In Frohling v Police [2011] SASC 53 the South Australian Supreme Court considered vehicle impoundment under the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007.

Section 13 provides:

13 Court may decline to make order in certain circumstances

(1) A court that records a conviction to which this Part applies may decline to make an order under this Part if satisfied that—

(a) the making of the order would cause severe financial or physical hardship to a person

The Court considered similar property forfeiture legislation and cases, and concluded hardship alone was insufficient for the purposes of s 13; something more than ordinary hardship is required: at [18] – [20].

That also seems to be Victorian approach for confiscation provisions: Kozarov v DPP (2007) 47 MVR 498; DPP v Selcuk (2008) 181 A Crim R 245; DPP v Nikolaou (2008) 183 A Crim R 133.

I’m not certain that’s the proper approach under the current Road Safety Actimpoundment or forfeiture provision.

Cases concerning retention of DNA samples mostly conclude that something more than mere finding of guilt for a scheduled offence is required. That merely founds the application, and the applicant must point to something additional justifying why the order ought be made: R v Abebe (2000) 1 VR 429; and R v Lagona [1998] VSC 220.

Which approach should prevail for forfeiture or impoundment of vehicles? Is a finding of guilt for a relevant offence merely a necessary pre-condition for seeking impoundment, or does is prima facie establish the application unless the accused disturbs that result?

I reckon the former might be the case. More to the point, the drafters of the impoundment provisions seem to consider that might be the case, because the Road Safety Amendment (Hoon Driving) Act 2010 goes to great lengths to restrict a Court’s ability to decline an impoundment application. Arguably, that’s because the current Victorian legislation does not impose a default obligation on a Court to forfeit or impound cars.

Come the middle of the year, it might be a moot point, but for now, I think the point is arguable.