Bell v Police

Bell v Police involved an appeal against a forfeiture order imposed by a magistrate. The appellant, Bell, had been convicted and sentenced for driving with a prescribed concentration of alcohol. As a result, his vehicle was seized and impounded. The prosecution filed an application in the Magistrates Court for the forfeiture of Bell's vehicle. An order of forfeiture was made by the magistrate pursuant to section 12(1)(a)(iii) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA). The prosecution relied on two previous PCA offences, committed in 2002 and 2005, as the prescribed offences committed within the qualifying period stipulated by the Act.

The issues on appeal were whether the previous PCA offences did not come within the scope of the Forfeiture Act because the Forfeiture Act was not yet enacted and therefore the offences were not prescribed at the time the offences were committed. Additionally, the appeal questioned whether the Forfeiture Act is invalid because it requires the Courts to exercise powers which are incompatible with, and repugnant to, judicial power under the Constitution. The appeal court rejected the first issue, holding that section 10 of the Act gives the statute retrospective effect. The appeal court found that the provisions of the Act allow an application to be made if the offences are committed within the qualifying period and are prescribed at the time of the application.

The appeal court allowed the second issue, finding that the Act is inconsistent with the judicial integrity implication. The Act requires Courts to impose a substantial additional criminal penalty (forfeiture) after final sentencing orders have been made. The appeal court found that this is repugnant to judicial power under the Constitution. The appeal was allowed, and the order of forfeiture was set aside.

The final orders were that the appeal was allowed, the order of forfeiture was set aside, and the Forfeiture Act was deemed invalid. This decision highlights the importance of ensuring that any legislative provisions do not interfere with judicial power, and that retrospective effect is only given where it is clearly intended by the legislature.