Director of Public Prosecutions v Alexander

The appeal by the Director of Public Prosecutions against Alexander involves the interpretation and application of the Crimes (Serious Drug Offences) Act 2014 in the context of restraining and forfeiture orders. The case was heard in the Supreme Court of South Australia, where the appellant challenged the refusal of the primary judge to make a restraining order under section 15(5)(d) of the Act, which mandates automatic forfeiture of property associated with serious drug offences.

The central legal issue in this appeal was whether the mandatory forfeiture provision under section 15(5)(d) of the Act precludes the court from making a restraining order to preserve property liable to forfeiture pending the resolution of the serious drug offence charges against the defendant. The court had to determine if the statutory requirement for automatic forfeiture, without judicial discretion, was compatible with the broader principles of justice and whether the legislature intended such automatic forfeiture in all cases.

The court held that while restraining orders are necessary and appropriate to preserve property in serious drug offence cases, the automatic forfeiture provision under section 15(5)(d) was flawed. The court believed that the exceptions listed in the Act were not broad enough to cover all circumstances that might warrant a court to refrain from ordering forfeiture. The court compared the current Act unfavourably to its predecessor, the Crimes (Confiscation of Profits) Act 1986, which allowed for a discretionary approach in both making restraining orders and forfeiture orders. The court found the automatic forfeiture mechanism in the current Act to be inappropriate and potentially unjust, leading to an undesirable situation where courts might prematurely consider forfeiture at the restraining order stage.

Consequently, the court allowed the appeal but did not make a restraining order. The appeal was allowed on the basis that the mandatory forfeiture provision should not be applied in a way that prevents the court from making a restraining order to preserve property. The court suggested that the legislature should amend the Act to provide for judicial discretion at both the restraining order and forfeiture stages, similar to the former legislation. The court concluded by agreeing with the reasoning and proposed order of Mullighan J.