South Australian Current Acts South Australian Current Acts52E—Seized property and forfeiture
(1) Subject to this
section, seized property must be held pending proceedings for an offence
against this Act relating to the property.
(a) is a
controlled drug, controlled plant, controlled precursor or a poison; or
(b) is,
in the opinion of the Commissioner of Police, likely to constitute a danger if
stored pending proceedings for an offence against this Act relating to the
property; or
(c) is
prescribed equipment for the purposes of section 33LA that is, or may at
some stage have been, capable of being used for hydroponic cannabis
cultivation,
the Commissioner of Police may direct that the property be destroyed, whether
or not a person has been or is to be charged with an offence in relation to
it.
(3) Property referred
to in subsection (2) may be destroyed at the place at which it was seized
or at any other suitable place.
(4) If a charge is
laid, or is to be laid, for an offence in relation to property referred to in
subsection (2)(a) or (b)—
(a)
samples of the property that provide a true representation of the nature of
the property must be taken and kept for evidentiary purposes; and
(b) the
defendant is entitled to have a portion of the sample analysed by an analyst
(see section 53); and
(c) the
defendant must be given written notice of that entitlement.
(5) Possession of
samples taken under this section must remain at all times within the control
of the Commissioner of Police or his or her nominee.
(6) The regulations
may make provision relating to the taking of samples of seized property and
analysis of those samples.
(6a) If a person is
convicted of an offence in relation to property destroyed in accordance with
subsection (2), the court may order the convicted person to pay the
reasonable costs of destruction to the Commissioner of Police (including,
without limitation, the costs of the Commissioner of Police, or a person
acting at the direction of the Commissioner of Police, collecting,
transporting and dismantling the property as may reasonably be required for
the purposes of destroying the property) provided that such costs may not
exceed the maximum amount (if any) prescribed by the regulations.
(7) If the Magistrates
Court on application by an authorised officer, or any court hearing
proceedings under this Act, finds that seized property—
(a) was
the subject of an offence against this Act; or
(b)
consists of equipment, devices, substances, documents or records acquired,
used or intended for use for, or in connection with, the manufacture, or the
smoking, consumption or administration, of a controlled drug or the
cultivation of a controlled plant,
the court may, by order, forfeit the property to the Crown.
(8) Property that is
the subject of an order for forfeiture under this section may be sold,
destroyed or otherwise disposed of as the Commissioner of Police directs.
(9) Subject to
subsections (10) and (11), if seized property has not been forfeited to
the Crown in proceedings under this Act commenced within the prescribed period
after its seizure, a person from whose lawful possession the property was
seized, or a person with legal title to it, is entitled to recover from the
Commissioner of Police (if necessary, by action in a court of competent
jurisdiction) the property itself, or if it has been damaged or destroyed or
has deteriorated, compensation of an amount equal to its market value at the
time of its seizure.
(10)
Subsection (9) does not apply to property that has been destroyed under
subsection (2) if the property—
(a) was
the subject of an offence against this Act; or
(b)
consists of equipment, devices, substances, documents or records acquired,
used or intended for use for, or in connection with, the manufacture, or the
smoking, consumption or administration, of a controlled drug or the
cultivation of a controlled plant.
(11) Despite
subsection (9), a court hearing proceedings under that subsection in
relation to property that has not been destroyed under subsection (2)
may, if it thinks fit, make an order under subsection (7) for forfeiture
of the property to the Crown.
(12) Nothing in this
section affects the operation of the Criminal Assets Confiscation
Act 2005 .
(13) In this
section—
"prescribed period" means two years or such longer period as the Magistrates
Court may, on application by an authorised officer, allow;
"seized property" means anything—
(a)
seized under this Act; or
(b)
seized otherwise than under this Act that is evidence of an offence against
this Act.