Wagner v Director of Public Prosecutions

[1993] HCATrans 321

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A36 of 1993

B e t w e e n -

HEINRICH WAGNER

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J TOOHEY J

Wagner 1 26/10/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 OCTOBER 1993, AT 2.01 PM

Copyright in the High Court of Australia

MR M. DAVID, QC:  May it please the Court, I appear with

MS B.J. POWELL for the applicant. (instructed by

Legal Services Commission of South Australia)

MR G.R. JAMES, QC:  May it please the Court, I appear with

my learned friend, MR G.R. NIEMANN, for the

respondent. (instructed by the Director of Public

Prosecutions (Commonwealth))

MASON CJ: Yes, Mr David.

MR DAVID:  I hand up an outline of submissions, if the Court

pleases, and authorities.

MASON CJ:  Mr David, why did the affidavit in support of the

application for special leave not deal with this

difficulty that you seek to meet in paragraph 1 of

your outline?

MR DAVID:  If Your Honour pleases, that was not a matter of

special leave with which that was placed there.

The special leave point is the determination of

section 13(5) of the War Crimes Act. In

paragraph 1, that is raised as a reason for why we

are here now rather than a later stage.

MASON CJ: Normally of course, this Court would not grant

special leave to appeal against a decision of a
court of first instance. The Court would expect

the applicant to appeal to the Full Court of the

State. What does Part XI of the Criminal Law

Consolidation Act provide?

MR DAVID:  Part XI of the Criminal Law Consolidation Act is

the appeal processes in South Australia. The long

and short of it is that you cannot appeal against

any order or any decision in the Criminal Court
other than after conviction. Pursuant to the

Full Court decision of Reg v Garrett, (1988)

49 SASR 435, specifically in relation to a refusal

to stay proceedings by a trial judge, that also

cannot be appealed to the Full Court or the Court

of Criminal Appeal in South Australia.

MASON CJ:	The legislative policy being to ensure that the point is not determined at a stage where it would fragment the criminal process and thus must be
raised as part of the appeal process against
conviction.

MR DAVID: If Your Honour pleases. That preliminary

difficulty I wish to deal with first before going

to my special leave point. The preliminary

difficulty, in my submission, is raised because in

this particular case where we have nowhere to go in

South Australia because of that policy which

Wagner 2 26/10/93

Your Honour mentioned, it raises difficulties for

the defence and, indeed, in the interpretation of

section 13(5) of the War Crimes Act, because that

section of itself, in our submission, in the
special circumstances under the special criteria

which are set out contemplates a remedy to the

defence before trial and, indeed, in certain

circumstances, certainly a remedy before
conviction. If I could just read out that section,

if the Court pleases.

DAWSON J:  When you say before trial, you mean before the

trial has commenced before a jury?

MR DAVID:  Yes, before the empanelling of a jury:

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.

It is our submission, if the Court pleases, that

the very wording of that section in the appropriate

circumstances contemplates, when the criteria are

made out, the matter not going to trial itself. rely upon the words "or will substantially I	prejudice". Also, there is reference made in that
section to problems with the preparation of the
defence as well as the conduct of the defence.

Where the point of special leave is sought is

a comparison and, indeed, a settling of the

criteria to be made out under section 13(5) as

compared to the common law. The common law power

to stay for an abuse of process is set out in Jago

and Barton and the well known cases. It is our

submission that not only should this matter be

decided, if the criteria were made out, before

trial - because it is our submission that it would

be somewhat artificial to after trial look back in

Wagner 26/10/93

relation to the absence of a witness and whether

that would substantially prejudice or not the

defence after the trial has finished.

DAWSON J:  You said before trial. You mean at the

commencement of the trial?

MR DAVID:  At the commencement of the trial. This is, in

our submission, an exercise that should be gone

through before the empanelling of the jury. If all

the facts are present whereby it could be argued or
that the judge should decide that there will be a

substantial prejudice, that is the appropriate

time. If the Court pleases, bearing in mind that

peculiar section, which we would argue - and that

is where our point of special leave, in our

submission, is important - that it is a different

remedy given to the accused over and above the

common law remedy, which we submit is preserved in

section 13(4), that section 13(5) looks at

something peculiar. We would submit that it looks

at something that is, indeed, a concession to the

defence provided by the legislature in this type of

trial with all the difficulties that the defence

would have.

So it is our submission that it is important

that it be finally determined before the

commencement of the trial, before the empanelling
of a jury, where that is able to be done. It is

for that reason, if the Court pleases, why the very

unusual step of coming straight here has been
undertaken, as of course there is nowhere else to

go in South Australia, as distinct from certain

other States. The question of section 13(5) is

that upon which special leave is sought. I point

out that this is the first case, not surprisingly,

in which there has been any type of judgment

concerning that section.

MASON CJ:  It may be the last case as well, may it not?

MR DAVID:  It may be, and I read where there is a certain

policy that the special investigation unit has been

wound down, but still, one never knows. At any

rate, even if it is the last case, it is still of

importance, in my submission, where the legislature

has made a very special concession to the defence

by way of a safeguard or, indeed, a filtering

system before this type of case can go to trial,

that the criteria, in my submission, be very, very

authoritatively established.

If the Court pleases, the point of principle,

and the point which we say raises fundamental

questions, are these, if I could come straight to

them. Firstly, whether section 13(5) is merely an

Wagner 26/10/93

example of the common law power to stay as set out

in Jago and Barton or whether the common law test

is different and, indeed, in my submission, less

onerous.

Secondly, it is submitted that the common law

balancing test of unfairness, taking into account prejudice to the accused, taking into account the

needs of the community and that balancing process

which, indeed, the learned trial judge went through

when deciding this matter, is not necessarily the

test to be applied here because it is our

submission that the question that is to be resolved

here is whether, on the criteria as set out, once

substantial prejudice has been established on the

balance of probability, that, irrespective of any

balancing process, a stay should be granted if,

indeed - and this is where, in my submission,

section 13(5)(c) is of importance - that is all

that can be done and there can be no other

direction or any form of cure throughout the trial.

TOOHEY J:  You appear to be reading the balance of

subsection (5) as if it only offers one choice,

namely an order for the making of a stay, but it

does say "such order as he or she thinks

appropriate for a stay". In other words, it seems

to contemplate, for instance, that a judge might

order that there be a stay unless certain things

are done. Do you exclude that as within the scope

of subsection (5)?

MR DAVID:  No, if Your Honour pleases. There may be

other -

TOOHEY J:  It is not a clear choice between stay and no

stay.

MR DAVID:  No, I do not suggest that that is what it says.

There may be other remedies in appropriate cases.

For instance, one could imagine where by nature

these trials - the alleged offences took place

overseas where extensive adjournments might be

necessary and that sort of remedy, but I am not

arguing that. What I put to the Court -

TOOHEY J: No, I am sorry, I was not thinking of

adjournments. I was rather thinking of an order

that there be a stay not unless the trial be

adjourned, but unless perhaps certain concessions

are made by the Crown or something of that sort. subsection (5), do you?

MR DAVID:  I do, if Your Honour pleases. That is of course

very apposite to the vehicle by which this came to

this Court.

Wagner	26/10/93
DAWSON J:	I was wanting to see how far you would go,

Mr David. If it can be shown that the defence is

substantially prejudiced, is that conclusive, even

though steps may be taken to alleviate the

prejudice by the Crown by, for instance, allowing

certain statements to go in unchallenged and the

like?

MR DAVID:  No, Your Honour, I do not go that far. It is my

submission that if there is substantial prejudice

at the end of the day after all these steps have

been taken and after everything that can be done

should be done, it is our submission that the

matter should be permanently stayed. Where I say

that differs from the common law and what, in my

submission, is the fundamental point of principle

is this: the common law is more of a balancing
process between the needs of the community to bring

people charged with offences to trial and the

protection of the accused.

It is my submission that for section 13(5) to

have any force, it is something different and,

indeed, over and above that. It is my submission

that where we talk about, for instance, in

section 13(5) (c) "the interests of justice", we are

talking about the concentration on the accused

having all the safeguards of an Australian

contemporary court.

DAWSON J: That is what I was getting at. The accused says,

"Look, I am entitled to a trial according to law

and if, in such a trial, I'm substantially

prejudiced in the preparation or conduct of my

defence, I'm entitled to a stay." It does not

matter that you are prepared to bend the rules in

some way. That is the way you put it, is it not?

That is not enough.

MR DAVID:  No, Your Honour. Also, it is my submission that

a permanent stay under section 13(5) may not

necessarily be the extraordinary step that is
required under the common law.	I mention that
because the learned - - -

MASON CJ:  You say that is where the trial judge went wrong.

MR DAVID: If Your Honour pleases. That is at page 73 of

the application materials.

MASON CJ:  One would not have thought that an application of

this kind, or a successful application of this

kind, was extraordinary in the context of trials

under this Act.

MR DAVID:  If Your Honour pleases, whereas of course under

the common law it is an extraordinary step. It

Wagner 6 26/10/93

might be that in trials under this Act, it is an

extraordinary step if the matter goes on in certain
circumstances. If the Court pleases, it is that
difference between the common law in section 13(5),

what place 13(5) takes as far as the safeguard to

an accused person is concerned under these types of

offences that is the subject of our special leave

application.

MASON CJ: There is another problem too, is there not, when

you compare the inherent jurisdiction and the

statutory jurisdiction? The statutory jurisdiction

contemplates that an order for a stay will be made

when, due to lapse of time, the applicant is unable
to obtain evidence and he is prejudiced, providing

that the interests of justice require the making of

an order, whereas under the inherent jurisdiction

delay may result in an applicant being unable to

obtain evidence and suffering prejudice, but that

that will not necessarily give rise to an exercise

of the inherent jurisdiction.

MR DAVID: If Your Honour pleases.

MASON CJ:  Of course, delay inevitably in some cases,

without any fault on the part of prosecuting

authorities, may result in an inability to obtain

evidence and, as a result, some prejudice.

MR DAVID:  Your Honour, following on from that, with

respect, it is my submission that section 13(5)

itself in a sense must be read with the preamble to

the War Crimes Act. If I could take the Court to

that, the preamble reads:

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.

If Your Honour pleases, it is our submission that

section 13(5), as I have said and I do not want to

Wagner 26/10/93

repeat, is a concession to the defence, bearing in

mind the preamble and the problems that the defence
will naturally face in this type of trial. It is

upon that that special leave is sought. If special

leave were granted, it is my submission that the

way in which this came about is not insignificant.

If the Court pleases, as is set out in the

affidavit of Gabrielle Ann Brown - and I will not

repeat it - the charge against the applicant

concerns being present and killing a child at a pit

at a place called Kovalevka in the Ukraine in 1942.

The learned trial judge acknowledged that without

the evidence of a witness called Mr Zhilun, who

identified a person by the applicant's name as the

person who killed a child and had a conversation

with him earlier that day, there would be no case.

Indeed, his evidence is vital to the existence of

the trial. I am not saying that is the only

evidence in the sense that there is not a lot of

other surrounding evidence which could be called in

aid to attach to it but, without that eyewitness

evidence, there is no case.

TOOHEY J:	Do you mean there is no case in respect of that particular offence or no case at all?
MR DAVID:	No case at all, Your Honour.
TOOHEY J:	I only ask you that given the particulars of the information which range more widely - - -
MR DAVID:	Which are extensive - no, there is no case at

all. That is common ground, if the Court pleases.

Therefore, of course, his evidence was attacked as

to its reliability and credibility at the committal

and it was sought to cross-examine him. When I say

it was sought, he was cross-examined concerning

statements that were ostensibly made by him in

Soviet trial records in 1947. These trial records have been located in archives in the Soviet Union

and were presented fairly to the defence before

trial.

Among those records are statements which the

defence say contain previous inconsistent

statements about the very facts in issue, previous

inconsistent statements about what he saw and

whether he was able to say who he saw and previous

inconsistent statements about the surrounding

circumstances and therefore the ability to have

this conversation with the applicant. That

conversation was an important piece of evidence

because it showed the applicant's presence there

and also his involvement.

Wagner 8 26/10/93

The witness, Mr Zhilun, was cross-examined at

the committal in relation to those ostensible

inconsistent statements and denied having made

them. He not only denied having made them, but he

after committal, pursuant to proper proofing by the

Crown, supplied a statement by which he talked

about the circumstances in which he was

interrogated in 1947. That is set out in the

application book at page 90 in the affidavit of

Gabrielle Ann Brown. The Court will see at 1.13,

the statement provided by the Crown to the defence

after further proofing of Mr Zhilun says:

"When I was interrogated I agreed with

whatever was put to me by the investigators

because I believed that if I didn't I would be

beaten also.	The investigators were writing
things down at the time.	I never read what

they wrote. I refused. I didn't read it

because it was useless I knew that they would

write whatever they wanted. That was the

system then.

When I gave evidence in Adelaide last year in

relation to Heinrich Wagner I was shown

documents which I was told were records of my

1947 investigation and trial. I saw the name

ZHILUN on the bottom of the pages.	I did not
formally sign my name in that manner.	It

could be that the investigators forced me to

write it that way, but I do not remember.

Also during my investigation some witnesses

were called and some of them did not tell the

truth.

When the investigation was completed I was

taken before a Military Tribunal. There was
the Chairman and two others. There was no

prosecutor or defence lawyer.

All the papers from my investigation were

placed before the Tribunal and it was all over

in about fifteen minutes. When I say all the

papers, I assumed it was all the papers

relating to my investigation.	I did not read
them.	I was not given the opportunity to read

them at the Tribunal."

The people who were present at the tribunal where

ostensibly inconsistent statements were made are,

of course, dead. The investigator who took the

statements from him, which included inconsistent

statements, is dead. The defence of course at

trial want to, pursuant to section 28 of the

Evidence Act, South Australia, which is the mirror

equivalent of all the State Evidence Acts which

Wagner 9 26/10/93

deal with proving previous inconsistent statements

and having to put the inconsistent statement to the

witness and the occasions and the circumstances, on

there being a denial that this was said, cannot

call any o~ those witnesses. It is that which will

be argued if leave is sought substantially
prejudices them in their defence, bearing in mind

it is on the topics of the very existence of the

applicant at the time and place of the killing.

If the Court pleases, what His Honour ruled

and what was argued was that a concession by the

Crown - - -

DAWSON J: In South Australia, if the prior inconsistent

statement is admitted, does that go to prove the

truth of the facts in - - -

MR DAVID:  No, Your Honour, it only goes to the question of

credibility. It is agreed that these matters are

questions of credibility that are sought to be

proved by the calling of these witnesses who are

now dead, if they were available. The Crown sought

to overcome this difficulty which the defence had,

and which the learned trial judge agreed was a

difficulty, by making a concession. The concession

was - and I read from page 32 of the application

book.

If I could just point out to the Court: there

were in fact two applications. There was one

application that was refused. There was no appeal

obviously in relation to that because evidence was

taken overseas on commission where it was thought

that that might in a sense cure the problem. After

evidence was taken, a further application which

embraced the first application was made and there

was another ruling in relation to that, and that is

the application that is before the Court on appeal

in relation to that. But of course, that

application and the finding by the learned trial

judge embraced those matters that were in the first

application. This is from the first application.

His Honour said in his judgment in relation to that

application:

The Crown has acknowledged that, without

that problem: should the defence

assistance, the Defence could not prove these resolve

statements in the face of Mr Zhilun's denials.

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

Wagner 10 26/10/93

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.

Then His Honour went on and put the defence

position as far as that concession was concerned:

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.

That is the one that I just read out, if the Court pleases.

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.

DAWSON J:  What would be the evidentiary status of the

documents? Their having been tendered, there is no

admission as to whether the contents are true and

correct or not.

MR DAVID:  As I understand the Crown position, it was that

they are evidence towards which it can be inferred
that these statements were made. That is as I

understand it. The defence have maintained, of

course, it is just no substitute, bearing in mind,

of course, that last statement about the

Wagner 11 26/10/93

circumstances in which these statements were made

and that the applicant is left - - -

DAWSON J: They do not prove that the statements were made

but you can infer from them.

MR DAVID:  It is evidence towards that fact. "Here's a

Soviet document. In it is this statement. Ladies

and gentlemen, you can infer from that that that

statement may have been made." That is as the

Crown concession goes.

There was then evidence taken on commission

overseas from a Mr Bardas who was a Soviet

investigator in 1947. That was in a sense part of

the exercise of trying to alleviate, in my

submission, the prejudice to the accused.

Mr Bardas interviewed the witness, Zhilun, once

but, within that interview, there are no

inconsistent statements. Mr Bardas talks about the

procedure itself when investigating and

interviewing people and saying - and I think I can

summarize it by saying - that it was a perfectly

proper system and as far as he was concerned, there

was no misbehaviour, to use a neutral term.

If the Court pleases, His Honour ruled on the

second application that the tendering of those

documents plus the evidence of Mr Bardas cut out

the substantial prejudice. The defence argued, as

it will argue if leave is given, that that cannot

in any way be a substitute for those witnesses

themselves being called in relation to the

existence and the manner in which those previous
inconsistent statements were made and, indeed, the

applicant cannot even begin to investigate that

problem which, if this was a case that happened

last week or last month or last year, it would

indeed be the first thing that competent defence

counsel would be doing.

DAWSON J: Would you be arguing, if special leave were

granted, on the appeal that this Court if you were

successful should make the order which the trial

judge did not make?

MR DAVID:  Yes, Your Honour. The details of the

inconsistent statements are set out in the

affidavit of Gabrielle Ann Brown. I will not take

the Court to that. They are really matters that are appropriate, in my submission, if leave were

granted. My submission is that the special leave

point which is asked for in the extraordinary

circumstances of coming straight to this Court is

of fundamental importance as to the criteria of

section 13(5). If the Court pleases.

Wagner 12 26/10/93

MASON CJ: Thank you, Mr David. Yes, Mr James.

MR JAMES:  If it please the Court, might I hand up an

outline of our argument.

MASON CJ: Yes.

MR JAMES: Section 13(5) provides, or confides, in the trial

judge the function of making "such order as he or

she thinks appropriate for a stay of proceedings"

in the event that the applicant has satisfied that

that:  judge "on the balance of probabilities", not only

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 -

but that the inability to obtain that evidence -

has substantially prejudiced, or will

substantially prejudice, the preparation or

conduct of his or her defence; and

the interests of justice require the making of

an order under -

the subsection.

The trial judge in this case did not dismiss

the application from which the present application

from the special leave is brought. At page 77 of

the application book His Honour condenses, as it

were, his position in the last two sentences of his

reasons. He says:

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.

His Honour points out, at page 73, line 24, that he

is simply not satisfied that the applicant has, or

will be, substantially prejudiced in the

preparation or conduct of his defence. His Honour
refuses the application for the stay but does not

dismiss the application. His Honour had ruled on

it at that stage because of the request made to him

to rule at that stage, and rejected the submission

of the Crown that it was premature and should not

be considered until Mr Zhilun gives evidence.

Wagner 13 26/10/93

DAWSON J:  Then he dismissed the application, did he not?

MR JAMES: Well, the reason I raise it, Your Honour, is

this: counsel has many choices in the mode of

attack on credit and, indeed, one mode of attack
is, of course, to rely on so-called prior
inconsistent statements relative to the matter in
issue. In this case there is very little in fact,

in our submission, that is relative to the matter

in issue. As Your Honours will have gathered from

the affidavit in the appeal book, there are

discussions about persons called Bela Lozhkina and

Musia Lozhkina, but really there is only one matter that goes to the question of whether or not the witness, who was an accomplice and has in fact

served a period of imprisonment arising out of his

own involvement in these and other events, saw or
did not see the accused fire the shots that killed

the child. That turns to a very great extent, or

may well turn to a very great extent on

interpretation and semantics, "I did not watch" as

opposed to "I did not see".

Indeed, we have prepared for Your Honours, in

the light of the fact that it is suggested that

counsel would select this option of proceeding to

elicit so-called prior inconsistent statements, a

very short summary which runs to two pages, though

it has annexed to it the full documents from which

it is culled, of the consistent material in the

very documents on which my friend relies, that is,

material, which we say, would in setting out the

context, if the counsel were to use this option,

have gone before the jury.

TOOHEY J: Before you take us to that, I can see that that

could be an argument for the court not making any

order other than to remit the matter to the trial

judge to determine any further application
according to law, but if, for instance, the Court

were persuaded, at least prima facie, that the

trial judge had applied the wrong test, that might

be a persuasive argument for granting special

leave, at least to ensure that on the renewal of

the application or on any further application,

that the correct test was applied.

MR JAMES:	Yes, Your Honour, that could be the case but it would be our submission that, in fact, His Honour
applied the right test in what he did decide.
Various other remarks he may have made had no
bearing, in our submission, on the actual decision
he reached which was, no substantial prejudice.
And if there was no substantial prejudice, and the
judge at first instance in whom the matter is
confided found that in the light of his knowledge of the evidence and the events at trial, then in

Wagner 14 26/10/93

our submission we do not get to anything else.

There may have been evidence lost but, indeed, it

was always to be expected that there would be

evidence lost.

Unless there is substantial prejudice, in our submission, nothing else in my friend's argument

becomes material at this stage, and the question of

substantial prejudice is peculiarly confided to the

trial judge because he can take these so-called

inconsistencies and their relevance and contrast

them with, for instance, statements by this very

witness in these very documents that he saw Wagner

commit the very shooting alleged. Now, whether

counsel would take the risks, the forensic risks, attendant on attempting to use inconsistencies of one sort of another is a matter of choice.

DAWSON J:	How would the inconsistency be used, Mr James?
MR JAMES:	Good question, Your Honour.
DAWSON J:	I mean, you can put the inconsistent statement to

the witness and he can deny it, and that is the end

of the matter. Are you then able to call evidence

of the inconsistent statements?

MR JAMES:  Yes, Your Honour, because you can take the

document - - -

DAWSON J: But going only to credit.

MR JAMES:  - - -with his signature on it. Not necessarily,

it is for my friend to make his selection by what

he does. If he wants to put it in for truth of the

facts, then the prosecution would be entitled to

the benefit of that course of conduct on his part.

DAWSON J: So, your concession that the documents can go in

is a concession they go in proving the contents of

the documents?

MR JAMES: Yes, it certainly is, and he gets the benefit of

that. Whether we would ever get the benefit of
that is a matter on which the trial judge would

have to rule, depending on what he has done. I

have made it perfectly clear that the prosecution

regard itself as continuously bound by the trial

judge who, organically, during the trial - - -

DAWSON J: Organically?

MR JAMES:  Yes, in the sense it is going to be a growing,

moving concern, will have the control of what the

prosecution should or should not do. I mean,

amongst other things, when we came to take the

evidence on Commissioner Mr Bardas, who was the

Wagner 15 26/10/93

senior investigator to whom Mr Zhilun spoke, and

the first interview in the Soviet system, the

defence sought his evidence on commission as to the system of what became KGB interrogations of persons

suspected of war crimes. And questions were put to

elicit that that system was fair and, indeed,

surrounded by safeguards so that no undue pressure

would be brought to bear upon an accused person to

confess or to acknowledge any statement of fact.
Indeed, I cross-examined Mr Bardas in respect of his evidence in-chief because the concession

went to the point of saying, we would not seek to

undermine the documents by external evidence.

However, when it was sought to pray in aid system

by the defence to assist the documents, we took the

view that we are entitled cross-examine on that
question, with a view to nullifying Mr Bardas'
evidence as to the effectiveness of the Soviet
system to ensure no person would have any complaint

about their records of interview, and such like.

His Honour took the view that the

cross-examination might well have produced some

support for the statement of Mr Zhilun to which my

friend has taken Your Honours and, in that sense,

had been construed by the jury as going further

than merely breaking down or nullifying Mr Bardas'

evidence in-chief. So he has ruled the whole of

the cross-examination out provided the defence go

about things in a particular way. And we have

accepted that His Honour has the power to do that,

if necessary.

DAWSON J: There is a certain artificiality about all of

this though, is there not?

MR JAMES:	Yes, the artificiality is related to the prosecution, Your Honour, not the defence.	The
defence get all the benefits. They get the

documents without us being able to cross-examine

the maker; they get Mr Bardas' evidence of system

without our cross-examination. The prosecution loses the benefit of the evidence lost over the 50 years and also makes the concessions to assist

the defence. At the end of the day, what we are
talking about is the defence seeking to

cross-examine the one witness on credit on matters that it would be highly dangerous, if not directly defeating, to put in circumstances where that

witness' evidence will be exposed in the light of

his own prior statements anywhere.

Your Honours, if the jury gets the documents, and the only real way it could benefit the defence

is if they only got the inconsistent cautions

excised out of the documents otherwise consistent

Wagner 16 26/10/93

with the account the witness has been telling for

40 years.

MASON CJ:  I have not quite understood, from what you have

said, what is your precise concession in relation

to the inconsistent statements recorded in the

Soviet records?

MR JAMES: 

That my friend can use them without formal proof

as evidence of their contents, as evidence that the
witness made the statement, and can do so without

any attempt by the prosecution to show that they

are inaccurate or wrong, that we will accept them
as authentic and accurate Soviet trial records, and

not seek in any way to undermine them; that,

indeed, we will not seek to support Mr Zhilun's

denial of them, should he make it at the trial. We

will not, of course, concede that he is wrong when he denies them but we will not seek to support him

either. But, if my friend wishes to use them for

the truth of their contents otherwise, then we will

consider obtaining a ruling that we can use them

for that purpose also.

DAWSON J: Whereas, ordinarily, if the evidence were given

orally by the witnesses, it would still only go to

credit. It could not go to the truth of the

statements?

MR JAMES:  Yes, if it was elicited in some way it can be

made a fact but if it is left at credit then we get

no greater advantage than we would have otherwise.

If my friend, however, wants to use it for truth of contents then the question of whether the prosecution would ever be able to use it is to be

determined by the trial judge. Might I hand Your Honours the summaries I am referring to.

DAWSON J: 

You say these demonstrate merely that the

differences are largely differences of wording, of
expression, and not differences of substance?

MR JAMES: Well, I do not have to go that far, Your Honour.

I am merely saying that it was entirely appropriate

for the trial judge to evaluate the matters relied
on by the defence as prior inconsistencies in the

light of the whole of the material, and

particularly these references, when he came to

decide the question of whether there was, at this stage, any substantial prejudice. When one turns

to his judgment at page 75, line 15 through to

line 41 of the application book, His Honour talks

about this aspect of his reasoning in one

particular example concerning the exclusion of that

cross-examination:

Wagner 17 26/10/93

I can envisage circumstances in which I would

be inclined to do so which I need not discuss

in these reasons.

That is, excluding part of the cross-examination.

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.

Now, I might point out that these persons were, in fact, a court. Even under the laws of evidence in Australia at the time, one did not call a court to give evidence that the record of its proceedings

was accurate, and where the concession was made

that the record was authentic and accurate, that
record alone is what would be used for the purpose

of discrediting a witness in terms of a prior

consistent statement.

Really, it is our submission that what the

trial judge has decided is that he is not

satisfied, at present, that there is any

substantial prejudice presently occasioned, or

likely to be occasioned, in the conduct of the

case. In that regard, he has remained, as far as

he is concerned, vested with the application for

the purpose of guarding against any such prejudice

when, and if, it comes. Now, the interest - - -

TOOHEY J:	Mr James, as things stand, what will the prosecution case consist of, I mean, by way of oral
testimony?
MR JAMES:	The evidence of Mr Zhilun as to the happening of

the killing and the activities of the applicant

that day, the evidence of other persons identifying

that person, Wagner, as the accused Wagner on the

basis that there was no other person to whom Zhilun

could have related his observations but the

accused; some evidence, depending on what happens

Wagner 18 26/10/93

by way of admissions, concerning the formal matters
necessary under the War Crimes Act, including

evidence of the German policy of elimination of the

Jews.

Essentially, it will come down to Zhilun's

evidence of the commission of the act, and evidence

of others linking his evidence through to the

accused. Of course, there is a record of interview

which makes certain admissions as to the accused,

having come from the relevant location, having been
the person named Heinrich Wagner, and having been

away at the relevant time, having worked as an

interpreter for the Germans. That record of

interview was relied upon in respect of direct

admissions it makes and also, because of what we

assert as the assertion of a false alibi, and there

is a great deal of the evidence that links the

accused through to Mr Zhilun also disproves the

alibi raised in the record of interview.

MASON CJ:	The statement that he was away at the time?
MR JAMES:	It is more than away, whereabouts he was,

Your Honour, that he was not in the relevant villages at the time, and there are direct

observations of him, including the lady he lived

with, as to his presence there in succeeding years

and so forth. There is quite a mass of evidence in

the case which would have a bearing on whether or
not the defence might, in fact, suffer real

prejudice by - - -

TOOHEY J: What is the timing of the trial, Mr James, or has

no date yet been fixed?

MR JAMES: Well, we had hoped, Your Honour, to start on

8 November. It looks as though we have very little

chance of that since there are pre-trial

applications running continuously and, indeed,

adjourned for two days in order to allow us to be

here today. in Adelaide on arguments concerning photo-board We expect to resume tomorrow morning identification. The record of interview has

already been held to be admissible. Considered as

a whole, despite objections in relation to

voluntariness and discretion, there are further
objections relating to each individual answer

contained in it that His Honour has held he would

have to decide in the light of the evidence at

trial.

TOOHEY J:  Can I ask you what time has been set aside, what

period has been set aside for the trial?

MR JAMES:  Your Honour, His Honour proposed to commence the

trial and keep it running until it concluded. We

Wagner 19 26/10/93

had expected it to conclude just before Christmas

if it started on 8 November, but we expect that it

would not start on 8 November. His Honour expects

to start it as soon as he finishes the pre-trial

applications. We have got the overseas w~tnesses

and so forth, in effect, on standby ready to come

as soon as we have got three weeks' notice. His

Honour has agreed to give us three weeks' notice of

the final determination of the pre-trial

application.

TOOHEY J: And if the trial begins before Christmas, would

it resume early January or will the court be in

recess?

MR JAMES: Early January, Your Honour. In fact, we have

discussed with His Honour a one week or two week of

that nature adjournment to accommodate the jury and

to accommodate the court system.

TOOHEY J: Thank you.

MR JAMES:  The application is, in our submission, albeit

it is unlike the common law applications, but the

application for special leave here is attendant

with all the problems that this Court and the

various States Courts of Criminal Appeal and Courts

of Appeal have noted, as well as the Federal Court,
with all the difficulties for the orderly flow of
the normal processes of criminal justice, and
particularly where the matter is confided by the

War Crimes Act itself to the discretion of the

trial judge.

Your Honours, as to one matter my friend

raised concerning the preamble, I should draw the

Court's attention to the fact that the preamble expresses the view, in subsection (b):

(b) it is appropriate that persons accused of

such war crimes be brought to trial -

and - (c) ..... be given a fair trial.

The submissions for the prosecution accept that and

we accept the proposition that in section 13(5)(c)

the interests of justice reflect the proposition

that such persons be brought to trial and be given

a fair trial. But it is not correct, in our

submission, to argue that the interests of justice
are, as it were, all one way. That is to say, that

if there is shown to be some evidence, albeit that

it is only evidence which might have been used to

impeach credit, is missing, then it follows that

there is substantial prejudice because of this

Wagner 20 26/10/93

being this sort of case and, therefore, it must

follow that the interests of justice require the

making of an order. In our submission, that is to

give no real significance to the terms of the

section.

Subsection (4), which preserved the normal

rules, including the powers of a court to take
action to prevent an abuse of process, was enacted

at the time well prior to Jago and, indeed, after

Watson and Kintominas. The ambit now of (4) and

(5) probably does not matter because subsection (6)

makes it clear that neither is to limit the

generality of the other. Indeed, it seems to us

that really there is a complex here which is why

the first application was based on both 13(5) and

common law to provide a regimen to ensure that the

trial judge had control but that the matter was not
to proceed if a fair trial could not be had. But

if a fair trial can be had, in our submission,

there seems to be no reason why 13(5) should be

interpreted as preventing the fair trail even
though there may have been missing some matters of

evidence which might have afforded some option of

doubtful utility and a great deal of danger to

counsel.

Your Honours, in our written submissions, we

refer to those matters. It matters not, in our

submission, whether His Honour has used in passing

the language that is peculiarly appropriate to the

common law abuse of process application, at

page 73, that is to say:

However, this change, either standing alone or

in conjunction with other matters, does not

justify the extraordinary step of permanently

staying the trial.

Now, that statement is made in the context of

whether or not His Honour was satisfied that

Mr Daviborshch had forgotten something of
significance.	What had happened was, the defence

had an affidavit from Mr Daviborshch in which he

said that Mr Zhilun could not have seen Mr Wagner

at that time because he, Zhilun, who had

accompanied Daviborshch on a cart to the scene of

the execution was up the road 500 metres, or

thereabouts, patrolling the road.

When we came to take evidence on commission,

Mr Daviborshch said nothing like that in-chief, and

in cross-examination that affidavit was not put to

him. Finally, at the end of the cross-examination,

Mr Daviborshch started saying, in answer to the

questions, words to the effect of, "I do not

remember, I do not remember". His Honour was not

Wagner 21 26/10/93

satisfied that meant that there was a genuine loss

of memory on Mr Daviborshch' s part at all. Now, in

those circumstances, it is not surprising that

His Honour was of the view that knowing what

Mr Davibroshch now can say, did not justify the

step of permanently staying the trial and, indeed,

the suggestion that it would, would make it an

extraordinary step in that context because there is

no matter of prejudice there whatsoever.

Further, when one comes to deal with the other matters of Mr Bardas, His Honour points out, at

page 68 line 47, that -

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.

His Honour is not talking there about an

extraordinary step or using the language of Jago.

TOOHEY J:	No, but he is, perhaps, not directing attention to the word "substantially" in section (5)(b) which
would allow the judge or, indeed, require the judge
not to make such an order if it was only peripheral
prejudice that could be demonstrated.

MR JAMES: Well, Your Honour, he does deal with that when he reviews the section that deals with the concession.

Firstly, he deals with the concession at page 64

and then at page 65, line 36, deals with the

grounds of the present application. His Honour had

pointed out, at page 65, that the fact that Zhilun

would give evidence in the presence of the jury and

Mr Daviborshch would not, at line 15, was not of

itself seen by His Honour as a sufficient basis to

stay. That was in the context that it was expected

that Daviborshch would contradict Zhilun because it

was all done on video camera in the way in which

evidence on commission can now be so taken.

But His Honour went on to say, at page 67, in

answer to Mr David's argument, that incited the

interpretation he had given in the previous

judgment:

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

Wagner 22 26/10/93

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.

Mr David went on to argue that that was, in effect, wrong, that is that:

the applicant is unable to obtain evidence due
to lapse of time ..... and the substantial

exists, there must be a stay.

And His Honour refers to the balancing criteria in

that context.

DAWSON J: Yes, but it cannot really be a balancing process,

can it, because it may that there is a substantial

prejudice to the defence but the gravity of the
offence and the interests of the community requires

the trial to proceed? That is not what the section

is talking about.

MR JAMES:  Your Honour, could I put it that if the defence

are substantially prejudiced, ie, cannot get a fair

trial because evidence has gone, then the interests

of justice would require some sort of appropriate

order to mitigate or cure that prejudice, and at

the end of the day one would have to see whether,

in the light of that mitigation - I put aside

"cure" for the moment - the trial could be fair,

and if it can be then the interests of justice can

be served.

DAWSON J: That does not involve a balancing process.

MR JAMES:	Not in the traditional sense, Your Honour, no.
MASON CJ:	Not in any sense.

MR JAMES: Well, yes, because what His Honour is talking

about by the balancing process is an interest of

the community in such persons being brought to

trial and the trial being fair. When one looks at

Wagner 23 26/10/93

what His Honour says, at page 68, line 35 - and I

agree the language of "balancing process'' is

inapposite, but what he is actually doing is

saying:

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 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.

Now, that is not two countervailing balancing

processes, it is looking at the object which is

common, or should be common, to both. It is not a

matter of saying there is an interest in a person

not being tried at all, although he can be fairly

tried, which must take precedence over the

community's expectations, as expressed in the

preamble, that such persons will be tried, but

tried fairly. It has got to be something in

addition to substantial prejudice and loss of

evidence, because the section seems to say so, and

that is where His Honour is expressing it. He goes

on to say if it was merely loss of evidence or

substantial prejudice, why is (c) there?

That is why it is our submission,

Your Honours, that in the upshot, whatever the

language be, His Honour has got the test perfectly

right in its application and practice. He is fully

cognizant of what he had to do and he has been

doing it. Concessions have been extracted from the Crown, evidence on commission has been taken in the Ukraine, further concessions had been intimated as

possibly necessary, by His Honour. It has been

suggested that cross-examination of witnesses might

have to be ruled out. All of this shows a

tenderness for the interests of the accused in the

light of a case of this nature. It well exceeds

that would normally be afforded. Further,

His Honour is of the view that, factually, there is

no substantial prejudice in the light of the very

material which counsel might put before the jury if

he chose to avail himself of the inconsistencies.

In such circumstances, it is our submission

there is no case for special leave and I am not, at

this stage, praying in aid the fact that it is

quite likely that the section would never be

considered again, nor that the matter has only

significance for this one case and can be dealt

Wagner 26/10/93

with on appeal in any event in the event that there

is a conviction.

DAWSON J:	You are merely mentioning those matters for our information?
MR JAMES:	My friend mentioned them, Your Honour, but from

the point of view of special leave, if there is to

be some such point as this taken and clarified for

the further conduct of the matter, we want it

clarified. We do not want the orderly processes of

criminal justice in this particular which are so

delicate, in terms of organization, effectively

frustrated by the present application.

MASON CJ: Yes, Mr David.

MR DAVID: Just two matters in reply, if the Court pleases.

Firstly, it is my submission that the significance

of the inconsistencies has been underrated by my

learned friend. Without going through them, those

that are in the affidavit that has presented, might

I go to His Honour's judgment in the first

judgment, at page 29, where he said in the last

paragraph:

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?

According to His Honour, they were of vital matters

that went, not just to credit, but to credit in

relation to this specific incident, not just

general credit. It is our submission, as it was

before the learned trial judge, that this

concession does not get any where near alleviating

the defence's problems because, in my submission,

we have Mr Zhilun saying, as one can say from his

latest statement, "I do not care what is written

down, I did not say it". Now, that answer is

impossible of refutation except by calling the

witness who was there taking the statement.

If the Court pleases, it is our submission

that there is a very great case which would be argued at a later stage, if leave is given, of

there being substantial prejudice. As far as the

test is concerned, His Honour, at page 40 of the

application book - this test was adopted in his

Wagner 26/10/93

later judgment - says near the bottom of the

penultimate paragraph:

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.

It is our submission that that is the wrong test.

If Court pleases.

MASON CJ:  The Court will take a short adjournment in order

to consider the course it will take in this matter.

AT 3.10 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.19 PM:

MASON CJ: Notwithstanding the forceful arguments presented

by Mr David QC in support of this application, we

have come to the conclusion that it should be

refused. This Court has repeatedly stated that it

is extremely reluctant to grant special leave to

appeal at an interlocutory stage in criminal cases

because to do so would result in an undesirable

if the applicant be so advised, be ventilated in a challenge to a conviction should the trial so

fragmentation of the criminal process. can,

eventuate.	As a result, the application is
refused.

MR JAMES: If Your Honour pleases.

AT 3.20 PM THE MATTER WAS ADJOURNED SINE DIE

Wagner 26 26/10/93