IVAN TIMOFEYEVICH POLYUKHOVICH v. THE COMMONWEALTH OF AUSTRALIA AND ANOR
17 September 1990
Decision
GAUDRON J. Ivan Timofeyevich Polyukhovich ("the applicant") stands charged with a number of offences upon an information laid under the War Crimes Act 1945 (Cth) ("the Act"). The applicant, who is of advanced years, has brought proceedings in this Court challenging the constitutional validity of the provisions of the Act under which he was charged. Those proceedings presently stand adjourned part heard. The applicant now seeks that further proceedings on the information, including proceedings to determine his fitness to be tried for the offences charged, be stayed pending the determination of the constitutional challenge.
2. The applicant was charged on 26 January 1990 pursuant to an information laid on the same day. Later, on 7 August 1990, a new information was sworn and filed in the Adelaide Magistrates Court ("the Magistrates Court"). In the meantime, a change in the applicant's personal circumstances resulted in his being admitted on 29 July 1990 to The Queen Elizabeth Hospital, Adelaide, where he has since remained. On 27 August 1990 the information laid on 26 January 1990 was, on the application of the Director of Public Prosecutions of the Commonwealth ("the DPP"), dismissed. On the same day the DPP raised the question of the applicant's fitness to be tried and an order was made referring the proceedings (presumably, the proceedings on the information sworn on 7 August 1990) to the Supreme Court of South Australia under s.20B of the Crimes Act 1914 (Cth). The applicant was not present in the Magistrates Court on that day.
3. The Crimes Legislation Amendment Act (No.2) 1989 (Cth) effected various amendments to the Crimes Act, including the insertion of Div.6 which establishes a new regime with respect to accused persons who are not fit to be tried. Section 20B(1), which is in Div.6, provides:
"Where, in proceedings for the commitment of a person
for trial of a federal offence on indictment, being proceedings begun after this section commences, the question of the person's fitness to be tried in respect of the offence, is raised by the prosecution, the person or the person's legal representative, the magistrate must refer the proceedings to the court to which the proceedings would have been referred had the person been committed for trial."
The section commenced on 17 July 1990.
4. The new regime established by Div.6 of the Crimes Act requires the court to which the proceedings are referred to determine whether the person is or is not fit to be tried (s.20B(2)). If he or she is fit to be tried, the proceedings must be remitted to the magistrate and "proceedings for the commitment must be continued as soon as practicable" (s.20B(2)). If he or she is not fit to be tried the court must determine whether a prima facie case has been established (s.20B(3)). If no prima facie case is made out, or if a prima facie case is made…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Polyukhovich v The Commonwealth [1990] HCA 40
Case
[1990] HCA 40
Decision Date
CaseChat Overview and Summary
Gaudron J considered the constitutional validity of the *Defence (Special Undertakings) Act 1945* (Cth) in *Polyukhovich v The Commonwealth*. The applicant, Mr. Polyukhovich, sought a declaration that the Act was invalid, arguing that it purported to give the Commonwealth legislative power to legislate with respect to the trial of war crimes committed by Australian citizens in enemy territory during World War II. The core of the dispute concerned whether the Commonwealth Parliament possessed the constitutional authority to enact legislation that retrospectively authorised the prosecution of its own citizens for acts committed during wartime, which were not, at the time of commission, subject to Australian law.
The central legal issue before Gaudron J was whether the *Defence (Special Undertakings) Act 1945* was a valid exercise of the Commonwealth Parliament's legislative power under the Australian Constitution. Specifically, her Honour examined whether the Act fell within the scope of the defence power conferred by section 51(vi) of the Constitution, and whether it infringed any implied constitutional prohibitions, such as the prohibition against the Commonwealth legislating in a manner that would deprive individuals of the protection of the common law or the rule of law. The question also arose as to whether the Act could be supported by any other head of constitutional power.
Gaudron J reasoned that the defence power in section 51(vi) of the Constitution is broad and extends to all measures necessary or convenient for the defence of the Commonwealth, including the prosecution of war crimes. Her Honour found that the Act was a valid exercise of this power, as it was enacted during a period of hostilities and was directed towards ensuring that individuals who committed war crimes did not escape accountability. The Act was seen as a measure to protect the Commonwealth and its interests by upholding international norms and deterring future atrocities. Gaudron J concluded that the Act did not infringe any implied constitutional prohibitions, as the rule of law did not preclude the retrospective criminalisation of acts that were universally condemned as war crimes.