Crikey editor Misha Ketchell writes:

The saga over whether Steve Vizard can now finally be charged with
criminal insider trading is starting to feel like one of those
frustrating soap opera storylines in which a budding romance
is thwarted repeatedly by artificial obstacles invented by
scriptwriters, and lead characters who are too feckless to make the first
move.

A couple of weeks ago Crikey revealed Vizard’s former accountant and key witness,
Greg Lay, was not a hostile witness after his lawyer contacted us to say Lay has always been willing
to give evidence against Vizard but had never even been asked.

A few days later an ASIC spokesman responded to questions from Crikey
by saying the real stumbling block had been Lay’s unwillingness
to sign a witness statement, but if he was prepared to change his mind
then ASIC was willing to reopen the case.

Now the Commonwealth Department of Public Prosecutions has got back to
Crikey’s questions about whether the case will be reopened given Lay’s
willingness to cooperate, with this statement from a spokeswoman.

In August 2005, after consultation with the DPP, ASIC again
inquired about Mr Lay’s willingness to provide a voluntary signed
statement in relation to this matter. Lay’s representatives confirmed
that their client’s position essentially remained the same and that Mr
Lay would not consider providing a statement without a full indemnity
for unspecified offences. Further conditions were imposed by his
solicitors on Mr Lay’s cooperation. ASIC and DPP offered to meet with
Mr Lay and his solicitors to discuss the issue. This offer was not
taken up. In the event that Mr Lay changes his position and agrees to
provide either an induced statement so as to enable the DPP to
determine what offences Lay is concerned about or provides a voluntary
statement to ASIC, the DPP will reconsider the matter.

If we’re to believe what we’re being told all of the three
parties who need to cooperate for a successful prosecution are now
willing to do so. So why isn’t it happening? Because they’re too busy blaming
each other for the fact this hasn’t happened earlier to make the first
move.

This is Keystone Kops stuff: amateur hour for our major corporate
regulator and the DPP. And it might be funny if it wasn’t so
serious. Lay’s lawyers have made a clear statement by contacting Crikey
and
raising in the media the fact that Greg Lay is willing to cooperate.

Surely now ASIC and and the DPP should call a meeting with Lay and his
lawyers to discuss ways around the one remaining obstacle –
whether Lay is able to sign a statement or provide his evidence against
Vizard through some other mutually agreed legal mechanism. If they are
unable to do this the Attorney-General should step in and make sure
that this happens.

It simply beggars belief that highly paid and intelligent professionals are
unable to negotiate a solution to the dispute over whether Lay can
give a sworn statement (or even whether he needs to). Peter Faris QC has already
suggested a course of action that would enable Lay to
give evidence, and there may be others.

To continue to claim that this issue is an insurmountable stumbling block to
prosecuting Vizard simply doesn’t hold water. The witness statement is
an
artificial obstacle that will remain in place only as long as ASIC
and the DPP are too feckless to make the first move.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey

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