Jago v The District Court of New South Wales and Ors.

these statements were made and in what circumstances as he is unable to obtain evidence from various witnesses, some of whom are dead and others cannot be found; 2. that a Nikolay Nikitovich Daviborshch is a person who might reasonably be expected to give evidence which contradicts Mr. Zhilun and he will not travel to Australia to give evidence and cannot be compelled to do so; 3. that he is unable to obtain evidence from other persons each of whom might reasonably be expected to give evidence which contradicts Mr. Zhilun; 4. that due to the passage of time the applicant is unable to investigate the evidence of Mr. Zhilun of identification of the man who committed the war crime who the Crown says is the applicant. 4. The application proceeded on the basis that all of the evidence contained in the statements of witnesses and in the oral testimony of witnesses at the preliminary hearing will be lead at the trial. The applicant declined the suggestion of the Crown that his contentions for the exclusion of evidence should be heard and determined before this application was resolved. 5. The Act makes specific reference to applications of this type. Ss.13(4) and (5) provide:- "13.(4) Nothing in Part II or subsection 9(1) shall be taken to exclude, limit or otherwise prejudice: (a) the application in proceedings for offences against this Act of the normal rules of evidence and procedure that apply in proceedings for offences against the laws of the Commonwealth; or (b) any of the powers of a court in respect of proceedings for offences against the laws of the Commonwealth, including, but not limited to, the powers of a court to take action to prevent an abuse of process. (5) Where, on the trial of a person for an offence against this Act, the person satisfies the judge, on the balance of probabilities, that: (a) the person is unable to obtain evidence that he or she would, but for the lapse of time or some other reason beyond his or her control, have been able to obtain; (b) the person's inability to obtain that evidence has substantially prejudiced, or will substantially prejudice, the preparation or conduct of his or her defence; and (c) the interests of justice require the making of an order under this subsection; the judge may make such order as he or she thinks appropriate for a stay of proceedings for the offence." 6. It may be seen that sub.(4) preserves the power of the Court to order a stay of proceedings on common law principles and sub.(3) provides for particular circumstances justifying a stay. 7. In order to appreciate the issues raised by this application, it is necessary to describe, in brief terms, essential features of the case against the applicant on the basis of the evidence at the preliminary hearing and other evidence referred to in the affidavits filed in support of, and opposition to, the application. The evidence discloses that in southern Ukraine at relevant times there was a town, village, or area, the evidence is unclear, known as Shprinfeld which was occupied mainly by ethnic Germans known as Volksdeutsche. Nearby is a town by the name of Ustinovka with a relatively small population mainly of native born Ukrainians. A short distance away is a small village known during the war as Izraylovka but now called Berezovatka. Germany invaded the Soviet Union on 22nd June 1941. On the Ukrainian front the German army took Ustinovka on 7th August 1941 which, together with Izraylovka was under German occupation until March 1944 when the German army withdrew as part of the retreat of the German army from the Soviet Union. 8. Germany established police forces in occupied territories, including in the Ukraine. There was the schutzpolizei (city police), the gendarmerie (countryside or rural police) and schutzmannschafter. Both gendarmerie and schutzmannschafter were stationed in Ustinovka during the occupation. Only Germans could be members of the gendarmerie. The schutzmannschafter were recruited from ethnic Germans living in occupied territory and from native Ukrainians. 9. In accordance with German policy, extermination of Jews was undertaken in the Ukraine. A technique adopted for this purpose was what has been described as "pit killings". A large pit would be dug. Jews would then be rounded up and taken to the pit. They would be required to remove their clothes and proceed into the pit where they would be executed by gun fire. The evidence discloses that on a day between 1st May 1942 and 31st July 1942 Schutzmannschafter were dispatched from Ustinovka to Izraylovka where they were kept overnight. The next day Jews were rounded up, assembled at a building in the village called the medical building and escorted to the pit where they were executed. It is alleged that 104 persons were killed on this occasion. Later in the day the mothers of children known as mischlinge were required to bring the children to a building in Izraylovka. They did so, having been falsely informed that the children had to be registered. Some 19 children, aged between 4 months and 11 years, were taken from their mothers, placed upon an horse-drawn cart and taken to the pit where they were grabbed by police, thrown into the pit and shot. The pit was later filled. In 1991 it was excavated and skeletal remains of adults and children were found on different levels. The upper level contained the remains of 19 children, the ages of whom were estimated by experts to be as I have mentioned. For the purposes of this application, it may be accepted that the killing of the adults and children constitutes a War Crime pursuant to the Act. The Crown case is that the applicant participated in the rounding up of the Jews and in the killing, and in particular that he personally shot one of the children. 10. Mr. Zhilun was a member of the schutzmannschafter and was sent to Izraylovka on this occasion. He was ordered to participate in the rounding up of the Jews and he did so. According to him, a man called Wagner, who was in the schutzmannschafter, was at the medical building when he returned from that exercise. The Crown case is that this man is the applicant. I shall refer to him as Wagner. Wagner admonished Mr. Zhilun about the escape of a young Jewish girl, threatened him and told him to go and search for her. He purported to do so by searching the wrong area. His evidence is that during the rounding up she had run away and he had permitted her to escape. Her surname may have been Loshkin or Lozhanin. Apparently there is some issue as to whether her given name was Muna or Bela and as to her age. Indeed, there may have been a child of some other name. 11. Mr. Zhilun returned to where the Jews had been assembled and reported that he could not find the girl. The Jews were then escorted away from Izraylovka, including by Mr. Zhilun. Before they arrived at the pit, the gendarme in charge told Mr. Zhilun and another man to return to the village and report to a man called Stuhlberg. When the children were brought to the village council building, Mr. Zhilun said they were placed upon a horse-drawn cart which was driven by Mr. Daviborshch, with Mr. Zhilun aboard, towards the pit. At the preliminary hearing Mr. Zhilun's evidence was that the cart, with the children, was driven to within five or six metres from the pit. Gendarmes, schutzmannschafter and other police were present. They grabbed the children, shot them and threw them into the pit. He said that Wagner was present at the pit and took the youngest child from the cart and threw the child into the pit and shot him, or her, in flight. According to him, Mr. Daviborshch was also present. 12. Mr. Zhilun's evidence is crucial to the Crown case. There is no other evidence to establish that Wagner was at Izraylovka on this day, that he admonished and threatened Mr. Zhilun and participated in the rounding up of the 104 Jews or that he was at the pit and shot the child. His evidence, if accepted, is capable of proving that Wagner committed the War Crime as alleged. He has not identified the applicant and was unable to identify his photograph, taken in about 1949, in a photoboard identification, as the man Wagner. The Crown seeks to establish that link by other evidence which is largely circumstantial in nature. This evidence, if accepted, is capable of proving that the applicant did live at Shprinfeld and at Ustinovka during the Second World War and that he had a connection with the schutzmannschafter and the gendarmerie. I need not set out the detail of this evidence. It is sufficient to say that without Mr. Zhilun's evidence, the Crown cannot prove that Wagner committed the War Crime and consequently cannot prove the case against the applicant. It must also be borne in mind that Mr. Zhilun undoubtedly participated in the War Crime and must be regarded as an accomplice. After the war, in 1947, he was arrested by the MGB, an agency of the Soviet Union and was charged with a serious crime, convicted and sentenced to imprisonment for 25 years. He was released in about 1956. 13. During the course of the investigation by the MGB Mr. Zhilun was interrogated and documents were prepared purporting to contain statements made by him. The documents have been referred to as protocols of interrogation. It appears on the face of the protocols that the statements of Mr. Zhilun, or some of them, have been recorded verbatim, or substantially so, that he acknowledged that what he had said had been correctly recorded and read to him and that he signed each protocol at near the bottom of the last page. The protocols reveal that the first interrogation so recorded took place on 29th March 1947. The protocol records Mr. Zhilun as saying that he participated in the round-up of Jews on the occasion in question. He said they were shot but he did not participate in the shooting. He said they were shot by policemen of German origin who, prior to the war, had lived in the Ustinovka Region, including Wagner (spelt Vagner). He was also questioned about his participation in the apprehension of the children. In the course of acknowledging his involvement he said:- "Lozhanin's daughter, also Jewish, aged 13, was at her aunt's place in Berezovatka; her mother had been arrested earlier. Ivashchenko and I went after the girl to her aunt's place and arrested her. On the way to the Village Administration Office this girl started to run away from us. When she had run about 100 metres I fired at her with my rifle, twice. The girl ran away and ran into Fyodor Mishchenko's house, where I caught her again and brought her to the Village Administration Office. In the Village Administration Office she stayed with her mother, she was sent to the shooting site with her." 14. As might be expected this part of the protocol was put to Mr. Zhilun in cross-examination at the preliminary hearing as a previous inconsistent statement. He admitted that he was interrogated and that he signed a record of the interrogation. He denied having made the statement in the protocol which I have set out. He said that he did not read the protocol before signing it and that someone had included this statement without his having said it. He went on to say that he did not shoot at anyone. 15. The second interrogation occurred on 2nd April 1947. With respect to the killing of the children, the protocol records that he said:- "Answer: In summer 1942 I, together with GERING, arrested in the village of Berezovatka in all 12 children of Jewish nationality. They were all brought on a cart with DAVIBORSHCH, an inhabitant of the village of Berezovatka, by us to the village of Kovalevka. Near Kovalevka they were all shot by the German gendarmerie, the Ustinovka and Bobrinets police. The bodies of the children were buried by inhabitants of the village of Kovalevka who were specially detailed for this by the gendarmerie. I did not take any part in the shooting of these children apart from participating in escorting them to the place of shooting. Question: It is known to the investigation that, on arriving on the cart at the village of Kovalevka with the children arrested by you, you personally threw them down from the cart into the pit and shot them with a sub-machine gun. Do you admit that? Answer: No, I don't admit that, since I and GERING brought those children to the place of shooting on a cart; an inhabitant of the village of Berezovatka, the driver DAVIBORSHCH was with us. The German gendarmes and policemen took them from the cart and threw them into the pits. In the pit the children were then finished off by these same policemen and gendarmes. I knew that the arrested children were to be shot later, but I could not fail to arrest them since it had been ordered by MARCHIK, the Head of the Ustinovka District Police, who actually sent me to carry out the arrests. Having brought the children to be shot, I did not watch them shoot the children as I was verysqueamishabout that." 16. He was again questioned about the incident of the girl who fled from him:- "Question: .... (illegible) ... that you in the summer of 1942 during the arrests of the Jews, detained Yelena NEKHASHKINA, who was fleeing from you, brought her to the village administration office and shot her. Do you admit this fact? Answer: No, I deny it because I did not know Yelena NEKHASHKINA at all. It is true that during the arrests of the Jews by us in the village of Berezovatka Mariya LOZHKINA fled from arrest across the roof of a house, but on the orders of KOZHAN, the Head of Police, I had to detain her. But I didn't look for her at all. The LOZHKINs and SHAPSHELs lived together and, with the policeman IVASHCHENKO, I arrested them, 11 persons in all. But, having brought them to the village administration office, they began to call them out according to a list; the LOZHKINs' little girl, aged 13, was missing and IVASHCHENKO and I went back for her to the flat, to her aunt's where the girl was supposed to be. We found the little girl at her aunt Nadezhda LOZHKINA's place and took her with us. On the way to the village administration office she started to run away from us but I shot at her with a rifle two times. Later she was brought by us to the village administration office and sent to be shot together with her mother." 17. When cross-examined at the preliminary hearing he said that he could not remember being interrogated on this occasion and signing this protocol. However, he did deny making this statement about the girl and said it had been made up. He went on to say that someone must have put something in the protocol which he did not say. 18. The third interrogation involved a different procedure. On 21st May 1947 a woman by the name of Tatyana Kirsanovna Shul'kina was brought into the presence of Mr. Zhilun and questioned about the killing of the Jews on the subject occasion. 19. She described the police escorting Jews from their homes on the occasion in question. She went on to say that later she saw Mr. Zhilun chasing a girl of about 13 years called Bela Lozhkina and that she heard a shot whilst the girl was running to a house. The girl ran inside and Mr. Zhilun went into the home and brought her out. She also described the children being loaded on to a cart by Mr. Zhilun and another policeman by the name of Gering. Mr. Zhilun was then asked if he "corroborated the testimony" of Mrs. Shul'kina. Once again he gave his version of the events of that day consistently with what he had said on the previous occasions, including that one of the policemen who shot the children was a man called Vagner who, in this statement, he said was a gendarme. He also told of his involvement in the incident concerning the girl. He is recorded as saying:- "This was happening still during the arrest of the adults. When I and the policeman Ivashchenko brought the Lozhkin family totalling 12 persons, which we had arrested, to the Village Administration Office, the Elder or the clerk of the Village Administration Office checked them off against a list and Bela Lozhkina was not among those brought there by us. Then I went with Ivashchenko back to the flat for her, where we did indeed get her. On the way to the Village Administration Office Bela started to run away from us and ran in to Fedora Tishchenko's kitchen garden. I then fired twice from the rifle after her, but she ran into Fedora Tishchenko's house. After this I went into Fedora Tishchenko's house with Ivashchenko and we took Bela off to the Village Administration Office. Bela was then sent off to be shot together with the group of over 40 adults." 20. When cross-examined at the preliminary hearing the answer which I have mentioned ending with the part which I have underlined was put to him and he admitted having said it and that it was the truth. When he was questioned about his evidence-in-chief that he had seen the children shot and asked which version was correct, he said he did not remember what he had said in the protocol, that he did see them being shot and that what is recorded in the protocol was untrue. 21. On 5th June 1947 Mr. Zhilun appeared before a Military Tribunal of the Kiev Military District. It is unnecessary for present purposes to recite all that appears to have happened on this occasion. It is sufficient to say that documents reveal that Mr. Zhilun gave what is described as testimony, in the course of which he recounted his version of the events involving the rounding-up of the Jews and the taking of them towards the place of their execution and, later, the taking of the children to the pit. He went on to say:- "When I came there, the Jews weren't there anymore, they had all been shot by the German gendarmerie which, as soon as the cart with the children arrived, began to pull them off the cart, to throw them into the pit and to shoot them. I didn't see what happened after ... immediately. I personally did not directly participate in the shooting; I don't know if any of the policeman did. The German gendarmes did the shooting." 22. Other evidence discloses, or is capable of proving, that the applicant may not, at that time, have been a member of the gendarmerie. In answer to questions asked by the Chairman, he said (inter alia):- "The German gendarmes did the shooting." "Perhaps policemen shot too but I didn't see it." "There were about 5 gendarmes and more than 20 policemen." "When they started to shoot the children I left and did not go up to the pit." "No, I did not go up to the pit into which the bodies were put." 23. Also he said that there was an incident when a little girl ran away but he denied that he shot at her or that he inflicted any wounds on her. 24. It may be seen that the alleged inconsistencies relate to important matters. Did Wagner admonish and threaten Mr. Zhilun and send him out to search for the young Jewish girl? Did he find her and shoot at her and re-capture her or did she escape earlier? Did he see any of the children shot at the pit or did he not watch because he was squeamish? Was the shooting done only by gendarmes and therefore not by Wagner? Extensive enquiries by both the Crown and the Defence have revealed that none of the persons present at the interrogations by the MGB of Mr. Zhilun or present at his trial before the Tribunal are alive or can be found, with the exception of Mr. Daviborshch who gave "evidence" at the trial. However, the trial record does not reveal if he was present when Mr. Zhilun gave his "evidence". If he was, he may now give evidence as to what Mr. Zhilun said at his trial. 25. The first ground upon which the application for the stay is based is that the applicant cannot now prove that Mr. Zhilun made these inconsistent statements should he, at the trial, deny that he did so. Ss.28 and 29 of the Evidence Act 1929 enables proof to be given of prior inconsistent statements "relative to the subject matter of the cause", and provides for the circumstances in which such proof may be given. The purpose of proof of these statements is to contradict the witness with his own prior inconsistent statements with a view to establishing that he is an untruthful or unreliable witness and that his evidence should not be accepted, on crucial issues, or to raise a reasonable doubt about those matters. 26. The importance of Mr. Zhilun and his evidence must not be under-estimated for the reasons I have mentioned. The Crown acknowledges that it cannot prove the charge against the applicant unless it can prove beyond reasonable doubt that the applicant shot the child at the pit. It is said that Mr. Zhilun is the only witness who claims to have seen such an incident and whose evidence provides a basis, along with other evidence, for concluding that the applicant was the man who shot and killed the child. If the jury does not accept his evidence on crucial matters, then, it would seem that the accused cannot lawfully be found guilty. 27. There is evidence to the effect that the statements recorded by the MGB and the record of the proceedings before the Tribunal are inaccurate. The records of the interrogation of Mr. Zhilun all bear what purports to be his signature. At the preliminary hearing he said that he did sign them but they did not record what he said. According to him, the incriminatory statements were fabricated. Since the preliminary hearing, he has signed a statement in which he gives a different explanation. He says, inter alia, that he was in fear of being beaten and so he agreed with whatever was put to him by the investigators. A handwriting expert is of the opinion that the signatures are not those of Mr. Zhilun. An expert in languages has expressed the view that Mr. Zhilun could not have been recorded accurately. It is likely that, should the trial proceed, Mr. Zhilun will deny that he made these statements in so far as they are inconsistent. Of course, there are also problems with translation and interpretation, for example, if Mr. Zhilun did utter the Russian words which have been translated as "I did not watch ..", there may be an issue as to what those words are capable of meaning. Of course, those sorts of problems commonly exist where there is translation from one language to another and it does not follow that they would necessarily be solved if those who heard the words spoken were called as witnesses. Furthermore, it must be acknowledged that most of what Mr. Zhilun is recorded as telling the interrogators and the Tribunal accords with his evidence at the preliminary hearing and facts proved by other evidence. 28. It may also be seen that the protocols contain denials by Mr. Zhilun of serious allegations which may not be consistent with fabrication of his version as he alleged. 29. Nevertheless the ability to impeach a witness by proven inconsistent statements from his own mouth cannot be under-estimated. The Crown has acknowledged that, without assistance, the Defence could not prove these statements in the face of Mr. Zhilun's denials. It makes the following concession in order to resolve that problem: should the defence cross-examine Mr. Zhilun with a view to proving prior inconsistent statements and for the purpose of impeaching him as a witness and his evidence, the Crown will consent to the protocols and the transcript of the hearing before the Tribunal being tendered and put before the jury as authentic documents from official sources in the former Soviet Union and it will not attempt to adduce any evidence to prove whether the contents of the documents are accurate or inaccurate. It will not agree that Mr. Zhilun said what is contained in the documents because that matter is not within its knowledge, it cannot ascertain one way or the other whether that is the case and Mr. Zhilun has denied it. Mr. David QC contends that this concession does not overcome the real difficulty for the defence. That difficulty is that upon Mr. Zhilun denying that he said what is contained in the statements, the defence will not be able to call any evidence to prove that he did make the statements beyond tendering the documents themselves. Consequently the jury will be left with the oral testimony of Mr. Zhilun contradicted only by documents, the accuracy of which he denies. Furthermore, he may well advance reasons for the inaccuracies in the documents along the lines he has stated in the recent witness statement. Mr. David contends that whatever evidence he may give as to the contents of the statements and the circumstances in which they were made, the defence is unable to call the investigators or those present at the trial before the Tribunal and consequently the applicant cannot now have a fair trial. Of course, it is also true that because these persons are dead or cannot be found, the Defence cannot further investigate the circumstances in which the statements were made and whether they are accurate. 30. The considerable investigations undertaken thus far have located only one potentially relevant witness, Andrey Filipovich Bardas. During the war he served as an Intelligence Officer in the Soviet Army. Between 1946 and 1952 he was employed in the Investigation Department of the KGB (perhaps the MGB) in the Kirovograd Region. He attained the rank of Captain and performed the duties of a Senior Investigator. In 1946 and 1947 he investigated alleged War Crimes within the Kirovograd Region, which embraces Ustinovka and Izraylovka and he was responsible for five subordinate investigators in his Department. He cannot now remember their names but he does vaguely remember the name Yegorov Junior Lieutenant V. Yegorov is the name and rank of the interrogator appearing on the protocols of the second and third interrogations of Mr. Zhilun and it is thought that he was also the interrogator on the first occasion. Mr. Bardas has deposed in an affidavit sworn at Svetlovodsk in the Ukraine on 28th May 1993 as to the procedure adopted in 1946 and 1947 in the investigation of the alleged War Crimes. I set out the relevant part of the affidavit:- "viii) The following procedure was adopted: (a) Information was received from various sources regarding War Crimes that occurred in the area. (b) A preliminary investigation was conducted prior to speaking to the Accused whereby witnesses would be spoken to about the alleged offences, sometimes a written statement was taken and sometimes it was not. (c) Once the Procurator issued the authority to arrest and the accused was arrested the Accused would then be interviewed and the details would be recorded in a Protocol of Interrogation. (d) It was important that the acceptance or denial of accusations was accurately and objectively recorded because further investigation and witness interviewing may have been indicated. (e) If the Accused denied the accusations put to him then a Confrontation between the Accused and the relevant witnesses would be arranged. At the Confrontation the Accused and the witness would be present at the same time and all details would be accurately and objectively recorded in a Protocol of Confrontation. (f) The protocols along with other papers were sent to the Chief Procurator for review and if he found they were complete and appropriate they were forwarded to the Tribunal hearing the matter. (ix) The Accused was allowed to deny or accept all, part or none of the allegations put to him during the Protocols of Interrogation. (x) It was important that Protocols of Interrogation and Protocols of Confrontation were recorded accurately and objectively because all matters were reviewed at the Tribunal hearing and any inaccuracies would become apparent at that hearing. Any disputes with witnesses would become the subject of oral evidence at the Tribunal hearing. My subordinates were aware that I expected accuracy and objectivity in the recording of evidence and that any lapse in procedure would reflect badly upon our Department. (xi) At the end of each Protocol taken from the Accused the Accused either read the Protocol or had it read to him, any corrections or alterations required by the Accused were made and then it would be signed by the Accused." 31. Mr. Bardas was shown the protocols dated 24th March 1947 and 29th March 1947 and recognized them as protocols of interrogation. With respect to the first of them he deposed that the handwriting had similarities to his, but due to the lapse of time, he could not now say that it was his handwriting. He went on to say that he "vaguely" recognized the signature on that document as his signature but even after reading the document he had no recollection of the interrogation of Mr. Zhilun or the investigation of him. With respect to the other protocol which he was shown he did not recognize the handwriting or the signature but he did recognize it as a protocol of interrogation. He was shown a photocopy which was a poor copy and difficult to read. He went on to say that the investigations undertaken by him were conducted correctly and accurately and that he was confident that his subordinates also conducted their enquiries in the same manner. 32. Mr. Bardas is in poor health and is unable to travel to Australia to give evidence. However, it appears that he could give evidence in the Ukraine should evidence be taken on commission. 33. It must also be acknowledged that this is not a case where the evidence of a crucial Crown witness cannot be contradicted by the Defence. Mr. Zhilun's incriminating evidence is of conduct of Wagner and in the presence of Mr. Daviborshch. In conformity with his right, the applicant has not revealed the nature of his defence at this stage, although it appears from the record of interview that his defence may be that he was not at Izraylovka or the pit on the day in question and that he had left the area some weeks or months before. So the applicant may give evidence to that effect and, as matters stand at present, there is the evidence of what he said in the record of interview to that effect. Of course, Mr. Daviborshch may give evidence contradicting Mr. Zhilun's version of events. Whilst there is some dispute between the Crown and the Defence as to what Mr. Daviborshch does say about the events in question, he has made at least one statement in which he says that he and Mr. Zhilun never went to the pit with the children. They were stopped some distance away, perhaps about 500 metres, and the cart with the children on board was driven by someone else. Mr. Zhilun thereafter patrolled the road. If Mr. Daviborshch gives this evidence, then it would directly contradict Mr. Zhilun on a crucial matter. Also, the Crown accept that the evidence of Mr. Bardas may be placed before the jury along with the protocols which contradict, to some extent, relevant features of Mr. Zhilun's evidence. 34. I now turn to the principles which should be applied in deciding an application of this nature. In R v Polyukhovich (as yet unreported 22nd December 1992) Cox J considered an application for a stay in the only other prosecution for a War Crime under the correct legislation thus far. That application was made in accordance with common law principles. He observed that the leading cases in this country are Barton v The Queen [1980] HCA 48; (1981) 147 CLR 75 and Jago v The District Court of New South Wales and Ors. [1989] HCA 46; (1989) 168 CLR 23. It was accepted that Cox J had correctly stated and applied the relevant principles. He was not concerned with the application of s.13(5). In his reasons for judgment he discussed relevant provisions of the Act. There is no reason for me to do likewise and I adopt what he said. Strictly speaking this is not a delay case in the sense that after 50 years witnesses cannot be expected to accurately recall and recount relevant events and observations, although, to some extent, that may be expected. It is, in the main, a delay case in the sense that the passage of such a long period of time has resulted in the unavailability of persons who may be able to assist in the investigations by the defence and give relevant evidence which could exculpate the applicant. As in Polyukhovich there is no complaint of prosecutional oppression or dilatoriness. The War Crimes Act did not come into force until 1989 and the applicant was arrested and charged on 5th September 1991. Principles which may be drawn from the judgment of Cox J are as follows:- 1. It would be a rare case in which mere delay, even very long delay, would lead to a stay in the absence of some evidence of actual prejudice to the applicant: p.9. 2. Abuse of process in this context is all about the risk of an unfair trial and what may be done about it: p.10. 3. Every case must be judged on its facts, with particular attention to any countervailing steps, such as procedural directions or warnings to the jury that may be taken before or during the trial, to deal with apprehended unfairness: p.10. 4. A fair trial is not the same as a perfect trial and it is not the case that a trial will necessarily be unfair in the relevant sense unless all possible witnesses are available to give evidence: p.10. Cox J went on to observe at p.12:- "It is noteworthy that the War Crimes Act expressly acknowledges the necessity of a fair trial for any person accused of a war crime, particularly having regard to the gravity of the allegations and the remoteness of the period with which the Act is concerned. See the Preamble and s.13." 35. In Jago v District Court of New South Wales and Ors. (supra) Mason CJ, at p.33, said that in safeguarding the interests of the accused that the touchstone in every case is fairness. He went on to say:- "The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial ..." and at p.34:- "To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton per Wilson J at p.111". 36. Brennan J, at p.47, acknowledged that obstacles in the way of a fair trial are often encountered in administering criminal justice. He mentioned the examples of adverse publicity, adverse revelations in a public enquiry, absence of competent representation and, the basis of the present application, the death or unavailability of a witness and said that they do not cause the proceedings to be permanently stayed. He went on to say:- "Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer". 37. He accepted that more radical remedies may be needed to prevent an abuse of process of which there are two categories: where the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The War Crimes Act prevents this present prosecution falling within the first category. The question is whether it falls within the second category. Brennan J took the view that it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court's control, at p.48, and went on to say, at p.49:- "By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge's responsibilities are heavy but they are not discharged by abdication of the court's duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether

the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circusmtances outside judicial control impair absolute fairness. To take an obvious example, the administration of the criminal law in notorious cases could be brought to a halt by adverse media publicity. To admit a power to stay a case permanently for delay causing prejudice seems wrongly to undervalue the efficacy of the orders, rulings and directions of a trial judge in removing unfairness to an accused caused by delay or other misconduct by the prosecution." 38. Unlike in Polyukhovich, the applicant here seeks to invoke s.13(5) as well as s.13(4). The effect of s.13(5), in my view, is to make it plain that, in the limited circumstances postulated, namely the inability to obtain evidence, the interests of justice may require that there be a stay of the proceedings even though the accepted unfairness is due to circumstances outside the control of the Court. Such a provision is to be expected where persons are to be prosecuted for events which occurred so long ago. Nevertheless, in my view, the common law principles which I have mentioned must also be applied where the application is made pursuant to s.13(5) and in considering whether the applicant has been, or will be substantially prejudiced, consideration must be given to what steps may be taken to remove or substantially reduce the prejudice. In considering whether the interests of justice require the proceedings to be stayed, the balancing exercise of the interests of the applicant and the interests of the community must be undertaken. 39. Usually an application of this nature would not be decided upon the basis of what a witness might say in evidence at a trial. It is possible that Mr. Zhilun may give a different version of important events than he gave at the preliminary hearing. It would normally be necessary to wait and see what occurs at the trial. However, there are sound reasons for deciding this ground of the application at this stage on the basis that the evidence of Mr. Zhilun at the trial will be substantially the same as given at the preliminary hearing, because if I was to decide in favour of the applicant, the very substantial cost of the trial would be saved. So, I proceed on that basis. 40. In my view, the perceived prejudice to the applicant does not warrant a stay on common law principles or pursuant to s.13(5). The concession of the Crown as to the means of proof of the previous statements reduces the perceived prejudice considerably in that the Defence is not now prevented from proving them. Also, it is significant, in my view, that the witness who cannot now be called could only have given evidence as to matters going to the credit of Mr. Zhilun. They could not have proved facts exculpatory of the accused, such as an alibi. Other evidence is available which contradicts Mr. Zhilun in crucial respects. 41. Whilst it must be acknowledged that the missing witnesses could have assisted the Defence, their absence does not, in the circumstances, justify a stay of the proceedings and this ground must fail. 42. I now turn to the second ground of the application. For present purposes I accept that he could give evidence contradicting Mr. Zhilun on crucial matters and that if his evidence is accepted by the jury, Mr. Zhilun could not have seen Wagner shoot the child with the consequence that the applicant could not be lawfully found guilty. He has given statements to representatives of both the Crown and the Defence. He lives in the Ukraine and I accept that he refuses to travel to Australia to give evidence and it is only in that sense that the applicant is unable to obtain his evidence. 43. There is no suggestion that Mr. Daviborshch would not voluntarily give evidence if it is to be taken on commission in the Ukraine. I accept that it is possible for his evidence to be taken in that way and for that exercise to be recorded on video tape. He may be examined, cross-examined and re-examined in the usual way and the video tape played to the jury. As I understand the position, the trial judge may take the evidence on commission so that rulings as to admissibility can be made in the usual way at the appropriate time and defence counsel at the trial may attend. Mr. James Q.C. intimated that if requested by the Defence to do so, the Crown will call Mr. Davisborshch. 44. So, the only possible prejudice to the applicant is that Mr. Daviborshch will not give his evidence in the presence of the jury. It is accepted that there are practical difficulties in taking the jury to the Ukraine. Mr. Zhilun is willing to return to Australia to give evidence at the trial. 45. Mr. David contends that such a course would result in the applicant not having a fair trial because these two crucial witnesses would give evidence in a different manner, one in the presence of the jury and the other not. 46. It is impossible to say if such a difference would have any relevant impact on the jury. I suspect not as there is necessarily some second-hand aspect of their testimony as both of them would give evidence in their native tongue, Ukrainian, which would have to be translated to the jury. Nevertheless the Crown is willing to avoid any possibility of such prejudice to the Defence by having the evidence of both men taken on commission and in the same manner. Whether or not that course should be adopted will have to be decided in due course. If evidence is to be taken from another witness or witnesses in the Ukraine, it may also be convenient to take Mr. Zhilun's evidence in that way. However, if that does not occur, I would not regard these two witnesses giving evidence in a different way as depriving the applicant of a fair trial. The jury will have his evidence to consider and may be appropriately directed as to any matters which they should bear in mind when assessing the two men and their evidence. It must be expected in cases of this nature that some witnesses may refuse to travel to give evidence or may not be able to do so due to ill health or advanced age and that the facility to take evidence on commission would be employed. This ground must also fail. 47. The third ground relates to five persons, all now dead or believed to be dead, who could have given evidence about the activities of Mr. Zhilun on the day of the killing which would, or could, contradict his evidence in some respects, particularly in relation to the incident with the young girl who ran away, and may have a bearing on the question of whether he could implicate Wagner in any way. These persons include Mrs. Shul'kina. They all made statements to Russian investigators in 1947, written records of which are available. Mr. James intimated that the Crown would not object to these statements being admitted into evidence as evidence of the truth of their contents if the Defence so wishes. A consequence is that there would not only be direct evidence as to important matters which could not be tested by the Crown by cross-examination, but also evidence which would contradict evidence of Mr. Zhilun and is capable of causing the jury to doubt his evidence and his credibility. Of course, evidence given in that manner may not have the same impact as oral testimony by a witness in the presence of the jury, but imperfections of that nature must be expected when a prosecution is brought so long after the subject events occurred. There is no reason to conclude that the applicant will be deprived of a fair trial because these persons cannot now be called to give evidence and the interests of justice do not require the proceedings to be stayed. Indeed, they occur whenever an important witness is unable to give evidence. 48. I now turn to the fourth ground. As I have mentioned, Mr. Zhilun is unable to identify the applicant as the man Wagner who he says participated in the killings on the day in question. That man, he says, was known to him by that name. It is by other evidence that the Crown will attempt to establish that Wagner is the applicant. 49. Mr. David contends that the Defence is unable to now test this identification by Mr. Zhilun of the man as Wagner due to the passage of time. Furthermore, the reliability of that evidence was compromised by the investigating police officer telling Mr. Zhilun that "our interest is principally in a man who is now in Australia named Heinrich Feodorovich Vagner and we understand this person is known to you". The onus of establishing that the circumstances require the proceedings to be stayed rests upon the applicant both at common law and pursuant to s.13(5). There is no evidence to suggest that the applicant has not been able to obtain evidence relating to this matter which he could, but for the lapse of time, have obtained. However, the evidence does suggest that representatives of the applicant have made extensive enquiries in the Ukraine. Whilst I have not been informed of the nature of all of these enquiries, it has not been suggested that there was evidence, now unavailable, which could have established that Mr. Zhilun was wrong in describing the man as Wagner or that the accuracy of such description is doubtful. There is evidence which is capable of proving that the applicant did live at Ustinovka at relevant times, that he came from Shprinfeld and that he was associated with the police. Mr. Zhilun describes the man Wagner as coming from Shprinfeld. Whilst it may have been unfortunate that the police officer mentioned the name Vagner when he did, the evidence does not suggest that Mr. Zhilun's recollection has been contaminated for that reason. He did mention Vagner to the Russian investigators in 1947 and when shown a photograph of the applicant he was not able to identify him. It may be that the mention of the name in these circumstances can reflect upon the accuracy of Mr. Zhilun's evidence, but that is a matter for the jury and is not a ground for a stay either when considered alone or in conjunction with other matters. 50. In these reasons I have discussed each ground of the application separately but I have considered the combined force of the circumstances of each ground. Even so there is no sufficient reason to stay the proceedings and the application is dismissed.

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

R v. HEINRICH WAGNER No. SCCRM 92/780 Judgment No. 4016 Number of pages - 16 Criminal law and procedure - Abuse of process (1993) 66 A Crim R 583 [1993] SASC 4016 (30 June 1993)

Parties

Legislation Cited (4)

Cases Cited (3)