PERSONAL CRIMINAL LIABILITY
TOPIC 3: PERSONAL AND CORPORATE CRIMINAL LIABILITY
PERSONAL CRIMINAL LIABILITY -
Criminal proceedings are brought against an individual, which may result in a criminal penalty being imposed on that individual. - Two methods by which an individual can be held criminally liable: 1. Liability for one’s own misconduct - (No need to show misconduct by the corporation). 2. Derivative liability/personal liability for corporate fault. - Misconduct of the corporation must be proven, and individuals inside a company can be held liable as a result. LIABILITY FOR ONE’S OWN MISCONDUCT - Prosecution must prove each of the elements/ingredients of the offence with which the individual is charged - Standard of proof required is ‘beyond reasonable doubt’ - Offence s may be under legislation (Commonwealth or State) or under common law. Examples - Breach of director’s duties: s 184 Corporations Act 2001 (Cth) - Director’s criminal liability for insolvent trading: s 588G(3) of the Corporations Act 2001 (Cth) - Insider trading s 1043A Corporations Act 2001(Cth) - Theft: s 72 Crimes Act 1958 (Cth) o A person commits an offence if they ‘dishonestly appropriate property belonging to another with the intention of permanently depriving the other of it. o Max 10 years imprisonment: s 74(1) Crimes Act 1958 o Actus reus and mens rea o 5 elements: o Examples: Obtaining property by deception (s81 Crimes Act 1958 (Vic)), Obtaining financial advantage by deception (s82). DERIVATIVE LIABLITY -
When individuals inside the corporations are held liable for the misconduct of the corporation. 2 main steps in proving derivative liability: 1. Demonstrate a breach of the criminal law by the corporation 2. Prove that the individual committed an offence because they: - Occupied a certain position within the company - Contributed to the corporate misconduct in some way Examples
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Individuals involved in a company’s contravention of the continuous disclosure provisions: s 674, 79 Corporations Act
PERSONAL CRIMINAL LIABILITY -
Criminal proceedings are brought against an individual, which may result in a criminal penalty being imposed on that individual. - Two methods by which an individual can be held criminally liable: 1. Liability for one’s own misconduct - (No need to show misconduct by the corporation). 2. Derivative liability/personal liability for corporate fault. - Misconduct of the corporation must be proven, and individuals inside a company can be held liable as a result. LIABILITY FOR ONE’S OWN MISCONDUCT - Prosecution must prove each of the elements/ingredients of the offence with which the individual is charged - Standard of proof required is ‘beyond reasonable doubt’ - Offence s may be under legislation (Commonwealth or State) or under common law. Examples - Breach of director’s duties: s 184 Corporations Act 2001 (Cth) - Director’s criminal liability for insolvent trading: s 588G(3) of the Corporations Act 2001 (Cth) - Insider trading s 1043A Corporations Act 2001(Cth) - Theft: s 72 Crimes Act 1958 (Cth) o A person commits an offence if they ‘dishonestly appropriate property belonging to another with the intention of permanently depriving the other of it. o Max 10 years imprisonment: s 74(1) Crimes Act 1958 o Actus reus and mens rea o 5 elements: o Examples: Obtaining property by deception (s81 Crimes Act 1958 (Vic)), Obtaining financial advantage by deception (s82). DERIVATIVE LIABLITY -
When individuals inside the corporations are held liable for the misconduct of the corporation. 2 main steps in proving derivative liability: 1. Demonstrate a breach of the criminal law by the corporation 2. Prove that the individual committed an offence because they: - Occupied a certain position within the company - Contributed to the corporate misconduct in some way Examples
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Individuals involved in a company’s contravention of the continuous disclosure provisions: s 674, 79 Corporations Act
