Prevention of Corruption Bill: deliberations

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Justice and Correctional Services

20 August 2002
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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
21 August 2002
PREVENTION OF CORRUPTION BILL: DELIBERATIONS

Chairperson: Adv J H de Lange (ANC)

Relevant documents

Prevention of Corruption Bill [B19-2002]
IDASA Opinion on Clause 19
Summary of submissions on Prevention of Corruption Bill 2002
Special Investigative Unit proposed amendment to Prevention of Corruption Bill
Draft Version of Clause 19 (see Appendix)
Explanatory Memorandum on the Bill (document awaited)
United States 2002 Anti-Corruption Legislation and Explanatory [email
info@pmg.org.za for these documents]
SALC 1991 Report on Bribery (Pages 1, 4-8 and 56; Definition of corruption)
Corruption Act (No 94 of 1992)
Comparative Corruption Legislation: Nigeria, Malaysia, Singapore, Hong Kong, Canada, Australia, India, USA, Germany, Lesotho and Kenya
[email
info@pmg.org.za for these documents]
Regulation of Interception of Communications Bill

SUMMARY

During the discussion on Clause 19 the Committee considered the IDASA opinion on the reverse onus provision, clarified the meaning and inclusion of "acquired corruptly" in that clause, and used Section 10 of the Hong King legislation as a loose basis for a revised draft.

The discussion on Clause 20 dealt with whether the general duty to disclose should be extended to everyone. It was also considered whether the entire list of verbs and their corresponding crimes contained in the clause should be included, or whether the clause should simply state "any contravention of this Act".

It was decides that Clause 23 will be reviewed once the punishment clause has been considered, and no substantial concerns were raised with Clauses 25 and 26.

Clause 24 raised concern with the need for Clause 22, as Clause 24 repeals the repeal of the common law crime of bribery. The proposed version of Section 269A and the competent verdict was considered.

The insertion of additional clauses was considered, and these included whether immunity and active and passive bribery should be accommodated in the Bill. The civil liability provisions proposed by the SIU were considered, especially the manner in which the proposal incorporates the fault requirement for both delictual and enrichment liability.

MINUTES
The Chair stated that, during this meeting, the Committee will discuss the Bill, the drafters will fix it up as well as they can and the first amended working draft of the Bill will then be made available to Members before their afternoon study group on 22 August 2002. On Friday 23 August 2002 the Committee will discuss and approve the Interception and Monitoring Bill, and any provisions that Members do not like would simply be amended in that meeting. The Interception and Monitoring Bill will be debated on 17 September 2002.

Chapter 2: Offences and Penalties
Clause 19: Possession or control of property corruptly acquired by public officer

The Chair referred Members to the document containing the opinion provided by IDASA on the reverse onus provision in Clause 19 (see document above).

Mr J Jeffrey (ANC) stated that the actual conclusion reached by IDASA is contained in the last four paragraphs of their document.

Mr S Swart (ACDP) contended that the reverse onus is not unknown in South African law, because it is employed in capital reconciliation in SARS matters. He was not certain whether it is statutorily enshrined.

The Chair stated that the crucial issue here is whether it is a common law offence. Clause 19 does make it an offence, but the first problem created here is that the phrase "acquired corruptly" in Subclause 1 is not specific enough. Clarity is requested regarding Subclauses 2 and 3.

Mr Johan de Lange, Drafter for the Department of Justice, responded that it deals with the situation where, for example, the property is registered in another's name but effectively remains in the control of the public officer.

The Chair stated that this would then cure the case of S v Manamela and Another 2000 (5) BCLR 491 (CC) because it only deals with one aspect of that judgment, and not the other. It is pleasing to note that the clause has at least been worded so that it falls within the Manamela case.

Mr de Lange suggested that it is not a satisfactory position but the latest judgment is the Singo case which deals with Section 172 of the CPA, where the person failed to attend court and was required to express the reason for the absence. The court put quite a substantial burden on the accused, and decided that once it has been proved that the person did not appear in court that person has to prove the reasons for failing to appear. The court elucidated the principle that there are certain facts that are known to the accused alone, and these cannot be expected to be proven by the State, even for a relatively small offence such as failure to appear in court.

The Chair stated that this does not clarify matters because in that case only subjective factors could explain the failure to appear, but the Bill has to create a mechanism to delve into the personal life of the person in question and put them on the defensive. The provision thus has to be much more careful. Clarity is requested on the proposal contained in Paragraph 9A in the document entitled "Summary of Submissions on prevention of Corruption Bill 2002" (see document above).

Mr de Lange replied that such a cautious approach has been adopted, because the original formulation contained the phrase "reasonable steps", yet this made it tougher to prove in court. It has to be remembered that Clause 19 only fixes an evidentiary burden once the State has proven a prima facie case against the corrupt public officer.

The Chair disagreed with Mr de Lange, and contended that this only applies to Subclause 2(a).

Mr de Lange stated that the State would then have to prove this.

The Chair suggested that this then simplifies matters for the State in trying to secure a conviction.

Mr de Lange disagreed because Subclause 2(a) has to be proven, and there has to be e mechanism in place like the performance of a thorough inquiry.

The Chair stated that the presumption then only forces the person into the witness box to explain where s/he obtained the property or resources from. The classical example here would be where the State is unable to make a proper case, and this presumption would then be used to "bail the State out".

Mr de Lange replied that Clause 19(1) was inserted as a result of a policy decision.

The Chair stated that Clause 19(1) is vaguely worded, primarily due to the phrase "acquired corruptly".

Mr Jeffrey requested the definition of the term "control" in Clause 19(2)(b). The word "acquired" is only mentioned in Clause 19(1).

The Chair stated that Clause 19(4)(b) does offer assistance here, and it has to be made to apply to everyone. The Chair stated that he really wants "to knock the syndicate leaders here", because if it is proven that Mr Staggie has made a false declaration to the Receiver of Revenue, and amounts of cash that are unaccounted for were them to be found under his mattress, this clause would be used to secure a conviction. It does therefore not only apply to the public service.

Mr de Lange is correct in suggesting that the phrase "acquired corruptly" be deleted from the provision, as it complicates the wording. Furthermore, Subclauses 2 and 3 have to be evaluated in terms of the Manamela judgment and it has to be ensured that the other tests are included in the provision as well. It has to be stated clearly in Clause 19(4)(b) that the public officer may have his/her legal representative present, should it be so desired.

Mr Jeffrey asked whether Clause 19(2) could still be relied on should the public officer resign from his/her position.

The Chair informed Mr Jeffrey that it would all change when it is changed to "every person", and Clause 19(2) would thus remain effective.

Mr de Lange referred Members to Section 10 of the Hong Kong legislation contained in the document on comparative legislation (see document above), which indicates that Hong Kong has created made it an offence to accept such property and has then detailed the evidentiary burden which would have to be discharged. Yet the big problem with this formulation is that once it has been proven that the officer has prima facie committed an offence, the presumption would kick in because it is part of the offence.

The Chair stated that this is a problem, and requested Mr de Lange to arrive at wording of Clause 19(1) that would make sense.

Mr de Lange replied that it would substantially assist the Assets Forfeiture Unit.

The Chair agreed, and suggested that the perfect case would be the syndicate leaders who are actually unemployed and declare their bankruptcy yet, as done by Mr Staggie, are able to buy mansions in Johannesburg and Durban.

Mr Jeffrey asked why the Asset Forfeiture Unit do not include such provisions in their enabling legislation, if they feel this strongly about the matter. This would allow the provisions to apply specifically to matters they deal with, instead of being dealt with in a more general fashion in the Bill.

Mr de Lange replied that this is part of the solution, but such provisions can be housed in this Bill as long as reference is made to "corruptly". Yet, should the Asset Forfeiture Unit decide to include "unlawfully", this would be a different matter.

The Chair suggested that this is a possibility, because it does not seem to fit into the scheme of things in the Bill, and it might need a new definition. This could be included at the end of the Bill, as was recently done with the issue of extra-territorial jurisdiction in the CPA Amendment Act. The Hong Kong Section 10 does contain better wording, but the presumption has to be separated from the crime.

Clause 19(4)(a) should be more strictly worded to include "special director, investigative director or provincial director".

Clause 20: Duty to report corrupt transactions
The Chair referred Members to amendment proposed by IDASA in Point A in paragraph 10 of the Summary of Submissions document (see document above), which seems to introduce a civil remedy here.

Mr de Lange stated that he fails to see the logic in this proposal.

The Chair turned to Point B in the same paragraph, and stated that this matter has already been discussed. The view offered by IDASA here is incorrect because this clause is dealing with a legal duty, and it cannot be allowed protection via the Protected Disclosures Act. He was not sure whether it could be protected under the Witness Protection Act.

Mr de Lange replied that the Witness Protection Act would be applicable.

The Chair stated that the issue here is whether the clause should be extended to a general duty to disclose corruption which he is in favour of, because corruption is one of, if not the most difficult crimes to prove. This is so because if neither party talks, it is nearly impossible to secure a conviction. It is not a problem to create this duty for public officials, and it is important to bring those public officials who are corrupt and steal large sums of money to book, and to find out why they have been given the "golden handshake" and have not been convicted. Thus duties to report should be created.

If this duty is not created the drafters have to look for words like "people in a position of trust", which would then impose a duty on them to disclose corruption. Clause 20(2) does deal with this in some respect. The phrase "or any other competent authority" has to be inserted after "police station", because most people will not report corruption to the SAPS because they know the police officials themselves are corrupt.

The Chair asked Mr de Lange how widely he read Clause 20(2).

Mr de Lange replied that it is a very comprehensive provision, but the problem is that it deals with trying to "obtain" a gratification, whereas Clause 20(1) deals with something else. Perhaps "public officer" should be substituted with "person", because the rest of the Bill does refer to "person".

The Chair suggested that if this is changed to "person", then it would cover those persons approached as well, and also attempts to do so. But Clause 20(1) would then read the same as Clause 12.

Mr de Lange replied that Clause 20(1) refers to anyone who can become involved in an attempt to corrupt transactions.

The Chair contended that both Clause 20(1) and (2) seem to deal with the taking of a gratification, the only difference being that each clause uses different verbs. Is there any difference, apart from the fact that Clause 20(1) deals specifically with a "public officer" and Clause 20(2) refers to any person.

Mr de Lange responded that Clause 20(2) refers to the "giver" of the gratification.

The Chair stated that this clause then essentially places a duty on the person intending to corrupt any person to report it, which is very useful. It is possible to impose this duty?

Dr J Delport (DP) suggested that this is not the proper interpretation of the clause, because Clause 20(1) deals with the situation in which the decent public officer is approached, and here the decent public officer is under a duty to report this. Yet Clause 20(2) deals with the situation in which a bad public official informs a decent member of the public of an opportunity to unlawfully benefit from a transaction, and in this case the decent member of the public has a duty to report this.

The Chair stated that Clause 20(2) does not stipulate "public officer".

Dr Delport replied that he was merely using a public officer as an example, as it could also include any person affiliated to that public officer.

The Chair stated that here one has to read this with the particular crime committed in every case and. It is not certain whether the clause should include all those verbs listed because, if so, each verb would refer to a specific and separate crime. Clauses 16 and 17 is wider and includes other verbs as well, and if Clause 20 contains the list of verbs then each verb would have to be evaluated with reference to a particular crime. It is thus proposed that the list of verbs should not be included here, but should rather be replaced with a neutral verb before the phrase "against any provision in this Chapter". This would make the provision clearer.

Mr de Lange replied that this is a difficult matter, because it usually means that the courts have already interpreted and defined each verb and the relevant crime attached thereto.

The Chair contended that the problem here is that the clause already provides that the person has a duty to report anything "in contravention of any provision of this Chapter", and it is thus not clear why the list of verbs has been inserted as well. Furthermore, none of the offences listed in the Bill use these verbs, although Clause 16 does contain some. Thus the list of verbs should not be included but rather "in contravention of any provision of this Chapter" because the offences are contained in Clause 16, and the provision should perhaps read "in contravention of Section 16".

The same applies to the list of verbs contained in Clause 20(1) as they are only again listed in Clause 16(1), and "lent" is only used on Clause 16(b). Thus all the other verbs refer to Clause 16, apart from "given", and is therefore a duty which is narrowly created under Clause 16.

The Bill should create duties with regard to the main crimes listed in it, and the simplest formulation would be to provide that "any person would be under a duty to report any contravention of this Act", as this would then include all those verbs and corresponding contraventions listed. This duty has already been imposed with regard to sporting events under Clause 14. Clause 20(1) and (2) should be reworded to read "any person becomes aware of any contravention of this Act, has the duty to report such fact, together with the name, of known, of the other person or persons involved at his or her nearest police station or any other competent authority". The problem which then arises is that it could be argued that this formulation is too broad, and it would then have to be stated that the Deputy NDPP may decide whether to institute prosecution or not.

Mr de Lange replied that Clause 19(4) contains a similar provision.

The Chair stated that this is precisely what he had in mind, and suggested that this would then accommodate the concerns raised by IDASA, as mentioned earlier.

Mr de Lange contended that the heading of Clause 20 is a problem, because the Bill does not contain a definition of "transactions".

The Chair informed Mr de Lange that it has been decided that the headings of the clauses will change, and this heading would perhaps be "Duty to report contraventions of this Act". The position adopted by the Nigerian legislation could be implemented here, so that the Bill defines "corruption" in the definitions section. This would then create a general term to deal with all types of crimes under the Bill and this would work well with creating a simple duty to disclose "any contravention of this Act", together with provision similar to Clause 19(4) and a different heading.

Mr Swart questioned the reason behind the IDASA submission referred to earlier that calls for "whistle-blowing" provisions here.

The Chair replied that IDASA seems to have been confused as the Protected Disclosure Act can clearly not apply here, because a duty to report corruption can clearly not fall under that Act.

Chapter 3: General Provisions
Clause 23: Jurisdiction of magistrates' courts
The Chair contended that this provision might have to be changed because it introduces the common law penalties and, should the life imprisonment be included, the provision might then have to clarify which courts can deal with life imprisonment. This clause then has to be evaluated after consideration of the punishment clause.

Clause 24: Repeal and amendment of laws
The Chair stated that, if the current Corruption Act is repealed, the Bill would also be repealing the repealing of bribery because that Act repeals the common law crime of bribery. If so, would Clause 22 still be necessary?

Mr de Lange replied that the Interpretation Act provides that a repeal of particular legislation does not revive anything dealt with in that legislation.

The Chair contended that it does not look like the inclusion of Clause 22 would make any difference, but requested Mr de Lange to consider this further.

Mr de Lange referred Members to Section 12(2) of the Interpretation Act, as brought to his attention by Ms Anthea Gordon: Legal Drafting Unit of the Department of Justice. It indicates that Clause 22 would have to be included.

The Chair requested clarity on the reference made to Section 269 of the CPA in Clause 24(2).

Mr de Lange replied that Section 269A deals with a competent verdict.

The Chair approved of the formulation and content of the proposed Section 269A, and asked whether the Bill has provided for any other matters contained in it to also be dealt with via a competent verdict. If so, should it not be enacted to deal with Clauses 2-5 and the situation where one specific crime might not have been proven but some other crime has, such as fraud?

Mr de Lange replied that he understood the concern raised by the Chair, but informed Members that if a charge is laid under Chapter 2 of the Bill then a competent verdict will be rendered, as contained in the remainder of the proposed Section 269A.

The Chair agreed, and approved of the clearly formulated provision. Clarity is requested regarding the omission of the crime of theft from Section 269A.

Mr de Lange replied that he would consider this.

Mr Swart requested that Members be provided with a copy of the common law definition of the crime of bribery.

The Chair replied that it has been made available to Members (see document above).

Clause 25: Interpretation of certain references
The Chair stated that this provision does not, strictly speaking, make sense.

Mr de Lange replied that it might not be useful to the actual Acts dealing with corruption, but it might be relevant in dealing with other statutes and other crimes.

The Chair contended that it allows someone who ahs committed a crime in terms of other legislation to remain liable under those Acts.

Mr de Lange replied that those Acts have to be read as referring to the Bill.

The Chair stated that this raises an interesting point with regard to the duty to disclose under Clause 20, but contended that it cannot be made to operate retrospectively. Perhaps Clause 19 could be made retrospective.

Clause 26: Short title
The Chair noted that no problems were raised with this clause.

Additional clauses to be inserted
The Chair then turned to consider the proposed additional clauses regarding punishment to be inserted in the Bill, and stated that those dealing with the minimum sentencing provisions should also be included here, so that all the penalties are contained in one clause. A possible additional penalty to be imposed here is blacklisting. It has been contended that the fines should be five times the amount involved, if there is an option between imprisonment or a fine, or where a fine alone is imposed. Such a punishment clause has to be drafted.

Ms S Camerer (NNP) contended that a punitive damages-type fine such as "five times the amount of the option" must be linked to the statute.

The Chair replied that this is done later in the Bill, and the as "five times the amount of the option" fine replaces the older legislation. Yet where both a sentence and a fine are imposed, then that Act remains in place. The penalty clause would thus first outline the usual sentence and, if on a finding on the jurisdictional facts allow, it should also stipulate the minimum sentence to be imposed.

Paragraph 11 in the Summary of Submissions document (see document above) requests that the property received via the corrupt act to the State should be forfeited to the State as of right. The problem here is that this cannot be legislated, but would develop practically.

Paragraph 12A of that document proposes the inclusion of "immunity", and Mr de Lange is requested to explain whether the Bill does provide for a person to turn State witness?

Mr de Lange replied that the position is that the agreement entered into with the State as a requirement for turning State witness, is that the information provided has to be a truthful account.

The Chair contended that they could always rely on the plea-bargaining legislation contained in the recent Amendment to the Criminal Procedure Act. A provision should also be inserted to ensure that the person hoping to turn State witness provides sufficient evidence on the act of corruption.

Furthermore, paragraph 12A requests that "active and passive bribery" should be included to deal with specific crimes of bribery involving public officers, and clarity is requested on the omission of the private sector from these provisions in the Bill. It does include the private sector but does not provide a logical reason for not specifically referring to the private sector. This new clause does not necessarily have to adopt the structure in paragraph 12A.

Both Mr de Lange and Ms Gordon replied that they could not think of any reason for excluding the private sector.

The Chair stated that it should thus be inserted in the Bill as a new substantive crime, possibly "bribery of private entities", and should take on the same for as Clauses 3 and 4 with regard to giving and receiving of gratifications, as the promises etc. are covered elsewhere in the Bill.

The concerns raised by Paragraph 12B have already been dealt with.

The Chair requested clarity on the proposed Clause 23 contained in Paragraph 12C.

Mr de Lange responded that the phrase "shall be" at the end of the second line in the proposed Clause 23(b) must be indented.

Mr Swart stated that the SIU wants to introduce a claim for statutory damages, even though the person would already be liable under the common law.

The Chair agreed with Mr Swart, and contended that the guilty party would not sued if the phrase "corruptly and unlawfully" remain in the proposed Clause 23. It should instead be replaced with "any person found guilty in terms of this Act" because, as suggested earlier by Ms Camerer, "unlawfully" could include any deed committed. Why has this phrase not been directly linked to the Act?

Secondly, an ordinary civil remedy would still be available, and need not be specifically included here. Thirdly, the proposed Clause 23(a) deals with delict and (b) deals with unjustified enrichment, with the latter being wider than the former. Fourthly, the inclusion of the phrase "irrespective of any fault" contained in the second-last line of the proposed Clause 23(b) is fine if it is attached to Subclause (b) dealing with enrichment, but the Chair was not sure about excluding this from a delictual inquiry in Subclause (a).

Mr Swart agreed with the Chair with regard to the last concern raised, and added that the fault requirement in delict relates to the culpa.

The Chair agreed, and added that that deals with the person's intention to act, which is an element of the delictual crime. Mr de Lange is requested to clarify this.

Mr de Lange responded that the use of "the person" towards the end of Subclause (b) is also a problem with regard to "irrespective of any fault", and should instead state 'any person" which should be placed at the beginning of the clause. Furthermore, "any person" cannot act "corruptly" without fault.

The Chair agreed, and stated that the phrase " irrespective of any fault" has to be placed before "shall be".

Mr de Lange stated that it is possible to act unlawfully without fault, but one cannot act corruptly without fault.

Mr Swart agreed, because "corruptly" goes further than culpa.

The Chair suggested that it might then be wrong to include enrichment and link it to the corrupt act because, if something is done "corruptly" to one, how can one then be enriched by it? It seems the SIU is attempting to create general provisions here.

Mr Swart stated that he is trying to get his mind around the intention of the SIU here, because legislation already exists to deal with this.

The Chair contended that the main thrust of the SIU demands is contained in their proposed Clauses 28 and 29, entitled "Presumptions", because they need these issues to be contained in a statutory provision in order to rely on the presumptions. What precisely does their proposed Clause 28 mean?

Mr Swart suggested that it is used to prove the quantum of the damages.

The Chair stated that it is not such a big problem, but requested clarity on the phrase "similar acts" in their proposed Clause 29.

Mr de Lange replied that he does not understand this either, nor does he understand the reason to include "corruptly and unlawfully" in that clause.

Mr Swart asked whether this should instead be placed after "omitted", at the end of the clause.

The Chair stated that this would assist Mr Hofmeyer of the SIU, but requested clarity on the enrichment in Clause 23(b) and its effects on Clause 29. Furthermore, he did not understand the need to apply to "a court of competent jurisdiction" in their proposed Clause 26, just to have the contract declared automatically void. The Chair also requested clarity on the precise meaning of Clause 27 proposed by the SIU. Mr de Lange and Ms Gordon are requested to contact the SIU and ascertain exactly what they want from these provisions.

Mr Jeffrey stated that the SIU does provide a limited explanation of its intentions here under points 1-6 of their submission (see document above).

The Chair replied that this shows that the SIU is trying to create a general provision. The Committee does not necessarily approve their proposals, but it has to be clarified further. The Committee cannot enact one provision dealing with the specific criminal offences, but then also have civil liability which has a wider ambit.

Mr Jeffrey asked whether the proposal contained in Paragraph 12D could be allowed.

The Chair replied that it would violate constitutional principles with regard to the humane treatment of persons who have committed a corrupt act, because they cannot be punished for the rest of their lives. Yet the proposal raised by the Catholic Bishop's Conference cannot be effected.

Paragraph 10A of the Summary of Submissions document deals with a concern raised by IDASA, and seems to be a sneaky attempt to introduce punitive damages to South African law. It is not a bad idea, and should be inserted in the clause dealing with civil liability, but the portion dealing with punitive damages must be removed. Punitive damages cannot be introduced here without first conducting the proper research. This proposal must be discussed with Mr Hofmeyer.

The Chair then requested Ms Gordon to check any important provisions in the United States legislation that should be included in the Bill, contained in the document entitled "American Anti-Corruption Legislation" (see document above). The S v Zuma and Others 1995 (4) BCLR 401(SA) judgment, the precursor to the Manamela case, which placed a complete ban on presumptions. The Singo case should also be distributed to Members, so that they may appreciate the total progression from Zuma to Singo. Mr Hofmeyer from the SIU also has to be consulted on the civil liability he proposes.

There were no further questions or comments and the meeting was adjourned.

Appendix
Clause 19 Possession of unexplained property

19.(1)(a) Any public officer is guilty of an offence if he or she—
(i) maintains a standard of living above that which is commensurate with; or
(ii) is in control of pecuniary resources or property disproportionate to,
his or her present or past lawful sources of income.
(b)
In the absence of evidence to the contrary which raises a reasonable doubt, proof that a public officer maintains a standard of living or is in control of pecuniary resources or property that is not commensurate with, or proportionate to, the remuneration to which such public officer is or was entitled, shall be sufficient evidence that he or she does not—
(i) maintain that standard of living; or
(ii) control that pecuniary resources or property,
from lawful sources of income.
(2) A prosecution for the offence referred to in subsection (1) may only be instituted—
(a)
by the National Director of Public Prosecutions or a member of the prosecuting authority authorised in writing by the National Director of Public Prosecutions; and
(b)
after the public officer concerned has been afforded an opportunity by the prosecuting authority to disclose his or her sources of income.
(3) Whenever it is proved that a person charged with an offence in terms of this Chapter—
(a)
is in possession of pecuniary resources or property disproportionate to his or her present or past lawful sources of income; or
(b)
that he or she had, at or about the time of the alleged offence, obtained an accretion to his or her pecuniary resources or property that is disproportionate to the remuneration to which such public officer is or was entitled,
that fact may be taken into consideration by the court as corroborating evidence that the accused person corruptly accepted or obtained or agreed to accept or attempted to obtain any gratification as an inducement or reward.
(4) Whenever a person is charged with an offence in terms of subsection (1), or for the purposes of the application of subsection (2), the court is satisfied that, having regard to the closeness of his or her relationship to the accused person and to other circumstances, there is reason to believe that any person was in possession of or was holding pecuniary resources or property in trust for or otherwise on behalf of the accused person or acquired such resources or property as a gift from the accused person, such circumstances shall, in the absence of evidence to the contrary which raises reasonable doubt, be sufficient evidence that such resources or property was in the possession or control of the accused person if the State can show that despite the taking of reasonable steps, it was not able with reasonable certainty to link the possession or holding of such resources or property to any lawful reason.

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