South Australian Current Acts

CRIMINAL ASSETS CONFISCATION ACT 2005 - SECT 59

59—Making exclusion orders after forfeiture

        (1)         A court that made a forfeiture order must make an order excluding property from forfeiture (an "exclusion order") if—

            (a)         a person applies for the exclusion order in accordance with section 60; and

            (b)         the forfeiture order specifies the applicant's property; and

            (c)         if the forfeiture order was one to which section 47(1)(a) or (3)(a) applies, the court is satisfied that—

                  (i)         the applicant was not involved in the commission of a serious offence to which the forfeiture order relates; and

                  (ii)         the property to be specified in the exclusion order is neither proceeds nor an instrument of the offence; and

            (d)         if the forfeiture order was one to which section 47(1)(b) or (c) or (3)(b) or (c) applies, the court is satisfied that the property to be specified in the exclusion order is neither proceeds nor an instrument of unlawful activity.

        (2)         An exclusion order under subsection (1) must—

            (a)         specify the nature, extent and value (at the time of making the order) of the property concerned; and

            (b)         direct that the property be excluded from the operation of the forfeiture order; and

            (c)         if the property has vested (in law or equity) in the Crown under this Division and is yet to be disposed of—direct the Crown to transfer the property to the applicant; and

            (d)         if the property has vested (in law or equity) in the Crown under this Division and has been disposed of—direct the Crown to pay the applicant an amount equal to the value specified under paragraph (a).

        (3)         An applicant for an exclusion order under subsection (1) must give written notice to the DPP of the application and the grounds on which the order is sought.

        (4)         The DPP—

            (a)         may appear and adduce evidence at the hearing of the application; and

            (b)         must give the applicant notice of any grounds on which it proposes to contest the application.

        (5)         However, the DPP need not give notice under subsection (4)(b) until it has had a reasonable opportunity to examine the applicant under Part 6 Division 1.

        (6)         An application for an exclusion order under subsection (1) must not be heard until the DPP has had a reasonable opportunity to examine the applicant under Part 6 Division 1.