South Australian Numbered Acts South Australian Numbered Acts (1) A court must, on
application by the DPP, make an order (a
"forfeiture order") that property specified in the order is forfeited to the
Crown if—
(a) a
person has been convicted of one or more serious offences and the court is
satisfied that the property to be specified in the order is proceeds of one or
more of those offences; or
(b) the
property to be specified in the order is covered by a restraining order made
under section 24(1)(b) that has been in force for at least 6 months and
the court is satisfied that the property is proceeds of one or more serious
offences committed by the person whose conduct (or suspected conduct) formed
the basis of the restraining order; or
(c) the
property to be specified in the order is covered by a restraining order made
under section 24(1)(c) that has been in force for at least 6 months and
the court is satisfied that—
(i)
the application for the order alleges that the property
is proceeds of one or more serious offences; and
(ii)
no application has been made under Part 3 Division 3 for
the property to be excluded from the restraining order, or that any such
application has been withdrawn; and
(iii)
the DPP has taken reasonable steps to identify and notify
persons with an interest in the property.
(2) For the purposes
of making an order under subsection (1)(b) or (c)—
(a) a
finding of the court under either of those paragraphs need not be based on a
finding as to the commission of a particular serious offence; and
(b) the
fact that a person has been acquitted of a serious offence with which the
person has been charged, or the raising of a doubt as to whether a person
engaged in conduct constituting a serious offence, does not affect the
court’s power to make the order under either of those paragraphs in
relation to the offence; and
(c) in
relation to an order under subsection (1)(c)—a finding of the court
under that paragraph need not be based on a finding that a particular person
committed any offence.
(3) A court may, on
application by the DPP, make an order (a
"forfeiture order") that property specified in the order is forfeited to the
Crown, if—
(a) a
person has been convicted of one or more serious offences the court is
satisfied that the property is an instrument of one or more of the offences or
is subject to an instrument substitution declaration under section 48; or
(b) the
property to be specified in the order is covered by a restraining order made
under section 24(1)(b) that has been in force for at least 6 months and
the court is satisfied that the property is an instrument of one or more
serious offences committed by the person whose conduct (or suspected conduct)
formed the basis of the restraining order; or
(c) the
property to be specified in the order is covered by a restraining order made
under section 24(1)(c) that has been in force for at least 6 months and
the court is satisfied that—
(i)
the application for the order alleges that the property
is an instrument of one or more serious offences; and
(ii)
no application has been made under Part 3 Division 3 for
the property to be excluded from the restraining order, or that any such
application has been withdrawn; and
(iii)
the DPP has taken reasonable steps to identify and notify
persons with an interest in the property.
(4) In considering
whether it is appropriate to make a forfeiture order under subsection (3)
in respect of particular property, the court may have regard to—
(a) any
hardship that may reasonably be expected to be caused to any person (other
than the suspect) by the operation of the order; and
(b) the
use that is ordinarily made, or was intended to be made, of the property; and
(c) the
gravity of the offence or offences concerned; and
(d) any
other matter the court thinks fit.
(5) If evidence is
given, at the hearing of an application for a forfeiture order under this
section that relates to a person's conviction for a serious offence, that
property was in the possession of a person at the time at which, or
immediately after, the person committed a serious offence to which the
application relates—
(a) if
no evidence is given that tends to show that the property was not used in, or
in connection with, the commission of the offence—the court must presume
that the property was used in, or in connection with, the commission of the
offence; or
(b) in
any other case—the court must not make a forfeiture order against the
property unless it is satisfied that the property was used or intended to be
used in, or in connection with, the commission of the offence.
(6) An application for
a forfeiture order under this section that relates to a person's conviction
for a serious offence must be made before the end of the period of 6 months
after the conviction day.
(7) A court must not,
if a person is taken under section 5(1)(d) to have been convicted of a
serious offence, make a forfeiture order relating to the person’s
conviction unless—
(a) the
court is satisfied, on the balance of probabilities, that the person has
absconded; and
(b)
either—
(i)
the person has been committed for trial for the offence;
or
(ii)
the court is satisfied, having regard to all the evidence
before the court, that a reasonable jury, properly instructed, or the
Magistrates Court (as the case requires) could lawfully find the person guilty
of the offence.