Steve Vizard was not charged because (in all probability) the Commonwealth DPP gave ASIC the wrong legal advice. Treasurer Costello (the minister for ASIC) provided the vital clue. He said that a witness had “refused to sign a statement.” Now Costello would only say this if ASIC had told him that was the DPP’s reason for not proceeding.

In Victoria, serious charges proceed by way of committal. A precursor to a committal is the service of a Handup Brief (HUB) which must contain signed statements. The evidence cannot be used if there’s no signed statement (Magistrates’ Courts Act Schedule 5 para. 5(1)(c)). Thus, one way to defeat a committal HUB is for a crucial witness to refuse to sign. In some cases (not this one) witnesses could be influenced by loyalty, friendship, fear or even money.

In 2000 the Act was amended to permit the prosecution to have a compulsory cross-examination procedure for witnesses who refuse to sign committal statements (section 56A). The DPP should have recommended that this procedure be adopted.

Alternatively, as the DPP must have had possession of the section 19 evidence (on oath) of the witness, a committal could be dispensed with entirely and the Director Bugg could “directly present” Vizard. This by-passes the committal procedure. The trial judge could then give Vizard a quasi-committal (picturesquely called a Basha enquiry)

Either way, the refusal of a witness to sign a HUB statement cannot derail a criminal prosecution. ASIC must now release the DPP’s advice so it can be examined for error (they can waive the legal professional privilege).Of course, they will not.

Alternatively, Costello and the Attorney-General Ruddock should release it. Of course, they will not. It may be that we are faced with a serious cover-up which goes to the highest levels. At stake is DPP Bugg’s future. The buck stops with Bugg. If the DPP has given wrong advice, he must resign. Of course, he will not.

Peter Fray

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