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;
(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
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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