Proceeds or instruments arising from the commission of an offence can be seized/confiscated. Although there are several different types of orders, the following information will look specifically at three. They are:
- Restraining orders
- Automatic forfeiture orders
- Pecuniary penalty orders
The Department of Public Prosecutions (DPP) can make an order, and the court must on this application, restrain a person from disposing or dealing with specified property except in the manner specified within the order.
In order for this application to succeed the court must be satisfied that a person has done one of following things:
- been convicted of an offence;
- charged with or proposed to be charged with a serious offence;
- suspected of having committed a serious offence;
- suspected that the property is proceeds of or is an instrument of a serious criminal offence.
The court is obligated to make a restraining order if one has been applied for by the DDP even if there is not risk of the property being disposed of or otherwise dealt with.
The proceedings are civil rather than criminal in the sense the applicant (DPP) bears must prove their case on the balance of probabilities. Evidence will be put forward to show ownership of the property. Under the legislation the DPP must give written notice of an application and provide a copy of the application itself.
If a person contravenes a restraining order, knowingly or by acting reckless, by disposing or dealing with the property in a manner not specified in the order they will be guilty of an offence. The maximum penalty is $20,000 or 4 years imprisonment.
A person will also be guilty of an offence for disposing or dealing with property under a restraining order whether or not they knew or where reckless and they were given a notice and the particulars were recorded. The maximum penalty is 10,000 or imprisonment for 2 years.
If a restraining order has been issued on your property it maybe possible to have it excluded from the order by satisfying the court that the it is neither the proceeds nor instrument of criminal activity and that it was lawfully acquired and including it in the order is contrary to public interest.
Forfeiture orders are dealt with under section 47 of the Criminal Assets Confiscation Act 2005. If the DPP make an application for such an order the court my make a forfeiture order regarding the specified property. The court before making this order however, must be satisfied that the person has:
- been convicted of one or more serious offences and the property is satisfied that the property is proceeds from one or more of those offences; or
- the property is covered by a restraining order which has been in force for at the last 6 months and the property is proceeds of one or more serious offences.
If the application succeeds the property will be forfeited to the Crown. The DPP must give written notice of an application unless the court is satisfied that the person has absconded in connection with an offence.
It is possible for an application to be made to exclude the property from forfeiture. The court must be satisfied that the applicant was not involved in the commission of a serious offence and the property is neither the proceeds nor an instrument of the offence. Written notice for an application of exclusion must be given to the DPP and provide the grounds on which the order is sought.
Under section 95 of the Criminal Assets Confiscation Act 2005 (SA) an application can be made by the DPP for the court to make an order requiring a specified person to pay an amount to the Crown. These orders are known an Pecuniary Penalty orders. For this type of order to made the court must be satisfied that that the person has been convicted of or has committed a serious offence and the person has derived benefits from the commission of an offence.