Criminal Asset Confiscation matters deal with the DPP’s power to restrain and ultimately forfeit a person or companies assets which relate to a ‘serious criminal offence’.
The Supreme Court of South Australia made an important ruling on the interpretation of the (SA) Criminal Assets Confiscation Act 2005 in the matter of DPP v George.
The DPP, in their power to restrain and forfeit assets under the CAC Act, can issue restraining orders on a defendant’s property. They then apply for a pecuniary penalty order (PPO) under the Act s 95.
A PPO is equivalent to the value of the property, meaning that the defendant stood to lose their property.
Section 95 of the Act provides that a PPO 'must' be made in respect of an 'instrument' used in the commission of an offence.
At first instance the Magistrates Court of South Australia declined to make a PPO on the basis that the defendant’s property was not an ‘instrument’. Furthermore, in deciding it wasn’t an instrument, the learned Magistrate excluded the property from any restraining order in an effort to prevent any statutory forfeiture.
The DPP appealed that decision.
The defendant argued that if the Supreme Court found that the Magistrates Court had no discretion under s 95 to refuse to make a PPO, then the Act was invalid.
The Court held that:
- The PPO regime of the Act was ‘subordinate’ to the Forfeiture regime, but there is a divide as to where a court could nonetheless make a PPO if an exclusion order or comparable order were already in force;
- The word ‘instrument’ should be expansively defined; and
- The Act s 95 power was ‘discretionary’ rather than ‘mandatory’ and that there was no reason for finding the Act to be invalid.