Crikey reporter Sophie Vorrath writes

anyone still confused by the ins and outs of the Steve Vizard case, a
must-read book was released this week, just days before Vizard’s civil
case begins Federal Court. The Law of Insider Trading in Australia, by Gregory Lyon and Jean Jacques du Plessis (The Federation Press 2005) could become the Harry Potter of the legal world, although co-author du Plessis says the timing is just a “happy coincidence.”

how does du Plessis think ASIC has handled the case? “Very well so
far,” he told Crikey. This response isn’t too surprising, considering
his co-author Gregory Lyon is part of the legal team that would act
against Vizard in a criminal trial and so is unable to comment. “We
will know more after the Thursday hearing about why the DPP did what
they did, or whether they should go further,” said du Plessis, adding
that a criminal trial was still “definitely a possibility… I would be
very surprised if there was any deal not to prosecute… in order just
to go ahead with the civil (case),” he said.

So why haven’t
criminal charges already been laid? It all comes down to a “very
important difference” between the wording of the civil penalty
provision in the Corporations Act and the criminal penalty provision,
says du Plessis. The civil clause deals only with the “improper” use of
company information by directors, officers and employees to “gain
advantage” or “cause detriment.” This is easy to prove – especially
with a confession. On the other hand, the criminal provision deals with
the “dishonest” use of such information, “recklessly” and “with the
intention to gain advantage:” All very difficult to prove beyond
reasonable doubt.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey