Polyukhovich v. The Commonwealth of Australia and Another

Court	High Court of Australia, Australia
Case number	F.C. 91/026
Decision title	Order
Decision date	14 August 1991
Parties	Ivan Timofeyevich Polyukhovich The Commonwealth of Australia and Another
Other names	“War Crimes Act Case”
Categories	Crimes against humanity, War crimes
Keywords	Extra-territorial jurisdiction; principle of retroactivity; Ukraine; war crimes; World War II; external affairs; crimes against humanity
Links	Order
Other countries involved	Ukraine

Summary

Ivan Timofeyevich Polyukhovich was born in the village of Serniki in the Pinsk region, Ukraine. Polyukhovich became an Australian citizen in 1958. In January 1990, a case was brought against Polyukhovich in Australia for his alleged involvement in the mass killing of approximately 850 people from the Jewish ghetto in Serniki village and for killing 24 other people between August and September 1942. Their bodies had been exhumed in June and July 1990. On 18 May 1993, Polyukhovich was acquitted because there was not sufficient evidence to continue with the case.

Procedural history

In January 1990, a case was brought against Ivan Timofeyevich Polyukhovich in Australia. Polyukhovich was charged under the amended Australian War Crimes Act, because he was allegedly responsible for war crimes committed in Ukraine between August 1942 and May 1943, a period in which Ukraine was occupied by Germany. According to the charges, Polyukhovich was responsible for the murder of 24 Jews, including women and children, as well as for his complicity in the murder of more than 850 others.

On 25 January 1990, Polyukhovich was arrested following an arrest warrant issued by the Adelaide Magistrates Court.

On 3 September 1990, the High Court of Australia began hearing a challenge to the constitutional validity of the War Crimes Amendment under which Polyukhovich was charged.

On 17 September 1990, the Court issued an order for stay of the proceedings to determine whether Polyukhovich was sufficiently fit for trial.

Related developments

On 28 October 1991, the prosecution opened the case against Polyukhovich in the Adelaide Magistrate Court.

On 5 June 1992, all charges were dismissed except for charges relating to six murders.

On 22 December 1992, Justice Cox ruled on the application of Polyukhovich claiming abuse of process. Justice Cox decided that the trial could commence before two juries.

On 1 March 1993, the pre-trial arguments began.

On 18 March 1993, the trial before the Supreme Court jury began.

On 18 May 1993, the jury acquitted Polyukhovich of charges brought under the Australian War Crimes Act due to lack of sufficient evidence to prosecute the case.

Legally relevant facts

In 1941, when Ukraine was occupied by Germany, Polyukhovich collaborated with the Wehrmacht, the German army from 1935 to 1945.

Polyukhovich was prosecuted pursuant to the 1945 Australian War Crimes Act, according to which any person who committed a war crime in Europe between 1 September 1939 and 8 May 1945 can be charged with an indictable offence. The person charged only needs to be an Australian citizen or resident at the time he or she is charged.

Polyukhovich brought an action seeking a declaration that the War Crimes Act as amended in 1988 is invalid, and, or in the alternative, a declaration that sections 6(1), 6(3), 7, 9 and 11 of the War Crimes Act as amended are invalid. First, he argued that the law was beyond the legislative powers conferred upon the Australian Parliament by the Constitution with respect to external affairs. Second, Polyukhovich argued that section 9 of the War Crimes Act, because it attempts to make past criminal conduct an offence, is an invalid attempt to usurp the judicial power of the Commonwealth while that power is being vested in so-called Chapter III courts, which are part of the Australian federal judiciary and therefore able to discharge Commonwealth judicial power (para. 2).

Core legal questions

Is the amended Section 9 of the War Crimes Act 1945 invalid?

Was the War Crimes Act 1945 a valid exercise of Australian’s external affairs power?

Was Section 9 of the War Crimes Act 1945 an invalid attempt to usurp the judicial power of the Commonwealth?

Specific legal rules and provisions

The Australian Constitution, 1900:

Section 51 - Powers of the Parliament

Judiciary Act 1903, Australia:

Section 68 - Jurisdiction of State and Territory courts in criminal cases

War Crimes Act 1945, Australia:

Section 5 - Interpretation
Section 6 - Serious crimes
Section 7 - War crimes
Section 9 - War crime to be indictable offence
Section 11 - Only Australian citizens or residents to be prosecuted
Section 17 - Defence based on laws, customs and usages of war

Court's holding and analysis

On 14 August 1991, the High Court of Australia ruled on Polyukhovich's application.

In respect of the exercise of external affairs, by a majority of six to one, Judge Brennan dissenting, the Court held that the War Crimes Act was a valid exercise of the external affairs power. Judges Mason, Deane, Dawson, Gaudron, Toohey and McHugh stated that the War Crimes Act was valid because it is a law with a subject matter related to the external affairs of Australia.

Judge Mason also stated that it is sufficient that the Parliament considered that Australia had an interest or concern in the subject matter of the legislation in order to sustain its validity, rather than that the Court should decide on this (para. 19). With regard to the circumstance that the law operates on conduct committed by persons who, at the time of commission, had no connection with Australia, Judge Mason held that ‘the externality of the conduct which the law prescribes as the foundation of the criminal offence is enough without more to constitute it as a law with respect to external affairs’. Therefore, ‘it makes no difference whether the law creates a criminal liability by reference to past or future conduct, so long as the conduct is external to Australia’ (para. 21).

Judge Brennan dissented. He stated that ‘there must be some nexus, not necessarily substantial, between Australia and the “external affairs” which a law purports to affect before the law is supported by [section 51 of the Australian Constitution]’ (para. 12). He held that the subject of war crimes in World War II did not qualify as an external affair at the time (1939 to 1945), and that ‘the mere acquisition of Australian citizenship or residence in Australia does not transform earlier extraterritorial conduct that was not a matter of Australia’s external affairs when it was engaged in into a matter of Australia’s external affairs’ (para. 20).

Judge Toohey noted that it was not sufficient that the War Crimes Act dealt with matters outside Australia. According to him, the subject matter also had to 'touch and concern' Australia. In this regard, he held that it is ‘for the Parliament to determine’ if a subject matter touches or concerns Australia (paras. 8-9). Judge Toohey was of the opinion that there was a sufficient connection between the subject matter of the War Crimes Act and Australia because it relates to conduct that took place during World War II which touched and concerned Australia.

The majority (four to two) rejected Polyukhovich's claim that the War Crimes Act 1945 purported to usurp the judicial power of the Commonwealth. While the majority all accepted that a bill of attainder would offend the Commonwealth separation of powers, the fact that a law operated ex post facto did not automatically make the law a bill of attainder. In addition, an ex post facto law of the kind under consideration was not a usurpation of judicial power.