If you have been charged with a serious offence and you receive a summons seeking orders pursuant to section 24 of the Criminal Assets Confiscation Act 2005, it is highly likely that a restraining order will be granted by either the Magistrates Court or District Court over the property named in the summons.
CRIMINAL ASSETS CONFISCATION LAWYERS
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Criminal Assets Confiscation
- Criminal assets confiscation laws
- Understanding the Paperwork
- Directions hearing
- How restraining orders on your property work
- Expenses paid from restrained property
- How to get your property back
- How jointly owned property is dealt with
- Hardship applications by dependents
The law (Criminal Assets Confiscation Act 2005 (SA)) is complex and is deliberately drafted to make it extremely difficult for people who have property seized returned.
Criminal Assets Confiscation Laws in South Australia
Section 24 of the Criminal Assets Confiscation Act 2005 states that either the Magistrates Court or the District Court must make a restraining order if certain conditions are met.
Once a restraining order is granted over your property you can no longer dispose of it (sell it, transfer ownership, or give it away).
Unfortunately, we sometimes see people ignore or fail to realise the importance of the documents that they are served with. They do nothing, and their interest in the property is automatically forfeited. We discuss the power of the court to make automatic forfeiture orders in the orders the court can make page. If you have been served with a Summons or any other similar documents, we encourage you to contact a lawyer that specialises in this area of law as soon as possible.
On this page we will discuss what can be done to get some or all of your property back and applications you can make for hardship.
Understanding the form 4 Summons and Form 1 Interlocutory Application
Being served with legal documents and being told that the DPP want to take your property (house, car, boat, jewellery etc) can be a very stressful experience. Understanding the paperwork can be difficult. We have tried to explain in plain English what the documents say. Please feel free to call us and we will be happy to explain in further detail.
Section 25 of the Criminal Assets Confiscation Act 2005 states that the DPP must give written notice of an application for a restraining order to the owner of the property or any other person the DPP reasonably believes may have an interest in the property.
This notice is given by serving you with a Form 4 Summons seeking orders. Section 25 also states that the DPP must include either an Affidavit supporting the application or a notice stating that a person can request an Affidavit.
An Affidavit is a court document that is like a statement of the evidence the DPP rely upon to justify why a restraining order should be made.
If you have not been served with the Affidavit but simply a notice stating that you can request the Affidavit, and we recommend that you do so. The law states that the DPP must comply with your request as soon as is practicable.
On some occasions the DPP may apply to the court for a restraining order without giving the notices we just spoke about. This would normally occur when the DPP and the court are of the view that if the owner is given notice of the application they will dispose of the property before the matter is dealt with in court.
The documents that the DPP normally serve on a person are:
- Form 4 Summons
- Accompanying Affidavit
- Form 26 Interlocutory application issued pursuant to Rule 131(1) District Court Rules 2006
Understanding the Form 4 Summons
The Form 4 Summons states that if you want to defend the claim then you should file a notice of address for service within 14 days and file an answering Affidavit within 28 days after the service of the Affidavit. It is most important that you treat these dates seriously. Failure to lodge the documents can mean that orders are made without you being there.
We encourage you to seek legal advice from a lawyer who specialises in Criminal Assets Confiscation law as soon as you get the documents.
If you want to defend the claim you need to file in the Court a Notice of Address for service within 14 days. You can download this notice here. The law also states that you need to file an answering Affidavit within 28 days. You can download the answering affidavit template here. However, practically you can avoid filing an answering Affidavit if you file an application to exclude assets from the restraining order. This will preserve your position and you will not have to disclose information that may cause prejudice in your criminal proceedings. We strongly recommend that you get solid legal advice when you reach this point.
Anything that you do write in an answering Affidavit can be used against you in the criminal assets confiscation case and also any criminal cases you may have. We recommend that you file an application to exclude assets from the restraining order instead.
The form 4 Summons states that the summons was issued pursuant to section 24 and section 40 of the Criminal Assets Confiscation Act 2005.
Section 24 of the Criminal Assets Confiscation Act 2005 outlines how the court is to deal with applications made by the DPP for a restraining order. Section 24 is explained in detail in the restraining order page of this section.
Section 40 of the Criminal Assets Confiscation Act 2005 states the other orders that either the Magistrates Court or District Court can make. These include: a forfeiture order, a pecuniary penalty order, a literary proceeds order, and other orders that compel people to do certain things. These other orders that the court can make are explained in more detail in our other court orders page of this section.
The summons also refers to rule 34 of the District Court Civil Rules. In a Criminal Assets confiscation case, section 34 simply means that a court case is commenced by filing a summons in the court.
The form 4 Summons also states that the plaintiff (the DPP) undertakes to comply with an order of the court for damages or costs should it be determined that by reason of the restraining order the owners of the restrained property have suffered damages or costs which the DPP should pay. This paragraph does not mean that the DPP will have to compensate the owners of restrained property if they have suffered loss. They are only liable if the court makes an order that they should pay damages or costs. This may apply if the summons filed by the DPP is dismissed.
The form 4 Summons then outlines the orders that the DPP wants.
The first order is generally an order under section 24(1) of the Criminal Assets Confiscation Act 2005 seeking a restraining order of certain property listed. Section 24 is dealt with in detail in the restraining order page of this section.
Other orders the DPP may seek is to make the restraining order subject to a mortgage or an order prohibiting a redraw loan facility.
Understanding the Form 1 Interlocutory Application
The interlocutory application will set out the orders that the DPP will seek. Rule 312 of the District Court Civil Rules 2006 state that the DPP must within 14 days after service of the summons apply for directions of the court as to how the case should proceed.
At the directions hearing the District Court will make directions that the DPP and you must comply with. If the Judge makes a restraining order the matter will be adjourned to the Master’s list and normally there will be a delay of the making of a formal timetable in which to file and serve documents until the Criminal proceedings are resolved.
Normally the other orders that the DPP are seeking will be the same as the orders they have stated in the summons.
Directions Hearing
It is our practice to file an exclusion application on behalf of our clients to make sure that your property is not automatically forfeited to the DPP.
This application is normally listed on the date of the directions hearing.
The procedure for the directions hearing is very similar in the Magistrates Court and the District Court. Criminal Asset Confiscation cases are almost always dealt with after the finalisation of any criminal charges. This reason for this is that if the criminal charges are dismissed then the restraining order will almost always be lifted and the DPP’s forfeiture order application dismissed.
Therefore, the Court is likely to adjourn the matter for a long period of time to allow the criminal charges to be dealt with.
Restraining Orders
A restraining order is defined within section 24 of the Criminal Assets Confiscation Act 2005 to mean an order that specified property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order.
A restraining order does not mean that the property becomes the property of the state of South Australia. It just means that you cannot dispose of the property or deal with it (mortgage or borrow money against, etc.) while ever the restraining order is in place
- Section 24 says that the court must make a restraining order if it satisfied of any of the following:
- a person has been convicted of, or has been charged with, a serious offence, or it is proposed that the person be charged with a serious offence; or
- a person is suspected on reasonable grounds of having committed a serious offence; or
- there are reasonable grounds to suspect that the property is the proceeds of, or is an instrument of, a serious offence (whether or not the identity of the person who committed the offence is known); or
- there are reasonable grounds to suspect that a person has committed a serious offence and has derived literary proceeds in relation to the offence.
What is a serious offence?
Section 3 of the Criminal Assets Confiscation Act 2005 defines “serious offence” to mean either:
- an indictable offence; or
- an offence against the following…
- Section 68(3) of the Criminal Law Consolidation Act 1935; or
- Section 52, 53, 72 or 74 of the Fisheries Management Act 2007; or
- Section 99 of the Liquor Licensing Act 1997; or
a provision of the Lottery and Gaming Act 1936; or - Section 47, 48, 48A, 51 or 60 of the National Parks and Wildlife Act 1972; or
- Section 28(1)(a) or 41 of the Summary Offences Act 1953; or
- A foreign offence declared by the regulations to be within the ambit of this definition;
When is property proceeds of an offence?
Section 7 of the Criminal Assets Confiscation Act 2005, states that property is “proceeds” of an offence if it is either wholly or partly derived or realised, whether directly or indirectly, from the commission of the offence whether the property is situated within or outside the State.
When is property an instrument of an offence?
Section 7 of the Criminal Assets Confiscation Act 2005, states that property is an “instrument” of an offence if it is either used in 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;
Expenses Paid From Restrained Property
A Court can make orders under Section 27 of the Criminal Assets Confiscation Act 2005, that certain expenses be paid out of property that has been restrained. They can make the order at the same time they make the restraining order or at a later time.
What expenses can be paid out of the restrained property?
- The reasonable living expenses of the person whose property is restrained or any of their defendants;
- The reasonable business expenses of that person; or
- A specified debt incurred in good faith by that person.
The Court can make an order to pay these expenses if they are satisfied that the person cannot meet an expense or debt out of other property that is not part of the restraining order.
Under section 28 of the Criminal Assets Confiscation Act 2005 the Court can make an order excluding property from the restraining order for the same reasons as stated above.
The Court can only make an order if you apply for the order and you have notified the DPP of your application in writing. So, it is most important that you make an application. When advising the DPP you must set out the grounds for your application. You must also disclose in a sworn statement all your interests in the restrained property and your liabilities.
The Court cannot make an order to pay expenses for legal costs relating to either the criminal asset confiscation case or any criminal charges.
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 offences, 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.
Property seized under Criminal Assets Confiscation Act 2005
If the property is purchased by more than one person then the Court can find that only part of the property that has been restrained is the proceeds of a serious offence and an interest of another person not to be the proceeds of an offence.
However, just because a property is purchased in more than one name and a person with an interest in the property is not charged with a serious offence does not necessarily mean their interest is not the proceeds of a serious offence. For example, a husband and wife purchased a home in both of their names from the proceeds of drug sales. The husband is convicted of a serious offence, but the wife was unaware of the husband’s activities.
Where a court makes an order that part of the property is the proceeds of a serious offence a person with an interest in the property can apply to purchase the interest of the person convicted at the price valued set under section 55 of the Criminal Assets Confiscation Act 2005.
If you have an interest in a property that has been seized or is subject to a restraining order and have not been charged with a serious criminal offence it is most important that you seek urgent legal advice from a lawyer who specialises in Criminal Assets Confiscation matters.
Section 57 Criminal Assets Confiscation Act 2005
A court that makes a forfeiture order in respect to property that was subject to a restraining order can also make an order for a payment to dependent if the court is satisfied of the following:
- the forfeiture order would cause hardship to the dependant; and
- the specified amount of money would relieve that hardship; and
- if the dependant is aged at least 18 years—the dependant had no knowledge at the time that the serious offence was committed of the offenders conduct.
The maximum amount of money that can be given by way of order to the dependent must not exceed the difference between:
- the amount the court considers likely to be received from selling the offenders property under the forfeiture order; and
- the amount the court considers likely to be the costs of administering this Act. Section 209(1) of the Criminal Assets Confiscation Act 2005, states that these costs can include any costs involved in dealing with, or disposing of property in accordance with this Act and salary and other costs associated with the employment of an Administrator.
If you are a dependant of a person whose property has been seized or is the subject of a restraining order it is most important that you seek urgent legal advice from a lawyer who specialises in Criminal Assets Confiscation matters, so they can ensure your interests are properly considered at the time any forfeiture orders are made.
Assets Confiscation FAQ’s
If you need more information about assets confiscation in South Australia, these FAQs answer the most common questions.
What is the Criminal Assets Confiscation Act 2005 (SA)?
It is the law that allows the State to restrain or forfeit property connected to serious criminal offences. The legislation is deliberately strict and makes it difficult to recover property once seized. It gives the DPP power to restrain, freeze, or forfeit assets believed to be the proceeds or instruments of crime, even before conviction in some cases.
What is a restraining order under section 24?
A restraining order prevents you from selling, transferring, or dealing with the property listed in the order. Once granted, you cannot dispose of or borrow against the property until the court lifts the order. It does not mean the property becomes the State’s property, but it effectively freezes your ability to use or sell it.
What happens if I ignore the summons or restraining order documents?
If you do nothing, the court can make orders without you being present, including automatic forfeiture of your property. This means you can permanently lose your assets even if your criminal charges are later withdrawn or dismissed. You must seek legal advice immediately after being served.
What are proceeds and instruments of an offence?
Proceeds are assets that come from an offence, either directly or indirectly, such as money, vehicles, or property bought with illegal funds. Instruments are assets used in or intended to be used in committing an offence, such as a car used to transport drugs. The court can restrain or forfeit either type.
What does it mean to be a prescribed drug offender?
A person is a prescribed drug offender if they are convicted of trafficking or manufacturing a commercial or large commercial quantity of a controlled drug, or if they commit three prescribed drug offences within ten years. Once declared, all of that person’s property is automatically forfeited to the Crown without a separate application from the DPP.
Can I apply to have property excluded from a restraining order?
Yes. You can apply to have certain property excluded if you can show it was legally acquired or jointly owned by someone not involved in the offence. These applications require supporting evidence such as bank statements, purchase documents, and proof of legitimate income.
What are the deadlines for responding to confiscation proceedings?
If you are served with a Form 4 Summons, you must file a Notice of Address for Service within 14 days and an Answering Affidavit within 28 days of being served with the DPP’s Affidavit. Missing these deadlines can result in automatic forfeiture. A lawyer can help you protect your position by filing an exclusion application instead.
What happens at a directions hearing?
At the directions hearing, the court gives instructions to both parties about how the case will proceed. Confiscation proceedings are usually adjourned until the related criminal case is finished. If you are found not guilty, the restraining order will usually be lifted. Your lawyer may also file an exclusion application at this stage.
Can the court allow me to use restrained property for living expenses?
Yes. Under section 27 of the Act, you can apply to use restrained property to cover reasonable living or business expenses if you have no other means to pay. You must notify the DPP in writing and provide a sworn statement detailing your assets, liabilities, and reasons for the request.
What if the property is jointly owned?
Joint ownership does not automatically protect the other owner’s share. The court can decide that only part of the property is the proceeds of crime. An innocent co-owner can apply to purchase the restrained share at a fair market value or seek an exclusion order to protect their interest.
What happens if I am found not guilty of the criminal charges?
If you are acquitted or the charges are withdrawn, the court will usually remove any restraining orders and the DPP’s confiscation proceedings are likely to be dismissed. However, this is not automatic. You or your lawyer must file the appropriate applications to have the restraining order lifted and ensure your property is released.
Can the DPP restrain or seize property before I am charged?
Yes. The DPP can apply for a restraining order even if you have not yet been charged, as long as there are reasonable grounds to suspect that the property is linked to a serious offence. This means property can be frozen based on suspicion alone, so early legal advice is critical to protect your interests.
How long can a restraining order stay in place?
A restraining order remains active until the court revokes it or replaces it with a forfeiture order. In most cases, it stays in place until the related criminal matter is finalised. If the order has been in place for six months and you have not filed an exclusion application, the DPP can apply for automatic forfeiture.
What is a forfeiture order?
A forfeiture order transfers ownership of the restrained property to the Crown permanently. The court must make a forfeiture order if it finds that the property is either the proceeds or an instrument of a serious offence. You can avoid this only by proving that the property was lawfully acquired or unrelated to the offence.
What can a lawyer do to help with criminal asset confiscation matters?
A lawyer experienced in criminal asset confiscation can review the summons, restraining order, and affidavit evidence, identify legal grounds for exclusion, and prepare the necessary court documents. They can also negotiate with the DPP to protect your assets, apply for access to living expenses, and represent you in court to challenge forfeiture.
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