Director of Public Prosecutions v Alexander

DIRECTOR OF PUBLIC PROSECUTIONS v ALEXANDER
[2003] SASC 340
Full Court: Mullighan, Debelle and Gray JJ

MULLIGHAN J The respondent was charged on complaint with producing cannabis contrary to s 31(1)(b) of the Controlled Substances Act 1984 and possessing cannabis for sale contrary to s 32(1)(e) of that Act. These charges allege minor indictable offences and there has not been an election for trial by jury. Consequently the information will be heard and determined in the Magistrates Court. The alleged offences were detected on 13^th September 2002.
On 21^st January 2003 the appellant made an application in the Civil Jurisdiction of the Magistrates Court for a restraining order pursuant to s 15 of the Criminal Assets Confiscation Act 1996 prohibiting the respondent from dealing until further order, with the property situated at 9 Duffield Avenue, Mount Barker, being the whole of the land comprised in Certificate of Title, Register Book Volume 5128 Folio 255 and, presumably, the improvements thereon (“the property”). Both of the offences charged are indictable offences under the law of this State and each of them is a “local forfeiture offence” and a “forfeiture offence” as defined in s 3 of the Criminal Assets Confiscation Act. The second charge is also a serious drug offence under the law of this State and for that reason is also with those definitions. A serious drug offence is defined in s 3 of the Act as meaning an offence involving trade in a drug, or the production, manufacture or preparation of a drug for trade. “Drug” is defined in that section as meaning a substance that is a drug of dependence or a prohibited substance as defined in the Controlled Substances Act 1984. Cannabis is a prohibited substance: s 12(4) of that Act and Schedule 1 of the Controlled Substances (Prohibited Substances) Regulations 2000.
The application was heard on 21^st March 2003 by a learned Magistrate who refused to make the order. Instead, she made an order pursuant to s 26 of the Magistrates Court Act 1991 prohibiting the respondent, until further order, from transferring, mortgaging, encumbering or otherwise dealing with the property. The appellant appeals against the decision of the learned Magistrate in refusing the application and in making the order pursuant to s 26 of the Magistrates Court Act.
Background
Police officers went to the property at about 9.45 am on Friday 13^th September 2003 having received information about the cultivation of cannabis at the property. The respondent was at the property and the police officers were shown two rooms built within a garage containing eight cannabis plants, as well as hydroponic and other equipment being used in their cultivation. They also found a bucket containing green waste cannabis leaf clippings that weighed 2300 grams. It has not yet been determined how much of this material is cannabis. The respondent produced a pipe used for smoking cannabis. A set of digital kitchen scales was located in a dresser adjacent to the kitchen in the house.
The respondent attended at the Mount Barker Police Station later on the same day and was interviewed by police. He admitted selling some of the cannabis. He said that he had been growing cannabis for his personal use and that a friend offered to buy any amount in excess of what he used. He also admitted that he produced one and three quarter pounds of cannabis each crop. He used six ounces himself and sold the remainder to a friend for $2400 per pound. A crop costs him between $700 and $800 and his profit on each crop was about $2800. He further admitted that the crop seen by the police was the third crop grown by him during the past eighteen months and that each crop took about four months to mature. He had used the scales for weighing cannabis but they were usually used to weigh flour to make bread. The respondent also told the police that he had sold cannabis because he was receiving a carer’s pension and was trying to earn additional money to support another person.
The property is subject to a mortgage to Homestart Finance and is registered in the sole name of the respondent. The learned Magistrate was informed that it was agreed that the difference between the value of the property and the amount owing under the mortgage was about $100,000. She was also informed that the respondent had lived in a de facto marriage relationship with a woman and that they occupied the property until in 1995 when the relationship ended. She had been a joint mortgager under a previous mortgage. There was a settlement of property matters by them and the respondent purchased her interest in the property on 22^nd July 2002.
In the reasons for her decision, the learned Magistrate said:
“I bear in mind that the object of a restraining order is to preserve the status quo and in so doing to prevent anticipatory disposal by persons charged with the relevant offences. I take into account the relevant factors as to whether or not a restraining order should be granted, some of which are set out in Tregenza at para 41. I mention only some of these.
In the present case no material has been advanced to suggest a risk of disposal of the property. It would appear that the defendant has had an interest in the property since June 1990. The applicant for the restraining order has delayed some four months between the date on which the offences were allegedly committed by the defendant and the application for the restraining order. This can hardly be indicative of concern about the risk of dissipation of the property. In addition, any such risk can be safeguarded by a restraining order pursuant to section 26 of the Magistrates Courts Act 1991.”
The learned Magistrate was referring to the judgment of Gray J in Director of Public Prosecutions v Tregenza (2002) 84 SASR 346. She acknowledged that the case against the respondent in the criminal proceedings was a strong case in view of his admissions to the police and went on to say:
“From the material before me it would appear that if the defendant was subsequently convicted of these offences and the property in question were liable to automatic forfeiture as a consequence of the imposition of a restraining order under section 15 of the Act, then his loss would be of the order of $100,000. It has been submitted that this would be disproportionate compared to any profit which he may have made.”
It was for these reasons that she refused the application.
The fourth ground of appeal
There are four grounds of appeal. It is convenient to first consider the fourth ground which is that the learned Magistrate erred in law in that she purported to exercise the power contained in s 26 of the Magistrates Court Act in circumstances where that power was not available. Section 26 of that Act provides:
“(1) A Court may make an order (a ‘restraining order’) preventing or restricting dealing with property of a defendant to an action if -
(a)    the action appears to have been brought on reasonable grounds; and
(b)    the property may be required to satisfy a judgment that has been, or may be, given in the action; and
(c)    there is a substantial risk that the defendant will dispose of the property before judgment is given, or before it can be enforced.
(2)A restraining order must be served as directed by the Court.
(3)A person who deals with property subject to a restraining order except as permitted by the order commits a contempt of Court.
(4)The Court may vary or revoke a restraining order at any time.
(5)[N/A].”
It may be seen that each of the criteria set out in s 26(1) must be satisfied before a restraining order may be made. Whilst the proceedings instituted by the appellant may be said to have been brought on reasonable grounds (s 26(1)(a)), I am inclined to the view that the property could not be required to satisfy a judgment in the action because the action related to the forfeiture of the property itself, and was not required to satisfy a judgment about another subject matter, such as a money claim or a claim for damages. Section 26 grants the power to the Magistrates Court to make an order similar to a Mareva injunction, the purpose of which is to prevent the disposal of assets to prevent a judgment in relation to other subject matters being satisfied. However, it is unnecessary for present purposes to decide if the present application satisfies s 26(1)(b) because the remaining requirement in s 26(1)(c) that there is a substantial risk that the respondent will dispose of the property before judgment is given, or can be enforced, is absent. There was no basis for a forfeiture order under s 26(1) of the Magistrates Court Act and ground four of the appeal is established.
It was suggested during argument that the learned Magistrate could have exercised the power to grant an interim injunction contained in s 25 of the Magistrates Court Act which provides that:
“The Court may, on such terms as appear just, grant an injunction or make any other order that may be necessary to preserve the subject-matter of an action intact until the questions arising in the action have been finally determined.”
In Roberts (Trading as Contract Refrigeration Services) v Kowhsu EnterprisesPty Ltd (1999) 202 LSJS 191, Wicks J held that s 25 is concerned with the interim preservation of property which is the subject of litigation. I accept Mr Hinton’s argument that s 25 is not available unless there is a civil action on foot. In the present case, at the time of making the application, there was only a criminal action on foot in the Magistrates Court. An application for an order pursuant to s 25, and indeed s 26, may only be made in a civil action in the Court which is already in existence.
The remaining grounds of appeal relate to the exercise of the discretion of the learned Magistrate to refuse to make a forfeiture order under the Criminal Assets Confiscation Act.
The legislation
I have mentioned that the offences with which the respondent is charged are forfeiture offences as defined in the Criminal Assets Confiscation Act. The property is “tainted” property as it was used in, or in connection with, the commission of a forfeiture offence: s 4(1)(b) of the Act. Section 5 provides:
“Property is to be regarded as liable to forfeiture -
(a)     if the property is tainted property; or
(b)    if -
(i)     a forfeiture offence has been committed or there are reasonable grounds to suspect the commission of a forfeiture offence; and
(ii)    there are reasonable grounds to suppose that the property may be required to satisfy a present or future forfeiture order.”
Although the respondent has not yet been convicted of either of the offences with which he is charged, there can be no doubt that there are reasonable grounds to suspect that the commission of a forfeiture offence (s 5(b)(i)) because of the admissions which he made to the police and the observations which they made at the property. It was not disputed during the hearing before the learned Magistrate that he made the admissions.
Part 2 of the Act relates to forfeiture of property. Section 8 provides that upon an application by the Director of Public Prosecutions, a court may order the forfeiture of tainted property. Section 9 relates to forfeiture of property to where a person has benefited from the commission of a forfeiture offence to the extent of the value of that benefit. Section 10 relates to the extent of the court’s discretion and provides:
“(1)A court must make an appropriate forfeiture order under this Part if the court is satisfied that forfeiture is necessary to prevent the defendant from retaining the profits of criminal activity.
(2) The court's power to order forfeiture of property beyond what is required under subsection (1) is discretionary.
(3)In deciding whether to impose a discretionary forfeiture and, if so, the extent of the forfeiture, the court may take into account any penalty imposed on the defendant for the forfeiture offence and, conversely, the court may take a discretionary forfeiture into account in fixing penalty for the relevant forfeiture offence.”
Section 12 provides that a forfeiture order cannot be made unless the person who committed the forfeiture offence on which the application has been granted has been convicted of the offence, or is dead, cannot be found, or is for some other reason, not answerable to justice. It may be seen that upon an application for forfeiture, the order must be made if it is necessary to prevent the offender from retaining the profits of criminal activity, but there is a discretion as to whether to order forfeiture beyond that requirement. There is no requirement that all of the property must be forfeited when the proceeds of crime are substantially less than the value of the property.
Part 3 of the Act relates to restraining orders. Section 15 provides:
“(1) If a court is satisfied, on application by the Director of Public Prosecutions, that there are reasonable grounds to suspect that property may be liable to forfeiture, the court may make a restraining order prohibiting, subject to the exceptions (if any) stated in the order, any dealing with the property.¹
(2)An application for a restraining order may be made ex parte but, if the court makes a restraining order on an ex parte application, the court must allow the owner of the property a reasonable opportunity to be heard on the question whether the order should continue in force and, if after hearing the owner, the court is not satisfied there is good reason for the order to continue in force, the order must be revoked.
(3)A restraining order may be varied or revoked at any time.
(4)A restraining order lapses if -
(a)an interval of inactivity follows the making of the order; or
(b)    proceedings for the forfeiture offence in relation to which the restraining order was made result in an acquittal; or
(c)an application for a forfeiture order is decided.
(5)However, the following special provisions apply where the forfeiture offence or the suspected forfeiture offence in relation to which the restraining order is made is a serious drug offence:
(a)    the Director of Public Prosecutions must take reasonable care to ensure that the offender (or alleged offender) and all persons who may have an interest in the property are given notice of the order and of the implications of this subsection;
(b)    the order cannot (subject to the following exceptions) be revoked or varied so that it ceases to apply to property within its ambit;
(c)    the order does not lapse because of an interval of inactivity following the conviction of the offender for a serious drug offence;
(d)    if the offender is convicted of the serious drug offence, then 6 months after all rights of appeal are exhausted or expire or 6 months after the order is made (whichever is the later) the order is automatically converted into a forfeiture order for the forfeiture of all the property to which it then applies.
Exceptions -
1.     The court may authorise the application of property towards the payment of legal costs in accordance with this Act.²
2.     The court may revoke or vary the order so that it ceases to apply to property if the owner of the property satisfies the court, on an application made before the conversion of the order into a forfeiture order, that the owner acquired the property more than 6 years before the commission of the relevant forfeiture offence and the property is not tainted.
3.     The court may revoke or vary the order to protect the interests of a person who satisfies the court, on an application made before the conversion of the order into a forfeiture order, that the person has acquired an interest in the property to which the order relates in good faith and for valuable consideration.
4.     The court may order the payment of compensation out of the Victims of Crime Fund (not exceeding the value of the forfeited property) in favour of a person who satisfies the court, on an application made after the conversion of the order into a forfeiture order, that the person had acquired an interest in the forfeited property in good faith and for valuable consideration but did not receive notice of the order before the forfeiture took effect or not in time to apply for protection of the relevant interest before the forfeiture took effect.
(6)In this section -
‘interval of inactivity’ means one month or a longer period, not exceeding 2 months, determined, on application by the Director of Public Prosecutions, by the court during the whole of which there are no relevant proceedings before a court;
‘relevant proceedings’ means -
(a)    proceedings in which a person is charged with the relevant forfeiture offence or appellate proceedings arising out of such proceedings; or
(b)proceedings for a forfeiture order.
¹See Part 4, Division 2 for powers that may be conferred by restraining order.
²See section 20(2).”
Section 16 creates an offence if a person, knowing of the existence of a restraining order deals or permits a dealing with the property subject to the order, and that a dealing with property contrary to that section is void against anyone except a person who acquires an interest in the property in good faith and without notice of the terms of the order.
Section 17(1) and (2) provides that if a court orders the forfeiture of specified property, title to the property vests in the Administrator without any further conveyance or approval. The Administrator is a person nominated by the Attorney-General to administer property forfeited or subject to restraining orders under the Act: s 3 of the Act.
It may be seen that the Legislature has enacted provisions in relation to serious drug offences which are more strict in their operation than the provisions which apply to other offences: s 15(5). The effect of s 15(5)(d) is that if the offender, against whom a restraining order is made, is convicted of a serious drug offence, then six months after all rights of appeal are exhausted or expire or six months after the order is made, whichever is the later, the restraining order is automatically converted into a forfeiture order for the forfeiture of all property to which the order then applies as was observed by Debelle J in Hepworth v DPP (2001) 79 SASR 480 at 485. This consequence is inevitable regardless of the value of the property, or the extent to which it is used in, or in the connection with, the commission of a forfeiture offence. The property may be very valuable. The criminal activity may be brief in periods of time and have produced limited financial return. Only a small part of the property may have been used in the criminal activity, eg one acre to grow cannabis or a property comprised of 6,000 acres. It is unnecessary to so decide for present purposes but there may be forfeiture of property owned by someone other than the offender: see s 15, Exception 3.
I accept that those provisions demonstrate that the Legislature has taken strong measures against those who commit serious drug offences.
The remaining grounds of appeal
The first ground of appeal is that the learned Magistrate erred in the exercise of her discretion in that she acted upon a wrong principle when she said that the object of a restraining order is to preserve the status quo, and in doing so, to prevent anticipatory disposal of the property liable to forfeiture.
Mr Hinton contended the object stated by the learned Magistrate was not the only object of the legislation. He acknowledged that the observation of the learned Magistrate accorded with the views expressed by Debelle J in Hepworth at 484-5, where he said:
“It is apparent, both from the terms of s 15 and from the structure of the Act, that restraining orders are but interim orders to preserve the status quo pending the trial of an accused person. The manifest purpose is to prevent any dealing in the property which might frustrate the making of a forfeiture order.”
This observation was accepted by Gray J in Tregenza at 354-355.

However, Mr Hinton contended that there are other matters to be taken into account. Another matter, on his argument, is that a restraining order made under s 15 of the Act affords protection against property in consequence of action taken by the offender’s creditors. Section 5 of the Bankruptcy Act 1966 (Cth) defines a “proceeds of crime order” as a restraining order, forfeiture order or a pecuniary penalty order: s 5. The appellant and the Administrator are protected against creditors of respondents should he become bankrupt: s 114A. It is acknowledged that this matter was not brought to the attention of the learned Magistrate but it nonetheless establishes that the object of the Act is wider than she concluded.
The second additional matter is that a restraining order may provide protection of funds for legal costs. Section 20(1) of the Act provides that a restraining order may, inter alia, confirm on the Administrator powers relating to the getting in, management or control of property subject to the order. Section 20(2) provides that property subject to a restraining order may only be applied towards legal costs if the legal costs are legal assistance costs and the court authorises application of the property for that purpose. Legal assistance costs are defined in s 3 as meaning legal costs payable by an assisted person under conditions on which legal assistance is provided under the Legal Services Commission Act 1977. Section 20(3) provides for the use of property for legal fees, where upon the application of the Legal Services Commission the court is satisfied that it is unlikely that anyone other than the assisted person could establish a lawful claim to the property or a particular part of, or interest in, the property, the court must authorise the use of property, or part thereof, or interest therein, to defray legal assistance costs.
These provisions are obviously designed to protect the Legal Services Fund established by s 23 of the Legal Services Commission Act 1977. They were enacted by the Legal Assistance (Restrained Property) Amendment Act being Act No. 10 of 2001 which came into operation on 30^th December 2001 (GG 13.12.01, p5352) following the decision of the Full Court in Director of Public Prosecutions (SA) v Vella (1993) 61 SASR 379 where it was decided that under the earlier legislation the Court could authorise the payment of legal expenses out of property which was the subject of a restraining order but that it was not the role of the Court to regulate the fees charged on the basis of what it considered to be reasonable. The role of the Court was restricted to ensuring that the property potentially liable to forfeiture is not depleted wastefully or dishonestly. The response of the Legislature has been to ensure that property may be applied to legal costs if they are the costs of legal assistance granted by the Legal Services Commission. In that way the legal assistance scheme administered by the Commission regulates the amount of legal costs and ensures that they are not excessive so that property potentially liable to forfeiture is not depleted “wastefully or dishonestly”. This provision is in the public interest.
I accept that the approach of the learned Magistrate in defining the object of the Act was too narrow and that it does include the protection of property for creditors and the protection of the Legal Assistance Fund as I have mentioned. The first ground of appeal is established.
The second ground of appeal is that the learned Magistrate erred in the exercise of her discretion in that she took into account the impact of the automatic forfeiture provisions of the Act on the respondent in the event that he is convicted of a serious drug offence.
The learned Magistrate had regard to the observations of Gray J in Tregenza, with which I respectfully agree. He said at 360:
“Once a magistrate’s discretion to grant a restraining order has been enlivened s 15(1) provides that the court ‘may’ make a restraining order. This discretion is unfettered. The court must weigh all of the relevant competing factors when considering the exercise of its discretion. Obvious matters for consideration are the risk of the disposal of the property and the need for restraint having regard to the evaluation of that risk. Other factors include the strength of the Crown case, the nature and quantity of the drugs allegedly involved, the relationship between the drugs, the property and the party, the direct and indirect consequences of an order on the party and third parties. No doubt there will be other factors.”
Mr Hinton submitted that the automatic forfeiture provisions contained in Part 3 of the Act are an expression of the intention of the Legislature to deter those minded to commit serious drug offences which is demonstrated by the legislative history of forfeiture. Under the previous legislation, the Crimes (Confiscation of Profits) Act 1986, there was a discretion in courts considering applications for forfeiture which is not present in the Criminal Assets Confiscation Act in relation to serious drug offences where a restraining order has been made. In the earlier legislation there was no automatic forfeiture after the making of a restraining order upon conviction for a serious drug offence.
Nevertheless the Legislature provided that a restraining order is made in the exercise of discretion by the court and did not impose any limitations upon the exercise of that discretion.
The learned Magistrate was obliged to have regard to all relevant matters when exercising the discretion and, in my view, she did not err in having regard to the consequence of automatic forfeiture of the property if she made a restraining order and the respondent was convicted of the second charge. No doubt she approached the matter on the basis that these offences were minor indictable offences, and were not likely to attract a severe sentence, even if a sentence of imprisonment, if the respondent was convicted. The loss of the property may be disproportionate to the nature and extent of his criminality. I say nothing about whether such an assessment would be correct but I think in the present case the learned Magistrate was entitled to have regard to the impact upon the respondent of the loss of the property in the context of the nature of his offending.
It is well established that the sentencing court may have regard to the consequence of forfeiture of property by reason of the commission of a serious drug offence when sentencing for that offence: R v Carpentieri (2001) 81 SASR 164. Pursuant to s 10(3) of the Act the Court, in deciding whether to impose a discretionary forfeiture under Part 2, may take into account any penalty imposed for the forfeiture offence and, conversely, may take into account a discretionary forfeiture in fixing penalty for the forfeiture offence. Section 10(1)(ka) of the Criminal Law Sentencing Act 1988 provides that a Court, when imposing sentence, should have regard to a forfeiture of property. In the circumstances of the present case I see no reason why a court in exercising the discretion under s 15(1) should not have regard to the loss of property by automatic forfeiture being disproportionate to the criminal conduct of the offender.
Also, I think the learned Magistrate was entitled to take into account the provisions of Part 2 of the Act which I have mentioned. As has been seen, the forfeiture of property is only mandatory to the extent necessary to prevent an offender from retaining profits of criminal activity. To order forfeiture beyond that level is discretionary.
In my view, it follows then that when exercising the discretion whether to make a restraining order under s 15(1) of the Act, the Court is entitled to have regard to the procedure open to the Director of Public Prosecutions under Part 2 of the Act, and in an appropriate case to decline to make the order if there is no reason to apprehend that the property may be disposed of prior to the completion of the proceedings, and an alternative satisfactory way of preventing disposal is available.
Of course, the matters relating to protection of the property from creditors and the protection of the Legal Assistance Fund must also be considered.
I do not think this ground of appeal has been established.
The third, and remaining, ground of appeal is that the learned Magistrate erred in the exercise of her discretion in that she refused the relief sought by the appellant pursuant to Part 3 of the Act in circumstances where the necessary preconditions for the grant of relief were satisfied, instead of preferring to make an order pursuant to s 26 of the Magistrates Court Act so as to avoid the potential consequences of automatic forfeiture, thereby frustrating the intention of the Legislature.
Aspects of this ground of appeal have already been considered. As I have said, there was no basis for an order pursuant to s 26 of the Magistrates Court Act. Even though the necessary preconditions for the making of a restraining order under s 15(1) exist, it does not follow that an order should be made. The Legislature has left a discretion in the Court and an application may be refused in the exercise of that discretion. To do so does not frustrate the intention of the Legislature but merely gives effect to it. In all the circumstances, I do not think the learned Magistrate erred in declining to grant the restraining order. I reject this ground of appeal.
Conclusion
In my view, the learned Magistrate erred in the basis upon which she exercised her discretion in refusing the application for a restraining order in that she regarded the purpose of such an order is to preserve the status quo and prevent the disposal of property by persons charged with relevant offences. That is certainly a purpose of such an order but, as has been seen, there are the other purposes which I have mentioned.
It follows that the discretion must be exercised afresh. In doing so I have regard to the nature of the offences with which the respondent has been charged, the degree of seriousness based upon the observations of the police officers, the admissions of the respondent, which are not in dispute in these proceedings, and the need to preserve the property to ensure that the respondent does not benefit from his criminal activity. I have also had regard to the considerable disparity between the value of the property and the amount of the proceeds of the respondent’s crimes, the need to protect the property from any creditors of the respondent, and to protect the Legal Assistance Fund, and also the other matters mentioned by Gray J in Tregenza. Each of these matters must be given due weight and then placed in the scales.
It is also necessary to consider whether a restraining order is necessary to preserve the property so that upon conviction an application may be made for forfeiture under Part 2 of the Act. I do not think the material placed before the learned Magistrate establishes that an order was required. I accept the submission of Ms Powell QC that restraining orders should not be made in all cases as a matter of course. Sound reasons for the order must be established, otherwise orders will be made in all cases, which does not accord with the existence of the discretion. However, I would not go so far as to say that restraining orders should be the exception rather than the rule as Ms Powell QC, at one stage in her argument, contended. They should be made where justified in the circumstances. Also, it was submitted that the delay by the Director of Public Prosecutions in making an application under s 15(1) may be a relevant matter. Gray J in Tregenza thought so in relation to a delay of 7 months. Here, the delay was four months which, in the circumstances, I do not think is of much significance.
The crimes are serious, but for crimes of this nature are at the bottom end of the scale. There is no indication that the respondent is proposing to sell, or otherwise dispose of, the property. It may be accepted that provided the property is retained pending completion of the criminal proceeding against the respondent, proceedings under Part 2 of the Act for forfeiture will provide a just result. If the property is automatically forfeited, the financial consequence to the appellant will outweigh reasonable consequences of his criminality.
If the respondent and the mortgagee undertake that no steps will be taken to sell, transfer, otherwise dispose of, further mortgage, charge or encumber the property without seven days’ notice in writing being given to the appellant, I would exercise the discretion under s 15(1) by refusing the application for a restraining order. I would hear the parties as to the terms of such undertakings.
Before parting with this matter I mention an argument that was advanced by Ms Powell QC as to whether the property could be excluded from the description of “tainted” property in s 4 of the Act because the respondent had acquired an interest in the property more than six years before the commission of the offence. Section 4(3) provides that all property of a party to the commission of a serious drug offence is presumed to be tainted. Section 4(4)(a) provides that property is excluded from the ambit of the presumption if it is established, on the balance of probabilities, that it was acquired by the party more than six years before the commission of the offence on which the proceedings under the Criminal Assets Confiscation Act are based. The evidence before the learned Magistrate indicates that the respondent did acquire an interest in the property more than six years before he is alleged to have committed the offences.
I have not found it necessary to consider the presumption or the exclusion provision in s 4(4)(a) of the Act. As I have said, the second offence with which the respondent is charged is a serious drug offence and is a forfeiture offence, and property is tainted property if used in, or in connection with, the commission of a forfeiture offence. No presumption is necessary. The presumption in s 4(3) relates to all property of a party to the commission of a serious drug offence not merely property used in, or in connection with, the commission of a forfeiture offence. In the present case the respondent has admitted that the property was used in the commission of a serious drug offence and is therefore tainted property. I do not think ss 4(3) and (4) could have any application to the property of the respondent, but that is a matter which can be decided should the issue arise in any proceedings for forfeiture under Part 2. I do not think this is an issue that should be considered upon the exercise of the discretion under s 15(1) of the Act.
I would allow the appeal for the limited purpose of setting aside the restraining order made by the learned Magistrate under s 26 of the Magistrates Court Act.
DEBELLE J This is an appeal by leave from an order of a magistrate refusing to make a restraining order pursuant to s 15 of the Criminal Assets Confiscation Act 1996 (“the Confiscation Act”). The appeal was referred by a judge of this Court to the Full Court for determination pursuant to s 40(3) of the Magistrates Court Act 1991.
A Police Raid
The application for the restraining order was made in the following circumstances. The respondent, Alexander, was charged with two offences contrary to s 32 of the Controlled Substances Act, 1984, namely,
(1) producing cannabis contrary to s 32(1)(b) of the Act; and
(2) possessing cannabis for sale contrary to s 32(1)(e) of the Act.
Both offences are serious drug offences within the meaning of s 3 of the Confiscation Act.
The charges stem from a raid of the respondent’s house property at Mount Barker on 13 September 2002. Police found eight cannabis plants growing at the house as well as the paraphernalia to enable the cultivation of the plants. In addition, a bucket containing 2,300 grams of green waste clippings was found. The respondent produced a pipe which he uses for smoking cannabis. Police also found another pipe in the house as well as a pair of digital kitchen scales. The police allege that the respondent has admitted that:
• he began growing cannabis for his own personal use;
•he then began to sell cannabis surplus to his requirements when a friend offered to buy an amount in excess of what the respondent uses;
•he produces one and three quarter pounds of cannabis per crop and uses six ounces for himself and that he sells the remainder to his friend for $2,400 per pound;
•he makes about $2,800 profit per crop;
•this is his third crop in the past 18 months and each crop takes about four months to mature;
•he uses the scales for weighing cannabis but the scales are also used for domestic purposes; and
•he has been selling cannabis because he is on a carer’s pension and he was trying to earn some extra money to support another person.
The respondent was arrested and charged the same day. The respondent is the registered proprietor of the house property at Mount Barker in which the cannabis was found.
An Application for a Restraining Order
On 21 January 2003, the Director of Public Prosecutions (“the DPP”) applied for a restraining order in respect of the respondent’s house property at Mount Barker prohibiting until further order any dealing with it. The application was made pursuant to s 15 of the Confiscation Act.
The dealings in the house property have not been satisfactorily proved. Neither the date when the property was purchased nor the purchase price has been proved. The existing Certificate of Title is contained in Register Book Volume 5128 Folio 255. It shows that the respondent is the only registered proprietor. The property is subject to a mortgage to Homestart Finance in the sum of $42,000. The mortgage was registered on 1 August 2002. The previous Certificate of Title was contained in Register Book Volume 4281 Folio 62. It appears that the registered proprietors were originally the respondent and a Ms K J Brazher. There was a mortgage registered on 28 June 1990 in their joint names in which State Bank of South Australia was mortgagee. The mortgage secured advances by the Bank to the respondent and Ms Brazher. It appears that the property was transferred to the respondent on 22 July 2002 as part of a partnership settlement.
The Application is Refused
The application was heard by a magistrate in the Adelaide Magistrates Court. The magistrate was satisfied that the house property was tainted property within the meaning of s 4 of the Confiscation Act. She reached that conclusion because the respondent did not contest the assertion in an affidavit filed on behalf of the DPP “that the property is tainted on the basis of being used in, or in connection with, the commission of a forfeiture offence”. It is common ground on this appeal that the house property is tainted property within the meaning of s 4 of the Act.
The magistrate was not willing to make a restraining order pursuant to s 15 of that Act. She concluded that there was no evidence to suggest that the respondent intended to dispose of the property. She believed that any risk of that kind could be safeguarded by an order made pursuant to s 26 of the Magistrates Court Act 1991. The magistrate then examined the prosecution case and the circumstances of the respondent. She said:
“ The prosecution case is a strong one, the defendant having admitted to growing cannabis and to selling that which was excess to his own requirements thereby having made approximately $8,400 in the previous 18 months. His admissions also include the fact that he is on a carer’s pension and some of the profits have been used to support another person. From the material before me it would appear that if the defendant was subsequently convicted of these offences and the property in question were liable to automatic forfeiture as a consequence of the imposition of a restraining order under section 15 of the Act, then his loss would be of the order of $100,000. It has been submitted that this would be disproportionate compared to any profit which he may have made.”
The magistrate made orders refusing the application for a restraining order pursuant to s 15 of the Act. Instead, she made an order pursuant to s 26 of the Magistrates Court Act prohibiting the respondent until further order from dealing with the house property.

From that decision, the Director of Public Prosecutions appeals by leave to this Court.
The Magistrate Errs
The magistrate erred in relying on s 26 of the Magistrates Court Act. Section 26 provides:
“       26.    (1)    A Court may make an order (a ‘restraining order’) preventing or restricting dealing with property of a defendant to an action if—
(a)    the action appears to have been brought on reasonable grounds; and
(b)    the property may be required to satisfy a judgment that has been, or may be, given in the action; and
(c)    there is a substantial risk that the defendant will dispose of the property before judgment is given, or before it can be enforced.
(2)    A restraining order must be served as directed by the Court.
(3)    A person who deals with property subject to a restraining order except as permitted by the order commits a contempt of Court.
(4)    The Court may vary or revoke a restraining order at any time.
(5)    If it appears to the Court that grounds for making a restraining order exist but the Court requires further evidence to identify property in relation to which the order could be effectively made, the Court may summons the defendant, or issue a warrant to have the defendant arrested and brought before the Court, for examination on that subject.”
It is apparent from the terms of s 26 that it is intended that a restraining order may only be made where it is necessary to preserve the property of a defendant to an existing action so that the property will be available to satisfy a judgment given in that action. In other words, s 26 invests the court with jurisdiction to make orders ancillary to the prosecution of the action so that property is preserved pending the hearing of the action. It might be added that s 26 provides jurisdiction to make an order in the nature of a Mareva injunction. The Magistrates Court has no inherent jurisdiction to order injunctions, least of all Mareva injunctions. On its terms, s 26 is not capable of authorising a restraining order where that order is not ancillary to relief claimed in an action but is the principal relief sought by the applicant. There was no action pending in the Magistrates Court. Instead, all that was before the court was an application for a restraining order. It either succeeded or failed on its merits. For these reasons, the magistrate erred in relying on s 26.
Section 25 of the Magistrates Court Act invests the Magistrates Court with jurisdiction to order injunctions to preserve the subject matter of an action until the questions arising in the action have been finally determined. This power, too, is intended to enable the court to make orders ancillary to an action in that court and, like s 26, cannot apply where the DPP seeks a restraining order of this kind.
That conclusion is sufficient to dispose of this appeal. However, although the notice of appeal does not state the orders sought by the DPP, it is implicit in the submissions made by Mr Hinton on behalf of the DPP that, if the court allows the appeal, it should make a restraining order under s 15 of the Confiscation Act. It is, therefore, necessary to deal with the other two grounds of appeal.
The Purpose of Restraining Orders
The first was that the magistrate had erred in the exercise of her discretion in that she had acted on an incorrect principle. In her remarks, the magistrate said:
“I bear in mind that the object of a restraining order is to preserve the status quo and in so doing to prevent anticipatory disposal by persons charged with the relevant offences.”
The preservation of the status quo is certainly one of the purposes of a restraining order, if not its primary purpose. However, it has other purposes. One of those purposes is to protect the property against the claims of unsecured creditors of the person against whom the order has been made. That protection is provided by s 58A and s 114A of the Bankruptcy Act 1966 (Cth). However, there was no evidence before the magistrate that there was any risk that the respondent might be declared bankrupt. Nor was there any evidence that he intended to sell the property. In these circumstances, the magistrate cannot be fairly criticised for not having regard to the protection of the respondent’s property against claims of unsecured creditors.
An Irrelevant Factor?
The next ground of appeal is that the magistrate took into account an irrelevant factor, namely, the operation of those provisions of the Confiscation Act which effect an automatic forfeiture if a restraining order has been made and the respondent is convicted of the offences with which he is charged.
If a restraining order had been made pursuant to s 15 in respect of the house property and if the respondent is convicted of a serious drug offence, the restraining order will, by virtue of s 15(5) of the Act, be automatically converted into a forfeiture order for the forfeiture of the house property. That automatic forfeiture occurs six months after all rights of appeal are exhausted or six months after the restraining order is made, whichever is the later. See also Hepworth v Director of Public Prosecutions (SA) (2001) 79 SASR 480. The evidence in this case is insufficient to determine whether, in this case, there is any relevant exception.
This ground of appeal also bears upon the question whether this Court should make a restraining order.
The Scheme of the Act
In order to resolve these questions, it is necessary to examine generally the scheme of the Confiscation Act and, in particular, the operation and effect of s 15.
The Act prescribes a regime for confiscation of what it calls “criminal assets”. The expression “criminal assets” is not defined. It plainly refers to assets acquired in consequence of engaging in criminal activity. It also applies to assets used in connection with the commission of a forfeiture offence which, broadly speaking, is an indictable offence or a serious drug offence. There are other forfeiture offences listed in the definition of that term in s 3 of the Act. For present purposes, it is sufficient to note that forfeiture offences are indictable offences and serious drug offences.
A “serious drug offence” is defined by s 3 to mean “an offence involving trade in a drug or the production, manufacture or preparation of a drug for trade”. It is common ground that the conduct in which the respondent is alleged to have engaged constitutes a serious drug offence.
A court may order the forfeiture of property pursuant to three provisions of the Confiscation Act, s 8, s 9 and s 10. Section 8 invests the court with a discretion to order forfeiture of tainted property. It provides:
“A court may, on application by the Director of Public Prosecutions, order the forfeiture of tainted property.”
It will have been noticed that the court is invested with a discretion whether or not to order forfeiture. The expression “tainted property” is defined in s 4 in these terms:
“4.   (1)    Property is tainted property if the property—
(a)    is acquired for the purpose of committing a forfeiture offence; or
(b)    is used in, or in connection with, the commission of a forfeiture offence; or
(c)    is the proceeds of a forfeiture offence.
(1a)If tainted property is converted (by sale, exchange or in some other way) into other property, the other property is also tainted.
(2)If a person acquires title to tainted property in good faith and for valuable consideration, the property ceases to be tainted property.
(3)All property of a party to the commission of a serious drug offence is presumed to be tainted.
(4)    However—
(a)    property is excluded from the ambit of the presumption if it is established, on the balance of probabilities, that it was acquired by the party more than 6 years before the commission of the offence on which the proceedings under this Act are based; and
(b)    the presumption may be rebutted, insofar as it relates to a particular item of property, by establishing, on the balance of probabilities, that the property is not tainted.”
Plainly, s 4 depends for its operation on a person being convicted of a forfeiture offence.
Section 9 invests the court with a discretion to order forfeiture of benefits received from the commission of a forfeiture offence. Section 10 of the Act extends the operation of s 9 to those cases where the defendant has made a profit from the criminal activity. It provides that the court must make an appropriate forfeiture order if that is necessary to prevent the defendant from retaining the profits of criminal activity. Neither s 9 nor s 10 is relevant to the issues in this appeal. I refer to them only for the purpose of noting the kinds of forfeiture order which may be made.
In order to prevent disposition of assets before a forfeiture order is made, s 15 of the Act invests the court with power to make orders which are called “restraining orders”. Restraining orders prohibit any dealing with the property, the subject of the order. They may be made only in respect of property which is liable to forfeiture, that is to say, property which falls within the terms of s 5 of the Act which provides:
“5.    Property is to be regarded as liable to forfeiture—
(a)    if the property is tainted property; or
(b)    if—
(i)a forfeiture offence has been committed or there are reasonable grounds to suspect the commission of a forfeiture offence; and
(ii)there are reasonable grounds to suppose that the property may be required to satisfy a present or future forfeiture order.”
The respondent’s house property is liable to forfeiture because there are reasonable grounds to suspect the commission of a serious drug offence and there are reasonable grounds to suppose that his house property may be required to satisfy a future forfeiture order in that it might constitute tainted property. Although it is common ground that the property is tainted property, I believe it is preferable to proceed on the former ground.
Some Aspects of Restraining Orders
It is necessary to note some aspects of a restraining order. It is, therefore, necessary to set out the whole of the terms of s 15.
“15. (1)    If a court is satisfied, on application by the Director of Public Prosecutions, that there are reasonable grounds to suspect that property may be liable to forfeiture, the court may make a restraining order prohibiting, subject to the exceptions (if any) stated in the order, any dealing with the property.
(2)An application for a restraining order may be made ex parte but, if the court makes a restraining order on an ex parte application, the court must allow the owner of the property a reasonable opportunity to be heard on the question whether the order should continue in force and, if after hearing the owner, the court is not satisfied there is good reason for the order to continue in force, the order must be revoked.
(3)    A restraining order may be varied or revoked at any time.
(4)    A restraining order lapses if—
(a)    an interval of inactivity follows the making of the order; or
(b)    proceedings for the forfeiture offence in relation to which the restraining order was made result in an acquittal; or
(c)    an application for a forfeiture order is decided.
(5)However, the following special provisions apply where the forfeiture offence or the suspected forfeiture offence in relation to which the restraining order is made is a serious drug offence:
(a)    the Director of Public Prosecutions must take reasonable care to ensure that the offender (or alleged offender) and all persons who may have an interest in the property are given notice of the order and of the implications of this subsection;
(b)    the order cannot (subject to the following exceptions) be revoked or varied so that it ceases to apply to property within its ambit;
(c)    the order does not lapse because of an interval of inactivity following the conviction of the offender for a serious drug offence;
(d)    if the offender is convicted of the serious drug offence, then 6 months after all rights of appeal are exhausted or expire or 6 months after the order is made (whichever is the later) the order is automatically converted into a forfeiture order for the forfeiture of all the property to which it then applies.
Exceptions—
1.     The court may authorise the application of property towards the payment of legal costs in accordance with this Act.
2.     The court may revoke or vary the order so that it ceases to apply to property if the owner of the property satisfies the court, on an application made before the conversion of the order into a forfeiture order, that the owner acquired the property more than 6 years before the commission of the relevant forfeiture offence and the property is not tainted.
3.     The court may revoke or vary the order to protect the interests of a person who satisfies the court, on an application made before the conversion of the order into a forfeiture order, that the person has acquired an interest in the property to which the order relates in good faith and for valuable consideration.
4.     The court may order the payment of compensation out of the Victims of Crime Fund (not exceeding the value of the forfeited property) in favour of a person who satisfies the court, on an application made after the conversion of the order into a forfeiture order, that the person had acquired an interest in the forfeited property in good faith and for valuable consideration but did not receive notice of the order before the forfeiture took effect or not in time to apply for protection of the relevant interest before the forfeiture took effect.
(6)    In this section—
‘interval of inactivity’ means one month or a longer period, not exceeding 2 months, determined, on application by the Director of Public Prosecutions, by the court during the whole of which there are no relevant proceedings before a court;
‘relevant proceedings’ means—
(a)proceedings in which a person is charged with the relevant forfeiture offence or appellate proceedings arising out of such proceedings; or
(b)proceedings for a forfeiture order.” (Footnotes omitted.)
A Discretionary Remedy
First, it will be noted that s 15(1) invests the court with a discretion. There is no obligation on the court to make a restraining order. There are several aspects of s 15 which are relevant to the exercise of that discretion. For present purposes, it is sufficient to note those aspects which are relevant when a person is charged with a serious drug offence.
Automatic Forfeiture
The most significant consequence of a restraining order made pursuant to s 15 is that the order automatically converts to a forfeiture order for the forfeiture of all the property to which the restraining order applies if the offender is convicted of a serious drug offence. The automatic conversion occurs six months after all rights of appeal have been exhausted or six months after the restraining order has been made, whichever is the later. Applying s 15(5)(d) to the circumstances of this case, if a restraining order is made in respect of the respondent’s house property and if the respondent is convicted, the house property is automatically forfeited. Clearly, the consequences are quite draconian.
Section 15(5) provides a number of exceptions to the operation of s 15(5)(d). It is unnecessary to repeat them. It will be noticed that the exceptions in paras (2), (3) and (4) apply only if an application is made before the conversion of the order into a forfeiture order. If the application is not made before the conversion occurs, it is not possible to revoke or set aside the forfeiture order.
A Limit on the Power to Vary or Revoke
In the case of a person who is charged with a serious drug offence, there is another aspect of s 15 which may lead to hardship. Although s 15(3) provides that a restraining order may be varied or revoked at any time, by reason of s 15(5)(b), the restraining order cannot (subject to the listed exceptions) be revoked or varied so that it ceases to apply to the property, the subject of the order. Thus, if a restraining order is made against a person charged with a serious drug offence, the defendant cannot vary or revoke that order unless one of the listed exceptions is satisfied. In other words, unless one of the listed exceptions applies, the power to vary or revoke the order is of no utility.
This feature of s 15 might also be of consequence in the case of orders made ex parte. Section 15(2) provides that, if a restraining order is made on an ex parte application, the court must allow the owner of the property a reasonable opportunity of being heard on the question whether the order should continue in force and, if there is no good reason for the order, the court must revoke it. The operation of s 15(2) may, however, be qualified by s 15(5)(b). Thus, if an order is made ex parte, it might not be possible to vary or revoke the order so that it does not apply to the property if the suspected forfeiture offence is a serious drug offence. It might be arguable that s 15(2) is a special provision which is not affected by the more general operation of s 15(5). I do not wish to express a final view on this question. It was not argued and is unnecessary for the disposition of this appeal. It is sufficient to note that the consequences of ex parte orders may be serious for the owner of the property where a person is charged with a serious drug offence.
Property of Third Parties
In addition to those aspects of the operation of s 15, the Confiscation Act has other consequences which might need to be considered when determining whether to make a restraining order when the forfeiture offence or suspected forfeiture offence is a serious drug offence.
One such factor is that the restraining order may be made in respect of property owned by a person other than the person charged with a serious drug offence. This is a consequence of the combined operation of s 4, s 5 and s 15. Section 15(1) provides that a restraining order may be made in respect of property that may be liable to forfeiture. By reason of s 5, property is liable to forfeiture if there are reasonable grounds to suspect the commission of a serious drug offence and there are reasonable grounds to suppose that the property may be required to satisfy a present or future forfeiture order. Property may be required to satisfy a present or future forfeiture order if it is tainted property by reason of the fact that it was used in connection with the commission of a forfeiture offence: see s 4 and s 5 of the Act. The fact that the property of persons other than the person charged with the serious drug offence may be the subject of a restraining order has a real potential to cause hardship if the person charged is convicted and automatic forfeiture occurs. It is possible to imagine a number of instances. Two will suffice. First, the defendant might have used a small corner of a large farming property, without the knowledge of the owner, to grow marijuana. Secondly, a landlord might have let premises to tenants who, unknown to him, used the premises to grow a drug for sale or for the manufacture of a drug for sale. In each case, if a restraining order was made and the defendant convicted, there is a manifest potential for injustice if automatic forfeiture occurs. In each case, the owner of the property is entirely unaware of the criminal activity. In those circumstances, there is no basis at all for forfeiture. It is not sufficient to point to the list of exceptions in s 15. Only exceptions 2 and 3 are relevant. Exception 2 does not assist because the property is tainted: Hepworthv Director of Public Prosecutions (SA) (supra). Exception 3 does not assist if the property was acquired as a result of gift inter vivos or by will.
The Gravity of the Offending
Another relevant factor is the seriousness of the offending. Not all so-called serious drug offences will, in fact, involve grave criminal conduct. The definition of “serious drug offence” is wide enough to include relatively minor offending of the kind alleged to have been committed by the respondent as well as serious criminal conduct involving, say, a substantial commercial undertaking in the production and manufacture or preparation of a drug for trade. The gravity of the offending is a matter which will be relevant to the exercise of the discretion whether to make a restraining order in respect of real estate. Where the offending is of a minor nature and the defendant has gained only a small profit out of the offending which constituted the serious drug offence, a restraining order in respect of the defendant’s house property would result in automatic forfeiture of that property. It is not unlikely that the relevant house property would be worth some hundreds of thousands of dollars. An automatic forfeiture would result in a penalty wholly disproportionate to the criminality of the offending.
Unequal Punishment

Another relevant factor is the potential for unequal punishment if two persons are charged with serious drug offences. If a restraining order applies to the property of one but not to the property of the other defendant, automatic forfeiture on their conviction could result in one being more heavily punished than the other.
Restraining Orders Should Not Be Routinely Made
When considering the potential for automatic forfeiture where the forfeiture offence is a serious drug offence, all of these factors are relevant. Automatic forfeiture has the capacity to work real hardship. Once the forfeiture order takes effect, it cannot be undone. Thus, when considering whether to make a restraining order, the judge or magistrate will look beyond the making of the restraining order to the potential consequences of an automatic forfeiture. The factors identified above point to the need to exercise real care in the exercise of that discretion. Because the consequences might be quite draconian, a restraining order under s 15 should not be routinely made. The need for the order should be clearly demonstrated.
This review, already too long, is not intended to be an exhaustive list of factors which will bear upon the exercise of the discretion under s 15. Instead, its purpose is limited to demonstrating how automatic forfeiture may lead to injustice and hardship. Some other factors relevant to the exercise of the discretion were identified in Director of Public Prosecutions v Tregenza (2002) 84 SASR 346. Plainly, there will be others. Each case will have to be determined on its own facts and circumstances. The magistrate did not have regard to an irrelevant factor when she noted that one possible consequence of a restraining order was automatic conversion to a forfeiture order if the respondent was convicted of the offences with which he has been charged.
In the course of her submissions for the respondent, Ms Powell QC, submitted that the terms of s 15(5)(d) might be contrary to the principle expressed by McHugh J in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. It is unnecessary to consider that issue. In this case, the court is concerned only with the question whether a restraining order should be made. While it is appropriate to have regard to the possible consequences of the making of a restraining order and so to consider the effect of s 15(5)(d), it is unnecessary to determine whether that section is constitutionally valid.
Should a Restraining Order be Made?
As already mentioned, it was implicit in Mr Hinton’s submissions on behalf of the DPP that, if this Court allows the appeal, it should make a restraining order. The appeal must be allowed because the magistrate erred in relying on s 26 of the Magistrates Court Act. However, for the reasons which follow, I do not think that this Court should make a restraining order.
It appears that the respondent has made a profit of about $8,400 over the past three years from selling cannabis grown by him. Some of the profits have been used to support another person. His house is worth some $100,000. He has an equity in it of the order of $60,000. I share the view of the magistrate that, if a restraining order is made and the respondent is later convicted of the serious drug offences with which he is charged, the automatic forfeiture of his house property would be a penalty wholly disproportionate to the nature of his offending. I acknowledge that this legislation is intended to operate harshly. It is part of the scheme by which the Parliament seeks to prevent drug offences. However, there is nothing which shows that the Act is intended to result in penalties wholly disproportionate to the circumstances of the offender and of the offending. Had that been intended, the Parliament would not have invested the court with a discretion as it has done in s 15(1).
Law Reform
This appeal highlights what I believe to be a serious deficiency of this Act in relation to the interaction between restraining orders and forfeiture orders where a person is convicted of a serious drug offence. It is plainly necessary and appropriate for a court to be able to make a restraining order to preserve property liable to forfeiture pending the disposition of the serious drug offence with which a person has been charged. There can be no question about the utility of a restraining order in those circumstances. It fulfils a like purpose to an interim injunction. However, it is inappropriate for s 15(5)(d) to provide for automatic forfeiture in the manner there prescribed. The exceptions are not sufficiently broad to embrace the number of factors which might cause a court not to make a forfeiture order. The Crimes (Confiscation of Profits) Act 1986, the statutory predecessor of this Act, provided in s 6 for an interim order, which the Act called a “sequestration order”, but did not provide for automatic forfeiture. The court had a discretion both when considering whether to make a sequestration order and when considering whether to make a forfeiture order: see Attorney-General v Myer (1989) 51 SASR 234 and in Taylor v Attorney-General for the State of South Australia (1991) 55 SASR 462. That regime which invested a court with a discretion at both stages operated satisfactorily. The present regime will have the tendency to cause courts to consider whether it is appropriate to order forfeiture at the time when they are considering whether to make a restraining order. The existence of automatic forfeiture and the interests of justice dictate such a course. That is plainly undesirable. It is far more satisfactory to make a restraining order to preserve the property pending the hearing of the charges and defer the question whether to make a forfeiture order until after it is know whether the person charged has been convicted. For the reasons already given, there should be a discretion whether to order forfeiture even in the case of serious drug offences. I respectfully suggest that it is appropriate for the Parliament to consider amending the legislation to repeal the provisions relating to automatic forfeiture and, as with the former legislation, to invest the court with a discretion both when considering whether to make a restraining order and when considering to make a forfeiture order.
Conclusion
For these reasons, I would allow the appeal but would not make a restraining order.
GRAY J I agree with the reasons of Mullighan J and with the order he proposes.

[2003] SASC 340

9 October 2003