South Australian Current Acts South Australian Current Acts34—Court may exclude property from restraining order
(1) The court to which
an application for a restraining order under section 24(1)(a) or (b) was
made may, when the order is made or at a later time, exclude specified
property from the order if—
(a) an
application is made under section 35 or 36; and
(b) the
court is satisfied that—
(i)
the property is neither proceeds nor an instrument of
unlawful activity; and
(ia)
—
(A) if the suspect has been convicted of
the serious offence to which the restraining order relates—
• the suspect
has not become a prescribed drug offender as a result of the conviction; or
• the suspect
has become a prescribed drug offender as a result of the conviction, but the
property was not owned by or subject to the effective control of the suspect
on the conviction day for that offence or is property that should not be
subject to the restraining order in accordance with section 24(5a); or
(B) if the suspect has not been convicted
of the serious offence to which the restraining order relates—
• the suspect
would not become a prescribed drug offender if convicted of the offence; or
• the suspect
would become a prescribed drug offender if convicted of the offence, but the
property is not owned by or subject to the effective control of the suspect or
is property that should not be subject to the restraining order in accordance
with section 24(5a); and
(ii)
the owner's interest in the property was lawfully
acquired; and
(iii)
it would not be contrary to the public interest for the
property to be excluded from the order.
(a) the
court must not exclude property from a restraining order unless satisfied that
neither a pecuniary penalty order nor a literary proceeds order could be made
against—
(i)
the person who owns the property; or
(ii)
if the property is not owned by the suspect but is
subject to his or her effective control—the suspect; and
(b) the
court must not exclude property from a restraining order unless satisfied that
the property could not be subject to an instrument substitution declaration if
the suspect were convicted of the offence.
(3) Despite any other
provision of this section, if a court has, in determining sentence in respect
of a person's conviction of a serious offence, taken into account any
forfeiture of property under this Act that might result from conviction for
the offence, the property cannot be excluded from a restraining order relating
to the offence on application made by the convicted person.