12.6 Intervening conduct or event
Commonwealth Criminal Code: Guide for practitioners
12.6 Intervening conduct or event
A body corporate cannot rely on section 10.1 (intervening conduct or event) in respect of a physical element of an offence brought about by another person if the other person is an employee, agent or officer of the body corporate.
Overview
When strict or absolute liability is imposed for one of more physical elements of an offence, the prosecution is not required to prove fault with respect to those elements. When liability is absolute, the defence of reasonable mistake of fact is barred. Absolute and strict liability can be imposed only by specific provision: s6.1 Strict liability; s6.2 Absolute liability. However, the general defences are still available. There is, in addition, the defence of intervening conduct or event, which is limited in its application to offences of strict or absolute liability: s10.1 Intervening conduct or event. The defence supplements the plea of involuntary behaviour: 4.2 Voluntariness. A person who commits an offence which imposes strict or absolute liability is excused if those elements of the offence for which strict or absolute liability is imposed came about as a consequence of events or the actions of others which were beyond the control of the defendant. The defence is limited to circumstances in which the defendant could not reasonably be expected to guard against the commission of the offence. The defence is adapted to corporate criminal responsibility by imposing a further limitation: a corporation has no defence of intervening conduct when the unexpected and uncontrollable conduct in question is that of an employee, agent or officer of the corporation.
12.6.A A corporation cannot rely on the Code defence of intervening conduct if the conduct is that of a employee, agent or officer of the corporation
The conduct of employees, agents and officers will be attributed to the corporation if it is within the actual or apparent scope of employment or authority: 12.2 Physical elements. It makes no difference that the conduct may have been disobedient to instructions, unpredictable and unavoidable by the exercise of due diligence. In offences which require proof of fault, allegations of liability for the unpredictable and uncontrollable conduct of mavericks will be defeated, in most cases, by prosecution failure to prove corporate fault. However, when liability is strict or absolute, corporate criminal responsibility can be incurred for the unpredictable criminal activities of corporate agents.
12.6-B The defence of intervening conduct or event will fail if the corporation could have taken reasonable precautions to avoid liability
The defence is not available if the defendant could “reasonably be expected to guard against” the occurrence of elements for which strict or absolute liability is imposed: s10.1(b). In cases where a corporation seeks to rely on the defence, it is likely that this qualification will operate similarly to the “due diligence” limit on the corporate defence of reasonable mistake of fact. Unlike that defence, however, no provision is made to require a corporation to prove reasonable precautions as a prerequisite to reliance on the defence. The prosecution must prove, beyond reasonable doubt, that it would have been unreasonable to expect the corporation to guard against the intervening conduct or event.