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.