R (Cth) v Petroulias

R (Cth) v Petroulias - [2007] NSWSC 16 - NSWSC 2006 case summary — Zoe

[41]

Submissions 14 The Crown submitted that, in this conversation, the Accused was speaking to a young female whose identity is irrelevant. In the conversation, the Accused referred to the fact that "they know everything now", thereby tending to confirm the lack of transparency on his part when issuing rulings in the Australian Taxation Office ("ATO") and the fact that it required considerable time and effort for the ATO to ascertain what he had been doing. The Accused also confirmed that he had been doing "favours for people", consistent with the allegation by the Crown that the Accused had been acting inconsistently in the way he gave favourable rulings to Productivity Incentive Corporation ("PIC") schemes, unlike the schemes of other promoters. The Crown submitted that, in this conversation, the Accused admitted that he had caused rulings to be made in circumstances where he "was supposed to be the anti tax avoidance crusader" who was "supposed to stop everything and yet here I am encouraging it". 15 Mr Sutherland SC submitted that it was necessary to bear in mind that the telephone conversation was occurring at a time when a Senate Select Committee Inquiry was on foot which was examining various aspects of the ATO, including aspects relating to the Accused. He submitted that it is important to relate the alleged relevance of the conversation to the actual charges preferred in the indictment against the Accused. He contended that, when this exercise was undertaken, statements made by the Accused during the conversation were not relevant to the charges brought against him. It was submitted that no consciousness of guilt was evinced with respect to the charges which had been preferred. 16 To the extent that the Accused explained in the conversation that his "favours for people" could not be "that bad because it was just giving rulings on things that the ATO was happy to give rulings on", Mr Sutherland SC submits that this is far from an admission in relation to the elements of the offences charged. Accordingly, he submitted that the statements of the Accused had no probative relevance to the prosecution case.

[45]

(c) Count 3 - Between about June 1998 and April 1999 at Sydney, New South Wales, Nikytas Nicholas Petroulias, then being a Commonwealth officer with the Australian Taxation Office, did publish to Richard Llewellyn Morgan, a person to whom he was not authorised to publish, documents which came into his possession by virtue of him being a Commonwealth officer, and which it was his duty not to disclose (s.70 Crimes Act 1914 (Cth) - maximum penalty - two years' imprisonment). 18 In the course of my judgment in R v Petroulias (No. 1), I considered submissions made on behalf of the Accused concerning aspects of the first count on the indictment, being the offence of defrauding the Commonwealth contrary to s.29D Crimes Act 1914 (Cth). I noted (at [96]-[97]) a defence concession with respect to evidence touching the issue of dishonesty. There followed an extensive consideration of submissions advanced with respect to the element of deprivation ([100]-[174]), the element of causation ([175]-[208]) and the element of dishonest means ([209]-[233]). 19 In dealing with the element of causation, I considered submissions concerning the role of the Accused in the giving of rulings relevant to this prosecution. With respect to the element of dishonest means, I considered questions of conflict of interest, discrimination between the schemes of the PIC group and the schemes of other promoters, concealment of the rulings being issued and deception of officers as to the rulings being issued. 20 I mention these parts of my earlier judgment because they bear upon the relevance of statements made by the Accused in the conversation to the charges contained in the indictment. 21 It seems to me that statements made by the Accused in the telephone conversation presently under consideration are capable of constituting admissions that he caused rulings to be made which constituted "favours for people", in circumstances where the process was concealed so that it would take some time for the ATO to "work it all out". 22 The Accused's statement that he "was supposed to be the anti tax avoidance crusader" who "was supposed to be the one who was supposed to stop everything and yet here I am encouraging it" is capable of constituting an admission that he had caused the rulings to be made in a manner which encouraged tax avoidance and which was entirely inconsistent with, and contrary to, the duties which he was obliged to perform in his position within the ATO. 23 I do not consider that the existence of a Senate Select Committee Inquiry as part of the background to this conversation detracts from its relevance to this prosecution. What matters are the statements of the Accused concerning his own conduct which is directly relevant to facts in issue in these proceedings. 24 I am satisfied that the conversation containing these statements by the Accused is relevant and admissible for the purposes of ss.55 and 56 Evidence Act 1995. I propose to admit the conversation.

[92]

Submissions 34 The Crown submits that this conversation involves a discussion between the Accused and a promoter, Mr McLaren, during which they discussed a version of an explanation to be given to investigators. It is submitted that not only does the conversation reflect the joint involvement of the Accused and Mr McLaren and the arrangement alleged, but that the Accused also provides suggestions as to what to say and what not to say, including the Accused's comment to Mr McLaren "No, don't mention Richard Morgan". It will be remembered from my judgment in R v Petroulias (No. 1) (at [257]) that Sully J characterised Mr Morgan in summing up to the jury as "a cardinal witness in the Crown case". 35 The Crown submits that statements made by the Accused in this conversation are at odds with him being at arm's length when dealing with PIC applications and are inconsistent with him having an involvement with promoters which could be explained as that of a professional advisor prior to him joining the ATO. Even though the conversation occurs at a time after the Accused had left the ATO, the Crown submits that he demonstrates in the conversation knowledge of activities of the PIC group which can only be explained by the fact that he was a member of it. 36 Accordingly, the Crown submits that the conversation is clearly relevant to the present prosecution. 37 Mr Sutherland SC submits that the conversation is a discussion between tax professionals concerning ATO enquiries at a time well after the Accused had ceased working for the ATO. It occurred shortly after Mr McLaren had been spoken to, at his home, by investigators. He points to the fact that, during the conversation, Mr McLaren states "Now everything is totally legit. There isn't any problems at all". Mr Sutherland SC submits that the conversation does not carry any probative relevance to the elements of the offences alleged by the Crown and that it ought not be admitted into evidence. If that primary submission is rejected, Mr Sutherland SC submits that this conversation ought be excluded, in any event, under s.135(a) Evidence Act 1995.

[102]

NP: But I had no problem with that at all but I also understood the advantage of having them tell me information about what was going on in the market . So you know, did I get a benefit, well what benefit did I get, cup of coffee? A drink? When we met and they told me what was going on. Did I receive any cash at any point in time, was any account ever opened in my name, was any trust ever created in my benefit, was anything ever created in earth. Nothing has ever been done that I have received a red cent. If this was going to happen I wish that, you think to yourself shit at least if you have that benefit or money it would have been (inaudible) What I was afraid of covering my arse is shit and it does look like shit um yeah." (emphasis added) 40 The explanation proffered by the Accused in this conversation concerning his relationship with PIC, and his role in the development of the concept, are pertinent to the present tender. 41 Also relevant to this ruling are issues considered by me in R v Petroulias (No. 1), referred to at paragraphs 18 to 20, above concerning the elements of causation and dishonest means. In particular with respect to the latter, statements of the Accused in the conversation are pertinent to questions of conflict of interest, discrimination between the schemes of the PIC group and the schemes of other promoters, concealment of the rulings being issued and deception of ATO officers as to the rulings being issued. 42 Against this background, the subject telephone conversation occurs between a promoter, Mr McLaren, and the Accused at a time when an active investigation is underway with respect to the PIC group. In the conversation, the Accused appears to be discussing with Mr McLaren a likely approach following an interview with Mr Geoff Strong, including suggestions as to what Mr McLaren should, and should not, say to investigators, including the significant suggestion that he should not mention Mr Morgan. The Accused appears to suggest other matters to Mr McLaren, including what he might say concerning Mr Panos and the provision of a copy of a disk. 43 For the purpose of a ruling as to relevance, I am satisfied that the statements of the Accused in this conversation are capable of constituting implied admissions, reflecting consciousness of guilt, with respect to the activities of the Accused with the PIC group. 44 I accept the Crown submission, for the purpose of this relevance ruling, that the conversation is capable of supporting a conclusion that, if the Accused's dealings with the PIC group were honest and complied with ATO procedure, then it would not be necessary for him to disguise that involvement by making suggestions to Mr McLaren as to what he should say, and not say, to investigators concerning that topic. 45 I am satisfied that the conversation is relevant and admissible in the current prosecution. Accordingly, it will be necessary for me to consider the second leg of the objection, being that under s.135(a) Evidence Act 1995. I will return to this objection, which also touches the tender of conversations (d), (e) and (f), to which I will now turn.

[123]

Submissions 48 The Crown submits that this conversation (and conversations (e) and (f)) are relevant and admissible for the purposes of ss.55 and 56 Evidence Act 1995. It is part of the Crown case that the Accused is alleged to have fabricated a document entitled "Memorandum of Understanding re the ATO Attitude Towards the Taxation Treatment of Incentive Structures". This (closely typed nine-and-a-quarter page) document purports to be minutes of a meeting said to have been held on 28 and 29 January 1998 attended by the Accused and Mr Emmanuel Aivaliotes (representing the ATO), Mr Geoff Strong (representing PIC) and Mr Nick Panos (of Coleman & Greig, Solicitors). It is the Crown case that the Accused created the Memorandum of Understanding as part of his concealment in the ATO of his involvement in the PIC group. 49 The Crown submits that Mr Aivaliotes gave evidence at the first trial (T882) that he did not recall that any such meeting took place and was able to account for the few occasions when he met either Mr Strong or Mr Panos. 50 The Crown submits that the Memorandum of Understanding first came to light when Mr Gregory Farr (then the First Assistant Commissioner in charge of Corporate Services) and Mr Stephen Brown (then a Senior Investigator in the Fraud Prevention and Control Unit) were investigating complaints from the public concerning the actions of the Accused and a meeting took place, at the Accused's Sydney ATO office, on 9 November 1998. In the context of explaining his actions in issuing favourable rulings, the Accused produced a white folder containing a number of documents, including the Memorandum of Understanding (Farr - T1693; Brown - T1722). The Crown submits that the clear inference arising from the production of the document to Mr Farr and Mr Brown is that the Accused represented that there was an accord reached with PIC, at arm's length, as a result of the Accused being persuaded during the meeting that the PIC schemes were bona fide. 51 In submitting that the present conversation is relevant, the Crown points to the account given by the Accused to Federal Agent Wildman in his interview on 24 March 2000 to the effect that he came across the idea which became PIC, when helping his wife with her master's degree in human resources and thought that it was a "fantastic business" (see extract at paragraph 39 above). 52 The Crown submits that the subsequent investigation by the Australian Federal Police revealed a non-formatted version of the Memorandum of Understanding document on the hard-disk drive of the Accused located in a storage facility in Fitzroy, Melbourne, leased by him in the name of Christopher Marriott. Details extracted from the computer indicated that the document was created on 19 May 1998, four months after the purported meeting to which the Memorandum of Understanding relates. The Crown acknowledged that expert opinion left open the possibility that the document could have been loaded onto the computer on 19 May 1998 from another source (PT589, 2006). The Crown submitted, however, that the non-formatted version on the hard-disk drive was quite disjointed and had the appearance of a draft and not a simple copying of a pre-existing document (PT606, 2006). 53 Also extracted from the hard-disk drive of the same computer were other documents headed "The Mechanics of the Productivity Incentive Plan", "Boosting Productivity Through Employee Reward and Ownership Plans", "Explanatory Memorandum - The Productivity Incentive Trust Plan" and "The Tax Benefits of the Productivity Incentive Trust Plan". A glossy brochure used for the marketing of PIC products included portions of the text from various parts of these documents (Exhibit C160 at first trial). 54 The Crown submits that a comparison between the contents of these documents, particularly the brochure, and the Memorandum of Understanding in the form of minutes of the alleged meeting on 28 and 29 January 1998, reveals the artificiality of the document in that much of the Memorandum of Understanding is made up of a "cut and paste" of verbatim extracts from the documents found on the computer of the Accused. The Crown alleges that the conclusion from this evidence is that the document is a fabrication, and part of the strategy of the Accused to conceal his involvement with the PIC group and to cover his tracks in relation to his role in issuing the favourable rulings for the PIC schemes. 55 It is the Crown case that the minutes contained within the Memorandum of Understanding are fabricated. The Crown submits that a farcical scenario is suggested by the minutes whereby the PIC scheme, of which the Accused was the creator and of which he had detailed existing knowledge, was explained to him in detail by Mr Strong and Mr Panos, being persons with less knowledge of the PIC scheme than the Accused. 56 The Crown points to a number of items of evidence, none of which (on their own) are decisive on the question, in support of an argument that the present conversation is relevant and admissible in accordance with the test in s.55 Evidence Act 1995. The Crown submits that inferences adverse to the Accused are available, in this respect, from the location of the draft Memorandum of Understanding, in a different order to that contained in the final document, in the Accused's hard-disk drive in Melbourne, located in a storage facility leased by him in a false name. 57 The Crown submits that an inference adverse to the Accused may be drawn from the similarity between the contents of the Memorandum of Understanding and the brochure prepared with respect to the PIC scheme which was in the possession of the Accused. An inference adverse to the Accused is fortified, the Crown submits, by the circumstances in which the Accused produced the Memorandum of Understanding to Mr Farr and Mr Brown on 9 November 1998. 58 Mr Sutherland SC submits that I should reach the same conclusion as Sully J and hold that conversation (d) is irrelevant and inadmissible. He acknowledged that Sully J had observed, with respect to the Memorandum of Understanding, that "there is, to my eye, something odd about 'the document'" (Judgment, 14 April 2005, page 28). However, his Honour stated that the issue of admissibility did not turn upon the form and contents of the document, but turned rather "on the capacity of the telephone conversation to bolster a Crown case that there was never such a meeting" as recorded in the Memorandum of Understanding (page 28). His Honour concluded with respect to the present conversation (pages 28-29): "I do not see, as at present advised, how the conversation assists that aspect of the Crown case. The most that can be gleaned from the conversation is that Mr Strong is apprehensive that the two given dates are incorrect; and that he has, as matters then stand, no means of clarifying the fact. I cannot see anything in the reported material that should be thought reasonably to constitute an admission, whether express or implied, by the accused that the meeting did not in fact take place, and that the document, Exhibit C-2, is simply a charade designed to camouflage some relevant impropriety. In my opinion evidence of this conversation is irrelevant and is, therefore, inadmissible." 59 Although acknowledging that I am not bound by the judgment of Sully J, Mr Sutherland SC submits that his Honour's conclusion was correct and that I should reach the same conclusion on the present application. He submits that the critical question, as identified by Sully J, was whether or not there ever was a meeting of the kind reflected in the Memorandum of Understanding. To the extent that the Crown seeks to establish that the meeting did not occur, because of the suggested inference that the document was created at some time after the events which it purports to record, it was submitted that the telephone conversation did not advance such an argument. Mr Sutherland SC submits that the conversation contains no admission of the document being a fabrication and that the discussion appears to relate to whether the dates of the meeting were correct, not whether a meeting took place at all. 60 Mr Sutherland SC submits that the location of the non-formatted version on the Accused's hard-disk drive did not assist the Crown on the tender. The evidence did not demonstrate that the non-formatted version was first created on 19 May 1998. It was open to conclude that, although it was loaded onto the Accused's computer on that date, it had been created well before that date. Further, Mr Sutherland SC submits that there is nothing sinister in the fact that the comments attributed to Mr Strong in the minutes appear to follow closely the content of the PIC brochure - it is to be expected that information of that type would be the source for Mr Strong's presentation at the meeting. 61 Mr Sutherland SC submits that the conversation does not advance the Crown case at all and is not relevant. In the event that the Court ruled that the conversation was relevant, Mr Sutherland SC advanced a further submission that it should be rejected, in any event, under s.135(a) Evidence Act 1995.

[124]

Decision 62 I will firstly consider the issue of relevance concerning this conversation. In the event that I hold that it is relevant, I will return later in this judgment to the s.135(a) Evidence Act 1995 objection, which also affects conversation (c) and, if held to be relevant, conversations (e) and (f). 63 As I understand the Crown submission, this conversation is said to be relevant to the question not just whether a meeting occurred at some time between various persons, but whether a meeting took place attended by the nominated persons on the nominated dates at which discussion took place as attributed to various speakers in the alleged minutes contained within the Memorandum of Understanding. 64 It is against that background that the conversation between Mr Strong and the Accused of 2 October 1999 is tendered. Mr Strong rings the Accused to inform him that he had just had a visit from the Australian Federal Police who had enquired about minutes of the meeting and the identity of the person who was present and took them. 65 An examination of the conversation suggests a level of agitation on the Accused's part with respect to this investigation of the minutes. It is true that the Accused, at one point, says "what's the big deal here we did have a meeting so who cares". There is then discussion as to whether the dates were correct. Again, comments by the Accused reflect a level of agitation or concern on his part that an investigation is on foot directed to the minutes of the alleged meeting. 66 I am satisfied that the Accused's statements in this conversation are at least capable of supporting an inference that the alleged minutes of the meeting were a suspect document and that the fact that an investigation was on foot with respect to them was a cause for concern to the Accused. 67 This reaction of the Accused related to a document about which Sully J observed that there was "something odd". For the purpose of this ruling, I agree with his Honour's characterisation of the document. The document has the flavour of a document created after the event. The alleged minutes do not nominate the venue of the meeting or its starting and finishing times. Further, given the facts otherwise known concerning the Accused's existing detailed knowledge of PIC schemes, there is a strong element of artificiality in the minutes which allege that a detailed and protracted explanation was provided to the Accused, over two days, with respect to information already well known to him. 68 I have come to a different conclusion to Sully J concerning the relevance of the conversation which is presently tendered. I have reached that conclusion only after undertaking my own independent assessment of the material relied upon and the submissions, and after giving careful and significant weight to his Honour's earlier conclusion. I am satisfied that the statements of the Accused in this conversation are capable of constituting admissions against interest on facts in issue in the proceedings and are capable of reflecting consciousness of guilt on his part concerning the genuineness of the alleged minutes contained in the Memorandum of Understanding. 69 A significant factor in reaching this conclusion is the prima facie unrealistic scenario that, on 28 and 29 January 1998, Mr Strong and Mr Panos would explain in a meeting with the Accused, in considerable detail, the PIC scheme. The fact that the evidence of Mr Aivaliotes is that he has no recollection of such a meeting is also supportive of the admission of this evidence. 70 I am satisfied that this conversation is relevant and admissible for the purposes of ss.55 and 56 Evidence Act 1995. Accordingly, it will be necessary to consider the objection under s.135(a) Evidence Act 1995, a topic to which I will return later in this judgment.

[155]

Decision 82 In ruling with respect to this conversation, I repeat the reasons set out at paragraphs 63 to 69 above concerning conversation (d). 83 The present conversation occurs two days after a conversation between the Accused and Mr Strong with respect to the same subject matter. In the present conversation, the Accused explains to Mr Strong that he has obtained information about the investigation which involved investigators considering that "those documents are false and not real that meeting never happened and that record thing that record of the thing never happened". Mr Strong responds "I'm prepared to say that the meeting happened the dates don't gel with my diary". 84 In the course of the discussion, the Accused states that a meeting took place and says to Mr Panos "the other thing is you did you did you did the minutes and the minutes aren't that exciting all they are is at the beginning the whole spiel which is essentially the brochure you know that brochure … and then there's that bit at the end about how they want to work together with the ATO". 85 The Accused then says to Mr Panos "You've got you've got you've got all that haven't you" to which Mr Strong replies "I've got it yeah I just got to find it I had a big clean out I'm not exactly sure where it is but I'll find it". 86 For the purpose of this ruling, I am satisfied that an inference adverse to the Accused is open from the discussion concerning the minutes of the meeting involving, at one point, the Accused telling Mr Strong that he (Strong) had done the minutes. The very fact that the topic was being discussed, with apparent concern on the Accused's part about the accuracy of the dates and the identity of the author of the minutes, is capable of constituting an admission against the Accused's interest relevant to facts in issue. 87 Accordingly, I am satisfied that this conversation is relevant and admissible for the purposes of ss.55 and 56 Evidence Act 1995. It is now necessary to turn to the second basis for objection under s.135(a) Evidence Act 1995.

[156]

Submissions 88 Mr Sutherland SC objects to the tender of conversations (c), (d), (e) and (f) upon the basis that, even if their contents are relevant, the probative value of the conversations is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the Accused: s.135(a) Evidence Act 1995. 89 In support of this submission, Mr Sutherland SC submits that unfairness will flow from the decision of the Crown not to call Mr McLaren, Mr Panos or Mr Strong in the Crown case at the trial. Mr Sutherland SC submits that the Crown is in possession of statements signed by Mr Panos and Mr Strong in which they assert that the meeting referred to in the Memorandum of Understanding did, in fact, take place. He submits that the Crown proposes, however, to invite the jury to draw an inference from these telephone conversations (and other evidence) that no such meeting took place. 90 Mr Sutherland SC submits that this is unfairly prejudicial for the purposes of s.135(a) of the Act, in circumstances where the Crown holds statements to the contrary effect from Mr Panos and Mr Strong and declined to call them as witnesses in the prosecution case at the trial. 91 In support of his s.135(a) Evidence Act 1995 submission, Mr Sutherland SC points to authorities which have concluded that unfair prejudice, for the purpose of s.135(a), may arise where evidence is tendered against a party who could not contest it: Commonwealth of Australia v McLean (1996) 41 NSWLR 389 at 401; Gordon (Bankrupt), Official Trustee in Bankruptcy v Pike (No. 1) (Federal Court of Australia, Beaumont J, 1 September 1995). He submits that, in circumstances where the critical issue is whether a meeting took place at which Mr Panos and Mr Strong were present, the clear intention of the Crown to not call those persons as witnesses (where they had said in statements that a meeting had occurred) would militate in favour of an exercise of discretion to exclude evidence of conversations from which a contrary inference will be sought to be drawn. Mr Sutherland SC points also to the evidence of Mr Aivaliotes of having no recollection of attending a meeting with the Accused and a representative of PIC. He submits that, in the light of the evidence of Mr Aivaliotes and the Crown decision not to call either Mr Panos or Mr Strong, it would be unfair to admit the conversations. 92 Mr Sutherland SC submits that similar, but not identical, considerations apply with respect to Mr McLaren. Although Mr McLaren was not said to have been present at the alleged meeting on 28 and 29 January 1998, the Crown says that he was a promoter involved with the Accused in sinister activities, which the Crown wishes to demonstrate by the tender of conversation (c). It was submitted that such an approach was unfairly prejudicial where the Crown declines to call Mr McLaren as a prosecution witness at the trial. 93 The Crown submits that there is no basis for excluding the evidence of these conversations under s.135 Evidence Act 1995. The Crown proposes to rely upon the statements by the Accused in these conversations as admissions reflecting consciousness of guilt (in various ways) on his behalf. The fact that the Crown declines to call Mr Strong, Mr Panos and Mr McLaren as Crown witnesses at the trial, it was submitted, is not relevant to the admissibility of the telephone conversations containing admissions by the Accused which, in some cases, take the form of responses to things said by the other participant in the conversation (PT591.31, 2006). 94 I was informed by the Crown that I can approach this ruling on the basis that it is the Crown's intention not to call Mr Panos, Mr Strong and Mr McLaren at the forthcoming trial (PT607.56, 2006).

[162]

300 I am not satisfied that the Crown's failure to call Mr Panos and Mr Strong constituted a breach of the prosecutor's duty to call all material witnesses. The Crown sought to confer with these witnesses in accordance with the practice referred to in R v Kneebone . It may readily be inferred that Mr Panos and Mr Strong were unwilling to attend a conference with the Crown representatives. Their telephone conversations with the Accused in October 1999 were such as to support a view that they were not at arm's length from the Accused. There is nothing to indicate that these persons were not available to be called by the Accused in his case at the trial if he so wished. I see no basis for the grant of a stay arising from the Crown's failure to call Mr Panos and Mr Strong at the first trial." 96 Although I was dealing with an application made for a different purpose, the observations made concerning the Crown's approach to the calling of Mr Panos and Mr Strong are presently relevant. 97 Sully J's rulings, on 14 April 2005, excluding conversations (d), (e) and (f), were confined solely to the relevance ground. The application of s.135 Evidence Act 1995 played no part in his Honour's reasoning. 98 In approaching the s.135(a) objection, it is appropriate to keep in mind that the Crown tenders these conversations as admissions by the Accused. The fact that the statements of the Accused were made in the course of conversations with Mr McLaren, Mr Strong and Mr Panos does not mean that, in some way, the Crown is seeking to adduce evidence from those three persons. 99 As I observed in my judgment in R v Petroulias (No. 1) at [296], it is open, in any event, to the Accused to call these persons in his case if he so wishes. I do not consider that the fact that the Crown is said to have statements from Mr Panos and Mr Strong which assert that a meeting took place creates a situation of unfair prejudice with respect to the tender of the conversations, let alone unfair prejudice that substantially outweighs the probative value of the admissions made by the Accused during the conversations. 100 The conversations will be admitted to establish, expressly and by implication, admissions against interest by the Accused which, the Crown contends, are indicative of consciousness of guilt. 101 I do not consider that the circumstance of the Crown declining to call Mr McLaren, Mr Panos or Mr Strong as prosecution witnesses or to, in some way, seek to place before the jury the statements of Mr Panos and Mr Strong concerning the alleged meeting, establishes a basis for the exercise of the s.135(a) discretion. 102 There is a further matter which bears upon the issue of unfair prejudice. Some comments made by Mr Panos and Mr Strong in the conversations are open to a construction that a meeting did take place, albeit with queries as to the date or dates of the meeting. As Mr Sutherland SC acknowledged, there was a "two-edged sword aspect" to his submission on this point (PT602, 2006). I mention this because it is difficult to see how the failure of the Crown to call Mr Panos and Mr Strong gives rise to unfair prejudice to the Accused when, to some extent at least, some things said by them in these conversations may assist the Accused. As I have said, it remains open to the Accused to call these persons at the trial if he sees fit. 103 I am not satisfied that the probative value of conversations (c), (d), (e) and (f) is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the Accused resulting from the fact that the Crown does not propose to call Mr McLaren, Mr Panos or Mr Strong at the trial.

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