South Australian Numbered Acts South Australian Numbered Acts7—Meaning of proceeds and instrument of an offence
(1) For the purposes
of this Act, the following rules apply when determining whether property is
proceeds or an instrument of an offence:
(a)
property is "proceeds" of an offence if it is—
(i)
wholly derived or realised, whether directly or
indirectly, from the commission of the offence; or
(ii)
partly derived or realised, whether directly or
indirectly, from the commission of the offence,
whether the property is situated within or outside the State;
(b)
property is an "instrument" of an offence if it is—
(i)
used in, or in connection with, the commission of an
offence; or
(ii)
intended to be used in, or in connection with, the
commission of an offence,
whether the property is situated within or outside the State;
(c)
property becomes proceeds of an offence or an instrument of an offence (as the
case requires) if it is—
(i)
wholly or partly derived or realised from the disposal
of, or other dealing with, proceeds of the offence or an instrument of the
offence; or
(ii)
wholly or partly acquired using proceeds of the offence
or an instrument of the offence,
including as a result of a previous application of this section;
(d)
property remains proceeds of an offence or an instrument of an offence even if
it is—
(i)
credited to an account; or
(ii)
disposed of or otherwise dealt with;
(e)
property can be proceeds of an offence or an instrument of an offence even if
no person has been convicted of the offence.
(2) Subject to this
section, property only ceases to be proceeds of an offence or an instrument of
an offence if—
(a) it
is acquired by a third party for sufficient consideration without the third
party knowing, and in circumstances that would not arouse a reasonable
suspicion, that the property was proceeds of an offence or an instrument of an
offence (as the case requires); or
(b) it
vests in a person from the distribution of the estate of a deceased person,
having been previously vested in a person from the distribution of the estate
of another deceased person while the property was still proceeds of an offence
or an instrument of an offence (as the case requires); or
(c) it
has been distributed in accordance with—
(i)
an order in proceedings under the Family Law Act 1975 of
the Commonwealth with respect to the property of the parties to a marriage or
either of them; or
(ii)
a financial agreement within the meaning of that Act,
and 6 years have elapsed since that distribution; or
(d) it
has been distributed in accordance with an order in proceedings under the De
Facto Relationships Act 1996 with respect to the division of property of
de facto partners and 6 years have elapsed since that distribution; or
(e) it
is acquired by a person as payment for reasonable legal expenses incurred in
connection with an application under this Act or defending a criminal charge;
or
(f) a
forfeiture order in respect of the property is satisfied; or
(g) a
recognised Australian restraining order or a recognised Australian forfeiture
order is satisfied in respect of the property; or
(h) it
is otherwise sold or disposed of under this Act; or
(i)
in any other circumstances specified in the regulations.
(3) If—
(a) a
person once owned property that was proceeds of an offence or an instrument of
an offence; and
(b) the
person ceased to be the owner of the property and (at that time or a later
time) the property stopped being proceeds of an offence or an instrument of
the offence under subsection (2) (other than under
subsection (2)(f)); and
(c) the
person acquires the property again,
then the property becomes proceeds of an offence or an instrument of the
offence again (as the case requires).
(4)
Subsection (2)(c) does not apply if, despite the distribution referred to
in that paragraph, the property is still subject to the effective control of a
person who—
(a) has
been convicted of; or
(b) has
been charged with, or who is proposed to be charged with; or
(c) has
committed, or is suspected of having committed,
the offence in question.