The Criminal Asset Confiscation Legislation has often been referred to as draconian in its intention and affect.
In short, the legislation provides that when someone has been charged with a serious criminal offence the court on application of the Director of Public Prosecutions, must grant a restraining order, restraining them from dealing with their assets. Most commonly, this is the in form of property and vehicles, although is limitless in its scope.
Also under the legislation the Director has the option available to it in applying for a pecuniary penalty order. This requires a court to make an order requiring a specified person to pay an amount determined by the court if they have been committed of a serious offence and derive benefits from that offence or an instrument of the offence is owned by the person or is under his or her effective control.
In recent times, the decision of the Director of Public Prosecutions (SA) v Tape dealt with the mechanics of how these various applications work together, as well as a defendant’s ability to seek to have property excluded from the restraining order under Section 34 of the Criminal Asset Confiscation Act prior to the conclusion of criminal proceedings. In that decision, the defendant brought an application to exclude property that was the subject of a restraining order. The DPP conceded that the property was neither an instrument of the offence nor obtained through proceeds of any criminal offending.
The ultimate contention of the DPP, in simple terms, was that the restraining order should not be removed as the DPP had also made an application for a pecuniary penalty order which, if granted, can be satisfied by selling the said property. It was determined by His Honour Judge Tilmouth on that occasion that such construction of the Legislation is incorrect, stating that “the consequence that property which is neither an instrument of unlawful activity, nor unlawfully acquired, could be subject to a pecuniary penalty order is an unintended one” (of Parliament).
That gives an advantage to owners of restrained property, in certain circumstances, the ability to make applications to exclude the property prior to criminal proceedings being dealt with.
Of course, this raises tactical considerations in that to be successful in having an application to exclude, the Director can request the filing of affidavit material and request that a defendant be cross-examined on that material. This could be a significant disadvantage prior to the hearing of a criminal trial.
Additionally, it does not prevent the Director from making a pecuniary penalty order application in any event, which ultimately will be determined at the end of the criminal proceedings.
This case is significant however in that it does give the defendant, who is the subject of the restraining order the ability to remove them and deal with property in a timely manner, which in itself may have significant financial benefits.
Written by Casey John Isaacs