R (Cth) v Petroulias

R v Ronen [2004] NSWSC 1298 CASES CITED : R v Le [2002] 54 NSWLR 474 Adam v The Queen [2001] 207 CLR 96 R v Parkes [2003] 147 A Crim R 450

PARTIES : Regina (Commonwealth) (Crown) Nikytas Nicholas Petroulias (Accused)

COUNSEL : Mr P Hastings QC; Mr C Hoy (Crown) Mr R Sutherland SC; Mr G Walsh (Accused)

SOLICITORS : Commonwealth Director of Public Prosecutions (Crown) Coadys (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

2002/93 Regina (Commonwealth) v Nikytas Nicholas Petroulias (No. 16)

JUDGMENT (On application by Crown for leave under s.38 Evidence Act 1995 to cross-examine Emmanuel Aivaliotes concerning Exhibit C95, Tabs 11, 74 and 75 - see page 1326 of transcript)

1 JOHNSON J: The Crown has called as a witness in its case Emmanuel Dimitrios Aivaliotes. In the course of evidence-in-chief of Mr Aivaliotes, application is made by the Crown under s.38 Evidence Act 1995 for leave to question Mr Aivaliotes as though the Crown was cross-examining the witness. 2 The Crown seeks leave to cross-examine Mr Aivaliotes about evidence that has been given by him that is "unfavourable" to the Crown (s.38(1)(a)) and about whether Mr Aivaliotes has, at any time, made a prior inconsistent statement (s.38 (1)(c)).

Exhibit C95, Tabs 11, 74 and 75 3 The application relates to three areas, being evidence given by Mr Aivaliotes concerning a number of documents which may be shortly described as Exhibits C95, Tabs 11, 74 and 75. It is not necessary, for the purpose of this ruling, to provide any detailed explanation of those documents. It is sufficient to say that these documents comprise, in each of Tabs 11 and 74, an application for an Advance Opinion and an Advance Opinion purportedly given on behalf of the Australian Tax Office. Tab 75 contains an application for a Private Ruling and the Private Ruling apparently given on behalf of the Australian Tax Office. 4 In each case, the Advance Opinion or Private Ruling shows, as the contact officer, the name of Mr Aivaliotes. However in Tab 11, his name is misspelt and appears in lower case type. In Tabs 74 and 75, his name appears in lower case type but is correctly spelt. These features are significant for the purpose of the present application.

Evidence of Mr Aivaliotes on 3 May 2007 5 In the course of the examination-in-chief of Mr Aivaliotes yesterday, in the presence of the jury, he was asked about the documents lying within Exhibit C95, Tab 11 (T1299.7-1301.1, 1301.48-1302.15):

"Q. Could I just go back then, somewhat out of order, to some of those rulings by asking you to look at documents which are part of exhibit C95 which follow the schedule, C94. Would you go to the first volume of those three comprising exhibit C95 and go to the document behind tab 11. A. Yes, sir.

Q. Hopefully consistent with the schedule, that is a request dated 16 February 1998 from Productivity Incentive Australia? A. Yes, sir.

Q. For an advance opinion for the Superannuation Retirement Plan No 1. Do you see that? A. Yes, I do.

Q. There follows, I think, what appears to be an advance opinion dated 6 April 1998 for that plan. Do you see that? A. Yes, I do.

Q. Did you issue that ruling? A. Yes, I did.

Q. You note that you were shown as the contact officer? A. Yes.

Q. Is there anything about the format in which your name appears there which occurs to you? A. Just my name is in lower case and there is a misspelling of my name.

Q. Do you normally misspell your name? A. No, sir.

Q. What is your practice normally in terms of displaying your name as a contact officer? A. I usually do it in capitals.

Q. Can you explain why your name is spelt incorrectly and in lower case? A. The only thing I can offer is it was either my error not my error, sorry. Sometimes work comes in on disks and I may not have seen that or I was in a hurry.

Q. What do you mean work comes in on disks? A. Well, it is the practice of lawyers and accountants with ruling applications to include a computer disk, and now that we have the facility they can send in what they consider in the body of the ruling they set out what they consider the ruling should be and we sometimes request that now by email as an attached file so that we can save ourselves a lot of work. We can make any changes we wish to the draft that they have sent.

Q. Back in 1998 what was the practice about supplying things on disk? A. Some of the applications came in with computer disks attached.

Q. From whom? A. From either the accountants or the lawyers concerned, and we had for that purpose on our floor what's called a disk transfer station so that you could transfer work from any disk you had on to the tax LAN.

Q. Did Productivity Incentive Australia send you material on disk? A. I can't say for certain, sir, but I would say yes, that's more than possible.

Q. So what did you do when this application came in for an advance opinion for the superannuation retirement plan? A. Well, as was my practice I looked through it all, I looked at the law, looked at academic texts, thought about the matters and then came up with what I thought was the correct view.

Q. What did you do then? A. Well, produced this and fixed the stamp the Jim Killaly facsimile stamp.

Q. You are saying this came in with a disk? A. Yes.

Q. And when the disks came in, they actually had your name as contact officer so it would fit on to ATO letterhead, did it? A. I think I may have reconstructed it. I'm not sure, sir, I am not sure how it was done. Once it is on the system we can change things around, as anyone can on computer. I'm sorry, sir, I don't have such a precise recollection of what occurred.

Q. Did the disk come in with the reference above your name on it, SIA/LB&I? A. Again, I am sorry, I can't recall things from nearly 10 years ago.

Q. Just skimming the letter from Productivity Incentive Australia, in paragraph 5 on the first page it does contain this statement: 'PIA respectfully requests that the wording of the advance opinion be in accordance with the enclosed draft opinion.' Do you see that? A. Yes, I do.

Q. I don't think we have the draft. Do you recall whether you made any changes to the draft opinion that was apparently forwarded with the correspondence? A. No, sir, I can't recall anything like that.

… Q. Can you just look at the covering letter from Productivity Incentive Australia dated 16 February 1998 addressed to your attention. Do you see that? A. Yes, sir.

Q. Your name appears there as Mr Emmanuel Aivaliotes, does it not? A. Yes.

Q. Is the spelling correct there? A. Yes.

Q. If we go to the ruling or the advance opinion dated 6 April 1998 where you are shown as contact officer E/Aivaliotes, is that spelling correct or incorrect? A. Is this 6 April 1998?

Q. Yes. A. It's E S at the end. It should be, rather, E S.

Q. Do you know why the solicitors were able to spell it correctly in their letter but it doesn't appear correctly there? A. I have no idea, sir."

6 Soon after in examination-in-chief, Mr Aivaliotes was asked about the documents contained in Exhibit C95, Tab 74 (T1302): "Q. Can we move to volume 3 of exhibit 95. Can you go to the documents behind tab 74? A. Sorry, the folder is bent. I have to do it in small parts so it doesn't fall apart. I don't want to risk that.

Q. Do you have any recollection of the application in this case dated 25 March 1998 submitted by Ashley Cain Pty Limited for an advance opinion for a Superannuation Retirement Plan No 1? A. Well, looking at this, yes, some recollection.

Q. What is your recollection of the circumstances in which you received the application? A. Again I can only say that I received it in one of the ways that I have spoken of.

Q. Then there is an advance opinion dated 18 December 1998. Do you see that? A. I'm sorry, sir, what page does that begin on?

Q. It is behind the same tab. At the conclusion of the application there should be an advance opinion dated 18 December 1998. A. Yes, sir, that's right.

Q. Did you produce that advance opinion? A. Yes. Again I notice that my signature sorry, my name as contact officer is properly spelt, however, it is in the lower case.

Q. Were you in the practice of using lower case when you issued documents at the tax office? A. Not generally, sir.

Q. Did you ever issue documents in lower case? A. I may have, yes." 7 After that evidence had been given by Mr Aivaliotes, the Crown indicated that a matter of law arose as to which submissions should be made in the absence of the jury. Thereafter, the jury left the Court and the Crown made the s.38 application by reference to the evidence given by Mr Aivaliotes concerning Exhibit C95, Tabs 11 and 74. 8 It became apparent during submissions that the same issue would arise with respect to the documents contained within Exhibit C95, Tab 75. It was agreed by counsel, and I considered it to be the most appropriate course, that rather than basing any s.38 ruling upon a presumption as to what Mr Aivaliotes may say, the appropriate course was to take evidence from him on a voir dire in the absence of the jury. 9 Mr Aivaliotes was asked on the voir dire with respect to Exhibit C95, Tab 75 (T1310.5-1311.5): "Q. Mr Aivaliotes, would you go to the documents behind the last tab in Volume 3 of Exhibit C95? A. Is that number 75?

Q. 75, yes, which appears to comprise, firstly, an application by Ashley Cain Pty Limited dated 25 March 1998 marked for your attention? A. Yes.

Q. In relation to a private ruling for a noncomplying superannuation fund. Do you see that? A. Yes, sir.

Q. Do you have any recollection of being involved in the processing of that application? A. Yes.

Q. What is your recollection? A. Well sir, that I received it, and then processed it. I am sorry, did you want anything more specific than that, sir?

Q. Did you draft a response for the advance opinion, the private ruling? A. Yes I believe so, sir.

Q. Would you look at that document which is behind the application, the same part of Exhibit C95, noting that it appears to be dated 18 December 1998 addressed to Mr Ashley Cain? A. Yes, sir.

Q. Do you see that? Did you draft that response? A. I think so, sir.

Q. Do you see how your name appears as contact officer? A. Yes, I do.

Q. Does that indicate anything to you? A. Well again sir, my name is in lower case.

Q. Does that indicate something to you? A. Well, it stopped me. I think that was unusual for me but I can't say much more than that.

Q. Do you have any recollection of how you became aware of this ruling being issued? A. I am sorry, how I became aware?

Q. Did Mr Petroulias have any involvement in the production or sending out of the ruling? A. I am not sure sir, I am sorry." 10 Thereafter, Mr Aivaliotes was stood down and the argument continued upon the basis that the Crown's s.38 application applied to each of the three classes of evidence.

Evidence of Mr Aivaliotes at First Trial in May 2005 11 In support of the application, the Crown referred me to the examination-in-chief of Mr Aivaliotes at the first trial of the Accused before Sully J and the jury in 2005. That trial concluded with the jury unable to agree and with the jury being discharged. 12 It is appropriate for the purpose of this application, to set out extracts from the evidence-in-chief of Mr Aivaliotes at the first trial. 13 In examination-in-chief on 17 May 2005, Mr Aivaliotes was asked concerning Exhibit C95, Tab 11 (T871.45-872.21): "Q. The document which constituted the application is said to be dated 16 February 1998 and the opinion granted or made was on 6 April 1998. Would you just have a look at those documents? While the exhibit is coming perhaps I can ask you to look at the copies in the copy folder behind tab 11. Does that seem to be the application for the advance opinion on the Superannuation Retirement Plan No. 1? A. Yes, it does, sir.

Q. Is there behind that the advance opinion of 6 April 1998? A. Yes, that's right.

Q. Were you involved in processing that application and making that advance opinion? A. No, sir, I wasn't.

Q. Does it bear your name or initials? A. It does have my name as contact officer; however, it is in the lower case and my name is misspelt.

Q. In relation to the lower case in which your name is printed, what is the significance of that? A. It was my habit to put my name in capital letters.

Q. Are you generally in the habit of spelling your name correctly? A. Yes, that's right.

Q. So do you have any recollection of any involvement in the receipt of the application and the granting of the advance opinion? A. No, sir, I don't." 14 With respect to the documents contained in Exhibit C95, Tabs 74 and 75, Mr Aivaliotes was asked in-chief on 17 May 2005 (T877.18-878.11): "Q. Can I take you to the end of the schedule to item 74 and item 75. Item 74 refers to an application for an advance opinion for the Superannuation Retirement Plan No 1 by Ashley Cain Pty Limited dated 25 March 1998 and then an advance opinion on the Superannuation Retirement Plan No 1 dated 18 December 1998. Do you remember dealing with that application? A. No, sir, I don't.

Q. Would you have a look at it? A. Yes. Again, I'm sorry; it's number?

Q. Number 74. A. No, sir, I don't remember.

Q. The advance opinion shows your name as contact officer, does it not? A. Yes, it does.

Q. Is there anything about the form of that entry which is significant to you? A. Again my name is not all in capitals. The surname has lower case to it; however, the spelling is correct.

Q. What does that indicate? That A. I was not the producer of this,

Q. Did you become aware of the advance opinion at some stage when you were working in SIA? A. Yes, I did.

Q. In what circumstances? A. Mr Petroulias came to my workstation and handed it to me and asked me to file it.

Q. Then the last item on the schedule refers to an application for a private binding ruling for a non complying superannuation fund by Ashley Cain Pty Limited and the private binding ruling is dated 18 December 1998. Do you have any recollection of being involved in processing that application? A. No, sir, I don't.

Q. Do the details of the contact officer on the ruling indicate anything to you? A. Again the lower case is used, and the spelling is correct, which indicates to me that it's not my work.

Q. Do you have a recollection of becoming aware of the ruling during the time that you worked in SIA? A. Yes. Mr Petroulias came to my workstation, handed this to me for filing."

Is s.38(1) Triggered? 15 The Crown submits that there is a similar inconsistency between the evidence given by Mr Aivaliotes in his examination-in-chief concerning Tabs 11, 74 and 75 in May 2005 and that given by him in evidence yesterday. The Crown submits that each of s.38(1)(a) and (c) is engaged. 16 Mr Sutherland SC, for the Accused, does not submit to the contrary. He accepts that s.38(1) is triggered, in the sense that the evidence given by Mr Aivaliotes on the two occasions involves a prior inconsistent statement. Accordingly, the issue that falls to be determined is whether the Court, in the exercise of discretion, ought accede to the Crown's application under s.38. Mr Sutherland SC submits that the application should be rejected on discretionary grounds. 17 I am satisfied that s.38 (1)(a) and (c) are engaged by the inconsistency between the evidence given by Mr Aivaliotes in his examination-in-chief on these topics in May 2005 and yesterday. 18 I note that the word "unfavourable" in s.38 (1)(a) of the Act does not mean "adverse"; it means "not favourable" to the Crown. In this respect, see the authorities gathered helpfully by Whealy J in R v Ronen [2004] NSWSC 1298 at [49].

Relevant Statutory Provisions 19 The factors which bear upon the exercise of discretion where application is made under s.38 are not confined. However, there are express statutory factors referred to in s.38 (6) and s.192 Evidence Act 1995. In addition, I note that in R v Le [2002] 54 NSWLR 474 at 493 [90], Heydon JA (Dunford and Buddin JJ agreeing) observed that, in a s.38 application, the Court ought give consideration to s. 137 Evidence Act 1995, whether or not the parties make submissions with respect to that provision.

History of Mr Aivaliotes' Evidence Concerning these Documents 20 Before turning to factors relevant to the exercise of discretion, it is appropriate to note the following aspects of the history of the evidence of Mr Aivaliotes concerning the documents in Exhibit C95, Tabs 11, 74 and 75, and the manner in which the Crown has sought to present its case on this question. 21 These proceedings have a long history extending back to committal proceedings in 2001 and an earlier trial in 2005. 22 Mr Sutherland SC has referred me, during submissions, to evidence given by Mr Aivaliotes in cross-examination at the committal proceedings and the first trial. He submits that a complete picture of the evidence of Mr Aivaliotes on these issues should result in the rejection of the Crown's application. 23 It appears that at the committal proceedings, in accordance with the practice under the then applicable Justices Act 1902, the evidence-in-chief of Mr Aivaliotes was contained in a statement. That statement has not been placed before me, but it is apparent that, to the extent that the statement touched upon the documents contained in Exhibit C95, Tabs 11, 74 and 75, what Mr Aivaliotes said was broadly consistent with his evidence-in-chief at the first trial in May 2005 (see paragraphs 13 and 14 above). 24 So much is apparent from the committal proceedings transcript, at which Mr Richter QC, then appearing for the Accused, cross-examined Mr Aivaliotes challenging his account with respect to these documents. It is not necessary to incorporate in this judgment the parts of the cross-examination to which I have been referred. I note that I have been taken to pages 92-95 of the transcript of 20 November 2001 and pages 6-9 of the transcript of 21 November 2001. 25 The result of that cross-examination appears to be that Mr Aivaliotes accepted the possibility at least that he had been involved, in some way, in the issue of the Advance Opinions and the Private Ruling which are contained behind Exhibit C95, Tabs 11, 74 and 75. 26 At the first trial, the evidence-in-chief of Mr Aivaliotes is as I have set out earlier in this judgment (paragraphs 13 and 14). Whatever concessions had been made by Mr Aivaliotes in cross-examination at the committal proceedings, it is apparent that he maintained the position in his examination-in-chief at the first trial that he, for the reasons explained by him in his evidence, did not believe that he had been involved in the issue of the relevant Advance Opinions and Private Ruling. 27 Mr Aivaliotes was cross-examined concerning these documents at the first trial on 18 May 2005 concerning these documents by Mr Livermore, junior counsel then appearing for the Accused (T937.38 to 939.53): "Q. I have a couple of questions for you about rulings you identified yesterday where the typing of your name was not consistent with your usual practice of typing your name out in capital letters as the contact officer. A. Yes.

Q. Do you recall being shown some of those? A. Yes.

Q. The first one of those is behind tab 11 of the three folder volume of rulings. I'm not sure of the exhibit number.

LIVERMORE: Q. Tab 11, I think. This is the one that you identified as having your name in lower case and also a misspelling of your name? A. Yes, that's right.

Q. It is for that reason alone, is it not, that you expressed doubts as to whether you prepared that ruling or not? A. Yes, that's right.

Q. There is nothing else about the document to indicate to you that you did not prepare it. A. No.

Q. At some stage during the course of the investigation the police executed a search warrant on your house, didn't they, Mr Aivaliotes? A. Yes, they did.

Q. And they seized a quantity of documents? A. Yes.

Q. And you had at home a mixture of some Tax Office material being material that you had at your home because you had been working on particular matters from home, as you indicated in your evidence? A. Yes, I was either working on that material or it was part of a statement that I made.

Q. One of the documents we are told was seized is this document and I'll ask you to compare this document with that one behind tab 11. A. Yes.

Q. Can I suggest to you this possibility in relation well, first of all, the document that I've just handed you is a copy of that ruling behind tab 11. A. Yes, without the part of the letterhead isn't there.

Q. What I want to suggest to you as a possibility is this, and you tell me if this is realistic or not, that the reason that that copy of that final draft of that ruling was found at your home was because you had been working on it, and that the reason for the spelling mistake may well be because the applicant, as was not uncommon, had provided you with a draft of the ruling they wanted and had included your misspelt name in lower case as the contact officer. Do you accept that's a possibility of how that ruling came to be issued? A. Yes, I do.

Q. And the fact that you had a draft of that ruling at your house in your mind convinces you that you did actually prepare that ruling? A. Yes.

Q. The other two rulings are those behind tabs 74 and 75. Those were the ones I think you had doubts about because I think your name was spelt correctly but in lower case? A. Sorry, sir, that was which tab?

Q. Tabs 74 and 75. I think they are rulings relating to Ashley Cain. A. I've only got up to 25 here.

CROWN PROSECUTOR: Could I see the document that was recently shown to Mr Aivaliotes?

HIS HONOUR: Yes. It should be marked for identification.

HIS HONOUR: Q. Mr Aivaliotes, what is it that you have been looking at, the material from behind tab 74 or tab 75, or both? A. It is part of 75, your Honour, all in one. It's the request.

LIVERMORE: Q. Mr Aivaliotes, it is the fact that your name is in lower case on those rulings that leads you to suspect that you may not have been the author of those rulings. A. Yes.

Q. Would you have a look at this document, please (shown)? Just read it to yourself, particularly the last paragraph on the first page. A. Yes, I have read that.

Q. Do you now agree that you did produce those two rulings? A. Yes.

Q. And the reason for your name being lower case may well have been the same reason that I indicated previously. A. Yes.

Q. The applicant may well have provided the draft with your name correctly spelt but in lower case. A. Yes.

Q. And just so as not to keep the jury in the dark, the document you are looking at is a document that you wrote on 5 March 1999. A. Yes.

Q. Where you indicated to your supervisor, Mr O'Neill, that you provided the Ashley Cain ruling? A. Yes, it does, in that last paragraph." 28 In this cross-examination, Mr Aivaliotes appears to have answered in a broadly similar way to his responses at committal proceedings in that he, when taken to various documents and when various propositions were put to him, accepted that he may well have been involved at least in the issue of the Advance Opinions and the Private Ruling. 29 Given an issue which has arisen during argument before me on this application, it is appropriate to note what was argued in closing submissions to the jury at the first trial and in opening to the jury in the present trial. 30 It is apparent from the transcript of the first trial that, on 30 June 2005 (T2667), the Senior Crown Prosecutor addressed the jury upon the basis that Mr Aivaliotes had stated that he had nothing to do with the three documents in question and pointed to the incorrect spelling and inappropriate use of lower case in his name as indicating that they were not his work. 31 In the closing defence address of Mr Clelland SC on 11 July 2005 (T2898-2899), the jury was understandably reminded of the concessions made by Mr Aivaliotes in cross-examination in this respect. Accordingly, issue was joined by the parties at the first trial on these matters. 32 In his opening address to the jury at this trial on 28 March 2007 (T126), the learned Senior Crown Prosecutor adverted specifically to this issue concerning the misspelling of the name "Aivaliotes". The Crown said (T126.20):

"I have mentioned this already as being one of the indicia used by Mr Aivaliotes to indicate to him that he hadn't issued some of the rulings himself, because of the way in which his name was printed." 33 I am informed by the Crown that no conference took place between the Crown and Mr Aivaliotes prior to him being called to give evidence at this trial. 34 In the course of his evidence-in-chief yesterday, when asked similar questions to those asked in examination-in-chief at the first trial in May 2005, Mr Aivaliotes responded differently, and in significantly different respects, to his responses in evidence-in-chief at the first trial.

Consideration of Discretionary Factors 35 I turn to factors which are relevant to the exercise of discretion. 36 Section 38(6) nominates two factors, without limiting the factors which may be taken into account on a s.38 application. Section 38(6)(a) requires the Court to consider whether the party, in this case the Crown, gave notice at the earliest opportunity of its intention to seek leave. 37 The application for leave occurred in the manner which I have outlined, after Mr Aivaliotes had given certain answers yesterday. The absence of notice, it seems to me, does not bear in any significant way on the present application. Mr Aivaliotes had given evidence-in-chief at the first trial in accordance with that anticipated by the Crown and referred to, once again, in the Crown opening at this trial. Mr Aivaliotes gave that evidence, although he had been cross-examined at committal proceedings in a manner broadly consistent with the manner in which he was cross-examined at the first trial. 38 The issue having arisen in the way in which it did yesterday, it seems to me that the notice factor does not weigh heavily on the present application. Insofar as the defence has submitted that the Crown failed to confer with Mr Aivaliotes before giving evidence, and that this bears on the discretionary exercise, it does not seem to me that this factor carries any particular weight on the notice issue. 39 The matter was argued yesterday afternoon and counsel have had the opportunity overnight to consider the application and to advance such submissions as they saw fit. 40 I turn to s.38(6)(b), which requires the Court to take into account the matters on which, and the extent to which, the witness has been or is likely to be questioned by another party. The particular issues which are the subject of this application are relatively confined. To the extent that s.38(6)(b) requires consideration of past questioning of Mr Aivaliotes at the committal proceedings and at the first trial and the likely future questioning at this trial, it does not seem to me that these matters operate against the Crown application. 41 I turn to s.192 Evidence Act 1995. This section is engaged, as the authorities make clear, because the Court is asked to give leave in this case to the Crown. Without limiting the matters which may be taken into account in the exercise of discretion, the Court is required to take into account under s.192 (2)(a), the extent to which the grant of leave would be likely to add unduly to or shorten the length of the hearing. 42 It is fair to say that the grant of leave is not likely to shorten the length of the hearing. The issues on the application in this case are relatively confined. This is not an application where (and no submission has been made to this effect) additional witnesses will be required to deal with this issue if the Crown's application is allowed and where because of those additional witnesses, the hearing would be unduly extended. The issue is essentially an internal one relating to the evidence of Mr Aivaliotes. 43 It is likely that there will be some extension to the hearing time if the application is allowed because of the time which the Crown will take in asking questions, and the additional cross-examination that may arise as a result. Although some extension of the hearing time would flow if the application is granted, in my view it is not an unduly lengthy extension and, in the context of this application, this factor does not operate against the application for leave. 44 Section 192(2)(b) requires the Court to consider the extent to which a grant of leave would be unfair to a party or to a witness. In this respect, Mr Sutherland SC submits that it would be unfair both to the Accused and to Mr Aivaliotes. He submits that the issue has the appearance of Mr Aivaliotes accepting, as his current view in this area of evidence, the account given by him in cross-examination at the first trial. He submits that to take him back to what he said in-chief, and to engage in further questioning in that respect by way of a grant of leave to the Crown, would be unfair to Mr Aivaliotes. 45 Mr Sutherland SC also submits that it would be unfair to the Accused. Mr Aivaliotes has, in his evidence in chief at this trial, said something different to his evidence in chief at the first trial, but there is some explanation for that and, in these circumstances, to allow the present application would operate unfairly to the Accused. 46 Mr Sutherland SC also submits that to accede to the Crown's application would effectively allow it to depart from the case as previously particularised with respect to the first count. That count alleges a crime under s.29D Crimes Act 1914 (Cth) and relevantly alleges that the Accused "defrauded the Commonwealth in that, while an officer of the Australian Taxation Office, he did put the revenue of the Commonwealth at risk by causing private binding rulings and advance opinions to issue to taxpayers by dishonest means." 47 Mr Sutherland SC refers to particulars provided at an early stage in the litigation and contends that the Crown case has been that the Accused caused Mr Aivaliotes to issue the Private Binding Rulings and the Advance Opinions and not that (with respect to these three documents) the Accused himself issued them, albeit under the name or under the guise of Mr Aivaliotes. 48 Accordingly, it is submitted that to allow the present application would permit the Crown to depart from the case as particularised. 49 The Crown submits that there is no unfairness arising from the present application. Insofar as further evidence will emerge from Mr Aivaliotes if leave is granted, cross-examination of Mr Aivaliotes is the means by which the Accused may test the evidence. 50 Further, the Crown submits that it has consistently advanced evidence concerning the documents in Exhibit C95, Tabs 11, 74 and 75 through Mr Aivaliotes' statement at committal, and his evidence-in-chief at the first trial. In the closing address to the first trial jury and in the opening address to this jury, the Crown has made clear its case with respect to these three documents, namely that Mr Aivaliotes was not involved in the issue of the Advance Opinions and Private Ruling but that, inferentially, it was the Accused who issued them directly. 51 The Crown submits that the concept of "causing" referred to in the first count is sufficiently broad to accommodate this variation, which has been clear in the Crown case for years and in no way could take the defence by surprise. 52 I have considered the submissions made with respect to the fairness issue. It does not seem to me that it would be unfair to Mr Aivaliotes to permit this application. He has given evidence, certainly in varied ways at different stages in these proceedings. This is a factor which is appropriately explored, in my view, and no unfairness arises to him. 53 With respect to suggested unfairness to the Accused, I am satisfied that the manner in which any suggested unfairness can be met is by the ability of the Accused to cross-examine Mr Aivaliotes. I note, in this respect, that the majority (Gleeson CJ, McHugh, Kirby and Hayne JJ) in Adam v The Queen [2001] 207 CLR 96 at 107 [30] observed, in the particular circumstances of that case, that there was no unfairness because the defence could test the evidence by cross-examination. The Accused can test the evidence of Mr Aivaliotes by cross-examination in this case. 54 Accordingly, I do not consider that any unfairness is demonstrated to the Accused or to Mr Aivaliotes. 55 Section 192(2)(c) requires the Court to consider the importance of the evidence in relation to which leave is sought. The Crown submits that this is important evidence. I am satisfied that it is. It will of course be a matter for the jury in due course to determine what conclusions may be reached by reference to it, but this is not a minor or passing aspect of the Crown case. 56 Section 192(2)(d) requires the Court to consider the nature of the proceedings. This is a criminal trial on indictment before a jury. The issues raised by this evidence are such that this aspect does not operate against a grant of leave. 57 Section 192(2)(e) does not seem to have any relevance to the present circumstances. 58 With respect to the s.38 application generally, I have considered the various discretionary factors which have been identified individually and collectively. In R v Parkes [2003] 147 A Crim R 450, at 464 [83] Ipp JA (Hulme and Bell JJ agreeing), referring to the question of unfairness for the purpose of s.38, observed that the grant of leave in that case led to the result that a "truer picture of the situation was presented to the jury than would have been the case had the Crown been refused leave to cross-examine". His Honour observed that "this is the very purpose underlying s.38". These observations have particular application in this case.

Section 137 Evidence Act 1995 59 It is necessary that I consider the terms of s.137 Evidence Act 1995. That section provides that, in criminal proceedings, the Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. I take that section, in the present application, to involve consideration of the Crown's adducing evidence by way of cross-examination of Mr Aivaliotes with respect to what he said at the first trial. I note that Mr Sutherland SC did not advance a separate submission by reference to s.137, but relied upon the submissions which he made generally on the present application. 60 Having considered the matters raised on the application, I am not satisfied that the evidence which the Crown would adduce as a result of a grant of leave under s.38, would be such that its probative value is outweighed by the danger of unfair prejudice to the Accused. I do not propose to refuse the admission of the evidence by application of s.137.

Conclusion 61 Accordingly, I am satisfied that the Crown should be granted leave under s.38(1) Evidence Act 1995 to question Mr Aivaliotes, as though the Crown was cross-examining him, about evidence given by him at the first trial with respect to the documents contained in Exhibit C95, Tabs 11, 74 and 75. The application by the Crown is allowed.

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