According to ASIC, the criminal investigation into Steve Vizard is
still open. But they are still waiting for a signed statement
from Greg Lay. They have told Crikey that “if Mr. Lay changes his
mind and agrees to provide a sworn statement, as previously
requested by ASIC, ASIC would reconsider its position, including
referring the matter again to the DPP”

Let me offer them some free advice as to the next steps.

Lay’s solicitors Ledermans have clearly indicated to Crikey that Lay
will cooperate with the authorities. Lay did not sign the
statement on legal advice.

I propose that ASIC contact Ledermans and reopen negotiations about obtaining a signed statement.

If this fails, I strongly recommend that ASIC use the Compulsory
Examination Procedure under section 56A of the Magistrates’ Court Act
1989 (Victoria). The Court has power to order Lay to attend
court for the purpose of being examined by the informant.
“This unusual supplementary investigative power was introduced … to
strengthen the hand of the prosecution in relation to reluctant
witnesses.” (see Fox – Victorian Criminal Procedure).
Evidence thus obtained can be tendered at the committal in lieu of a
signed statement.

Before this procedure can be used by the prosecution, it is a
requirement that charges be laid. ASIC (I believe) has a draft
statement from Lay and should also have compulsory sworn evidence under
its own powers of investigation by the Section 19 procedure. In
other words, it knows what Lay will say.

Accordingly, ASIC must first charge Vizard (on the basis of it knows
what Lay will say) and then compulsorily examine Lay. At that
stage they will have a full brief against Vizard.

It is not good enough for ASIC or the DPP to refuse to charge Vizard
because they do not have a signed statement from Lay. They know
what Lay will say under oath, Lay is cooperative and, in any event, he
will be examined under oath. Lay must answer questions on oath.

Later, Lay can be (if required) subpoenaed to attend the committal hearing.

Section 56A was introduced to deal with the Lay-type problem.

ASIC and the DPP must now proceed. They have no option whatsoever.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey