R v Heinrich Wagner (No. 2) No. 4222 Judgment No. SCCRM 92/780 Number of Pages 16 Criminal Law and Procedure War Crimes Act 1945 (1993) 68 a Crim R 81

[1993] SASC 4222

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Criminal law and procedure - jurisdiction - War Crimes Act, s.13(5) - whether 'on the trial' means that application may only be commenced after trial commences - consideration of when trial commences - jurisdiction to hear application before accused put in charge of jury.
War Crimes Act 1945 (Cth) - application to stay trial permanently on grounds that the accused is unable to obtain evidence that but for the lapse of time or for some other reason beyond his control he would have been unable to obtain - claim that accused is substantially prejudiced - substantial prejudice not established - prejudice mitigated by procedures which may be adopted at trial - application refused.
War Crimes Acts.13(5); R v Tonner (1984) 80 Cr App R 170; Attorney-General's Reference No 1 of 1988 (1988) 49 SASR 1; Cheatle and Anor v The Queen (unreported, 26.8.93, High Court 93/034); Kolalich v DPP for NSW
(1991) 173 CLR 222 and R v His Honour Judge Noud, ex parte MacNamara (1991) 2 QdR 86.

HRNG ADELAIDE, 11-13 October 1993 #DATE 18:10:1993
Counsel for DPP:            Mr G James QC with Mr G Niemann
Solicitors for DPP:         Director Of Public Prosecutions
Counsel for applicant:     Mr M David QC with Ms B J Powell
Solicitors for respondent: Legal Services Commission (SA)

ORDER
Applicaton refused.

JUDGE1 MULLIGHAN J The applicant made an application on 3rd September 1993 for a permanent stay of these proceedings pursuant to s.13(5) of the War Crimes Act1945 (Cth). In brief terms the grounds of the application are that the applicant is unable to obtain evidence that he would but for the lapse of time or for some other reason beyond his control have been able to obtain which has substantially prejudiced or will substantially prejudice the preparation or conduct of his defence. 2. An earlier application to stay the trial on the grounds of abuse of process and pursuant to s.13(5) was dismissed by me on 30th June 1993. In reasons for judgment published on that occasion I set out in some detail the nature of the proceedings, the grounds of the application, and the reasons why the stay should not be granted. To some extent the present application re-visits some of those grounds, however that basis of the present application is limited to the grounds set out in s.13(5). 3. Strictly speaking, it is not the application of 3rd September 1993 which is to be heard and determined. Prior to the hearing the applicant made an application in the Civil Jurisdiction of the Court to have certain matters determined by the Full Court before the hearing of the application. The Director of Public Prosecutions filed an application seeking determination of most of the same matters. They relate to whether the applicant may make an application, and whether the Court may hear and determine the application, at this stage of the proceedings. The Chief Justice refused the application to have the matters determined by the Full Court in advance of my hearing the application and so it was necessary to determine the question of jurisdiction before embarking upon the hearing of the application. I did so and gave my decision in the form of a ruling intimating that I would give reasons for that decision at a later time. I now give those reasons. 4. S.13 of the Act provides as follows:-
"13.(1) Section 68 of the Judiciary Act 1903 applies in
    relation to an offence against this Act as if a reference in
    that section to a Territory did not include a reference to an
    external Territory.
    (2) Where a person is charged with an offence against this
    Act, then, for the purposes of:
    (a) determining whether a court of a State or internal
    Territory has jurisdiction in relation to the offence;
    (b) an exercise of jurisdiction by such a court in relation to
    the offence;
    (c) a proceeding connected with such an exercise of
    jurisdiction; and
    (d) an appeal arising out of, or out of a proceeding connected
    with, such an exercise of jurisdiction;
    this Act has effect, in relation to an act that is, or is
    alleged to be, the offence, as if:
    (e) a reference in subsection 6(3) or section 18 to a part of
    Australia were a reference to that State or Territory; and
    (f) without limiting subsection 6(2),
    all defences under the law in force in that State or Territory
    when the person is charged with the offence had been defences
    under the law in force in that State or Territory at the time of
    the act.
    (3) Where:
    (a) it is sought in a proceeding for an offence against this
    Act to establish for the purposes of subsection 6(2) that a
    particular defence could have been established in a proceeding
    (in this subsection called the 'other proceeding') for an
    offence; and
    (b) in the other proceeding, the onus of establishing the
    defence would have lain on the defendant;
    then, in the first-mentioned proceeding, the onus of
    establishing that the defence could have been established in the
    other proceeding lies on the defendant.
    (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) Nothing in subsections (4) and (5) limits the generality
of anything else in those subsections." 5. The applicant contended that the Court does not have jurisdiction to hear and determine an application pursuant to s.13(5) at this stage of the criminal process. Indeed, it was agreed that the applicant could not even make the application at this stage. Miss Powell contended that an application pursuant to s.13(5) may only be made when the applicant is "on (his) trial", i.e. after the trial has commenced and that jurisdiction to hear and determine such an application vests in the trial judge only after that time. Furthermore, she argued, a judge, including the judge who is to be the trial judge, may not hear the application before and give a decision after, the trial commences. Miss Powell argued that at common law a trial commences when the accused is put in charge of the jury and, by reason of s.13(5), an application pursuant to that section cannot be made, heard or determined before that time. Whilst the applicant accepts that by reason of s.13(1), s.68 of the Judiciary Act1903 (Cth) "picks up" the law of South Australia as to the procedure for the trial and conviction on indictment of persons charged with offences against the laws of the Commonwealth "so far as they are applicable", it is argued that those provisions do not permit the making, hearing and determination of an application of this nature by reason of s.285a of the Criminal LawConsolidation Act 1935. The resolution of this issue depends upon the true interpretation of s.13(5). In R v Tonner (1984) 80 Cr App R 170, the Court of Appeal held that, at common law, the trial commenced when the jury had taken the accused into their charge to try the issues. This view was accepted by the Full Court in Attorney-General's Reference No. 1 of 1988 (1988) 49 SASR 1 at p.5 per King CJ, with whom Millhouse J agreed. It was accepted that there is one qualification. King CJ, at pp.5-6, said:-
    "The qualification, to which I referred above, in this State
to this rule of the common law is to be found in s 285a of the
    Criminal Law Consolidation Act which provides that 'a court
    before which a person has been arraigned may, if it thinks fit,
    hear and determine any question relating to the admissibility of
    evidence, and any other question of law affecting the conduct of
    the trial, before the jury is empanelled'. The purpose of that
    section is not, I apprehend, to institute in this State an
    analogue of the American pre-trial motion system whereby
    questions of law would be determined in pre-trial proceedings
    distinct from the trial. The purpose is indicated by the final
    clause of the section. It is to enable questions of
    admissibility of evidence and other questions of law to be
    determined at trial before the jury is empanelled. The
    notorious mischief aimed at is the inconvenience and cost which
    was involved in keeping juries waiting and unoccupied for days
    and even weeks while voir dire hearings and preliminary
    arguments were conducted in their absence. The 'court' referred
    to in the section is not the court as an institution, but the
    particular court constituted of the judge who is sitting to try
    the case. The arraignment is not the first arraignment at which
    the accused pleads but the process by which the accused is
    arraigned before the trial judge at the commencement of the
    trial. In this State, therefore, the trial commences when the
    accused having been arraigned before the judge who is to try
    him, that judge embarks upon the hearing and determination of
    any preliminary questions or upon the empanelling of the jury." 6. The applicant had been arraigned, before another Judge, on 11th January 1993 upon his first appearance in this Court after having been committed for trial. His arraignment on that occasion was in accordance with the established procedure of the Court. Subsequently I was assigned as the trial judge and have heard and determined various applications, including the first stay application, and have assumed the pre-trial management of the case from the point of view of the Court. Also, I have taken evidence from various witnesses overseas in accordance with orders made pursuant to Part IIIB of the Evidence Act 1905 (Cth). The date for commencement of the trial was fixed some time ago, that date being 11th October 1993, it being understood that all pre-trial applications had to be made prior to that date and would be heard in succession commencing on that date. On that day the applicant was arraigned before me and pleaded not guilty. Miss Powell contended that the first stay application, in so far as it was based upon common law principles, was properly made and was heard and determined within jurisdiction because it was brought pursuant to rules of court: R8 of the Supreme Court Criminal Rules 1992. However, that part of the first application which was founded upon s.13(5) was made, heard and determined without jurisdiction and the applicant was entitled to make it again at a stage of the proceedings when the Court did have jurisdiction, ie after the applicant is put in charge of the jury. 7. I rejected this argument and ruled that I did have jurisdiction to hear and determine an application for a stay pursuant to s.13(5). Miss Powell thereupon filed a fresh application in substantially the same terms as the application made on 3rd September 1993. It is that fresh application which I proceeded to hear and determine. In my view there are two reasons why the contention that the Court does not have jurisdiction at this stage must fail. The first is that the application to these proceedings of the laws of this State as to the procedure for the trial and conviction or indictment of a person charged with an offence against the laws of the Commonwealth by reason of s.13(1) of the War Crimes Act and s.68 of the Judiciary Act, includes the procedure provided by s.285a of the Criminal Law Consolidation Act which provides:- "285a A court before which a person has been arraigned may, if it thinks fit, hear and determine any question relating to the admissibility of evidence, and any other question of law affecting the conduct of the trial, before the jury is empanelled." 8. As the applicant has been arraigned before me and I am the trial judge, the trial has commenced: Attorney-General's Reference No. 1 of 1988 (supra). So, in the relevant sense, the fresh application has been made "on the trial" of the applicant. I reject the contention that s.80 of the Australian Constitution which provides for trial on indictment of offences against any law of the Commonwealth to be by jury assists in the interpretation of s.13(5). Miss Powell contended that because of that constitutional requirement the trial of an offence against the War Crimes Act in this Court must be by a judge and a jury and therefore the trial cannot commence until there is a jury, or more specifically, until the then applicant has been put in charge of the jury. She sought assistance from the following passage in the judgment of the High Court in Cheatle and Anor v The Queen (unreported, 26th August 1993, FC 93/034) at p.18:-
"Section 22a(1) of the Acts Interpretation Act 1915 (SA)
    requires that every provision of every Act of the Parliament of
    South Australia 'be construed so as not to exceed the
    legislative power of the State'. In compliance with that
    directive, the provisions of s.57 must be read down so as not to
    purport to apply, of their own force, to the trial on indictment
    of an offence against a law of the Commonwealth. The guarantee
of trial by jury contained in s.80 also precludes any law of the
    Commonwealth from making the provisions of s.57 applicable to
    such a trial. For the reasons given in Brown v The Queen (1986)
160 CLR, at pp.200-201, 206-207, 281-219, however, s.80 of the
    Constitution does not preclude the relevant provisions of the
    Judiciary Act 1903 (Cth) from otherwise operating to vest
    jurisdiction in respect of trials on indictment of offences
    against laws of the Commonwealth in the South Australian Supreme
and District Criminal Courts constituted by a judge and jury." 9. At any trial by judge and jury the facts and verdict are for the jury and the law is for the judge. There is no legislative provision or authority which provides that these functions must be performed simultaneously. An application under s.13(5) raises a question of law to be decided by the judge and the procedure under s.285a enables that question to be determined, without contravening s.80 of the Constitution. The requirement of trial by jury does not assist in determining when a trial commences in accordance with the law of this State. 10. The next question is whether the application for a permanent stay involves the hearing and determination of a question of law affecting the conduct of the trial. If it does not, then s.285a has no application and when the trial commences is to be determined by the common law without the qualification of s.285a. In a sense an application for a permanent stay may more accurately be described as involving whether or not there will be a trial rather than a question of law affecting the conduct of the trial. However, I do not think s.285a should be given a narrow interpretation. It is not difficult to imagine questions of law other than concerning a stay of proceedings which may properly be ventilated pursuant to s.285a before the jury is empanelled and which could result in there not being a trial. A question of statutory interpretation involving whether an offence has been created, an issue as to the compellability of a crucial but reluctant Crown witness, an issue of jurisdiction involving where the alleged offence was committed and whether a particular drug is a prohibited substance may all involve questions of law which, if decided in a particular way, could result in the trial not proceeding. There is no reason, in my view, to say that the common law as to when the trial commences has not been qualified by s.285a in the present context. 11. The second reason for concluding that I have jurisdiction to hear and determine the application is that s.13(5) does not mean that consideration of an application for a stay of proceedings for the reasons specified in the subsection is confined to the stage of the criminal process after the trial by judge and jury has begun. Of course the subsection makes it plain that a stay may be considered after the trial has begun, but it does not provide that it cannot be considered at any other time after the commencement of the criminal process as distinct from the trial. In Kolalich v DPP for NSW (1991) 173 CLR
222 the High Court had to consider a similar provision in the Crimes Act 1900 (NSW). S.23(1) of that Act provides:- "23(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter." 12. The accused was charged with murder and at the completion of the committal proceedings was committed for trial for manslaughter on the ground that there was evidence of provocation which reduced the crime for which a jury could convict him from murder to manslaughter. Nevertheless the DPP found a bill for an indictment for murder. It was held by a judge that an ex officio indictment for murder would be oppressive, and thus an abuse of process, a decision which was set aside by the Court of Criminal Appeal, on the basis that provocation should not have been considered in the committal proceedings and that provocation is an issue which does not arise outside a murder trial. In a joint judgment, Mason CJ, Deane, Gaudron and McHugh JJ expressed the view that if provocation could not be considered in committal proceedings, it followed that the prosecution authorities could not, on account of provocation, charge manslaughter rather than murder. After referring to s.23(1), their Honours said at pp.224-225:-
    "That sub-section specifies what a jury must do if
    provocation appears: it does not say what anyone else must or
    must not do. Neither language nor subject-matter provides any
    basis for treating the provision as having an operation beyond
    its terms. The words '(w)here, on the trial of a person for
    ...' appear in various sections of the Crimes Act, including
    ss.23(1), 23A(1) and (5), 40, 129 and 130. In ss.23(1), 40, 129
    and 130 they introduce provisions specifying, in relation to a
    particular offence, what, in specified circumstances, the jury
    must or may do. In s.23A(1) the same words introduce the
    statutory formulation of the 'defence' of diminished
    responsibility which, like provocation, may be raised only in
    answer to murder. And, in s.23A(5), they introduce a provision
    enabling the prosecution, in a case where the defence relies on
    one or other of diminished responsibility or mental illness, to
    call evidence tending to show one mental state rather than the
    other. The wider context provided by ss.23A, 40, 129 and 130
    makes it clear that the words 'on the trial of a person for ...'
    serve no special purpose. They merely provide the setting in
    which, in certain circumstances, certain consequences follow.
    There is no scope, in that wider context, for treating the
    opening words of s.23(1) as importing the notion that
    provocation cannot be considered outside the confines of a

murder trial." 13. Brennan J expressly agreed with this interpretation: see p.230. The Court held that the question of provocation could be considered by the Magistrate and the prosecution authorities. 14. The same conclusion should be applied to s.13(5). There is no reason why the prosecution authorities should not consider in the exercise of a relevant discretion the inability of the applicant to obtain important evidence. There is no reason why the trial judge should not consider that matter and the question of a stay of proceedings at any time after the commencement of the criminal process. There is no reason, by virtue of the language of the subsection or otherwise, to interpret the provision in the restricted way postulated by Miss Powell. To do so could have absurd results in the context of a trial of an offence against the War Crimes Act. By definition, such an offence has to have been committed in Europe during World War II: see cl.(a) of the preamble to the Act. Obviously it is highly likely that the Prosecution will have to call witnesses from Europe in order to make out a case. It is possible that the Defence may choose to do so. To have a jury empanelled and standing by whilst applications of this nature are heard and determined and to have witnesses from overseas also waiting, when the outcome of the application is unknown, would result in considerable expense and likely delay. There is no reason to suppose the Legislature intended such a situation. Furthermore, there is no qualification in s.13(1) as to the extent of the operation of s.68 of the Judiciary Act. In my view the words "on the trial" do not deny jurisdiction at this stage of the proceedings as the applicant has been arraigned and has pleaded not guilty before the trial judge. 15. Miss Powell drew attention to an observation of McPherson J in R v His Honour Judge Noud, ex parte MacNamara (1991) 2 Qd R 86. In that case an indictment had been presented but the accused had not been arraigned. The relevant legislation provided that the trial is deemed to have commenced when an accused is called upon to plead to the indictment in open court, a stage which had not been reached. The Court was concerned with the extent of jurisdiction exercisable by the District Court in the proceedings before the trial begins. The relevant part of the judgment of McPherson J is, at p.91:-
    "It seems clear that a court in which an indictment has been
    presented can exercise some jurisdiction in respect of the
    proceedings before the trial. For example, proceedings can be
stayed (Barton v The Queen (1980) 147 CLR 75), or the trial
    postponed (see Archbold's Pleading and Evidence in Criminal
    Cases, (19th ed., 1879), at 99-100; and cf. R v Burton and Keep
(1884) 1 WN(NSW) 48); or the indictment may be quashed:
Archbold, op cit, at 97-98; The Criminal Code, s.596. I would
    expect that before trial the court would have power to order
    particulars: Code, s.573. One might also expect a court to have
    power before trial to order amendment of the indictment; but the
    Code speaks of amendment 'on the trial': see s.572, ..." 16. As I understand her argument, Miss Powell points to the observation about the power before trial to amend as support for her argument that "on the trial" means after the trial has commenced. It is not clear from this brief reference in his reasons for judgment whether McPherson J was expressing a considered view as to the meaning of the words "on the trial" in the context of the Queensland legislation or whether he had the benefit of detailed argument. I have not regarded this decision of much assistance. 17. If the applicant is concerned that I may be wrong in these conclusions he may bring the application after the jury is empanelled. Should that occur, I may receive, hear and determine the application again at that time. I embarked upon the hearing of this issue at this time as it is of considerable importance that the question of whether the proceedings are to be stayed should be resolved promptly in view of the considerable expense of keeping witnesses, particularly overseas witnesses, available for the trial. Also the Crown has made it plain that it takes no point of a procedural nature so that the merits of the application can be determined promptly. The Crown takes the view that it would abide my decision on the merits, or at least give the most serious consideration to it if I was to decide in favour of the applicant. 18. I now turn to the merits of the application. In my reasons for the judgment given on 30th June 1993 I mentioned the charge against the applicant, the essential features of the case against him and the evidence which the Prosecution proposes to call at the trial relating to the killings mentioned in the information, the bases of the first application for a stay and the principles which should be applied on deciding the application. I do not propose to repeat what I said in those reasons and they should be read in conjunction with these reasons as they reflect part of the reasons for my decision on the present application. However, it is necessary to summarize some matters. Mr. Zhilun is a crucial witness for the Crown. Without his evidence the prosecution cannot succeed. Unless the jury accepts him as a reliable, truthful and accurate witness and accepts his evidence beyond reasonable doubt as to the involvement of the man he knew as Wagner in the killings, the applicant cannot lawfully be found guilty of the charge. At the trial the Defence may want to prove the previous inconsistent statements referred to in my earlier reasons and in view of Mr. Zhilun's likely evidence that the protocols and the transcript of the proceedings before the Tribunal do not contain statements made by him, the Defence would like to be able to adduce evidence from the Russian investigators and persons present at the Tribunal hearing as to the accuracy of the previous inconsistent statements and the circumstances in which they were made so as to refute the likely evidence of Mr. Zhilun. Also the Defence may want to call the evidence of persons who claim to have seen Mr. Zhilun perpetrate certain conduct earlier in the day in question which he now denies. All these persons are now dead or cannot be found with the exception of Mr. Bardas and Mr. Daviborshch. 19. At the hearing of the earlier application the Crown made the following concessions, the first of which I recorded in my reasons as follows:-
    "(S)hould 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." 20. With respect to the witnesses who, if available, could have given evidence about the activities of Mr. Zhilun earlier in the day in question and thereby contradict his evidence in important respects, the Crown would not object to their statements being admitted into evidence as evidence of the truth of their contents if the Defence so wishes, even though this evidence could not be tested in cross-examination. Before the hearing of the first application, Mr. Bardas had deposed in an affidavit, on 28th May 1993, that in effect, the system of interrogation and the preparation of the protocols was fair and just and that the protocols accurately recorded what was said by the persons who were interrogated. It appears that he personally participated in the interrogation of Mr. Zhilun on 24th March 1947 but in his affidavit he deposed that he had no recollection of the interrogation, he could not say if the written document was in his handwriting and that he "vaguely" remembered his signature. It appears that the document which he was shown is a poor photostat copy of the original. 21. Another ground of the first application for a stay was that Mr. Daviborshch was a person who could reasonably be expected to give evidence which contradicts the likely evidence of Mr. Zhilun and he would not travel to Australia to give evidence. The attitude of the Crown has always been that Mr. Daviborshch is not a reliable and truthful witness. He had made a number of previous statements contrary to the alleged version of the events of the shooting of the children which he had given to the Defence, but if the Defence wanted evidence taken from him the Crown would facilitate that evidence being taken on commission. A version of events given by Mr. Daviborshch to the Defence was that Mr. Zhilun was not in the vicinity of the place where the children were shot and consequently he could not have seen the man he called Wagner participate in the shooting. The fact that Mr. Zhilun would give his evidence in the presence of the jury and Mr. Daviborshch would not, was not regarded by me as a sufficient reason to stay the proceedings. The Crown had offered that the evidence of Mr. Zhilun also be taken on commission so as to avoid any difference in the mode of giving evidence but the Defence rejected that offer for, no doubt, good reasons. 22. Evidence was taken on commission in the Ukraine from both Mr. Bardas and Mr. Daviborshch. Mr. Bardas was examined-in-chief by Mr. David QC and cross-examined by Mr. James QC. Mr. Daviborshch was examined-in-chief by Mr. James and cross-examined by Mr. David. I shall mention the features of their evidence which bear upon the present application for a stay. 23. The grounds of the present application may be summarized as follows. The applicant is unable to obtain evidence as to the movements and activities of Mr. Zhilun from Mr. Daviborshch and various persons, now dead, and evidence of previous inconsistent statements of Mr. Zhilun from the investigating officers of the Ukranian MGB who conducted the investigation of Mr. Zhilun, including Mr. Yegerov, who is dead, Mr. Bardas, who cannot recollect due to lapse of time, and the persons present at the Tribunal. It is claimed that the inability to obtain this evidence has substantially prejudiced the applicant and will substantially prejudice him in the preparation or conduct of his defence and that the interests of justice require the making of an order staying the proceedings. 24. Mr. David contended that I was in error in the approach which I took to the first application in so far as it was based upon s.13(5) and if not, there had been a material change in the circumstances since I gave my judgment on 30th June 1993. As to the first proposition, it is appropriate to repeat what I said in my reasons for the judgment. After setting out s.13(4) and (5) I said:- "It may be seen that subs.(4) preserves the power of the Court to order a stay of proceedings on common law principles and subs.(5) provides for particular circumstances justifying a stay.", and later, after considering the principles to be applied on an application for a stay, I said:-
"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." 25. Mr. David argued that the correct interpretation of s.13(5) is that if the applicant is unable to obtain evidence due to lapse of time or some other reason beyond his control and the substantial prejudice exists, there must be a stay. The interests of justice referred to in s.13(5)(c) are the interests of justice for the applicant and consequently there cannot be a balancing exercise. He drew attention to the Preamble to the Act:-
    "Preamble WHEREAS:
    (a) concern has arisen that a significant number of persons
    who committed serious war crimes in Europe during World War II
    may since have entered Australia and became Australian citizens
    or residents;
    (b) it is appropriate that persons accused of such war crimes
    be brought to trial in the ordinary criminal courts in
    Australia; and
    (c) it is also essential in the interests of justice that
    persons so accused be given a fair trial with all the safeguards
    for accused persons in trials in those courts, having particular
    regard to matters such as the gravity of the allegations and the
lapse of time since the alleged crimes:" 26. He argued that the emphasis in cl.(c) is that it is in the interests of justice that accused persons be given a fair trial which assists in the interpretation of s.13(5) for which he contends. I do not think that cl.(c) of the Preamble assists in that way. Obviously persons accused of war crimes must be given a fair trial and it goes without saying that the interests of justice cannot be served by a trial that is not fair. However, a fair trial involves fairness to the Prosecution and the Defence. In cases involving prosecution with respect to conduct occurring 50 years or so ago, it is appropriate to give emphasis to fairness to an accused, but fairness to the community is not to be denied. If categorizing prejudice to an accused was all that was required to stay proceedings, s.13(5)(c) would have no work to do. I adhere to what I said in my reasons for the previous judgment and I also adhere to my decision that the inability to call the various persons, now dead, as to Mr. Zhilun's movements on the day of the killings did not afford a reason to stay the proceedings. 27. I now turn to the grounds of the present application which may be said to be different from those argued on the first application. In my reasons for the judgment I said:-
    "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." 28. During the course of the evidence taken on commission from Mr. Daviborshch, he was examined and cross-examined as to the events of the day of the killings. A brief summary of his evidence-in-chief is that he was on the cart with Mr. Zhilun when the children were taken to the vicinity of the pit. He was told to get off the cart and he did so. The cart was taken away from him and he heard shots. He said that after he got off the cart Mr. Zhilun went on the cart with the children to the place from where he heard the shots which supports the evidence of Mr. Zhilun at the preliminary hearing and is contrary to the statements which Mr. Daviborshch had made to the Defence. During cross-examination he revealed memory of some matters. Clearly, he remembered the day in question and various important matters but he said:-
    "Q. Can you remember whether Mr Zhilun got off the cart or
    not.
    A. I can't remember that. I was told to get off and do not
    turn back and that was what I was doing like a soldier obeying
    orders (inaudible).
    Q. Can you remember whether Mr Zhilun drove your cart off
    or not.
    A. I can't say that. I don't know that, 50 years passed
    since.
    Q. Can you remember whether Mr. Zhilun stayed and patrolled
    the road when the cart went off or not.
    A. I cannot say that because there are more than one people
    there. I remain on that same spot.
    Q. Are you telling us that you can't say whether Mr Zhilun
    remained at the road or not.
    A. Do you think I can remember that many things, that many
    details since 50 years passed.
    Q. So because 50 years have passed are you telling us you
    cannot remember whether Mr Zhilun stayed at the road or went
    with the cart.
    A. I cannot, I cannot, what can I remember. To explain it
    in plain words, I was scared to death myself especially when I
    heard those shots.
    Q. Back at the administration centre, was there a woman
    called Shul'kina there, do you remember that.
    A. Shul'kina was there. Yes. She died since then. I know
    this one." 29. Mr. David did not attempt to refresh Mr. Daviborshch's memory from any written statements previously made by him. 30. He was then asked about Mr. Zhilun's trial before the Tribunal. He said:-
    "Q. In 1947 you spoke to the Court at Zhilun's trial.
     Do you remember that.
     A. Yes I was there on that court.
     Q. Can you now remember what Zhilun said when you were
     present at his trial.
     A. Nothing, I can't remember anything. Nowaday, nowaday I
     can't say anything. He was talking a lot, he said many
     things, do you think I remember that." 31. Mr. David then sought and obtained a brief adjournment and upon resuming asked no further questions. He did not attempt to refresh Mr. Daviborshch's memory by referring to the record of the proceedings before the Tribunal. He did not attempt to refresh his memory as to the movements of Mr. Zhilun on the day of the killings from earlier statements made to the Defence. In re-examination Mr. James asked Mr. Daviborshch if it would assist his memory of the events which took place on the day of the killings if he saw any protocol of confrontation on interrogation. He said:-
    "A. Well I don't want to see that. I don't want to know
    that. The case is finished according to me. May I ask you
a question." 32. He then asked why he was being asked about Mr. Zhilun. Mr. Daviborshch appeared annoyed, if not angry, at this stage. Whilst Mr. James did not attempt to place before Mr. Daviborshch the record of the proceedings before the Tribunal, I mention the attitude of Mr. Daviborshch because it may indicate that he would have been equally unco-operative with Mr. David if he had attempted to refresh his memory from documents. 33. The applicant contends that the lack of memory of Mr. Daviborshch as to these two matters, namely what Mr. Zhilun said at his trial before the Tribunal and as to Mr. Zhilun's movements in the vicinity of the killings on the day in question, proven by his evidence taken on commission, establishes that the Defence is unable to obtain evidence for reasons which require the proceedings to be stayed pursuant to s.13(5). It has not been established to my satisfaction on the balance of probabilities that Mr. Daviborshch did have a lack of memory of the significant events of the day of the killings due to lapse of time. He claimed to have been able to remember these events on the various occasions that statements have have been taken from him over the past few years. It appeared that he claimed lack of memory of some matters only during his evidence after becoming annoyed. Whilst Mr. David, no doubt, had sound reasons for not attempting to refresh his memory from earlier statements, the fact remains that his claimed lack of memory was merely accepted and never tested. 34. The Crown accepts that the Defence may prove the record of the proceedings before the Tribunal as part of the process of proving prior inconsistent statements of Mr. Zhilun. It may be that Mr. Daviborshch cannot genuinely remember what Mr. Zhilun said to the Tribunal in his presence in 1947. He did remember that Mr. Zhilun "was talking a lot" so he appears to have been present and to have heard at least something of what Mr. Zhilun said. He was not asked if he remembered any particular matter. As this record may be tendered at the trial, the Defence may have any previous inconsistent statement of Mr. Zhilun on that occasion before the jury and I do not think that the Defence is substantially prejudiced by reason of Mr. Daviborshch not being able to remember what occurred at the Tribunal. 35. There has been some material change with respect to Mr. Daviborshch since my decision with respect to the first stay. It is now known what evidence he would give. He has not given evidence disputing Mr. Zhilun's version of events and has claimed to have a lack of memory of certain events. However, this change, either standing alone or in conjunction with other matters, does not justify the extraordinary step of permanently staying the trial. 36. The next matter arises out of the evidence taken on commission from Mr. Bardas. Mr. David contended that this evidence discloses no more than what procedure should have been adopted by an investigator of a war crime during 1947 and the procedure which he adopted. His evidence was to the effect that the persons under interrogation were treated fairly and appropriately. They were told of the allegations against them and given every opportunity to respond and contest those allegations. What they said was accurately recorded. Mr. Bardas was not asked about his involvement with Mr. Zhilun. During the course of his evidence-in-chief he was asked if he had "ever known, from 1946 to 1947, an investigator to falsify what was said by an accused person". 37. Mr. Bardas said he had no knowledge of the work of colleagues. So, Mr. David contends, there has been a material change since I gave my ruling on 30th June 1993, in that Mr. Bardas is of no assistance in proving inconsistent statements of Mr. Zhilun. I do not agree. 38. It had never been suggested that Mr. Bardas could prove the actual circumstances in which the previous statements of Mr. Zhilun were made, except with respect to the occasion when he questioned Mr. Zhilun. However, if the evidence of Mr. Bardas is admitted at the trial, the jury will have evidence of the system at the relevant time and place which it may consider along with any other evidence of Mr. Zhilun as to the contrary. The Defence has chosen not to attempt to lead evidence from Mr. Bardas as to his own involvement with Mr. Zhilun perhaps because of his poor memory about that matter. Nevertheless, the Crown will accept that he was involved with Mr. Zhilun, which, to some extent, links his evidence of a fair system to the investigation of Mr. Zhilun. In my view, any change in circumstances occasioned by the evidence of Mr. Bardas is not sufficiently significant to warrant re-consideration of the application for a stay. 39. The second material change to the applicant's position asserted by Mr. David is that the concession of the Crown has been rendered nugatory by the cross-examination of Mr. Bardas by Mr. James. I do not propose to set out the detail of the cross-examination. I merely say that questions put to him suggested features of the system of investigation which are contrary to the evidence of Mr. Bardas that the system was fair and the records were accurate. Whilst, in the main, Mr. Bardas rejected the suggestions implicit in the questions, Mr. David contends that this cross-examination was designed to establish that the procedures adopted by the investigators were unfair and improper and has the effect of rendering nugatory the concession by the Crown with respect to the protocols relating to Mr. Zhilun and the record of this trial. 40. I have some concern about the effect this cross-examination may have upon the jury in the context of the concession. I accept that Mr. James cross-examined in this way because he took the view that the evidence of system lead from Mr. Bardas by Mr. David, was evidence independent of Mr. Zhilun which tends to establish that the previous inconsistent statements were actually made, as opposed to appearing in records, and that he wanted a foundation in the evidence for a submission that the jury need not accept the evidence of Mr. Bardas as to the propriety of the system when considering the evidence of Mr. Zhilun and assessing his credibility. 41. Mr. James accepts that if the Defence wishes to have Mr. Bardas' evidence before the jury, I may, in the exercise of discretion, exclude all or part of the cross-examination. I can envisage circumstances in which I would be inclined to do so which I need not discuss in these reasons. I have discussed them with counsel. Much will depend upon what happens at the trial when Mr. Zhilun gives evidence and is cross-examined. There are other ways of impeaching his credit than merely the use of the alleged prior inconsistent statements in some of the protocols. However, if the Defence adopts that method and Mr. Zhilun volunteers that the system was otherwise than as Mr. Bardas has stated, which may well occur in view of a recent statement made by him, and the Defence wishes to place Mr. Bardas' evidence before the jury, I would exclude that part of the cross-examination as is capable of proving that the contents of the protocols and the record of proceedings before the Tribunal are inaccurate because the Defence cannot call the persons to whom the statements were allegedly made. 42. Mr. David contended that if the devices of admitting documents and evidence with concessions from the Crown and admitting only part of Mr. Bardas' evidence are used to mitigate perceived prejudice to the applicant, in order to achieve a fair trial, the case will be presented in such an artificial, and indeed silly, way, that the jury will not be assisted in the way that it would be assisted if the case was presented in an orthodox way. I reject that submission. There is nothing artificial about a fact being agreed or conceded or about some parts of the evidence of a witness being excluded. The jury will receive directions about problems caused by lengthy delay and as to the significance and possible effect of important evidence which is placed before them. It is acknowledged that some steps must be taken to enable the Defence to prove previous inconsistent statements and other matters due to the unavailability of witnesses. The devising of appropriate procedures to enable that to be done is to be expected in cases of this nature. 43. In my view, it has not been established that the applicant has or will be substantially prejudiced in the preparation or the conduct of his defence and the application for a stay is refused. I do not dismiss the application. I have acceded to the request of the applicant to rule on the application at this stage and I have rejected the submission of the Crown that the application is premature and should not be considered until Mr. Zhilun gives evidence. I have proceeded on the basis that Mr. Zhilun will give evidence-in-chief along the lines which he gave at the preliminary hearing and which I discussed in my earlier reasons for judgment. The applicant is entitled to have his application for a stay considered, at this stage, on that basis. However, the situation may be different at the trial. It may not be necessary for the Defence to prove previous inconsistent statements or the prejudice to the applicant may be more significant than now appears to be the case. As the trial judge, I must be vigilant to see that the accused has a fair trial. If the circumstances at the trial are different and the applicant is truly substantially prejudiced in the preparation or conduct of his defence and it is in the interests of justice that the proceedings be stayed, the application may be renewed.