Corporate criminal responsibility for offence against section 254

– section 255 of the Crimes Act 1958

corporate criminal responsibility 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.

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 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?

Maximum penalty and Court that deals with this charge

Corporate criminal responsibility for offence against section 254 is an indictable offence which means that the case must be heard in the County Court. The maximum penalty is a level 6 fine or 5 years imprisonment.
 

“Did an associate of the body corporate destroy a document required in a legal proceeding?”

 

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.

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.
County Court

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.

 


[1] Crimes Act 1958 – Section 255

(1) For the purposes of a proceeding against a body corporate for an offence against section 254—
(a) relevant conduct engaged in by an associate of the body corporate must also be attributed to the body corporate; and
(b) knowledge of an associate of the body corporate must also be attributed to the body corporate; and
(c) intention—
(i) of the body corporate’s board of directors; or
(ii) of an officer of the body corporate; or
(iii) 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.
(2) If an officer of a body corporate contravenes section 254, the body corporate must be taken to have also contravened that section and may be proceeded against and found guilty of an offence against that section whether or not the officer has been proceeded against or found guilty of that offence.
(3) In a proceeding against a body corporate for an offence against section 254, brought in reliance on subsection (2), it is a defence to the charge for the body corporate to prove that it exercised due diligence to prevent the contravention of that section by the officer.
(4) The means by which authorisation or permission as required by section 254(1)(b)(ii) may be established include—
(a) proving that an officer of the body corporate gave that authorisation or permission; or
(b) proving that the body corporate’s board of directors gave that authorisation or permission; or
(c) proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to the relevant conduct being carried out.
(5) Subsection (4)(a) does not apply if the body corporate proves that it exercised due diligence to prevent the authorisation or permission being given.
(6) Factors relevant to the application of subsection (1)(c)(iii) or (4)(c) include—
(a) whether authority to commit an offence against section 254 or an offence of a similar character had been given by an officer of the body corporate; and
(b) whether the associate of the body corporate who carried out the relevant conduct or formed the relevant intention believed on reasonable grounds, or entertained a reasonable expectation, that an officer of the body corporate would have authorised or permitted the relevant conduct being carried out with the relevant intention.
(7) Subject to subsection (8), it is not necessary that each element of an offence against section 254 that is attributed to a body corporate by force of subsection (1) be supplied by the same associate of the body corporate.
(8) It is necessary that the elements referred to in section 254(1)(b)(i) and (c) be supplied by the same associate of the body corporate.