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msi - speedoBy Erica Panagakos, Makinson & d’Apice, Sydney.

The decision of Bell v Police, (“Bell”) handed down by His Honour Chief Justice Kourakis in the Supreme Court in October 2012 may affect many South Australian drivers who have had their vehicles impounded under the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (‘the Act’).

Under the Act, the police may apply to a Court for the vehicle of a person convicted of certain, prescribed offences to be permanently forfeited to the State. The Act provides that upon hearing an application of this nature, Courts are compelled to make orders for permanent forfeiture, and the State may subsequently sell or destroy forfeited vehicles.

In the Bell case, which concerned a person convicted of alcohol-related offences, Chief Justice Kourakis set aside an order for permanent forfeiture, declaring the relevant section of the Act compelling Courts to make orders of this nature invalid and inconsistent with the principles of judicial integrity. In coming to his decision, Chief Justice Kourakis held that the relevant section of the Act does not give Courts any discretion to hear evidence from the person against whom an application of this nature is made and forces Courts to order permanent forfeiture (with very limited exemptions).

Furthermore, Chief Justice Kourakis held that by making orders for permanent forfeiture, the Court is imposing a penalty additional to the penalty already imposed in relation to the original offending. His Honour held that the relevant section of the Act is unconstitutional, as it interferes with the Courts’ unfettered discretion and impartiality by effectively giving police the power to remove permanently a person’s vehicle.

It is understood that the Chief Justice’s decision may be appealed; however the police will be seeking to adjourn all existing applications for permanent forfeiture in the interim. Whilst the police retain the power to impound and clamp vehicles as a result of certain offending, they have ceased making new applications for permanent forfeiture.

Subject to the outcome of any appeal of the Bell decision, compensation may be awarded to those against whom orders for permanent forfeiture have been made, or to those who have been ordered to pay clamping or impounding fees undersection 9 of the Act, which also compels Courts to make orders on application of the prosecution.

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