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Corporate criminal responsibility for offence against section 254

When a corporation or an associate of a corporation destroys documents to be used in legal proceedings. Either the board of directors, an officer of the body corporate, or an associate encouraged, directed or tolerated the conduct.

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?”

 

Legislation

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—

  1. relevant conduct engaged in by an associate of the body corporate must also be attributed to the body corporate; and
  2. knowledge of an associate of the body corporate must also be attributed to the body corporate; and
  3. intention—
    1. of the body corporate’s board of directors; or
    2. of an officer of the body corporate; or
    3. 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.