12.2 Physical elements

Commonwealth Criminal Code: Guide for practitioners

12.2 Physical elements

If a physical element of an offence is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her  employment, or within his or her actual or apparent authority, the physical element must also be attributed to the body corporate.

Overview

In the large majority of offences, it is impossible for a corporation to engage in conduct363 unless it does so via the medium of a human agent. To return  to an earlier example, though a corporation might commit the offence of impersonating a Commonwealth officer, it could not achieve that feat without the co-operation of one of its own employees, agents or officers. Section 12.2 is not exhaustive; it is limited to the attribution of physical elements of offences committed by a corporate agent. In some offences, the conduct elements of an offence can be attributed to a corporation directly as acts or omissions of the corporation itself. Instances of direct attribution are not uncommon in existing law. So, for example, a corporation causes environmental pollution if it permits the escape of pollutant from its plant.364 In these instances is not necessary to discover some particular individual or set of individuals whose actions or inaction might have resulted in pollution before attributing the conduct of causing pollution to the corporation. Liability may indeed arise from corporate omission to appoint some individual whose responsibility it was to ensure that the pollutant did not escape. Nor is direct attribution of conduct elements of an offence to a corporation limited to omissions. In some offences, the corporation is the active agent, as in offences of “sale” or “trading” in prohibited goods.

Section 12.2 attributes “physical elements” of an offence “committed by” a corporate agent to the corporation. The reference to physical elements “committed by” the agent implies that only conduct elements are attributed to the corporation under this provision. Circumstantial elements of the offence are taken to be circumstances in which the corporation engaged in the attributed conduct. Results are taken to be the results of the conduct attributed to the corporation.

In many instances, the activities of corporate agents will involve the commission of offences both by the corporation and the agent. However,  that is not invariably the case. Agents may be immune from criminal responsibility though their actions result in corporate liability. When Chapter 2 speaks of “physical elements of an offence committed by an employee”, it refers to the physical elements of the offence for which it is sought to hold the corporation responsible. So, for example, it is apparent from s12.4 Negligence, that the criminal conduct of a corporation may be an assemblage of particular acts and omissions by diverse agents of the corporation none of whom, individually, engage in the forbidden conduct.365

The Code adds little to existing, common law criteria for determining the actual or apparent scope of employment or actual or apparent authority.   But 12.3 Fault elements other than negligence, which is primarily concerned with the attribution of fault elements to corporations, suggests that corporate agents include:

  • persons who are expressly, tacitly or impliedly given permission  or authorisation to commit an offence by the board of directors: s12.3(2)(a);
  • persons who are expressly, tacitly or impliedly given permission  or authorisation to commit an offence by a “high managerial agent’ of the corporation: s12.3(2)(b).

  1. Ch2, s4.1(2) “engage in conduct” means “to do an act or…to omit to perform an act”.

  2. NSW Sugar Milling Co-Operative Ltd v Environmental Protection Authority (1992) 59 A Crim R 6; Environmental Protection Authority v Shell Co [2000] NSWCEL 132 30 June 2000. See, in addition, instances of corporate liability for what P Gillies, Criminal Law (4ed 1977) 146, calls “situational offences.” These correspond to Code liability for conduct consisting of a “state of affairs”: s4.1 Physical elements.

  3. Compare B Fisse, Howard’s Criminal Law (1990), 592-593: “For instance, where unlawful homi- cide is committed in the context of a large manufacturing company’s activities, many individuals may have participated in the background events leading to V’s death but the contribution of any one person may have been too minor to warrant prosecution.”