Criminal Assets Confiscation SA: Restraint, Forfeiture and Exclusion
Criminal assets confiscation in South Australia
Confiscation runs on its own timetable, separate from the criminal case, and its deadlines pass whether or not anyone is watching them. Talon Legal acts for people whose property has been restrained, for family members whose property is caught up in someone else’s case, and for people facing forfeiture after a conviction. Book a same-day free 30-minute consultation or call (08) 7094 2021 now.
Criminal assets confiscation key facts
| Issue | Position in South Australia |
|---|---|
| Governing law | Criminal Assets Confiscation Act 2005 (SA), version in force from 1 July 2025. |
| Nature of the proceedings | Civil proceedings, separate from the criminal case (section 218). |
| Who applies | The Director of Public Prosecutions. |
| Restraining orders | The court must restrain specified property if a person has been charged with a serious offence, among other grounds. The suspect's property can be restrained whether or not it is linked to the offence (section 24). |
| Serious offence | Any indictable offence, including one that must be dealt with summarily, and some listed summary offences (section 3). |
| Forfeiture after conviction | Restrained property is forfeited 6 months after conviction unless an exclusion application has been made in time and succeeds (sections 74 to 76). |
| Prescribed drug offenders | On conviction for a commercial drug offence, or a third serious drug offence within 10 years, all the offender's property except protected property is forfeited (sections 6A and 56A). |
| Excluding property | The person seeking exclusion must prove the grounds, including that the property is not proceeds and was lawfully acquired (sections 34, 76 and 220). |
| Pecuniary penalty orders | An order to pay an amount based on the benefits derived from a serious offence (section 95). |
| At sentence | The court must not take into account forfeiture of proceeds, or of a prescribed drug offender's property, but must take into account forfeiture of other property (section 224). |
| First step | Same-day free 30-minute consultation. Call (08) 7094 2021. |
Charged with a serious offence? How confiscation works
The Criminal Assets Confiscation Act 2005 (SA) lets the State restrain and take property connected with crime and, for some drug offenders, almost all of their property. This guide sets out criminal assets confiscation SA law: restraining orders, forfeiture, prescribed drug offenders, protected property, exclusion applications, pecuniary penalty orders and the deadlines. It states the law current to 5 November 2026.
The proceedings are civil and run separately from the criminal charge (section 218). In Western v Director of Public Prosecutions (SA) [2017] SASCFC 177, the Full Court said trials under the Act are conducted as ordinary civil proceedings, independent of the criminal proceedings that preceded them ([54]).
Most confiscation cases arise from drug charges. The Drug Offences SA guide, and the guides to drug trafficking and manufacturing drugs, explain the offences that most often trigger it.
Free Consultation. Restraining orders are often made in the first weeks after a charge. Book a same-day free 30-minute consultation or call (08) 7094 2021.
On this page
- Which offences can lead to confiscation?
- What is a restraining order?
- Can a family member's property be restrained?
- What happens to restrained property after a conviction?
- What is a prescribed drug offender?
- What property is protected?
- How is property excluded?
- What are the deadlines?
- What is a pecuniary penalty order?
- Does forfeiture affect the sentence?
- What has changed recently?
- How similar cases tend to play out
- How we protect property
- Criminal assets confiscation case law
- Frequently asked questions
Which offences can lead to confiscation?
The Act works on serious offences. A serious offence includes any indictable offence, a list of summary offences and some foreign offences (section 3). Since 26 January 2014, an indictable offence includes one that must be prosecuted and dealt with summarily in the Magistrates Court (section 3(2)).
That rule catches people out. In Vazquez v Police [2024] SASC 142, the appellant pleaded guilty to cultivating cannabis for sale, an offence that must be dealt with summarily, on advice that summary charges would not lead to forfeiture. It was a conviction for a serious offence because of section 3(2) ([53] to [55], [65]). His home, restrained on earlier charges, was forfeited under section 74 because no exclusion application was made in time ([46] to [51], [56] to [60], [64]). The Supreme Court found no miscarriage of justice in the plea and dismissed the appeal ([63] to [70]).
A discharge without conviction still counts. A person found guilty but discharged without conviction is treated as convicted (section 5(1)(b)). In Vazquez the Court noted that a no-conviction outcome would not have helped ([66]).
What is a restraining order?
A restraining order stops property being disposed of or dealt with. On the application of the Director of Public Prosecutions, the court must make a restraining order over specified property if it is satisfied of one of these grounds:
| Ground | Section |
|---|---|
| A person has been convicted of, charged with, or is proposed to be charged with, a serious offence | Section 24(1)(a) |
| A person is suspected on reasonable grounds of having committed a serious offence | Section 24(1)(b) |
| There are reasonable grounds to suspect the property is proceeds or an instrument of a serious offence | Section 24(1)(c) |
| There are reasonable grounds to suspect the property is literary proceeds | Section 24(1)(d) |
The suspect’s property need not be linked to the offence. Under the first two grounds, property may be specified if it is reasonably suspected to be the suspect’s property. Property of another person under the suspect’s effective control, and proceeds or an instrument of the offence, can also be specified (section 24(5)). In Director of Public Prosecutions (SA) v K [2024] SADC 133, the District Court held that section 24 requires a restraining order over specified property of a person charged with a serious offence, whether or not it is proceeds or an instrument. No narrower limit can be implied ([28] to [35]).
No risk of dissipation is needed. The order must be made even if there is no risk that the property will be disposed of (section 24(6)).
The property must be specified. In Director of Public Prosecutions v Drazetic [2022] SASC 35, the Supreme Court held there is no power to make a general restraining order over all the unidentified property of accused people. Section 24 repeatedly requires the property to be specified ([82] to [83], [115] to [117]).
Other rules shape the order:
| Rule | Section |
|---|---|
| The DPP must give written notice to the owner and to others it believes have an interest, but the court can hear the application without notice at the DPP's request | Section 25 |
| The court may refuse an order if the Crown does not give an appropriate undertaking as to damages or costs | Section 26 |
| Protected property cannot be restrained except on the proceeds or instrument ground | Section 24(5a) |
| Reasonable living and business expenses, and some debts, can be met from restrained property if they cannot be met elsewhere, but not legal costs | Section 27 |
| A suspect must, within 14 days, give the DPP the names and contact details of others with an interest in restrained property | Section 130A |
| Knowingly or recklessly dealing with restrained property is an offence carrying up to $100,000 or 4 years | Section 33 |
Can a family member’s property be restrained?
Yes, if it is under the suspect’s effective control. Property can be under a person’s effective control without the person having any legal interest in it. Property given away for less than sufficient consideration within 6 years before or after the relevant application is taken still to be under the giver’s effective control (section 6).
In Hu v Director of Public Prosecutions [2017] SASC 46, a woman charged with heroin trafficking had transferred her interest in the family home to her husband for love and affection about two months before the alleged offending. That interest remained under her effective control and could be restrained ([45] to [49]). The husband was not charged or suspected, so his own interest should have been excluded, and the order was varied ([50] to [55]).
Third parties can prove their ownership. In Director of Public Prosecutions (SA) v Scalzi [2024] SASC 2, a wife applied to exclude $151,050 in cash found at the family home, saying it was her gambling winnings. The Supreme Court found that the Magistrate, by accepting her uncontradicted and not implausible account, had not reversed the onus. The DPP’s appeal was dismissed and the exclusion stood ([88] to [89], [100], [106] to [110]).
A loan is not ownership. In Director of Public Prosecutions (SA) v Chau [2024] SADC 117, the District Court said a third party who beneficially owned property under a trust would defeat a prescribed drug offender’s deemed forfeiture. A lender with only an equitable charge would not ([51] to [60]). The offender’s mother had lent him $57,000 without documents, and that money was forfeited ([62] to [80]).
Notice matters. In Director of Public Prosecutions v Ilich [2023] SADC 14, a woman who had not been told of a forfeiture order made at the offender’s sentencing was given permission to apply late. The District Court said the sentencing findings did not bind her ([10]). She was not involved in the offence and the money was neither proceeds nor an instrument, so her $11,655 was excluded and ordered returned ([22] to [23], [50] to [58]).
What happens to restrained property after a conviction?
Forfeiture without an order. Suppose a person is convicted of a serious offence and property is covered by a restraining order relating to it. The property is then forfeited to the Crown at the end of the relevant period, unless the court has excluded it under section 76 (section 74). It does not matter whether the restraining order was made before or after the conviction, or whose property it is.
The relevant period is 6 months from the conviction. If an application to exclude the property was made within those 6 months and has not been finally decided, the period extends until it is decided (sections 74 and 75).
The day of conviction. For a guilty plea, the conviction occurs when the plea is accepted and the conviction recorded, not at sentence. The Full Court said so in Hall v Director of Public Prosecutions [2015] SASCFC 19 ([28]), and section 5 says the conviction day is the day the person is convicted, whether or not sentence is passed that day.
Forfeiture orders. Separately, on the DPP’s application the court must forfeit property that is proceeds of serious offences of which a person has been convicted, and may forfeit an instrument (section 47). A conviction-based application must be made within 6 months after the conviction day (section 47(6)).
After forfeiture. Once property has been forfeited under section 74, the court cannot exclude it under section 76 (section 76(2)). In Hall, the Full Court held that the Limitation of Actions Act 1936 could not be used to extend the time, because Parliament plainly intended a six-month limit ([36], [51]). Hall was decided on the provisions in force before 2014, which allowed extension orders of up to 15 months from conviction ([52]). Today, an exclusion application made within the 6 months extends the period until it is decided (section 75).
What is a prescribed drug offender?
A person convicted of a serious drug offence committed after 10 August 2018 is a prescribed drug offender if either route in section 6A applies:
| Route | What it requires |
|---|---|
| Commercial drug offence (section 6A(1)(a)) | The conviction offence is trafficking, manufacturing for sale, selling precursors or a commercial controlled plant offence, involving a commercial or large commercial quantity (Controlled Substances Act 1984 sections 32(1) or (2), 33(1) or (2), 33A(1) or (2), 33B(1) or (2) and 33C(1) or (2)), or a Division 3 offence involving such a quantity. |
| Repeat offending (section 6A(1)(b)) | At least two other convictions for prescribed drug offences, with all three offences committed on separate occasions within 10 years, not counting time in government custody. |
A serious drug offence means an indictable offence against Part 5 Division 2 or 3 of the Controlled Substances Act 1984.
Convictions on the same day count. In Donnelly v Director of Public Prosecutions (SA) [2024] SASCA 45, the Court of Appeal held by majority that the section 6A(1)(b) conditions are tested at the moment of conviction. A man convicted of ten trafficking counts on the same day was a prescribed drug offender, and all his property on that day was forfeited ([15], [23]). Since 1 July 2025, section 6A(2)(c) says expressly that an earlier conviction counts whether or not it occurs at the same time as, or in the same proceedings as, the conviction offence.
Deemed forfeiture. Immediately a person becomes a prescribed drug offender, a forfeiture order is taken to have been made over all property they owned or effectively controlled on the conviction day, including restrained property. The only exceptions are protected property, property already excluded from a restraining order, and property otherwise forfeited (section 56A). In Donnelly, Kourakis CJ described the manifest purpose of section 56A as punishing prescribed drug offenders severely by forfeiting all their property, however acquired, and deterring serious drug offending ([13]).
No restraining order is needed first. In Drazetic, the Supreme Court held that a deemed forfeiture order does not depend on a prior restraining order ([77] to [81]).
Timing. In Chau, the District Court applied Hall and said a deemed forfeiture operates from the conviction day, the day of the plea, not the day of sentence ([42], [48]).
Mortgages. In Donnelly, the declaration of forfeiture was varied to except a bank’s registered mortgage interest ([24] to [25]).
Limited ways out. Exclusion under section 76 is available to a prescribed drug offender only for protected property (section 76(1)(ia)). The convicting court may exclude property that is neither proceeds nor an instrument where the offender cooperated with a law enforcement agency (section 59A). Since 1 July 2025, that cooperation must be a witness statement and an undertaking to give oral evidence, must not have been taken into account at sentence, and must relate directly to a serious and organised crime offence. A prescribed drug offender must also give the DPP, within 14 days, the names and contact details of others with an interest in the forfeited property (section 56AB).
What property is protected?
Protected property is property of a class declared by regulation (section 3). Regulation 6 of the Criminal Assets Confiscation Regulations 2021 declares three classes: the moveable contents of premises, personal effects, and animals and plants. Some things are carved out of those classes:
| Protected | Not protected |
|---|---|
| Moveable contents of premises, such as ordinary furniture and household goods | Artwork, furniture 100 years old or more, and hydroponic equipment |
| Personal effects | Jewellery other than wedding rings |
| Animals and plants | Cash, gold, silver, platinum and copper |
| Motor vehicles other than wheelchairs, boats, trailers and caravans | |
| Firearms, stock-in-trade or business items, and unopened packaged liquor |
Land, bank accounts and shares are not in any protected class. For a prescribed drug offender, that means the home and the savings are forfeited along with everything else that is not protected.
How is property excluded?
The route depends on the stage the case has reached:
| Stage | Provision | What the applicant must show |
|---|---|---|
| Property under a restraining order | Section 34 | The property is not proceeds or an instrument of unlawful activity, the owner's interest was lawfully acquired, and exclusion is not contrary to the public interest, plus conditions about prescribed drug offenders. A pecuniary penalty order must not be possible against the owner (section 34(2)). |
| Forfeiture without an order under section 74 | Section 76 | The property is not proceeds of unlawful activity, the offender is not a prescribed drug offender (or the property is protected), the applicant's interest was lawfully acquired, and exclusion is not contrary to the public interest. |
| A forfeiture order | Sections 58 and 59 | For a conviction-based order, the applicant was not involved in the offence and the property is neither proceeds nor an instrument of it. |
| After section 74 forfeiture, for an innocent owner | Section 78 | The applicant was not involved, the interest was not under the offender's effective control, and the property was lawfully acquired and not used in or derived from unlawful activity. |
The applicant bears the onus. The person seeking exclusion must prove the grounds on the balance of probabilities (section 220; Scalzi [21], [64] to [65]). In Director of Public Prosecutions v George [2008] SASC 330, the leading judgment said the onus was on the owner to establish that his land was not an instrument of the offence ([52]).
The public interest. In Tedesco v Director of Public Prosecutions (SA) [2010] SASC 336, White J said satisfaction that exclusion would not be contrary to the public interest is a condition that must be met ([56], [62]). Hardship to the offender’s family may bear on it in particular cases, but cannot support routine exclusion ([61], [63] to [64]). Tedesco was decided under the earlier form of section 76, which also required that exclusion not be contrary to the public interest.
Using forfeiture at sentence closes the door. A convicted person whose sentence took account of possible forfeiture cannot later apply to exclude that property (sections 34(3), 62A and 76A). In Tedesco, the appellant had obtained a lighter sentence by relying on the probable forfeiture of his home, and it was contrary to the public interest for him to rely on the same hardship to avoid it ([66]).
What are the deadlines?
| Step | Time limit | Section |
|---|---|---|
| Application to exclude property from a restraining order, after notice of the application for the order | Within 14 days of notice; later applications may need leave | Sections 35 and 36 |
| Application to exclude property from forfeiture under section 74 | Within 6 months of the conviction, which extends the forfeiture period until the application is decided | Sections 74 and 75 |
| DPP's application for a conviction-based forfeiture order | Within 6 months after the conviction day | Section 47(6) |
| DPP's application for a pecuniary penalty order | Within 9 months of the conviction day, or 3 months after an extended period ends | Section 95(5) |
| Suspect's statement of others' interests in restrained property | Within 14 days | Section 130A |
| Prescribed drug offender's statement of others' interests | Within 14 days | Section 56AB |
| Innocent owner's application after section 74 forfeiture | Within 6 months of forfeiture, extendable if the delay was not due to neglect | Section 80 |
The six-month limit after conviction is the one that costs people their homes. It runs from the day of the plea or verdict, not the day of sentence.
What is a pecuniary penalty order?
A pecuniary penalty order requires a person to pay the State an amount based on the benefits derived from a serious offence. On the DPP’s application, the court must make one if satisfied the person was convicted of, or committed, a serious offence and derived benefits from it (section 95(1)). It may make one if the person’s property includes an instrument of the offence, having regard to hardship and other matters (section 95(2) and (3)).
Two rules make the amount larger than people expect. The expenses of the offending are not deducted (section 103). If the person’s property grew during or after the offending, the increase is treated as benefits unless the court is satisfied it had other causes (section 101).
The DPP must still prove the benefits. In Western, the Full Court expressed serious misgivings about the Director’s reliance on the factual basis used at sentencing. It found no sufficient basis to determine the benefits, set the order aside and remitted the matter for rehearing ([176] to [177]).
Does forfeiture affect the sentence?
Section 224 decides how confiscation interacts with sentencing for a serious offence:
| The sentencing court | Section |
|---|---|
| May have regard to the person's cooperation in resolving action under the Act | Section 224(a) |
| Must not have regard to forfeiture or a pecuniary penalty order to the extent it applies to the proceeds of the offence or, if the conviction makes the person a prescribed drug offender, to property owned or controlled on the conviction day | Section 224(b) |
| Must have regard to forfeiture or a pecuniary penalty order to the extent it applies to any other property | Section 224(c) |
| Must not have regard to a literary proceeds order | Section 224(d) |
In R v Ford [2008] SASC 46, $25,000 from the sale of the house from which drugs had been sold was forfeited as an instrument. The Court of Criminal Appeal said the forfeiture had to be taken into account and could bear on the head sentence, the non-parole period and suspension, but with no precise formula ([5] to [12], [42] to [46]). Ford was decided under the original section 224, which was in materially the same terms for property other than proceeds ([43]).
For drug offences, the likely financial gain is not taken into account at sentence if it is the subject of an application under the Act (Controlled Substances Act 1984 section 44(1)(d)(ii)).
What has changed recently?
- 1 July 2025. Amendments made by Act No 13 of 2025 commenced. They added section 6A(2)(c) on convictions in the same proceedings, added requirements to the cooperation exclusions in sections 59A and 76AA, created the duty in section 56AB, and amended the offences in section 33.
- 27 June 2024. Section 56A(2) was amended to say expressly that deemed forfeiture covers restrained property.
- 10 August 2018. The prescribed drug offender scheme commenced, for offences committed after that date.
- 26 January 2014. Sections 75, 95 and 224 were substituted, and section 3(2) was inserted.
A provision of the Biodiversity Act 2025 that will remove certain National Parks and Wildlife Act offences from the definition of serious offence had not commenced on 5 November 2026 and is not reflected on this page.
How similar cases tend to play out
Three illustrations of how the Act applies on ordinary facts. They are not predictions. The result depends on the evidence of ownership, the timing and the court.
Lower range. Police restrain a joint bank account held by a man charged with trafficking and his wife. Her share comes from her salary. As his property, the account can be restrained (section 24(5)), but she can apply to exclude her interest, as the husband’s interest was quarantined in Hu. She must prove it is not proceeds and was lawfully acquired (sections 34 and 220), and her payslips and bank statements are the evidence that decides it.
Middle range. A man pleads guilty in the Magistrates Court to cultivating cannabis for sale. His house was restrained when he was first charged. He believes a summary charge cannot lead to forfeiture and does nothing. Because the offence is a serious offence under section 3(2), the house is forfeited six months after the plea unless an exclusion application is made in time, as happened in Vazquez.
Upper range. A woman is convicted of trafficking a commercial quantity of methylamphetamine, committed in 2025. She becomes a prescribed drug offender, and everything she owned or effectively controlled on the day of her plea, including her house, car, savings and inherited land, is forfeited, except protected property (section 56A). Her sentence cannot take that forfeiture into account (section 224). What remains is the narrow cooperation exclusion and any genuine interests of other people (section 59A; Chau).
How we protect property
Confiscation work is about evidence of ownership and about time. We identify what is at risk, whose it is, and which deadline applies, on the first day.
| Stage | What happens | What we do |
|---|---|---|
| Restraint | The DPP applies for a restraining order, sometimes without notice. | Identify what is restrained, whose it is, and whether any of it can be excluded now. |
| Exclusion | Owners and third parties can apply to exclude property. | Prepare the evidence of lawful acquisition: bank records, loan documents, inheritance papers. |
| Living expenses | Restrained property is frozen. | Apply for reasonable living or business expenses where they cannot be met from other property (section 27). |
| Plea and sentence | The conviction date starts the six-month clock, and sentencing interacts with forfeiture. | File exclusion applications in time, and advise on section 224 before any submission about forfeiture is made. |
| Forfeiture | Restrained property is forfeited, or a deemed forfeiture order applies. | Pursue exclusion, innocent owner or cooperation routes, and test the value claimed in any pecuniary penalty order. |
We cannot promise a particular result, and no lawyer can. We can make sure no deadline passes unnoticed and that the court sees the evidence of ownership.
Every hour matters. Book a same-day free 30-minute consultation, or call (08) 7094 2021 now.
Criminal assets confiscation case law
These are the South Australian decisions this guide relies on. The case notes state what each court decided.
| Case | Court | Principle | Pinpoint |
|---|---|---|---|
| Donnelly v Director of Public Prosecutions (SA) [2024] SASCA 45 | Court of Appeal | Prescribed drug offender conditions tested at conviction; purpose of section 56A | [13], [15], [23] to [25] |
| Hall v Director of Public Prosecutions [2015] SASCFC 19 | Full Court | Conviction day for a guilty plea; no extension of the six-month limit | [28], [36], [51] to [55] |
| Western v Director of Public Prosecutions (SA) [2017] SASCFC 177 | Full Court | Civil proceedings; benefits must be proved | [54], [176] to [177] |
| Director of Public Prosecutions v George [2008] SASC 330 | Full Court | Meaning of instrument; onus on the exclusion applicant | [22], [52], [62] to [65] |
| Director of Public Prosecutions v Drazetic [2022] SASC 35 | Supreme Court | Property must be specified; deemed forfeiture needs no prior restraint | [77] to [83], [115] to [117] |
| Hu v Director of Public Prosecutions [2017] SASC 46 | Supreme Court | A gifted interest remains under effective control; innocent spouse's interest excluded | [45] to [55] |
| Director of Public Prosecutions (SA) v Scalzi [2024] SASC 2 | Supreme Court | Onus on the exclusion applicant; spouse's cash excluded | [21], [64] to [65], [88] to [110] |
| Tedesco v Director of Public Prosecutions (SA) [2010] SASC 336 | Supreme Court | Public interest condition; relying on forfeiture at sentence | [56], [61] to [66] |
| Vazquez v Police [2024] SASC 142 | Supreme Court | Summary-only indictable offence is a serious offence; home forfeited after six months | [46] to [66], [70] |
| R v Ford [2008] SASC 46 | Court of Criminal Appeal | Forfeiture of property other than proceeds is relevant to sentence | [5] to [12], [42] to [46] |
| Director of Public Prosecutions (SA) v K [2024] SADC 133 | District Court | A charged person's property can be restrained whether or not linked to the offence | [28] to [35] |
| Director of Public Prosecutions (SA) v Chau [2024] SADC 117 | District Court | Deemed forfeiture from the conviction day; trust and loan interests | [42], [46], [48], [51] to [60] |
| Director of Public Prosecutions v Ilich [2023] SADC 14 | District Court | Third party without notice permitted to apply; money excluded | [10] to [23], [50] to [58] |
Case notes
Donnelly v Director of Public Prosecutions (SA) [2024] SASCA 45
The appellant pleaded guilty to ten counts of trafficking methylamphetamine with a single allocutus ([3] to [4]). Kourakis CJ, with Doyle JA agreeing, said the manifest purpose of section 56A is to punish prescribed drug offenders severely by forfeiting all their property, however acquired ([13]). The majority held that the section 6A(1)(b) conditions are tested at the moment of conviction, so he was a prescribed drug offender and all his property on that day was forfeited ([15], [23]). The declaration was varied to except a bank’s registered mortgage interest; the appeal was otherwise dismissed ([24] to [25]). Blue AJA dissented ([53] to [54]).
Hall v Director of Public Prosecutions [2015] SASCFC 19
Gray J, with Stanley and Parker JJ agreeing, held that for a guilty plea the day of conviction is the day the plea is accepted and the conviction recorded ([28]). His Honour held that section 47 of the Limitation of Actions Act 1936 could not extend the time for an exclusion application, because Parliament plainly intended a six-month limit ([36], [51]). Under the provisions then in force, an extension could not run beyond 15 months from conviction ([52]). The appeal was dismissed ([53] to [55]).
Western v Director of Public Prosecutions (SA) [2017] SASCFC 177
On an appeal against a pecuniary penalty order ([1]), the Full Court said trials under the Act are conducted as ordinary civil proceedings, independent of the criminal proceedings that preceded them ([54]). It expressed serious misgivings about the Director’s reliance on the sentencing factual basis and found no sufficient basis to determine the benefits ([176]). The appeal was allowed, the order set aside, and the matter remitted for rehearing ([177]).
Director of Public Prosecutions v George [2008] SASC 330
Doyle CJ, giving the leading judgment, said an instrument is property used in a way that facilitates, assists or contributes to an offence. Land used as a home can be an instrument ([62] to [65]). His Honour noted that statutory forfeiture is not limited to proceeds or instruments ([22]) and that the onus was on the owner to establish the land was not an instrument ([52]). The appeal was allowed and orders set aside or remitted ([117] to [123]), with Vanstone and White JJ agreeing in those orders ([175], [252]).
Director of Public Prosecutions v Drazetic [2022] SASC 35
Parker J held there is no power to make a general restraining order over all unidentified property of accused people who would become prescribed drug offenders if convicted. Section 24 requires property to be specified ([82] to [83], [115] to [117]). His Honour held that section 56A(3) does not modify section 24, and that a deemed forfeiture order does not depend on a prior restraining order ([77] to [81]). The applications for general orders were dismissed ([121]).
Hu v Director of Public Prosecutions [2017] SASC 46
Mrs Hu, charged with heroin trafficking, had transferred her interest in the family home to her husband for love and affection about two months before the alleged offending. Bampton J held that, by section 6(1)(d), the interest remained under her effective control and could be restrained ([45] to [49]). Mr Hu, who was neither charged nor suspected, should have had his own interest excluded ([50] to [53]). The appeal was allowed and the order varied ([54] to [55]).
Director of Public Prosecutions (SA) v Scalzi [2024] SASC 2
Hughes J said the person seeking exclusion bears the onus, on the balance of probabilities, of proving ownership, lawful acquisition and that exclusion is not contrary to the public interest ([21], [64] to [65]). A Magistrate who accepted a wife’s uncontradicted and not inherently implausible account that $151,050 in cash was her gambling winnings had not reversed the onus ([88] to [89], [100], [106] to [109]). The DPP’s appeal was dismissed ([110]).
Tedesco v Director of Public Prosecutions (SA) [2010] SASC 336
White J said satisfaction that exclusion would not be contrary to the public interest is a condition precedent ([56], [62]). Hardship to the offender’s family may bear on it in particular cases, but cannot support routine exclusion ([61], [63] to [64]). Hardship was not established ([65]). Because the appellant had obtained a lighter sentence by relying on the probable forfeiture of his home, it was contrary to the public interest for him to rely on the same hardship to avoid it ([66]). The appeal was dismissed ([68]).
Vazquez v Police [2024] SASC 142
The appellant pleaded guilty to cultivating cannabis for sale on advice that summary charges would not lead to forfeiture. Stein J found no miscarriage of justice ([42] to [44], [63] to [69]). The offence was a serious offence because section 3(2) treats an indictable offence that must be dealt with summarily as indictable ([53] to [55], [65]). The home was forfeited under section 74 because no exclusion application was made in time ([46] to [51], [56] to [60], [64]). The appeal was dismissed ([70]).
R v Ford [2008] SASC 46
$25,000 from the proceeds of sale of the house from which drugs were sold, conceded to be an instrument, was forfeited. The Court of Criminal Appeal said a sentencing court must have regard to forfeiture of property other than proceeds, and that it bears on the head sentence, the non-parole period and suspension without any precise formula ([5] to [12], [42] to [46]). Permission to appeal was refused ([21], [53] to [54]).
Director of Public Prosecutions (SA) v K [2024] SADC 133
The respondent was charged with trafficking a large commercial quantity, and the funds in question were assumed not to be proceeds or an instrument ([20], [23]). Judge Burnett held that section 24(1)(a), read with section 24(5)(a)(i), requires a restraining order over specified property of a person charged with a serious offence, whether or not it is proceeds or an instrument. No implied limit can be read in ([28] to [35]). The DPP was entitled to the order and the exclusion application failed ([46]).
Director of Public Prosecutions (SA) v Chau [2024] SADC 117
Judge Burnett said a deemed forfeiture under section 56A operates from the conviction day, the day of the plea, and a declaration under section 56B neither delays nor completes it ([42], [48]). Section 76 was the wrong provision for a prescribed drug offender’s property, other than protected property ([46]). A third party beneficially entitled under a trust would defeat forfeiture, but an equitable charge is not ownership ([51] to [60]). The offender’s mother’s $57,000 was found to be an undocumented loan, and a declaration of forfeiture was made ([62] to [80]).
Director of Public Prosecutions v Ilich [2023] SADC 14
A third party who was not given notice of a forfeiture order made at the offender’s sentencing, and who applied promptly once she understood it, showed special grounds for permission to apply ([11] to [22]). Judge Stretton said the sentencing findings did not bind her ([10]) and that the court must exclude property if the applicant was not involved in the offence and the property is neither proceeds nor an instrument ([23]). Her evidence that the $11,655 came from a property settlement was accepted, and the money was excluded and ordered returned ([50] to [58]).
Frequently asked questions
What is criminal assets confiscation in SA?
It is the scheme under the Criminal Assets Confiscation Act 2005 that lets the Director of Public Prosecutions restrain and forfeit property connected with serious offences, recover the value of benefits, and, for prescribed drug offenders, forfeit almost all of their property.
Can my property be frozen before I am convicted?
Yes. Once a person is charged with a serious offence, or is proposed to be charged, the court must restrain specified property on the DPP’s application, even if there is no risk it will be disposed of (section 24).
Does the property have to be linked to the crime?
Not if it is the suspect’s own property. Under the charge and suspicion grounds, property can be restrained if it is reasonably suspected to be the suspect’s property, whether or not it is proceeds or an instrument (section 24(5)).
Can a partner's or parent's property be taken?
It can be restrained if it is under the suspect’s effective control, including property the suspect gave away for too little within 6 years (section 6). A family member who owns property in their own right can apply to exclude it, and must prove their ownership and lawful acquisition.
What is a prescribed drug offender?
A person convicted of a commercial drug offence, such as trafficking a commercial quantity, or of a third serious drug offence within 10 years, for offences committed after 10 August 2018 (section 6A).
Does a prescribed drug offender lose everything?
Almost everything. All property they owned or effectively controlled on the conviction day is forfeited, except protected property such as household contents and personal effects, property already excluded, and property otherwise forfeited (section 56A).
What property is protected from forfeiture?
The moveable contents of premises, personal effects, and animals and plants. Cash, jewellery other than wedding rings, cars, boats, trailers, caravans, firearms, artwork and some other items are not protected (Criminal Assets Confiscation Regulations 2021, regulation 6).
What happens 6 months after a conviction?
Property covered by a restraining order relating to the offence is forfeited to the Crown, unless an application to exclude it was made within the 6 months and succeeds (sections 74 to 76).
Does a guilty plea in the Magistrates Court avoid confiscation?
No. An indictable offence that must be dealt with summarily is still a serious offence (section 3(2)). In one Supreme Court case, a home was forfeited after a guilty plea to such a charge because no exclusion application was made in time.
Will a no-conviction outcome stop forfeiture?
No. A person found guilty and discharged without conviction is treated as convicted for the purposes of the Act (section 5(1)(b)).
Does forfeiture reduce the sentence?
Only forfeiture of property other than proceeds, and not a prescribed drug offender’s property. The court must not take into account forfeiture of proceeds or of a prescribed drug offender’s property, but must take into account forfeiture of other property (section 224).
Can restrained money be used to pay legal fees?
Not under a living expenses order: section 27 allows reasonable living and business expenses but excludes legal costs of confiscation or criminal proceedings. Funding should be discussed at the first appointment.
How do I get property excluded?
By applying under the provision that fits the stage of the case, such as section 34 for a restraining order or section 76 before forfeiture under section 74. The applicant must prove the grounds, including lawful acquisition (section 220).
Do I need a lawyer for a confiscation matter?
Confiscation deadlines run from the day of the plea, and missing one can mean losing a home that was never connected with the offence. We can identify what is at risk and act before the time runs out. Call (08) 7094 2021.
South Australian courts we attend for confiscation matters
We act in confiscation proceedings in the Magistrates Court, the District Court and the Supreme Court, alongside the criminal case where the two run together.
Courts we attend
Book a same-day free 30-minute consultation or call (08) 7094 2021.