Have you been charged under the Corporate Criminal Responsibility, section 255?
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Good Faith, Use of Position and Use of Information as Criminal Offence
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Financial Assistance by a Company for Acquiring Shares in the Company or a Holding Company
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Failing to Keep Proper Records
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Failing to Keep Additional Records for Taxation
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Inclusion of False or Misleading Information in Records
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Failing to Provide Access to Records
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Form of Record
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Giving False or Misleading Information to Tax Officers
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Deliberately Omitting Information
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Falsifying or Concealing Identity
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Tax Evasion
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Contaminating Goods with Intent to Cause, or Being Reckless as to Whether it would Cause, Public Alarm or Economic Loss
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Destruction of Evidence
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Corporate Criminal Responsibility, section 255
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False Accounting
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Falsification of Documents
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Suppression of Documents
What does it mean to be charged with corporate criminal responsibility:
Section 255 of the Crimes Act 1958 (“CA”) establishes the principles of corporate criminal liability for offences related to Destruction of Evidence under section 254.
This section holds bodies corporate accountable when associates, directors, officers, or employees engage in conduct constituting the offence. It attributes the knowledge, conduct, and intentions of these individuals to the corporation, making it liable even if the specific individuals are not prosecuted.
Prosecution Must Prove the Following
To convict a corporation for an offence under section 255, the prosecution must demonstrate that:
- Documents required for legal proceedings were destroyed, in accordance with Section 254 of the Crimes Act 1958;
- The actions leading to the destruction of evidence are attributable to the body corporate;
- Knowledge of the destruction is also attributable to the body corporate; and
- The intention of the board of directors, officers, or other associates of the body corporate is also attributed to the body corporate.
Penalties for Corporate Criminal Responsibility:
If found guilty of this offence, the corporation may face penalties including:
- Level 6 Imprisonment (maximum of 5 years) for individuals.
- Fines: For corporations, fines are the more typical penalty, with a maximum fine of 3000 penalty units, which represents a substantial financial penalty under the Sentencing Act 1991.
Defence for the Corporation:
A corporation can defend itself against these charges by proving that it exercised due diligence to prevent the destruction of evidence by its officers or associates. This involves showing that reasonable steps were taken to ensure compliance with the law and to avoid the behaviour in question.
Where Will the Case Be Heard?
Corporate Criminal Responsibility for Offence Against Section 254 cases will be heard in the Magistrates’ Court of Victoria.
Factors Relevant to Corporate Liability:
When assessing whether the corporation is liable, the court may consider:
- Whether an officer of the corporation previously gave authority to commit similar offences.
- Whether the associate responsible for the act believed that an officer of the corporation would have permitted the conduct.
- Whether the corporate culture tolerated such acts, directly or indirectly, contributing to the offence.
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Good Faith, Use of Position and Use of Information as Criminal Offence
-
Financial Assistance by a Company for Acquiring Shares in the Company or a Holding Company
-
Officer of a Company That Has Induced Frauds
-
Failing to Keep Proper Records
-
Failing to Keep Additional Records for Taxation
-
Inclusion of False or Misleading Information in Records
-
Failing to Provide Access to Records
-
Form of Record
-
Giving False or Misleading Information to Tax Officers
-
Deliberately Omitting Information
-
Falsifying or Concealing Identity
-
Tax Evasion
-
Contaminating Goods with Intent to Cause, or Being Reckless as to Whether it would Cause, Public Alarm or Economic Loss
-
Destruction of Evidence
-
Corporate Criminal Responsibility, section 255
-
False Accounting
-
Falsification of Documents
-
Suppression of Documents
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Good Faith, Use of Position and Use of Information as Criminal Offence
-
Financial Assistance by a Company for Acquiring Shares in the Company or a Holding Company
-
Officer of a Company That Has Induced Frauds
-
Failing to Keep Proper Records
-
Failing to Keep Additional Records for Taxation
-
Inclusion of False or Misleading Information in Records
-
Failing to Provide Access to Records
-
Form of Record
-
Giving False or Misleading Information to Tax Officers
-
Deliberately Omitting Information
-
Falsifying or Concealing Identity
-
Tax Evasion
-
Contaminating Goods with Intent to Cause, or Being Reckless as to Whether it would Cause, Public Alarm or Economic Loss
-
Destruction of Evidence
-
Corporate Criminal Responsibility, section 255
-
False Accounting
-
Falsification of Documents
-
Suppression of Documents
Conclusion
Section 255 extends criminal liability to corporations when their employees or representatives engage in the destruction of evidence. The corporate culture, knowledge, and actions of associates are key factors in determining liability, and corporations must demonstrate due diligence to defend against these charges.
The penalties can include significant fines, especially for large corporations, and cases will typically be heard in higher courts due to their serious nature.
It is vital to contact MK Law for confidential expert advice, so they can tailor a defence strategy for you. Do not delay, call 1800 130 120 today.
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