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In addition to being to able to order fines and imprisonment, courts can order the forfeiture of property involved in offences under the Criminal Assets Confiscation Act 2005 (the Act). This is known as a forfeiture order. A “forfeiture order” is an order of a court for the forfeiture of property that is determined to be tainted property.
Tainted property is broadly defined as property used in, or in connection with, the commission of an offence, or the proceeds of the offence. The concept extends to any property that was derived or realised, directly or indirectly, from the commission of an offence. One consequence of forfeiture is that it may cause the burden of the loss to fall on persons who have no connection with the crime except that it was their property that was used in its commission.
Our asset confiscation lawyers are here to protect your property and make sure that your loved ones do not suffer hardship.
What can be taken?
The powers conferred by the Act are sweeping and broad. You may lose cash, motor vehicles, jewellery, commercial and residential real estate, and even white goods. Confiscation may also occur if assets are held in the name of a related or unrelated party if the Crown proves the asset was purchased with proceeds of crime or related to particular offending. This is why working with asset confiscation lawyers in Adelaide is important. We help you keep your family home or car if it would cause hardship to innocent people. We can even and ask the Court to allow you to access bank accounts to pay for legal fees.
How does the court decide what to take?
The Act allows a court to consider the use that property is ordinarily made for, or was intended to be made. This is because the law recognises that forfeitable property can be used for legal and illegal purposes. For example, if a house is mainly used to grow marijuana, it is more likely to be forfeited than if it was used as a primary place of residence on which only a few plants were grown.
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FORFEITURE ORDERS CAN BE AUTOMATIC
Forfeiture of property may also occur as an automatic consequence of conviction. The person convicted and any other person who claims an interest in the property may appear and present evidence at the hearing of the application. Our experienced asset confiscation lawyers will work with you and your family to make sure your property is protected from forfeiture.
THE COURT CAN ALSO RESTRAIN YOUR ASSETS
You don’t need to be convicted of an offence before your assets are frozen. The court has the power to prevent any sale or transfer of property which may be possibly be forfeited until the question of forfeiture is decided. This is known as a restraining order. If you try to dispose of any property subject to a restraining order, you commit an offence and face a maximum fine of $20,000 or four years imprisonment.
If you are subsequently convicted of a serious offence which is still in force six months from the day of conviction, the property is automatically forfeited to the State. If you wish to prevent this, we will obtain and seek a declaration that the property was not tainted. This must be done within six months of the day which the property was forfeited.. Our asset confiscation lawyers have successfully challenged many asset restraining orders. We are here to protect your innocent family from draconian hardship. All you need to do is book a free no obligation consultation.
CAN I GET MY PROPERTY BACK?
Although the Crown may dispose (sell / destroy) of the property, the law recognises that a forfeiture order is based on a previous conviction that could be overturned on appeal. Therefore, forfeited property must not, except with the permission of the court, be disposed of before the time for appeal against both the conviction and order has expired. Therefore, working with an asset confiscation lawyer is important.
FORFEITURE ORDERS FOR PRESCRIBED DRUG OFFENCES
The Court also has powers to seek forfeiture and restraining orders for the property of prescribed drug offenders. A prescribed drug offender is someone who is convicted of a serious drug offence and has at least two previous convictions for prescribed drug offences in the last ten years. A serious drug offence includes:
1 – Trafficking drugs
2 – Manufacturing a commercial quantity of drugs
Upon conviction, all property owned by a prescribed drug offender is forfeited to the Crown. In certain circumstances, we can ask the Court to have certain property excluded from forfeiture. For example, if you cooperated with law enforcement and the cooperation relates directly to a serious and organised crime offence that has been committed or may be committed in the future.
HOW ARE FORFEITURE APPLICATIONS MADE?
Applications are usually made by the Director of Public Prosecutions. If the application is made in Court, the Commissioner of Police is usually empowered to apply for a forfeiture order. In some cases, specialist law enforcement agencies may be authorised to make applications as well.
WHAT HAPPENS IF MY PROPERTY IS FORFEITED?
Once a forfeiture order is made, the property belongs to the Crown. This order entitles the State to take possession of the property and prevails over your rights, and those of anybody else with an interest in the property.
APPEALING A FORFEITURE ORDER
We can help you appeal against a forfeiture order if you have an interest in the property. This applies to individuals who are convicted of an offence, or a third party who is not involved in the offence. On an appeal against a forfeiture order, the order may be confirmed, removed, changed, or the matter may be remitted for hearing to the Court that made the order.
- We send you a tailored fixed fee agreement.
- Choose the service and fixed fee that suits you
- Sign the agreement
- Pay the agreed fixed fee
- Work begins on your matter immediately
- Receive confirmation when each checkpoint of your fixed fee agreement is reached.
- Once your matter has concluded and you are satisfied we will close your file.
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