It all began when Peter Hayes QC, a formidable cross-examiner, questioned Steve Vizard at the Hilliard committal in March 2003.
On that occasion, Vizard was not represented and foolishly decided to take Hayes on and answer questions about Telstra inside trading. Hayes: “I take it you’ve been advised of the laws of perjury? Vizard: “I am aware of them”.
In July 2005, (in an ASIC civil prosecution) Vizard’s lawyers agreed to a set of facts which apparently contradicted Vizard’s answers to Hayes. In 2006, the Victorian police sent a perjury brief to the State DPP (who is now waiting to see Vizard’s current evidence).
Now Vizard has been subpoenaed to give evidence for Westpac in its action against Hilliard in the Victorian Supreme Court. This time he has turned up with James Judd QC as his counsel. Judd is one of the best QCs in Australia – and is not cheap.
A fascinating tactical struggle has developed.
The case depends upon Vizard’s word against Hilliard’s so the credit of Vizard is critical. Vizard has to give enough evidence to satisfy his agreement to assist Westpac to obtain a judgement against Hilliard.
The more he refuses to answer because of self-incrimination, the less assistance he is giving. If Justice Hansen ultimately decides that he cannot believe Vizard (because of his persistent refusal to answer) then Westpac may sue Vizard direct. Conversely, the more Vizard answers the more he exposes himself to perjury.
This situation is exquisitely difficult for any witness.
Hansen J is against Vizard in a critical matter, ruling yesterday that he had to answer the same questions he had voluntarily responded to in the committal, and the issues he had raised in the Federal Court.
Time will tell whether giving evidence was a good move. Vizard is risking all – if he is convicted of perjury he will surely go to jail.
Most lawyers to whom I have spoken cannot understand why Vizard is giving evidence when he could have made the problem go away by refunding the $2m or so to Westpac.
Vizard is yet again receiving terrible publicity (he has lost in the court of public opinion) and maybe increasing his risk of ultimately going to jail for perjury.
This is high risk gambling at its most exciting.