Corporate criminal responsibility for offence against section 254
When evaluating this offence, any relevant conduct engaged in or any knowledge possessed by an associate of a body corporate will be attributed to the body corporate. Similarly, an intention by the board of directors, officers, and associate where they were part of a corporation which directed, encouraged, tolerated or led to the formation of that intention, will be attributed to the body corporate.
Police InterviewAn interview is part of the Police investigation into the allegations against you. It is important to seek legal advice before attending an interview so you can understand your rights and options. You should not speak with investigators without getting legal advice first. You may something, which can seem inconsequential, which may compromise your defence later on.
We can attend the interview with you if you want someone present on your side. This can also give your lawyer an opportunity to speak with the investigator to get some information about the allegations against you
Pleading Not GuiltyIt is a defence against this charge to prove that the body corporate exercised due diligence to prevent the contravention of section 254. If you decide to fight this charge, we can carefully examine the evidence and advise whether this defence is available. There may also be other ways to fight your case. We can conduct our own investigation for information that supports your defence.
Pleading GuiltyThere is substantial preparation that we undertake for a plea hearing. There are often negotiations with the prosecution as to the alleged summary, aiming to resolve the case on the most favourable basis. We gather relevant material and work with you to understand the background to what has occurred. We have several in-house counsel who are highly experienced at presenting this material in Court to achieve the best sentence possible.
Corporate criminal responsibility for offence against section 254 is an indictable offence which means that the case must be heard in the County Court.
Examples of Corporate Criminal Responsibility for Offence Against Section 254
- The board of directors instructed an associate of the body corporate to destroy documents to be used in court proceedings and the associate carried out these instructions.
- An associate destroyed documents to be used in court proceedings and a corporate culture existed in the body corporate that directed, encouraged or tolerated the destruction of documents to be used in court proceedings
What is the legal definition of Corporate Criminal Responsibility for Offence Against Section 254?
When documents to be used in legal proceedings are destroyed and the conduct is attributable to the body corporate. The body corporate had knowledge of the conduct; and the board of directors or an officer encouraged or tolerated the conduct, and intended it to occur.
“Did an associate of the body corporate destroy a document required in a legal proceeding?”
The section that covers this offence is section 255 of the Crimes Act 1958.1
Elements of the offence
The following are the elements of Corporate Criminal Responsibility for Offence Against Section 254:
- An officer of a body corporate contravenes section 254 of the Crimes Act 1958 (destruction of evidence).
- The body corporate did not exercise due diligence to prevent the contravention of said section by the officer.
For the purposes of a proceeding against a body corporate for an offence against section 254—
- relevant conduct engaged in by an associate of the body corporate must also be attributed to the body corporate; and
- knowledge of an associate of the body corporate must also be attributed to the body corporate; and
- of the body corporate’s board of directors; or
- of an officer of the body corporate; or
- of any other associate of the body corporate if a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to the formation of that intention—
must also be attributed to the body corporate.
This is an indictable offence but it may be heard summarily.
What are some of the possible defences to a Corporate Criminal Responsibility for Offence Against Section 254 charge?
- No documents were destroyed
- The body corporate exercised due diligence to prevent the destruction of the documents
There are other possible defences, depending on the circumstances surrounding the alleged offending. Each matter is unique and requires an individual approach and strategy.
Questions in cases like this
- What, if any documents were destroyed?
- Can the conduct be attributed to the body corporate?
- Did the body corporate know about the conduct?
- Did the body corporate intend for the conduct to occur?
The maximum penalty of Corporate Criminal Responsibility for Offence Against Section 254 (s255 of the Crimes Act 1958) is a level 6 fine or 5 years imprisonment.
What can you be sentenced to for this charge?
Your sentence will depend on the importance of the documents destroyed. You could face either a fine or imprisonment.