ASIC
and the Commonwealth DPP have discovered a loophole in Victorian
criminal law which they are ruthlessly exploiting. Usually it is the
crooks and their lawyers who exploit loopholes. But this time it is the
authorities who are citing the loophole as the reason for failing to
prosecute Steve Vizard.

A recent survey of colourful Victorian corporate identities reveals
strong support for the ASIC/DPP use of the loophole. One man known as
Innie the Insider says that he and his mates are already planning a
number of large company frauds in Victoria. He has reworked the State’s
motto, “Victoria The Place To Be”, as “Victoria The Place To Be
Criminal”.

What,
then, is the loophole? It is this. The CDPP will not approve the laying
of criminal charges by ASIC unless ASIC delivers to them a “full brief
of evidence”. All witness statements in the brief must be signed –
unsigned statements are not acceptable (apparently because, under
Victorian law, they are not admissible in the committal proceedings).
The DPP will authorise charges if there is a reasonable prospect of
conviction. If the statement of a vital witness is not included
(because that witness refused to sign), then the DPP will not permit
the prosecution.

Other Victorian legislation gives authorities
power to deal with reluctant witnesses by taking them to court and
examining them. The evidence obtained can then be used at the committal
in lieu of a signed statement. But the “reluctant witness procedure”
can only used once charges have been laid.

So there we have it.
The DPP will not authorise charges without a vital witness statement.
If the reluctant witness refuses to sign a statement, the relevant
compulsory procedure cannot be used to get the equivalent of a signed
statement without the accused first being charged. But the DPP will not
authorise charges… and so it goes on, a perpetual loop where the buck
passes from ASIC to the DPP and back again forever.

So the
corporate crook must do three things. One, commit the crime in
Victoria. Two, make sure that vital witnesses do not sign statements.
Three, keep an eye on the Vizard case.

Peter Fray

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