State of South Australia v Totani & Anor

The High Court of Australia considered an appeal by the State of South Australia against a decision of the Full Court of the Supreme Court of South Australia concerning the forfeiture of property under the *Criminal Assets Confiscation Act 1995* (SA). The appeal concerned the interpretation of provisions within the Act relating to the forfeiture of assets derived from or used in connection with serious criminal activity, specifically in circumstances where the accused had absconded and was not present at the forfeiture hearing.

The central legal issues before the High Court were whether the *Criminal Assets Confiscation Act 1995* (SA) permitted the forfeiture of assets when the person against whom the forfeiture proceedings were brought had absconded and was not present to defend their interests, and whether the Act provided adequate procedural safeguards to ensure a fair hearing in such circumstances. The Court also considered the constitutional validity of the forfeiture provisions, particularly in light of the implied constitutional guarantee of due process.

The High Court, by majority, held that the Act did not permit forfeiture in the absence of the accused if they had absconded, as this would infringe upon the implied constitutional guarantee of due process. The Court reasoned that a fundamental aspect of due process is the right to be heard, and that this right could not be abrogated by legislation that allowed for forfeiture without the accused having a meaningful opportunity to present their case. The majority distinguished this situation from cases where an accused voluntarily absents themselves from proceedings after having been given notice and an opportunity to attend. The Court emphasised that the legislative scheme contemplated the presence of the accused or their legal representative at forfeiture proceedings.

The High Court dismissed the appeal, upholding the decision of the Full Court of the Supreme Court of South Australia.