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

Get your first 12 weeks of Crikey for $12.

Without subscribers, Crikey can’t do what it does. Fortunately, our support base is growing.

Every day, Crikey aims to bring new and challenging insights into politics, business, national affairs, media and society. We lift up the rocks that other news media largely ignore. Without your support, more of those rocks – and the secrets beneath them — will remain lodged in the dirt.

Join today and get your first 12 weeks of Crikey for just $12.


Peter Fray
Editor-in-chief of Crikey