53CCriminal liability of officers of bodies corporate—failure to exercise due diligence (evidential burden of proof)

53C Criminal liability of officers of bodies corporate—failure to exercise due diligence (evidential burden of proof) (1) Subject to subsection (3), if a body corporate commits an offence against a provision specified in subsection (2) or a body corporate is under section 106A(3) liable for such an offence, an officer of the body corporate also commits an offence against the provision. (a) section 106(1); (b) section 108(4); (c) section 115A(2); (d) section 119(1) and (2); (e) section 120(1); (f) section 148ZJ(1). (3) An officer of a body corporate does not commit an offence against a provision specified in subsection (2) if— (a) the officer presents or points to evidence that suggests a reasonable possibility that the officer exercised due diligence to prevent the commission of the offence by the body corporate; and (b) the contrary is not proved (beyond reasonable doubt) by the prosecution. (4) In determining whether an officer of a body corporate exercised due diligence, a court may have regard to— (a) what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and (b) whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and (c) what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and (d) any other relevant matter. (5) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear. (6) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision. (7) In this section— ***body corporate*** has the same meaning as in section 53A; ***officer*** in relation to a body corporate, has the same meaning as in section 53A. (8) This section does not apply at any time when a nominee of the body corporate is in place under section 54. (9) Nothing in subsection (8) affects or limits the application of Part 6.