A Tale of Two Cities (15 page)

Not so flashy was the grieving widow Barbara Mackay, whose persistence and quiet dignity brought media, community and national support where Grassby's antics often brought contempt. She told reporters about the eerie feeling when she saw a man rumoured to be a top L'Onorata player, possibly one of those who ordered her husband's death, ruffle her youngest son's hair in the street one day. A friend from her congregation, Lesley Hicks, wrote a book called
The Appalling Silence
. A Concerned Citizens of Griffith group pressed the New South Wales government for an investigation of the police investigation itself, which had, it seemed, gone nowhere for years.

And that is what they got: Justice Nagle's Special Inquiry into the Police Investigation of the Death of Donald Bruce Mackay. Ten years had passed since the murder; Justice Woodward had concluded an unknown hit man working for a branch of L'Onorata killed him. The Coroner had declared Don Mackay legally dead of ‘gunshot wounds' in 1984. More to the point, Frank Tizzoni was singing. Justice Nagle was critical of much, but especially critical of Parrington withholding Bruce Pursehouse's evidence (of the first attempt to lure Mackay) from the inquest and from Victoria Police. Al Grassby appeared on the stand, and Barbara
Mackay learned more and more about Grassby's vigorous promotion of the four-page document that smeared her.

The Opposition Leader, Nick Greiner, accused Al of trying to get the mafia ‘off the hook', a view many came to share as the story behind the document emerged. Grassby had no real option but to stand down from his job when the report was handed down in December 1987. One sentence of the report buried Grassby: ‘The commission makes only one comment – that no decent man could have regarded the general attacks on the Calabrians as justifying him in propagating the scurrilous lies contained in the anonymous document'.

Barbara Mackay sued Grassby for defamation and in April 1987 he issued a full, unreserved public apology and paid $5000 to cover the legal costs she and solicitor Ian Salmon had incurred.

National Crime Authority officers knocked on Angela Chan's door and arrested Grassby and took him to court in late 1987. The charges included conspiracy to pervert the course of justice (the course of the Mackay murder investigation) and criminal defamation (of Salmon, Paul Mackay and Barbara Mackay). These alleged crimes originally stipulated ‘with Robert Trimbole and others'. ‘Others' would eventually include Guiseppe Sergi, doyen of the community and father-in-law of the typewriter-owning Jennifer Sergi, who was also charged. Charges against her were subsequently dropped, mainly because there was no proof of who had used her typewriter to type the scurrilous document smearing the Mackays.

The case twisted and turned, bounced up and down from lower courts to higher ones (including the High Court itself), tore off sideways for rulings and appeals, but all at a snail's pace. For five years.

The magistrate who heard committal proceedings felt that Grassby and the Sergis had a case to answer, but the alleged
offences were already seven years cold and the civil court had already dealt with the three defamed parties' ‘injuries', as they are called in law, settled with one defendant's apology and payment of costs. The defence moved to stay proceedings and the magistrate agreed. This meant that nothing further would happen, there would be no trial, unless something new came up. Grassby was delighted but the prosecution appealed, maintaining the magistrate had no power to do this, and a judge agreed.

The prosecution was ferocious. At one stage they refused to let Grassby's team have copies of court transcripts without money paid up front; Grassby, almost broke, his legal team unpaid for years, appealed to another court; and that court ordered the copies be provided free. Every time costs were awarded to the defendants, the prosecution appealed, clearly hoping the delay would force Grassby to throw in the towel. They froze Grassby's modest assets, and a separate legal action had to be mounted to thaw them. The Director of Public Prosecutions and (behind the scenes) the National Crime Authority spared no taxpayers' dollar for a win. The defence called it a ‘vendetta'.

There is little doubt the prosecution would have squashed Grassby if his best mate had not been a barrister, with a nephew who was also a lawyer. Jennifer Sergi's defence was she didn't type the smear document, that her typewriter was widely available to many, and that she wasn't in Grassby's office on the day in question. Also, she wasn't the only Jenny married to a Sergi, a surname more common than Smith or Jones there, a point the expensive Melbourne lawyer Frank Galbally put to the court.

Eventually a trial was forced. If the prosecution couldn't get them on criminal defamation, they wanted attempted criminal defamation as a back up. The National Crime Authority, desperate for a scalp and wanting to justify the high salaries that the state police resented, had been busy. They had found two
witness, a ‘Mr Smith' and ‘Mr Jones' whose real names were suppressed.

John Foley, reading the brief of evidence in bed before the pre-trial started, was impressed with what his adversaries had. Mr Smith had worked for Ellnor's Trades Hall Hotel, but he was also Bob Trimbole's man. And at Paddy's Market, close by the pub, he had twice delivered bags with $20,000 in them, and seen Flash Al scuttle off, bag in hand. Mr Jones was cellarman at the Trades Hall. He said he'd driven marijuana from Canberra to Sydney for $500 for Flash Al, had taken delivery of wine boxes full of grass at the pub, and been present when Bob Trimbole and Al talked, noting how Al treated Bob ‘like a god'. But it was all a bit good to be true.

Eventually, the evidence of both was ruled inadmissible, and questions were asked about where the NCA had dug them up. Mr Smith was a convicted heroin trafficker and briber of police. Mr Jones, too, had ‘a long criminal history' and the magistrate, using Mr Jones's own term, called him a ‘rip-off merchant' and an ‘immoral opportunist'. In other words, hardly reliable witnesses.

The resulting trial – R v. Grassby, Sergi & Sergi – was highly technical and tedious. Ex-prime minister Gough Whitlam talked of his affection and respect for Grassby and said he was universally liked and had dismantled every vestige of White Australia policies. The jury was sent out, but it returned after eight hours to say its members could not all agree. They were encouraged to give it another try, and two hours later, returned verdicts of not guilty to defamation, but guilty of attempted defamation. Because criminal defamation charges are seldom laid, the sentence could have been anything from a slap on the wrist to three years in prison. The judge fined Grassby $7000, suggesting Grassby's motives as more misguided than calculated, and said he accepted he did not mean to cause harm.

An appeal was certain, and, in 1992, the Court of Criminal Appeal quashed the verdicts, saying they looked like compromises rather than verdicts, did not make logical or legal sense, and there was ‘a gap' between the Crown evidence and their line of reasoning. Grassby was awarded costs of $180,000, contested of course.

More than five years of litigation had not crushed Grassby's spirit. He showed his tie for the cameras – a lucky shamrock pattern. It had beaten his wallet around and the shame of the charges meant employment was difficult, but he had a role in the administration of the Racial Discrimination Act and on ethnic radio. He wrote books on battlefields – military history an enthusiasm arising from his days as a junior British Army intelligence officer at the close of World War II, and on multicultural, republican and political themes. An Order of Australia, Italian government honours and a UN peace medal were conferred on him during the time of his dark cloud and after it cleared. He continued to spend most of his time with Angela Chan in Sydney, but never severed ties with Ellnor in Canberra. He eventually died of heart failure while ailing with kidney cancer, in a Canberra hospital in 2005, aged 78.

There were two funerals: a state funeral at St Christopher's Cathedral in Canberra with an Irish piper playing and his ‘official wife' Ellnor as chief mourner, and civil libertarians and political friends and co-workers. The following week, another funeral was held at St Patrick's Cathedral in Sydney with a flamenco guitarist and writers, actors, journalists and Sydney friends. Chief mourner at this one was his companion of 25 years, Angela Chan.

As if two funerals weren't enough, Slippery Al also left two wills – and headaches and heartaches for the two wives in his life. For although he left little – ‘half a house, an old VW and his army uniform' his lawyer guessed – both women had claims. In
Sydney, Grassby had signed a will in February 2005 thought to be in Angela Chan's favour. But in March or April, the month of his death, he had made another that might have gone the other way.

In death, as in life, Al Grassby was flamboyant, weak and shifty. All the things Don Mackay wasn't.

Many Griffith residents wanted Mackay to receive a posthumous Order of Australia to acknowledge that he had died trying to do good and to counter the false rumours started by Grassby's criminal connections. But this was against official protocol.

In 1986, a senior Victorian police officer spoke at a public meeting in Griffith. He called on concerned citizens to fight to ensure that Mackay's campaign did not die with him. He suggested they raise funds for a special scholarship in his name to promote the study of organised crime. The Donald Mackay Churchill Fellowship has been awarded annually ever since, usually to a police officer to study overseas. The officer who made the call was Fred Silvester, first head of the Australian Bureau of Criminal Intelligence.

Martin ‘Mr Asia' Johnstone: playboy dealer whose murder destroyed Clark's empire.

Douglas Wilson: from Auckland Grammar to a shallow grave. Isabel Wilson: hitched to Douglas, hooked on heroin, hit by Bazley. Inset: Taj, the Wilsons' pet, which Bazley refused to kill.