Criminal Code Act. Australia

Чтение книги онлайн.

СКАЧАТЬ proving that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or

      (c) proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision; or

      (d) proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.

      (3) Paragraph (2)(b) does not apply if the body corporate proves that it exercised due diligence to prevent the conduct, or the authorisation or permission.

      (4) Factors relevant to the application of paragraph (2)(c) or (d) include:

      (a) whether authority to commit an offence of the same or a similar character had been given by a high managerial agent of the body corporate; and

      (b) whether the employee, agent or officer of the body corporate who committed the offence believed on reasonable grounds, or entertained a reasonable expectation, that a high managerial agent of the body corporate would have authorised or permitted the commission of the offence.

      (5) If recklessness is not a fault element in relation to a physical element of an offence, subsection (2) does not enable the fault element to be proved by proving that the board of directors, or a high managerial agent, of the body corporate recklessly engaged in the conduct or recklessly authorised or permitted the commission of the offence.

      (6) In this section:

      board of directors means the body (by whatever name called) exercising the executive authority of the body corporate.

      corporate culture means an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities takes place.

      high managerial agent means an employee, agent or officer of the body corporate with duties of such responsibility that his or her conduct may fairly be assumed to represent the body corporate’s policy.

      12.4 Negligence

      (1) The test of negligence for a body corporate is that set out in section 5.5.

      (2) If:

      (a) negligence is a fault element in relation to a physical element of an offence; and

      (b) no individual employee, agent or officer of the body corporate has that fault element;

      that fault element may exist on the part of the body corporate if the body corporate’s conduct is negligent when viewed as a whole (that is, by aggregating the conduct of any number of its employees, agents or officers).

      (3) Negligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:

      (a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or

      (b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.

      12.5 Mistake of fact (strict liability)

      (1) A body corporate can only rely on section 9.2 (mistake of fact (strict liability)) in respect of conduct that would, apart from this section, constitute an offence on its part if:

      (a) the employee, agent or officer of the body corporate who carried out the conduct was under a mistaken but reasonable belief about facts that, had they existed, would have meant that the conduct would not have constituted an offence; and

      (b) the body corporate proves that it exercised due diligence to prevent the conduct.

      (2) A failure to exercise due diligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:

      (a) inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or

      (b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.

      12.6 Intervening conduct or event

      A body corporate cannot rely on section 10.1 (intervening conduct or event) in respect of a physical element of an offence brought about by another person if the other person is an employee, agent or officer of the body corporate.

      Part 2.6

      Proof of criminal responsibility

      Division 13

      13.1 Legal burden of proof — prosecution

      (1) The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.

      Note: See section 3.2 on what elements are relevant to a person’s guilt.

      (2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant.

      (3) In this Code:

      legal burden, in relation to a matter, means the burden of proving the existence of the matter.

      13.2 Standard of proof — prosecution

      (1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.

      (2) Subsection (1) does not apply if the law creating the offence specifies a different standard of proof.

      13.3 Evidential burden of proof — defence

      (1) Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only.

      (2) A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3) bears an evidential burden in relation to that matter.

      (3) A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.

      (4) The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.

      (5) The question whether an evidential burden has been discharged is one of law.

      (6) In this Code:

      evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

СКАЧАТЬ