What can be done to get your property back?
If a restraining order has been placed on your property, then you would be keen to learn what you can do to get your property back. This page will outline your options. It is important to say from the outset that just because your property is restrained does not mean that the property will be forfeited to the DPP.
The Criminal Assets Confiscation case is almost always dealt with after the criminal charge although the law does allow for the Criminal Assets Confiscation case to be dealt with first provided there has been a restraining order in place for 6 months. If you do not file an application for an exclusion order within 6 months the DPP can apply to have a forfeiture order made after 6 months before the criminal charges are dealt with and the court must make a forfeiture order, notwithstanding you may be later found not guilty of the criminal charges. It is most important that you get legal advice for a lawyer who specialises in this area and that they file an application for an exclusion of property within 6 months.
The advantage of the Criminal Assets Confiscation case being dealt with after the criminal case is that if you are found NOT guilty or the case is withdrawn then normally the court cannot make a forfeiture order.
Practically, we would approach the DPP and ask them to discontinue the confiscation proceedings. When this occurs, the restraining order will be removed, and you will be able to deal with the property as you see fit. When it comes to real estate, it can take up to 3 or 4 weeks for the removal of the Restraining Order.
If you are convicted of one or more serious offence, the court must make a forfeiture order if the court is satisfied that the property is either the proceeds or instrument of one or more of those offences.
Therefore, if you can demonstrate to the court that the property either all or part, was not the proceeds of the serious criminal offence or an instrument of the serious criminal offence the court will not make a forfeiture order. If the DPP allege that the property is the proceeds of the serious criminal offence and you can show that you purchased the property by legitimate means, then the court will not make the forfeiture order even though you may have been convicted of the serious offence.
Section 7(1)(b) of the Criminal Assets Confiscation Act 2005, states that property is an "instrument" of an offence if it is either
used in, or in connection with, the commission of an offence; or
intended to be used in, or in connection with, the commission of an offence,
whether the property is situated within or outside the State.
Therefore, if you can demonstrate to the court that the property was not used or intended to be used in connection with the commission of the offence the court will not make the forfeiture order.
When the court is considering whether it is appropriate to make a forfeiture order the court may have regard to the following matters:
➢ Any hardship that may reasonably be expected to be caused to any person (other than the suspect) by the operation of the order; and
➢ The use that is ordinarily made, or was intended to be made, of the property; and
➢ The gravity of the offence or offences concerned; and
➢ Any other matter the court thinks fit.
Practically, we would file Affidavit material to support your application for exclusion. We would include all information and documents that would go to prove that the property was acquired by you legitimately and not the proceeds of crime. These documents would include mortgage statements, ordinary bank statements, loan documents, purchase documents, taxation returns and other documents showing the purchase of the property and your income at that time. Other people might also file Affidavits to show their interest in the property.
Before the matter proceeds to court we would seek to negotiate with the DPP. Often, we can come to an agreement which you would be happy with. We, of course, get your instructions along the way and make sure that any agreement is in your best interests.
When an agreement between us and the DPP cannot be reached, the matter will be set for trial. Depending on the complexity of the matter, trials can take anywhere from one hour to weeks. During a trial, the Magistrate or Judge will consider all information including the Affidavit material filed on your behalf. The Magistrate or Judge will then decide the outcome.
If property is jointly owned, then click here to read how application can be made for the exclusion of this property.
About the Author
Casey Isaacs is a specialist in Criminal Assets Confiscation matters and appears in the Magistrates and District Court in Adelaide and each of the circuit courts (Mount Gambia, Berri, Port Pirie, Whyalla, Port Augusta, and Port Lincoln) more than any other lawyer in South Australia. He is a senior criminal lawyer and a Partner at Caldicott Lawyers. He regularly teaches other lawyers about the Criminal Assets Confiscation law and many lawyers refer asset confiscation matters to him. Don’t let his youthful looks deceive you Casey has been specialising in Criminal law and Criminal Assets Confiscation matters for 17 years.
Casey can be contacted on (08) 8120 3778 or after hours on 0412 816 575 or by email at firstname.lastname@example.org.