Published: 12 October 2021
Last updated: 4 March 2024
Next Thursday an expert panel will discuss the controversial trial, and acquittal, of Ukrainian Ivan Polyukhovich. Steve Meacham speaks to some key figures from then, and now
IVAN POLYUKHOVICH DIED in Adelaide in 1997, taking his secrets to the grave. Accused of murdering - or assisting in the murder of up to 900 men, women and children in Nazi-occupied Ukraine, Polyukhovich remains the only Australian citizen to have faced a Nazi War Crimes trial.
Spoiler alert.
Polyukhovich walked free on May 18, 1993, found not guilty by a nine-man, three-woman jury after 45 minutes deliberation following a three-year legal battle that went all the way to the High Court.
One reason for the drawn-out process is that Polyukhovich was found with what were thought to be self-inflicted gunshot wounds to the head on the eve of his committal.
Why resurrect this sorry chapter nearly three decades after Polyukhovich was acquitted?
“This is an opportunity to remind ourselves of one of the most remarkable and unique episodes of Australian history,” says David Bevan, former ABC journalist, Adelaide Advertiser court reporter in these crucial years, and author of A Case to Answer: The story of Australia's first European war crimes prosecution, first published by Wakefield Press in 1994.
In the larger sweep of history, there is another reason behind the timing. 2021 marks the 60th anniversary of the Eichmann trial, 75 years since the Nuremberg war crimes trials and 30 years since the start of the Polyukhovich trial.
“We’re looking at all aspects of post-war justice this year,” says Jayne Josem, chief executive of the Jewish Holocaust Centre in Melbourne, which is hosting a panel discussion on the Polyukhovich case. "Many younger people don’t know about it. We are here to educate and enlighten.”
Bevan will moderate a virtual panel discussion this Sunday, consisting of the two leading QCs (now both retired Supreme Court judges) in those momentous events - Gregory James for the prosecution and Michael David for the defence.
Emeritus Professor Konrad Kwiet, the Holocaust historian who appeared for the prosecution against Polyukhovich, will also take questions from the virtual audience.
For those too young to remember, Polyukhovich, his wife Maria and his two step-daughters arrived in Australia in 1958, and settled in Adelaide. He had been born in Serniki in what is now Ukraine in 1924, and was a forestry warden when the Nazis invaded in 1941.
The charge against him - never proven - is that he hunted fleeing Jews trying to escape the Nazis through the Ukrainian forests, shooting them in cold blood.
Novels and films like The Boys From Brazil and Marathon Man have helped reinforce the public perception that most former Nazis who fled the Third Reich ended up in South America (most famously, Adolf Eichmann, who was captured in Buenos Aires).
But democratic countries such as the US, Canada and Australia also accepted thousands of post-war immigrants without asking too many questions.
Prompted by the reporting of Mark Aarons for the ABC in the 1980s, Prime Minister Bob Hawke and Attorney General Lionel Bowen pushed a bill through Federal Parliament, permitting accused war criminals to be prosecuted through Australian criminal courts rather than be deported to face show trials in the Soviet Union. They created the Special Investigations Unit (SIU) to oversee these prosecutions.
“Even in the 1980s, there was no way the Australian public would condone sending people who were by now Australian citizens [to the USSR],” Bevan continues. “The Hawke government came up with an elegant solution: ’We can be custodians of our own conscience. We’ll try them here.”
Bevan was then a young court reporter for the Adelaide Advertiser. Realising this was unique moment in Australian legal history, he began writing his book - which he continued after returning to the ABC in 1993.
Among his conclusions are what Bevan calls “the lack of political will once Hawke was replaced as Prime Minister by Paul Keating [in 1991]. Public support for the trials was always marginal, so the [government] disbanded the SIU.”
A more practical hurdle then followed. Originally the defence team had agreed to the prosecution’s case to fly lawyers from both sides to interview surviving witnesses in the Ukraine, Israel, Germany, Canada and the US.
However, when Michael Abbott QC took over Polyukhovich’s defence, he immediately withdrew support for the “on commission hearings”.
“That put a scythe though the prosecution case,” Bevan recalls. “It meant any witnesses prepared to give evidence against Polyukhovich had to fly to Australia. Most were too old and frail.”
Back then, Konrad Kwiet (“a German/Dutch Jew - now Australian,” in his words) was - among other academic positions - the chief historian of the SIU, charged with providing historical context to the Polyukhovich trial.
I spent five years working on this case. The trial was really about ‘History versus the Law’ - Konrad Kwiet
“I spent five years working on this case,” Kwiet says. “I searched all relevant documents and archives in Europe, the US and Israel. This trial was really about ‘History versus the Law’.”
Could Polyukhovich have committed these war crimes? Yes, according to the historical record. Could they be proven beyond reasonable doubt without the evidence of living eye-witnesses? No.
How will this debate, a quarter of a century after Polyukhovich’s death, add to our understanding of those atrocious war crimes?
“Depends on the questions we’re asked,” says Kwiet. “One question I hope we’re not asked is: was the Polyukhovich trial a failure?
“It cost lots of money, took up many years of legal debate, and ended in a not-guilty verdict. It was too late, but it was necessary. There is no statute of limitations on mass murder.”
Ultimately, Australia took the decision to try Polyukhovich not under specially-declared war crimes legislation but under the normal criminal code, where everyone is presumed innocent until found guilty.
“In that sense, this trial wasn’t a failure,” Kwiet concludes. “It showed the rule of law is working in Australia.”
Details: Oct 21, 8pm. Bookings and enquiries
Cost $10/$5 concession.
