Gregory Lay is scheduled to give evidence today in the gripping saga, Westpac v Hilliard.

Crikey readers will remember that ASIC and the Commonwealth DPP were unable to criminally prosecute Vizard because (they said) Lay would not sign a statement thus depriving them of evidence.

Lay’s lawyers later told Crikey that he was in fact a willing witness.

If Lay actually answers all questions (that is, does not claim self-incrimination), it is highly likely that he will provide the missing evidence. A statement is good, but sworn evidence is better.

The Westpac case depends upon Vizard’s word against Hilliard’s.

Peter Hayes QC, counsel for Hilliard, is therefore seeking to destroy Vizard’s credibility in court. Hayes’s cross-examination of Lay will be used by him to attack Vizard. There are rules against a cross-examiner attacking the credit of another witness, but there are also ways around the rules which I am sure Hayes will use.

Assuming that Lay gives evidence of Vizard’s insider trading at Telstra, ASIC and the Commonwealth DPP will have to reconsider their controversial decision not to charge Vizard with criminal offences. Until now, they have hidden behind the “no statement, no prosecution” excuse.

This is really the end of the road for everybody. If sufficient evidence comes out of this hearing, then Vizard will (or should be) charged. If not, he is in the clear with relation to the Telstra matters (leaving aside the State DPP perjury investigation).

Incidentally, it suits Hayes (tactically) for Vizard to refuse to answer as many questions as possible because, as Hayes has stated, this will found an application to stay the Westpac proceedings on the grounds of unfairness to Hilliard.

If the stay application succeeds, it will open up the prospect of Westpac suing Vizard for the $2 million or so refunded by them. When he was paid by Westpac, Vizard agreed to assist in recovery against Hilliard. Westpac could argue that Vizard’s many refusals to answer is in breach of that agreement.

And surely Westpac would prefer to sue the multi-millionaire Vizard rather than the bankrupt Hilliard.

Peter Fray

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