State of South Australia v Totani

The High Court of Australia considered the appeal by the State of South Australia against a decision of the Full Court of the Supreme Court of South Australia concerning the validity of certain forfeiture orders made under the *Criminal Assets Confiscation Act 1995* (SA). The dispute arose from applications made by the Commissioner of Police to forfeit assets allegedly derived from or used in connection with serious criminal offences committed by Mr Totani and his associates. The primary issue was whether the Commissioner's applications were validly made, given that the relevant criminal proceedings had concluded without a conviction.

The High Court was required to determine whether the *Criminal Assets Confiscation Act 1995* (SA) permitted the making of forfeiture orders in circumstances where the person alleged to have committed the serious criminal offence had not been convicted of that offence. Specifically, the Court considered the interpretation of provisions relating to "serious criminal offences" and the conditions precedent to the making of forfeiture orders, particularly in light of the absence of a conviction. The Court also examined the scope of the Commissioner's powers to apply for forfeiture orders under the Act.

The majority of the High Court held that the Act did not require a conviction for a serious criminal offence to be a prerequisite for the making of a forfeiture order. The Court reasoned that the statutory scheme contemplated that forfeiture could be sought and ordered based on the Commissioner's belief, supported by reasonable grounds, that a serious criminal offence had been committed, even if criminal proceedings had not resulted in a conviction. The Court emphasised the remedial nature of the Act, designed to deprive offenders of the proceeds of crime, and interpreted the relevant provisions to allow for forfeiture in such circumstances. The Court found that the Commissioner's applications were validly made and that the forfeiture orders were therefore properly made.

The appeal by the State of South Australia was allowed, and the orders of the Full Court of the Supreme Court of South Australia were set aside. The forfeiture orders made by the primary judge were reinstated.