It is often assumed that an officer (or Director) of a company cannot be found to be guilty of an offence that the company committed, however in Western Australia, they not only can be, but the defences are limited.
Section 180 of the Criminal Procedure Act allows Officers/ Directors of a company to be charged with a criminal offence that the company is alleged to have committed.
If the company is also charged with the same offence and is found guilty of the offence (or enters a plea of guilty) then due to section 180(3) the Director who has also been charged is taken to have also committed the offence unless the defences outlined below can be proven.
If the company is not charged with the offence (but is proven to have committed the offence) then any Directors charged are taken to have committed the offence unless the defences outlined below can be proven.
The defences to a charge to an officer/director of a company which has been found guilty (or to have committed the offence) are contained in section 180(6) which allows for a defence where it can be proven that:
“(a) that the offence was committed without the officer’s consent or connivance; and
(b) that the officer took all measures to prevent the commission of the offence that he or she could reasonably be expected to have taken having regard to the officer’s functions and to all the circumstances.”
Section 180(6) of the Criminal Procedure Act 2004 (WA)
It is important to note that when a company is found to be guilty (or if found to have committed the offence even if the company has not been charged) and an Officer is charged under section 180 of the Criminal Procedure Act 2004 (CPA) the onus of proof is on the officer.
This means that the officer will have to prove that they have a defence under section 180(6) of the CPA, it will not be up to the prosecution to prove that the officer does not have the defence.
If you would like more information about this Update please contact the author on 08 9321 3755.
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.