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When Ivan Polyukhovich shot himself on 29 July 1990, one day before his committal hearing for alleged war crimes under the Nazi regime in Ukraine, all the work that had gone into preparing the case against him stood to go to waste.

Polyukhovich had immigrated to Adelaide in 1949 and was arrested 41 years later, charged with several counts under Australia’s War Crimes Act, including taking part in the mass killing of 850 people. The gun shot did not prove fatal for Polyukhovich, and in June 1993 he was acquitted of all charges.

GREG JAMES QC was involved in prosecuting from 1988 to 1993 this and two other Nazi war crime cases – the only three cases brought against suspected Nazi war criminals in Australia.

In February 1987, the Special Investigations Unit within the Attorney-General’s Department was set up to investigate and recommend possible prosecutions to the Director of Public Prosecutions (DPP). Grant Niemann, one of the Deputy Directors and I were retained by the DPP to advise on and prosecute charges against persons referred to the Director by the Special Investigation Unit and, in particular, to prosecute the charges against Ivan Polyukhovich and Heinrich Wagner. A third person, Mikolay Berezowsky, was charged but the Magistrate did not commit him for trial. Legal aid was granted by the government to allow all three accused the highest level of legal representation. 

Polyukhovich exercised his right to give no evidence. He remained mute. He had earlier denied to police that he had committed any offences. A number of the charges against Polyukhovich could not be sustained due to the effects of time, particularly the death of witnesses. It was remarkable that the Special Investigation Unit was able to locate and obtain the testimony of as many witnesses as it did. 

The charges included that relating to Polyukhovich’s involvement with a pit killing in the village of Serniki. He was accused of escorting three people to the pit and shooting them personally. Eyewitness evidence was called. However, by the time of trial only one eyewitness was alive and able to testify to Polyukhovich’s actions at the pit. The important issue that arose at trial was whether the eyewitness had accurately identified Polyukhovich. 

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Michael David QC with Greg James QC discussing case management outside of the old Supreme Court building in Adelaide.

Witnesses brought to Australia to give evidence from the village clearly knew him and, indeed, some were related to him. The Special Investigation Unit had not only interviewed the witnesses but had exhumed the execution site and obtained scientific and ballistic evidence to establish the precise time and nature of death for a large number of the deceased.

Historians gave evidence at the committal and the trial, in particular as to the circumstances of the Nazi onslaught against the Jews and the implementation of Nazi policy in Serniki, in order to prove that the killings had been committed in pursuance of a policy associated with the conduct of the war or with the occupation – a necessary requisite under Section 7 of the War Crimes Act.

The defence relied upon the evidence of Polyukhovich’s first wife, who still lived in the village. She was unable to come to Australia but was prepared to give evidence that Polyukhovich had not assisted the Germans.

In order that her evidence might be taken properly, counsel and the judge went to Serniki and recorded her evidence, including a full examination-in-chief and cross-examination. The video was played in evidence to the jury.

It is apparent that the attempt to use the standards and requirements of Australian domestic laws to prosecute suspected Nazi war criminals was unsuccessful, particularly due to the age and death of necessary witnesses. It is clear that the delays were substantially due to original federal government opposition to prosecuting war criminals, so that later government commitments proved ineffectual. The failure of Australian governments to take action earlier is, with hindsight, deplorable.

The Hon Greg James AM QC returned to practise at the bar in 2012 after serving as judge of the NSW Supreme Court judge, South Australia Royal Commissioner and president of the Mental Health Review Tribunal.