Director of Public Prosecutions (SA) v Vukaj - [2025] SADC 18

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DIRECTOR OF PUBLIC PROSECUTIONS (SA) v VUKAJ & ORS
[2025] SADC 18
Judgment of her Honour Judge Deuter
27 February 2025
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - RESTRAINING OR FREEZING ORDERS
The Director of Public Prosecutions (the DPP) has sought a retention order pursuant to s 187(2) of the Criminal Assets Confiscation Act 2005 (the Act) over a 2020 BMW sedan (the BMW) owned by the first respondent, Mr Vukaj, and seized by SAPOL. Mr Vukaj opposes the retention order being made and seeks an order that the BMW be released to him, and that an ancillary retention order be made in his favour, pursuant to s 40 of the Act.
Held:
(1) The DPP’s application for a retention order pursuant to s 187(2) of the Act is not incompetent as a result of the DPP bringing the application rather than the Commissioner of Police as responsible custodian of the BMW.
(2) The DPP has satisfied s 187(2), in that it can be inferred from the circumstances of Mr Vukaj’s arrest that the police officers who seized the BMW suspected on reasonable grounds that the BMW was tainted property. It is agreed that if found guilty, of the offences with which he is charged, Mr Vukaj will become a prescribed drug offender.
(3) Section 187(2) authorises the making of a retention order in the terms sought by the DPP, namely that SAPOL retain the BMW. The Commissioner of Police as head of SAPOL, is the responsible custodian of the BMW pursuant to s 3(1) of the Act, and is the person who is to retain possession of seized property. As a member of SAPOL, the Commissioner can direct how the BMW is to be retained.
(4) That s 187 of the Act does provide a discretion to make orders for retention in favour of the DPP and/or Mr Vukaj.
(5)     In exercising the discretion provided by the Act, an ancillary retention order is to be made in favour of Mr Vukaj, on the terms of the current restraining order. In addition, he must:
(a)     maintain the BMW in its current condition;
(b)     maintain the level of insurance on the BMW as at 8 July 2024;
(c)     renew the BMW’s registration as and when it falls due; and
(d)     within 7 days of the forfeiture of the BMW being agreed, ordered or declared, he or his agent will surrender the BMW by delivering it and all keys to Pickles Auction Yard at Salisbury.
Criminal Assets Confiscation Act 2005 (SA) ss 40, 178 and 187, referred to.
Mansfield v DPP (WA) (2006) 226 CLR 486; DPP v Jadon & Ors [2023] SADC 13; DPP v K [2024] SADC 133; DPP v Mrishaj & Illyrian Investments Pty Ltd [2024] SADC 101; George v Rockett (1990) 170 CLR 104; DPP v George (2008) 102 SASR 246, considered.

DIRECTOR OF PUBLIC PROSECUTIONS (SA) v VUKAJ & ORS
[2025] SADC 18
Introduction

The first respondent, Dorjan Vukaj (Mr Vukaj) and the second respondent, Nicole Vukaj (Mrs Vukaj) are jointly charged on an Information dated 9 July 2024 with seven offences involving the cultivation and trafficking of controlled drugs. Four of the charges are major indictable offences. These are one count of Money Laundering; one count of Trafficking in a Large Commercial Quantity of a Controlled Drug; one count of Cultivating a Commercial Quantity of a Controlled Plant and one count of Trafficking in a Controlled Drug. If convicted Mr Vukaj and Mrs Vukaj would become prescribed drug offenders. These offences also satisfy the definition of a ‘serious offence’ for the purposes of the Criminal Assets Confiscation Act 2005 (CAC Act).
On 30 July 2024, the Director of Public Prosecutions (the DPP) filed an originating application seeking restraining orders over the interests of the three respondents[1] in multiple items of property.[2] This included five real estate properties, a bank account, five different sums of cash monies, a wine and spirit collection, four motor vehicles, a trailer and a jet‑ski. Paragraph 4 of the application also sought orders pursuant to s 187(2) of the CAC Act that SA Police (SAPOL), as responsible custodian, retain possession of the five sums of cash seized and banked by them; the wine and spirit collection; and a white 2020 BMW sedan (the BMW)[3] owned by Mr Vukaj.
[1]    The third respondent is a building company owned and operated by the first and second respondents.
[2]    FDN 1.
[3]    Registration number S545CHV.
The BMW was the only vehicle seized by SAPOL. This was on 8 July 2024 after a large amount of cannabis was found at properties owned by the first and second respondents (the Vukajs). The Vukajs were permitted to retain custody of two vehicles located at their home, being a 2015 Toyota station wagon, and a 2022 Toyota station wagon.
On 9 July 2024 SAPOL located a 2024 Toyota utility, a jet‑ski and trailer for the jet‑ski at a home owned by Mr Vukaj at West Beach. They were not seized.
The respondents did not oppose the making of restraining orders in relation to all the property, as sought by the DPP, and on the terms proposed. As a result, on 21 August 2014 a restraining order was made over all 18 items of property (the restraining order). The Court was told that Mr Vukaj opposed an order permitting SAPOL to retain the BMW. The DPP by its application maintains that the BMW should be retained by SAPOL. Argument on that part of the application, and whether an ancillary order should be made, was heard on 30 October 2024.
Background
The DPP’s application to retain the BMW is made pursuant to s 187(2) of the CAC Act. This provides:
(2) If—
(a)material liable to seizure under this Act has been seized under a search warrant, or under Subdivision 3, on the ground that a person believes on reasonable grounds that it is tainted property; and
(b)a restraining order is made in relation to the material; and
(c)at the time when the restraining order is made, the material is in the possession of the responsible custodian,
the responsible custodian of the material may apply to the court that made the restraining order for an order that the responsible custodian retain possession of the material.
Mr Vukaj’s opposition to a retention order being made in SAPOL’s favour is set out in an affidavit of 4 October 2024 (the Vukaj affidavit).[4] Mr Vukaj seeks an ancillary order that he have, and retain custody of, the BMW. This application for an order ancillary to the restraining order is sought pursuant to s 40 of the CAC Act. This provides:
[4]    FDN 12.
(1)The court that made a restraining order, or any other court that could have made the restraining order, may make any ancillary orders that the court considers appropriate including (without limiting the generality of this subsection) any of the following orders—
….
(b)     an order varying a condition to which the restraining order is subject;
….
(2)     The court may only make an ancillary order on the application of—
(a)     the DPP; or
(b)     the owner of the property covered by the order; or
….
(5)     An ancillary order may be made—
(a)if made by the court that made the restraining order—when making the restraining order; or
(b)in any case—at any time after the restraining order is made.
….
Section 40(3) requires Mr Vukaj to give written notice of his application for an ancillary order. It is agreed that this notice was given by way of the Vukaj affidavit and by written submissions of 25 October 2024.[5] It is also agreed that the Court has power to make an order that is ancillary to the restraining order pursuant to s 40(1).
[5] FDN 14.
The Vukaj affidavit sets out the following detail in relation to the BMW:
iit is a high‑end sports 4WD style vehicle with up to 1530 litres of storage space;
iiit was purchased on 2 February 2021 with the combined savings of the Vukajs, earned from their building business;
iiithe BMW was thus lawfully purchased, using money lawfully obtained;
ivit was used by Mr Vukaj on a daily basis for the business of the third respondent, and as his main work vehicle. When it was seized it contained a large quantity of building supplies in the boot;
vit is not alleged to be an instrument of any offending;
vi as a high‑end sports car, it requires specialised care with long term storage to ensure that it does not deteriorate and thereby, depreciate in value;
vii it appears an arbitrary decision by SAPOL to retain the BMW as three other motor vehicles and the jet‑ski were released;
viiiMr Vukaj understands the requirement to maintain the condition, registration and insurance cover of the three vehicles that have been released by SAPOL, and confirms that if an ancillary order was made in his favour for retention of the BMW, he would agree to the same obligations being applied.
Purpose of the CAC Act
The purpose of the CAC Act is stated to be:
An Act to provide for the confiscation of proceeds and instruments of crime; to provide for the confiscation of property of certain drug offenders as an additional punishment for their offending; and for other purposes.
It has been found that the CAC Act provides a means by which the State secures the prospective liability of a defendant charged with certain offences to forfeit property, protecting the prospective or contingent property rights of the State.[6]
[6] Mansfield v DPP (WA) (2006) 226 CLR 486.
In determining the applications for retention of the BMW, I take into account that purpose, particularly in relation to an accused charged with serious drug offences.
Argument
Mr Vukaj argues that there are a number of bases upon which SAPOL should not be able to retain the BMW. These are that:
1.the application brought by the DPP seeking retention of the BMW is incompetent pursuant to the terms of s 187(2) of the CAC Act;
2.section 187(2)(a) of the CAC Act has not been satisfied, as there is no evidence that a person, being in SAPOL or otherwise, believed on reasonable grounds that the BMW was tainted property;
3.section 187(2) does not authorise the making of a retention order in the terms sought;
4. the circumstances of the seizure and retention of the BMW by SAPOL mean that the court should not exercise its discretion to order ongoing retention of the BMW; and
5.an ancillary retention order should be made in Mr Vukaj’s favour pursuant to s 40(1) of the CAC Act.
The DPP opposes an ancillary retention order being made; disputes the respondents’ submissions; and argues that a retention order should be made in their favour in relation to the BMW.
The DPP relies upon the affidavits of Detective Rowe of 18 July 2024 (the first Rowe affidavit)[7] and 25 July 2024 (the second Rowe affidavit).[8] These affidavits set out the background leading to the prosecution of the Vukajs. SAPOL seized the BMW on 8 July 2024 from the Vukajs’ home at Fulham Gardens.[9] This was at the same time that 64 cannabis plants, 6 kilograms of dried cannabis, cash and prescribed equipment were found at the home. SAPOL do not allege that the BMW was an instrument of any criminal offending, in this case, drug cultivation and/or trafficking, nor that the BMW was the proceeds of any offending.[10]
[7]    FDN 2.
[8]    FDN 4.
[9]    Paragraph 21 of the first Rowe affidavit.
[10] T4.26-33; T7.29-T8.4.
The DPP submits that the BMW was properly seized pursuant to s 178(b) of the CAC Act. All of the Vukajs’ bases for seeking a retention order are disputed by the DPP.
In particular, the DPP argues that the discretion whether to apply for a retention order, as set out in s 187, belongs to the responsible custodian, as per s 187(2). The DPP submit that the Court is only provided any discretion by s 187(3). However, this is in regard to a different issue, namely retention based upon reasonable satisfaction that there are grounds for believing the ‘material may afford evidence as to the commission of an offence …’.
The DPP also argue that a challenge to the Director’s decision to apply to the Court for a retention order pursuant to s 187 is not open to the Court to determine. It is not a reviewable decision upon a proper reading of s 187(2).
The DPP relies upon the finding of Judge Durrant in DPP v Jadon & Ors[11] (Jadon) where it was determined that:
[43]… s 187(2) requires, if the court is satisfied the criteria to make an order has been established, that the order for retention be made. That construction promotes the purposes of the Act. It means that absent an order, material must be returned to the person from whom it was seized, subject to its continuing restraint.
[44]For those reasons, I find the applicant, having satisfied the criteria in s 187(2), is entitled in this case to an order for retention of the five vehicles.
[11] [2023] SADC 13.
This construction of s 187 is contested by the respondents and I am told that in Jadon, an appeal was lodged in the Court of Appeal. I am also advised that before the appeal was heard, the DPP agreed to orders being made by another judge, contrary to Judge Durrant’s ruling. The appeal therefore did not proceed. As a result, I will consider the matter afresh, taking account of the fact that Judge Durrant’s interpretation remains on the record of this Court.
I now turn to address the four arguments of Mr Vukaj in support of his application.
(1)Is the DPP’s application for a retention order over the BMW incompetent?
The first step in determining this issue is to consider the power to seize and retain property found during a search, when there is no consent, or warrant, for that to occur.
Section 178(b) of the CAC Act provides that:
An authorised officer may seize material if –
…
(b)the material is found in the course of a search conducted under law and the officer suspects on reasonable grounds that the material is liable to seizure under this Act.
An authorised officer includes the DPP, and a Police Officer.[12] Material that is liable to seizure is specifically defined in s 171 of the CAC Act to include tainted property, or evidence relating to benefits derived from the commission of a serious offence.
[12] Section 3(1) of the CAC Act.
The definition of ‘tainted property’ is set out in s 3 of the CAC Act, and includes:
(d)property owned by, or subject to the effective control of, a person who has been charged with, or is proposed to be charged with, an offence where the person would, if convicted of the offence, become a prescribed drug offender …
As noted above, the charges now brought against Mr Vukaj relate to offences that would lead to him becoming a prescribed drug offender if convicted. The definition of tainted property is broader than property that is used in a serious offence, or which is the proceeds of such an offence.[13]
[13] See DPP v K [2024] SADC 133.
Once material is seized, s 181 of the CAC Act provides that it is to come under the control of the responsible custodian who must arrange for the material to be kept until it is dealt with pursuant to the CAC Act, and must ensure that all reasonable steps are taken to preserve the material.
The responsible custodian is defined in s 3(1) as:
(a) if the property or other material is seized by the DPP – the DPP; or
(b) in any other case – the head of the enforcement agency of the authorised officer who seized the property or other material.
An enforcement agency includes the DPP, and any other agency prescribed by regulation for the purposes of the CAC Act. SAPOL is such a prescribed agency. This means that the South Australian Commissioner of Police, (the Commissioner) as the head of SAPOL, would be regarded as the responsible custodian of any material seized, and retained by SAPOL.
Section 187(2) of the CAC Act provides that where material is seized; is believed to be tainted property; and is in possession of a responsible custodian, pursuant to a restraining order, they may apply to the court that made the restraining order for an order that they, as the responsible custodian, retain possession of the property.
Mr Vukaj argues that s 187(2) of the CAC Act, by its terms, only authorises the Commissioner to apply to the court for an order that they, as the head of SAPOL retain possession of the BMW as seized property. It does not authorise the DPP to make such an application. It is argued that this is intentional as, if seized material is being retained by SAPOL, the Commissioner will have knowledge as to whether the seized property can continue to be properly stored. The DPP does not have control of the storage process and cannot thereby know of SAPOL’s capacity to continue storing the property. It is submitted that it was therefore logical that the Commissioner would make the application.
It is argued that the DPP is a separate legal entity to the Commissioner. It was the DPP that issued the Application pursuant to s 187(2) of the CAC Act. They have no legislative power to do so. As a result, the proceedings are incompetent.
Mr Vukaj argued that s 187(2), in its entirety, makes it clear that it is the responsible custodian of the seized material who is the party to apply to the court for a retention order. Section 187(2)(c) provides that a pre‑condition to the making of a retention order is that the seized material is already in the possession of the responsible custodian.
It was submitted that the words in s 187(2) must have some work to do. They are intended to restrict whom may apply for a retention order. The DPP has no standing to bring the application and it should be dismissed.
The DPP argued in response that s 187(2) had to be read within s 187 as a whole. In particular, sections 187(1) and 187(3) which do not require the responsible custodian to seek orders regarding seized material. It was submitted that s 187 provides powers that are ancillary to the power in s 24 to make a restraining order. It therefore logically follows that the DPP can apply for a retention order.
Sections 24, 25 and 26 make several references to the DPP. It is the DPP that is to conduct and control any application to the court in relation to restraining and retention orders. Of importance is that s 26(2) provides that the DPP may give an undertaking as to damages on behalf of the Crown in seeking a restraining order.
Consideration
A close review of the provisions of s 187 confirms that it only deals with material seized during a search that is classified as tainted property. It does not apply to material that is regarded as an instrument of alleged offending, or the proceeds of such offending.
Section 187(2) by its terms provides that it is the responsible custodian who can apply to the court for a retention order enabling them to retain possession of seized material. The issue is, whether the DPP can act on behalf of the Commissioner when they are the responsible custodian of seized material. I am of the view that the DPP can.
The office of the DPP is the independent office that acts for the Crown in State criminal prosecutions. In doing so, it takes instructions from another Crown entity, SAPOL. There is no reason why this would not apply in relation to the regime under the CAC Act. In this regard, the DPP is the Crown agency that makes any application for a restraining order, whether after conviction or where there are reasonable grounds to suspect a respondent of having committed a serious offence, as set out in s 24 of the CAC Act. In addition, s 26(1) provides that a restraining order may not be made by the court without an appropriate undertaking as to damages and costs being made. By s 26(2) that undertaking may be given by the DPP on behalf of the Crown.

Once a restraining order is made, the DPP is the named entity that takes charge of notifying all persons with an interest in the restrained property, and generally ensuring that effect is given to the order, and/or if required, changes are negotiated.[14] The intention of the CAC Act is that the DPP is to be the Crown entity that controls procedures in relation to the restraining order regime pursuant to that Act. The DPP stands in the position of the State as a contingent creditor, securing the prospective liability of the respondents to forfeit property to the State.[15]
[14] Sections 29 – 32, 35 – 38, 40 and 45 of the CAC Act.
[15] Mansfield v DPP (WA) (2006) 226 CLR 486 at [46]; DPP v Mrishaj & Illyrian Investments Pty Ltd [2024] SADC 101.
I find that the DPP, on instructions from the Commissioner of SAPOL as the responsible custodian of the BMW, is the proper State agency to bring the application for a retention order. There is nothing in the CAC Act that prohibits them from doing so. It also logically follows from the other powers given to the DPP in relation to the making of restraining orders in relation to allegedly tainted material. The DPP’s application for a retention order over the BMW is not incompetent.
(2) Has section 187(2) of the CAC Act been satisfied?
Mr Vukaj argues that, it has not been proved that the seizure of the BMW was made on the basis that a person believed on reasonable grounds that it was tainted property, as required by s 187(2)(a). They point to the statement in the first Rowe affidavit where it is set out that the BMW was seized by SAPOL on 8 July 2024 pursuant to s 178(b) of the CAC Act.[16]
[16] The first Rowe affidavit at paragraph 21.4.
Section 178 authorises seizure of property without a warrant in certain circumstances, if:
(a)the officer suspects, on reasonable grounds that the material is liable to seizure under this Act and the person in possession of the material consents to the seizure; or
(b)the material is found in the course of a search conducted under another law and the officer suspects on reasonable grounds that the material is liable to seizure under this Act.
Section 178(a) is not relevant to these proceedings. In relation to s 178(b), it is argued that material, including the BMW, can only be ‘liable to seizure’ if a person believes on reasonable grounds that it is ‘tainted property’.[17] No evidence of that belief is before the Court. Detective Rowe does not attest to that fact. No other evidence was led to establish the requisite state of mind, including from the police officer who seized the BMW.
[17] Section 187(2)(a) of the CAC Act.
The DPP argue that an authorised police officer could only have legally seized the BMW if they had ‘suspected on reasonable grounds’ that it was liable to seizure as required by s 187(2)(a). That suspicion can only have been that the BMW was tainted property, and the Court should accept that.
It is argued by Mr Vukaj that the opinion evidence of Detective Rowe that the BMW was seized by SAPOL pursuant to s 178(b), does not satisfy s 187(2)(a). It does not establish that the BMW was seized on the ground that some other, unidentified, person believed on reasonable grounds that it was tainted property. There is no evidence before the Court from any police officer that they held such a belief.
Mr Vukaj’s counsel relied upon the High Court decision in George v Rockett[18] where it was said:
When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.
…
That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers …[19]
[18] (1990) 170 CLR 104.
[19] Ibid at 112.
It was submitted that there is a requirement that evidence be led that the person who seized the BMW believed that it was tainted property and, that there were reasonable grounds for that belief. In circumstances where no such evidence is before the Court, the result must be that the application fails.
The DPP rely upon the first Rowe affidavit where it is deposed that the BMW was seized by SAPOL on 8 July 2024, pursuant to s 178(b) of the CAC Act. This was after it had been located at the Vukajs’ home, and at the same time as a large commercial quantity of cannabis and cash was located.[20] It can therefore be concluded that the BMW was seized as tainted property.
[20] FDN 2 at paragraph 21.
The DPP also rely upon r 31.7(12) of the Uniform Civil Rules 2020 (SA) in relation to the content of the first Rowe affidavit. This rule provides that:
(12)If an affidavit or statutory declaration is permitted to contain hearsay, it must in respect of each statement based on hearsay—
(a)     state that the deponent believes the statement;
(b)     identify the source of the statement (for example, the person who made the statement to the deponent or the document from which the deponent obtained the statement); and
(c)     make it clear that the hearsay is first hand hearsay.
It is argued that Detective Rowe attested to the fact that the BMW was seized pursuant to s 178(b) of the CAC Act, as tainted property. Whilst in hearsay form, this was permissible in the circumstances. All that was needed to be satisfied was that there was a basis for the BMW to be tainted property.
Consideration
The DPP submissions do not meet the respondents’ case that, although Detective Rowe attested to the fact that the BMW was seized by SAPOL pursuant to s 178(b) of the CAC Act, there was no evidence that meets the requirement of s 178(b) and s 187(2)(b). There was no evidence that an authorised officer suspected on reasonable grounds that the BMW was liable to seizure under the CAC Act, as it was tainted property. The required evidence is not before the Court to satisfy the requirement that a person had the state of mind in which they believed the BMW was tainted property.
Whilst I acknowledge this and the respondent’s submissions, I am satisfied that at the time the BMW was seized it was done so on the suspicion that it was tainted material.
As set out above, tainted property includes property owned by a person who has been charged with an offence where the person would, if convicted of the offence, become a prescribed drug offender. Mr Vukaj, if convicted of the offences with which he is charged will become a prescribed drug offender. This is as a result of the number of cannabis plants found over two properties owned by the Vukajs; together with 6 kilograms of dried cannabis in vacuum sealed bags, prescribed equipment for growing and drying cannabis and cash monies totalling $158,400.00[21] all found at a property at 11 Murray Street, Fulham Gardens on 8 July 2024. This was also where the BMW was located and seized.
[21] The first Rowe affidavit (FDN 2).
I am satisfied that the police who attended the Fulham Gardens property, who are described in the first Rowe Affidavit as members of the Western Districts CIB Tactical Squad would have been aware that the BMW could be seized as tainted property, given the amount of cannabis plants and dried cannabis found at the property. I am satisfied that, as per George v Rockett, that there was the existence of facts which were sufficient to induce in the police officer who seized the BMW, a suspicion on reasonable grounds that the BMW was liable to seizure.
In this regard, it is not in dispute that should Mr Vukaj be found guilty of the charges brought against him then, he will become a prescribed drug offender. This satisfies the definition of tainted property, and provided a basis to seize the BMW. I find that s 187(2) of the CAC Act has been satisfied.
(3)Does section 187(2) authorise the making of a retention order in the terms sought?
Mr Vukaj submits that the CAC Act does not authorise the making of an order that ‘South Australia Police’ retain possession of the BMW. This is the order sought by the DPP in FDN 1 at paragraph 4. It was argued that s 187(2) only provides that a retention order be made in favour of the ‘responsible custodian’. This is the Commissioner.
I agree that s 187(2) provides that it is the responsible custodian who is to retain possession of material over which a restraining order has been made.[22] However, the nature of the respondents’ application does not prevent the Court making an alternative and correct order pursuant to s 187(2). The error in the application can be corrected by the responsible custodian being named in any Court order. It does not prevent the type of order sought being made.
[22] In circumstances where a retention order is sought.
However, the Commissioner is a member of SAPOL, and it is arguable in any event, that an order for South Australia Police to retain possession of the BMW includes the Commissioner, as a member of, and head of SAPOL.
(4)Should the Court refuse to exercise its discretion to order ongoing retention of the BMW or should an ancillary order be made in Mr Vukaj’s favour?
The first issue to be determined is whether the decision of Judge Durrant in Jadon should be followed. His Honour determined that s 187(2) provides no discretion to the court once the criteria in s 187(2)(a), (b) and (c) are established, and the responsible custodian chooses to seek a retention order. The DPP submit that this is the case in these proceedings. In addition, Mr Vukaj has not put forward any information to challenge the detail set out in the two Rowe affidavits.
Mr Vukaj argues that s 187(2) does not provide that the court must make a retention order simply because the DPP chooses to seek one. If that is the case, then s 187(2) has no work to do.
Mr Vukaj’s counsel submitted that s 40(2) of the CAC Act does not provide SAPOL with specific authority to apply for an ancillary order, including a retention order. He argued that this was likely why s 187 was engaged, to allow the responsible custodian, usually SAPOL, to seek a retention order. However, s 187(2) does not lead to a conclusion that the court must make a retention order if the Commissioner of Police applies for one.
It was submitted that given s 187(2) provides a discretion to the responsible custodian whether to apply for a retention order, the implication must be that the court ‘may’ make the order. The power to make a retention order is therefore discretionary. It was argued that on Judge Durrant’s reasoning there was no need for s 187(2) at all.
I agree with the submissions of Mr Vukaj. I am of the view that s 187(2) must have some work to do. It provides that the responsible custodian may apply to the court for an order that they retain possession of seized material. This suggests that once an application is made, the court must determine the issues.
This view is supported by s 187(3) and s 187(4).
Section 187(3) provides that:
The court may, if satisfied that there are reasonable grounds for believing that the material may afford evidence as to the commission of an offence, make an order that the responsible custodian may retain the material for so long as the material is required as the evidence as to the commission of that offence.
Section 187(4) provides that:
A witness who is giving evidence relating to an application for an order under subsection (2) is not required to answer a question or produce a document if the court is satisfied that the answer or document may prejudice the investigation of, or the prosecution of a person for, an offence.
These subsections both provide discretions to the Court in hearing an application for a retention order. Section 187(4) in particular must be predicated upon the fact that there will be a court hearing, for the court to determine whether the seized property should be retained by the responsible custodian pursuant to an application under s 187(2). The only purpose of such a hearing is to determine whether the responsible custodian should retain possession of the material.
A consideration of s 187 as a whole, by its terms and all subparagraphs, leads to a finding that the Court is not precluded from determining if a retention order should be made in Mr Vukaj’s favour; or in favour of the Crown.
Exercise of the Discretion
In determining if a retention order should be made in favour of either the DPP or Mr Vukaj, the Court is exercising a discretion.
(i) Mr Vukaj’s contentions
Mr Vukaj argues that the Crown’s position is protected by the conditions of the restraining order in relation to the BMW and the security it provides if a forfeiture order is ultimately made. He also stresses that he has still not yet been found guilty and the presumption of innocence is an important factor. This takes Mr Vukaj’s position outside the decision in DPP v George[23] (George) where orders were being considered after the defendant had been found guilty of relevant offences.
[23] (2008) 102 SASR 246.
As a result, Mr Vukaj argues that hardship or detriment is a relevant consideration. He is being deprived of the use of his property without any determination of his guilt. Whilst the provisions of the CAC Act related to forfeiture of assets upon conviction in relation to a prescribed drug offender, the proceedings have not reached that point. Mr Vukaj concedes that if convicted, then issues of hardship or detriment caused by the removal of, or the forfeiture of assets is no longer relevant. It is accepted that this is additional punishment upon conviction.
Mr Vukaj also points to s 27 of the CAC Act which gives the court the power to order that a defendant’s living and/or business expenses be paid from restrained property. He argues that this is important when considering the discretion in s 187(2), as it is an acknowledgement that restrained property, prior to a conviction, remains that of an accused and can be used for both personal and business purposes.
As set out above, Mr Vukaj says that the BMW is required for business purposes as it is his main work vehicle in his building business. The nature of the BMW was such that it established confidence in clients and suppliers. He also raised concerns that the value of the vehicle will deteriorate if not stored properly.
Mr Vukaj points to the fact that police did not seize three other vehicles and a jet ski, suggesting that SAPOL was not concerned that he would not properly care for those items. It cannot be suggested that he does not fully understand the requirements of the restraining orders.
Mr Vukaj submits that it is not appropriate to deprive him of the custody of the lawfully obtained BMW for some years; and that deprivation of use of the vehicle cannot be properly compensated for in monetary terms.
(ii) The DPP’s contentions
Whilst maintaining that the court has no discretion in s 187(2) to grant a retention order in favour of Mr Vukaj, the DPP submits that conjecture regarding how the BMW would be stored by the responsible custodian, is not evidence to which the court can place any weight. It is argued that ss 26 and 181 set out the obligations of the responsible custodian when storing seized property and the financial consequences if they do not meet those obligations. If the BMW was released to Mr Vukaj, these sections would have no work to do.
The DPP submit that there is no good reason to exercise my discretion by releasing the BMW to Mr Vukaj. There has been no claim of hardship, beyond the BMW being devalued if not stored properly. The ability to use the BMW for work purposes is not a persuasive reason to exercise any discretion in Mr Vukaj’s favour. This being the case, as Mr Vukaj has available to him three other vehicles, including a 2024 Toyota utility.
In any event, the DPP relying on the decisions in George and DPP v Sienczewski (Sienczewski)[24] submits that hardship to a defendant is not a factor to be taken into account by the court in exercising their discretion. I agree with Mr Vukaj that these decisions relate to forfeiture orders after conviction, and carry little weight, beyond confirming that the purpose of the CAC Act is to prevent offenders from unjustly enriching themselves and to deter offenders from crime.[25] They are also an additional penalty when a person is convicted of serious drug offending.
[24] [2010] SASC 16.
[25] George at [16].
The DPP argues that the issue of hardship to a charged offender cannot be imported into the provisions of the CAC Act where it is not expressly included as a relevant factor.
Consideration
The Court’s power to make a retention order is discretionary. I have considered the factors put by each party as to why a retention order should be made in their favour, in regard to the BMW.
A restraining order is in place in relation to the BMW and three other vehicles owned by the Vukajs. It appears an arbitrary decision for the DPP to seize and seek to retain one vehicle, being the BMW. No reason has been given except that the Court can make the order for retention.
I do not understand the purpose for a retention order to be made in favour of the DPP. There is no suggestion that Mr Vukaj plans to dispose of the BMW nor that he does not understand his responsibility to keep the BMW in its current condition, with insurance cover and registration. This is the obligation that attaches to orders in relation to the other three restrained vehicles.
In all the circumstances, I am prepared to make an ancillary retention order in favour of Mr Vukaj.
I confirm that there is a current restraining order in relation to the BMW.[26] This order provides that the BMW must not be disposed or otherwise dealt with by any person.
[26] FDN 7.
I now make further orders that the BMW be released to Mr Vukaj and that he must:
1.     maintain the BMW in its current condition;
2.     maintain the level of insurance on the BMW as at 8 July 2024;
3.     renew the BMW’s registration as and when it falls due; and
4.within 7 days of the forfeiture of the BMW being agreed, ordered or declared, he or his agent will surrender the BMW by delivering it and all keys to Pickles Auction Yard at Salisbury.