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Australia - South Australia


8 Determining the value of property and benefits

The following provisions apply when determining the value of any property or benefits for the purposes of this Part:

(a) the value of any property or benefit that has been disposed of, used, consumed or is for any other reason no longer available will be taken to be—

(i) the value of the property or benefit at the time it was acquired; or
(ii) the value of the property or benefit immediately before it was disposed of, used, consumed or otherwise ceased to be available,

 whichever is the higher;

(b) the value of any other property or benefit will be taken to be—

(i) the value of the property or benefit at the time it was acquired; or
(ii) the value of the property or benefit on the day that the application for an unexplained wealth order was made,

whichever is the higher.

9 Unexplained wealth orders

 (1) If the DPP reasonably suspects that a person has wealth that has not been lawfully acquired, the DPP may authorise the Crown Solicitor to make an application to the District Court under this section.

(2) If, on an application by the Crown Solicitor under this section, the Court finds that any components of a person's wealth specified in the application have not been lawfully acquired, the Court may make an order (an unexplained wealth order) that the person pay to the Crown a specified amount.

(3) If the Court makes findings as to a person's wealth as specified in , the Court should make an unexplained wealth order specifying an amount equal to the value of those components of the person's wealth that have not been lawfully acquired unless the Court determines that it would be manifestly unjust to make such an order (in which case the Court may reduce the amount payable or decline to make the order, as the Court thinks fit).

(4) The application—

(a) must specify with sufficient particularity the components of the person's wealth to which the application relates; and
(b) subject to subsection (6), must be served on the person and on any other persons that should, in the opinion of the Court, be served with the application.

(5) The Court may allow the Crown Solicitor to subsequently vary the components of the person's wealth specified in the application (and may, in such a case, make any consequential orders as to service of the application as so varied that the Court thinks fit).

(6) The Court may hear and determine an application in the absence of a party if—

(a) the Court is satisfied that the person cannot be found; or
(b) the person fails to appear after being given reasonable notice of the application.

 (7) For the purposes of this section, each component of a person's wealth specified in the application will be presumed not to have been lawfully acquired unless the person proves otherwise.

(8) Property or a benefit that has been acquired by a person on the payment of any consideration will only be taken to have been lawfully acquired by the person for the purposes of this Part if the consideration given for the property or benefit was lawfully acquired.

(9) Property or a benefit that has been acquired by a person as a prize or as the proceeds of any form of gaming will only be taken to have been lawfully acquired by the person for the purposes of this Part if any money or other item of value used by the person for the purposes of entering the prize draw or for the purposes of the gaming (as the case may be) was lawfully acquired.

(10) Property or a benefit that has been acquired by a person as a gift or on the distribution of the estate of a deceased person will only be taken to have been lawfully acquired for the purposes of this Part if the donor of the gift or the deceased person (as the case may be) lawfully acquired the property or benefit.

(11) If, in determining an application under this section relating to wealth of a person, the Court is satisfied—

(a) that it is not reasonably possible for the person to establish that a component of his or her wealth was lawfully acquired (due to the effluxion of time, the circumstances in which that component was acquired or any other reason); and
(b) that the person has acted in good faith,

the Court may determine that that component should be excluded from the application.

(12) The Court must not make an unexplained wealth order relating to—

(a) property that has been forfeited under any Act or law (whether of the State or another jurisdiction); or
(b) property or benefits in respect of which a pecuniary penalty order has been made against the person under the Criminal Assets Confiscation Act 2005; or
(c) literary proceeds in respect of which a literary proceeds order has been made against the person under the Criminal Assets Confiscation Act 2005; or
(d) property or benefits that have comprised (wholly or in part) the basis for a previous unexplained wealth order, or a corresponding unexplained wealth order. …

41 Proceedings under Act are civil proceedings

Except in relation to an offence under this Act—

(a) proceedings under this Act are civil proceedings; and
(b) any question of fact to be decided by a court on an application under this Act is to be decided on the balance of probabilities; and
(c) the rules of construction applicable only in relation to the criminal law do not apply in the interpretation of this Act; and
(d) the rules of evidence applicable in civil proceedings apply to proceedings under this Act.


Type: Civil Illicit Enrichment Laws

Last update on LEARN: Sunday 6 March 2022, 11:45