by James Morton
Police officers writing their memoirs have an unfortunate tendency to write themselves a larger role in investigations. The great postwar English detective Robert Fabian wrote how he came home to his wife and said, ‘I’ve solved my first murder’, when in fact he had merely drawn a plan of the murder scene. MacKay was no different. He claimed to have been instrumental in solving the 1908 murder of Marion Gilchrist while he was in the Glasgow police force. He maintained that he left the force in protest over what he saw as the paltry sum of £68 reward out of a total of £200, but in fact he does not appear in any of the proceedings. In any event the case is not one with which an officer should be proud to be associated. The evidence against highly unpopular bludger Oscar Slater was a mishmash of fabrication, suppressed exculpatory evidence and prompted misidentification. Slater was sentenced to death but was reprieved. He was awarded £6000 compensation after his conviction was quashed in 1928.
Within three months of arriving in Sydney, MacKay joined the New South Wales Police Force and, unlike the men already there who had to wait twenty years or more for meaningful promotion, his rise was rapid. Unusually for police officers, he knew shorthand and was sent to take notes of the speakers at Industrial Workers of the World (IWW) meetings at the Domain. During the First World War, the IWW was protesting at the conviction of one of its leaders, Tom Barker, for sedition. It was also bitterly opposed to conscription, which was being proposed to assist the war in Europe. The subsequent prosecutions were another example of fudged evidence: agents provocateurs, and dubious and lying witnesses gave perjured evidence that led to the men’s convictions and long sentences. In a list prepared by Mitchell of officers who had played an important part in the case, MacKay was at the top. He was in line for a reward and also promotion to sergeant. He did not, however, feature in a second list of meritorious officers. Also promoted to third-class sergeant, but this time in the detective division, was Constable George ‘Monkey’ Fergusson, who had persuaded a witness, McAlister, to give false evidence.
A royal commission headed by Justice NK Ewing in 1920 found a great deal of what was called, through a misprint in the report, ‘efictiitiousvidence’. He upheld the convictions of five of the men but, ordering their release, effectively quashed their sentences. Ewing found that there was no evidence MacKay had embroidered his notes, but McAlister, on whose evidence an arson charge rested and whom Fergusson had ‘safeguarded and nursed at home’, was described as an agent provocateur.
Two years later MacKay was in charge of reorganising the police transport system in the Great Strike and was promoted to sergeant second class. In 1920, after he had successfully organised the Prince of Wales’ visit to Sydney, he was promoted to sergeant first class. Three years later he was moved to the detective branch and made officer in charge of the detectives of No 1 Division. By January 1925 he was acting inspector third class. In January 1928, as inspector second class, he was officer in charge of the CIB.
As for Fergusson, his path had not been quite as clear. In 1919 allegations were made that he had been taking money on a regular basis from bookmakers. But, as is often the case, it was the bookmakers who were charged with conspiracy to falsely accuse him of bribery. The first jury disagreed and the attorney-general then dropped the charges against them.
The road to hell is regularly paved with good intentions, and the New South Wales Vagrancy (Amendment) Act 1929 is a shining example. This law was passed following a time when men such as ‘Snowy’ Cutmore and Norman Bruhn, self-exiled from Melbourne, were standing over prostitutes and cocaine dealers, and there were fears of a major gang war. Then, in June 1927, Bruhn was shot dead in Darlinghurst and three months later Cutmore was shot and killed when visiting his wife and mother back in Melbourne. By the end of the 1920s the crusading Truth, never a paper to eschew a few paragraphs of purple prose, reported:
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 that 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.
Even the rather more sedate Sydney Morning Herald had joined in, with reports of a ‘Crime Wave’ and suggestions that Cabinet was worried by the current state of affairs. More police were promised and there was an immediate increase in the strength of the CIB.
This was the opportunity for what sociologists call a symbolic crusade conducted by moral entrepreneurs: a situation that arises when, in the guise of reform for the public good, entrepreneurs are able to advance their own causes, which are not necessarily the same as those of the crusade. Good examples of such crusades are those that occur in relation to pornography, drugs and temperance.
The time was ripe for the so-called consorting laws, in practice an amendment to the Vagrancy Act. These would make it an offence to mix with other criminals. While Mitchell and Superintendent Walter Childs were not convinced of the need, MacKay took the opportunity to press for them. For him they would enhance the power of the police. For his then ally Truth, the laws would demonstrate the power of the press.
It was during the debate on the proposed legislation that Linda Littlejohn and Jessie Street, both prominent feminists, wrote to the Legislative Assembly presciently pointing out not only that prostitutes would be treated unfairly if the Bill became law but also that, more dangerously, ‘It will open the way to bribery and corruption of the police—a very dangerous public consequence’.
In 1962 Lance Hoban, in his official history of the New South Wales Police Force, praised the Vagrancy (Amendment) Act 1929, seeing it 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 the best training ground of all for aspiring young detectives to acquire knowledge of the ‘under-world’ and the criminal element generally.
In reality the amendment merely created another class of ‘police property’, to stand alongside gays, Aboriginals, students, prostitutes and drug takers: men and women regarded by the police as the untermensch and sometimes derisorily called ‘dingoes’, who could be arrested or used for sport at the whim of a police officer without any fear of reprisal.
Thirty-five years on from the praise bestowed by Hoban, the Wood Royal Commission took the opposite view, saying that the consorting laws had been open to abuse and indeed had been 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.
Back in 1930, one of the principal beneficiaries of the legislation was MacKay, and the next year popular magazine Smith’s Weekly reported:
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 of Kings Cross. Let’s Really see it in Action.
In March 1932, at the age of forty-six, MacKay was assigned to take charge of the Metropolitan Administrative District, so becoming the second most senior man in the New South Wales force. His appointmen
t as commissioner in March 1935 was universally approved, and on 10 February that year Truth again led the tributes:
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!
The first major scandal of MacKay’s career had begun in November 1933, with what was apparently an unremarkable arrest of a shopkeeper for illegal betting. It was one of around 3000 cases a year, of which nearly 100 per cent resulted in a conviction. Although off-course betting had been made illegal in 1906, SP (starting price) bookmakers could be found in almost every hotel in the state standing by the bar and near the telephone.
Bookmaking was one of the so-called victimless crimes—prostitution and sly-grogging were among others—which provided considerable revenue for the court system. MacKay established a specialist squad to deal with SP bookmakers. Each of six areas in Sydney had a special squad devoted to dealing with licensing and bookmaking offences and in addition there was a ‘flying squad’, based at police headquarters, that could operate throughout the city.
But apart from the requirement of obtaining two witnesses, there were problems with obtaining convictions. For a start, because officers were well known in their own communities, the police had to rely on a system of infiltrators, pimps and informers to obtain the evidence. One of the infiltrators used extensively and patronised by MacKay was Sergeant Joe Chuck, who effectively made a whole career out of disguising himself to gain entry to sly-grogs and hotels where SP bookmaking was thought to be taking place. According to his admiring biographer, Vince Kelly, Chuck made over 15 000 arrests in his twenty-year-long career. There were other problems. Evidence could easily be fabricated and a corrupt officer could establish a form of taxation with one or more bookmakers.
Four plainclothes police officers claimed they saw William Mowlds taking bets in his Marrickville ham and beef shop. They also said that they found lists of horses, which they alleged were proof he was taking bets. Mowlds denied making the calls they claimed and said that the lists were of bets he had legally placed. He was convicted and fined £20, reduced on appeal to £5.
Despite the reduction in his fine, Mowlds would not lie down, and he had certain things in his favour. First, he had no previous convictions and was well thought of in his community. Second, he had high-ranking Masonic friends. Third, one of the officers, Mendelssohn Miller, regularly used by the squads for undercover work, was also a Mason. Fourth, Miller was unhappy about his part in the raid on Mowlds. Through his Masonic connections Mowlds’ friend and bailsman Charles Williams approached Inspector Alec Russell, head of the flying squad. Miller was interviewed and convinced Russell that the raid had been a fake.
An internal inquiry was conducted by Monkey Fergusson, by then an inspector. (Fergusson’s name, and that of his son Donald, regularly crop up over the years in dark corners of New South Wales Police history.) Fergusson took a different view. Miller was the liar and the other three officers the genuine ones. Mowlds’ complaint was dismissed and, as regularly happens to whistleblowers, Miller was recommended for disciplinary charges.
Still Mowlds would not roll over, and on 3 March 1936, three years after the raid, the matter was raised in parliament by Carlo Lazzarini, the Labor member for Marrickville. He put forward a motion to establish a select committee to inquire into accusations against the police, claiming that on race days the police deliberately framed men to obtain convictions. At the time it was almost impossible to defend such a prosecution. In 1936 only 42 out of 5586 prosecutions resulted in an acquittal. Lazzarini did not hold back:
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 a 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.
Even, or perhaps particularly, from a former chief secretary these were fighting words. What Lazzarini wanted was a select committee that could move swiftly and make recommendations. The government thought otherwise and opted for a more cumbersome royal commission. The advantages of this were that the government could be seen to be taking the matter seriously, and by the time the commission made its report the public would have lost interest in the origins. And the government could almost guarantee that the commissioner in charge would be pro-police.
Some years later journalist Sean Padraic wrote:
First, you narrow the terms of reference as much as you possibly can; secondly you choose your chief investigator who in turn chooses the investigation team; third you choose the legal team; and finally, you choose the judge. Having done all this you know what the answers are going to be.
But just sometimes, as Robert Burns wrote, the best-laid plans of mice and men ‘gang aft a-gley’ and they nearly did with the appointment of a new judge, Horace Francis Markell, as the royal commissioner. Variously described as a man who would believe the best of the worst of his fellow men and a judge who was ‘deeply grounded in the law’ and who ‘drove through to his conclusions in a manner which never deviates’, Markell was no malleable governmental tool. He was not prepared to whitewash the police, although, correctly, he was quite prepared to give them the benefit of any doubt. Where there was overwhelming evidence of guilt he did what he described as ‘my unpleasant duty’. He did, however, set a pattern that was followed by successive commissioners throughout Australia: if a witness against the police was of bad character then he could not be believed. Markell, like so many, would not accept that those of bad character were the most likely to suffer at the hands of the police without fear of redress. Although he may not have known it, Markell subscribed to the rotten-apple theory. Sadly, here were corrupt and dishonest officers, but they were individuals. There was no systemic corruption:
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.
So far, so good, but then:
Without in any way seeking to minimise the gravity of the position … the cases which were investigated before this Inquiry go [back] to 1930, 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.
In fact, Markell had received many more complaints than he had investigated and indeed had discouraged would-be complainants. In the report there was also a word of praise for MacKay:
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.
Perhaps, after all, the government and MacKay were reasonably well served by Markell.
In the wash-up Markell found against twenty-two officers, and sixteen, including two sergeants, were dismissed from the force. As for poor Mendelssohn Miller, his troubles were far from over. The Mowlds case would produce another two royal commissions, with Miller the focus of both of them.
During the commission Fergusson, his wife and son, Don, had been at the Berlin Olympics, in which
Don had been part of the Australian rowing squad. Also on the squad were Merv Wood, later to become police commissioner, and another promising officer, Merv Reilly, later to go to prison for smuggling. On his return the temporarily discredited Fergusson set about retrieving his reputation. The whole thing had been a Masonic conspiracy against him and, letter by letter, he dripped poison about the character and ability of Miller.
In the summer of 1936 the police turned up again at Mowlds’ ham and beef shop. This time the raiding party was far more illustrious because in their number were Superintendent Lynch and MacKay himself. This time theirs was a rescue mission, with the aim of proving that, from where the police had been positioned three years earlier, it would have been possible to see and hear Mowlds place his bets. Mowlds had said no and Fergusson had said yes, but crucially in his findings Markell, who had visited the shop during the commission, had said no and that therefore the police were lying: ‘I am totally unable to understand either the conclusions at which he [Fergusson] arrived or the reasons he put forward for arriving at them’.
Any police commissioner will want to clad themself with loyal supporters, but MacKay was not always a good judge of character. His support of Joe Chuck was possibly not one of his finest moves and now he supported Fergusson. On 22 December he and the superintendent decided that Mowlds could have been seen and heard placing the bets, and MacKay had himself photographed holding the receiver to his ear. He called for a second commission to vindicate Fergusson. As Dr Evans points out, this may have been a pre-emptive strike. There were already murmurs about an inquiry into the administration of the police, and MacKay’s move might narrow the terms and make them less dangerous to him and his force. He wrote to Attorney-General Frank Chaffney complaining that Markell’s findings had been based on the belief that Miller was a man of truth. Every step that could be taken to show the reverse would be taken.