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Crimes (Document Destruction) Act 2006

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Crimes (Document Destruction) Act 2006

    Crimes (Document Destruction) Act 2006

    Act No. 6/2006

    TABLE OF PROVISIONS Section Page

    1. Purpose 1 2. Commencement 2 3. New Division 5 inserted in Part I of Crimes Act 1958 2

    Division 5Destruction of Evidence 2

    253. Definitions 2

    254. Destruction of evidence 3

    255. Corporate criminal responsibility for offence against

    section 254 4

    ???????????????

    ENDNOTES 7

     i

    Victoria

    No. 6 of 2006

    Crimes (Document Destruction) Act

    2006

    [Assented to 4 April 2006]

    The Parliament of Victoria enacts as follows:

     1. Purpose

    The purpose of this Act is to amend the Crimes

    Act 1958 to create a new offence in relation to the

    destruction of a document or other thing that is, or

    is reasonably likely to be, required as evidence in

    a legal proceeding.

     1

    Crimes (Document Destruction) Act 2006

    s. 2 Act No. 6/2006

     2. Commencement

     (1) Subject to sub-section (2), this Act comes into

    operation on a day to be proclaimed.

     (2) If this Act does not come into operation before

    1 September 2006, it comes into operation on that

    day.

    See: 3. New Division 5 inserted in Part I of Crimes Act 1958 Act No. 6231. After Division 4 of Part I of the Crimes Act 1958 Reprint No. 18 as at insert 1 July 2005 and 'Division 5Destruction of Evidence amending Act Nos 16/2004, 253. Definitions 18/2005, 56/2005 and In this Division 66/2005. LawToday: "associate", in relation to a body corporate, www.dms. dpc.vic. means gov.au

     (a) an employee or agent of the body

    corporate to the extent that he or

    she is acting within the actual or

    apparent scope of his or her

    employment or within his or her

    actual or apparent authority; or

     (b) an officer of the body corporate;

    "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

    conduct is carried out or the relevant

    intention formed;

     2

    Crimes (Document Destruction) Act 2006

    s. 3 Act No. 6/2006

    "legal proceeding" has the same meaning

    as in the Evidence Act 1958;

    "officer", in relation to a body corporate,

    means an officer (as defined by

    section 9 of the Corporations Act) of

    the body corporate to the extent that he

    or she is acting within the actual or

    apparent scope of his or her

    employment or within his or her actual

    or apparent authority;

    "relevant conduct" means the destruction,

    concealment, or rendering illegible,

    undecipherable or incapable of

    identification, of a document or other

    thing of any kind;

    "relevant intention" means the intention of

    preventing a document or other thing of

    any kind from being used in evidence

    in a legal proceeding.

     254. Destruction of evidence

     (1) A person who

     (a) knows that a document or other thing of

    any kind is, or is reasonably likely to

    be, required in evidence in a legal

    proceeding; and

     (b) either

     (i) destroys or conceals it or renders

    it illegible, undecipherable or

    incapable of identification; or

     (ii) expressly, tacitly or impliedly

    authorises or permits another

    person to destroy or conceal it or

    render it illegible, undecipherable

    or incapable of identification and

    that other person does so; and

     3

    Crimes (Document Destruction) Act 2006

    s. 3 Act No. 6/2006

     (c) acts as described in paragraph (b) with

    the intention of preventing it from

    being used in evidence in a legal

    proceeding

    is guilty of an indictable offence and liable to

    level 6 imprisonment (5 years maximum) or

    a level 6 fine or both.

     Note 1: "Document" is defined in section 38 of the

    Interpretation of Legislation Act 1984.

     Note 2: The maximum fine that may be imposed on a

    body corporate found guilty of an offence

    against this section is 3000 penalty units:

    see Sentencing Act 1991 s. 113D.

     (2) This section applies with respect to a legal

    proceeding, whether the proceeding is one

    that is in progress or is to be, or may be,

    commenced in the future.

     255. Corporate criminal responsibility for

    offence against section 254

     (1) For the purposes of a proceeding against a

    body corporate for an offence against

    section 254

     (a) relevant conduct engaged in by an

    associate of the body corporate must

    also be attributed to the body corporate;

    and

     (b) knowledge of an associate of the body

    corporate must also be attributed to the

    body corporate; and

     (c) intention

     (i) of the body corporate's board of

    directors; or

     (ii) of an officer of the body

    corporate; or

     4

    Crimes (Document Destruction) Act 2006

    s. 3 Act No. 6/2006

     (iii) of any other associate of the body

    corporate if a corporate culture

    existed within the body corporate

    that directed, encouraged,

    tolerated or led to the formation of

    that intention

    must also be attributed to the body

    corporate.

     (2) If an officer of a body corporate contravenes

    section 254, the body corporate must be

    taken to have also contravened that section

    and may be proceeded against and found

    guilty of an offence against that section

    whether or not the officer has been

    proceeded against or found guilty of that

    offence.

     (3) In a proceeding against a body corporate for

    an offence against section 254, brought in

    reliance on sub-section (2), it is a defence to

    the charge for the body corporate to prove

    that it exercised due diligence to prevent the

    contravention of that section by the officer.

     (4) The means by which authorisation or

    permission as required by section

    254(1)(b)(ii) may be established include

     (a) proving that an officer of the body

    corporate gave that authorisation or

    permission; or

     (b) proving that the body corporate's board

    of directors gave that authorisation or

    permission; or

     (c) proving that a corporate culture existed

    within the body corporate that directed,

    encouraged, tolerated or led to the

    relevant conduct being carried out.

     5

    Crimes (Document Destruction) Act 2006

    s. 3 Act No. 6/2006

     (5) Sub-section (4)(a) does not apply if the body

    corporate proves that it exercised due

    diligence to prevent the authorisation or

    permission being given.

     (6) Factors relevant to the application of sub-

    section (1)(c)(iii) or (4)(c) include

     (a) whether authority to commit an offence

    against section 254 or an offence of a

    similar character had been given by an

    officer of the body corporate; and

     (b) whether the associate of the body

    corporate who carried out the relevant

    conduct or formed the relevant

    intention believed on reasonable

    grounds, or entertained a reasonable

    expectation, that an officer of the body

    corporate would have authorised or

    permitted the relevant conduct being

    carried out with the relevant intention.

     (7) Subject to sub-section (8), it is not necessary

    that each element of an offence against

    section 254 that is attributed to a body

    corporate by force of sub-section (1) be

    supplied by the same associate of the body

    corporate.

     (8) It is necessary that the elements referred to in

    section 254(1)(b)(i) and (c) be supplied by

    the same associate of the body corporate.'.

    ???????????????

     6

    Crimes (Document Destruction) Act 2006

    Endnotes Act No. 6/2006

    ENDNOTES

     Minister's second reading speech

     Legislative Assembly: 16 November 2005

     Legislative Council: 2 March 2006

     The long title for the Bill for this Act was "to amend the Crimes Act

    1958 with respect to the destruction of documents or other things that are,

    or are reasonably likely to be, required as evidence in legal proceedings

    and for other purposes."

     7

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