and boomed in the Depression years.10 Alfred McCoy

3 “Report of the Royal Commission of Inquiry into Allegations Against the Police in Connection with the Suppression of Illicit Betting, 1936” [SP Royal Commission Report], pp. 88–9. 4 Sun, 23 November 1933, p. 26. 5 SP Royal Commission Report, p. 116. 6 Alfred McCoy, “Sport as modern mythology: SP bookmaking in New South Wales,

1920–1970”, in Cashman and McKernan (eds), Sport: Money, Morality and the Media, University of New South Wales Press, Sydney, n.d. [c.1980], p. 40. 7 John O’Hara, A Mug’s Game: A History of Gambling in Australia, UNSW Press, Sydney, 1988, pp. 1–21. 8 A.B Paterson, “The Man from Ironbark”, Bulletin, 17 December 1892. 9 O’Hara, “The Australian gambling tradition” in Cashman and McKernan, Sport,

pp. 69–75. 10 The “starting price” was based on an average of odds offered by leading bookmakers. The “official” odds used by SPs to calculate their payouts were those published in the Sydney Morning Herald.

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describes how, by the mid-1930s, “bookmakers could be found at the bar of almost every hotel, positioned near the pay telephone”.11

2

‘The Pimps System’: Policing Unpopular Laws

The laws against SP bookmaking were almost impossible to enforce. Like sly-grog selling, SP was a “victimless” crime, and a great proportion of the population, particularly in working-class areas, saw nothing wrong in gambling and resented attempts to prevent it. Provided bookies did not cheat clients, it was unlikely that anyone would complain.12 In order to gain convictions, police had to find physical evidence such as betting slips, gain a confession or witness the taking of bets themselves. At least two police witnesses were needed. This was a difficult requirement to meet, as many police were well known in their communities, particularly in rural areas. In order to gain convictions, the police had to resort to subterfuge and relied heavily on police agents and paid informers.13 One police officer who made virtually his whole career out of the detection and prosecution of betting and sly-grog offences was one of W.J. MacKay’s protégés, Sergeant Joe Chuck. Chuck became famous for his ability to disguise himself, in order to infiltrate places where gambling, sly-grog or other vice offences were taking place. He also made extensive use of “pimps”, police agents and “phizzgigs”, informers. Police agents came in for frequent criticism, but Chuck, in Vince Kelly’s words, “stuck tenaciously [to] the pimps system”, with the support of MacKay. “Pimps had proved their value to him and the revenue”, presumably as the money paid out to informers was far outweighed by the amount of fines they secured through convictions.14 In the course of twenty years, according to Kelly, Chuck made some 15,000 arrests, a rate of about two per day.15 11 McCoy, “SP bookmaking in New South Wales”, pp. 39–54. 12 C. Fox, “Bookies, punters and parasites: Off course betting, conflict and consensus

in Western Australia between the wars”, Studies in Western Australian History, no. 11, June 1990, pp. 63–89. 13 “Minutes of Evidence of the Royal Commission of Inquiry into Allegations Against the Police in Connection with the Suppression of Illicit Betting, 1936”, Judge H.W. Markell, NSW PP 1936/7, JVP vol. 3, p. 4 [SP Royal Commission Evidence]. 14 Vince Kelly The Bogeyman: The Exploits of Sergeant C.J. Chuck, Australia’s Most Unpopular Cop, Angus and Robertson, Sydney, 1956, p. 124. 15 Ibid., p. 96.

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To modern eyes, Chuck’s career, while displaying energy and ingenuity, smacks of careerist harassment. Almost all his arrests were for minor breaches of gambling and liquor laws, often detected by means verging on entrapment.16 The policing of gambling laws in New South Wales followed a model developed by MacKay after his 1928 study tour. Each police area, of which there were six in metropolitan Sydney, had a sergeant in charge of a “special squad” devoted exclusively to SP and liquor licensing offences. There was also a “flying squad”, of which Chuck was part, based at Police Headquarters and empowered to conduct raids in any area.17 The creation of an elite specialist squad, mobile and responsible directly to headquarters, was typical of the innovations which MacKay introduced. It was part of the abandonment of the beat system, which he regarded as too slow and inflexible for “the age in which we are living; an era of economical and rapid living, working and transport conditions”.18 As Kevin Seggie argues, there was logic in the changes MacKay drove through: specialist squads “appeared to offer a sensible and flexible approach to law enforcement”.19 Unfortunately, they also contributed to the further distancing of police from the community and would prove fertile ground for corrupt practices.20 While the special squads were “effective”, in that they made many arrests and gained large numbers of convictions and fines, all this activity made scarcely a dent in the massive SP trade.21 Another policeman who gained a media profile for his work in the special squads was Constable Mendelssohn Miller, one of those involved in the Mowlds arrest. In December 1932, Miller enjoyed an unusual holiday at Katoomba, a fashionable resort in the Blue Mountains. Pretending to be a wealthy young squatter “out for a good time”, 16 See, for example, ibid., pp. 45–61. 17 McCoy, “SP bookmaking in New South Wales”, p. 40. 18 NSWSR, Col. Sect. Special Bundles, 5/5427.2, Report by MacKay re overseas study

tour, 15 April 1929. 19 Seggie, “Police and Government”, p. 214. 20 David Dixon, “Reform Regression and the Royal Commission into the NSW Police

Service”, in David Dixon (ed), A Culture of Corruption: Changing an Australian Police Service, Hawkins Press, Sydney, 1999, pp. 141, 147. 21 McCoy, “SP bookmaking in New South Wales”, pp. 38–43; Kelly, The Bogeyman, pp. 103–4.

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he took part in gambling and SP betting at up-market guest houses, gathering evidence for the local police who then made 30 arrests. The papers had some fun at the recently-married Miller’s expense: Miller enjoyed one of the happiest times of his life, but he had some uncomfortable moments when girls became friendly, for he is a very handsome policeman.22

A few weeks before the Mowlds arrest, Miller again came to notice for having helped arrest six people for SP offences in the Gladesville district. Miller and Constable Perrett had disguised themselves as swagmen, in order to identify bookmakers in country hotels.23 Such techniques were frequently the subject of public ridicule.24 However, there were also more serious criticisms: allegations that police were framing people on SP charges by planting evidence, giving false testimony or “verballing” (inventing false confessions). William Mowlds alleged he had been framed in just this way, but his case was unusual. First, Mowlds was a respected member of the local community who had no history of being involved in gambling.25 He was deeply upset about his conviction and was determined to clear his name. Second, Constable Mendelssohn Miller was troubled about what had happened. Third, both Mowlds and Miller were Freemasons.

3 The Other Brotherhood: Freemasonry and the Police Contemporary reports on the Mowlds affair tended to refer to Freemasonry as little as possible. However, internal police documents and the full transcripts of evidence show that Freemasonry was an important element in the unfolding of the scandal. Although its famous secrecy is no longer observed, Freemasonry is not well understood. The Freemasons were a curious combination of

22 Sun, 3 December 1932, p. 3. 23 Sun, 23 November 1933, p. 30. 24 Kelly, The Bogeyman, pp. 1–3. 25 NSWSR, Prem. Dept. Special Bundles, 9/2470.1, police report on Mowlds’

“character and circumstances”, 28 December 1933.

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social club, quasi-religion and coterie. Their ideals were mutual support, moral improvement and good works. One of the Craft’s advocates, Frederick Crowe said a “true Freemason” became “a better man, a firmer friend, a more charitable adversary, a more discrete confidante, a warmer hearted sympathiser with someone in need”.26 However, while Crowe claimed that “Freemasonry meddles neither with religion nor politics”, it is beyond denial that the group often served to preserve Protestant domination of elite institutions, including police forces.27 The influence of Masonry in policing has not been the subject of much study, but it is widely recognised within police forces as extensive. By one estimate, in the 1980s about 20% of male police officers in Britain were Masons.28 This figure may under-represent Masonic influence, however: the higher ranks of police forces were more heavily Masonic, and Masons were particularly strong in detective branches.29 Mason police have been the target of bitter complaint from their non-Mason colleagues.30 The same seems to have been true in the New South Wales Police Force in MacKay’s day. MacKay himself was initiated into the Masons in 1922 and became an active and important figure in the organisation, eventually achieving the status of Master Mason. After his death in 1948, a Police Lodge was established and named after him.31 A strong element in Masonry is a commitment to group loyalty at all costs, with dire consequences for those who stray. The similarities to the culture of the police “brotherhood” are striking. There are similar strong bonds and loyalties, similar commitments to discretion, a similar air of mystery and secret knowledge.32

26 F.J.W. Crowe, What Is Freemasonry?: A Word of Advice to Masters and Candidates, Gale & Polden, London, 1935. 27 See Martin Short, Inside the Brotherhood: Explosive Secrets of the Freemasons, Harper

Collins, London, 1990; see also Williams, Peter Ryan, p. 102. 28 “Home Affairs Committee third report. Freemasonry in the police and the judiciary. Vol. I”, Home Affairs Select Committee on Freemasonry in the Police and the Judiciary, Parliament of Great Britain, 1996/1997. 29 Short, op. cit. pp. 233–8. 30 Ibid., pp. 56, 198–200, 262. 31 Newman, “William John MacKay”. 32 Jill Bolen, “The police culture: Implications for the reform process,” in Scott Prasser,

Rae Wear and John Nethercote (eds), Corruption and Reform: The Fitzgerald Vision, University of Queensland Press, Brisbane, 1990, pp. 132–5.

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There has not been any detailed study of the nexus between Freemasonry and police in Australia, but that it was once extensive is obvious. The Mowlds case shows that Freemasonry was widespread in the New South Wales Police Force in the 1930s, and also that the Craft had redeeming features. Masonic networks were vital to the mobilisation of scandal and the exposure of police misconduct. William Mowlds was an active member of his local Masonic Lodge, and after his arrest, he was bailed out by Charles Williams, also a Mason. Williams knew Constable Miller and learned from him that Mowlds’ conviction was suspect. Williams asked Inspector Alec Russell, head of the Flying Squad and also a Mason, to speak to Miller about the case. Miller told Russell, allegedly under conditions of Masonic secrecy, that Mowlds had not been betting and that the evidence of the other police was false.33 Russell was convinced, and an internal police inquiry was made into the incident. This inquiry was conducted by Inspector George Fergusson, yet another Mason. Miller again maintained that Mowlds was innocent. Fergusson, however, found that the other three police were telling the truth, and that Miller was lying. The report said that Miller was motivated by professional jealousy, and that he was improperly influenced by a sense of loyalty to Mowlds as a fellow Mason. Fergusson dismissed Mowlds’ complaint and recommended departmental charges against Miller.34 Despite the rejection of his complaint, Mowlds continued to press his case. Eventually, nearly three years after the raid on his shop, the matter was raised in Parliament.

4

‘The Police Are Rottenly Corrupt’: The Mobilisation of Scandal

On 3 March 1936, Carlo Lazzarini, a long-serving Labor member for Marrickville and a former Chief Secretary, put forward a motion to establish a select committee to inquire into accusations against the police. Lazzarini told Parliament:

33 NSWSR, Prem. Dept. Special Bundles, 9/2470.1, report re Mowlds case by Inspector George Fergusson, 4 January 1937. 34 SP Royal Commission Report, p. 93.

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Every week, after the race meetings on Wednesdays and Saturdays, the police deliberately “frame” men for starting price betting in order that they may get convictions to their credit … They set out from the police stations in their comfortable motor cars, they run the rounds of the hotels in the metropolitan area, and as they are fearful of going back to the station empty handed, they pick out the most likely looking chap and apprehend him. It appears to me that quite irrespective of the evidence that is placed before the bench in these cases the magistrate invariably convicts.35

Lazzarini listed numerous instances, including the Mowlds case, of police giving false evidence, of police urging people to plead guilty in return for a leniency and of bullying behaviour by police.36 The whole system in connection with starting price betting prosecutions reeks with injustice … in many cases the police are rottenly corrupt in their methods of apprehending persons alleged to be guilty of starting price betting. This is serious statement for a responsible public man to make on the floor of the house. I make it calmly and deliberately, and I say that the police perjure themselves every day of the week.37

Similar claims, though usually restricted to specific instances, had been made in Parliament before and had met with simple denials. Labor were in opposition, and the motion would normally have been defeated on party lines, but Lazzarini had support from a surprising quarter. J.T. Ness, the United Australia Party member for Dulwich Hill, was as unlikely an ally for Lazzarini as could be imagined. Lazzarini was a devout Catholic and veteran of the union movement and the Labor Party; Ness was a deeply conservative Presbyterian, a Freemason and a man for whom sectarianism was both the focus of his public career and a personal passion.38 Ness’s support for an inquiry was cautious and framed in conservative forms. “I am not here to slander members of the [police] 35 NSWPD, 3 March 1936, pp. 2314. Lazzarini was not exaggerating. According to the Police Department’s figures, in 1936 there were 5,586 prosecutions for betting offences, which resulted in convictions in all but 42 instances, a conviction rate of higher than 99 per cent. New South Wales Police Dept, Annual Report, 1936, p. 6. 36 NSWPD, 3 March 1936, pp. 2314–9. 37 Ibid. p. 2316. 38 Bede Nairn, “Carlo Camillo Lazzarini”, ADB, vol. 11, pp. 30–1; Mark Lyons, “John Thomas Ness”, ADB, vol. 11, p. 3.

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force”, he told Parliament, “because I believe that, as a whole, they are a fine body of men”.39 However, the case of Mowlds (who lived in Ness’s constituency) had convinced him that injustices were occurring. I do not know whether he [Mowlds] does or does not indulge in startingprice betting, but I am satisfied that on the occasion in question he was not betting … Constable Miller stated that the whole thing was a “put up” job, and refused to give evidence on the case. He was put on the mat … because he refused to swear that the other officers were right in the action that they took.40

In his study of police corruption in the United States, Lawrence Sherman argues that corruption scandals usually occur when malpractice has been well entrenched for a long period. Such a state of affairs generates periodic “little scandals”, accusations of wrongdoing which have limited impact and which can be successfully stonewalled.41 This had been the case for years in New South Wales. A typical example: in 1928, the Justice Minister received complaints that police officers had pressured defendants to plead guilty to minor offences. The minister told the press that he had: placed these complaints before the Commissioner of Police and asked him whether it was the custom for police to advise alleged offenders to plead guilty. He had had been advised by Mr Mitchell that this was not so.42

And there the matter ended. Sherman identifies two internal threats to stable systems of police corruption. Both are types of police officer, but polar opposites in character and motivation. The first type he calls “the evil fringe”. Members of this group are police who take corrupt activities to excess, and become greedy or reckless. The second type Sherman calls the “honest zealot fringe”: officers who refuse to cooperate in corrupt activities and who give evidence against their fellow police, what are now usually called 39 NSWPD, 3 March 1936, p. 2319. 40 Ibid., pp. 2319–20. 41 Lawrence W. Sherman, Scandal and Reform: Controlling Police Corruption, University of California Press, Berkley, 1978, pp. 66–7. 42 SMH , 10 May 1928, p. 12.

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“whistleblowers”.43 One or other type is necessary for information about police corruption to come out into the open, to become a scandal, Sherman argues.44 In the Mowlds case, both types were present. Sergeant Gallivan represented the “evil fringe”, and Constable Miller became, rather reluctantly, a whistleblower. As a result of the 1934 Amendment to the Police Regulations Act, the New South Wales Police Force was almost entirely unaccountable. No external body could scrutinise its activities; complaints were handled internally; it was almost impossible to dismiss the Commissioner. In such circumstances, public scandal becomes almost the only means of holding the police to account.45 For information about misconduct to become a scandal, a number of different actors must come together. In particular, respected civic leaders must accept the truth of allegations and air them in a public forum. Support from unexpected quarters, figures who would usually be reluctant to criticise the police, adds crucial legitimacy.46 This was where the support of J.T. Ness and other government members for Carlo Lazzarini’s motion in Parliament was so important. It made the standard stonewalling defence impossible. Lazzarini’s motion for a Select Committee was unlikely to have succeeded.47 The government was sufficiently alarmed, however, that the debate was gagged by an adjournment. Events then moved with great speed. On 7 March, Cabinet met and decided that, “action should be taken to issue immediately a Royal Commission to a Judge to make an adequate inquiry” into Lazzarini’s allegations.48 The first hearing took place on 13 March, just ten days after the allegations were raised.49

43 Sherman, Scandal and Reform, p. 47. 44 Ibid., pp. 17–21. In recent times, corrupt officers who accept indemnity in return

for informing on their colleagues are also a threat to corrupt systems. However, in the period under consideration, indemnities were not offered. 45 Janet Chan, Changing Police Culture: Policing in a Multicultural Society, Cambridge University Press, Cambridge, 1997, pp. 183, 185. 46 Sherman, Scandal and Reform, pp. 52–87. 47 Lazzarini had the support of about 12 government members, five short of the

number he needed. Truth, 8 March 1936, p. 24; Nairn, “Big Fella”, p. 275. 48 NSWSR, Prem. Dept. Records of Cabinet, 9/3028.2, 7 March 1936. 49 SP Royal Commission Report, p. 1.

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5 ‘My Unpleasant Duty’: The SP Royal Commission The man chosen to head the Royal Commission was Judge Horace Francis Markell of the District Court. Markell was new to the bench, having been appointed a judge only seven months earlier. He was a solid member of North Shore middle-class Sydney: born in Neutral Bay, educated at Sydney Grammar and Sydney University, called to the Bar in 1911, made KC in 1927. He enjoyed gardening, especially orchids, and was a member of the University Club.50 There was one notable deviation from this benign respectability: he had been a senior member of the New Guard (as had the barrister appointed to assist the Commission, Richard Windeyer KC).51 Truth described Markell as “a man deeply grounded in the law and of unbending opinion. He drives right through to his conclusions in a manner which never deviates”. Despite this, “his courtesy is rather remarkable: Judge Markell is never acid, much less caustic or offensive”.52 Vince Kelly had a much dimmer view of Markell, one that probably reflected the views of many police. Kelly said he was “curiously naïve and unworldly” for a judge: His prize-winning orchids held more interest for him than the human flotsam and jetsam who came before him. He was a gentle kindly man, always eager to believe the best of the worst of his fellow men, with a definite tendency to err on the side of leniency rather than severity.53

There was some truth in Kelly’s words, but innocence, the ability to be shocked, is not always a bad thing. Markell lacked imagination and was too trusting of established authority, but he was honest and diligent. Though he tended to give the police the benefit of any doubt, where there was definite evidence of their guilt he did not shirk what he called “my unpleasant duty”.54

50 Who’s Who in Australia, 1938, p. 348. 51 Amos, New Guard, pp. 45, 68. 52 Truth, 7 March 1937, p. 26. 53 Kelly, The Bogeyman, p. 6. 54 SP Royal Commission Report, p. 116.

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The value of material gathered by the SP Royal Commission has not been recognised by historians, despite the great interest in the subject of police corruption in New South Wales. The inquiry is especially interesting as it is a rare example of detailed and credible evidence about miscarriages of justice in minor offences.55 The evidence presented to the commission is a rich source of information about power relations between the police and the community at the time.56 It presents, in a raw and fragmentary form, a study in systemic low-level corruption and indications of more serious problems. Markell himself largely failed to recognise the significance of the evidence he had heard. He treated each allegation of wrongdoing by the police substantially in isolation and as a criminal trial. He was reluctant to make adverse findings without overwhelming proof. Markell’s reports were detailed and exacting—too detailed, in fact. There was little attempt to draw general conclusions about patterns of behaviour within the police force as a whole. Rather, individual acts by individual police were examined in painstaking detail, and individuals censured or exonerated as Markell saw each case demanding. While his report did not shirk the seriousness of the conduct revealed, Markell was reluctant to criticise the police force as an institution. Markell wrote: it has been my unpleasant duty to find several members of the Police (including two senior officers) guilty of charges made under the Commission … This Inquiry has revealed a state of things which is, in my opinion, exceedingly serious and which must have a very disturbing effect upon the mind of the community.57

Immediately, however, he added: Without in any way seeking to minimise the gravity of the position … the cases which were investigated before this Inquiry go [back] to 1930, 55 Tom Molomby, “Miscarriages of justice in Britain, The Guildford Four and the Birmingham Six”, in in Carrington et al. (eds), Travesty!: Miscarriages of Justice, Pluto Press, Sydney, 1991, pp. 20–1. 56 Lack of information about corrupt practices is a frequent problem for reforming police leaders. Ivkovi´c, Sanja Kutnjak, “To serve and collect: measuring police corruption”, Journal of Criminal Law & Criminology, vol. 93, no. 2/3, Winter/Spring 2003, pp. 593– 649. 57 SP Royal Commission Report, p. 116.

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thus covering a period of six years, and during that time there have been some 20,000 prosecutions in relation to illegal betting. As the Government paid all expenses in connection to the Inquiry I am bound to assume that the twenty-seven cases actually investigated represent, at any rate, a fair proportion of those in which it was alleged that the Police had acted improperly. Again, it must be kept in mind that the officers who have been found guilty represent a very small proportion of the total number of men engaged in this branch of Police activity. Keeping these facts in mind there would appear to be no reason to believe that the irregular practices are general.58

Markell’s remarks were disingenuous. Markell dismissed several complaints against police solely because those complaining were not of good character, and their evidence was therefore considered untrustworthy.59 It seems not to have crossed Markell’s mind that people who were of bad character and guilty of SP offences might also be framed, or that such people would be both less likely to complain and less likely to succeed if they did.60 Further, Markell knew full well that there were many other serious complaints about the police. Several complaints raised in Parliament were not presented at the Commission.61 Markell personally received other complaints from members of the public: so many, in fact, that he twice made statements discouraging people from sending them. He argued that the terms of the Royal Commission prevented him from investigating further cases. This was true, but he could not pretend that he was unaware that these complaints existed.62 In fairness to Markell, the failure to recognise general and systemic problems underlying particular acts of policed misconduct has been a common failure of inquiries until very recently.63 It is part of a wider pattern of judicial blindness, an unwillingness to understand the uglier

58 Ibid. 59 See for example, ibid., p. 57. 60 Dixon, “Reform, regression and the Royal Commission”, p. 171. 61 NSWPD, 3 March 1936, pp. 2313–32. Carlo Lazzarini told Parliament that he

personally knew of “17 or 18” other complaints which could have been investigated. NSWPD, 16 December 1936, p. 1295. 62 SMH , 8 May 1936, p. 12; 11 July, p. 18. 63 Tiffen, Scandals, pp. 99–109.

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mechanisms of police power.64 Lord Denning, the great British jurist, expressed this reluctance with unusual frankness. While still in jail, the Birmingham Six—wrongly convicted of the 1974 IRA pub bombings which killed 21 people—applied to take civil action against the police. Rejecting this application, Denning said that to allow the action would be to accept the possibility that the police were guilty of perjury, and of using violence and threats to extract involuntary confessions: “This is such an appalling vista that every sensible person in the land would say: ‘It cannot be...’”.65 Many times in his career, MacKay would be saved from exposure by the unwillingness of judges to believe that such a senior police officer would exercise power corruptly. Markell refused to contemplate the appalling vista of systemic corruption. He showed naïve faith in Commissioner MacKay and the Police Force generally. It is clear the Police Administration has realised the responsibility falling upon it in connection with the suppression of illegal betting … every endeavour has been made to ensure that the law is properly enforced with a due regard to the rights of private citizens.66

This was a very generous assessment of what were token and ineffectual steps taken by MacKay.

6 ‘Do It Clean’: Leadership, Management and Corruption MacKay was overseas for all but the first few days of the Royal Commission, which ran for five months. In the same meeting which decided to hold a Royal Commission, Cabinet granted MacKay permission to travel abroad on another study tour. He went to the United States, Britain and continental Europe, where he had the opportunity to study the policing of the Berlin Olympic Games.67 MacKay’s absence was potentially dangerous to him. While some of the allegations dated from 64 Quentin Dempster, Honest Cops: Australian Who Stood Up to Corruption and Suffered the Consequences, ABC Books, Sydney, 1992, p. 108. 65 Quoted in Molomby, “Miscarriages of Justice”, p. 27. 66 SP Royal Commission Report, p. 116. 67 NSWSR, Prem. Dept. Records of Cabinet, 9/3028.2, 7 March 1936.

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before the time he was personally responsible for SP work, he had been Metropolitan Superintendent since 1932 and Commissioner since 1935. More directly, the special squads and the Flying Squad were his creations. MacKay’s vision of modern policing, of mobile specialist units, was effectively on trial. Sherman argues that when a scandal becomes too widespread to be dismissed as false, police leaders cannot appear to condone the misconduct which has been exposed. They must either claim ignorance of the problem or show that aggressive and positive action has already been taken.68 MacKay adopted the latter course. He tendered as evidence transcripts of three lectures he had given to police involved in SP work when he was Metropolitan Superintendent, one in 1932 and two in 1934. Markell thought so highly of these that he appended them to his report: in order that it may be appreciated that he [MacKay] was fully seized with the importance of the rights of the public being protected and the police carrying out their duties fairly and honourably, and that he has done all in power to this end.69

These three lectures are extraordinary documents. MacKay seems honestly to have believed that they spelt out effectively the duties of the police. He had the transcript of the lectures printed, and they were required reading for all new police starting in this area of work. However, the message of the lectures was contradictory; in places, they were scarcely coherent. In the first lecture, he rebuked local suburban police for failing vigorously to enforce the betting and liquor laws. It was, he said, the duty of local sergeants to ensure that, instead of Police walking by a tobacconist’s shop where every Constable in uniform knows s.p. betting is going on, where many of them think it has nothing to do with them … that that idea gets wiped out completely; to get down to tin tacks; to realise that every man in the New South Wales Police Force carries the same responsibility in respect to the enforcement of every Act in the Statute Book of New South Wales … so long as those statutes are there, so long as you are prepared to take your money from

68 Sherman, Scandal and Reform, p. 25. 69 SP Royal Commission Report, p. 116.

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the Government, so long as you are prepared to accept the food it gives you, come what may you are expected to carry out these jobs.70

On the other hand, he told his men to avoid involvement with vice operations, as it brought the risk of temptation to corruption. Do not risk your reputation on sly-grog and betting shops. If the whole city was nothing else but sly-grog shops and betting shops, never mind that so long as your reputation is clean.71

He said the public did not support the laws suppressing betting. In this country betting is supposed to be a religion, and the Powers that be have made laws which are on the Statute Book, and yet the inclination of 75 per cent of the people is that these laws are harsh, that there is no offence in betting, that a man who conducts a starting-price betting shop is doing no harm and that the police who raid a … starting-price bettor are harassing the people, and that they are men who are not to be depended on and are not engaged in useful work. I appreciate that view, and every man here should do likewise, and therefore be more than doubly careful. More than doubly careful.72

He concluded by urging his men to use their discretion in favour of those suspected of SP offences. If you have a doubt let the other fellow have the benefit. Do you value the position of Police? Do you realise that you are given in the Police Rules and Instructions the power to urge [sic: use?] your discretion … What is the good of you risking it if you have a doubt, and then let the magistrate make himself a good fellow at your expense by giving the other fellow the benefit of it? Why not you do it? If it is good enough for … a Magistrate to give … the benefit of the doubt when I have a doubt about putting a case before the Court, why should I not do it and make myself a good fellow? … MAKE SURE, and that is the story I am telling you.73

70 Ibid., pp. 120–1, 125. 71 Ibid., p. 125. 72 Ibid., p. 128. 73 Ibid., p. 130.

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John Avery argues that society expects too much from its police. “Police”, he writes, “cannot enforce all of the laws all the time, even if they tried, nor does anyone expect them too”.74 But which laws should be enforced, and under what circumstances? A key aspect of policing is discretion, the legal right of police not to pursue an offence. This is often, Avery writes, a subtle and difficult judgement. It requires police to have a sensible appreciation of community norms and mores. The difficulty is compounded when the laws themselves are ill-conceived. It damages the public’s perception of the police “when the laws that police enforce are not good or necessary laws”.75 In a confused fashion, MacKay’s lectures identified many of the same issues. The problem was that he urged his officers simultaneously to: aggressively pursue SP operations, and any other breach of the law; ignore SP operations if pursuing them created the risk of corruption; and exercise their discretion and only prosecute flagrant breaches of the law. There was, true, one consistent message: Be clean and straight. Do the honest thing … No young man can say that I, or … any Officer of the Police Force that I know of, has ever whetted up a desire to convict people illegally and on slender or flimsy evidence.76

But MacKay admitted that there was a prevailing culture which encouraged just such behaviour: I want to tell you young fellows; never mind what the other fellow [an “old hand”] says; whatever you do, do it clean, and if you cannot do it clean do not do it at all. If you fail trying, nobody will condemn you.77

Even these contradictory messages are extracted from texts that are, in many places, a verbose ramble. Sentences get tangled up, straggle on for hundreds of words and then peter out. MacKay strayed into reminiscences about his early days with the Glasgow police and homilies on the value of loyalty, the danger of ambition and the fall of the Roman Empire. In one of his books, Vince Kelly touches on police corruption and looks 74 Avery, Police: Force or service?, p. 65. 75 Ibid., p. 35. 76 SP Royal Commission Report, p. 127. 77 Ibid., p. 124.

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back on these lectures. They were, he writes: “pregnant with warning and the shrewdness and sagacity of experience”.78 It is difficult to understand Kelly’s high opinion. As a set of guidelines, MacKay’s lectures were useless. With such confusing and contradictory advice coming from their commanding officer, it is little wonder that the “old hands” whose bad influence MacKay lamented continued to set the tone. Judge Markell took the emphasis MacKay gave on obtaining convictions fairly, and MacKay’s avowed dislike of using informers, as evidence that all was well in the police force generally. But Markell’s inquiries had exposed patterns of behaviour too consistent to be dismissed as exceptional. What was occurring was low-level corruption on a wide scale and supported by the institutional culture of the force. One case, unremarkable in every respect, serves to illustrate the whole. On 22 February 1930, Henry Farmer, a hairdresser and tobacconist, was arrested and charged with using his shop to conduct an SP betting business. The arrest was made by Sergeant Keeble and constables McKenna and Bradbury. They were assisted in the operation by Police Agent Mooney.79 The police raided Farmer’s premises and searched for evidence of betting. The police found some pieces of paper, said to be betting slips. Mooney alleged that he had observed Farmer accept money and a betting slip through a window in the side wall of his shop, which faced a lane. Both Mooney and Constable Bradbury alleged they had overheard Farmer discuss accepting a bet on a horse.80 Farmer was convicted and fined ₤15. An appeal was unsuccessful. Farmer paid the fine, but persistently attempted to clear his name. He claimed that when the police arrived he denied that he had been accepting bets. A warrant to search his premises was produced, and the police proceeded to do so for nearly two hours before Sergeant Keeble found the alleged betting slips.81 Judge Markell found that the “betting slips” had, in fact, been written out by Mooney. A handwriting test confirmed this beyond any doubt. Markell found that there was no evidence that Farmer was then, or had ever been, involved in betting. He found that Mooney, “a man of 78 Vince Kelly, It Does Not Pay to Compromise: The Story of Walter Richard Lawrence, Member of Parliament, Deputy Commissioner of Police and C.I.B. Detective, Epworth Press, n.d. [Sydney, 1963], p. 92. 79 SP Royal Commission Report, pp. 34–7. 80 Ibid. 81 Ibid.

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no moral character at all”, had planted the slips, in collaboration with one or more of the police officers, and that his evidence about seeing Farmer accept bets was a lie. He also found that Constable Bradbury had also given false evidence about overhearing bets being taken. This Markell attributed to the bad influence of Mooney.82 As in the other cases, Markell was careful not to go further in his assessment of police conduct than would have been warranted in a criminal trial. As there was no direct evidence of wrongdoing by the other police present, they emerged unscathed.83 The Farmer case was typical of almost all those examined. They consistently showed that police were willing to work with police agents whose word could not be trusted, to perjure themselves to give corroborative evidence, to plant evidence and to fabricate confessions. There were also several instances of police raiding homes without a warrant, behaving abusively or pressuring people into pleading guilty. MacKay knew that there were problems in the special squads, and said so. But he presented himself as having effectively dealt with abuses. He told the Royal Commission that he had been unhappy with the gaming and betting squad when he had taken over as Metropolitan Superintendent in 1932 “on account of the knowledge that I had of improper actions allegedly on the part of police informers, and occasionally of constables”.84 In the first few months in his new position, he had transferred 16 officers to uniform duty,and similar action had been taken “many times” since.85 MacKay told the Commission that enforcing the SP laws was: a very difficult proposition … We as police officers, realise that this work of enforcing the SP betting laws is a thankless job, and at the same time a very serious job, and one of great importance to the public.86

This was the reason behind the many changes to SP work he had made, including the use of the Flying Squad. This squad made unannounced

82 Ibid. 83 See, for example, the case of Colin Dansey, ibid., pp. 27–8. 84 SP Royal Commission Evidence, p. 65. 85 Ibid., pp. 4, 65. 86 Ibid., p. 66.

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visits to the divisions “as a check up on the honesty of both parties”, that is, gamblers and police. Because of the difficulty and sensitivity of the work, and the danger of corruption, only “specially selected men under reliable non-commissioned officers are employed in the work”.87 The Royal Commission showed, however, that many of the sergeants in control of area squads were not reliable at all, and that MacKay was well aware of this. Sergeant Daniel Gallivan, the officer in charge of the Mowlds raid, was adversely mentioned in three further cases.88 He emerged in the Royal Commission as a sinister figure: brutal, vindictive and lawless. Markell was damning in his assessment of Gallivan, calling him “an entirely untruthful and unreliable witness”.89 But MacKay had allowed Gallivan to remain in his position, despite numerous complaints. Moreover, he had been responsible for Gallivan being in SP work in the first place. Gallivan had worked under MacKay in the detective branch. MacKay told the Royal Commission that Gallivan “was getting at that stage when he was not too good as a detective. Gallivan had to go back into uniform or on to some other work”.90 MacKay said that it was his own move to put Gallivan onto SP work, and that this had been against Gallivan’s wishes.91 Another area Sergeant mentioned in several complaints was William Jennings, who headed the area squad in North Sydney. Jennings was the subject of a complaint different from the others, one which provides a fascinating glimpse into the mechanics of police corruption.92 Alfred Ingram, an SP bookmaker, alleged that he had entered an arrangement with Jennings that would today be described as “green lighting”. In return for a regular payment of ₤20 per month to Jennings, Ingram would be given “partial protection” for his bookmaking operation. The payment was a large one, but Ingram was in a position to make it. His business at the hotel was lucrative: on a good race day, he would take over ₤300 pounds. Periodically, Ingram or one of his clerks would be arrested “for the sake of appearances”. Ingram told the inquiry that he 87 Ibid., p. 4. 88 SP Royal Commission Report, p. 67. 89 Ibid., p. 38. 90 SP Royal Commission Evidence, p. 69. 91 Ibid. 92 SP Royal Commission Report, pp.46–57.

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would be notified of a raid by Jennings’ men through an intermediary, a man called Cochrane. I had to be caught in my turn. I could not have an exemption altogether … I had to go to Court about once a month. Cochrane was to ring me up and let me know when they were coming so that arrangements could be made, and I would ring back an appointed time when they had to come, so that I would be prepared[,] for a couple of minutes before a race or a couple of minutes after a race. It was to be at a time which suited me best.93

These token prosecutions were deliberately “soft”. On one occasion, a clerk working for Ingram, Victor Hilton, was arrested in the hotel and charged with betting. Hilton was convicted and fined ₤1. However, the court was not told of his five previous convictions, the last of which had seen him fined ₤30. Jennings was present in court, but said nothing. Hilton was so well known as an SP bookmaker that when the prosecuting constable said he had no previous convictions “a titter went around the court”.94 Eventually, the agreement between Ingram and Jennings broke down, and Ingram was forced out of the hotel. He alleged that Jennings then victimised him in favour of other bookmakers. Ingram’s evidence was extraordinarily detailed. Markell said in his report: I can point to nothing that convinces me that he [Ingram] is not telling the truth. It is a remarkable fact that in no one respect has it been shown that anything which he said was demonstrably false … [it is] difficult to think that anybody could successfully invent a story so complicated … without it becoming apparent at some stage that he was telling an untruth.95

The Royal Commission had been given evidence which was potentially of immense value. It was a case study in the regulation of an illegal market by corrupt police, and the mechanics of the corrupt arrangements were laid out in painstaking detail. Unfortunately, Markell’s caution and narrow focus compelled him to a soft and limited conclusion. “I do not think that 93 Ibid., p. 47. 94 Ibid., p. 53. 95 Ibid., p. 57.

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these matters point conclusively”, to Jennings’ guilt, he wrote. It had not been shown that Jennings possessed money he could not account for, and his police record was unblemished. Therefore, “only one finding [is] possible and that is that the charge has not been proven”.96 MacKay probably knew something was amiss in North Sydney. He acknowledged at the Royal Commission that he had heard allegations that Jennings was being paid for immunity by SP operators. MacKay said that he did not think that this was true, and said he was unhappy with Jennings for the opposite reason: “The fact is that he gives too much attention to hotels in North Sydney, and that he is too anxious to prosecute hotels for these breaches”.97 It is customary for police under external security to show remarkable solidarity, even in the face of overwhelming evidence.98 That MacKay volunteered adverse information about Jennings requires comment. A deep personal dislike existed between the two men. At the lecture MacKay gave to area sergeants on 5 August 1932, in which he called for greater action against SP operators, he clashed openly with Jennings, accusing him of jealously and malicious gossip. MacKay:

Jennings: MacKay:

Jennings: MacKay:

I trust and hope that my words of advice, which have been given here today, will benefit him [Jennings], and that the years to come hold good times for that man, and that by his changed conduct and minding his own business he will get on with his job and that he will succeed to a high place in the Police Force. Are there any questions which you wish answered? Is it me you are referring to? If you want to see me personally, you just ask to see me; I do not know anything about you. I never mentioned any names. I gave advice… You pointed the remarks … That is my job, that is my job; if you want to see me about anything personally, see me afterwards; that is the

96 SP Royal Commission Report, p. 57. 97 SP Royal Commission Evidence, p. 68. 98 Wood Royal Commission Report, vol. 1, pp. 31–3.

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position, afterwards. I gave advice to every Constable and Sergeant… That remark… If the cap fits, wear it. I… Sit down. Either go outside or sit down. I am not attending to you. I will take my course. I will put it on paper. That is all. The parade is dismissed.99

This exchange was recorded by the shorthand writer and allowed to remain in the transcript of the lecture that was then printed and made required reading for police joining the special squads, many of whom would have worked directly with Jennings. Many inquiries into police corruption have identified poor management as a major factor in allowing corruption to become entrenched. In particular, the traditional authoritarian “command and control” style of management is singularly ineffective in improving morale, professionalism and integrity.100 It would be unfair to blame MacKay too much for his failure to solve a problem which continues to defy solution. Even so, MacKay’s reputation as a skilled leader and manager must be called into question over his handling of the corruption issue. Three rambling lectures and some personal abuse were never going to solve the problem, especially if the area squads were left in the charge of officers in whom MacKay had little faith. Worse, MacKay’s actions towards Constable Miller, an officer who did try to “do it clean”, would be reprehensible.

7 Law Enforcement by Other Means: The Illegal Extension of Police Power Nowhere in any of Markell’s reports is the word “corruption” used to describe the kinds of police malpractice he was investigating. This was not just due to shifts in language, the term “corruption” has had different meanings at different times, but Carlo Lazzarini and others

99 SP Royal Commission Report, pp. 123–4. 100 Dixon, “Reform, regression and the Royal Commission”, pp. 148–9.

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called the behaviour revealed at the Commission “corrupt” in Parliament.101 Markell’s failure to step back from the particular and to identify a general problem with the ugly name it deserved was a reflection both on his personal conservatism and on a common failure of external inquiries into police practice to question the status quo.102 Without naming it as such, Markell was subscribing to what is often termed “the rotten apple theory”. This is the belief that while there might be a few police officers who do the wrong thing—only to be expected in any large organisation—there is no general problem. All that need be done is remove these few corrupt officers, and all will again be well.103 The “bad apple” model of corruption has long been discredited as a defensive posture, a means by which a secretive organisation can limit the damage caused by external scrutiny.104 That the SP Royal Commission exposed widespread corruption is, when the evidence is assessed carefully and in detail, indisputable. It is instructive to assess the police misbehaviour documented by the SP Commission against the criteria used in the Wood Royal Commission, 60 years later. That inquiry defined a police officer as corrupt if he or she, among many other things: fabricates or plants evidence, gives false evidence, or applies trickery, excessive force or threats or other improper tactics to procure a confession or conviction.105

Such behaviour, the SP Royal Commission showed, was commonplace in New South Wales in the 1930s. What is termed “process corruption”— the use of illegitimate means to secure a conviction in cases where the accused person is actually guilty—was a daily event, just as Carlo Lazzarini 101 . See for example, NSWPD, 3 March 1936, p. 2316. 102 Ian Freckleton and Hugh Selby, “Piercing the blue veil: An assessment of external

review of police”, in Duncan Chappell and Paul Wilson (eds), Australian Policing: Contemporary Issues, Butterworths, Sydney, 1989, p. 30. 103 For a sincere exposition of this view, see Harold Scott, Scotland Yard, (1954)

Mayflower, London, 1970, p. 20. 104 Mick Palmer, “Controlling corruption”, in Peter Moir and Henk Eijkman (eds): Policing Australia: Old Issues, New Perspectives, Macmillan, Melbourne, 1992. The “bad apple” metaphor is ironic. It rests on a misunderstanding of the original proverb, which emphasised that a single bad apple would cause the whole barrel to become rotten. 105 Wood Royal Commission Report, vol. 1, p. 26.

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had claimed. Process corruption was not just tolerated, it was even implicitly approved of by those who regarded criminals as having sacrificed their civil rights.106 Markell’s report shows he was only concerned with police misbehaviour towards citizens of good repute. The responsibility of MacKay and other police officers for these problems should not be exaggerated. New South Wales was not alone in facing a growing corruption problem at this time. There were allegations of serious corruption in the Victoria Police, especially in the areas of gaming and alcohol licensing.107 Queensland experienced a similar boom in SP bookmaking during the Depression, and similar claims of corruption resulted in a Royal Commission in 1936.108 The core of the problem, as MacKay recognised, was that the police were called on to enforce laws which were widely resented. An American police reformer of the 1920s and 1930s, August Vollmer, argued long and loud that poorly conceived vice laws, including those prohibiting gambling, created disastrous problems for police organisations. In particular, they eroded mutual respect between police and the community and created the conditions for corruption.109 A particular problem was the necessary reliance on paid informers to secure convictions. The relationships between police and criminal informants have consistently proved a corrupting influence. This remains true, despite efforts to regulate the use of informers, and prior to the 1980s, there was virtually no control over the practice in New South Wales.110 MacKay gave Sergeant Joe Chuck virtual autonomy to run his “pimps system” as he saw fit, provided he continued to get results.111 To understand corruption as an aspect of police power, it is useful to adopt the perspective of functionalist sociology. Corruption, in this light,

106 Dixon, “Reform, regression and the Royal Commission”, p. 175. 107 Haldane, The People’s Force, p. 196. 108 W. Ross Johnston, The Long Blue Line: A history of the Queensland Police, Boolarong, Brisbane, 1992, pp. 256–7. 109 Gene E Carte and Elaine H. Carte, Police Reform in the United States: The era of August Vollmer, 1905–1932, University of California Press, Berkeley, 1975, pp. 98–103. 110 Independent Commission Against Corruption, Investigation into the Relationship Between Police and Criminals, 2nd Report, April 1994 [ICAC, Police and Criminals ], pp. 2–55. 111 Kelly, The Bogeyman, passim.

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can be seen as “functional”, for both police forces and society as a whole. If laws are hypocritical and unrealistic, corruption becomes necessary.112 Alfred McCoy, in his study of drug trafficking in Australia, identifies five stages of corruption in a police force. The third level in his model is characterised by police accepting regular bribes in order to allow a criminal operation to continue; the fourth level involves, among other things, the police “licensing” some criminal activities.113 Alfred Ingram’s evidence was a detailed picture of just such a system. What was occurring was de facto regulation. The operators of an illegal enterprise paid what was effectively a tax; in return, they were protected from both prosecution (except for token charges for appearance’s sake) and competition.114 William Foote Whyte, in his study of a working-class Italian slum in Boston, describes in detail the operation of a “policy racket”—an illegal lottery—and the routine corruption of the police in the neighbourhood. The main function of the police, Whyte argues, is to keep the peace, and this they do partly through the regulation of illegal businesses. Whyte describes the police as a social buffer, carrying out a charade of enforcing the law to please the socially dominant “good people” of the press and pulpit, while at the same time preserving a working relationship with the local community. Zealous police officers who tried seriously to enforce gaming laws were unpopular with both the community and their fellow officers, and their lives were made intolerable.115 In this way, police corruption can be seen as part of a larger social pattern: a consequence of class and cultural conflict, of social elites imposing standards of behaviour that are neither widely accepted nor readily enforceable. Under pressure from opposing social forces, police power takes a perverted, criminal form. To borrow from Clausewitz, corruption is the continuation of law enforcement, by other means.

112 Antony E. Simpson, The Literature of Police Corruption, John Jay, New York, 1977,

p. 65. 113 McCoy, Drug Traffic, p. 32. 114 Palmer, “Controlling corruption”, pp. 108–9. 115 William Foote Whyte, Street Corner Society: The Social Structure of an Italian Slum,

2nd ed, University of Chicago Press, Chicago, 1955, pp. 111–46.

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The Whistleblower

In 26 of the 27 cases examined by the SP Royal Commission, the police supported each other against any accusation. Even Richard Windeyer, who generally defended the police force as a whole, condemned this trait.116 But in Mowlds case, the brotherhood broke down. Constable Mendelssohn Miller, not without hesitation and misgivings, supported Mowlds and reported wrongdoing by police. As a result, Miller was removed from the gaming squad, returned to uniform duties and subjected to considerable harassment.117 Despite this, Miller stuck to his story and in 1936 testified at the Royal Commission against his brother officers. He became what would now be called a whistleblower—probably the first in the history of the New South Wales Police Force. Miller’s actions were of the first importance in bringing the SP scandal to light. J.T. Ness told the Royal Commission that he was initially reluctant to be involved, but that Miller’s statements convinced him to support Carlo Lazzarini in Parliament.118 The SP Royal Commission sat for the last time on 21 August 1936, having heard from 250 witnesses, including 83 police officers. Judge Markell delivered his report to the Chief Secretary in December. The results, despite the short-sightedness and limitations already noted, were explosive. Markell formally upheld charges against 22 police officers. Sixteen police, including two sergeants, were dismissed from the force.119 Lawrence Sherman argues that scandal is a means of collective punishment. Legal penalties can usually only be applied to individuals: scandal is one of the few ways in which society can punish an organisation as a whole for misconduct.120 The very defensiveness of police organisations in the face of adverse publicity shows how effective this can be.121 The SP Royal Commission provided credible information with which critics

116 SMH , 22 July 1936, p. 18. 117 NSWSR, Prem. Dept. Special Bundles, 9/2470.1, Departmental inquiry re breach

of Police Rules by Const. Miller, 12 June 1934. 118 SMH , 17 March 1936, p. 11. 119 SP Royal Commission Report, passim. 120 Sherman, Scandal and Reform, p. 64. 121 Dixon, “Reform, regression and the Royal Commission”, p. 146.

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could label the New South Wales Police Force as what Sherman calls a “deviant organisation”.122 The revelations of the SP Royal Commission were bound to cause trouble for the police force, but MacKay could have used the report constructively. If he had been sincere in his professed desire that his officers “do it clean”, here was an opportunity to drive out corrupt officers and to reform recruitment, training and management. He would have had substantial political and public support. However, the reaction to a scandal by the affected organisation is often negative and defensive: so it proved in this case.123 Markell, in his report, recognised the importance of the actions of Constable Miller and strongly endorsed his conduct: I should make a special comment with regard to Constable Miller … it is obvious that Constable Miller must have been severely damaged both in respect of his future career in the Police Force, and in the minds of his fellows … Constable Miller in very trying circumstances showed a standard of honourable conduct and a regard for the truth which reflects great credit on him.124

If Miller thought this public vindication would help restore his career, he was to be desperately disappointed. Within days of the report being released, the New South Wales Police Force and its Commissioner set about destroying him.

122 Sherman, Scandal and Reform, The Communist Party took advantage of the opportunity presented by the SP Royal Commission to attack the New South Wales Police Force in just this way. McWilliams, “Our” Police Force, pp. 4–5. 123 Tiffen, Scandals, p. 204. 124 SP Royal Commission Report, p. 95.

CHAPTER 9

The Miller Scandal: Power, Loyalty and Police Culture, 1937

1 Mowlds’ Ham and Beef Shop Revisited: The Response to Scandal On the morning of Tuesday 22 December 1936, just over three years after the fateful raid by Sergeant Daniel Gallivan and his three constables, William Mowlds’ humble ham and beef shop in Dulwich Hill was again visited by the police. The status of the officers of the law, however, had increased to reflect the importance the affair now held. Among the party were the Metropolitan Superintendent, Thomas Lynch and the Commissioner, W.J. MacKay, who had returned from overseas only ten days earlier.1 The object of their interest was an old telephone which hung on the wall in a corridor behind the shop. Could a person talking on the telephone be seen and overheard by someone standing at the counter of the shop? This had been a matter of dispute in the SP Royal Commission. Constable Nelson gave evidence that he had seen and heard Mowlds ring bets through on the telephone. Mowlds had argued that this was impossible, as the phone was obscured. Inspector George Fergusson’s internal inquiry into Mowlds’ complaint, made in December 1933, found that Nelson was right, that a person speaking on the phone could be seen and 1 NSWSR, Prem. Dept. Special Bundles, 9/2470.1, MacKay to Chaffey, 5 January 1937.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Evans, W.J. MacKay and the NSW Police, 1910–1948, https://doi.org/10.1007/978-3-031-10921-8_9

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heard.2 But after visiting the shop premises during the SP Royal Commission, Judge Horace Markell had concluded that Mowlds was right, and that the police must have lied.3 MacKay, however, was determined to test the matter for himself. So he and other police made exhaustive tests, with people standing in different positions, with the door closed, half open and fully open.4 MacKay’s expedition to Mowlds’ shop was made partly for reasons of personal loyalty. Fergusson had worked with MacKay twenty years earlier on the IWW conspiracy case, and both had been promoted for their efforts.5 Now, MacKay’s old mate was in trouble. Fergusson’s inquiry into the Mowlds’ case had condemned Miller as a liar. Judge Markell in turn had condemned Fergusson’s report: “I am totally unable to understand either the conclusions at which he [Fergusson] arrived or the reasons he put forward for arriving at them”.6 Fergusson was overseas at the time of the Royal Commission, attending the Olympic Games in Berlin. Special provision had been made for the New South Wales Police Force rowing eight to represent Australia, providing it paid its own way. Fergusson, the founder of the Police Rowing Club, accompanied the team. The police rowers were not disgraced, but as the official Olympic historian dryly puts it: “the rowing eight had been allowed to make the trip not because it was the best in the land, but because its club could afford to pay its fare”.7 The SP Royal Commission brought to public notice the fact that the Olympic team was not the only body making selections for reasons other than merit. Before Fergusson left, he had been due for promotion to superintendent. He was very anxious to secure this promotion and had, with MacKay’s backing, entered into a complex arrangement which preserved his seniority while he was overseas.8 When Fergusson returned

2 Ibid, Fergusson to Lynch, 4 January 1937. 3 SP Royal Commission Report, p. 95. 4 NSWSR, Prem. Dept. Special Bundles, 9/2470.1. 5 See Chapter 2. 6 SP Royal Commission Report, p. 95. 7 NSWSR, Prem. Dept. Special Bundles, 9/2469, Cabinet background paper on George

Fergusson, n.d. [1939?]; Harry Gordon, Australia and the Olympic Games, University of Queensland Press, Brisbane, 1994, pp. 149–56. 8 NSWSR, Prem. Dept. Special Bundles, 9/2469, Cabinet background paper.

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to Australia, in late November, he found that his personal prospects had been greatly damaged by being adversely mentioned by the Royal Commission. Not a man to shirk a fight, Fergusson wrote a long report on the Mowlds affair, in which he sought to justify his previous actions. He expanded on his suspicions that Miller had backed Mowlds merely to impress his fellow Masons and argued that Markell had been wrong about Constable Nelson not being able to see Mowlds at the telephone.9 Fergusson complained about Inspector Alec Russell, head of the Flying Squad, with whom he had worked on the Mowlds’ inquiry: I had a feeling I was not getting the whole-hearted support of the Inspector and that the information was being withheld by him through the Masonic influence connected with the investigation.10

Fergusson said he had been, from the first, “suspicious of the whole story put forward by Constable Miller”. If Miller had been sincere, Fergusson argued, he would have reported the matter immediately and to senior police rather than his “Masonic friend, Mr Williams”. His suspicions were supported by Miller’s demeanour: it was only with extreme difficulty that I was able to obtain his statement, in fact, I found him, an unsatisfactory, unconvincing and unwilling witness. He was shifty and hedged the issues during the whole of my interview with him.11

To accept Miller’s story would be to accept that three other police had “deliberately concocted” evidence to secure Mowlds’ conviction. I could not imagine a more diabolical action and could not believe that the Sergeant would do such a thing … keeping in mind to the long service and excellent reputation of the Sergeant.12

9 NSWSR, Prem. Dept. Special Bundles, 9/2470.1, Fergusson to Lynch, 4 January 1937. 10 Ibid. 11 Ibid. 12 Ibid.

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Fergusson did not trouble to hide his scorn for “the self-claimed honest man (Constable Miller)”. The whole affair showed that Miller had an: unstable character and total unsuitability for work of a secretive nature … there is very good reason for doubting Constable Miller’s integrity … [he] is a man who cannot be trusted or relied on to tell the truth.13

Fergusson’s report was submitted to the office of the Chief Secretary, Frank Chaffey, appended to a long report by MacKay. MacKay wrote that he had a responsibility to the: great number of honest, decent, reliable and loyal men, who have given their lives to the service … I regard it as my duty and obligation, therefore, to stand by any subordinate member of the Service so long as he does his duty faithfully, conscientiously and loyally and, conversely, to part decisively with that member when he goes wrong.14

MacKay explained in great detail his “tests” at Mowlds’ shop and his conclusion that Markell was wrong about the telephone. MacKay wrote that Fergusson’s report was “a very lucid and definite explanation” of his conduct in the Mowlds inquiry, and added: I hold the Inspector in the highest regard as a Policeman, and investigator and a loyal member of the force, and actually I am at the present time holding in the Office a recommendation that he be promoted to the rank of Superintendent 3rd Class … undoubtedly his further promotion must be prejudiced and retarded if the comments of Counsel and the view of the Royal Commissioner thereon be accepted in their present state.15

The only fair course, MacKay argued, was to reopen the whole matter, by issuing a new commission “either to Judge Markell or some other member of the judiciary”.16 MacKay must be almost alone as a chief of police who actively solicited an inquiry into the affairs of his organisation. Perhaps he was hoping to

13 Ibid. 14 Ibid., MacKay to Chaffey, 5 January 1937. 15 Ibid. 16 Ibid.

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shape the terms of an inquiry which he knew to be inevitable: an inquiry into the administration of the police force had already been considered by Cabinet on 4 January, a result of public pressure following the SP Royal Commission.17 Markell’s specific findings of police dishonesty and the dismissal of so many police had created great disquiet. The official confirmation of such poor conduct, in all its seamy detail, shocked respectable public opinion. The Opposition Leader, Jack Lang, took political advantage and put forward new legislation “placing the police force again under the control of the government”, by repealing the 1934 Amendment to the Police Regulations Act.18 The motion was lost on party lines, but the debate demonstrated considerable concern about the state of the police force among government members: one crossed the floor, and others spoke in favour of an independent inquiry.19 Scandal begets scandal. As Rodney Tiffen argues, secondary themes often emerge as a scandal unfolds, usually involving the official response to the initial disclosures. This secondary scandal can become much more important than the original allegations.20 This was what occurred in the wake of the SP Royal Commission. MacKay’s efforts to limit the damage of the first inquiry backfired spectacularly. The Premier, Bertram Stevens put great pressure on MacKay from the moment he returned from overseas. MacKay’s ship arrived in Sydney Harbour at 2 p.m. on Saturday 12 December. Before he had even disembarked MacKay was given a message to report to the Premier at 4 p.m. that afternoon. Stevens expressed “great concern” about the results of the SP inquiry and asked MacKay to respond to it as quickly as possible. A few days later, Stevens called MacKay in again, repeated his concern and emphasised that he wanted MacKay to ensure that “nothing of the kind would again occur”.21

17 NSWSR, Prem. Dept. Records of Cabinet, 9/3026, 4 January 1937. 18 NSWPD, 16 December 1936, pp. 1288–322. 19 Truth, 20 December 1936, p. 19. 20 Tiffen: Scandals, p. 147. 21 “Minutes of Evidence of the Royal Commission of Inquiry into Certain matters Arising From the Report of the Royal Commission on Police and of Illicit Betting, 1936”, Judge H.F. Markell, NSW PP, 1937/8 JVP, vol. 3, p. 589 [Miller Royal Commission Evidence].

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MacKay later claimed that from the Monday following his return until his report to Chaffey was delivered, on 5 January, he worked punishing hours, from 8.30 a.m. until 2 a.m. the following morning.22 This may have been true, but the focus of his efforts was not a constructive response to the problems revealed in his force. Rather, MacKay’s efforts were directed at discrediting the SP Royal Commission report by reopening the most important case examined, that of William Mowlds. The issue of what could be seen and heard when Mowlds was on the telephone was presented as a question of great moment.23 In truth, it was a distraction. If Mowlds could have been seen and overheard, it was only with some difficulty. Proving this point neither damaged Mowlds’ credit—his assertion that it was “impossible” to see him was a pardonable exaggeration from a distressed complainant—nor proved Constable Nelson’s veracity. Making such an issue of a trivial point was probably intended to legitimise the more important, and more sinister, part of the police strategy: to discredit, and make an example of, Constable Miller. In his report to Chaffey, MacKay wrote: The finding of the learned Judge in respect of the quality of the evidence submitted by the various Police Officers has apparently turned, in a measure, upon his acceptance of Constable Miller as a man of truth and credit, and one displaying a standard of honourable conduct.24

MacKay wanted a new Royal Commission to inquire into a number of charges which had been made against Miller. Clearly, the hope was that Miller’s credit as a witness would be destroyed, taking with it the case against the police.

2 ‘A Bloody Phizz-Gig’: The Persecution of Constable Miller Long before the SP Royal Commission, Miller had been punished for speaking out against his colleagues in the Mowlds case. As a result of Fergusson’s first report, Miller was disrated and placed back on uniform 22 Ibid. 23 NSWSR, Prem. Dept. Special Bundles, 9/2470.1, MacKay to Chaffey, 5 January

1937. 24 Ibid.

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duties in January 1934. That May, Miller was subject of a complaint by his immediate superior, Sergeant Rushbrooke, for using “words subversive of discipline”, specifically: “You’ll regret this, you’ll be sorry”.25 Miller’s defence was that he may have said the words complained of, but he had been greatly provoked. Rushbrooke had been drunk and had abused him, calling him “a bloody liar, and a bullshit artist, all you have ever been was a bloody phizz-gig [informer] and that is why you are back in uniform now”.26 An internal inquiry, conducted by Inspector J. Collings, an officer close to MacKay, found in favour of Rushbrooke, and Miller was dismissed from the force.27 Miller appealed. The Police Appeals Board found that he had said the words complained of, but also that his punishment was grossly excessive. Miller was reinstated, and his penalty reduced to a fine of ten shillings.28 However, Miller was still ostracised by his colleagues: his fellow officers would not speak to him, and Sergeant William Jennings told him to his face that he was “not a man”.29 Collings was promoted to Metropolitan Superintendent, and in that powerful post he singled Miller out for criticism.30 Miller’s experiences fit a pattern. In his study of whistleblowers in Australia, Quentin Dempster describes the usual course of action taken against them: The authorities which attack them seem invariably [to] do so in a highly personalised way. There are accusations of emotional instability, mental illness, drunkenness or obsessive behavior. They can be framed, victimised, harassed, intimidated, coerced. No holds are barred in the effort to destroy discredit or destroy the whistleblower.31

An inquiry by the Independent Commission Against Corruption [ICAC] in 1994 found that police officers who attempted to expose 25 Ibid., “Departmental Inquiry Re Breach of Police Rules by Const. Miller”, 12 June 1934. 26 Ibid. 27 Ibid. 28 Ibid. 29 Truth, 2 May 1937, p. 19. 30 SMH , 28 April 1937, p. 14. 31 Dempster, Whistleblowers, p. 206.

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corruption were subjected to appalling and open harassment.32 Not just those in authority but almost the entire police force moves against the whistleblower. After the SP Royal Commission had concluded, the persecution of Miller reached extraordinary levels. On 10 December, a Sergeant Clark reported an allegation that Miller had accepted bribes from an SP bookmaker, Norman Hill. MacKay ordered an investigation, which was conducted by Inspector J.J. Walsh.33 A former publican, Lightly Logan (his real name), also accused Miller of taking bribes from a sly-grog operation, and this charge, too, was investigated.34 Miller was interviewed for more than two days about the matter by Inspector Walsh, who was one of MacKay’s trusted inner circle. Walsh pressed Miller many times to reveal the name of a fellow constable connected to the case, and when Miller refused Walsh threatened to charge him with disobedience. Miller began to show signs of great strain. On 18 December, Miller was taken home by two detectives, and his writing desk was searched in front of his wife, Mary, and their child. Mary Miller was in “a nervous and tearful condition”.35 The following day, a Friday, Miller was again examined at Police Headquarters. Walsh and another officer, Sergeant Sherringham, bullied him, slammed the police regulations on the table and threatened to have him dismissed. Sherringham accused him of lying: “You are putting it over, those stunts won’t work”.36 Miller later claimed that the record of interview was incomplete, as Walsh had told the shorthand writer to take down only the version of events least favourable to Miller.37 After the interview Miller returned to his station, at Newtown, and there was notified that he would be required again at Headquarters the following Monday. That Sunday, a story appeared on the front page of Truth. Miller’s wife had spoken to the paper (without Miller’s knowledge) complaining that

32 ICAC, Police and Criminals, pp. 58–65. 33 “Report of the Royal Commission of Inquiry into Certain matters Arising From the

Report of the Royal Commission on Police and of Illicit Betting, 1936”, Judge H.F. Markell, NSW PP, 1937/8 JVP, vol. 3, p. 12 [Miller Royal Commission Report]. 34 Ibid., p. 16. 35 Ibid., p. 23. 36 Truth, 18 April 1937, p. 21. 37 Miller Royal Commission Report, p. 25.

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her husband was being victimised by Commissioner MacKay. “Scandalous secret action against honest constable”, ran the front page headline, along with a photograph of Mary Miller and the couple’s four-year-old daughter, Lorraine.38 On Monday, 21 December, Miller did not report at Police Headquarters as he had been ordered. At 1 p.m., he presented at Newtown police station. Asked why he had not obeyed his instructions, he said that he had quarrelled with his wife over what had appeared in Truth, and that she had left him. He was worried and had forgotten, he said.39 He was sent to Headquarters, where he arrived at 2 p.m. An hour later, he was asked to sign a statement about the Hill inquiry, but he refused. He was then paraded before the Commissioner. MacKay made a note: I was struck by his nervous condition today which to me seemed very obvious; one also noticed when speaking to him that he had a far-away and unsettled look about him … he appeared considerably upset and extremely nervous.40

MacKay told Miller he would be “placed on light duties”. This meant in practice that he was to clean Newtown police station “from top to bottom”.41 Miller then signed the statement and left Police Headquarters. He did not return home but bought a ticket on a country train. He missed his stop and was found asleep at the end of the line in Nyngan, 70 miles north-west of Dubbo. He left the train and was next found at 7 p.m. on Tuesday night, at a farm, nine miles outside the town. He was unable to say who he was or how he had come to be there. The next day Miller remembered his identity. He reported to the local police and was placed on a train back to Sydney.42 Commissioner MacKay learned that Miller had failed to report for duty at about 11 a.m. on 23 December. He gave instructions that Miller should be found, and telephoned Premier Stevens. MacKay told Stevens that

38 Ibid., p. 24; Truth, 20 December 1936, p. 1. 39 Miller Royal Commission Report, p. 24. 40 Ibid. 41 Miller Royal Commission Evidence, p. 655. 42 Miller Royal Commission Report, p. 36.

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Miller had disappeared, and that he suspected this was a deliberate act, a newspaper “stunt”: which will probably be exploited soon, and [I] assure you that all is well in the Police Force and that this matter, along with others, will be dealt with in a calm level-headed manner in keeping with the best traditions of the New South Wales Police Service.43

Miller arrived back in Sydney on Christmas Day. He was examined by the Police Surgeon, Dr Percy, who found that he was: “Depressed and emotionally unstable, occasionally breaking down”. Miller was again interviewed by MacKay, and given some time off. He resumed duty on 2 January and was given “light duties”, washing cars in the police garage.44 MacKay asked Inspector Walsh and sergeants Sherringham and Sweeney to investigate what had happened to Miller. Sergeant Sweeney, travelled to Nyngan, and collected statements. The result was a report by Walsh which expressed the opinion that Miller went to Nyngan “for some motive not disclosed” and that he “knew what he was doing”.45 Miller’s breakdown did not make senior police pause in their inquiries. To the contrary, there was a blizzard of complaints. On 27 December, an investigation began into allegations Miller had urged suspects to plead guilty to SP offences. The initial investigation found that the complaint should be dropped, but Superintendent Collings did not accept this recommendation, and pressed the charge.46 On 5 January, Constable Charles Pike made allegations that Miller had improperly revealed to him information about the Mowlds case.47 On the same day, an investigation began into an accusation that Miller had planted false evidence.48 On 8 January, an investigation began into an accusation he had unlawfully entered premises: a reopening of a complaint dating from 1933.49 Two complaints against Miller of mistreating a suspect, both dating from

43 Ibid. 44 Ibid., p. 23. 45 Ibid., p. 29. 46 Ibid., p. 17. 47 Ibid., p. 22. 48 Ibid., p. 20. 49 Ibid., p. 18.

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1932, were reopened on 21 January.50 On 18 February, an allegation was made that Miller had sold a car knowing it to be stolen. An investigation followed.51 Miller’s health was badly affected. Mary Miller later said that after the investigation into the Hill matter began, her husband became uncommunicative, worried and unable to sleep. He began to smoke heavily—he had previously been only an occasional smoker—and aged perceptibly.52 Only 33, his hair turned almost completely white.53

3 ‘The Fear’: Power, Police Culture and the Code of Silence The extraordinary vindictiveness of the campaign against Miller requires some explanation. There were individual police who had grudges against him, but the willingness of other officers to join in persecuting him seems, to outside eyes, inexplicable. Police have a distinct sub-culture, the “brotherhood”. Among its characteristics are an unusually strong sense of group loyalty and especially the unwillingness to inform on fellow officers. Wood Royal Commission Report put it bluntly: “The significance of the code of silence, which is an incontrovertible and universal product of police culture, cannot be overstated”.54 Robert Riener argues that the police culture allows the police to reconcile the many contradictions and pressures of their job. A particular problem is the social isolation experienced by police, who tend to lose non-police friends. Such isolation makes solidarity necessary; that solidarity in turn exacerbates isolation.55 Group solidarity is not unique to law enforcement, but the trait is unusually strong in police forces.56 It is difficult for individuals to stand against group norms, even in relatively open and tolerant communities.

50 Ibid., p. 21. 51 Ibid., p. 22. 52 Truth, 2 May 1937, p. 19. 53 Truth, 20 December 1937, p. 1. 54 Wood Royal Commission Report, vol. 1, p. 33. 55 Reiner, Politics of the Police, pp. 109, 115. 56 Chan, “Police Culture”, in Dixon A Culture of Corruption, pp. 103–4.

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In police forces, it is very nearly impossible.57 Arthur Neiderhoffer argues that the police world view is dominated by a Hobbesian bleakness: society is innately corrupt, everyone is out for themselves, and only a fool would not do the same.58 In such a world, almost the only positive value police can cling to is loyalty. Any breach of the code of silence, then, is seen as gross betrayal and severely punished. The police group protects itself through silence and secrecy. The whistleblower, or “dog”, is an outcast.59 Miller’s moral courage in taking his stand, and persevering with it, is difficult to overstate. This was tacitly recognised by Richard Windeyer, when he argued before the SP Royal Commission that Miller’s colleague on the Mowlds raid, Constable Perrett, should not be harshly punished for having given perjured evidence against Mowlds. Perrett, Windeyer said: possibly would have been ostracised and treated as someone to be avoided because he did not back up what the rest of the squad had said. It would require a young man of very strong character and unusual fortitude to do this.60

But Windeyer’s attitude to Miller, who had shown just such fortitude, was decidedly ambivalent: It may be that Miller is that class of character which we call, more or less, a prig, a superior man—a man who takes up the attitude that he is better than the other man. That is partly the reason why he is different from his associates and I think sometimes weakly we feel we prefer the man who in these matters sticks to a comrade than the man who is determined to tell the truth. It is wrong of us, but we are all of us human.61

Police are particularly well placed to understand the importance of group loyalty. Their own professional careers are often built on persuading

57 Hilton, “Psychology and police work”, in Alderson and Stead, The Police We Deserve, p. 100. 58 Arthur Niederhoffer, Behind the Shield, p. 9. 59 Bolen, “The police culture”, p. 133. 60 SMH , 11 August 1936, p. 12. 61 SP Royal Commission Evidence, p. 1378.

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criminals to betray their “mates”.62 There is a strong connection between police corruption and the code of silence. Shared involvement in corrupt activity becomes a demonstration of group loyalty which actually strengthens “solidarity and mutual trust”. Equally, “betraying” corrupt colleagues seems a greater breach of the code when the offender has himself taken part in corrupt activity.63 This may have been case with Miller. The practice of framing people on SP offences seems to have been so widespread he could scarcely have avoided it.64 Judging from the reported conversations between Miller and Gallivan at the time of the Mowlds raid, Miller’s unhappiness was not caused by the framing of Mowlds as such, but that Mowlds was innocent.65 W.J. MacKay regarded loyalty as a cardinal virtue. In his first lecture to special squad police, in August 1932, he waxed lyrical on the subject: a matter which has … been brought home very quickly to me and very forcibly; that is the necessity for loyalty. Unless a man is honourable in the Police Service, honourable to his comrades, honourable to his officers, honourable to his department, he is not much good … Loyalty to the Department and loyalty to your Divisional officers is a good individual consideration for every man in the service, because when you give loyalty you get loyalty, when you give disloyalty you get disloyalty.66

The Miller case demonstrates in stark detail one of the dark sides of the police culture. Just as the Janus-face of working-class solidarity is the victimisation of “scabs”, so the police brotherhood is pitiless in its treatment of someone who breaks ranks. In Queensland during the Terry Lewis era, there was even a word for the intimidation of honest police by corrupt officers: it was called the Fear.67

62 Findlay, Mark, “‘Acting on information received’: mythmaking and police corruption”, Journal of Studies in Justice, vol. 1, no. 1, December 1987, pp. 20–1. 63 Simpson, Police Corruption, p. 19. 64 Miller Royal Commission Report, p. 39. 65 Wood Royal Commission Report, vol. 1, p. 25. 66 SP Royal Commission Report, p. 123. Miller was on the Special Squad at the time,

but he does not seem to have been present at this lecture. 67 Jack Herbert and Tom Gilling, The Bagman: Final Confessions of Jack Herbert, ABC Books, Sydney, 2004, p. 326.

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4 ‘Is Const. Miller Victim of Police Terrorism?’: The Extension of Scandal In the wake of the SP Royal Commission, the case of Constable Miller gradually became a cause celebre. Truth, Ezra Norton’s popular Sunday newspaper, was the driving force. The day after MacKay arrived back in Australia, the paper published a full page “open letter” to the Commissioner, declaring: “During your absence, the N.S.W. Police Force, of which you are the head, has been rocked to its foundations by perhaps the gravest scandals in its history”.68 Along with the SP scandal, the paper cited a list of unsolved murders, allegations of police bashings, discipline problems in the force, the lax enforcement of liquor laws and the failure to suppress nightclubs. Truth reiterated its support for MacKay as “the outstanding man for the job of Police Commissioner”, but with the rider: “Now you have your big chance to clean up the police force in your own way”.69 The following week, during which the departmental charges against Miller began, Truth took up the Miller case without reserve. Beginning with its front page interview with Mary Miller, Truth began a bold campaign. Alone among the Sydney press, Truth saw that the SP Royal Commission’s conclusions were too limited. The paper identified a systemic failure. The problems revealed by the Royal Commission, it argued, were a failure of the police organisation as a whole “from the bottom, where recruiting begins, to the top, where great powers are exercised”.70 Truth criticised the insular defensiveness of senior officers—the result of “years of brow-beating and unquestioned authority”—promotion on the basis of seniority, the dubious relationships of detectives with informers, and secret and unaccountable internal disciplinary processes.71 Nothing in the paper’s reportage supported MacKay’s suspicions that the paper orchestrated Miller’s disappearance, but a few days after his return from Nyngan, Miller was contacted by Truth staff, who took him to see Ezra Norton.72

68 Truth, 13 December 1936, p. 15. 69 Ibid. 70 Truth, 27 December 1936, p. 13. 71 Ibid. 72 Truth, 18 April 1937, p. 21.

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For such an important figure in development of the Australian press, Ezra Norton is a neglected figure, perhaps because he shunned publicity and was overshadowed by his larger-than-life father, John, the founder of Truth.73 Ezra Norton was “a lone wolf, an enigma”.74 He was prey to strange fears and psychosomatic illnesses, but was also resolute. According to Michael Cannon, he “never hesitated … to stand up to any enemy acquired during a long career as an owner of sensational newspapers”.75 Norton told Miller that he had had “a rough spin” and that Truth would take up his case. Norton paid for Miller to see a specialist about his health and engaged J. Shand, a leading barrister, to represent him.76 Norton reportedly told Miller that his case was “one of public interest”.77 Whether Norton was acting out of public spiritedness, or sensed a good story, or wished to pursue some personal vendetta, can only be guessed at. Whatever the motive, Truth pursued Miller’s case with energy, and the paper’s attitude to MacKay gradually hardened. “Is Const. Miller Victim of Police Terrorism?” howled the front page on 3 January, condemning the “Mussolini-like Attitude of Commnr. MacKay”.78 The attacks on MacKay became personal—the paper sarcastically called him “a great he-man with hair on his chest”—but again Truth showed perception, recognising that MacKay’s actions against Miller were part of a campaign to undermine the whole report of the SP Royal Commission.79 The Miller case was gaining wider attention: again the process of mobilising scandal was under way. The Daily Telegraph, which usually supported MacKay, raised the issue in an editorial: “Constable Miller continues in uniform, still being punished for behaviour so highly commended by a Judge”.80 The paper attacked the Chief Secretary, Frank

73 Sandra Hall, Tabloid Man: The Life and Times of Ezra Norton, Fourth Estate, Sydney, 2008. 74 Walker, Yesterday’s News, p. 79. 75 Michael Cannon, That Damned Democrat: John Norton, an Australian Populist,

1858–1916, Melbourne University Press, Melbourne, 1981, p. 51. 76 Truth, 18 April 1937, p. 21. 77 Ibid. 78 Truth, 3 January 1937, p. 1. 79 Truth, 31 January 1938, p. 1. 80 Daily Telegraph, 5 January 1937, p. 4.

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Chaffey, for his lack of action. “This is not a case of the career of one man. It is a case in which the administration of justice is in question”.81

5 ‘It Humiliates Me’: The Miller Royal Commission On 10 January 1937, Premier Stevens contacted Judge Markell asking him to conduct a new inquiry. Markell agreed. The Royal Commission began hearing evidence in March. The inquiry was initially framed in the terms MacKay had hoped for. There was no hint of a broad inquiry into the police force and its administration: Markell was to conduct a new inquiry into the Mowlds’ case, examine the conduct of Inspector Fergusson and assess the departmental charges against Miller.82 The Miller Royal Commission was a disaster for the New South Wales Police Force and its Commissioner. MacKay had obviously hoped that his “scientific” reinvestigation of the Mowlds case would discredit Mowlds and Miller, and, by extension, the whole SP Royal Commission. The reverse was true. Richard Windeyer, who was again counsel assisting the Royal Commission, completely destroyed Fergusson in the witness box. Fergusson was shown to have ignored major discrepancies in the testimony of the other three police involved in the Mowlds raid. Windeyer demonstrated that the “evidence” on which Fergusson had concluded that Mowlds was an SP bookmaker all derived from one hearsay report from a man with a personal grudge against Mowlds. Even this story, when traced to its source, was found to be untrue.83 Eventually, Inspector Fergusson was forced into admitting that he had been wrong. He publicly retracted the opinions expressed in the report and said that he had been mistaken in his view of the Mowlds case.84 The main issue then became whether Miller had been unjustly dealt with.85 The Royal Commission examined the many accusations which had been made against Constable Miller. Characteristically, Markell examined each and every allegation scrupulously, fairly—and in isolation. Excuses 81 Daily Telegraph, 11 January 1937, p. 4. 82 Miller Royal Commission Report, p. 1. 83 Truth, 28 March 1937, p. 15; 4 April 1937, p. 17. 84 Truth, 28 March 1927, p. 1. 85 Miller Royal Commission Report, p. iii.

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can be made for Markell’s failings in the SP Royal Commission, but his blindness to the pattern of organisational behaviour revealed in the treatment of Constable Miller seems almost wilful. Markell found that Miller was unwise to have associated with Norman Hill, who was a known SP bookmaker, but apart from that he found that none of the charges against Miller could be sustained. He found that there was strong circumstantial evidence that Inspector Walsh and Sergeant Sherringham had collaborated by altering evidence in an effort to make Miller look guilty. Sherringham, too, was found to have devoted almost the whole of his time for more than a month to investigating various complaints against Miller.86 Despite all this, Markell found that the police had acted fairly and that the charges against Miller had not been pursued in an effort to discredit or harass him.87 Markell seems to have been oblivious to the possibility that a rapid series of official investigations, no matter how fair, can be a form of harassment. That they were so intended seems obvious to modern eyes, particularly as every effort was made to sully Miller’s character. For example, MacKay passed on a note to Walsh and Sherringham, telling them that there was a family by the name of Meygar who lived in the Nyngan district. The note said that Miller had been “very friendly with a young woman named Meygar”.88 The implication was that Miller was having sexual relations with the Meygar girl, who was blind. This allegation, which had been made via an anonymous phone call to MacKay, was untrue. Another charge of sexual impropriety was aired at the Commission and again found to have no substance.89 A key question was the origin of the charges against Miller. If they had come from within the police force, the argument that he was the victim of a deliberate campaign was much stronger. The police maintained that the complaints were unconnected to each other, and had come mostly from the public. In his report, Markell wrote: I cannot see anything in the evidence which would lead me to believe that the numerous complaints against Constable Miller from the 10th

86 Ibid., pp. 16, 29. 87 Ibid., p. 22. 88 Miller Royal Commission Report, pp. 32, 34. 89 Truth, 18 April 1937, p. 21; 2 May, p. 19.

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December, 1936, to the 9th March, 1937 originated from within the Police Force.90

This finding is inexplicable. It was not contested in evidence before the Royal Commission that at least four of the complaints were made in the first instance by police officers.91 The others, on examination, all revealed troubling connections. Inspector Walsh told the Royal Commission that when MacKay had first briefed him to investigate Miller’s conduct, MacKay had warned him that “some spirit may have been moving against Miller”.92 Likely identities of that spirit were not hard to guess: Daniel Gallivan had been dismissed, and George Fergusson’s cherished promotion had been jeopardised, because Miller had broken the code of silence. Norman Hill and Lightly Logan, who both alleged they had paid Miller bribes, knew each other. They were both also on first name terms with Gallivan.93 An allegation that Miller had pursued a woman who worked at Snow’s department store had originated with another police officer, Constable Colin Sinclair, who lived next door to Norman Hill. Sinclair’s immediate superior was Sergeant Randall. Randall had assisted Inspector Fergusson in his inquiry into the Mowlds case and had been the actual author of much of Fergusson’s two reports on Miller.94 That Fergusson and Gallivan were behind the attacks on Miller seems obvious. They had the motive and the means, and they also had considerable support within the wider police force. The most spectacular example was the decision by the Police Officers’ Association to elect Fergusson as its president in January 1937.95 The attempts to discredit Miller continued in the Royal Commission itself. Mary Miller was subjected to a humiliating cross-examination by W. Sheahan, a barrister who appeared for Fergusson and Gallivan. Sheahan pressed her about the history of her marriage. She was forced to discuss

90 Miller Royal Commission Report, p. 38. 91 Ibid., pp. 17–22. 92 Truth, 18 April 1937, p. 19. 93 Truth, 4 April 1937, p. 17. 94 Truth, 2 May 1937, p. 19. 95 SMH , 30 January 1937, p. 17. This body represented officers ranked sergeant first

class or higher, and was separate from the rank-and-file Police Association.

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an occasion in which she had gone to Petersham Police Station “in your slippers” to complain about her husband. Sheahan also extracted an admission that she had once been to see a solicitor to ask advice about a possible divorce. Mary Miller broke down in tears, saying that “They are trying to bring up all the nasty things about me”, and told Sheahan: “You are trying to break up our home. It never will be”.96 What Sheahan was trying to extract from Mary Miller was that her husband had once beaten her. An anonymous complaint, received on 27 January 1933, “referred to Constable Miller as a wife basher and gave the names of certain people who could give information”.97 Extensive inquiries were made, and these appeared to support the allegation that, on one occasion in 1933, Miller did hit his wife. This evidence needs to be treated with caution, however. It was never properly tested, and MacKay first used the information in such a way that it never would be tested. He sent the report on this and some other allegations to Chaffey “for information”, as “I do not regard them as being of material importance in connection with the forthcoming royal commission”.98 Almost certainly, MacKay was being disingenuous. The report “for information” was a way of damaging Miller in the eyes of senior government ministers, and perhaps starting rumours, without giving Miller an opportunity to defend himself. Such damaging personal smears frequently are used to damage whistleblowers.99 Trying to raise such personal allegations in the Royal Commission, particularly in the bullying manner Sheahan adopted, was a risky strategy. It reflected desperation on the part of the police. Even MacKay began to show strain. On 14 April, J. Shand, the barrister Ezra Norton provided for Miller, was cross-examining Inspector Walsh. He asked Walsh whether Sergeant Sherringham was regarded as “the prime bully of the force” and whether MacKay was responsible for sending him to Nyngan to question Miller. MacKay was present and angrily interjected: “I resent that

96 Miller Royal Commission Evidence, p. 440. 97 NSWSR, Col. Sect. Correspondence, 12/7553, MacKay to Chaffey, 9 March 1937. 98 Ibid. 99 Petter Gottschalk and Stefan Holgersson, “Whistle-blowing in the police”, Police Practice & Research, vol. 12, no. 5, 2011, pp, 397–409. See also Darren Goodsir, Line of Fire: The Inside Story of the Controversial Shooting of Undercover Policeman Michael Drury, 2nd ed., Allen and Unwin, Sydney, 1995, pp. 124–33.

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very much from you or anyone else. Why don’t you say that somewhere else?”.100 Shand then said that documents which favoured MacKay were quickly produced, while those which were damaging to him were “not available”. MacKay jumped up from his seat and shouted that he was not going to allow such vicious attacks.101 Truth responded to MacKay’s “hysterical outbursts” with some nearhysteria of its own: Last week was revealed the real MacKay—the Hitler of the New South Wales police force, Mr W.J. MacKay, police commissioner. He has become the great I AM since the State Government created him the omnipotent Csar of the New South Wales police force. Mr MacKay has bared his teeth … Parliament must deal with the situation, which is reaching an alarming state. Public confidence in the police force is being sapped, the police commissioner is defiant and the Chief Secretary a complacent and plastic figurehead …102

Shortly after this episode, MacKay was admitted to hospital. He required an operation for a hernia, but it was also likely he was suffering from exhaustion and stress.103 He was discharged and appeared to again testify at the Royal Commission on 24 May, still obviously ill. A reporter described him as “Several times … on the verge of collapse”.104 MacKay’s appearance was important, because the Royal Commission had become a sustained attack on him and his leadership of the Police Force. Shand had outlined ten “charges” against MacKay, which Markell formally considered. MacKay was accused of having deliberately set out to discredit Miller by opening or reopening obviously baseless charges against him, of having tried to destroy Miller’s reputation by lying and concealing information, and with misleading the Royal Commission.105

100 SMH , 15 April 1937, p. 11. 101 Ibid. (This exchange was not recorded in the transcript of evidence.). 102 Truth, 25 April 1937, p. 15. 103 Miller Royal Commission Evidence, p. 652; SMH , 30 April 1937, p. 11. 104 SMH , 25 May 1937, p. 8. 105 Miller Royal Commission Report, pp. 32–7.

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MacKay told the Commission that “I do not believe that Miller had anything to do with the drawing up of the ten charges against me”.106 This was almost certainly true: probably Ezra Norton’s hand was behind the document. If so, the “charges” were ill-considered. It was questionable whether Markell should have accepted them, as they were not part of his terms of reference. They also muddied the waters and to some extent allowed Markell to find excuses for MacKay as the “charges” were vaguely worded and difficult to substantiate. Pressed by Shand, MacKay maintained that Miller’s disappearance and the subsequent publicity about it had been the work of Truth. Miller had been “driven from pillar to post by various influences”, he said.107 Shand: MacKay: Shand: MacKay: Shand: MacKay: Shand: MacKay: Shand: MacKay: Shand: MacKay: Shand: MacKay:

Have you the slightest evidence that he [Miller] planned this thing? I have no evidence at all. Yet it is still your opinion. It is my opinion … … he had planned to go away? It might have been planned for him … He acquiesced. For what purpose? A campaign. Against you? Not against me, but just a campaign to make newspaper profits. Was it a campaign against the police? It must have been against someone. If it were against the police it would naturally affect you as head of the police? It humiliates me.108

At the end of his testimony, MacKay made an impassioned address to the Commission. It was, in effect, an admission that Miller had been persecuted and a plea for mercy for those officers involved, especially Walsh and Sherringham. MacKay said the two royal commissions had 106 Miller Royal Commission Evidence, p. 597. 107 Ibid., p. 596. 108 Ibid., pp. 596–7.

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been “an awful lesson to the police force of New South Wales and to the officers of the police force and to myself”.109 At the same time, he did not: regret one act that I have done, and I feel sure that the officers who are associated with me have done their duty as they believed it to be in a clear and conscientious manner.110

These contradictory messages were explained in terms of human failings: We, in the police force, have to make the best we can of the material that is available; the material is from the people, and when we get it has the faults of the people.111

Some police were naturally virtuous, others were not, and many more began with good intentions but “fall away from the virtues they possessed”. This happened, but “not for want of trying” to prevent it.112 Inspector Walsh, he said, was a country lad, “born on a farm outside of Uralla, bred in the bush, educated in a little schoolhouse—probably on the side of a creek”. He had joined the police force as a young man and gradually rose through the ranks. “Time goes on and this man, like myself and other men, get into high positions”. Positions which, MacKay implied, they were not capable of filling. “We have no legal training; in fact, in the police force we have no legal men to advise us”. Thus, when police were required to “apply a judicial mind”, as was the case in internal investigations, “although they think they are marvelous, that is not so”.113 Walsh, in other words, was not really to blame. It was his simplicity and lack of education which was responsible for the errors and prejudice in his reports. The same, MacKay said, was true of Sergeant Sherringham “another man, a country born, Australian-bred lad, who has not got an impressive manner. That is a thing he cannot help”. Sherringham had been suddenly: 109 Ibid., p. 612. 110 Ibid. 111 Ibid. 112 Ibid. 113 Ibid., p. 613.

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thrown into this matter here. He does not know and he does not appreciate just what he should do. He is back as a detective, just as he was years ago when employed on railway detective work, investigating railway criminals. He cannot discard that feeling that he is chasing somebody; he does not mean to do it.114

Many of the police who had been dismissed after the SP Royal Commission, MacKay said: joined the force as clean-living men as ever stepped over a five-rail fence in the country, with a bag on their back bound for the metropolis to take up a career … When these men came to Sydney they were decent men. They got into an environment they did not seek; an environment that had grown up by years competition and getting cases—a system that I have condemned ever since I was a uniformed man. It is hard, however, for the older men to divorce themselves from a practice that became ingrained in them, and even though I pleaded with them I have a feeling that some of them put their tongues in their cheeks and that some of them went away and did it again. Now it is very hard for a young man to antagonise himself against the sergeant and some others. He is on the threshold of his career, he is torn in a dilemma …115

It is hard to accept MacKay’s sincerity. He was willing to make excuses for young police led astray by their sergeants, but his conduct in the Miller case was dubious, at best. There is no direct evidence that he instituted the campaign against Miller. However, the circumstantial evidence that he was aware of and condoned it is overwhelming. All but the first complaint against Miller was made after MacKay’s return from overseas. MacKay approved all the charges against Miller and allocated astonishing resources to pursuing them: at one point, there were 30 detectives investigating Miller.116 His reports endorsed Fergusson’s virulent attacks on Miller, and much of the information he passed on to Chaffey was almost certainly calculated to blacken Miller’s reputation. “Be clean and straight. Do the honest thing”, MacKay had told the assembled members of the special squads, in 1934. “I want to tell you young fellows; never mind what the other fellow says; whatever you do, 114 Ibid. 115 Ibid. 116 SMH , 5 May 1937, p. 15.

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do it clean”.117 Miller had revealed exactly the sort of corruption MacKay had condemned. Even if MacKay did not consciously connive with those attacking Miller, he had a duty to protect the constable, a duty in which he failed completely.

6 ‘Dangerous Men’: The Redemption of Sergeant Chuck It is instructive to compare Constable Miller’s experience with that of Sergeant Joe Chuck, the high-profile Flying Squad officer whose spectacular career was described in the previous chapter. Chuck was adversely mentioned in the SP Royal Commission. He had been in charge of constables Bailey and Fletcher and Police Agent Collins when they arrested one Thomas Dawson at the Australian Hotel, Miller’s Point, in November 1933. Dawson was charged with tote betting, convicted and fined £2.118 The police case relied on the evidence of Collins and Fletcher, who said they had seen Dawson accepting money for bets, and that they had overheard him place the bet with another bookmaker. Collins and all three police, including Chuck, said that Dawson had made incriminating statements.119 Markell found that Dawson was not betting, that he had not accepted the money or placed the bet. Of the alleged admissions of guilt, Markell wrote: “The Police evidence of this happening is given in very similar terms, and I utterly disbelieve it… This is another example of a concocted admission …”.120 The Dawson case was not the only occasion that serious allegations were made against Chuck. Carlo Lazzarini told Parliament of a case in which a young man with no prior record had been convicted of taking bets on Chuck’s evidence. Chuck in turn relied on Police Agent Collins, the same man found to have been dishonest in the Dawson case. Chuck admitted in court that he actually wrote Collins’ statements for him.121 Another member of Parliament, D. Clyne, accused Chuck of harassing people, of urging people to plead guilty and then persecuting anyone 117 SP Royal Commission Report, pp. 124, 127. 118 Ibid., p. 30. 119 Ibid., pp. 30, 35. 120 Ibid., p. 35. 121 NSWPD, 3 March 1936, p. 2316.

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who failed to do so. Clyne cited a specific case, in which a woman was framed on SP charges by Chuck because she had made a complaint after witnessing Chuck and another officer beat a young man they were arresting.122 Chuck’s relationship with another police agent, Charles Mooney, also raises questions. Mooney was found by the SP Royal Commission to have planted fake betting slips in order to frame a man on SP charges.123 It was revealed that Mooney had previously been suspended from police work after it was alleged that he was frequently drunk and that he, along with two other agents, had given perjured evidence in a sly-grog case. He had been reinstated because Chuck had written a report describing Mooney as reliable.124 At the SP Royal Commission, MacKay had stressed his dislike of police agents. He said he was opposed to their use and had tried to reduce their numbers. He said the amount of money paid out to agents had been much reduced.125 After MacKay had restructured the special squads, he claimed that there had been an increase in the numbers of arrests and the amounts of fines collected, at the same time as there being a reduction in payments to informers.126 MacKay said of paid informers: “we are gradually cutting them out as quickly as we can”. Windeyer asked MacKay: “You know that these informers are dangerous men every often?”. MacKay: Windeyer: MacKay:

Absolutely. And the prospect of reward is the thing that makes them very dangerous people? Yes.127

MacKay told the Commission:

122 NSWPD, 3 March 1936, p. 2330. 123 SP Royal Commission Report, pp. 34–7. 124 SMH , 27 March 1936, p. 9. 125 SP Royal Commission Evidence, p. 4. In 1931, before he took over as Metropolitan Superintendent, rewards paid for information amounted to ₤4,575. Ibid., p. 121. 126 SP Royal Commission Evidence, p. 65. 127 Ibid., p. 66.

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mostly an informer has failed in some other walk of life, and he is out of a job, he is not fond of hard work, and he looks for a soft job, and I have always treated them with suspicion because I felt that they were out to make money by selling information, and I have warned every officer against them. Every police officer that is worth the name knows that he should not believe them unless the evidence was absolutely corroborated.128

Again MacKay’s actions belie his rhetoric. Because of the SP Royal Commission report, Chuck and Bailey were dismissed from the force. MacKay was still overseas at this point, and Thomas Lynch was acting Commissioner. Lynch told the Police Appeals Board: Seeing that the Royal Commissioner had found that these men had concocted evidence . . I considered that they were not fit men to remain in the Police Force of this state.129

Two former commissioners, James Mitchell and W.H. Childs, gave evidence to the Board of Chuck’s good character and excellent record, and the Appeals Board upheld his appeal.130 (Constable Bailey’s appeal, too, was successful.) It was, Vince Kelly writes: “a signal triumph for Joe Chuck, who was to go on to fresh success”.131 This is a generous interpretation of the outcome. The Board’s decision was entirely technical: it found that Chuck and Bailey had not received procedural fairness, as Lynch had dismissed them on the basis of the evidence before the Royal Commission. The Board’s decision was legally correct, but the substantive issue of whether the police had given untrue evidence was not addressed.132 Commissioner MacKay was, Kelly writes, a “close personal friend” of Chuck and unfailingly supportive of him in his career. He once told Chuck: “You have the guts and the brains to be one of the top men of

128 Ibid., p. 67. 129 NSWSR, Prem. Dept. Special Bundles, 9/2475.1, Police Appeals Board, appeals by

Chuck and Bailey, minutes of evidence, 4 February 1937. 130 Ibid.; SMH , 2 April 1937, p. 11. 131 Kelly, The Bogeyman, p. 7. 132 SMH , 3 April 1937, p. 17. The Board did not address the cases of the other 13 police dismissed. They had been dismissed at the direction of the Minister, so the Board had no jurisdiction.

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the force”.133 This was referring to an officer whose astonishing efficiency in the detection of SP and sly-grog offences depended almost entirely on those “dangerous men”, police agents and informers.

7 ‘A Very Severe Ordeal’: The Consequences of Scandal Shand drew attention to MacKay’s apparent hypocrisy at the Miller Royal Commission. He told Markell that MacKay: was always against Miller and had determined to destroy Miller. He hoped that Miller would go, and in his secret heart, I suppose, he hated him for all the trouble that he, a mere constable, had caused to the police force.134

Markell, however, did not agree. He found that Fergusson had been wrong in his reports about the Mowlds case and Miller’s conduct, but he accepted that Fergusson had been honestly mistaken.135 He found that the charges against Miller were almost entirely without merit: and that when they were made, it is apparent to me that no effort was spared to sheet them home, if possible against the constable. The efforts which were made to check up and verify in every respect what he said, and to investigate every incident which might bring discredit on him, demonstrates this.136

And yet: “This does not of necessity amount to unfairness injustice”.137 Again, Markell had been presented with evidence of immense value. Laid out before him was detailed picture of how the police force reacted when an officer revealed criminal conduct by his colleagues. It was an ugly pattern, since repeated many times. The corrupt officers are protected by the code of silence; every effort is made to isolate, demoralise, smear and

133 Kelly, The Bogeyman, p. 205. 134 Miller Royal Commission Evidence, p. 656. 135 Miller Royal Commission Report, p. 7. 136 Ibid., p. 38. 137 Ibid.

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intimidate the honest officer; and police leaders condone, or at least fail to act against, this vicious persecution. ICAC identifies the police culture and its ingrained hostility to whistleblowers as a major problem. To reduce corruption within its ranks: “The Police Service must not only encourage officers to report misconduct, it must also support those who do”.138 Despite policies designed to achieve this, “from what is known of the prevailing police ethos … considerable work will be needed to gain acceptance for this policy”.139 The police ethos, of group loyalty at all costs, crucified Mendelssohn Miller. Judge Markell understated matters in his report: the constable has undergone a very severe ordeal in connection with these investigations, and has been amply punished for anything which he may have done or omitted to do … I recommend that no action be taken against him departmentally, and that he not be penalised in any way… Constable Miller should [from this point on] be treated as a constable of a given number of years service without anything against his character.140

Miller can have taken little comfort from these words, given his past experiences. However, he remained in the police force, and after Markell delivered his report, he was returned to ordinary duties.141 His subsequent career was less than meteoric. He was promoted to constable first-class in 1940, and senior constable in 1947, and at this rank he remained until he retired in 1963. His name faded from the news. Whether he became bitter, or was just happy to lead a quiet life, I have not been able to discover. His endorsement on discharge was “very good”, which is only lukewarm in the lexicon of police service cards. (The conduct of William Jennings, by contrast, was said to have been “excellent”.)142 This could reflect mediocre service or, just as likely, lingering bitterness against him.

138 ICAC, Police and Criminals, p. 59. 139 Ibid., p. 65. 140 Miller Royal Commission Report, p. 38. 141 SMH , 17 September 1937, p. 12. 142 NSWSR, Police Dept. Files, AK724, Police Service Cards, Mendelssohn Bartholdy Miller; William Patrick Jennings.

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Constable Mendelssohn Miller deserves to be better remembered.143 He was not perfect, but under almost unendurable pressure his honesty and strength of conviction were remarkable. His lonely courage opened up the operation of criminal police power to unprecedented public scrutiny. Unfortunately, the government, the legal system and above all the police force itself were unable or unwilling to take advantage of the opportunity for reform. The internal structure of police power remained unchanged: the police culture’s code of silence, if anything, was strengthened. Mendelssohn Miller’s ordeal would deter almost anyone from exposing the wrongdoing of police colleagues. In April 1937, MacKay had told the Police Association annual conference that the New South Wales Police Force was passing through a bad time. “We look forward”, he said: to the hope that the public of New South Wales will take little notice of the unwarranted attacks that are being made upon us …We will pass through this furnace and there will be no regrets.144

This was a vain hope. Although he was formally cleared by Markell, W.J. MacKay’s reputation was greatly damaged by the Miller scandal. His attempt to discredit the report of the SP Royal Commission, rather than acting on it (or even pretend to act on it) had been a disaster. Under pressure in the Miller Royal Commission, he had broken down. For a proud man, it had been a dreadful public humiliation. He had alienated an influential newspaper proprietor and shaken the confidence of the Premier. But, as the next chapter discusses, MacKay was to show astonishing tenacity in clinging to power.

143 This is beginning to happen. A popular account of Miller’s story was published just as this book was in its final edit: Alan R. Leek, Rat in the Ranks: Bookies, Police, Pimps, Perjury and Thugs… and the Man Who Stood Above It All, Big Sky Publishing, Newport, NSW, 2021. 144 SMH , 20 April 1937, p. 11.

CHAPTER 10

‘I Am in Charge of the Police Ship’: The Minister, the Union and the Power of the Commissioner, 1938–1942

1

‘Crawling to W.J.’: Independence, Autocracy and Intervention

By end of 1937, the position of W.J. MacKay as Commissioner of the New South Wales Police Force was under threat. Government members, worried about a crisis of public confidence in the police force, wanted urgent action, but were divided on whether MacKay should be removed. “At this stage”, said the Sydney Morning Herald on 19 November, “it is impossible to predict what support the Government would have among its own supporters should it decide to displace Mr MacKay”.1 Contenders for MacKay’s position, some from outside the police, were openly discussed.2 MacKay’s support within Cabinet had eroded. Frank Chaffey, Chief Secretary since 1932 and a loyal supporter of MacKay, was plagued by ill-health and had to resign early in 1938.3 As the Herald delicately put it, “the admiration which Mr Chaffey, as Chief Secretary, felt for Mr MacKay was not shared by some [other] members of the Cabinet”.4 Chaffey’s replacement was George Gollan, a more energetic and 1 SMH , 19 Nov. 1937, p. 11. 2 SMH , 18 May 1938, p. 17. 3 SMH , 15 Jan. 1938, p. 11. 4 SMH , 23 May 1938, p. 11.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Evans, W.J. MacKay and the NSW Police, 1910–1948, https://doi.org/10.1007/978-3-031-10921-8_10

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critical minister. The Premier, Bertram Stevens, was taking a more active interest in the police portfolio and gave Gollan his backing in his clashes with the Commissioner. MacKay soon met a series of reverses. In January 1938, he recommended that Inspector George Fergusson be promoted to superintendent. This recommendation was rejected; indeed, MacKay was forced to transfer Fergusson away from Police Headquarters.5 In March, MacKay applied for a large increase in his salary, from £1,500 to £3,000. He based his claim on his great responsibilities and compared his own salary to those received by other senior public servants.6 Despite support from the Police Association, the application was refused.7 Another defeat for MacKay was what came to be called the Thornley case. Inspector Thornley, a long-serving officer at Headquarters, had been found on licensed premises after hours and was the subject of several other disciplinary charges.MacKay asked that Thornley’s case be tried by a magistrate, but Stevens (then acting Chief Secretary) insisted that usual police discipline procedures be followed.8 After Thornley was found guilty of the charges against him, he was examined by the Police Medical Board which assessed him as unfit for duty. Thornley was close to retirement age, and MacKay recommended that, in recognition of previous good service, he be allowed to retire due to ill-health and at his existing rank.Stevens and Gollan rejected this request. On Gollan’s direction, Thornley was reduced in rank to sergeant before being allowed to retire.9 (This significantly reduced Thornley’s pension entitlements). To members of Parliament, pressing for changes to police disciplinary procedures in the wake of the Miller scandal, the Thornley case was further proof of the need for reform.10 Edward Sanders, a government backbencher, told Parliament that it was obvious Thornley had been protected by MacKay, who was well known to be a friend of Thornley.11 5 SMH , 8 Jan. 1938, p. 17; 15 Jan., p. 11. 6 SMH , 29 March 1938, p. 11. 7 SMH , 30 March 1938, p. 17; 18 May, p. 17. 8 SMH , 16 April 1938, p. 15. 9 SMH , 12 Aug. 1938, p. 12. 10 SMH , 16 April 1938, p. 15. 11 SMH , 12 Aug. 1938, p. 12.

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Sanders alleged that many adverse incidents in Thornley’s career had been concealed.12 If any ordinary policeman who was not protected in some mysterious way had done half the things that Thornley did, he would have been hounded out of the force without a chance of retiring.13

The preferential treatment of men such as Thornley—“the pets at Police Headquarters”, an interjector called them—was the reason for dissatisfaction in the police force, Sanders said. He claimed there was a “fever of discontent” within the police force because: a man like Thornley got where he did when they know the type of man he really was . . . I think Mr MacKay is a first class policeman, but I think he is lacking in administrative ability.14

Police officers had told him that only those who “crawled to W.J.” got promotion, Sanders said, adding: “I hope that is wrong”.15 In May, it leaked out that MacKay had asked to be allowed to retire on the grounds of ill-health. As in the case of ex-Inspector Thornley, MacKay’s medical condition had significant financial implications: if he retired due to ill-health, he would be entitled to a pension of £1,000 per year; if he resigned on any other grounds, he would receive no superannuation.16 Gollan denied rumours that MacKay was being levered out of office, but it was obvious that he and MacKay were battling for control of the police force, and that the prospect of an “ill-health” retirement with a generous pension was an incentive for MacKay to step down.17 Even government members openly criticised Gollan’s tactics. J.R. Lee, a former Justice Minister, told Parliament that the 1934 Amendment to the Police Regulations Act had made the Commissioner almost impossible to remove. The result was the unedifying spectacle “of moves and

12 SMH , 19 Nov. 1938, p. 12. 13 Ibid. 14 Ibid. 15 Ibid. 16 SMH , 18 May 1938, p. 17. 17 SMH , 21 May 1938, p. 11.

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counter-moves” behind the scenes. The public deserved to know why the government wished to remove MacKay from office, he said.18 Gollan never did provide this clarity. At the time, he denied he had been trying to pressure Mackay into resigning, but he fell far short of expressing confidence in his Commissioner.Gollan told Parliament: It is true that that the Government had differed from Mr MacKay on certain occasions, and that on certain matters it has not accepted his recommendations. Some of these matters were of a quite minor character; others involved larger questions of principle. But . . . it is a gross perversion of the truth . . . to infer from these cases that the Government has followed the policy of consistent opposition to Mr MacKay, or that it has brought such pressure to bear upon him as would make difficult the carrying out of his duty.19

Meanwhile, there was confusion about MacKay’s intentions, and his appearance before the Police Medical Board was delayed several times. Eventually, the Board found him temporarily unfit for duty and recommended that he be granted three months paid leave, which was approved.20 There were widespread rumours that MacKay was not genuinely ill.21 Two weeks after MacKay began his leave, he was called as a witness in a libel action. The plaintiff’s barrister was H.V. Evatt, MacKay’s nemesis from the timber workers’ conspiracy trial a decade earlier. Before dealing with the substantive issue, Evatt asked MacKay if he was sick. MacKay: I believe I am. The doctors say I am. Evatt: Is it a sort of sickness of convenience? MacKay: They say I should go away for three months, but I did not want to go, I was told to go. I feel quite well.22 Despite an opposition motion of no confidence in his handling of the police force, Gollan persisted with his interventionist style. He strongly 18 SMH , 14 June 1938, p. 11. 19 SMH, 9 July 1938, p. 17. 20 SMH , 1 June 1938, p. 15. 21 Daily Telegraph, cited in Truth, 24 Jan. 1940, p. 19. 22 SMH , 16 June 1938, p. 12.

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defended his right to order the dismissal of 13 police who had been adversely mentioned by in the report of the SP Royal Commission.23 Gollan acknowledged that the police had no right of appeal, but said that the grave circumstances justified extreme action: The public must be assured that such practices [framing and perjury] will not be tolerated, and that, when they are proved to exist, drastic measures will be taken against those responsible.24

Gollan was, however, soon to exhibit a remarkable change of heart. Australian police commissioners have rarely prevailed in serious conflict with their political masters. W.J. MacKay was an exception.

2 ‘Foibles or Misdemeanours’: Controlling Political Masters On 2 September 1938, MacKay resumed duty after his three months’ sick leave. He said he felt fit and well, and was ready to settle down to hard work.25 Some of this effort was directed to assisting the police who had been dismissed as a result of the SP Royal Commission: the issue on which Gollan had taken such a hard line two months earlier. Shortly after MacKay returned to work, Gollan reported to Cabinet that fresh evidence had been found which meant some of the dismissal cases should be reviewed.26 On 2 October, Judge H.F. Markell was asked to conduct yet another Royal Commission to reinvestigate these cases.27 When the inquiry opened, J.E. Cassidy KC, representing parliamentarians Carlo Lazzarini and J.T. Ness, protested that the lapse of time meant that there had been “opportunity for conspiracy”, and that the new

23 A legal challenge to the sacking of the 13 officers went all the way to the High Court, but was unsuccessful. The Full Court of the High Court ruled that the Crown had an absolute right to dismiss a police officer, regardless of procedural fairness. SMH , 9 Feb. 1938, p. 12; 5 May, p. 13; 9 July, p. 18. 24 SMH , 9 July 1938, p. 18. 25 SMH , 3 Sept. 1938, p. 12. 26 SMH , 24 Sept. 1938, p. 11. 27 SMH , 3 Oct. 1938, p.9.

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evidence should not be admitted.28 Cassidy’s argument was rejected, but much of the evidence presented at the new Royal Commission bore out his concerns. The dismissed police had found new witnesses who were able to challenge various aspects of Markell’s initial findings, but these witnesses were, without exception, of dubious integrity. Cassidy was able to discredit the witnesses and their stories with considerable success.29 In his report, however, Markell found that the new evidence he had heard created sufficient doubt about the guilt of four of the police that he recommended their reinstatement.30 This recommendation was approved by Cabinet.31 In March 1939, there was a renewed push in Cabinet, prompted by a reported crime wave, for “drastic changes” in the “present control of the police force and complete reorganisation in the higher ranks of the service”.32 Gollan now emerged as a defender of the status quo: crime waves came and went in big cities, he said, and he had complete faith in the present police command. He denied that he was considering appointing a board of control to oversee the police, or that such a board had ever been considered. He said that a reorganisation at Police Headquarters had relieved MacKay “of the detailed work which was keeping him from more important duties”.33 Obviously, MacKay was performing these duties well. A few days later, it was revealed that not long after MacKay had returned from sick leave, he had been granted a substantial pay rise.34 Gollan was scarcely the first or last new minister to have had his reforming zeal blunted by entrenched interests. Even so, the change in

28 SMH, 27 Oct. 1938, p. 17 Lazzarini and Ness had been instrumental in establishing the SP Royal Commission in 1936, see Chapter 7. 29 See, for example, SMH , 1 Nov. 1938, p. 16; 3 Nov., p. 5. 30 “Report of the Royal Commission into Certain Cases Heard Before the Royal

Commission of Inquiry into Allegations Against the Police in Connection with the Suppression of Illicit Betting, 1936, Based upon Fresh Evidence”, Judge H.F. Markell, NSW PP, 1938/39/40 JVP, vol. 6, pp. 175–184. 31 SMH , 24 Feb. 1939, p. 11. 32 SMH , 24 March 1939, p. 11. 33 SMH , 25 March 1939, p. 11. 34 SMH , 28 March 1939, p. 11. The increase, from £1500 to £2000 per annum, was not as great as MacKay had earlier requested, but was still substantial.

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Gollan’s position was staggering. Gollan had tried to force his Commissioner from office; he had done so with considerable support from sections of the press, from his parliamentary colleagues, from other ministers, from the Premier and even from the opposition. And yet MacKay survived, and in the space of a few months Gollan had become a supporter, albeit lukewarm. Meanwhile, MacKay was asserting himself with the old forcefulness.In an address to the first class of a new detective training school, MacKay reminded his officers, and everyone else: “I am in charge of the police ship, and it is on me to see that crime is cleared up and that the force runs on an even keel”.35 Political circumstances did favour MacKay. The United Australia Party, a strained coalition of interests and personalities at the best of times, was starting to disintegrate. Stevens was toppled as Premier in 1939, and within two years, the party not only lost power but ceased to exist.36 At such chaotic times, the energies of politicians are easily diverted from difficult issues of governance. However, more sinister forces may have been at work. In 1937, MacKay had used covertly gathered information to destroy the reputation and career of a senior public servant, S.A. Maddocks.37 MacKay was in a position to gather similar information about other important people which, if misused, would protect his own power. Doug Brideson, a former police officer, wrote that MacKay had routinely employed Frank Fahy, a member of his Headquarters staff, to keep senior government ministers under surveillance.38 Another officer who worked with MacKay, recalled being involved in a long surveillance operation directed at the Chief Government Medical Officer, who was an active homosexual.39 There is no direct evidence that MacKay used personal information against Gollan. It was, however, common knowledge in the police force that MacKay did make use of information in this way. A police officer who worked with MacKay, Greg Brown, said that MacKay:

35 SMH , 6 Jan. 1939, p. 11. 36 Ward, “Stevens”, ADB. 37 See Chapter 11. 38 Doug Brideson, letter to author. 39 Former New South Wales police officer, interview with author, 23 Aug. 2002.

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kept a dossier on the [politicians] which listed their foibles or misdemeanours and could be used to control any politician trying to make MacKay’s working life difficult.40

Reg Downing, a Cabinet minister in the Labor government of William McKell, told an interviewer a similar story. Mackay had told Downing that he “put a shadow bloke”—a surveillance expert such as Frank Fahy—on every member of Cabinet. “He said to me, ‘You’re the only bloke who goes straight home’. He had things on a lot of blokes”.41 Whether MacKay actually gathered as much information on senior politicians as these sources suggest is debatable. What matters, though, is that senior politicians believed that MacKay did, or could, know damaging personal information about them. MacKay’s ability, real and supposed, to use the personal weaknesses of public figures against them does help to explain subsequent events. Far from being chastened by his brush with dismissal at the hands of Gollan, MacKay went on to repeatedly test the tolerance of his political masters. Time and again, he would act with astonishing recklessness, bringing scandal and hostility down on his head, and yet survive in office. He behaved as though he was invincible in his position—as he proved to be. As a result, MacKay’ power within the police force was close to absolute.

3

‘Attack Crime from the Cradle’: The Police Boys’ Clubs

MacKay use of power was by no means all negative. Doug Brideson was one of many police who had a high regard for his former chief: “I am proud of my association with Mr MacKay”, he wrote.42 Brideson saw MacKay as a driving force in modernising the police. MacKay introduced a scientific bureau, reorganised and modernised the CIB, established the air wing, the 21 Mobile Division, the Central Finger Print Bureau and the Military and Police Intelligence section (later the Special Branch) of the CIB. He created the Consorting Squad, the Fraud Squad, the Drug 40 Writer, Razor, p. 136. 41 Reg Downing, interviewed by Chris Cunneen, 1 April 1987. Courtesy Chris

Cunneen. 42 Brideson letter.

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Squad, the Stock Squad and the Police Rescue Squad.43 He consistently improved and expanded the force’s motor transport.44 MacKay introduced a system of police cadets, intended to improve the quality of recruits and the training they received.45 Brideson started as a cadet, and he recalled that MacKay encouraged police to continue to improve their knowledge and skills. MacKay’s ambition, wrote Brideson, was “to have the force officered with better educated and more experienced officers than came through with him”.46 MacKay’s initiatives to improve the image and morale of police were many. He founded the Police Sports Federation and encouraged officers to maintain their fitness. He frequently involved police in charity fundraising: one campaign raised money for a specialist tuberculosis hospital.47 MacKay pioneered the use of the cinema for public relations purposes. Rupert Kathner, a somewhat eccentric film maker, was associated with MacKay for a time and made several films for the police.48 One was The Pyjama Girl Murder, a ten-minute documentary which was probably the first attempt in Australia to dramatise a crime in the hope of generating information from the public. Ironically, in view of some of his rash actions, MacKay had an acute appreciation of the importance of public relations to policing.49 In the wake of the Markell commissions, he began a publicity offensive: announcing the intention to form a police air wing, to train police dogs to take instructions by radio, and organising a massive Police Carnival, watched by some 50,000 people at the Sydney Show Grounds.50 Publicity emphasised the new “scientific policeman”, not only trained in the use of the latest equipment and techniques but also an apostle of community 43 Hoban, New South WalesPolice Force, pp. 45–82. 44 This was a real achievement. During most of MacKay’s tenure, public money and

resources were tight. MacKay had personally to lobby the minister for the purchase of every single new police vehicle. NSWSR, Col. Sect. Correspondence, 12/7553, “Police motor vehicles”. 45 Hoban, New South WalesPolice Force, p. 73. 46 Brideson letter. 47 Ibid. 48 Eric Reade, History and Heartburn: The Saga of Australian Film, 1896–1978,

Harper and Row, Sydney, 1979, pp. 114–25, 137. 49 Brideson letter. 50 SMH , 31 Jan. 1939, p. 12; 4 Feb., p. 13; 27 Feb., p. 13.

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policing. The new approach, which had the slogan “Attack crime from the cradle”, was most obviously exemplified the creation of the police boys’ clubs.51 One of Rupert Kathner’s films, made in 1939, promoted the PoliceCitizens Boys’ Clubs. The film is the stuff of temperance pamphlets: a boy living in an inner-city slum with his drunken, violent father and longsuffering mother is lured into petty crime and falls into the hands of the law. These prove unexpectedly gentle: he is not charged, but given a gentle warning and taken to the Woolloomooloo Police Boys’ Club. There he finds organised sports and games, a clean and wholesome environment, and is set upon the road to happiness, good citizenship and a job on the tramways.52 The police boys’ clubs were a response to a major theme in the debate on social welfare in the 1930s: the need to rescue the rising generation, and the belief that this should be achieved through constructive involvement, tolerance and encouragement rather than punishment.53 MacKay was inspired by a police boys’ club in Norwich, England, which he visited during his overseas tour in 1936. His favourable impression was reinforced when, as an official history puts it with a certain unease, “he visited Germany and Italy where he inspected other youth centres”.54 On his return to Australia, despite the many pressures he faced, MacKay found time to gather both public support and government permission to establish the first club, at Woolloomooloo, which opened in April 1937. The club was a success, and the model was rapidly taken up in other areas of the state, and around Australia.55 MacKay could wax pompous about the police boys’ clubs: “We stand as sentinels at the gateway of the child’s mind”, he said on one occasion, “and it is ours to say what shall or shall not enter”.56 It is easy now to pick holes in such pretensions. Left-leaning writers tend to dismiss the clubs as 51 SMH , 25 March 1938, p. 11. 52 ScreenSound Australia, CTN 67,019, Enterprise Film Co., Australia Today, “Men

of Tomorrow”, dir. Rupert Kathner, 1939. 53 Robert van Krieken, “State bureaucracy and social science: Child welfare in New South Wales, 1915–1940”, Labour History, no. 58, May 1990, pp. 27–8. 54 Hoban, New South WalesPolice Force, p. 103. 55 S. French, “Police-Citizens Boys’ Clubs of New South Wales”, Australian Police

Journal, vol. 1, no. 3, April 1947, pp. 198–206. 56 Ibid., p. 198.

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just one of the “ideological offensives aimed at disciplining the poor and preserving social order”.57 There is some truth to this perspective, but it is unfair to ignore the benefits the clubs brought. The element of paternalist social control which infused the clubs should not obscure the idealism which was also present, or the genuine benefit the clubs brought, and still bring (now under different names), to disadvantaged communities.58 Vince Kelly wrote of the clubs as MacKay’s “own monument”, and the archival record shows that MacKay devoted considerable time and effort to them.59 MacKay himself regarded the clubs as his finest achievement.60 Programmes such as the police boys’ clubs, the police carnivals and fund-raising for charity do lay themselves open to criticism. Truth frequently mocked such activities as a distraction from “real” policing, the catching of criminals.61 In 1946, Truth called for an inquiry into the administration of the clubs, claiming that MacKay was misusing police resources. Police were selling raffle tickets to raise funds for the clubs while on duty; others were working full time on the construction of a police boys’ club holiday camp.62 It is hard to assess the accuracy of Truth’s claims, but the paper was justified in decrying the arrogance with which MacKay ran this and other schemes, no matter how worthy. His highhandedness became so extreme that conflict with the police union, a rising power in New South Wales in the 1940s, was inevitable.

4

‘Give Me This Power’: The Overtime Affair

When MacKay was appointed Commissioner in 1935, he had kind words for the Police Association and the principle of unionism.63 However, his 57 John Shields, “A dangerous age: Bourgeois philanthropy, the state and the young unemployed in NSW in the 1930s”, in Sydney Labour History Group, What Rough Beast ?, p. 170. 58 Peter Conole, Protect and Serve: A history of policing in Western Australia, Western Australia Police Service, Perth, 2002, pp. 246–7. 59 Kelly, It Does Not Pay to Compromise, p. 14; NSWSR, Police Dept. Special Bundles, 10/1839, “Police Boys’ Clubs”. 60 Swanton and Hoban, “MacKay”, p. 18. 61 See for example Truth, 21 July 46, p. 33. 62 Truth, 18 Aug. 1946, pp. 30–1. 63 Brien, Serving the Force, p. 65.

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relationship with the Association’s general secretary, Charles Cosgrove, soon became acrimonious. At the Association’s annual conference in 1937, MacKay told delegates: If everybody is going to have a hand in the government of the police force—if judges, barristers, solicitors and others are going to be drawn in—it will be a sorry day.64

A proposal to increase the powers of the Police Appeals Board met this response from MacKay: “So long as I am in the force I will do everything in my power to prevent such action”.65 These statements drew a sharp rejoinder from Cosgrove, who challenged MacKay’s right to have “complete control of the police force without there being any right of appeal against any decision”.66 Periodically, the union did try to challenge MacKay’s “complete control”; invariably, MacKay reacted as if he were a general faced with mutiny. In 1939, a member of the Association executive, Constable Bill Boland, protested at the treatment of a Constable Oldfield, who had been disciplined. MacKay declared Boland’s actions to be subversive of discipline and immediately transferred him from Sydney to Griffith. Despite protests, the transfer stood.67 It was a precursor of the extraordinary storm which was to come. On 10 June 1940, MacKay called a muster, a “Win-the-War” Rally, of all available metropolitan police at the Redfern Depot. MacKay told the gathered police that in this dire hour he was sure that everyone wanted to do all that was “humanly possible to help... win this war. Naturally the question follows, “How can we help?”... Let me put a scheme to you”.68 MacKay proposed that all police should give up one rest day per fortnight, and agree to forgo payment for overtime, “with a guarantee from me and your officers... that privilege will not be lightly availed of”.69 MacKay

64 SMH , 20 April 1937, p. 11. 65 Ibid. 66 Brien, Serving the Force, p. 65. 67 Ibid., p. 71. 68 NSWPN , 1 July 1940, p. 9. 69 Ibid., p. 10.

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assured police who asked about possible difficulties: “Just a bit of give and take and the whole thing could be overcome”.70 Steve Brien, in his history of the Police Association, says that floor speakers at the rally had been pre-arranged.71 The record of the meeting supports his assertion. Almost alone, Charles Cosgrove sounded a prescient note of caution: “I feel today in our enthusiasm... we are likely to be stampeded”.72 So it proved. In a rhetorical flourish which would cause years of strife, MacKay told the meeting, to applause: “If I had my way and I were a member of the Police Force, I would tear up the overtime card and never want to see it again until the end of the war”.73 Towards the end of the meeting, MacKay became disturbingly messianic: I believe that when you leave here today you are going to give me this power . . . that you are going to say, “We will work without the one day a fortnight weekly rest day and whatever you require in addition to that” . . . I believe that you will go away and spread the gospel that I have spoken today.74

MacKay’s proposals were carried “overwhelmingly” by a show of hands.75 No negative vote was called for,but as one constable present recalled, the atmosphere of the meeting was such that disagreement was impossible.76 When Cosgrove wrote to MacKay asking for clarification of what had been agreed at the meeting, MacKay replied that all police were now committed to the destruction of overtime cards, no paid overtime and the abolition of one rest day per fortnight, all until the war was over. These decisions were binding on rural police, too, though they had not been present at the meeting.77 The Police Association resented the manner in which these decisions had been made, and the lack of the “give and take”

70 Ibid., p. 18. 71 Brien, Serving the Force, p. 74. 72 NSWPN , 1 July 1940, p. 14. 73 Ibid., p. 18. 74 Ibid., pp. 10, 21. 75 Ibid., p. 22. 76 Brien, Serving the Force, p. 74. 77 NSWPN , 1 July 1940, p. 22.

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which had been promised. Truth was soon reporting “seething unrest” in the police force over the issue. “Never have the police been so disgusted with the High Command”, especially “his august personage, the globetrotting Commissioner”.78 Open conflict erupted after what seems to have been a simple misunderstanding. In September 1941, the Police Association’s journal, Police News, printed a supplement which detailed the failure of a legal appeal by Constable Oldfield (whose case, noted above, had led to the transfer of Constable Boland). MacKay seems to have been unaware of this supplement and accused the Association of not publishing court decisions which went against it. Cosgrove replied with a provocative editorial attacking MacKay, which appeared in the February 1942 issue of Police News. Cosgrove accused Mackay of misrepresentation, of favouritism in promotion and of bullying the Association’s executive, and described the praise often given to the police administration as “claptrap”.79 Nothing about Cosgrove suggests that he was a subtle man. However, if he had been deliberately trying to provoke rash action, he could not have succeeded better. All 17 members of the Police Association executive were paraded before MacKay on the morning of Friday 20 February and asked to provide reports on the matter. Their reports—all identical, short and defiant—failed to satisfy the Commissioner and he had them called from their beds that night. They were paraded before their divisional officers and informed that they would all be immediately transferred “in the interests of the service”, each to a different and distant rural station.80 Even so staunch a defender of MacKay as Vince Kelly says bluntly: “This action was indefensible”.81 Worse, it was a blunder. Since the punitive transfer of Constable Boland there had been a change of government. Not only was a strongly-unionist Labor government in power, but the new Chief Secretary was J.M. Baddeley. It will be recalled that Baddeley had been present at the Rothbury tragedy in 1929, where he was struck down by a police baton. According to Kelly, Baddeley had long nursed a grudge against MacKay and wanted to use the dispute

78 Truth, 26 Jan. 1941, p. 19. 79 Brien, Serving the Force, p. 78. 80 Ibid., pp. 80–1. 81 Kelly, Man of the People, p. 157.

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with the Police Association as grounds for sacking him. However, the Premier, William McKell, overruled Baddeley and took over responsibility for the police portfolio himself. McKell ordered MacKay to cancel the transfers, which he did, but took no further action.82 McKell admired MacKay and believed that despite his indiscretions he was too fine a police administrator to lose, particularly in wartime.83 McKell eased tensions in the New South Wales Police Force by allowing MacKay to be seconded to what the papers called “an important Commonwealth post”.84 MacKay, who had maintained an interest in intelligence work since he had stood taking shorthand notes in the Sydney Domain in 1916, was to head a new Australian intelligence agency.

5

An ‘Australian FBI’: The Security Service

Prior to the Second World War, Australia’s intelligence services had been fragmented. The main federal body responsible for domestic intelligence was the Commonwealth Investigation Branch, established as part of the Attorney-General’s Department in 1919.85 But the army, navy and air force all had their own intelligence arms, and the army also ran the Censor’s Office. State police forces, too, had intelligence functions. Intelligence was, as historian Frank Cain remarks, “a highly overcrowded field”.86 In an attempt to centralise and coordinate intelligence operations, a new organisation, the Security Service, was established in March 1941. The Investigation Bureau and the other bodies still existed, however, and did not cooperate well with the newcomer.87 The new agency’s growing pains were exacerbated by a change of federal government, the lack of a clear charter and the administrative inexperience of its first Director. An inquiry recommended that a new Director be appointed, someone with a police background. In March 1942, Mackay was offered

82 Kelly, Man of the People, pp. 157–8. 83 Ibid. 84 SMH , 13 March 1942, p. 13. 85 Cain, Origins of Political Surveillance, pp. 188–225. 86 Ibid., p. 279. 87 Jenny Hocking, Beyond Terrorism: The development of the Australian security state, Allen and Unwin, Sydney, 1993, p. 49.

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the position, which he accepted.88 It was during debate in federal Parliament about this appointment that future Labor leader Arthur Calwell memorably denounced MacKay as “a fascist-minded gentleman” and “like Fouché”.89 The Prime Minister, John Curtin, brushed Calwell’s criticisms aside, saying: “The honorable gentleman may argue until he is black in the face”.90 However, subsequent events were to show that the acerbic Calwell had a point. MacKay’s arrival in Canberra was a culture shock for all concerned. Noel Lamidey, the most senior public servant in the Security Service, later wrote: It was immediately clear that he [MacKay] held the view that all controls, administrative and otherwise, should rest entirely in his hands, and that officers of the Police Departments [in all the states] should hold the reigns of power through him.91

MacKay unilaterally appointed the state police commissioners as his deputies.92 He tried to centralise all intelligence files in Canberra under his control, part of his vision of creating an “Australian FBI”.93 MacKay’s plan had some merit, but the power it would place in his hands caused disquiet. Opposition was further generated by MacKay’s management style. He was, according to Lamidey, intransigent and unwilling to accept advice, and antagonised potential allies “by his arbitrary and forceful methods”.94 MacKay quickly found himself at odds with his ministerial head, his old adversary, H.V. Evatt. MacKay’s position soon became untenable, and he resigned after only six months.95

88 Noel W. Lamidey, Partial Success: My years as a public servant, Lamidey, Sydney, 1970, pp. 48–9. 89 Commonwealth Parliamentary Debates, 27 March 1942, p. 521. 90 Ibid. 91 Lamidey, Partial Success, p. 50. 92 Ibid. 93 Brideson letter. 94 Lamidey, Partial Success, pp. 50–1. 95 Ibid., p. 51.

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In September 1942, MacKay returned to Sydney and the Commissioner’s desk. He was, Vince Kelly writes, “Back in the job he preferred”.96 But in only a few months, MacKay’s impulsiveness, unchecked by good counsel, would generate another spectacular scandal, the “McNally” affair, and again place his position at risk. These events, and an episode from earlier in MacKay’s career which has troubling contrasts, are the subject of the next chapter.

96 Kelly, Man of the People, p. 157.

CHAPTER 11

Policing ‘the Abominable Crime’: Legislated Morality, Selective Enforcement and the Abuse of Power, 1937–1943

1

A Charge of Indecency

Constables T.E. Carney and N.W. Grigg arrested a man for “indecent exposure” in a public toilet in Lang Park, in central Sydney, on Saturday 9 January 1943. Grigg, dressed in plain clothes, entered the toilet at 10.40 p.m.The man had entered shortly afterwards, and allegedly committed the offence, which was intended to prevent homosexual men from propositioning each other. Grigg led the man outside, where Carney was waiting; Carney produced a warrant and arrested him. He was taken to Phillip Street Police Station, where he gave his name as “Charles McNally” and described himself as a clerk.1 “McNally” was in reality a powerful and important man: Clarence Sydney McNulty, editor-in-chief of Frank Packer’s Daily Telegraph. After being bailed out, McNulty contacted his employer. The next day, Sunday 10 January, Packer and McNulty drove together to visit MacKay at his holiday home on the Hawkesbury River. There, McNulty told the Commissioner that he had been framed.2 MacKay returned to Sydney, and Grigg and Carney were called in to Police Headquarters shortly after midnight. The two constables were questioned until about 5 a.m., and 1 New South Wales StateReports: Grigg. v. Consolidated Press and Ors, vol. 45, 1945, pp. 248–9. 2 Ibid.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Evans, W.J. MacKay and the NSW Police, 1910–1948, https://doi.org/10.1007/978-3-031-10921-8_11

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then suspended from duty. A large team—as many as 15—senior officers began reviewing previous arrests made by the pair.3 McNulty’s fingerprints and all written records of the charge were removed to Police Headquarters.4 MacKay rang McNulty, and told him that the charges would be dropped and that he would not have to appear in court.5 If McNulty felt any relief, it did not last long. MacKay’s arbitrary intervention on behalf of a powerful friend created a massive scandal, which again jeopardised his position as Commissioner. His actions in the “McNally” affair also lend credence to suggestions of corruption in another case, six years earlier, which also involved homosexuality.

2

A Secret World: Homosexuality and the Police

Male homosexuality lies at what Paul Wilson calls the criminal threshold. Like prostitution, pornography and much else to do with sex, the social and legal status of homosexuality has varied greatly. At different times and places, it has been celebrated, tolerated, the subject of strong social disapproval, or punished—sometimes severely—by the criminal law.6 The “abominable crime of buggery” had been a serious offence in British criminal law since medieval times, but in the late nineteenth century, the law changed to proscribe a much wider conception of homosexuality.7 In 1883, the New South Wales Parliament passed laws creating the offence of “indecent assault”, which made illegal all sexual contact between men, not just the act of buggery. Consent was specifically excluded as a defence. The lesser offence of “indecent exposure” was also created.8

3 SMH , 21 Jan. 1943, p. 7. 4 SMH, 21 Jan. 1943, p. 7; 25 Jan., p. 7. 5 Bridget Griffen-Foley, The House of Packer: The Making of a Media Empire, Allen and

Unwin, Sydney, 1999, p. 116. 6 Paul Wilson, The Sexual Dilemma: Abortion, Homosexuality, Prostitution and the Criminal Threshold, University of Queensland Press, Brisbane, 1971, p. 43. 7 Gary Simes, “The language of homosexuality in Australia”, in Robert Aldrich and Gary Wotherspoon (eds), Gay Perspectives, University of Sydney, Sydney, 1992, pp. 31–42. 8 Walter J. Fogarty, “The development of a concept of the male homosexual in New South Wales law, 1788–1900”, in Aldrich and Wotherspoon, Gay Perspectives, pp. 66–9.

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The criminalisation of their sexuality, needless to say, did not prevent homosexual men from pursuing their passions.9 Men continued to meet and have sex, often at “beats” in parks or near public toilets.10 One historian of the homosexual sub-culture, Gary Wotherspoon, contends that there must have been tens of thousands of homosexual men in Sydney in the 1930s.11 Many homosexuals were otherwise respectable citizens; some, doubtless, were police officers. Men in this position were forced to lead double lives, haunted by the fear of exposure.12 Wotherspoon says of Sydney between the wars: “a homosexual world certainly existed, but it was secret, fragmented and tainted by its illegality”.13 But homosexuality was more just than illegal. Homophobia was, for much of the twentieth century, deeply engrained in Australian culture. Australian men, Paul Wilson writes, had a “severe revulsion” against homosexuals which was “almost pathological”.14 Unlike other “moral offences”, such as gambling, the legal persecution of homosexuals had genuine popular support. It is often alleged that the police culture was traditionally homophobic.15 This charge needs to be treated with some caution. The zeal with which police enforced the laws against homosexuality varied greatly.16 But while it would be unfair to condemn police for sharing a prejudice both widespread and formally enforced by the criminal law, some sections of Australian police forces do seem to have been hostile 9 Derek Dalton, “Gay male resistance in ‘beat’ spaces in Australia: A study of outlaw desire”, Australian Feminist Law Journal, June 2008, pp. 97–119. 10 Simes, “The language of homosexuality”, pp. 42–49. 11 Garry Wotherspoon, “City of the Plain”: History of a Gay Subculture, Hale and

Iremonger, Sydney, 1991, p. 54. 12 Wilson, Sexual Dilemma, p. 47. 13 Wotherspoon, “City of the Plain”, p. 78. 14 Barbara Baird, “The role of the State in the regulation of sexuality: The police and

violence against lesbians and gay men”, Flinders Journal of Law Reform, vol. 2, no. 1, 1997; Wilson: Sexual Dilemma, pp. 42–3, 47. 15 See for example Jennifer Brown and Elizabeth Campbell, Stress and Policing: Sources and Strategies, John Wiley, Chichester (UK), 1994, pp. 100–4. 16 In Victoria, for example, police harassment of homosexual beats was relatively rare until the late 1950s. Graham Carbery, “Some Melbourne beats: A ‘map’ of a subculture from the 1930s to the 1950s”, in Aldrich and Wotherspoon, Gay Perspectives, p. 140. Sydney, too, had a reputation for tolerance and openness in the 1930s. Wotherspoon: “City of the Plain”, pp. 20–1.

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to homosexual men to a virulent extent.17 Vince Kelly’s books about the New South Wales Police Force include many stories of the needless persecution and entrapment of homosexual men, most of whom were discreet in their activities and bothering no one.18 Kelly also tells of the murder of a homosexual man, Hugo Tuck, whose skull was fractured by a relatively light blow. Not only is the victim completely unmourned—“his whole social activity was a menace to any youth unfortunate enough to make his acquaintance”—but the nature of his death is used as further evidence of the abnormality of his kind: “many detectives still claim... that the skull of the homosexual is thinner than that of the normal man”.19 Enforcing the laws against homosexual activity was difficult. The activity was usually “victimless”, and the stigma associated with homosexuality was so great that even men who actually had been sexually assaulted (in the modern sense) were unlikely to complain.20 The most common method used by police was, bluntly, entrapment. A handsome young plain clothes constable would elicit sexual proposals or “indecent behaviour” from unsuspecting homosexual men, who then would be arrested and charged. Although the police strenuously denied it, they usually had incited these “crimes”.21 There were periods when Sydney police were “solicited” with astonishing frequency.22 There are well-documented cases of police going one step further in abusing their powers, from entrapment to framing. It was relatively easy for police to frame men on indecency charges, as such cases were rarely contested. Pleading guilty was the best course for those wishing to avoid publicity, and exposure was feared by most men, homosexual or not, much more than the sanction of the criminal law.23 Most cases were decided by a magistrate, and the evidence was rarely tested by a higher 17 Dino Hodge, “The police, the press and homophobia in South Australia: 1941– 1991”, Melbourne Historical Journal, vol. 39, no. 1, 2011, pp. 119–141. 18 Kelly, The Bogeyman, pp. 45–60, 66, 68; The Shadow, pp. 63–67; Rugged Angel, pp. 77–8. 19 Kelly, The Bogeyman, pp. 67–8. 20 Ibid. 21 Wilson: Sexual Dilemma, p. 44; Garry Wotherspoon: “The greatest menace facing Australia: homosexuality and the state in NSW during the Cold War”, Labour History, vol. 56, May 1989, p. 21. 22 Wotherspoon, “The greatest menace”, p. 24. 23 Carbery, “Some Melbourne beats”, p. 140.

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court. When this did occur, the police evidence was frequently criticised. In one case in 1953, the Appeal Court judge condemned the evidence of a sergeant as a “wicked lie... I disbelieve the whole of his evidence”.24 Claims of framing by police went back many decades. In the early 1920s, in what Vince Kelly calls “an interesting chapter of secret police history”, some prominent men complained that they had been framed on indecent exposure charges.25 The Attorney-General—not named by Kelly, but probably Thomas Bavin—asked for a report. The Inspector-General, James Mitchell, made inquiries, and Thomas Lynch, then a detectivesergeant, reassured his superior. It was, Lynch said, an “old, old story”. An innocent man might be “mixed up with the perverts occasionally”, but it was unlikely that three such prominent men “would need to go to this particular lavatory [a well-known beat in Hyde Park] at night”. Lynch said that those charged had shown their guilt by providing false names, and had been lucky to escape public exposure.26 In order to demonstrate the bona fides of the police, Lynch invited the Attorney-General along on a raid of a public toilet. The minister was quickly approached by “one of those perverts”, and, by Kelly’s account, exclaimed: “Heavens, I would never have believed it!”27 How this event had any connection to the guilt or innocence of the individual complainants is not explained, but the minister was apparently convinced: The Attorney General was impressed. He had seen for himself the difficulties confronting the police in the suppression of homosexuality, and for years there was no more talk of political interference with the work of the police in this regard.28

Not, in fact, until 1943.

24 Wotherspoon, “The greatest menace”, pp. 25–6. 25 Kelly, The Shadow, pp. 63–7. Kelly does not name the men charged. 26 Ibid. 27 Ibid. 28 Ibid., p. 67.

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‘A Grave Public Scandal’: The ‘McNally’ Affair

If the “McNally” incident had occurred in the 1920s, it is likely that MacKay’s intervention would have ended the matter, along with the careers of the two constables. However, as noted in the previous chapter, the Police Association had become stronger and more willing to take on police command, and Grigg and Carney sought its assistance.29 The combative secretary of the Association, Charles Cosgrove, took up their case with energy.30 Though not revealing the identity of “McNally”, Cosgrove denounced MacKay’s actions: the withdrawal of the charges was illegal, the suspension of the constables autocratic and vindictive, and any internal police inquiry would be hopelessly biased, he said. This case . . . is so amazing and involves a question of such great public importance that any investigation short of a Royal Commission would be only temporising and cloaking a grave public scandal involving the administration of the police department.31

MacKay hit back, defending his actions and releasing details of 29 departmental charges against Grigg and Carney, which included framing, entrapment, assault and an inappropriate relationship with a solicitor. MacKay said he was: determined to exercise resolutely the powers given me to keep the police force of New South Wales clean, and its integrity, efficiency and discipline on a high plane.32

Mixing metaphors in his urgency, MacKay said: If the allegations which are being inquired into against the two constables are found to be correct, it would suggest that a disease has broken out in the police service which requires a drastic operation and the public can

29 Griffen-Foley, The House of Packer, p. 115. 30 SMH , 22 Jan. 1943, p. 7. 31 Ibid. 32 SMH , 28 Jan. 1943, p. 4.

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rest assured that I will leave no stone unturned to see that the operation is successful . . .33

Cosgrove kept up the pressure. He claimed and said he had many cases beside the “McNally” affair which would show that MacKay “by reason of his impulsiveness and arrogance is not temperamentally fitted to control such a responsible body as the NSW Police Force”.34 On 27 January, the matter was discussed by Cabinet. The Labour administration of William McKell was in power, and the Police Association had strong links with the government.35 Cabinet decided against an inquiry, but also instructed that the alleged offender should be issued with a summon.36 MacKay resisted for some days, supported by the Daily Telegraph which denounced the Cabinet instruction as an attack on the independence of the Police Force.37 Eventually, MacKay relented claiming that he was not convinced that the directive was legitimate, “but as I am a member of a disciplined force... I will obey the direction of the Premier”.38 However, this grudging concession was part of a long statement in which MacKay defended his actions and attacked Grigg and Carney. The statement, glaringly prejudicial of both the case against McNulty and the departmental charges against the constables, was published in the Sunday Sun and the Sunday Telegraph.39 The true identity of “Charles McNally” became public knowledge on 1 February, when he first appeared in court. At his trial, which began on 12 February, McNulty denied that he had committed the offence alleged by Grigg. He said he had visited the urinal to relieve himself, and that he had been shocked and incredulous when arrested. He admitted that he had given a false name, but he had done so because of his distress.40

33 Ibid. 34 Border Morning Mail [Albury], 29 Jan. 1943, p. 1. 35 Mark Finnane, When Police Unionise: The Politics of Law and Order in Australia,

Sydney Institute of Criminology, Sydney, 2002, p. 111. 36 Griffen-Foley, The House of Packer, p. 115. 37 Ibid. 38 SMH , 1 Feb. 1943, p. 7 The Premier had taken over responsibility for the police portfolio in 1942. 39 Grigg v. Consolidated Press, pp. 248–9. 40 SMH , 23 Feb. 1943, p. 7; 24 Feb., p. 9.

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McNulty’s barrister, W.R. Dovey KC, put both Carney and Grigg through gruelling cross-examinations. He was able to extract admissions that the two men had secured 208 convictions for indecent exposure in just two years, a tenfold increase on the usual number for police working in that area of Sydney; that almost all the arrests were made in one of three public toilets; that McNulty’s alleged offence had occurred within 90 s of Grigg entering the toilet; and that such rapid arrests were the common experience of the two men.41 Dovey also established that Carney was a friend of a solicitor, Harold Munro, that Munro often appeared for the men charged by Grigg and Carney, and that, in every instance, Munro advised these men to plead guilty.42 In his closing address, Dovey mounted a withering attack on Carney and Grigg. He accused them of entering “an unholy alliance to effect a record number of arrests to win the regard and approval of their superiors in the hope of promotion and preferment”.43 The two had a “blunted” moral sense, and their word could not be trusted. Dovey accused Grigg of acting as a “decoy”. This was, Dovey said, the only possible explanation for Grigg’s spectacular and unprecedented rate of arrests.44 The magistrate, Mr McCulloch, ruled that the police had failed to establish guilt. But the decision was far from exoneration: McCulloch simply said that he felt unable to determine what had actually occurred in the lavatory, and so the charge was not proven.45 In the social climate of the day, this meant that McNulty’s reputation remained seriously tarnished. (McNulty’s marriage later broke down, probably because of the stigma of the scandal.46 ) McCulloch also criticised Grigg and Carney, but his strongest words were reserved for the Commissioner. Of MacKay’s action in withdrawing the charges against McNulty, McCulloch said: He has apparently exceeded his jurisdiction and arrogated to himself a function which, by law, is vested in a Court . . . I have never known such

41 SMH , 15 Feb. 1943, p 11; 16 Feb., p. 7; 17 Feb., p. 9; 18 Feb., p. 7. 42 SMH , 15 Feb. 1943, p. 11. 43 SMH , 26 Feb. 1943, p. 9. 44 SMH , 27 Feb. 1943, p. 11. 45 SMH , 6 March 1943, p. 11. 46 Griffen-Foley, The House of Packer, p. 142.

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steps to be taken previously and I am surprised that any police officer, much less the Commissioner, should assert any such rights.47

McCulloch also condemned MacKay’s statement about the case. It was “grossly improper and calculated to prejudice the arresting constables in the eyes of the public”. Had the trial been due to begin in a superior court, “the Commissioner of Police would not have dared to issue such a statement, and I doubt whether any newspaper would have published it”.48

4

‘A Thorough Overhauling’: Aftermath

The “McNally” scandal again caused MacKay’s leadership of the police force to be questioned. The Bulletin called for “a thorough overhauling under a new Commissioner”.49 The case, said the Sydney Morning Herald, raised troubling questions: “there is need for a searching examination of the present system of control and administration of the Force”.50 The Herald noted that Grigg and Carney had been securing large numbers of indecent exposure convictions for the past two years, but it was only when “a man of prominence” was arrested and protested directly to MacKay that senior police showed any concern. This showed “a serious weakness in the administration”.51 Cabinet discussed MacKay’s position in early March, but again no action was taken.52 I have not been able to find any information about the reasons for this decision. However, the main factor in MacKay’s survival was the support Premier McKell, who continued staunchly to defend his turbulent Police Commissioner.53

47 SMH , 6 March 1943, p. 11. 48 Ibid. 49 Bulletin, 10 March 1943, p. 8. This was when the Bulletin observed: “It has long been evident that this gentleman is too big for his boots, though the Stevens government made them specially big”. 50 SMH , 6 March 1942, p. 8. 51 Ibid. 52 Ibid., p. 11. 53 McKell interview.

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MacKay survived, but the affair eroded his power. Not only had the Premier again directly intervened in policing matters, but the Police Association used the scandal to challenge MacKay’s power within the force itself.54 Despite or because of McCulloch’s rebuke, MacKay doggedly pursued Grigg and Carney. On 11 May, he dismissed the two constables after the departmental inquiry found that they had wrongfully arrested seven men on indecency charges. Grigg and Carney appealed, and their case was heard by the Appeals Board in June. The Board, chaired by Judge Clancy of the District Court, upheld the appeals. The two constables were reinstated to their previous positions, at their previous rate of pay, and were paid for their period of suspension.55 It was a significant win for the union, and a reversal in the authority of the Commissioner which would have rankled deeply with MacKay.56 However, as Manning Clark observes, the people whose actions create important issues of principle are often unworthy of their cause.57 So it was with constables Grigg and Carney. The Appeals Board decision in their cases must be questioned. Judge Clancy ruled that all the charges of framing against the constables would fail, as every complainant but one had pleaded guilty, and the exception had been found guilty and failed in an appeal. Clancy seemed unwilling to countenance the possibility that the pressures on the accused to plead guilty, as the only hope of escaping publicity, were considerable.58 The strongest element of the case against the constables was the allegation of an improper relationship with a solicitor, Harold Munro. Several men who had been arrested by Grigg and Carney testified that Carney had recommended Munro to them, that Munro had advised them to plead guilty, and that Munro had also accepted money purportedly to be used to bribe journalists not to report the case. However, Clancy accepted the

54 Finnane: When Police Unionise, pp. 112–3. 55 SMH , 29 June 1943, p. 7; 25 June, p. 9. The two constables, financed and supported

by the Police Association, also sued MacKay for libel. This action was long, drawn-out and, ultimately, unsuccessful. Grigg v. Consolidated Press; Brien, Serving the Force, p. 84. 56 Finnane: When Police Unionise, pp. 113–4. 57 Manning Clark, A History of Australia, Vol. I: From the Earliest Times to the Age of

Macquarie, Melbourne University Press, Melbourne, 1962, p. 355. 58 SMH , 25 June 1943, p. 9.

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word of Carney, Grigg and Munro that there was nothing improper in the relationship.59 The upshot of the successful appeal was that the Police Commissioner’s dictatorial power over his officers was curtailed, but at the expense of reinforcing the lack of accountability of individual police. A major impediment to the reform of police services is the difficulty faced by commissioners in dismissing officers known to be corrupt.60 MacKay’s diagnosis of the “McNally” case, that “a disease has broken out in the police service”, was probably correct. However, his response to the problem, the impetuous and autocratic exercise of his personal power, was unwise and counterproductive. MacKay’s actions in the “McNally” affair also strengthen suspicions about his motives in another matter, the Maddocks case, which had occurred six years earlier.

5

‘Malice Could Go No Further’: The Fall of S.A. Maddocks

Before his disgrace, Sydney Aubrey Maddocks was one of the most important public officials in New South Wales. A former secretary to the Police Department, he was one of three state Transport Commissioners: powerful “super managers” charged with transforming Sydney’s creaky public transport into a modern, coordinated system. Maddocks’ appointment to this politically sensitive job reflected the high opinion in which he was held by the Transport Minister, Michael Bruxner, and the Premier, Bertram Stevens.61 But Maddocks was one of those men who had a dark secret, a double life. On the evening of 1 March 1937, his life unravelled. In a car parked in bushland near Lane Cove, Maddocks, 56—a married man with four children—was lying with an 18-year-old man, Mikiel Adams,

59 SMH , 16 June 1943, p. 9; 17 June, p. 7. 60 See for example, Age, 24 April 2004, p. 1. 61 Aitken, Bruxner, pp. 178–9.

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when he was apprehended by police.62 Both men were naked. DetectiveSergeant Wharton Thompson shone his torch through the car window, and demanded: “What are you doing here in this condition?”.63 Maddocks’ position was serious. His conduct was not just a matter of immorality and scandal; it was a criminal offence which could attract a lengthy prison term. Maddocks and Adams were instructed to dress, and were taken back to the city. Maddocks was not, however, taken to the Central Police Station and charged, as was the normal procedure. Instead, he was taken to Police Headquarters, where he met the Commissioner, W.J. MacKay.64 Mackay and Maddocks were old acquaintances. They had met in 1914, when Maddocks was Assistant Departmental Secretary with the Police Department, and MacKay a rising star at Headquarters. They had worked together as their careers prospered. Maddocks was appointed Police Department Secretary in 1920, and remained in this position for ten years.65 MacKay later told a court that he saw Maddocks at 7.50 p.m.“I said...: ‘This is a terrible position, Mr. Maddocks. I am told that you were found by police”. Maddocks had replied: “Yes, Mr. MacKay. Can’t anything be done in this matter?”MacKay had said: “It is too serious for me. I will have to get in touch with the ministers”.66 Stevens, Bruxner and the Attorney-General, Henry Manning, were summoned, and they and MacKay met to decide Maddocks’ fate. What was said at the meeting was never revealed, but the decision took a long time: it was not until 2.00 a.m.the following morning that Maddocks was taken to the Central Police Station. There he was charged with having attempted “an unnatural offence”—that is, buggery—on Adams, and with “indecent assault”, a lesser charge which described other forms of homosexual sex.67

62 Truth, 11 April 1937, pp. 1, 21, 23. 63 Donald King, “Transport commissioner railroaded”, Campaign, no. 42, April 1979,

p. 12. 64 Truth, 11 April 1937, pp. 1, 21, 23. 65 Hoban, New South WalesPolice Force, p. 35. 66 Truth, 11 April 1937, pp. 1, 21, 23. 67 Ibid.

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Maddocks later said of that night: “I shall never forget the agony of that experience”.68 He would have known that regardless of the outcome of the charges, he was ruined. Maddocks appeared in court on 9 April 1937. Despite an emotional plea for leniency, he was convicted by the jury on both charges, and sentenced to 18 months imprisonment with hard labour.69 The sentence was comparatively light but it was still a devastating fall. Maddocks never again took part in public life. Released early on good behaviour, he settled on the north coast of New South Wales, where he operated a petrol station.70 Maddocks’ defence was weak. He claimed that he was extremely drunk when he was found by police, and he told an implausible story of feeling ill and being persuaded to “have a rest” in the car by Adams.71 Another issue raised by the defence, however, needs to be taken more seriously. Adams was not charged with any offence, even though under the law he was considered equally guilty. This was never officially explained, but the reason was transparently obvious. Adams was a “decoy”, a police agent. Adams had been brought by the police from Liverpool to the city to meet Maddocks, who was under surveillance. The police who apprehended Maddocks were not local police on patrol. They were Headquarters Police, and in charge of the operation was Detective-Sergeant Wharton Thompson, chief of the Drug Bureau and a protégé of MacKay. Thompson and his men had gone to Lane Cove specifically to find Maddocks; they knew where to go because Adams earlier had shown them the spot.72 In short, the police had set a trap, into which Maddocks fell. Even allowing for the prejudices of the day, the resources devoted to catching one homosexual man seem excessive. The officers involved all worked directly for MacKay, and MacKay had known Maddocks for twenty-three years. It is inconceivable that the operation was conducted without MacKay’s knowledge and approval. This suspicious combination of circumstances was quickly the subject of rumour. The day after 68 King, “Transport commissioner railroaded”, p. 12. 69 Truth, 11 April 1937, pp. 1, 21, 23. 70 King, “Transport commissioner railroaded”, p. 12. 71 Truth, 11 April 1937, pp. 1, 21, 23. 72 Ibid.

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Maddocks was convicted, an unusual story appeared on the front page of the Daily Telegraph: “Commissioner of Police” ran the headline, “Malicious Rumors Confounded”.73 Within the last few weeks there has been a whispering campaign against the Commissioner of Police (Mr W.J. MacKay). It has been of the most malicious type . . . The rumor-mongers, taking their fabrications as facts, hinted that influential political circles were concerned at the continuing criticism of the Police Force. They . . . insinuated that because of that Mr MacKay had a special interest in the devastating charge that was laid against a former colleague. Malice could go no further.74

The Daily Telegraph did not say what the rumours were about, but they are likely to have concerned Maddocks’ work as Transport Commissioner. Maddocks’ arrest and trial occurred in the wake of the SP Royal Commission, and as the Miller scandal was unfolding. In December 1936, the opposition and a number of government members had publicly called for MacKay to be dismissed. Under the 1934 Amendment to the Police Regulations Act, this could only occur by a majority vote of both houses of Parliament. The Legislative Council had been reformed after the constitutional crises of the early 1930s, and it was now far more difficult for the government of the day to control it.75 As opposition leader Jack Lang told Parliament, this meant that provided MacKay retained the support of a handful of Council members, he was effectively immune from dismissal.76 Against this background, another controversy of the day takes on added significance. Since the election of the Stevens government in 1932, the transport policies of Michael Bruxner had been the target of bitter opposition by the operators of private bus lines. Maddocks had recommended the creation of a government-owned bus line—anathema to the private owners—and with Bruxner’s support, he consistently resisted demands for extra private bus routes. Maddocks and Bruxner both 73 Daily Telegraph,10 April 1937–1. 74 Ibid. 75 R.G. Parker, The Government of New South Wales, University of Queensland Press, Brisbane, 1978, pp. 197–200. 76 NSWPD, 16 Dec. 1936, p. 1289.

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disliked the private bus operators, who they knew to be unscrupulous and corrupt.77 The bus operators, however, had money and connections. The debate reached a new level of spite in 1936, when an influential group of United Australia Party members began a sustained attack on Bruxner over his handling of “feeder buses”, private buses which ran on routes not competing with publicly owned transport, which was Maddocks’ area of responsibility.78 Gary Wotherspoon suggests that Maddocks had enemies, perhaps in the police force as well as in the transport industry, who would have welcomed his disgrace.79 Although he provides no direct evidence, the circumstances are suspicious. At a time when MacKay was under great pressure and needed the support of key government members to ensure his survival, powerful interests linked to the United Australia Party were vehemently campaigning against Bruxner’s transport regime. The disgrace of Maddocks was extremely damaging to the Transport Minister.80 It is a big leap to the conclusion that MacKay had set up and sacrificed his former colleague in return for the support of government members associated with the private bus operators. It is possible that MacKay’s role in Maddocks’ disgrace was no more than a painful duty, that the Commissioner was merely enforcing the criminal law without fear or favour. However, his later actions in the “McNally” affair challenge this comforting explanation. MacKay took dangerous and illegal steps to abort charges already laid against Clarence McNulty. If MacKay had wanted to similarly assist Maddocks, he could easily have done so: the investigation could have been stymied, with no risk to MacKay, long before Maddocks’ arrest. The charges against Maddocks were the result of a sizeable police operation, conducted by MacKay’s trusted inner circle of Headquarters Police, which was plainly entrapment. MacKay extended courtesies to Maddocks which an ordinary suspect would not have received, but still he ensured the prosecution was played out to the end. There was an important difference between the two cases. Maddocks actually was homosexual, whereas there is no convincing evidence that this was true of McNulty. By the morals of the time, this was an important

77 Aitken, Bruxner, pp. 180, 188. 78 Ibid., pp. 187, 120. 79 Wotherspoon: “City of the Plain”, pp. 44–6. 80 Aitken, Bruxner, pp. 209–10.

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distinction. Even so, the possibility that MacKay destroyed Maddocks in order to protect his position cannot be discounted. There is evidence that MacKay was even willing to abuse his power to secure an opportune conviction in a capital case. Two such cases are examined in detail in the next chapter.

CHAPTER 12

The ‘Appalling Vista’: Police Power and Miscarriages of Justice, 1932 and 1944

1 ‘Fiendish Murder’: the Wilkinson and Denzil Killings On 11 April 1932, the body of a young man was discovered in a shallow grave near the Holdsworthy army camp at Liverpool. His head had been battered and blasted with a shotgun.1 Two days later, another body, that of a young woman, was found similarly buried near the Illawarra Road, some miles away. The woman was face down and almost naked. She too had been battered and shot with a shotgun discharged at close range.2 The two victims were Frank Wilkinson, 26, of Homebush, and his friend, Dorothy Denzil, 21, of Burwood. The two had been missing since the evening of Tuesday 5 April. They had been last seen when Wilkinson took Denzil for a drive in his car, a red Alvis sports car.3 Wilkinson, who worked in printing, was known as a man of sober habits. Denzil was a nursemaid: an attractive woman, she had recently won a beauty queen prize.4

1 Sun, 11 April 1932, p. 1. 2 Sun, 13 April 1932, p. 1. 3 Sun, 8 April 1932, p. 5. 4 Sun, 10 April 1932, p. 1.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Evans, W.J. MacKay and the NSW Police, 1910–1948, https://doi.org/10.1007/978-3-031-10921-8_12

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The brutal double murder shocked the public. Smith’s Weekly called it the “Most fiendish murder of a generation”.5 Smith’s lamented that Labour governments did not enforce the death penalty.6 The Daily Telegraph noted the strength of public feeling: “In no other case in recent years has public horror and indignation been roused to such a pitch”.7 Truth reported that: while the police are trying to capture the suspect alive, bands of enraged people are trying to seize him first. Truth has been informed that they will hang the man and then throw his lifeless body into a bonfire. Vengeance!8

2

‘Eye for Eye’: Miscarriages of Justice

Niccolo Machiavelli advises rulers speedily to put to death those suspected of shocking crimes: By making an example or two he will prove more compassionate than those who . . . allow disorders which lead to murder and rapine. These nearly always harm the whole community, whereas executions ordered by the Prince only affect individuals.9

When a crime is so terrific that it leads to public hysteria, the pressure on the police to apprehend the offender is intense. A function which normally is routine “low policing” becomes political, an issue effecting social stability and confidence in authority: that is, it becomes high policing. Two cases of this nature feature in W.J. MacKay’s career. The first was the murders of Denzil and Wilkinson in 1932; the second was the long-running mystery of the Pyjama Girl, which began in 1934 and was not apparently resolved until 10 years later. These two cases are seen

5 Smith’s Weekly, 16 April 1932, p. 1. 6 Smith’s Weekly, 16 April 1932, p. 2. 7 Daily Telegraph, 15 April 1932, p. 1. 8 Truth, 17 April 1932, p. 2. 9 Niccolo Machiavelli [trans. George Bull], The Prince, Penguin, Harmondsworth,

1961, p. 95.

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by MacKay’s champions as among the highlights of his career.10 Both, however, have disturbing features. They illustrate the dangers of police power applied cynically, and not being held to account by the justice system. By refusing to contemplate Lord Denning’s “appalling vista”— of the police engaging in a brutal charade of enforcing the law while, in truth, committing another crime—the justice system connives in the deception. At a time of crisis, the danger of a miscarriage of justice, of a case against an “offender” being manufactured, is particularly great. There is, as Machiavelli argues, a utilitarian justification to such miscarriages of justice: some individuals suffer, but society as a whole probably benefits. Provided the fabrication of evidence is not too obvious, and the victim of it unpopular, it is likely that popular confidence in the effectiveness of the police and the community’s sense of safety will actually be strengthened. This argument is irreconcilable with the principles of liberalism, which emphasises due process and the rights of the individual.11 However, the Machiavellian principle is deeply rooted in all cultures and survives in modern society: sublimated, perhaps, but powerful for all that. Paul Wilson observes that there is considerable public tolerance for wrongful convictions.12 Wilson identifies media pressure as a factor in miscarriages of justice.13 There is obvious truth to this: the Gun Alley murder in Melbourne in 1922, which led to the wrongful conviction and execution of Colin Ross, is a textbook example.14 But the desire for vengeance, for the punishment of a plausible perpetrator, is far older than mass media. The day after Martin Bryant slaughtered 35 innocent people at Port Arthur in 1996, someone spray-painted “An eye for an eye” on the wall of the hospital where he was being treated for burns.15 It was a demand for Bryant’s death, an appeal to ancient precedent, to the Old Testament: 10 Kelly, The Charge is Murder, pp. 9–11, 91–122; Swanton and Hoban, “MacKay”, p. 18. 11 Jonathan Sperber, Revolutionary Europe: 1780–1850, Pearson, Harlow [UK], 2004, pp. 297–300. 12 Paul Wilson, “Miscarriages of justice” in Carrington et al., Travesty!, pp. 2–3. 13 Ibid., pp. 9–10. 14 Kevin Morgan, Gun Alley: Murder, lies and a failure of justice, Simon and Schuster, Sydney, 2005. 15 Age, 30 April 1996, p. 4.

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“Life for life, eye for eye, tooth for tooth”.16 A murder is the beginning of a narrative: ancient, endlessly repeated, deep-seated in our culture. It begins with a death, and it ends with a death. The victim is revenged: blood cleanses blood, a balance is restored, the community purged of evil. In pre-modern times, the task of avenging murder fell to the victim’s relatives, who were entitled to exact bloodguilt: that is, kill the offender without penalty.17 The development of the modern policing has been a gradual process, a taking over by the State of what were previously the rights and responsibilities of individuals or small groups (such as extended families).18 If the State, through its police, fails to fulfil these responsibilities—to take an eye for an eye—public anger is often intense. A wrongful (but plausible) conviction calms and resolves these feelings, albeit at the expense of a human scapegoat.

3

The Hunt for William Moxley

The Alvis car in which Denzil and Wilkinson were last seen was a fast, expensive convertible.19 The first breakthrough in what was being called “the racing car mystery” came when the Alvis was found in a garage in Ashfield.20 The man who had brought the car to the garage was described in the press as “a man whose description fits a criminal who recently absconded from bail”.21 A manhunt “on a scale never before attempted in Australia” ensued.22 Hundreds of armed police and civilians scoured western Sydney, then semi-rural. The district was reported to be “terrorized”: Civilians adopted the thorough police system of spreading fan-like, combing the scrub between Liverpool road, and the Bankstown railway line . . . many of the searchers are armed with rifles, shotguns, revolvers, 16 Exodus, 21:23. 17 The Old Testament contains detailed laws governing revenge killings, see for example

Numbers 35:16–34. 18 Philip Rawlings, Policing: A short history, Willan Publishing, Uffculme Cullompton (UK), 2002, p. 12. 19 “Alvis sporting tourer” [advertisement], SMH, 15 December. 1932, p. 6. 20 Daily Telegraph, 8 April 1932, p. 7. 21 Sun, 10 April 1932, p. 1. 22 Daily Telegraph, 22 April 1932, p. 1.

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iron bars and wooden bludgeons . . . Everyone is anxious to capture the man.23

Photographs of the wanted man were widely distributed and shown in cinemas: the first time this technique had been used in Australia.24 Police appealed for public help: “They want YOU to watch for the man”.25 The wanted man was described as a pariah: “Even hardened criminals, revolted by the unnecessary ferocity of the crime, have refused to shelter the suspect. In fact some notorious characters have openly assisted police in their search”.26 The name of the suspect became public knowledge on 15 April, when warrants were issued for the arrest of William Cyril Moxley, aged 34.27 Moxley was, in the jargon of crime news, “well known to detectives”.28 He had been declared a habitual criminal in New South Wales, though by 1930 he said he was “a reformed man”. He made this claim during a trial in December 1930, in which two men who had shot Moxley in the head were charged with intent to cause grievous bodily harm. The assailants, who were acquitted, had believed Moxley to be a police informer, a “pimp”.29 They were correct in this belief: Moxley had, for many years, supplied information to detectives, including W.J. MacKay.30 Moxley was arrested on the afternoon of Thursday 21 April. He was found far from where the police had been searching, at French’s Forest, on the north side of Sydney Harbour. Moxley was taken to CIB headquarters but refused to make any statement and asked to see MacKay, who “has known Moxley for many years”.31 Police escorted Moxley to places

23 Sun, 15 April 1932, p. 1. 24 Daily Telegraph, 15 April 1932, p. 1. 25 Daily Telegraph, 22 April 1932, p. 1. 26 Ibid. 27 NSW Police Force, Crime Circular, 13 April 1932 “William Moxley, charged with

murdering Frank Darley Wilkinson and Dorothy Denzil, 5.4.32”, in Investigations—IIC— Special Murder File A0168, New South Wales Police Force, Corporate Archives [hereafter “Murder File”, NSWPF]; Sun, 15 April 1932, p. 1. 28 SMH, 4 May 1932, p. 12. 29 SMH, 14 December. 1930, p. 5. 30 Kelly, The Shadow, p. 9. 31 Sun, 21 April 1932, p. 1.

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associated with the case, including the two victims’ graves.32 Back at CIB headquarters, Moxley asked to speak to MacKay alone. During this interview, Moxley apparently admitted having held up Wilkinson and Denzil to rob them. Moxley later made a statement, a rambling partial confession to the crime, in the presence of MacKay and two other police.33 A coronial inquest in May found that Wilkinson and Denzil had been murdered by Moxley.34 His trial took place six weeks later. The defence concentrated on arguing that Moxley, who suffered persistent headaches and occasional fits since being shot in the head, had been temporarily insane. On 16 June, Moxley was found guilty of both murders and sentenced to death.35 An appeal was unsuccessful.36 While Moxley was on trial, a state election had been held, and Bertram Stevens’ newly formed United Australia Party came to power. Cabinet decided that Moxley should hang—the first execution in New South Wales since 1924.37 The sentence was carried out on 28 August. Even at first glance, there are troubling features about the Moxley case. The investigation into the murders of Wilkinson and Denzil was conducted in an atmosphere of near hysteria, in which the danger of prejudice was extreme. The actions of police did nothing to reduce this danger. Even before Moxley’s identity was publicly known, the impression given by news reports was one of certain guilt. On 13 April, the Sun reported that “The CIB is... certain of the identity of the slayer... detectives are in the possession of most valuable evidence”.38 Once Moxley was captured, the police immediately called an end to “the State’s most intense man-hunt”.39 No other line of inquiry was pursued; the possibility that a person other than Moxley might be responsible was never considered.

32 Det. Insp. Walsh, “William Cyril Moxley, Arrested at Manly on the 21st April, 1932, Convicted of Murder and Sentenced to Death”. Murder File, NSWPF. 33 SMH, 4 May 1932, p. 12. 34 SMH, 5 May 1932, p. 9. 35 Ibid., p. 1. 36 SMH , 23 June 1932, p. 10. 37 Sun, 17 1932, p. 7. 38 Sun, 13 April 1932, p. 1. 39 Daily Telegraph, 22 April 1932, p. 1.

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This prejudicial reporting reflected the internal views of the police. After Denzil and Wilkinson disappeared, it was speculated that they may have been the victim of “touting”—“touts” were men who spied on courting couples in parklands, whether for voyeuristic thrill, as opportunistic thieves, or for purposes of blackmail.40 This case theory was plausible and was rightly investigated. The officer in charge of the investigation, Detective-Inspector J.J. Walsh, reported: There is no evidence that touting took place in Burwood Division [where Denzil and Wilkinson were last seen] prior to the night of the tragedy but it is strange that Moxley should make such arrangements if he had not committed this class of offence previously.

The language used by Walsh is revealing. Walsh had found no evidence that touting offences are occurring in the area where Denzil and Wilkinson were thought to have met with foul play. Moxley himself had never been charged with an offence of this sort. This was “strange” only in the context of Walsh’s existing case theory. The possibility that the case theory was incorrect does not enter the frame. This was indicative of the tunnel vision which characterised the police investigation. By 10 April, Walsh had established that Moxley had brought the stolen Alvis to the Ashfield garage. On 13 April, Walsh wrote: Every possible endeavour is being made to try and arrest . . . Moxley as there is abundant evidence to prove that he committed the murder, and to support the charge it can be proved that . . . Moxley garaged the deceased’s motor car on the 6th instant at 9 a.m.41

On 14 April, Walsh reported: I have established beyond any doubt that […] William Cyril Moxley […] committed the murders, and to support the charges evidence will be adduced to show that both deceased left Burwood driving in a red Alvis car the property of Frank Wilkinson about 8. p.m. on the 5th April, 1932,

40 Truth, 17 April 1932, p. 9. 41 Det. Insp. Walsh to Supt. Prior, 13 April 1932, in Murder File, NSWPF.

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and that when they left their home a brown rug was in the car which bore Wilkinson’s name.42

In both reports, long conjoined sentences give the impression of a chain of evidence, but the “chain” invariably misses its most important link. Walsh could prove that the two victims were last seen in the Alvis car. Walsh could prove that Moxley had the car in his possession, and that he tried to sell parts stripped from it. This made Moxley a legitimate object of suspicion. However, it was not proof that Moxley was the murderer. Walsh consistently jumped ahead of the evidence: from suspicion to guilt, from evidence of association to proof “beyond any doubt”. In his reports, Walsh demonised Moxley, “this desperate criminal”, who “is regarded as a dangerous criminal and if armed will not hesitate to shoot in order to avoid arrest”. As is discussed below, there was no foundation to this assertion. Just as the press disseminated the impression of Moxley’s certain guilt, so did they take up and then amplify the picture of him as a monster. Press coverage of the case continually emphasised Moxley’s non-humanity. While still on the run, he was dubbed the “Wolf Man”.43 Police attributed to him shaman-like powers: “He can run like a hare and leap hedges and creeks like a deer. He can sit still like a hare, motionless and alert, watching his pursuers”.44 Police told the press that Moxley was an outcast even among criminals: “He was a dingo. The established underworld would not tolerate him. They actually avoided him and he them”.45 But the Moxley of the imagination is consistently at odds with how he behaved in reality. Moxley was no paragon of civic virtue, but nothing in his past suggested that he was likely to be responsible for a savage crime of violence.46 Moxley’s criminal record went back to 1920. Prior to his arrest for murder, Moxley had dozens of convictions for theft, receiving stolen goods and similar offences.47 Not one offence of a sexual nature

42 Det. Insp. Walsh to Supt. Prior, 14 April 1932, in Murder File, NSWPF. 43 Sun 17 April 1932, p. 1. 44 Ibid., p.8. 45 Ibid. 46 Sun, 13 April 1932, p. 1. 47 “Record of Convictions against William Moxley Alias William Cyril Moxley Alias

William Moore Alias Murphy”, in Murder File, NSWPF.

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is recorded; a charge, in 1921, of “stealing with actual violence” is the only offence which contains any mention of violence. Moxley was 34 at the time of the murders. That someone capable a cold-blooded crime of horrific violence could reach that age without any similar offences being recorded is almost inconceivable. Moxley was a logical suspect for stealing an expensive motor car, but not for committing murder and an opportunist rape. Men who had served in prison with Moxley told of his unpopularity, but again no one suggested he was a violent man or a sexual predator.48 He was a burglar and car thief, involved in an organised racket.49 Car theft was an emerging criminal enterprise in this period: stolen cars would be “reborn” with otherwise legitimate car dealers reselling vehicles which had been repainted and given new registration.50 The circumstances in which the Alvis car was found suggest that Moxley was still connected to such a racket. On the morning of Wednesday 6 July, Moxley had taken the Alvis car to the home of one Albert Sprowles, in Ashfield, and parked it in the garage. Moxley started stripping the car, then walked around the area to various mechanics and car dealers in the area and attempted to sell parts taken from the Alvis.51 Moxley hired a mechanic, James Fenton, to help him strip the car, and the two men worked together doing this for the rest of that day. Fenton returned the following morning to continue the job, as did Moxley.52 In his statement to police, Sprowles claimed that a man he did not know came to his home in Ashfield at 9.00 a.m. The man wanted to hire his garage. Sprowles agreed, opened the garage and allowed the car to be driven in. Sprowles took no steps to learn the man’s name or address, nor did he ask for proof that the man owned the car. It was not until the following morning, 7 April, that Sprowles made a note of the

48 Sun, 17 April 1932, p. 1. 49 Sun, 17 April 1932, p. 1. 50 Sun, 24 April 1932. 51 Walsh, J. “Frank Wilkinson and Dorothy Ruth Denzil [sic] Murdered at Holdsworthy near Liverpool on or about the 5th Inst.” in Murder File, NSWPF. 52 Walsh, J. “Murder of Dorothy Ruth Denzel and Frank Barnby Wilkinson at Holdsworthy on the Night of 5th April, 1932”, in Murder File, NSWPF.

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car’s registration “and later communicated with the Ashfield police”.53 This account is almost impossible to believe. Sprowles was the night inquiry officer for the Motor Registration Branch of the Transport Trust, a position which gave him direct access to vehicle ownership and licence plate records. That someone in Sprowles’ position would allow an unannounced stranger to leave an expensive vehicle on his property after a casual conversation is inconceivable. Sprowles’ home was in an ordinary suburban street, and had no notice or sign indicating that the garage could be rented.54 It seems likely that Sprowles was corrupt, part of a car theft racket, and was a contact Moxley knew to seek out. Sprowles probably knew full well that the Alvis was stolen, and only reported the car after learning that it was connected to a murder investigation.

4 ‘I don’t Know Why I Done This Thing’: Fatal Confession By the time of Moxley’s arrest, the police had ample evidence with which to charge Moxley for theft, but his connection to the murders remained entirely circumstantial. Moxley had been in possession of the vehicle in which the victims had been last seen. No one had seen him with the victims, he had no motive for harming them, and he had no prior record of similar offences. Consequently, the statement which Moxley made after meeting alone with MacKay was of the first importance. Moxley’s statement was the only evidence that he had ever even met the two victims. It therefore requires close analysis. The statement begins: My name is William Cyril Moxley and I have been arrested today and it is on a charge of being implicated in the murder of two people which I now voluntarily make this statement.55

53 William Sprowles, Deposition, Coronial Inquest, 3 May 1932, in Murder File, NSWPF. 54 H.C. Maddison, “Most Fiendish Murder of a Generation”, Smith’s Weekly 16 April 1932. 55 William Cyril Moxley, “Statement by William Cyril Moxley, 22 April 1932”, in Murder File, NSWPF.

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Moxley said he had been driving to Bringley, north-west of Liverpool, in a truck which he used for his work as a woodcutter on the evening of Tuesday 5 April. He travelled “up as far as Liverpool” but heavy rain began to fall, “so I came back home”. […] coming back across the Strathfield Golf Links I had a little bit of trouble with the motor so I got out and the trouble was not much it was just a minor little thing and I seen [sic] a car parked at the side of the road, it would be about 9 o’clock, a sudden thought entered my head that I wanted some money, I went over to the people, my only intention was to demand some money, I came upon the pair sitting on the grass, I then challenged them, I had the gun with me, I had been in the habit of carrying the gun in my lorry for rabbit shooting when I was getting in the bush, I demanded money but the man told me he only had 7/- [seven shillings].56

The girl gave him the money. The man “made a rush at me, we came to grips”. Moxley struck the man, then tied his hands and. […] placed him in the back of the car and told the girl to sit in beside me […] the reason I took the girl away and the man was because my own car [the lorry] was in the vicinity, it was a hard car to start therefore I wanted to get well away so as I could start my own car, so we went to Liverpool [. . .]

Moxley drove with the two towards Liverpool. He ran out of petrol. He tried without success to buy some. He forced his two prisoners to walk along the road. He did not have the gun with him; it had been left in the car. He took the two into an empty house and secured them. He left and managed to buy petrol and returned to the house. He untied the man, and there was another fight. Then all specifics vanish: […] we came to blows and I don’t remember just what really happened. We had a good fight, I can’t recall anything being said or done all I know is that was we were both fighting and struggling on the ground. From then on my memory is a blank. The next I remember was when I came back and was coming across Milperra Bridge. I called into the garage [for petrol …] I then drove the car to Strathfield and left it there. I then went

56 Ibid.

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and got in my own car and drove home arriving there at about half past seven. I stayed at home a little while and then went out again. I went up the road and thought that I would put the car that I had been riding in out of the road. I put it in the garage and left it there and went home.57

At this point, the tone and subject matter change abruptly: I had no intentions of doing these people any harm, anything that happened was beyond my control. I have never seen these people before in my life, I don’t know them, I had never met their parents, they have never done me any harm, and as far as I know I had no reason to do them any, and I regret having done these people any harm, I am very sorry for what I have done now that I can see what has happened.58

Moxley said that since he had been shot in the head two years earlier, “I have never been the same man, I am unable to control my temper, the only thing that I can put it down to is that I unconsciously done this thing and that is the only explanation I can make”.59 In answering some additional questions from Walsh, Moxley repeats a similar claim: I would like to say that I had been working that day and had work to go to and I don’t know why I done this thing. I have been working hard from morning to night […] cutting wood for the past eighteen months […] I have never previously except as stated herein at any time used violence against any person.60

The fabrication of confessional evidence, “verballing”, by police was both widespread and accepted in Australian policing until relatively recently.61 Fabricated confessions often follow a similar pattern. The 57 Ibid. 58 Ibid. 59 Ibid. 60 Ibid. 61 Lisa Durnian, “‘I did not say that I would just have to swear in court and it would be alright’: Police verballing practices in Queensland courts, 1926–61”, Australian Historical Studies, vol. 51, no. 3, August. 2020, pp, 250–65. See also Bruce Swanton, The Fabrication of Confessional Evidence: A general look at verballing, Australian Institute of Criminology, Canberra, 1983.

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accused expresses relief that the game is up and a willingness to tell all; he gives some answers which “confirm” what police already know, while other answers are vague, and avoid any details; other specifics such as makes of cars, or types of guns are added. These details are usually irrelevant but add “authenticity”.62 As much authentic information as possible is included: the key to successful verballing is “the telling detail”.63 Another characteristic of fabricated confessions is that they are usually implicating rather than directly damning.64 Moxley’s statement fits this pattern. Nothing in Moxley’s statement provided any new information which could be independently confirmed. The instances he “remembered” having bought petrol fitted the reported movements of the Alvis car on the night of the killings. The most damming confessional material comes in the form of a partial denial: “I had no intentions of doing these people any harm”. Linguistic analysis can be used to probe the authenticity of Moxley’s statement, although there is a significant hurdle. Before the reforms to police interview procedure which resulted from the Wood Royal Commission in the mid-1990s, it was standard practice for police to reword what witnesses said, even when taking a statement in good faith and with no intent to manipulate what was said.65 Police would ask questions, and the wording of these questions was often then attributed to the person interviewed. For example, where a statement reads “We were there for three or four minutes...”,66 it probably reflects an exchange similar to this: Question: How long were you there? Answer: Three or four minutes.

Acknowledging this limitation, it is still possible to make an informed assessment of the authenticity of a statement from this period. In the 62 Mark Dimelow, “Police verbals in New South Wales”, in Basten et al. (eds), The Criminal Injustice System, Australian Legal Workers Group, Sydney, 1982, pp. 88–97. 63 Herbert, The Bagman, pp. 66–8, 136, 141. 64 Tom Molomby, The Shearer’s Tale: Murder and injustice in the Australian bush, ABC

Books, Sydney, 2004, p. 290. 65 David Dixon, Law in Policing: Legal regulation and police practices, Oxford University Press, New York, 1997, ch. 5. 66 William Cyril Moxley, “Statement by William Cyril Moxley, 10 November 1930”, in Murder File, NSWPF.

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case of William Moxley, this is made easier by the existence of another detailed statement he made about a serious crime. After he was shot in the head in November 1930, Moxley provided police with a long statement in evidence against his would-be killers.67 I am indebted to John Gibbons, an expert in forensic linguistics based at Monash University, who conducted an analysis of these two documents.68 Acknowledging the problem of routine rewording in statements to police at the time, Gibbon concludes that the 1930 Statement “rings authentically—it is the sort of language that one might expect from a person of limited intelligence and/or limited education. It uses simple vocabulary, and mostly compound sentences (joined with ‘then’ or ‘and’) rather than syntactically complex sentence structure”. Gibbons notes that the 1932 Statement has two sections: a monologic statement by Moxley, then dialogic questioning by Walsh. “The opening sentence of this statement is clearly constructed by the police—a lay person would not have the underlying legal knowledge to use key words such as ‘implicated’ and ‘voluntarily’”. Further points of difference from the 1930 Statement are: the use of complex syntax; archaic conjunctions; the use of psychological metaphor (“a sudden thought entered my head”); and examples of police language (“I had been in the habit of carrying the gun”). Most of the dialogic section uses simple and plausible language, but there are exceptions, such as the complex syntax of the sentence “I have never previously except as stated herein at any time used violence against any person”.69 Gibbons concludes: There are police fingerprints across both statements, but the wording of the monologic section of the 1932 statement is in my view unlikely to have been produced by the same person who produced the 1930 statement. These conclusions are of course only relevant to the wording. Whether the content was reworded or confected by the police is impossible to say, but if it is not in the interviewee’s own words, it forms a questionable basis for a death sentence.70

67 Ibid. 68 John Gibbons, “Report on Two Police Statemenst from 1930 and 1932 Attributed

to William Moxley”, Monash University, 2013 [Gibbons report]. 69 Ibid. 70 Ibid.

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On close examination, the police case against Moxley evaporates. There is no evidence that he had any contact with the murdered pair, except an inchoate and dubious confession. At the end of his trial, Moxley recanted his statement. He broke down in tears saying that he had not injured: any person in my life. I have a mother and sisters. I have always respected them . . . I have never hurt a woman in my life . . . no matter what your verdict is I say here and now that I am innocent of this crime from beginning to end.71

Moxley probably was innocent, at least of rape and murder. Given the many contradictions and implausibilities of the prosecution case, an alternative case theory seems much more likely. Wilkinson and Denzil were abducted and murdered by one or more unknown people on the evening of 5 April. (The police theory that they were the victims of a “tout” is plausible.) The killer or killers abandoned the Alvis car in Strathfield, and used a different vehicle, never identified, to drive the victims to Holsworthy where they were killed. Moxley saw the car at Strathfield on the morning of 6 April, stole it and took it to Sprowles, who he knew as a contact in a stolen car racket. Sprowles became alarmed when he learned that the car was connected to a murder investigation. He warned Moxley to flee, then alerted the police. After his conviction, Moxley reportedly told the woman he had been living with, Linda Fletcher, that if he was hanged, it would be for stealing a car, not for murder.72 Close examination of the archival record and linguistic analysis of the key document, his “confession”, suggests that this is true. The Moxley case was widely seen as a triumph, for the police in general and for MacKay in particular. The new Justice Minister, Frank Chaffey, wrote to the Commissioner of Police W.H. Childs, expressing his appreciation: A crime of the appalling atrocity was committed under circumstances that made detection of the criminal very difficult. Nevertheless the whole matter has been cleared up by your officers, and the public mind convinced that

71 Sun, 15 June 1932, p. 12. 72 Daily Telegraph, 22 June 1932, p. 1.

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the efficiency displayed in this case is a sure safeguard in the protection of the public.73

It was “invidious to name any officer”, but Chaffey did so anyway: “I do feel that the conduct of Superintendent MacKay calls for sincere appreciation from a public point of view”. The case even attracted attention in the United States. There, True Detective Mysteries magazine ran a feature on the case, lionising MacKay: . . . a rather remarkable man, noted for his thoroughness. Keen, alert, aggressive, he is the youngest man ever to occupy that important position, and his elevation to it was no chance. He . . . studied and worked industriously . . . to broaden his knowledge and grasp of the most up-to-date methods of controlling and apprehending criminals . . . the very picture of poised efficiency . . .74

MacKay is also given credit for the apparent resolution of the case in two later books by Vince Kelly. Kelly notes that at the trial, Mackay “kept his promise to Moxley and [was] his most important defence witness”, testifying that Moxley’s behaviour had altered for the worse after he was shot in the head.75 How this evidence helped Moxley is unclear: if anything, it assisted the prosecution in building a picture of Moxley as brooding and evil, but not insane. It is impossible not to feel perturbed by the Moxley case. Moxley had no motive for the killings. He had no prior history of violence or sexual assaults. Moxley’s confession has many of the hallmarks of a police “verbal”. Pre-trial publicity surrounding the case, much of it facilitated by the police, was extremely prejudicial. Moxley was unintelligent. He had few friends and little money. MacKay had a dominating influence over him: Moxley spoke in court of his gratitude and affection for MacKay, who had lent him money, and on one occasion helped him to buy a horse. MacKay, in turn, said of Moxley: “He used to make a confidante of me”.76

73 Justice Minister, “Re Moxley’s Case” in Murder File, NSWPF. 74 C.H. Hulyer, “The Amazing Riddle of the Red Racing Car: An Australian Atrocity”,

True Detective Mysteries, June 1934. 75 Kelly, Shadow, pp. 100-3. 76 Sun, 16 June 1932, p. 16; Daily Telegraph 16 June 1932, p. 4.

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MacKay, as was shown in the prosecution of the leaders of the timber strike, was prepared to manufacture a prosecution case when the occasion demanded. But it is one thing to frame union leaders on charges which might attract a short jail term. Was MacKay capable of sending a man he knew personally—who had worked for him and who respected and trusted him—to the gallows knowing the charges to be false? The answer hinges on whether MacKay honestly believed Moxley was guilty before the fateful conversation between the two men. The internal police documents appear to show that Walsh, though guilty of tunnel vision and jumping to conclusions, was sincere in his belief that Moxley was the murderer. MacKay, in turn, would have readily believed Walsh, who was a member of MacKay’s inner circle. MacKay extracted a false confession from Moxley, but it is likely that he did so in the genuine belief that Moxley was guilty. Without definite archival evidence, perhaps MacKay is entitled to the benefit of the doubt. However, there is another murder case with which MacKay was associated, in which similar issues arise, and in which proof exists that MacKay was capable of knowingly perverting the course of justice.

5

The Pyjama Girl

The Pyjama Girl mystery was, for more than half a century, Australia’s most famous crime.77 On the morning of 1 September 1934, the body of a woman was found beside a road near Albury, near the Murray River which forms the border between New South Wales and Victoria. The body was partly concealed in the mouth of a culvert which ran under the road. The woman had been shockingly battered about the head, and also shot. An attempt had been made to burn the body, which was clad only in a flimsy jacket and trousers, thought to be pyjamas. The head had been wrapped in a towel, and a bag had also been placed over the top half of the body. The body, the remnants of her clothing and the sack, smelt strongly of kerosene and there was oil and grease on the grass around the body. There were no other clues to the woman’s identity, which despite intensive inquiry, remained elusive. In order to make a future identification possible, the 77 Richard Evans, The Pyjama Girl Mystery: A true story of murder obsession and lies, Scribe, Melbourne, 2004.

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body was not buried but preserved in formalin, and held at the University of Sydney.78 Substantial rewards for information leading to the solution of the crime were offered.79 Who the “Pyjama Girl” was, and how she had met her death, became something of a national obsession.80 In January 1938, an inquest into the death was finally held. The Coroner found that a woman, identity unknown, had been illegally killed by a person or persons, also unknown. The police requested, and the Coroner approved, that the body not be buried, but remain in its preserved state.81 To this point, W.J. MacKay had no personal connection to the case, but shortly before the inquest he wrote to Detective-Inspector Frank Matthews, head of the CIB, directing that the case not be allowed to rest. MacKay instructed that the investigating officers, Detective-Sergeants Alf Wilks and T.W. MacRae, be relieved of other duties to focus on the inquiry.82 Early in 1939, some items of women’s clothing, possibly connected to the case, were found in a deep lagoon near where the body was found.83 The police commissioned a short film on the case, highlighting the new evidence and appealing for public help.84 This was probably the first such use of the cinema in Australia, and reflected MacKay’s interest in new techniques of public relations. Another of MacKay’s initiatives was to bring in expert scientific help from outside the police force. This idea had merit, but because of MacKay’s management style, it backfired. The “expert” MacKay engaged was

78 NSWSR, Police Department Files, 10/57709.5, “Coronial Inquiry touching the death of an unknown woman found murdered on the Albury-Howlong Road on 1st September. 1934”, 18 Jan. 1938. 79 New South Wales Police Gazette, 19 September. 1934; 10 Oct.; 20 February. 1935;

6 March. 80 See for example PIX , 29 October. 1938, pp. 10–13. The police received hundreds of letters from members of the public about the case, some as late as the early 1940s. NSWSR, Police Department Files, 10/57708.1–57,709.1. 81 NSWSR, Police Department Files, 10/57709.5, Coronial Inquiry, 18 January. 1938. 82 NSWSR, Police Department Files, 10/57713.9, MacKay to Supt. CIB, 12 January.

1938. 83 Daily Telegraph, 27 March 1938, p. 1; 29 March, p. 5; 30 March, p. 8. 84 ScreenSound Australia, CTN 67,019, Enterprise Film Co.: Australia Today, “The

Pyjama Girl Murder Case”, dir. Rupert Kathner, 1939.

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Dr Thomas Alexander Palmer Benbow. MacKay initially gave Benbow enthusiastic support, access to considerable resources and authority to carry out a fresh investigation without the knowledge of the CIB.85 However, Benbow quickly revealed himself to be a crank and his “scientific” evidence to be worthless, and on 19 March 1940, MacKay ended all connection with him.86 Benbow was persistent, however. He became convinced that the Pyjama Girl was a missing woman, Philomena Morgan. He approached journalists and parliamentarians for help, and in 1942 mounted legal action on behalf of Philomena Morgan’s mother to recover the body. In June 1943, Benbow applied to the Full Court for a new inquest into the death.87 Both actions were unsuccessful, but legal privilege allowed his theories to be discussed in the newspapers. Dr Benbow’s pursuit of the Pyjama Girl must have been a constant irritant to MacKay. It was a reminder of failure which MacKay’s enemies, particularly Ezra Norton, the owner of Truth and the Daily Mirror, relentlessly exploited. “Overhaul of Police Demanded”, howled Truth in a typical story, “Futility continues in Crime prevention”: New South Wales has a list of unsolved crimes, spread over a period of years, which stands as an indictment of failure . . .How long can Mr MacKay continue to justify his detective branch? The police force is riddled with cliquism, nepotism, frustration, jealousy, discontent, and log rolling . . . The great crimes of the day are NOT being solved.88

Invariably, the failure to solve the Pyjama Girl murder, or even to identify the victim, would be cited as an example of the ineptitude of MacKay’s police force.89

85 NSWSR, Police Department Files, 10/57710.14, CIB report to MacKay, 17 March 1944; transcript of meeting between MacKay, Dr Benbow and other police, 5 February. 1940. 86 Ibid., transcript of meeting between MacKay and Benbow, 19 March 1940. 87 NSWSR, Police Department Files, 10/57711.17, Glasheen and Co. solicitors, for

Routledge, to MacKay, 16 Jan. 1941; Judgement, Ex Parte Routledge, New South Wales Supreme Court, 1 July 1943; Benbow to Crown Solicitor, 22 February. 1944; Herald [Melbourne], 24 June 1943, p. 3. 88 Truth, 28 July 1940, p. 17. 89 Truth, 26 January. 1941, p. 17.

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Then, in 1944, the case took a startling turn. On 4 March, MacKay called in an Italian man, Antonio Agostini, for an interview in his office at Police Headquarters. Agostini had been active in Italian fascist circles before the war, and had only recently been released from internment.90 He was now working as a waiter at Romano’s, a high-class restaurant where MacKay frequently lunched. The usual explanation for the police interest in Agostini is that a fresh examination of the body’s teeth had found a cavity and a porcelain filling which had previously been overlooked. The discovery meant the teeth were consistent with those of Agostini’s wife, Linda, who had been missing since August 1934.91 During the interview with MacKay, Agostini allegedly confessed that the Pyjama Girl was his wife. He had accidentally killed her at their Melbourne home. She had been shot while they were struggling for a gun. He had intended to go to the police, but then decided to conceal the tragedy because of the scandal it would cause. He had carried the body to his car, driven through the night to Albury, placed the body in the culvert and set fire to it using petrol from a spare tin he carried in the car.92 After making his statement, Agostini was driven to Albury, where he identified the site where he had placed the body, then to the house in Melbourne where he said the death had occurred. He was charged with murder on 6 March.93 A fresh inquest was held in Melbourne. Despite the energetic arguments of Dr Benbow, the Coroner formally found that the dead woman was Linda Agostini, and committed Antonio Agostini to stand trial for her murder.94 The evidence presented to the Coroner was lengthy and complicated, and a detailed analysis is not possible here. However, I have argued elsewhere that the Coroner’s decision was untenable. There were many points of difference between the murder victim’s body and that of 90 NAA, SP1714/1 N20221, Commonwealth Investigation Branch dossier, Antonio Agostini. 91 Robert Coleman, The Pyjama Girl, Hawthorn Press, Melbourne, 1978, pp. 64–6. 92 Public Record Office Victoria [PROV], VPRS 24/PO, Box 1493, File 524/1944,

“Inquisition upon the body of a woman whose body was found near Albury, NSW on the 1st September 1934”, pp. 146–58 [1944 inquest depositions]. 93 Ibid, pp. 165–79. 94 NSWSR, Police Department Files, 10/57709.18, Coroner’s verdict.

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Linda Agostini. In particular: the body had blue or blue-grey eyes, while Agostini’s eyes were brown. Similarities between Agostini and the murder victim—and these did exist—were, in my view, inconclusive. The statement which Antonio Agostini made to MacKay, the veracity of which the Coroner accepted without demur, also contained many errors and contradictions.95

6 ‘I Am a Policeman and Have a Duty to Do’: MacKay and Agostini Antonio Agostini’s trial, before Justice Charles Lowe, began on 19 June. Most of the first day of the trial was taken up with argument over the admissibility as evidence of the statement Agostini had made to MacKay on 4 March. The defence claimed that MacKay had told Agostini that the identity of the body had been confirmed, that he would be charged with murder, and that if convicted, he might hang. On the other hand, if he confessed to accidentally killing his wife, he would get off with a light sentence. MacKay, in other words, had made both a threat and a promise to pressure Agostini to confess.96 If MacKay had behaved in the way Agostini claimed, the statement could not be used as evidence in the case. Without the statement, the prosecution would have almost nothing with which to mount a case. MacKay denied Agostini’s story. He said that after only a few minutes’ conversation, Agostini had volunteered to make a statement. MacKay immediately warned Agostini: “Now stop, don’t go any further; I am a policeman and have a duty to do, and my duty is to caution you that anything you say may be used in evidence”.97 A typist, Constable Warren Linkenbagh, had then been called to his office, and Agostini made his statement unaided. MacKay denied absolutely that he had made any threat or promise to Agostini.98

95 Evans, The Pyjama Girl Mystery, pp. 153–82. 96 Justice and Police Museum [JPM], “Trial of Antonio Agostini on a Charge of Murder

in 1934 of his Wife Linda Agostini, Transcript of evidence taken at Melbourne, 19th to 28th June 1944”, 2 vols., pp. 1–39 [“Trial of Antonio Agostini”]. 97 NSWSR, Police Department Files, 10/57710.4, Statement by MacKay, 4 March 1944. 98 JPM, “Trial of Antonio Agostini”, pp. 265–87.

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Even on the evidence presented to the court, Agostini’s version of how the statement was made is more plausible. MacKay’s accounts of what was said before Linkenbagh arrived were inconsistent, and describe only a brief conversation. But Agostini arrived at MacKay’s office that day at 3.30 p.m. The statement was signed and witnessed at 7.30 p.m. Linkenbagh said it took a little over three hours to dictate. MacKay also said it took this amount of time.99 For close to an hour, Agostini and MacKay were in the office, with no one else present. Archival evidence casts further doubt on MacKay’s veracity. MacKay told Justice Lowe that prior to his interview with Agostini on 4 March, he had no particular knowledge of the case: “I only knew what was in the press and what every policeman knows”.100 This was nonsense. He had closely followed the investigation since at least 1938. Other statements by MacKay are contradicted by the archival record. He claimed he was unaware that a police sergeant, Victor King, had reported the possibility of the body being that of Linda Agostini; that he did not know that Detective-Sergeant Alf Wilks had been closely connected with the case for several years; that he was unaware that Luigi Castellano, an Italian man from Melbourne, told police in 1938 that Antonio Agostini had murdered his wife.101 The archival record shows MacKay to have been untruthful in each case.102 In the Coroner’s Court, MacKay specifically said of the case: “I have nothing to do with the collecting of evidence”.103 He confirmed this again at the trial. Justice Lowe asked him directly: “Had you any personal knowledge of the identification of this body before you saw Agostini in... 4 March this year?” MacKay replied: “I had none. I had never been in any way connected with the investigations”.104 This was a barefaced lie. In the days before his interview with Antonio Agostini, he had personally

99 Ibid., pp. 291–4, 283. 100 Ibid., p. 33. 101 JPM, “Trial of Antonio Agostini”, p. 278; PROV, 1944 Inquest Depositions, p. 157; “Trial of Antonio Agostini”, p. 37. 102 NSWSR, Police Department Files, 10/57709.2, record of interview between MacKay and Sergeant. Victor King, 2 March 1943; 10/57713.9, MacKay to Matthews, 12 January. 1938; CIB Melbourne to MacKay, 21 May 1938. 103 PROV, 1944 Inquest Depositions, p. 157. 104 JPM, “Trial of Antonio Agostini”, p. 274.

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conducted interviews with at least six witnesses, people who had known Linda Agostini in the late 1920s.105 MacKay told the Coroner’s Court that prior to 4 March, “I had not concluded this was the body of Agostini”.106 But the shorthand records of the interviews MacKay conducted show not only that he had made up his mind, but that he shared his conviction in a way calculated to influence key witnesses. On 28 February, a man called George Kemphe told MacKay that he had previously seen the body, and that he thought it might be Linda Agostini (who he knew by her maiden name, Platt). The following exchange ensued: MacKay: If you were told that her teeth were identical would you say it was the same woman? If you knew that the fillings in her teeth corresponded exactly with the fillings in Linda Platt’s teeth would that be sufficient, having regard to the disfigurement, for you to say that it is Linda Platt? Kemphe: There would be very little doubt about it. MacKay: I am telling you now as a police officer that the teeth are identical with the fillings that have been put into it by the dentists. Accepting that as a fact would you say then that with the ears, the hair, the features as far as they were recognisable, the build of her body the length of her body, and the build of her generally, that that would fit Linda Platt? Kemphe: I would like to have another look.107

It was through Kemphe that the police were able to locate the other witnesses who later identified that body as Linda Agostini. Kemphe sat with the other witnesses in the same room while they were waiting to view the body. And Kemphe was the first person to positively identify the body, after five people had failed to do so.108 The records of MacKay’s interviews with Kemphe and others were withheld from the defence, despite their obvious importance. They proved that the witnesses who identified the body as that of Linda Agostini had been coached. The doubt it would have cast on both the

105 NSWSR, ibid., records of interviews conducted by MacKay and other police, 28 February. 1944, 29 February., 2 March. 106 PROV, 1944 Inquest Depositions, p. 158. 107 NSWSR, ibid., record of interview between MacKay, other police and George

Kemphe, 28 February. 1944. 108 Ibid., Inspection of Body, 3 March 1944.

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identification of the body, and on the circumstances in which Agostini gave his statement would almost certainly have led to Agostini being acquitted. MacKay lied under oath to conceal the existence of this evidence: had his conduct been discovered, he could have faced criminal charges for perjury. However, Justice Lowe eventually decided that Agostini’s statement was admissible as evidence. It is obvious from the trial transcript that Lowe was unimpressed by MacKay’s evidence, rebuking him on one occasion for trying to avoid a question.109 And yet, as long as MacKay was prepared to lie in direct answers to direct questions, he remained immune from exposure and punishment. This was partly because Lowe did not know the full extent of what was being concealed from him. However, it is impossible to escape the impression that, like Lord Denning, he found the prospect of police criminality, particularly at such a high level, an “appalling vista”, with implications too terrible to contemplate. Antonio Agostini was more fortunate than William Moxley. Once Agostini’s statement was accepted as evidence, the defence concentrated on arguing that Agostini had killed his wife accidentally. This argument was partly successful: the jury found him guilty of manslaughter, but not of murder. This verdict was criticised by Lowe, who described it as “scarcely conceivable” and said the jury had probably been “merciful”. (The death sentence was then mandatory for murder convictions in Victoria.) Lowe sentenced Agostini to 6 years hard labour, well below the possible maximum sentence.110

7

‘Such Methods Were Conducive Only of Failure’: the Police Culture and Miscarriages of Justice MacKay’s conduct in the Pyjama Girl case was reprehensible. He was, at the very least, guilty of perjury and manipulating evidence in a capital case. But there was no sign that he or other police suffered a bad conscience. To the contrary, MacKay was proud of what he had done. He had copies of the transcripts of the inquest and the trial, five volumes in all, bound in green leather. Along with other exhibits and documents 109 JPM, “Trial of Antonio Agostini”, p. 277. 110 Argus, 1 July 1944, p. 3.

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from the case, he kept them in his personal library.111 Vince Kelly, too, made sure posterity knew that MacKay had been the driving force in solving the case: “It was largely due to the unremitting personal efforts of MacKay that the Pyjama Girl mystery was ultimately cleared up”.112 More striking is a report on the case in the police archives. It was unsigned and undated, but was obviously written after Agostini’s conviction.113 It was scathing in its assessment of the investigation prior to 1944, particularly of the efforts to have the body identified. The photographs taken at the Albury morgue and then circulated were inadequate: “owing to their gruesome appearance”, no one had identified the body as that of Linda Agostini. The sketches of the victim by a commercial artist “misled members of the public” as there was “very little, if any, resemblance” to Linda Agostini.114 The way the body itself was displayed was also poor: such methods were conducive only of failure. Two women and one man, all of whom knew Linda Agostini well, viewed the body in 1935 and again in 1938 . . . and all failed to identify it. However, in March 1944, when the face of the corpse had been properly prepared by the aid of cosmetics, the wounds having been covered and the hair dried and dressed . . . these people positively identified it as Linda Agostini.115

The report does beg the question. The post-mortem photographs did not look like Linda Agostini. The artist’s sketches did not look like Linda Agostini. The body itself, when not “properly prepared”, did not look like Linda Agostini. Maybe it wasn’t Linda Agostini. But no self-consciousness is detectable. The report did not mention the colour of the body’s eyes, or any other weakness in the police case, except in terms of criticising “errors” in the investigation. For example, the evidence presented to the 1938 inquest was that kerosene had been used to burn the body. In his statement, Agostini said he burnt the body with petrol alone. Thus, the report 111 These volumes are now held by the Justice and Police Museum, Sydney. 112 Kelly, The Charge is Murder, p. 107. 113 NSWSR, Police Department Files, 10/57711.16, review of murder investigation,

n.d. [c. August 1944]. 114 Ibid. 115 Ibid.

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concludes, the initial evidence had been wrong: “Subsequent events have shown that petrol was used”.116 A circular logic pervades. The victim must have been Linda Agostini, because Antonio Agostini confessed to killing her. His confession must have been substantially true, because the Pyjama Girl was Linda Agostini. Any evidence which contradicts this must be an “error”. In his study of miscarriages of justice, Paul Wilson acknowledges that often there is no conscious decision to frame the innocent: rather “police delude themselves into thinking that certain people are guilty and thus any illegal means [is justified by] the end result of obtaining a conviction”.117 Once charges are laid, internal momentum ensures that public officials, prosecutors and police “do everything possible to make charges ‘stick’”. Police misconduct “results from this pressure to ensure convictions occur, and win at any cost”.118 Just such institutional momentum seems to have been at work in the case in the prosecution of Antonio Agostini. Many miscarriages of justice are characterised by a prosecution case without direct witnesses or evidence of motive, based substantially on circumstantial and scientific evidence, and directed at the conviction of a defendant with no prior history of similar crimes.119 These factors were all present in the cases of William Moxley and Antonio Agostini. Both men, too, were soft targets, social outcastes. Moxley was a “dingo”: a spent informer, no longer useful to the police, friendless in the underworld. Agostini was an enemy alien, recently released from internment, depressed, with little money and few friends. Both men also knew MacKay, and trusted and respected him. Each man had a long private conversation with MacKay before making an incriminating statement, which each later disavowed. W.J. MacKay did not invent the techniques used by the police to fabricate evidence in criminal trials. He did not create the culture which condoned this behaviour. But his willingness to use these methods himself, even when Commissioner, does seem to have changed the tone of policing in New South Wales, at least in the detective branch. The 116 Ibid. 117 Wilson, “Miscarriages of justice”, p. 13. 118 Ibid., p. 12. 119 Malcolm Brown and Paul Wilson, Justice and Nightmares: Successes and failures of forensic science in Australia and New Zealand, New South Wales University Press, Sydney, 1992, pp. 48–8, 84–7, 106, 174,

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conviction of Antonio Agostini was quickly followed by two very similar prosecutions. In 1945, the police charged William Bathgate, a farmer, with the murders of Luigi Orilga and Ethel Wells, who had been killed near Forbes on 9 October 1935. Bathgate was convicted and sentenced to death. An Appeal Court judge, however, found that the police interrogation of Bathgate “far transcended the limits allowable in any circumstances and a course of conduct which was completely indefensible”, that there had been a miscarriage of justice and ordered a new trial.120 Bathgate was again tried for Orilga’s murder, but acquitted. After the jury’s decision, Bathgate was rearrested, and charged with the murder of Wells. This charge did not proceed, however: all charges against Bathgate were dropped two weeks later.121 Henry Lavers, 50, disappeared from his roadside store near Grenfell in the early morning of 5 September 1936. Foul play was suspected, but no sign of Lavers was ever found. In October 1946, detectives charged an itinerant shearer, Frederick McDermott, 38, with having murdered Lavers.122 Tried for murder in February 1947, McDermott was convicted and sentenced to death. Two appeals failed, and a request for leave to appeal to the High Court was refused. However, in 1951 a Royal Commission was appointed to inquire into the case. This showed conclusively that there was no hard evidence whatever of McDermott’s guilt. Worse, detectives had ignored, distorted or suppressed evidence which would have exonerated McDermott.123 MacKay was not personally involved in the Bathgate or McDermott investigations, but they were the work of ambitious detectives using the methods adopted and encouraged by their Commissioner. For a police force under pressure for results and immune from genuine scrutiny, Machiavellian cynicism must be a constant temptation. Provided the victims of injustice are unpopular and without means—“dingoes”—the rewards for “solving” cases are great, and the risks small.

120 NSW State Reports, R. v. Bathgate, vol. 46, 1946, pp. 281–89; Truth, 24 March 1946, p. 21; 5 May 1946, p. 18. 121 SMH, 28 May 1946, p. 8; 30 May, p. 10; 14 June 1946, p. 4. 122 Truth, 13 October. 1946, p. 26. 123 Molomby, The Shearer’s Tale, pp. 282–389.

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Almost the whole of MacKay’s police career was aimed at creating a situation in which police power was unaccountable. He was largely successful: by the time of his death in 1948, the New South Wales Police Force and its Commissioner were almost a law unto themselves. It was an environment in which further miscarriages of justice and other forms of corruption were all but inevitable.

CHAPTER 13

The Keogh Scandal: Unaccountable Power and Systemic Corruption, 1946–1947

1

Sunny Corner: The Holiday House Affair

A question must be raised about W.J. MacKay. He was an autocratic police leader with enormous power, subject to little accountability. That he sometimes misused his power has been demonstrated many times in this book. Was he, however, financially corrupt, to the extent of receiving payments in cash or kind from criminal operations? Until the end of the Second World War, even MacKay’s enemies, speaking in privileged forums, conceded that there was no hint of him accepting bribes.1 In the course of 1946, however, Truth ran a series of articles which exposed the open flouting of liquor licensing and gambling laws by Sydney night clubs, and hinted at sinister reasons for the obvious lack of enforcement of these laws.2 Truth’s claims were later proved substantially correct by the Maxwell Royal Commission, which inquired into liquor licensing in the early 1950s.3

1 See, for example, Carlo Lazzarini’s address to Parliament, NSWPD, 16 Dec. 1936, p. 1297. 2 See, for example, Truth, 9 June 1946, p. 27; 28 July, pp. 28–9, 35. 3 Report of the Royal commission on Liquor Laws in New South Wales, Justice A.V.

Maxwell, New South Wales Government Printer, Sydney, 1954, pp. 90–100 [Maxwell Royal Commission Report].

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In this light, another allegation made by Truth needs to be seriously considered. In September 1946, the paper attacked MacKay for misusing police resources in the construction of his holiday house, “Sunny Corner”, on the Hawkesbury River.4 The paper archly observed that MacKay seemed to find building materials easy to procure, and that his explanation of how he had acquired them at minimal expense was less than convincing: “As many would-be home builders today can testify, possession of a [construction] permit by no means guarantees the necessary materials. But then it should be remembered policemen are men of infinite resource...”5 A Police Commissioner receiving free or heavily discounted building materials would amount to corruption at any time, but in 1946 such materials were extremely scarce. The ease with which MacKay had apparently obtained them was, as the paper hinted, troubling. Truth did not make much impact with these allegations, but only a few months later another corruption scandal erupted, this time from within the police force. One of the many questions glossed over by Judge H.F. Markell in the 1936 SP Royal Commission was whether the vigorous policing of small-time SP bookmakers was a smokescreen for the corrupt protection of larger operators. The accusation had been raised in Parliament, and in his evidence to the Commission, MacKay agreed that he had heard allegations that big SP operators were buying immunity from the police.6 However, MacKay insisted that the failure to prosecute “the big men” was not the fault of the police: It is impossible for the police to get evidence. They may have plenty of knowledge and plenty of suspicion, but they have not got evidence to give against these men … [however] I have never heard it alleged that a police officer was being bribed or receiving money for this state of things.7

Eleven years later, however, just such an allegation was made, and it went right up to MacKay. No financial connections were proven, but the circumstances were extremely suspicious. What came to be called the

4 Truth, 7 September 1946, pp. 30–1. 5 Ibid. 6 NSWPD, 3 March 1936, p. 2328. 7 SP Royal Commission Evidence, p. 68.

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Keogh affair is evidence that, at least towards the end of his career, MacKay’s abuse of his power may have reached the level of benefiting financially from systemic corruption.

2 ‘There is Too Much Covered up Because of Fear’: the Keogh Scandal At the annual conference of the Police Association in April 1947, a motion was put forward arguing that police who were transferred for disciplinary reasons should have rights of appeal. During debate, Sergeant A.J. Keogh, representing the Dubbo police district, rose to speak. He argued that rights of appeal should apply to all transfers, because sometimes apparently routine transfers “in the interests of the service” were in fact punitive.8 Keogh began by speaking in generalities, saying many police: contended they had been transferred just after having been threatened by some publican of whom they had fallen foul . . . It might only be a coincidence, but when one saw a repetition of coincidences one became suspicious.9

It quickly became apparent that Keogh had one particular coincidence in mind. He himself had just been transferred, from Peak Hill (a town 60 miles north-west of Orange) to Bathurst. This transfer had occurred immediately after a sports meeting, a track and field event modelled on the Stawell Gift, had been held at Peak Hill. Prior to the sports meeting, Keogh had been approached by a businessman and a member of Parliament, both of whom asked him to turn a blind eye to illegal betting at the meeting. Keogh had refused. On the day of the sports meeting, 17 March 1947, he had formally warned several bookmakers that he would arrest them if he saw any betting. That same evening, a café owner, Peter Tsaoucis, told Keogh’s wife that Keogh would be transferred away from

8 NSWSR, Prem. Dept. Special Bundles, 12/8777, “Report of Royal Commission of Inquiry into the Reasons for and the Circumstances Surrounding the Transfer of Sergeant 2nd Class Alfred John Keogh from Peak Hill to Bathurst on or about the 28th day of March 1947”, Judge Richard Kirby, p. 2 [Kirby Royal Commission Report]. 9 Ibid.

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Peak Hill. Tsaoucis had been told this by the member of Parliament, who was an investor in the sports meeting. On 1 April, Keogh was officially informed that he was to be transferred to Bathurst as soon as possible “in the interests of the Service”. Keogh, understandably, was outraged. He told the conference: there is too much covered up because of fear of victimisation. Some of us must come out and take it in the neck … I should like to know in whose interests my transfers were made. … There are certain individuals in this community who have waxed fat, are wealthy … These people are so arrogant and so secure as law breakers that they told my wife her husband was going to be transferred because he stood in the road of certain people …10

Keogh’s outburst met with acclamation from the meeting and received wide coverage in the press. Several local organisations in Peak Hill publicly supported Keogh, and in less than a fortnight, a Royal Commission was appointed to investigate the matter.11 The Commission’s terms of reference were narrow: it was an in-depth investigation of the circumstances of Keogh’s transfer and nothing else.12 However, the threat to MacKay was considerable. If it were shown that SP bookmakers were able to influence the Police Commissioner to transfer inconveniently honest officers, the implications were staggering. The Royal Commission was conducted by Richard Kirby, a District Court Judge who went on to be President of the Conciliation and Arbitration Commission.13 Kirby was a Labor-appointed judge, and a Labor administration, now headed by James McGirr, was in power in New South Wales. The Keogh inquiry was one of three politically sensitive inquiries Judge Kirby conducted at this time. In her biography of Kirby, Blanche d’Alpuget says he emerged from these tests of his judicial impartiality with his reputation enhanced.14 That may be so, but like Horace Markell, 10 Ibid., p. 4. 11 NSWSR, Prem. Dept. Special Bundles, 12/8777, Peak Hill Progress Association to

MacKay, 16 April 1947 and similar correspondence. 12 Ibid., Premier’s Department minute, 29 April. 13 Who’s Who in Australia, 1968, HWT, Melbourne, p. 503. 14 Blanche d’Alpuget, Mediator: A biography of Sir Richard Kirby, Melbourne

University Press, Melbourne, 1977, pp. 44–5.

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Kirby’s honesty and industry did not make up for a naïveté verging on wilful blindness. Circumstantial evidence supported Keogh’s fears that he had had been improperly transferred. The businessman who had approached him about betting on the sports meeting, Joseph Ryan, was a former policeman who had left the force under a cloud in 1943. There was evidence of a personal connection between Ryan and MacKay. Ryan had been found guilty of breaches of duty which would ordinarily have warranted dismissal.15 MacKay had allowed Ryan to retire rather than be dismissed, and to retain the rank of sergeant, even though he had been already demoted to constable.16 Ryan had a financial interest in the Commercial Hotel, at Peak Hill, where his son-in-law was the licensee. Keogh had previously prosecuted the licensee for bookmaking, and illegal gambling was conducted at the hotel during the sports meeting. Ryan was one of the organisers of the sports meeting. Further, Ryan had travelled to Sydney and seen MacKay in person on 13 February.17 In his report, Kirby found that Ryan did approach Keogh and ask him to ignore illegal bookmaking at the sports meeting. He also found that Ryan asked the local Member of the Legislative Council, Frank Spicer, to do the same; that Spicer had done so; and that Spicer had been accompanied by a well-known bookmaker at the time.18 However, Kirby exonerated MacKay from any wrongdoing. The judge accepted MacKay’s evidence that the decision to transfer Keogh was his, and that it had been made for honourable reasons and well before the sports meeting, and that MacKay’s meeting with Ryan was unrelated to these events. Keogh’s suspicions were understandable, Kirby found, but the timing of his transfer was a coincidence, and had nothing to do with his refusal to allow betting at the sports meeting.19 This finding must be questioned. MacKay said in his evidence that he had decided to transfer Keogh after an inspection visit to Bathurst

15 The exact nature of Ryan’s offences was not publicly disclosed. They did not, however, involve dishonesty. Kirby Royal Commission Report, p. 23. 16 As was the case with ex-Inspector Thornley, MacKay’s generosity not only preserved Ryan’s honour but protected his pension entitlements. 17 Ibid., pp. 18–24. 18 Ibid., p. 29. 19 Ibid., pp. 28–30.

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in November 1946. This visit had revealed poor traffic management, a social problem delicately described as “a serious outbreak of immorality” among teenage girls and a generally lax attitude among local police. MacKay had wanted to transfer a “good sergeant” to set matters right. He had consulted the seniority list, looking for a suitable candidate: and as I went down the list I did not find what I would call a suitable man for Bathurst until I came to Sergeant Keogh and that was well over fifty or sixty down the list. Then I said to myself—I did not say it to anybody else—I said “That is the man who would clean that place up and he will also clean up the traffic by his experience” . . . where there was juvenile delinquency among girls he would be the very man to put his finger on the spot and stop it quick and lively.20

Bathurst would not be the only beneficiary, MacKay said: moving to the larger town would give Keogh a chance of promotion. MacKay pressed the regional superintendent to make this transfer, which was done in the ordinary way.21 Kirby accepted this version of events: The fact is that I was very much impressed by the evidence of the Commissioner of Police and the manner in which he gave it. Making allowances for his somewhat dramatic manner of recounting events and expressing his opinions, he appealed to me as a witness of truth and accuracy.22

This favourable impression was of immense importance, because there was no documentary evidence whatever to support MacKay’s assertions. The earliest written record of the Commissioner’s intention to transfer Keogh was dated 19 March 1947, two days after the sports meeting.23 MacKay told the Commission that he had discussed the Keogh transfer with superintendents Sweeney and Sadler, in February. Both men supported MacKay’s recollection of this conversation. J.F. Sweeney, who it will be recalled played a role the persecution of Mendhelsson Miller a

20 Ibid., p. 6. 21 Ibid., p. 8. 22 Ibid., p. 16. 23 Ibid., p. 14.

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decade earlier, was challenged about the lack of documentation by the counsel for the Police Association, Mr Richards. Richards: To the layman it would seem peculiar in this matter that there is no written record appearing on any of the files prior to the document of the 19th March? Sweeney: Yes. Richards: Dealing in any way with the proposed transfer of Sergeant Keogh although it had been a more or less definite decision of the Commissioner as early as December, 1946? Sweeney: Yes. Richards: That he should be transferred? Sweeney: Yes. Richards: From your knowledge of police administration would you say that it is a usual or an unusual thing, to find no written record of any move or anything having been done in regard to any of these officers in connection with a preliminary transfer? . . .You say that it is nothing unusual? Sweeney: Yes.24

Sweeney’s answer strains credulity. As Richards was intimating, it was a rare event in police administration which did not generate a paper trail. MacKay, more even than most police, understood the importance of administrative records and worked energetically to improve record keeping and correspondence systems throughout his tenure as Commissioner.25 MacKay habitually dispatched memos to subordinates about any idea or initiative he might have, and usually with great speed. He was a diligent recorder of conversations and phone calls. That the transfer of Sergeant Keogh should have been definitely in mind for more than three months before appearing on paper is almost inconceivable. MacKay’s evidence was corroborated in only one instance: the conversation with Sweeney and Sadler. However, Sweeney was later the subject of an adverse finding at the Maxwell Royal Commission and must be 24 Ibid. 25 On his return from overseas in 1929, MacKay recommended the formation of a

high-powered committee to continually review and reform correspondence and record keeping systems. MacKay was an energetic driver of improved record keeping. NSWSR, Col. Sect. Correspondence, 5/5427.2, MacKay to Childs, n.d. [c. April 1929]; NSWSR, Police Dept. Special Bundles, 10/1829, Minutes, Committee appointed to inquire into Police correspondence and records system, 1931–1935.

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treated as an unreliable witness.26 I know nothing against Superintendent Sadler: even so, the incentive for a man in his position to support the Commissioner against a troublesome rural sergeant is obvious. Keogh was a staunch and active member of the Police Association and indeed, was one of the 17 members of the Association executive who Mackay had peremptorily transferred in 1942.27 That MacKay, a few years later, should be so concerned about Keogh’s promotion prospects is difficult to believe. In the early 1950s, when the Maxwell Royal Commission began to probe the seamy world of the sly-grog trade and the police corruption which accompanied it, some senior police were prepared to place the blame on their former benefactor. The Metropolitan Superintendent, Wharton Thompson, said that nightclubs which were notorious for breaching liquor and gaming laws were not closed down because “of a deliberate policy of toleration towards nightclubs laid down by the late Commissioner MacKay”.28 Superintendent J.F. Sweeney, now retired, also blamed MacKay for “the policy of ‘laissez faire’... [which] contributed to the general laxity of supervision”.29 Another allegation linking MacKay to organised crime in this period was made in 1990. A retired police officer, Stan Grady, said MacKay had been compromised by well-connected criminals running a large sly-grog and gambling racket. Grady’s verdict on MacKay was uncompromising: “One of the biggest bloody crooks we ever had in the New South Wales

26 Sweeney was promoted to Metropolitan Superintendent in March 1948 and remained

in the post for two years. During this time, the Maxwell Royal Commission later found, there was a vast amount of illegal activity in nightclubs and other drinking venues, and associated police corruption. Sweeney pleaded ignorance of what had been going on. In his report, Justice Maxwell dryly noted “at least the suspicion that [Sweeney’s] insistence on a lack of knowledge is due to his inability to explain that that share of inactivity with respect to nightclubs for which he was responsible”. Maxwell also found that Sweeny “had not been frank” when giving evidence about his assets. Maxwell Royal Commission Report, p. 96. 27 Brien, Serving the Force, p. 78. See Chapter 10. 28 Maxwell Royal Commission Report, p. 94. 29 Ibid., p. 96. Both Sweeney and Thompson, it will be recalled, had been trusted members of MacKay’s Headquarters staff.

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police force”.30 Some elements of Grady’s story are plausible, and others are unlikely; all are impossible to prove. However, these accusations, taken with the more reliable evidence gathered by the Kirby Royal Commission, create to a troubling picture of MacKay’s last years as Commissioner. Based on the evidence, it is almost certain that Sergeant Keogh’s transfer was the result of improper influence and the abuse of power. It is beyond doubt that Joseph Ryan, a former police officer who had benefited from MacKay’s good offices in the past, and who was involved in illegal bookmaking, still had direct personal access to the Commissioner. It is probable that Ryan asked for Keogh to be transferred and that MacKay—whether as part of an ongoing corrupt relationship, or to do a favour, or out of lingering vindictiveness towards Keogh—obliged. Whether money was involved is another matter. The suspicion is inescapable, however, that in the post-war years MacKay presided over systemic and entrenched corruption, and that police power in New South Wales had become, to some extent, criminal power.

30 Susan Borham, “Corruption in high places”, Sun-Herald [Sydney], 30 December 1990, pp. 20–2.

CHAPTER 14

Conclusion

I have done the state some service, and they know’t. Shakespeare, Othello 1

1

‘Visionary yet Arrogant’: Assessing W.J. MacKay

On Thursday, 22 January 1948, W.J. MacKay went to work as usual. Part of his day was probably devoted to the police response to a wave— at least, a perceived wave—of serious assaults, robberies and sex offences around Sydney.2 He returned to his home in Edgecliffe for dinner at about 6 p.m., where he dined with his wife, Jennie, the Deputy Commissioner, James Scott and the Chief of the CIB, Norman James. At about 8 p.m., MacKay suddenly collapsed; he died an hour later from a cerebral haemorrhage. He was 62.3 “Mr MacKay’s death is a serious loss to the state”, Scott and James told the press that evening. “He introduced many modern methods, and he encouraged everything that made for efficiency”.4 The Premier, James

1 William Shakespeare, Othello, act 5, sc. 2. 2 SMH, 22 January 1948, p. 1. 3 SMH, 23 January 1948, p. 1. 4 Ibid.

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McGirr, who was also police minister, expressed his “deep regret” at the loss of “a highly respected and responsible officer”.5 MacKay was not, as had been mooted, given a state funeral, but the Police Force sent off its former leader in style, with a procession of mounted and foot police, and the pipe band: one of MacKay’s many innovations, the pipe band wore the tartan of the MacKay clan. A guard of honour was formed by groups from the police boys’ clubs.6 At the funeral service, mourners were told that the late Commissioner would be remembered for turning the Police Force into “such a magnificently trained and competent body” and for his work with the police boys’ clubs.7 However, most tributes to MacKay rarely extended beyond the dutiful. Even before he was buried, the Sydney Morning Herald was ambivalent: often in the public eye at times of great tension … A man of strong personality … Strong-willed, shrewd and quick to act in any emergency … a strict disciplinarian … inclined to be impetuous … quick temper … clashes with many public men …8

After some dissension within Cabinet, James Scott, MacKay’s deputy since 1943, was appointed as the new Commissioner on 17 February. Scott’s career had followed the path of patronage necessary to success in the police force: he had been a protégé of James Mitchell in the 1920s, and later received similar favour from MacKay. Ironically, this was one reason why the McGirr government had misgivings about him.9 However, as Bruce Swanton and Lance Hoban put it, Scott was: content to hold a middle course of command after the visionary yet arrogant reign of his predecessor, endeavouring to maintain levels of general efficiency and competence, free from turmoil, upheaval and controversy.10

5 Ibid. 6 SMH, 24 January 1948, p. 4. 7 SMH, 26 January 1948, p. 4. 8 SMH, 23 January 1948, pp. 1, 3. 9 Bruce Swanton and Lance Hoban, “James Frederick Scott”, New South Wales Police

News, vol. 70, no. 7, July 1990, pp. 13–16. 10 Ibid., p. 14.

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Such admirable qualities are less interesting than colourful faults, and Scott is largely forgotten. At the time, however, the virtues of the sober administrator which Scott brought to the job were welcomed by the government, the Police Association, and many others.11 The focus of this book is MacKay’s police career, his actions as a holder of public office. Even so, it is remarkable how little I learned about his personal affairs. One family friend remembered him with great affection: he was, she said, “a wonderful man, like a father to me”.12 MacKay was married, and had a son, Murdo, who also became a police officer.13 How close MacKay was to his wife and child I do not know, although he worked so hard that they cannot have seen a great deal of him. Few people claimed to know him well. Fred Longbottom, a former policeman who admired MacKay, said of him: “He was a man apart from everybody. I think apart from close associations he led a reserved life”.14 MacKay was a Presbyterian, but whether a sincere believer or a more superficial churchgoer is unclear. What is obvious, however, is that his character was greatly influenced by Presbyterian Calvinism. MacKay exhibits many of the Calvinist traits identified by Max Weber, in particular the endless striving, repeatedly proving oneself by achieving success in the world. Present, too, is the intense spiritual loneliness, the unwillingness fully to trust anyone.15 Weber’s analysis of the Calvinist spirit is applied principally to capitalism and the pursuit of wealth, but the same driven, anxious and often joyless pursuit of success can be found in any field of human life, including policing. A police officer demonstrates success through acquiring, not wealth, but power. Power—gaining, exercising and defending it—was at the core of MacKay’s being. It was MacKay’s demonstration to himself and to the world that he was successful in his calling. MacKay gained power within the police force by following the path of patronage and preferment necessary to overcome the restrictive system 11 Ibid. 12 Interview by author, 30 August 2002. 13 In 2002, there were still at least two descendants of MacKay serving in the New

South Wales Police Force. Leading Senior Constable Mal Smith, e-mail to author, 1 August 2002. 14 Andrew Moore, “A Secret policeman’s lot”, p. 198. 15 Max Weber, The Protestant Ethic and the Spirit of Capitalism [trans. Talcott Parsons,

1930], Routledge, London, 1992, pp. 35–7, 80, 106.

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of seniority. By developing clerical skills, he was able to get a position at headquarters; by working extremely hard and showing initiative, enterprise and toughness, he made himself indispensable to a powerful mentor, James Mitchell; by cultivating journalists and associating himself with spectacular cases, such as the IWW prosecutions, he built up a public profile as a dynamic police officer, a natural leader. MacKay’s astute use of his relations with the press was also important in his ability to expand police power to new areas. By feeding information to sympathetic journalists, he helped to generate a sense of crisis which the government could exploit by giving the police the powers MacKay wanted. When the community was threatened by serious large-scale disorder—as during the timber strike, the aftermath of the Rothbury shootings, and the constitutional crisis of 1932—MacKay skilfully and ruthlessly reasserted police power. He used agents provocateurs , legal harassment, physical pressure and sometimes naked and unprovoked violence to disrupt and demoralise his opponents. Against the New Guard in particular, MacKay also used police drills, parades and assertive shows of force symbolically to reassert police power. In the period of MacKay’s commissionership, the relative powers of the Commissioner and the minister were ambiguous at best. Having astutely manoeuvred to secure an unusual degree of formal independence, a strong-willed and unscrupulous Commissioner such as MacKay was well placed to dominate the relationship. At times, ministers or members of parliament challenged MacKay’s personal power, but he was always able to survive these challenges. He did this partly by securing the loyal support of a key minister, and partly by exploiting information about the private lives of politicians. The potential for the Commissioner to misuse his power to damage an important person was amply demonstrated in 1937, when MacKay destroyed the marriage, reputation and career of S.A. Maddocks. Even so, the challenges to MacKay’s position were at times significant. The 1936 SP Royal Commission represented the mobilisation of public scandal in response to abuses of police power. The Royal Commission revealed that the mechanics of police power extended to become the de facto regulator of an illegal industry, and overextended to become lawless and unaccountable. MacKay’s response to the challenge of the SP Royal Commission was wholly negative. He did not take the opportunity to reform the operation of police power, or to argue for the law to be liberalised. Instead, MacKay

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responded as the group loyalty ethos of the police culture dictated: he endeavoured to protect those police damaged by the commission, and to destroy Constable Miller, the officer who had broken the code of silence. Police power is Janus-faced: in order to enforce the law—what Robert Reiner calls the “presentation rules” of society—the police believe they must follow very different, sometimes illegal, “working rules”. By this view, the whistleblower becomes a threat to the very foundations of police power. The persecution of Constable Miller was, however, so heavy-handed that it provoked a secondary scandal, and a fresh challenge to MacKay’s power. MacKay survived, partly through dubious political manoeuvring, partly through sheer force of will and tenacity. But his power was again challenged by the New South Wales Police Association. MacKay and the Police Association clashed repeatedly and with increasing intensity in the late 1930s and early 1940s. MacKay responded aggressively to any challenge to his personal power as Commissioner—so aggressively, in instances such as the “McNally” affair and the transfer of the entire union executive, as to overreach and significantly weaken his own authority. Another challenge to MacKay’s power came in the late 1940s, when serious and credible allegations of personal corruption were made public. Although he was formally cleared by the Kirby Royal Commission, the evidence presented implicated MacKay in corrupt relationships with illegal gambling interests. More seriously, MacKay can be shown to have committed perjury and manipulated evidence in capital cases. These probable miscarriages of justice were “successful” in that the accused was convicted, and relatively little disquiet emerged about the verdicts at the time. However, like other facets of police power exemplified in MacKay’s career, these cases are troubling. W.J. MacKay is a difficult historical figure to read. He was colourful, larger than life, but always opaque. He spoke about himself often, but revealed little except vanity and a cavalier attitude to the truth. But that very guardedness is perhaps a clue to what drove him. As Weber sees it, a Calvinist seeking to demonstrate membership of the Elect must never show self-doubt. A buoyant self-confidence must always be displayed. Often such an appearance is underpinned by a terror of failure.16 This seems to have been true of MacKay. His false or exaggerated claims about

16 Weber, The Protestant Ethic, pp. 137, 157, 176–7.

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the poverty of his upbringing and his involvement in famous events hint at deep feelings of inadequacy, as does his refusal ever to concede fault. If MacKay admitted a mistake, I have not found a record of it. Even his extraordinary outburst at the Miller Royal Commission was a plea for forgiveness for the failings of other police. “Not that I, as an individual, regret one act that I have done...”17 In a man who wielded the extraordinary power MacKay possessed, such fragile egotism was a serious fault. MacKay’s best qualities were shown when he was kept in check and directed by a strong-willed person who he respected. Earlier in his career, this guidance was provided by James Mitchell. Walter Childs, though a weaker personality, was also a moderating influence: in his correspondence with Childs, MacKay displayed an uncharacteristic deference.18 Once MacKay became Commissioner, however, he lacked restraining influences. The power structure of a police force encourages sycophancy, and as Machiavelli observes, an entourage of flatterers is often fatal to a leader’s capacity for good judgement.19 Ideally, the police minister should have reined in MacKay’s tendency to excess, but this rarely occurred. Frank Chaffey, Chief Secretary from 1932 to 1938, was a complacent minister who admired MacKay and allowed him a free-hand. Later, United Australia Party chief secretaries all had a brief tenure and, with the notable exception of George Gollan, rarely attempted to assert their authority. The Labour government, elected in 1941, did take a more robust approach. Premier William McKell, who took over the police portfolio in 1942, was strong-willed enough to influence MacKay. McKell later said “I never had any doubt about MacKay. He did a lot of things that were wrong. But that was bad judgement”. McKell said MacKay was “a very mercurial fellow”, who: would do things and be sorry afterwards, would act hastily. I’d send for him and say, “Cut that out, you can’t do that”. He’d say, “I’m sorry”. He needed a minister who had a bit of courage.20

17 Miller Royal Commission Evidence, p. 612. 18 NSWSR, Col. Sect. Correspondence, 5/8914, MacKay to Childs, 14 February 1930. 19 Lamidey, Partial Success, pp. 50–1; Machiavelli, The Prince, p. 125. 20 McKell interview.

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It was unfortunate for the New South Wales Police Force, and for MacKay personally, that such ministers were rare in MacKay’s experience. Another element in MacKay’s later deterioration was probably alcohol. Direct evidence is thin, but it is likely that towards the end of his career, MacKay suffered from an increasingly serious drinking problem.21 In his later years, MacKay manifested many of the symptoms of alcohol abuse. These include a low frustration threshold, a narrowly focused perfectionism and a tendency to be extremely judgemental. Most seriously for a person in a position of high authority, the drinker is a poor receiver of advice and information, and is extremely inflexible.22 Late in life, when he was exiled and in disgrace, Joseph Fouché lamented: “Is there not a single good deed by which a former error can be erased?”23 To understand people such as MacKay and Fouché—and to understand police power, and its role in society—this plea must be borne in mind. MacKay and Fouché were similar in their ability to profit from shifts in the political wind, in their ruthlessness, in their vanity, and in their love of power. However, both men were also gifted administrators who improved the efficiency and reliability of their police services. They understood the subtle and symbolic nature of police power, and were successful in creating and maintaining the necessary illusion of police omnipotence. This power was at times abused, but also employed well. A key duty of police is to provide continuity of authority and to maintain civil order, even in politically turbulent times, and in this both men largely succeeded. Many police who served with MacKay admired and respected him, and remained passionate in their defence of his memory. One long-serving New South Wales police officer, Greg Brown, said: The best commissioner I ever worked under was Billy MacKay. He was a policeman’s man, rather than someone who tried to please the politicians at our expense.24

21 Swanton and Hoban, “W.J. MacKay”, pp. 13, 18; Lance Hoban told Larry Writer that he recalled MacKay getting so drunk that he fell down a flight of stairs, and that such insobriety was not unusual. Writer, Razor, p. 138. 22 Dishlacoff, “The Drinking Cop”, in Territo and Vetter, Stress and Police Personal, p. 117. 23 Forsell, Fouché, p. 101. 24 Writer, Razor, p. 136.

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Doug Brideson, too, had a high regard for his former chief: “I am proud of my association with Mr MacKay”, he wrote.25 Outside the force, Vince Kelly wore his admiration for MacKay on his sleeve for decades after MacKay’s death. William McKell remained a staunch supporter. In an interview in 1984, he said: “I think that MacKay was the greatest policeman the State has known. He was a great policeman—terrific courage”.26 It would be unfair to portray MacKay in the same light as, say, Norman Allan, New South Wales Police Commissioner from 1962 to 1972. Allan’s tenure was marked by spectacular incompetence, arrogance, corruption and little else.27 MacKay had admirable qualities, for which he deserves recognition. “He was a very capable fellow, MacKay”, Ray Blissett recalled, “although I didn’t like him. He was a very capable bloke”.28 At times when New South Wales was faced with industrial strife, economic disaster, political instability and the real threat of civic collapse, MacKay’s intelligent and forceful use of police power proved invaluable to the community he served. However, even MacKay’s defenders concede that his performance deteriorated in his later years. Insufficiently accountable through formal mechanisms, and not adequately challenged by his political masters, he became increasingly autocratic and intolerant of criticism. As a result, he fostered some of the worst aspects of the police culture. In 1946, MacKay told officers assigned to one of his more dubious innovations, the 21 Mobile Division: When I am dead, I will still have my eye on the New South Wales Police Force … I will be looking down … when I go up there to Heaven I will be riding a cloud and I will ask … as a special favour, [to] have a peep down.29

25 Brideson letter. 26 McKell interview. 27 Bruce Swanton and Lance Hoban, “Norman Thomas Allan”, NSWPN, vol. 70, no. 11, November 1990, pp. 25–31. 28 Blissett interview, pt. 2, p. 27. 29 Quoted in Seggie, “Police and Government”, p. 311.

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As is often the case with MacKay, it is hard to know whether he was suffering messianic delusions, or having a joke. Nonetheless, the 21 Division became one of the most notoriously corrupt sections of the New South Wales Police Force in its worst period.30 The appalling leadership of Norman Allan, too, was partly MacKay’s work. Allan had been one of MacKay’s protégés in the 1940s, and the favouritism Allan enjoyed then set him on the path to the commissionership.31 Like Fouché, MacKay had great strengths: even his lack of scruple increased his effectiveness as an agent of State power. But in someone granted unaccountable power over such formidable servants as a modern police force, these very strengths made him a dangerous man.

30 Dempster, Honest Cops, pp. 164–5. 31 Swanton and Hoban, “Norman Allan”, p. 25.

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© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Evans, W.J. MacKay and the NSW Police, 1910–1948, https://doi.org/10.1007/978-3-031-10921-8

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12/8777 (1947–1948): Royal Commission of inquiry into the reasons for and the circumstances surrounding the transfer of Sergeant 2nd class A.J. Keogh from Peak Hill to Bathurst—Correspondence, transcripts of evidence, report of the Commissioner Premier’s Department, Records of Cabinet 9/3026 (1931–1947): Index to Cabinet decisions 9/3028.2 (1936): Cabinet documents 9/3038 (1941–1942): Cabinet documents Commissions of Inquiry 3/9052–54 (1951): Royal Commission of inquiry as to the conviction of F.L. McDermott for the murder of W.H. Lavers: Commissioner’s records: transcripts, printed minutes of evidence and related papers 3/9602 (1918): Inquiry under the Police Enquiry Act 1918, Commissioner’s notebook, inquiry into IWW convictions Colonial [Chief] Secretary, Correspondence 5/8914 (Sept 1929) Inspector MacKay, application for promotion 5/8918 (July 1927) “Razor Gangs” 5/8991 (1932) New Guard 5/9048 (1934) New Guard 12/7553 (March 1937) Request to put corrupt police under surveillance; selection and training of police Colonial [Chief] Secretary, Special Bundles 3/2376.2 (1927–1934) Drugs Act amendments 5/5382.3 (1931) Inquiry into Pharmacy Board 5/5427.2 (1929) Reports by Inspector MacKay re overseas study tour SZ848–850 (1932) New Guard Attorney-General, Special Bundles 4/7592.4 (1916–1921) IWW, Royal Commissions 5/7783.2 (1929) Remission of fines imposed on miners in Northern Coalfields 12/1311 (1932–1940) Submissions re amendments to Crimes Act Executive Council Minutes 9/650 (30 March 1932) [MacKay appointed Metropolitan Superintendent] Police Department, Special Bundles 7/5588, 7/5590–93, 7/5595–99, 7/6720 (1917–1923) Papers concerning the Industrial Workers of the World 7/5589, 7/5594 (1918–1921) Reports on political meetings held in the Sydney Domain 7/6719 (1936) Royal Commission on Illicit Betting 7/6720 (1918) IWW Papers [also contains material relating to 1929 timber strike and 1929 mining dispute, apparently incorrectly filed] 7/6723 (1922–1923) Irish Envoys case

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7/6726–30, 10/1832 (1918) Royal Commission to enquire into certain charges made against members of the Police Force in respect of their conduct in connection with the case of King vs. Reeves and others 10/1827 pt (1930) Employment of agents by Police in detecting breaches of the Gaming and Betting Act 10/1828 (1930) Reports by Inspector MacKay 10/1829 (1931–1932) Papers re Irish terrorists, Workers’ Defence Corps etc; New Guard activities; Police correspondence and record systems inquiry; De Groot, Supreme Court Act; opening of Harbour Bridge 10/1832 (1918) IWW Royal Commission 10/1838 pt (1936) Conference of Police Superintendents 10/1839 pt (1938) Police Boys’ Clubs; Conference of Police Superintendents, 1937, Police Appeals Board, summary of decisions 10/1840 pt (1938) Police Superintendents’ Conference 10/1833 pt, 10/1835 pt (1932–1940) Royal Commission into SP Betting Police Department Files AK724 (1913–1986) Police Service Cards 10/57708–15 (1934–1944) Murder File: Linda Agostini New South Wales Police Force—Corporate Archives A0168 Investigations - IIC - Special Murder File [Investigation into the murders of Frank Wilkinson and Dorothy Denzil, 1932] Department of Mines Files 3/3242 (1929) Rothbury mine, personnel 3/3243 (1929) Rothbury mine, canteen cash sheets 7/7111 (1929) Rothbury mine, storekeeper’s records 7/7112 (1929) Rothbury mine, receipts and accounts, medical register National Library of Australia ORAL TRC 121/49, Selwyn Speight interviewed by Mel Pratt [Speight was police reporter with the Sydney Morning Herald, 1930s and 1940s] MS 4744/9/5, C.L.A. Abbott Papers, typescript draft of “Family Background: The Upper Hunter Abbotts” [Abbott was active in conservative politics in the early 1930s] Glasgow City Archives Police Personal Records SR22/55/21 no.225; SR22/56/19 no.10996, W.J. MacKay SR22/55/8 no.252, Murdoch MacKay National Archives of Australia ASIO and preceding agencies A6122/40, The Association (Post War) and the New Guard (Pre War) Vol 1, 1931–1949

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B741/5 V/23163S; MT269/8; D1901 A2622; MP 1103/1 and MP1103/2; SP1714/1 N20221; A 367/1 C9448 [Investigation Branch and Security Service files on Antonio Agostini, charged with the Pyjama Girl murder] Public Record Office Victoria VPRS 24/PO, Box 1493, File 524/1944: “Inquisition upon the body of a woman whose body was found near Albury NSW on the 1st September 1934” [23 March-2 May 1944; inquest into the Pyjama Girl murder] Justice and Police Museum “Trial of Antonio Agostini on a Charge of Murder in 1934 of his Wife Linda Agostini: Transcript of evidence taken at Melbourne, 19th to 28th June 1944”, 2 vols ScreenSound Australia CTN 253356, “W.M. Hughes, conscription referendum message” [c. October 1916] CTN 19897, Cinesound Review No. 178, “Farewell to W.C. Childs” CTN 29660, Movietone News, vol. 3, no. 13: “Opening of the Sydney Harbour Bridge”, 1932 CTN 118282, Movietone News, “New Guard Rallies Round De Groot”, 1932 CTN 294616, Cinesound Review No. 2000, 26 Feb. 1970 [includes film of de Groot incident, 1932] CTN 1373, Enterprise Film Co.: Australia Today, “Men of Tomorrow”, dir. Rupert Kathner, 1939 [police boys’ clubs] CTN 67019, Enterprise Film Co.: Australia Today, “The Pyjama Girl Murder Case”, dir. Rupert Kathner, 1939

Official Publications Note: Parliamentary papers can be confusing. The bound volumes have page numbers, but many documents also have internal pagination. The page numbers given in this bibliography refer to the location of the documents in the relevant volumes. However, the page numbers cited in footnotes refer to the document’s internal page numbering. Official Inquiries New South Wales “Select Committee on Prevalence of Venereal Disease”, [2 progress reports, no final report made], Select Committee of the New South Wales Legislative Assembly, New South Wales Parliamentary Papers [NSW PP], 1915/16 Joint Volumes of Papers [JVP], vol. 5, pp. 223–248, 349–375 “Inquiry under the Police Inquiry Act, 1918: Report”, Justice P.W. Street, NSW PP, 1919 JVP vol. 1, pp. 7–71.

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“Royal Commission of Inquiry into the Matter of the Trial and Conviction and Sentences Imposed on Charles Reeve and Others”, Justice N.K. Ewing, NSW PP, 1920 Second Session JVP, vol. 1, pp. 7–27 “Report From the Select Committee on the Case of Second-Class Police Inspector McDonald”, Select Committee of the New South Wales Legislative Assembly, NSW PP, 1920 Second Session JVP, vol. 3, pp. 987–1035 “Report of Royal Commission Regarding the Contract Entered into by the Municipal Council of Sydney for Steam-raising Plant at Bunnerong Powerhouse”, Justice J.M. Harvey, NSW PP, 1928/29 JVP, vol. 1, pp. 773–84 “Royal Commission on Greyhound Racing and Fruit Machines”, Justice Halse Rogers, Nov. 1932, NSW PP, 1932 Second Session JVP, vol. 1, pp. 993– 1082. “Report of the Royal Commission of Inquiry into Allegations Against the Police in Connection with the Suppression of Illicit Betting, 1936”, Judge H.F. Markell, NSW PP, 1936/7 JVP, vol. 1, pp. 417–557 “Minutes of Evidence of the Royal Commission of Inquiry into Allegations Against the Police in Connection with the Suppression of Illicit Betting, 1936”, Judge H.F. Markell, NSW PP, 1936/7 JVP, vol. 3, pp. 1–1499 “Report of the Royal Commission of Inquiry into Certain matters Arising From the Report of the Royal Commission on Police and of Illicit Betting, 1936”, Judge H.F. Markell, NSW PP, 1937/8 JVP, vol. 3, pp. 65–109 “Minutes of Evidence of the Royal Commission of Inquiry into Certain matters Arising From the Report of the Royal Commission on Police and of Illicit Betting, 1936”, Judge H.F. Markell, NSW PP, 1937/8 JVP, vol. 3, pp. 110– 868 “Report of the Royal Commission into Certain Cases Heard Before the Royal Commission of Inquiry into Allegations Against the Police in Connection with the Suppression of Illicit Betting, 1936, Based upon Fresh Evidence”, Judge H.F. Markell, NSW PP, 1938/39/40 JVP, vol. 6, pp. 175–184. Report of the Royal Commission on Liquor Laws in New South Wales, Justice A.V. Maxwell, New South Wales Government Printer, Sydney, 1954 Report of the Commission to Inquire into New South Wales Police Administration, Justice Lusher, New South Wales Government Printer, Sydney, 1981 Report on Investigation into the Use of Informers, Vol. 1, Independent Commission Against Corruption, Sydney, Jan 1993 Investigation into the Relationship between Police and Criminals, 2nd Report, Independent Commission Against Corruption, Sydney, April 1994 Final Report, Royal Commission into the New South Wales Police Service, Vol. 1, Justice J.R.T. Wood, 1997 South Australia “Royal Commission on the Dismissal of H.H. Salisbury”, Justice R.F. Mitchell, South Australia PP, 1978, vol. 5, no. 117

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Newspapers and Other Contemporary Periodicals Place of publication is Sydney, unless otherwise stated. Age [Melbourne] Argus [Melbourne] Border Morning Mail [Albury] Bulletin Daily Telegraph Labor Daily Liberty [journal of the New Guard, succeeded New Guard] Newcastle Morning Herald [Newcastle] New Guard [journal of the New Guard] New South Wales Police News [journal of the New South Wales Police Association] Smith’s Weekly Sun Sun-Herald Sydney Mail Sydney Morning Herald Times [London] Truth [Sydney edition] Truth [Melbourne edition]

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Contemporary Books and Pamphlets Campbell, Eric: The New Road, Briton, Sydney, 1934 Coghlan, V.L.H.: Lang and the New Guard: The case of Eric Campbell, Gorton, Sydney, 1932 Denning, Warren: Caucus Crisis: The rise and fall of the Scullin Government, Cumberland Argus, Sydney, 1937 [political climate during Depression] East Sydney Police-Citizens Boys’ Club: Be-anga, East Sydney Police-Citizens Boys’ Club, Sydney, 1946 [tribute to W.J. MacKay] Ellis, Ulrich: New Australian States, Endeavour Press, Sydney, 1933 [“New States” movements] McWilliams, R.: ‘Our’ Police Force, Communist Party of Australia, Sydney, n.d. [c. 1937; attack on New South Wales Police and MacKay] Shann, E.O.G. and D.B. Copland: The Crisis in Australian Finance, 1929 to 1931: Documents on budgetary and economic policy, Angus and Robertson, Sydney, 1931 Sharkey, L.L.: History: Communist Party of Australia, [Communist Party of Australia, Sydney], 1942 Thomas, W.J.: A Red Revolution for ₤500!: An account of the Weaver-Thomas conspiracy case, Central Committee of the Communist Party of Australia, Sydney, n.d. [1924; scandal involving R.W.D. Weaver] Voigt, E.R., and J.S. Garden: The 1929 Lockout in the Timber Industry, Tomlinson and Wigmore, Sydney, 1930 Westlaw, Steven: The White Peril, Hodder and Stoughton, London, 1926 [crime novel, reflects contemporary concerns about drugs]

Theses and Other Unpublished Academic Works Baker, David: “Police, Pickets and Politics: The policing of industrial order in Australia”, PhD thesis, Monash University, 2000 Beveridge, W.A.: “The Riverina Movement and Charles Hardy”, BEc thesis, University of Sydney, 1954 Dixson, Miriam [Rechter, Miriam]: “The Strike of the Waterside Workers in Australian Ports, 1928, and the Lock-out of Coal Miners on the Northern Coalfield of N.S.W., 1929–1930”, MA thesis, University of Melbourne, 1957 Evans, Richard W.: “The Pyjama Girl Murder: The making of an Australian myth, 1934–2000”, MA thesis, Monash University, 2001 Moore, Andrew: “Send Lawyers, Guns and Money: A study of conservative paramilitary organisations in New South Wales”, PhD thesis, La Trobe University, 1982 Newman, K.R.: “The Life of William John MacKay”, Masonic Historical Society of New South Wales, n.d.

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Seggie, Kevin: “Aspects of the Role of the Police Force in New South Wales and its Relation to the Government, 1900–1939”, PhD thesis, Macquarie University, 1988 John Gibbons, ‘Report on Two Police Statement from 1930 and 1932 Attributed to William Moxley’, Monash University, 2013.

Books Aitken, Don: The Colonel: A political biography of Sir Michael Bruxner, ANU Press, Canberra, 1969 [Bruxner was transport minister at the time of the Maddocks scandal] Alderson, J.C., and Philip John Stead (eds): The Police We Deserve, Wolfe Publishing, London, 1973 [social role of police] Amos, Keith: The New Guard Movement 1931-35, Melbourne University Press, Melbourne, 1976 Avery, John: Police: Force or service?, Butterworths, Sydney, 1981 Baker, David: Batons and Blockades: Policing industrial disputes in Australasia, Circa, Melbourne, 2005 Blackler, John: “Historical Influences on Australian Policing”, In Tondy Coady, et al. (eds): Violence and Police Culture, Melbourne University Press, Melbourne, 2000 Blackler, John: Development of Modern Policing, Keon Publications, Wagga Wagga, 1996 Blaikie, George: Remember Smith’s Weekly: A biography of an uninhibited national Australian newspaper, Rigby, Adelaide, 1967 [crime reporting, particularly Moxley case] Bolen, Jill: “The police culture: Implications for the reform process”, in Scott Prasser, Rae Wear and John Nethercote (eds): Corruption and Reform: The Fitzgerald vision, University of Queensland Press, Brisbane, 1990 Brien, Steve: Serving the Force: 75 years of the Police Association of New South Wales, 1921-1996, Focus, Sydney, 1996 Brown, Gavin and Robert Haldane: Days of Violence: The 1923 police strike in Melbourne, Hybrid, Melbourne, 1998 Brown, Jennifer and Elizabeth Campbell: Stress and Policing: Sources and strategies, John Wiley, Chichester (UK), 1994 Brown, Malcolm and Paul Wilson: Justice and Nightmares: Successes and failures of forensic science in Australian and New Zealand , University of New South Wales Press, Sydney, 1992 Cain, Frank: The Origins of Political Surveillance in Australia, Angus and Robertson, Sydney, 1983 Cain, Frank: The Wobblies at War: A history of the IWW and the Great War in Australia, Spectrum, Melbourne, 1993

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Caless, Bryn: Policing at the Top: The roles, values and attitudes of chief police officers, Policy Press, Bristol, 2011 Calwell, A.A.: Be Just and Fear Not, Rigby, Adelaide, 1978 [memoir] Campbell, Eric: The Rallying Point: My story of the New Guard, Melbourne University Press, Melbourne, 1965 Cannon, Michael: That Damned Democrat: John Norton, an Australian populist, 1858–1916, Melbourne University Press, Melbourne, 1981 [Ezra Norton] Carte, Gene E., and Elaine H. Carte: Police Reform in the United States: The era of August Vollmer, 1905-1932, University of California Press, Berkely, 1975 Chan, Janet: Changing Police Culture: Policing in a multicultural society, Cambridge University Press, Cambridge, 1997 Chan, Janet: “Police Culture” in David Dixon (ed.): A Culture of Corruption: Changing an Australian police service, Hawkins Press, Sydney, 1999 Chappell, Duncan and Paul Wilson (eds): Australian Policing: Contemporary issues, Butterworths, Sydney, 1989 Coleman, Robert: The Pyjama Girl, Hawthorn Press, Melbourne, 1978 [murder case in which MacKay was involved] Conole, Peter: Protect and Serve: A history of policing in Western Australia, Western Australia Police Service, Perth, 2002 Cowdery, Nicholas: Getting Justice Wrong: Myths, media and crime, Allen and Unwin, Sydney, 2001 Critchley, T.A.: “The idea of policing in Britain: Success or failure?”, in J.C. Alderson and Philip John Stead (eds): The Police We Deserve, Wolfe, London, 1973 Critchley, T.A.: “Peel, Rowan and Mayne: The British model of urban police” in Philip John Stead (ed.): Pioneers in Policing, McGraw Hill, Maidenhead (UK), 1977 Deery, Phillip: Labour in Conflict: The 1949 coal strike, Hale and Iremonger, Sydney, 1978 [consequences of Rothbury incident] de Felice, Renzo: Fascism: An informal introduction to its theory and practice, Transaction Books, New Brunswick NJ, 1976 Dempster, Quentin: Honest Cops: Australians who stood up to corruption and suffered the consequences, ABC Books, Sydney, 1992 Dempster, Quentin: Whistleblowers, ABC Books, Sydney, 1997 [organisational responses to exposure of corruption] Dimelow, Mark: “Police verbals in New South Wales”, in John Basten, Mark Richardson, Chris Ronalds and George Zdenkowski (eds): The Criminal Injustice System, Australian Legal Workers Group, Sydney, 1982 Dixon, David: Law in Policing: Legal regulation and police practices, Oxford University Press, New York, 1997

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Dixon, David: “Reform, regression and the Royal Commission into the NSW Police Service”, in David Dixon (ed.), A Culture of Corruption: Changing an Australian police service, Hawkins Press, Sydney, 1999 Dixson, Miriam: “Stubborn resistance: The northern New South Wales miners’ lockout of 1929–30” in John Iremonger and John Merrit (eds): Strikes: Studies in twentieth century Australian social history, Angus and Robertson, Sydney, 1973 Eatwell, Roger: Fascism: A history, Vintage, London 1996 Ellis, Ulrich: The Country Party: A political and social history of the Party in New South Wales, F.W. Cheshire, Melbourne, 1958 Ellis, Ulrich: History of the Australian Country Party, Melbourne University Press, Melbourne, 1963 Enders, Mike: “The social construction of crime and policing”, in Mike Enders and Benoait Dupont (eds): Policing the Lucky Country, Federation Press, Sydney, 2001 Evans, Richard J.: The Coming of the Third Reich, Penguin Press, New York, 2004 [police response to fascism, Germany] Evans, Richard W.: The Pyjama Girl Mystery: A true story of murder obsession and lies, Scribe, 2004 [murder case in which MacKay was involved] Fahey, Warren: The Balls of Bob Menzies: Australian political songs, 1900–1980, Angus and Robertson, Sydney, 1989 [several songs refer to MacKay or events he was involved in] Finnane, Mark: Police and Government: Histories of Policing in Australia, Oxford University Press, Melbourne, 1994 Finnane, Mark (ed.): Policing in Australia: Historical perspectives, NSW University Press, Sydney, 1987 Finnane, Mark: When Police Unionise: The politics of law and order in Australia, Sydney Institute of Criminology, Sydney, 2002 Fitzgerald, Shirley: Sydney: 1842–1992, Hale and Iremonger, Sydney, 1992 [Bunnerong scandal] Fogarty, Walter J.: “The development of a concept of the male homosexual in New South Wales law, 1788–1900”, in Aldrich and Wotherspoon (eds): Gay Perspectives: Essays in Australian gay culture, University of Sydney, Sydney, 1992 Forsell, Nils [trans. Anna Barwell]: Fouché: The man Napoleon feared, Allen and Unwin, London, 1928 Freckleton, Ian, and High Selby: “Piercing the blue veil: An assessment of external review of police”, in Duncan Chappell and Paul Wilson (eds): Australian Policing: Contemporary Issues, Butterworths, Sydney, 1989. Fry, E.C.: Tom Barker and the IWW , Australian Society for Labour History, Canberra, 1965

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Geary, Roger: Policing Industrial Disputes: 1893 to 1985, Cambridge University Press, Cambridge, 1985 Gollan, Robin: The Coalminers of New South Wales: A history of the union, 1860–1960, Melbourne University Press, Melbourne, 1963 [background to Rothbury incident] Goodsir, Darren, Line of Fire: The inside story of the controversial shooting of undercover policeman Michael Drury, 2nd ed., Allen and Unwin, Sydney, 1995 [corruption and police culture] Grabosky, Peter N.: Sydney in Ferment: Crime, dissent and official reaction, 1788 to 1973, ANU Press, Canberra, 1977 Griffen-Foley, Bridget: The House of Packer: The making of a media empire, Allen and Unwin, Sydney, 1999 [“McNally” affair] Haldane, Robert: The People’s Force: A history of the Victoria Police, Melbourne University Press, Melbourne, 1986 John Hetherington, Blamey: Controversial soldier, Australian War Memorial and AGPS, Canberra, 1973 Hilton, Jennifer: “Psychology and police work”, in J.C. Alderson and Philip John Stead (eds): The Police We Deserve, Wolfe, London, 1973 Hoban, C.E.: New South Wales Police Force: 1862–1962, Government Printer, Sydney, n.d. [1962?] Hocking, Jenny: Beyond Terrorism: The development of the Australian security state, Allen and Unwin, Sydney, 1993 [early intelligence services] Hoyle, Arthur R.: Jock Garden: The red parson, A.R. Hoyle, Canberra, 1993 Johnston, W. Ross: The Long Blue Line: A history of the Queensland Police, Boolarong, Brisbane, 1992 Jupp, James: Australian Party Politics, rev. ed., Melbourne University Press, Melbourne, 1966 Kelly, Vince: The Shadow: The amazing exploits of Frank Fahy, Angus and Robertson, Sydney, 1954 Kelly, Vince: The Bogeyman: The exploits of Sergeant C.J. Chuck, Australia’s most unpopular cop, Angus and Robertson, Sydney, 1956 Kelly, Vince: Rugged Angel: The amazing career of police woman Lillian Armfield, Angus and Robertson, Sydney, 1961 Kelly, Vince: It Does Not Pay to Compromise: The story of Walter Richard Lawrence, Member of Parliament, Deputy Commissioner of Police and C.I.B. Detective, Epworth Press, n.d. [Sydney, 1963] Kelly, Vince: The Charge is Murder, Rigby, Adelaide, 1965 [Pyjama Girl murder and Moxley case] Kelly, Vince: A Man of the People: From boilermaker to Governor-General: A biography of Sir William McKell, Alpha, Sydney, 1971 [Rothbury incident, 1942 Police Association dispute]

292

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Lamidey, Noel W.: Partial Success: My years as a public servant, N. Lamidey, Sydney, 1970 [MacKay’s time as Director of the Security Service] Lang, J.T.: The Great Bust, Angus and Robertson, Sydney, 1962 Lang, J.T.: The Turbulent Years, Alpha Books, Sydney, 1972 Leek, Alan R.: Rat in the Ranks: Bookies, police, pimps, perjury and thugs... and the man who stood above it all, Big Sky Publishing, Newport, NSW, 2021 Lewis, Colleen: Complaints Against Police: The politics of reform, Hawkins Press, Sydney, 1999 Lindsay, Patrick: True Blue: 150 years of service and sacrifice of the NSW Police Force, HarperCollins, Sydney, 2012 Locke, Deborah Lee: Watching the Detectives: When a policewoman turns whistleblower, ABC Books, Sydney, 2003 [police culture, corruption, police alcoholism] Lowenstein, Wendy: Weevils in the Flour: An oral record of the 1930s Depression in Australia, rev. ed., Scribe, Melbourne, 1981 [Rothbury incident, policing during the Depression] Machiavelli, Niccolo [trans. George Bull]: The Prince, Penguin, Harmondsworth, 1961 [power] McCoy, Alfred: “Sport as modern mythology: SP bookmaking in New South Wales, 1920–1979” in Richard Cashman and Michael McKernan (eds): Sport: Money, morality and the media, University of New South Wales Press, Sydney, n.d. [1980] McCoy, Alfred: Drug Traffic: Narcotics and organised crime in Australia, Harper and Row, Sydney, 1980 McDevitt, Daniel S., and Mark W. Field: Police Chief: How to attain and succeed in this critical position, Charles C Thomas, Springfield, 2010 Macdonald, Richard: “Skills and qualities required of police leaders, now and in the future”, in Barbara Etter and Mick Palmer (eds): Police Leadership in Australasia, Federation Press, Sydney, 1995 Macintyre, Stuart: The Reds: The Communist Party of Australia from origins to illegality, Allen and Unwin, Sydney, 1998 [Rothbury incident, political policing] Manderson, Desmond: From Mr Sin to Mr Big: A history of Australian drug laws, Oxford University Press, Melbourne, 1993 Manning, Maurice: The Blueshirts, Gill and Macmillan, Dublin, 1970 [police response to Fascism, Ireland] Mark, Robert: “Social violence”, in J.C. Alderson and Philip John Stead (eds): The Police We Deserve, Wolfe, London, 1973 Metcalfe, Andrew: For Freedom and Dignity: Historical agency and class structures in the coalfields of NSW , Allen and Unwin, Sydney, 1988 [Rothbury incident] Molomby, Tom: “Miscarriages of justice in Britain: The Guildford Four and the Birmingham Six”, in Kerry Carrington, Maryanne Dever, Russell Hogg,

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293

Jenny Bargen and Andrew Lohrey (eds): Travesty!: Miscarriages of justice, Pluto Press, Sydney, 1991. Molomby, Tom: The Shearer’s Tale: Murder and injustice in the Australian bush, ABC Books, Sydney, 2004 [miscarriages of justice] Moore, Andrew: “Guns across the Yarra: Secret armies and the 1923 Melbourne police strike”, in Sydney Labour History Group: What Rough Beast?: The state and social order in Australian history, Allen and Unwin, 1982 Moore, Andrew: “Policing enemies of the state: The New South Wales Police and the New Guard, 1931–1932” in Mark Finnane (ed.): Policing in Australia: Historical perspectives, University of New South Wales Press, Sydney, 1987 Moore, Andrew: The Secret Army and the Premier: Conservative paramilitary organizations in New South Wales, 1930–1932, University of New South Wales Press, 1989 Moore, Andrew: “A secret policeman’s lot”, in John Shields (ed.): All Our Labours: Oral histories of working life in 20th century Sydney, University of New South Wales Press, Sydney, 1992 Mosely, Nicholas: Beyond the Pale: Sir Oswald Mosley and family, 1933–1980, Secker and Warburg, London, 1983 [police response to fascism, Britain] Munro, Jim: “Managing Australian police agencies”, in Duncan Chappell and Paul Wilson (eds): Australian Policing: Contemporary issues, Butterworths, Sydney, 1989 Nairn, Bede: The ‘Big Fella’: Jack Lang and the Australian Labor Party, 1891– 1944, Melbourne University Press, Melbourne, 1986 Ng, Sik Hung: The Social Psychology of Power, Academic Press, London, 1980 Niederhoffer, Arthur: Behind the Shield: The police in urban society, Doubleday, New York, 1967 O’Hara, John: “The Australian Gambling Tradition” in Richard Cashman and Michael McKernan (eds): Sport: Money, morality and the media, University of New South Wales Press, Sydney, n.d. [1980] O’Hara, John: A Mug’s Game: A history of gambling in Australia, University of New South Wales Press, Sydney, 1988 O’Sullivan, J.S.: Mounted Police in N.S.W.: Rigby, Adelaide, 1978 Page, Earl: Earl Page, Black Inc., Melbourne, 2001. [previously published as Truant Surgeon, 1963; “new states” movements and conservative politics, 1930s] Palmer, Mick: “Controlling corruption”, in Peter Moir and Henk Eijkman (eds): Policing Australia: Old issues, new perspectives, Macmillan, Melbourne, 1992 Parker, R.G.: The Government of New South Wales, University of Queensland Press, Brisbane, 1978 Playford, John: “Who rules Australia”, in John Playford and David Kirsner (eds), Australian Capitalism: Towards a Marxist critique, Penguin, Melbourne, 1972

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Prasser, Scott: “Royal commissions and public inquiries: Scope and uses” in Patrick Weller (ed.): Royal Commissions and the Making of Public Policy, Macmillan, Melbourne, 1994 Rawlings, Philip: Policing: A short history, Willan Publishing, Uffculme Cullompton (UK), 2002 Reiner, Robert: “Media made criminality: The representation of crime in the mass media” in Mike Maguire, Rod Morgan and Robert Rainer (eds): The Oxford Handbook of Criminology, 2nd ed., Oxford University Press, Oxford, 1997 Reiner, Robert: Chief Constables: Bobbies, bosses or bureaucrats, Oxford University Press, Oxford, 1991 Reiner, Robert: The Politics of the Police, 2nd ed., Harvester Wheatsheaf, Hemel Hempstead (UK), 1992 Roughead, William (ed.): The Trial of Oscar Slater, 4th ed., William Hodge, Edinburgh, 1950 Sarre, Rick: “Toward the notion of ‘policing by consent’ and its implications for police accountability”, in Duncan Chappell and Paul Wilson (eds): The Australian Criminal Justice System: The mid-1980s, Butterworths, Sydney, 1986 Scott, Sir Harold: Scotland Yard (1954), Mayflower, London, 1970 [Scott was Commissioner of the London Metropolitan Police, 1945–1953] Shaw, A.G.L., and G.R. Bruns: The Australian Coal Industry, Melbourne University Press, Melbourne, 1947 [Rothbury incident] Sherman, Lawrence W.: Scandal and Reform: Controlling police corruption, University of California Press, Berkley, 1978 Shields, John: “A dangerous age: Bourgeois philanthropy, the state and the young unemployed in NSW in the 1930s”, in Sydney Labour History Group: What Rough Beast?: The state and social order in Australian history, Allen and Unwin, Sydney, 1982 [police boys’ clubs] Short, Martin: Inside the Brotherhood: Explosive secrets of the Freemasons, Harper Collins, London, 1990 [Freemasonry and police] Simes, Gary: “The language of homosexuality in Australia”, in Aldrich and Wotherspoon: Gay Perspectives: Essays in Australian gay culture, University of Sydney, Sydney, 1992 [homosexuality and the criminal law] Simpson, Antony E.: The Literature of Police Corruption, John Jay, New York, 1977 Sperber, Jonathan: Revolutionary Europe: 1780–1850, Pearson, Harlow [UK], 2004 [birth of modern police forces in Europe] Stead, Philip John (ed.): Pioneers in Policing, McGraw Hill, Maidenhead (UK), 1977 [biographical sketches of important historical figures in policing]

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295

Stevenson, John: “The BUF [British Union of Fascists], the Metropolitan Police and public order”, in Kenneth Lunn and Richard C. Thurlow (eds), British Fascism: Essays on the radical right, Croom Helm, London, 1980 Stevenson, Nina: “Criminal cases in the NSW District Court: A pilot study”, in John Basten, Mark Richardson, Chris Ronalds and George Zdenkowski (eds): The Criminal Injustice System, Australian Legal Workers Group, Sydney, 1982 [police “verballing”] Swanton, Bruce: Police Employee Representation in New South Wales: Part 1A, the beginning through 1960, Australian Institute of Criminology, Canberra, 1983 Swanton, Bruce: Protecting the Protectors, Australian Institute of Criminology, Canberra, 1983 [police unionism] Swanton, Bruce and R.W. Page: “New South Wales” in Bruce Swanton and Garry Hannigan (eds): Police Source Book 2, Australian Institute of Criminology, Canberra, 1985 [brief history of the New South Wales Police Force] Swanton, Bruce: The Fabrication of Confessional Evidence: A general look at verballing, Australian Institute of Criminology, Canberra, 1986 Tiffen, Rodney: Scandals: Media, politics and corruption in contemporary Australia, University of New South Wales Press, Sydney, 1999 Tobias, John J.: “The British colonial police: An alternative police style”, in Philip John Stead (ed.): Pioneers in Policing, McGraw Hill, Maidenhead (UK), 1977 Turner, Ian: Sydney’s Burning, William Heinemann, Melbourne, 1967 [IWW affair] Valenta, Tom, and John Sherman: Drug Addiction in Australia, Michelle Anderson, Sydney, 2015 Waddington, P.A.J., and Patricia Leopold: Protest, Policing and the Law, Institute for the Study of Conflict, [UK] n.d. [c. 1985] Waddington, P.A.J., K. Jones, and C. Critcher: Flashpoints: Studies in public disorder, Routledge, London, 1989 Walker, Alan: Coaltown: A social survey of Cessnock, Melbourne University Press, Melbourne, 1945 [Rothbury incident] Walker, R.B.: Yesterday’s News: A history of the newspaper press in New South Wales from 1920–1945, Sydney University Press, Sydney, 1980 Weber, Max: The Protestant Ethic and the Spirit of Capitalism [trans. Talcott Parsons, 1930], Routledge, London, 1992 [Calvinism] Weinberger, Barbara: Keeping the Peace?: Policing strikes in Britain, 1906–1926, St Martin’s Press, New York, 1991 Whitrod, Ray: Before I Sleep: Memoirs of a modern police commissioner, University of Queensland Press, Brisbane, 2001 Whittington-Egan, Richard: The Oscar Slater Murder Story: New light on a classic miscarriage of justice, Neil Wilson, Glasgow, 2001 Whyte, William Foote: Street Corner Society: The social structure of an Italian slum, 2nd ed, University of Chicago Press, Chicago, 1955 [police corruption]

296

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Williams, Sue: Peter Ryan: The inside story, Viking, Melbourne, 2002 [Ryan was New South Wales Police Commissioner, 1996–2002] Wilson, Paul: The Sexual Dilemma: Abortion, homosexuality, prostitution and the criminal threshold, University of Queensland Press, Brisbane, 1971 Wotherspoon, Garry: “City of the Plain”: History of a gay subculture, Hale and Iremonger, Sydney, 1991 [homosexuality and criminal law in Sydney] Writer, Larry: Razor, Macmillan, Sydney, 2001 [“razor wars”] Young, Irwin: Theodore: His life and times, Alpha, Sydney, 1971b [background to Rothbury incident]

Journal Articles Astill, K.S.: “Fifty years of drug law enforcement in New South Wales”, Australian Police Journal, vol. 31, no. 4, October 1977, pp. 195–206 Baird, Barbara: “The role of the state in the regulation of sexuality: The police and violence against lesbians and gay men”, Flinders Journal of Law Reform, vol. 2, no. 1, 1997 Baker, David: “Public order policing approaches to minimize crowd confrontation during disputes and protests in Australia”, Policing: A Journal of Policy & Practice, vol. 14, no. 4, 2020, pp. 995–1014. https://doi.org/10.1093/pol ice/paz071 Borham, Susan: “Corruption in high places”, Sun-Herald, 30 Dec. 1990, pp. 20– 2 [corruption involving MacKay] Budd, Wallace: “Australian police in national waterfront riots, 1928–1931”, Australian Police Journal, vol. 44, no. 4, Oct.-Dec. 1990, pp. 137–144 Cain, Frank: “The Industrial Workers of the World: Aspects of its suppression in Australia, 1916–1918”, Labour History, no. 42, May 1982, pp. 54–62 Cain, Frank: “William John MacKay”, Australian Dictionary of Biography, vol. 9, pp. 296–7. Caro-Morente, Jaime: “The political culture of the Industrial Workers of the World: A radicalization of the Republican-Democratic political culture within the American and international labor movements”, Journal for the Study of Radicalism, vol. 15, no. 2, Fall 2021, pp. 1–34. Collins, R.: “Picket lines and police”, New South Wales Police News, vol. 79, no. 10, October 1999, pp. 23–9 Coulthard-Clark, C.D.: “Australia’s wartime Security Service”, Defence Force Journal, no. 16, May–June 1979, pp. 23–27 Dalton, Derek: “Gay male resistance in ‘beat’ spaces in Australia: A study of outlaw desire”, Australian Feminist Law Journal, vol. 28, June 2008, pp. 97– 119 Dixson, Miriam: “Rothbury”, Labour History, no. 17, 1970, pp. 14-26

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297

Dixson, Miriam: “The timber strike of 1929”, Historical Studies of Australia and New Zealand, vol. x, no. 40, May 1963, pp. 479–492 Durnian, Lisa: “‘I did not say that I would just have to swear in court and it would be alright’: Police verballing practices in Queensland courts, 1926–61”, Australian Historical Studies, vol. 51, no. 3, August 2020, pp. 250–65 Ellis, Justin, and Alyce McGovern: “The end of symbiosis? Australia police–media relations in the digital age”, Policing & Society, vol. 26, no. 8, 2016, pp. 944– 62. https://doi.org/10.1080/10439463.2015.1016942 Findlay, Mark: “‘Acting on information received’: Mythmaking and police corruption”, Journal of Studies in Justice, vol. 1, no. 1, December 1987, pp. 19–32 Finnane, Mark: “Police and politics in Australia: The case for historical revision”, Australia and New Zealand Journal of Criminology, vol. 23, 1990, pp. 218– 227 Finnane, Mark, and Stephen Garton: “The work of policing: Social relations and the criminal justice system in Queensland: Part 1”, Labour History, no. 62, May 1992, pp. 52–70 Finnane, Mark: “Deporting the Irish Envoys: Domestic and National Security in 1920s Australia”, Journal of Imperial & Commonwealth History, vol. 41, no. 3, 2013, pp: 403–25 Fleming, Jenny: “Les liaisons dangereuses: Relations between police commissioners and their political masters”, Australian Journal of Public Administration, vol. 63, no. 3, 2004, pp. 60–74 Fleming, Jenny: “Shifting the emphasis: The impact of police unionism in Queensland, 1915–1925”, Labour History, no. 68, May 1995, pp. 98–114 Fleming, Jenny and George Lafferty: “Police unions, industrial strategies and political influence: Some recent history”, International Journal of Employment Studies, vol. 9, no. 2, October 2001, pp. 131–140 French, S.: “Police-Citizens Boys’ Clubs of New South Wales”, Australian Police Journal, vol. 1, no. 3, April 1947, pp. 198–206 Gottschalk, Petter, and Stefan Holgersson: “Whistle-blowing in the police”, Police Practice & Research, vol. 12, no. 5, 2011, pp. 397–409 Grant, D.S. and M. Wallace: “Why do strikes turn violent?”, American Journal of Sociology, vol. 96, no. 5, March 1991, pp. 1117–1150 Hodge, Dino: “The police, the press and homophobia in South Australia: 1941– 1991”, Melbourne Historical Journal, vol. 39, no. 1, 2011, pp. 119–141 Hulyer, C.H.: “The amazing riddle of the red racing car: An Australian atrocity”, True Detective Mysteries, June 1934, pp. 30–35, 92 Hurst, Michael: “What is Fascism?”, Historical Journal, vol. 11, no. 1, 1968, pp. 165–185

298

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Ivkovi´c, Sanja Kutnjak: “To serve and collect: Measuring police corruption”, Journal of Criminal Law & Criminology, vol. 93, no. 2/3, Winter/Spring 2003, pp. 593–649 King, Donald: “Transport Commissioner railroaded”, Campaign, no. 42, April 1979, pp. 11–12 [Maddocks scandal] McCarthy, John: “A ‘law and order’ election: New South Wales 1932”, Journal of the Royal Australian Historical Society, vol. 20, no. 2, June 1974, pp. 105– 117 McCarthy, John: “‘All For Australia’: Some right wing responses to the Depression in NSW, 1929-32”, Journal of the Royal Australian Historical Society,, vol. 17, no. 2, June 1971, pp. 160–171 McCarthy, John: “Unions and the United Australia Party: New South Wales 1932–1939”, Labour History, No. 20, May 1974, pp. 17–23 Moore, Andrew: “Who bashed ‘Jock’ Garden? A body blow to the New Guard”, Bowyang, no. 4, September–October 1980, pp. 42–57 Shaka, Yesufu: “The reconciliation of the development and implementation of police accountability in the United Kingdom,” ScienceRise, no. 6, December 2021, pp. 68–78 Stenning, Philip C.: “Governance of the police: independence, accountability and interference”, Flinders Law Journal, vol. 13, no. 2, 2011, pp. 241–68 Swanton, Bruce: “Origins and development of police unions in Australia”, Australia and New Zealand Journal of Criminology, no. 9, December 1972, pp. 207–219 Swanton, Bruce: “Commissioner James Mitchell: A biographical sketch”, Journal of the Royal Australian Historical Society, vol. 70, no. 4, April 1985, pp. 280– 7 Swanton, Bruce and Lance Hoban: “The story of James Mitchell”, New South Wales Police News, vol. 70, no. 4, April 1990, pp. 25–27 Swanton, Bruce and Lance Hoban: “The story of Walter Henry Childs”, New South Wales Police News, vol. 70, no. 5, May 1990, pp. 19–22 Swanton, Bruce and Lance Hoban: “William John MacKay, NSW’s 7th Commissioner of Police”, New South Wales Police News, vol. 70, no. 6, June 1990, pp. 13–18 Swanton, Bruce and Lance Hoban: “James Frederick Scott”, New South Wales Police News, vol. 70, no. 7, July 1990, pp. 13–16 Swanton, Bruce and Lance Hoban: “Colin John Delaney”, New South Wales Police News, vol. 70, no. 8, August 1990, pp. 17–20 Swanton, Bruce and Lance Hoban: “Norman Thomas Allan”, New South Wales Police News, vol. 70, no. 11, November 1990, pp. 25–31 Walker, Robin: “The New South Wales Police Force, 1862–1900”: Journal of Australian Studies, no. 15, November 1984, pp. 31–50

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299

Walker, R.B.: “Violence in industrial conflicts in New South Wales in the late nineteenth century”, Historical Studies, vol. 22, April 1986, pp. 54–70 Waller, Louis: “The police, the premier and parliament: Governmental control of the police”, Monash University Law Review, vol. 6, June 1980, pp. 249–267 Weinberger, Barbara: “Policing strikes, 1906-1926”, History Today, vol. 37, December 1987, pp. 29–35 Wotherspoon, Garry: “The greatest menace facing Australia: homosexuality and the state in NSW during the Cold War”, Labour History, vol. 56, May 1989, pp. 15–28

Reference works Argus Index Australian Dictionary of Biography Borchardt, D.H. and others: Checklist of Royal Commissions, Select Committees of Parliament and Boards of Inquiry Held in Australia 1856–1980, 6 vols, various dates Sydney Morning Herald Index Who’s Who in Australia

Interviews and Private Papers The following people have either been interviewed or have written provided written information. Blackler, John Brideson, Doug Brown, Greg Chaseling, Aiden Cuneen, Chris Holman, Margaret John, Graham Smith, Mal Smith, Marion

Index

A Abbott, C.L.A. (Aubrey), conservative politician, 90–92, 114 “The Amendment”. See Police Regulations (Amendment) Act 1934 Amos, Keith, historian, 86, 112 Antonio Agostini. See Pyjama Girl case Arnot, A.J. See Bunnerong power station corruption scandal Arson plot. See IWW affair Attorney General, 221 Avery, John, Police Commissioner, 131, 157 B Babcock and Wilcox. See Bunnerong power station corruption scandal Baddeley, J.M., Labor politician, 52, 67, 69, 70, 74, 100, 212, 213 Baker, David, historian, 53, 54, 65, 74, 75, 97 Bartlett, Roy, informant in Timber strike case, 62–64, 119

Bathgate, William, victim of miscarriage of justice, 259 “Battle of Liverpool Street”, 112, 114 Bavin, Thomas, Premier, 25, 74, 127, 221 Irish “envoys” affair, 25 Rothbury incident, 74 Beattie, Alexander, Supt., 49, 68–70, 72, 73 Benbow, Dr. See Pyjama Girl case Berlin Olympic Games, 1936, 154 Blissett, Ray, police officer, 56, 58, 59, 112, 278 Bookmaking. See SP betting Brideson, Doug, police officer, 205–207, 214, 278 Brotherhood, the. See Police culture Brown, Norman, killed by police bullet 1929, 49, 51, 52, 68, 71, 74 Bruxner, Michael, transport minister, 227, 228, 230, 231 Buggery. See Homosexuality, laws against

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Evans, W.J. MacKay and the NSW Police, 1910–1948, https://doi.org/10.1007/978-3-031-10921-8

301

302

INDEX

Bunnerong power station corruption scandal Arnot, A.J., 27 Babcock and Wilcox, 27 Maling, Silas, 27 Royal Commission, 27 Sydney City Council, 27 C Calwell, Arthur, Labor leader, 2, 3, 214 Campbell, Eric, 1, 85, 86, 90, 91, 94, 101–104, 106, 107, 109–112, 114, 116, 121, 124 Camphin, Magistrate, 60, 63 Carney, T.E., Const., 217, 222–226 Chaffey, Frank, Chief Secretary, 37, 38, 40, 43, 65, 80, 124, 125, 131, 135, 136, 142, 172, 174, 184, 187, 191, 199, 247, 276 supporter of MacKay, 39 Chief Secretary (government minister usually responsible for police), 20, 29, 39, 65, 79, 102, 122, 124, 130–132, 134, 135, 142, 147, 167, 172, 183, 188, 199, 212, 276 Childs, Walter, Police Commissioner, 15, 37, 38, 40, 48, 68, 72, 92, 98–100, 102, 106, 124, 125, 128, 134, 136–138, 194, 247, 276 Chuck, Joe, Sgt. accusations of misconduct against, 192 career, 144 dismissed from force, 194 reinstatement, 193 Citizens Reserve Corps. See “Old Guard” Coal mining industry, 50, 53 Cocaine

Illicit drugs, 33 Code of silence. See Police culture Cohen, Stanley, criminologist, 41 Collings, J., Insp., 175, 178 “Colonel Campbell and Mr Lang” (comic song), 114 Communists and communism coal lockout and Rothbury incident, 1929, 80 criticise police, 94 IWW affair, 22 targets of New Guard, 100, 104, 106 timber strike, 1928–29, 55 Conscription referendum, 1916, 17 Conservatism, 88, 95, 164. See also Fascism Consorting law, 40, 41, 43, 47, 48 Corruption, 4, 27, 48, 149, 152, 154, 156–158, 160, 163, 165, 166, 176, 181, 192, 196, 218, 262, 263, 268, 269, 275, 278 definitions of, 163 theoretical models of, 164 Cosgrove, Charles, police association general secretary Boland affair, 212 Keogh scandal, 263–269 “McNally” scandal, 222, 223 overtime affair, 210 Country Defence Organisation. See “Old Guard” Criminal threshold, the, 218 Curlewis, Judge, 123, 124 D Daily Telegraph (newspaper), 25, 49, 69, 70, 135, 183, 184, 202, 217, 223, 230, 234, 236–238, 247, 248, 250 de Groot, Francis, 83–85, 100, 101, 111, 112, 124

INDEX

Dempster, Quentin, journalist, 154, 175, 279 on whistleblowers, 175 Denning, Lord, jurist. See Judicial blindness to police misconduct Denzil, Dorothy, murder victim, 233, 234, 236–239, 241, 247. See also Moxley, William Dixson, Miriam, historian, 51, 53, 55, 56, 59, 66, 78, 79 Dovey, W.R., barrister, 224 Downing, Reg, cabinet minister, 206 Drugs. See Illicit drugs Drugs, criminalization of. See Illicit drugs Dynon, John, involved in Garden assault, 118–120 E Eatwell, Roger, historian, 84, 93, 94 Evatt, H.V., lawyer and Labor leader, 60–64, 202, 214 Ewing, N.K., judge, 19, 22 Ewing Royal Commission, 1919, 22. See also IWW affair F Fahy, Frank, police officer involved in surveillance, 125, 205, 206 False confessions Antonio Agostini, 258 general, 244–245 William Moxley, 145, 249 Farmer, Henry, victim of miscarriage of justice, 158, 159 Fascism, 82, 86, 88–90, 92, 93–95, 252. See also Conservatism; New Guard The Fear. See Police culture Fergusson, George, police officer Berlin Olympic Games, 1936, 154

303

conflict over promotion, 170, 186, 200 investigation into Const. Miller, 170–172, 174 IWW affair, 22 Miller Royal Commission, 184 SP Royal Commission, 169, 170, 174, 184 Finnane, Mark, historian, 12, 24, 26, 96, 223, 226 Fouché, Joseph, French police minister, 3, 6, 96, 277, 279 Framing. See Process corruption Freemasonry MacKay and, 147 police and, 145, 147 Fruit machines, corruption scandal, 134 G Gallivan, Daniel, Sgt., 141, 150, 169, 186 involved in Mowlds raid, 160, 181 Game, Sir Philip, Governor, 85, 122 Garden, Jock, trade union leader, 55–59, 64, 80, 85, 98, 117–127 Gates, A., Magistrate, 45, 46 Gibbons, John, 246 linguistic analysis of Moxley confession, 246 Gilchrist murder MacKay claims involvement, 9 police misconduct, 10 Glynn, Thomas. See IWW affair Goldfinch, Phillip, 91 Gollan, George, Chief Secretary, 199, 276 Gosling, Mark, Chief Secretary, 102, 103, 122, 134 Grant, Donald. See IWW affair Great Depression, 48, 95 Grigg, N.W., Const., 217, 222–226

304

INDEX

H Harvey, J.M., judge. See Bunnerong power station corruption scandal Harvey Royal Commission. See Bunnerong power station corruption scandal Hill, Norman, SP bookmaker, 176, 185, 186 Hilton, Victor, SP bookmaker, 161, 180 Historical materialism, 87 Homosexuality, laws against entrapment by police, 219 Homosexual subculture, 219 Hoyle, Arthur, historian, 56, 64, 65, 80, 117, 120, 126, 127 I ICAC (NSW). See Independent Commission Against Corruption (NSW) Illegal betting. See SP betting Illicit drugs creation of NSW Drug Squad, 44, 207 moral panic, 41 Pharmacy Board Inquiry, 1931, 45 “Razorhurst”, 34 Sydney ‘Snowstorm’, 34, 41, 44 The White Peril (novel), 33 Indecent assault. See Homosexuality, laws against Indecent exposure. See Homosexuality, laws against Independent Commission Against Corruption (NSW), 165 police corruption, 175 victimization of whistleblowers, 196 Industrial disputes challenges to policing posed by, 55 Great Strike, 1917, 23 Melbourne Police Strike, 1923, 88

Northern coal lockout, 1929–1930, 50, 65 picketing, 53 reasons for violence during, 54, 71 Rothbury Mine incident, 1929, 69 timber workers strike, 1928–29, 53 Ingram, Alfred, SP bookmaker, 160, 161, 166 Inquiry into the Relationship existing between the Pharmacy Board and the Police Drug Bureau, 1931. See Pharmacy Board Inquiry, 1931 Intelligence services in Australia, 213 International Workers of the World. See IWW affair Irish “envoys” affair, 24, 29 Irish Civil War, 24 IWW affair, 16, 20, 23

J Jennings, William, Sgt., 29, 30, 161, 162, 175 clashes with MacKay, 162 implicated in corruption, 160 Judicial blindness to police misconduct, 153 The “appalling vista”, 235, 256

K Kathner, Rupert, filmmaker, 207, 208, 250 Keogh, A.J., Sgt., scandal over transfer of, 6, 263–269 Keogh Royal Commission, 264 Kirby, Richard, Judge. See Keogh Royal Commission Kirby Royal Commission, 1947, 263, 265, 269, 275 Knox, Sir Adrian, 91

INDEX

L Labor Daily (newspaper), 60, 76, 78, 103, 104, 117, 118, 121 “Labor Defence Army”, 75 Lamaro, Joseph, Labor politician, 135 Lamb, Ernest, barrister Bunnerong scandal, 27 IWW affair, 17, 60 New Guard, 111 timber strike, 60, 65 Lang, John Thomas (Jack), Premier, 52, 56, 71, 82, 85, 91, 95, 96, 98–100, 105, 109–111, 116, 118, 122, 125, 127, 134, 173, 230 Larkin, Peter. See IWW affair Lavers, Henry, murder case. See McDermott, Frederick Lazzarini, Carlo, Labor politician, 135, 147, 148, 150, 163, 164, 167, 192, 203 Linda Agostini. See Pyjama Girl case Lockouts. See industrial disputes Logan, Lightly, publican, 176, 186 Lowe, Charles, Justice. See Pyjama Girl case Lowe, Gordon, doctor, 45 Lynch, Thomas, police officer, 22, 169, 194, 221 M Machiavelli, Niccolo, 234, 276 miscarriages of justice, 234, 235 MacKay, William John agents provocateurs , 58, 109, 127, 274 Antonio Agostini, 252–254, 258 appointed Metropolitan Supt, 15, 29, 127, 175 appointed Police Commissioner, 22, 129, 225, 262, 264 Association with Freemasonry, 146

305

Bunnerong scandal, 27, 29 Calvinism, 273 consorting law, 40, 43, 44, 48 creation of Drug Squad, 44 death, 1, 260 early life, 30 efforts to remove him from office, 5 Eric Campbell, 1, 101, 106, 109, 111, 116 Gilchrist murder, 10 Great Strike, 1917, 23 Holiday house scandal, 261, 262 illnesses, 183 Irish “envoys”, 24, 29 IWW affair, 16 Jack Lang, 52, 100, 116, 230 Keogh scandal, 6, 263 lectures to police involved in SP work, 29 legacy, 12, 46 Miller Royal Commission, 184, 195, 276 Moxley Case, 247, 248 New Guard, 1, 3, 85, 93, 95, 98–103, 111, 116, 123, 126–128, 274 Oscar Slater case, 9 overshadows Walter Childs, 92, 137, 276 personal mythmaking, 10 Police Association, 136, 197, 212, 213, 222, 223, 226, 268, 275 police boys’ clubs, 206, 208, 209, 272 police moderniser, 206 promoted to inspector, 23 promoted to sergeant, 21, 23, 30 Pyjama Girl Case, 256 “Razorhurst”, 34, 35 reassertion of police power by, 115 Rothbury incident and aftermath, 1929, 77, 274

306

INDEX

Security Service, 213, 214 shorthand, skill with, 21, 255 SP Royal Commission, 5, 164, 168–170, 173, 176, 183, 184, 191, 193, 194, 274 study tour abroad, 1928, 144 timber strike, 1928–9, 53, 55 Truth newspaper, 1 use of blackmail alleged, 239 Maddocks, S.A., Transport Commissioner, 205, 227–231, 274 allegations of conspiracy against, 230–231 arrested for indecent assault, 228 Maling, Silas. See Bunnerong power station corruption scandal Manderson, Desmond, historian, 33, 34, 44–47 Manning, Henry, Attorney General, 228 Markell, Horace Francis, judge, 9, 143, 151–155, 158–161, 163–165, 167, 168, 170–173, 176, 184, 185, 188, 189, 192, 195, 196, 203, 204, 207, 262, 264 Marxist historiography, 16, 50, 88, 93, 96 Masonic Order. See Freemasonry Maxwell Royal Commission, 1954, 261, 267, 268 McCoy, Alfred, historian, 34, 35, 142–144, 166 McDermott, Devereaux, police officer, 61, 259 McDermott, Frederick, victim of miscarriage of justice, 259 McKell, William, Premier, 2, 98, 100, 206, 213, 223, 225, 276, 278 “McNally” scandal, 225

McNulty, Clarence, editor, 217, 218, 223, 224, 231 Melbourne Police Strike, 1923, 88 Metcalfe, Andrew, historian, 50, 51, 96 Miller, Mary, 176, 177, 179, 182, 186, 187 Miller, Mendelssohn, Const.. See also Whistleblowers accusations of family violence, 178 breakdown and disappearance, 178 “charges” against MacKay at Royal Commission, 174, 185 departmental charges against, 147, 182, 184 gives evidence against fellow police, 145, 147 police complicity in charges against, 185 punished for whistleblowing, 180, 187 Miller Royal Commission, 176, 177, 181, 184–189, 195–197, 276 Miscarriages of justice. See also Mowlds shop, police raid on, 1933 characteristics, 258 Henry Farmer case, 158 justifications for, 235 Moxley Case, 258 Pyjama Girl Case, 234, 256 Mitchell, James, Police Commissioner character and career, 194 Inspector McDonald affair, 14, 15 patron of W.J. MacKay, 13 Select Committee on Venereal Disease, 14 Mitchell, Roma, judge, 132 Mitchell Royal Commission, 1978, 133 Mooney, Charles, police agent, 158, 193

INDEX

Moore, Andrew, historian, 86–92, 95, 116, 117, 125, 126 historiography, critique of, 86–93 Moral panic, 41 Mowlds shop, police raid on, 1933, 141, 169, 172 Mowlds, William, victim of miscarriage of justice, 141, 142, 144, 145, 147–150, 160, 167, 169–172, 174, 178, 180, 181, 184, 186, 195 Moxley, William arrested, 237, 240, 242 confession, 238, 242, 248, 249 criminal record, 240 execution, 238 manhunt for, 236 relationship with MacKay, 237, 242, 248 N Neiderhoffer, Arthur, criminologist on police culture, 180 Nelson, Const., 171, 174 involved in Mowlds raid, 141, 169 Ness, J.T., conservative politician, 148, 150, 167, 203, 204 New Journalism, 34, 35 New Police, 39, 130, 155, 207 New South Wales Police Force colonial origins, 11 Commissioners, 13, 131, 150, 168, 184, 199, 260 corruption in, 6, 47, 260 police rowing team, 170 ranks and strength, 1936, 72, 146 sectarianism within, 30 New States movement, 92 Noble cause corruption. See Process corruption Northern coal lockout, 1929–1930, 50, 65

307

Northern Collieries Association, 66 Norton, Ezra, media owner, 35, 42, 182, 183, 187, 189, 251

O Oakes, C.W., Premier, 25 O’Flannagan, Fr Michael. See Irish “envoys” affair O’Kelly, Sean. See Irish “envoys” affair “Old Guard”, 4, 86, 87, 89–92, 104, 116, 128 Olympic Games, 170 Orilga, Luigi, murder victim. See Bathgate, William Overtime affair, 211

P Packer, Frank, newspaper proprietor, 217 Peel, Sir Robert, 130 Perrett, Const., 145 involved in Mowlds raid, 141, 180 Pharmacy Board Inquiry, 1931. See Marxist historiography Pharmacy Board (NSW), 44–46 Pimps. See Police agents Police accountability, 227. See also New South Wales Police Force attaining power within police forces, 30 corruption, 48, 149, 150, 152, 160, 163, 166, 181, 268 enemies of the state, 95 expansion of police powers, 33 guardians of social order, 97 ‘high’ and ‘low’ policing, 3 independence from government, 131, 132 industrial disputes, 53, 54, 74, 97

308

INDEX

leadership within police forces, 12, 225 new police, 39, 130, 155 Peel, Sir Robert, 130 “police property”, 40 relationship with news media, 41 Royal Irish Constabulary, 11, 130 scandal and public pressure, 9, 173 seniority principle, 13 use of force and legitimacy, 64, 96 Police agents, 63, 64, 119, 122, 123, 126, 143, 159, 193, 195, 229 Police Association (NSW), 134, 136, 197, 200, 211, 212, 222, 223, 226, 263, 267, 268, 273 clashes with MacKay, 213, 275 overtime affair, 211 Police boys’ clubs, 206, 208, 209, 272 Police culture, 5, 12, 13, 40, 131, 179, 181, 196, 197, 219, 256, 275, 278 Police leaders independence of, 129–133 qualities needed, 12 relationship with government, 131, 165 Police Regulations (Amendment) Act 1934, 5, 129, 150, 173, 201, 230 Police rowing team, 170 Process corruption, 4, 164 Prohibition. See Illicit drugs Pyjama Girl case Antonio Agostini confession, 252 body found, 249 coronial inquest, 238 MacKay perjury, 235 riddle of identity, 251 R “Razorhurst”, 34, 35

Reeve, Charles. See IWW affair Reiner, Robert, policing scholar, 10, 40, 42, 54, 79, 97, 131, 132, 179, 275 police culture, 40 police leaders, 97, 131 Report of the Royal Commission of Inquiry into Allegations Against the Police in Connection with the Suppression of Illicit Betting, 1936. See SP Royal Commission RIC. See Royal Irish Constabulary Ross, Colin, victim of miscarriage of justice, 235 Rothbury Mine incident, 1929 Communist Party and, 52, 80 inquest into shootings, 73, 74 mass pickets, 69, 76, 77 mythology of, 50 police incompetence, 71 “reign of terror” following, 76 violence during, 69, 72, 77, 80 Royal Commission into the Coal Industry, 1929–30. See Coal mining industry Royal Commission into the Matter of the trial and Conviction and Sentences Imposed on Charles Reeve and Others, 1919. See Ewing Royal Commission, 1919 Royal Commission into the New South Wales Police Service, 1997. See Wood Royal Commission Royal Commission of Inquiry into Certain matters Arising From the Report of the Royal Commission on Police and of Illicit Betting, 1937/8. See Miller Royal Commission Royal Commission of Inquiry into the Reasons for and the Circumstances Surrounding the

INDEX

Transfer of Sergeant 2nd Class Alfred John Keogh from Peak Hill to Bathurst, 1947. See Kirby Royal Commission, 1947 Royal Commission on Greyhound Racing and Fruit Machines, 1932. See Fruit machines, corruption scandal Royal commission on Liquor Laws in New South Wales, 1954. See Maxwell Royal Commission, 1954 Royal Commission on the Dismissal of H.H. Salisbury, South Australia, 1978. See Mitchell Royal Commission, 1978 Royal Commission Regarding the Contract Entered into by the Municipal Council of Sydney for Steam-raising Plant at Bunnerong Power-house, 1928–9. See Bunnerong power station corruption scandal Royal Commissions Ewing Royal Commission, 1919, 22 Harvey Royal Commission, 1928–9, 27, 28 Miller Royal Commission, 1937, 184, 195, 197, 276 Royal Commission into the Coal Industry, 1929–30, 66 Royal Commission on Greyhound Racing and Fruit Machines, 1932, 134 SP Royal Commission, 1936, 5, 151, 152, 164, 167–170, 173, 174, 176, 180, 182–185, 191–194, 197, 203, 230, 262, 274 Wood Royal Commission, 1996–7, 48, 164, 179, 245 Royal Irish Constabulary, 11, 130

309

Russell, Alec, Insp., 147, 171 Ryan, Joseph, former police officer involved in Keogh scandal, 265, 269 S Salisbury, Harold, dismissal of, 1978, 132 Sanders, Edward, government backbencher, 200, 201 Scandal, 4–6, 24, 27, 29, 129, 134, 135, 138, 141, 145, 147, 149, 150, 155, 167, 168, 173, 182, 183, 197, 200, 206, 215, 218, 222, 224, 226, 228, 230, 252, 262, 274, 275 Scott, William, involved in Garden assault, 118–123, 127 Sectarianism, 24, 30, 148 Security Service, 213, 214 Seggie, Kevin, historian, 12, 44, 64, 126, 130, 131, 144, 278 Select Committee on the Case of Second-Class Police Inspector McDonald, 1920. See Inspector McDonald affair Select Committee on Venereal Disease, 1915–16, 14 Shand, J., barrister, 183, 187–189, 195 Sheahan, W., barrister, 186, 187 Sherman, Lawrence, criminologist, 149, 150, 155, 167, 168 Sherringham, Sgt., 176, 178, 185, 187, 189, 190 Slater, Oscar, victim of miscarriage of justice. See Gilchrist murder Smith’s Weekly (newspaper), 43, 66, 234 Solidarity among police. See Police culture SP betting

310

INDEX

corruption and, 156, 158 MacKay gives lectures on, 29 Speight, Selwyn, police reporter, 2, 42 Sprowles, William, 242 figure in Moxley case, 242 SP Royal Commission Commissioner Markell, 151, 164, 167, 170, 173, 184, 197, 262 impact, 262 limitations, 167, 182 mobilization of scandal, 183, 274 origins, 151 revelations of police corruption, 168 Stevens, Bertram, Premier, 85, 90, 116, 122, 124, 133, 173, 200, 227, 238 Street Inquiry, 1918, 21 Street, Philip, judge, 19. See Street Inquiry, 1918 Inquiry Under the Police Inquiry Act, 1918, 19 Strikes. See industrial disputes Sun (newspaper), 26, 34, 35, 113, 121, 238 Sweeney, Sgt., later Supt., 178, 266–268 Sydney City Council. See Bunnerong power station corruption scandal Sydney Harbour Bridge assault on Jock Garden, 85 “Battle of Liverpool Street”, 112, 114 fascism of, 93 ideology, 93 New Guard, 84, 85 “opening” of Sydney Harbour Bridge, 83 police parade and, 137 violence by, 34

Sydney Morning Herald, 2, 16, 34, 39, 42, 59, 62, 75, 77, 81, 115, 117, 135, 138, 199, 225, 272

T Thornley case, 200 Tiffen, Rodney, sociologist, 41, 153, 168, 173 on scandals, 173 Timber workers strike, 1928–29 allegations of union “basher gangs”, 57, 119 Communist involvement in, 55 mass picketing, 65 raid on Trades Hall, 119 trial of strike leaders, 59 Truth (newspaper), 1, 33, 35, 37, 38, 41, 42, 43, 136, 138, 151, 177, 182, 183, 188, 189, 209, 212, 234, 251, 261, 262. See also Norton, Ezra Tuck, Hugo, murder victim prejudice against homosexual men, 220

U Unemployment, 95, 96, 104, 118 United Australia Party, 85, 92, 95, 122, 125, 133, 148, 205, 231, 238, 276 United Country Party, 92

V Vagrancy Act, 36, 38, 39 Verballing. See False confessions Voigt, Emil, trade union leader, 56–59, 80 Vollmer, August, police reformer, 165

INDEX

W Waller, Louis, legal scholar, 130, 131, 133 Walsh, J.J., Insp., 176, 178, 185–187, 189, 190, 239, 240, 246, 249 Miller Royal Commission, 176, 178, 185, 187 Moxley case, 240, 244 Warneford, W.J., police agent, 121–123, 125–127 Weaver, R.W.D., conservative politician coal lockout, 1929, 56 New Guard, 121, 122, 126 Rothbury incident, 69 timber strike,1928–9, 65 Wells, Ethel, murder victim. See Bathgate, William Westlaw, Steven, novelist, 33, 47 Whistleblowers, 167, 175, 180, 187. See also Police culture generally, 175–176, 179–181

311

police, 5, 150, 196, 275 The White Peril (novel), 33, 47 Whyte, William Foote, sociologist, 166 Wilkinson, Frank, murder victim, 233–234, 236, 238–239, 247 Williams, Charles, involved in Miller scandal, 147 Wilson, Paul, criminologist, 219, 235, 258 laws against homosexuality, 219 the criminal threshold, 218 Windeyer, Richard, barrister Bunnerong power station corruption scandal, 28 Miller Royal Commission, 184 SP Royal Commission, 151, 167, 180, 184 Wood Royal Commission, 48, 162, 164, 179, 181, 245 Writer, Larry, historian, 35, 40, 41