Director of Public Prosecutions (SA) v Scalzi & Anor - [2024] SASC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Civil)
DIRECTOR OF PUBLIC PROSECUTIONS (SA) v SCALZI & ANOR
[2024] SASC 2
Judgment of the Honourable Justice Hughes
12 January 2024
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - FORFEITURE OR CONFISCATION - PROCEEDS OF CRIME, TAINTED PROPERTY OR CONFISCABLE PROPERTY
EVIDENCE - ADDUCING EVIDENCE - COURSE OF EVIDENCE - GENERALLY
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
This is an appeal by the Director of Public Prosecutions against a decision of a Magistrate to exclude the sum of $151,050 from moneys liable to forfeiture pursuant to the Criminal Assets Confiscation Act 2005 (SA) (“CACA”). The first respondent is Ms Scalzi. The second respondent is her husband, Mr Frrokaj.
On 15 January 2021, police attended a residential property at Fullarton and found 14 cannabis plants and equipment for drug cultivation. Mr Frrokaj, who was at the property, was charged with offences in relation to this. Police located $720 in Mr Frrokaj’s pants' pocket, and $7,450 in his van. Police then searched his marital home at Beulah Park and recovered $150,000 in $50 notes in a box in a wardrobe, and $1,050 in $50 notes in Ms Scalzi’s handbag. The Director filed an application for a restraining order in relation to these four sums supported by an affidavit of Detective Sergeant Talbot. Following the restraining order being made and Mr Frrokaj pleading guilty to three charged offences, Ms Scalzi filed an application for exclusion from forfeiture of the two sums which were recovered from her handbag and wardrobe on the basis that they were not the proceeds of criminal activity. She produced TAB tickets and gave evidence to the effect that the sums belonged to her and were derived from gambling. The Magistrate granted this application, excluding the sums from forfeiture.
On appeal, the Director contended that the Magistrate had erred by placing an evidentiary onus of proof on the Director; by not having regard to the Talbot affidavit in support of the application for the restraining order; and by granting the exclusion application when Ms Scalzi’s account was inherently unlikely or unbelievable.
Held:
1.The manner in which the proceeding before the Magistrate was conducted by the Director dictated that the Talbot affidavit was unavailable to be considered in the disposition of the exclusion application. It would be inappropriate to grant leave for the Director to tender it on appeal.
2.The Magistrate’s observation that there was no contradictory evidence put to Ms Scalzi cannot be read as placing an evidentiary burden on the Director. It is clearly a statement consistent with the orthodox process of evidence assessment.
3.The matters advanced by the Director as demonstrating the inherent implausibility of Ms Scalzi’s evidence were not incompatible with the truth of her account, and Ms Scalzi was denied the opportunity to comment upon them in the original proceedings. The Magistrate was satisfied to the requisite standard.
4.The Director has not established that the original proceedings miscarried in a manner that justifies the interference of this Court. The appeal is dismissed.

Criminal Assets Confiscation Act 2005 (SA) ss 24, 34, 47, 76, 220; Uniform Civil Rules 2020 (SA) rr 217, 236, referred to.
Chairman, National Crime Authority v Flack (1998) 86 FCR 16; Browne v Dunn (1893) 6 R 67; Ashby v Slipper (2014) 219 FCR 322; Commissioner of the Australian Federal Police v Zhang (Ruling No 1) [2015] VSC 390; Reid v Kerr (1974) 9 SASR 367, considered.

DIRECTOR OF PUBLIC PROSECUTIONS (SA) v SCALZI & ANOR
[2024] SASC 2
Magistrates Appeal: Civil

HUGHES J: This is an appeal by the Director of Public Prosecutions against a decision of a Magistrate to exclude the sum of $151,050 from moneys liable to forfeiture pursuant to the Criminal Assets Confiscation Act 2005 (SA) (“CACA”).
The first respondent is Ms Scalzi. The second respondent is her husband, Mr Frrokaj. The second respondent indicated prior to the appeal that he took no interest in the appeal and would abide the event. The second respondent was excused from appearing.
Background
On 15 January 2021, police went to a residential property at Fullarton. Mr Frrokaj, was at the premises and was approaching a white van parked in the front yard of the property at the time police arrived. Subsequent searches of Mr Frrokaj and the white van resulted in police locating $720 in cash in Mr Frrokaj’s pants' pocket, and $7,450 in $50 notes in cash in a tray under the driver's seat of the van. Inside that house, police found 14 cannabis plants and equipment for drug cultivation.
Police then searched the marital home of the first and second respondent, at Beulah Park. At the Beulah Park property, police found $150,000 cash in $50 notes in a box in a wardrobe, and $1,050 in $50 notes in the first respondent’s handbag.
Later that day, the second respondent was charged with the following offences said to have occurred on 15 January 2021 at Fullarton:
·Cultivating a controlled plant with intent to sell on 15 January 2021;
·Having possession of prescribed equipment without reasonable excuse on 15 January 2021; and
·Diverting electricity from a power system without proper authority.
The first and second respondent were jointly charged on the same information, at Beulah Park on 15 January 2021, with:
·Engaging, directly or indirectly, in a transaction involving tainted property, namely money of more than $30,000, in circumstances that they ought reasonably to have known that the property was tainted.[1]
[1] Appeal Book (hereafter “AB”), 80-81.
These charges initiated action MCCRM-21-338.
On 23 February 2021, the Director of Public Prosecutions applied pursuant to s 24 of the CACA for a restraining order against both Ms Scalzi and Mr Frrokaj in respect of the four sums of money described above. The proceedings were a minor civil action assigned case number CIV-21-001552. Restraining orders are governed by Part 3 of the CACA.
Section 24 provides:
24—Restraining orders
(1) A court must, on application by the DPP, make an order (a restraining order) that specified property must not be disposed of or otherwise dealt with by any person (except in the manner and circumstances, if any, specified in the order) if satisfied that—
(a)     a person has been convicted of, or has been charged with, a serious offence, or it is proposed that the person be charged with a serious offence; or
(b)     a person is suspected on reasonable grounds of having committed a serious offence; or
(c)     there are reasonable grounds to suspect that the property is the proceeds of, or is an instrument of, a serious offence (whether or not the identity of the person who committed the offence is known); or
(d)     there are reasonable grounds to suspect that a person has committed a serious offence and has derived literary proceeds in relation to the offence.
(2) An application for an order under this section must specify the property to which the application relates.
(3) The DPP may submit evidence in support of the application in the form of an affidavit.
(4) Subject to subsections (5) and (5a) and Division 3, the court must specify in the restraining order all property specified in the application for the order.
(5) The court may only specify property in a restraining order made under subsection (1)(a),(b) or (d) if satisfied that there are reasonable grounds to suspect that the property is—
(a)     in the case of a restraining order made under subsection (1)(a) or (b)—
(i) property of the suspect; or
(ii) property of another person (whether or not that other person's identity is known) that—
(A) is subject to the effective control of the suspect; or
(B) is proceeds of, or is an instrument of, the serious offence; or
(b)     in the case of a restraining order made under subsection (1)(d)—
(i) property of the suspect; or
(ii) property of another person (whether or not that other person's identity is known) that is subject to the effective control of the suspect.
(5a) The court may not specify property in a restraining order that is protected property of a person unless subsection (1)(c) applies to the property.
(6) The court must make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
(7) The court may specify that a restraining order covers property that is acquired by the suspect after the court makes the order.
(8) A restraining order may be made subject to conditions.
The Director’s application for a restraining order was supported by an affidavit of Detective Brevet Sergeant Ian Talbot sworn on 17 February 2021 (“the Talbot affidavit”).[2] The status and content of that affidavit is central to this appeal.
[2] AB 74-81.
In that affidavit, Detective Brevet Sergeant Talbot deposed to the circumstances of police officers having located the four sums of money described above, and the location and value of the cannabis plants and drug cultivation equipment. He also deposed to his belief that the sum of $150,000 found at the Beulah Park property was in the possession of Mr Frrokaj and Ms Scalzi,[3] and that the sum of $1,050 found in Ms Scalzi’s handbag was in her possession.[4]
[3] Affidavit of Detective Brevet Sergeant Ian Talbot sworn on 17 February 2021 at [15].
[4] Ibid, at [16].
A restraining order in respect of the four amounts of money was made by a Judicial Registrar on 9 April 2021 on CIV-21-001552.[5] No information was put before this Court as to what occurred at the hearing on that date. It was not put before this Court that the Talbot affidavit was tendered in whole or in part or at all. The Judicial Registrar’s order was not accompanied by reasons, in accordance with the usual practice.
[5] AB 82.
By application dated 23 April 2021 in the minor civil action, Mr Frrokaj applied for exclusion of all four sums from restraint and from automatic forfeiture, pursuant to ss 34, 36, 75 and 76 of the CACA.[6]
[6] AB 84.
Section 34 provides:
34—Court may exclude property from restraining order
(1) The court to which an application for a restraining order under section 24(1)(a) or (b) was made may, when the order is made or at a later time, exclude specified property from the order if—
(a)     an application is made under section 35 or 36; and
(b)     the court is satisfied that—
(i) the property is neither proceeds nor an instrument of unlawful activity; and
(ia) —
(A) if the suspect has been convicted of the serious offence to which the restraining order relates—
·the suspect has not become a prescribed drug offender as a result of the conviction; or
·the suspect has become a prescribed drug offender as a result of the conviction, but the property was not owned by or subject to the effective control of the suspect on the conviction day for that offence or is property that should not be subject to the restraining order in accordance with section 24(5a);
or
(B) if the suspect has not been convicted of the serious offence to which the restraining order relates—
·the suspect would not become a prescribed drug offender if convicted of the offence; or
·the suspect would become a prescribed drug offender if convicted of the offence, but the property is not owned by or subject to the effective control of the suspect or is property that should not be subject to the restraining order in accordance with section 24(5a); and
(ii) the owner's interest in the property was lawfully acquired; and
(iii) it would not be contrary to the public interest for the property to be excluded from the order.
(2) However—
(a)     the court must not exclude property from a restraining order unless satisfied that neither a pecuniary penalty order nor a literary proceeds order could be made against—
(i) the person who owns the property; or
(ii) if the property is not owned by the suspect but is subject to his or her effective control—the suspect; and
(b)     the court must not exclude property from a restraining order unless satisfied that the property could not be subject to an instrument substitution declaration if the suspect were convicted of the offence.
(3) Despite any other provision of this section, if a court has, in determining sentence in respect of a person's conviction of a serious offence, taken into account any forfeiture of property under this Act that might result from conviction for the offence, the property cannot be excluded from a restraining order relating to the offence on application made by the convicted person.
Section 76 provides:
76—Excluding property from forfeiture under this Division
(1) The court that made the restraining order referred to in section 74(1)(b) may make an order excluding particular property from forfeiture under this Division if—
(a)     a person has been convicted of a serious offence to which the restraining order relates; and
(ab) a person applies for the exclusion order; and
(ac)    the applicant owns the property; and
(b)     the property is covered by the restraining order (or is security given under section 38(a)(iii) for the exclusion of property that was covered by the restraining order or under section 44(a)(iii) for the revocation of the restraining order); and
(c)     the court is satisfied that—
(i) the property is not proceeds of unlawful activity; and
(ia) the person convicted of the serious offence to which the restraining order relates—
(A) is not, as a result of the conviction, a prescribed drug offender; or
(B) is, as a result of the conviction, a prescribed drug offender but the property is protected property of the person; and
(ii) the applicant's interest in the property was lawfully acquired; and
(iii) it would not be contrary to the public interest for the property to be excluded from such forfeiture.
(2) To avoid doubt, an order under this section cannot be made in relation to property if the property has already been forfeited under this Division.
(3) The applicant must give written notice to the DPP of both the application and the grounds on which the order is sought.
(4) The DPP—
(a)     may appear and adduce evidence at the hearing of the application; and
(b)     must give the applicant notice of any grounds on which it proposes to contest the application.
The supporting affidavit for that application was sworn by Mr Frrokaj’s lawyer and did not state grounds but sought to have the determination of the application for exclusion deferred until after the criminal proceedings resolved.[7] That event was relevant to whether the moneys were liable to forfeiture, as governed by Part 4 of the CACA.
[7] AB 87.
On 6 July 2022, the second respondent pleaded guilty to counts 1-3 of the information in the criminal proceedings and count 4 was not proceeded with.[8] Consequently, the first respondent ceased to face any criminal charge with respect to the events of 15 January 2021.
[8] AB 153.
It was not in dispute that one or more of the charges to which Mr Frrokaj had pleaded guilty was a “serious offence” for the purposes of the CACA. The effect of that, pursuant to s 47(1)(a) of the CACA, was that the Director was entitled to seek forfeiture of the sums upon satisfying the court that the property specified is proceeds of one or more of the serious offences committed.
Following his conviction, Mr Frrokaj did not pursue his application for exclusion of his interest in the four sums over which the restraining order operated.
The four sums of money were then made the subject of an exclusion from forfeiture application in CIV-21-001552 by the first respondent on 21 December 2022 in respect of her claimed interest in the moneys.[9] In her supporting affidavit affirmed on 30 March 2023, the first respondent limited the scope of her application to two of the restrained sums, being the sum of $1,050 located in her handbag and the sum of $150,000 located in the wardrobe.
[9] AB 93.
The exclusion application
A person seeking to have property excluded from restraint or forfeiture bears the onus of establishing that such an exclusion should be made, in accordance with s 220 of the CACA:
220—Onus and standard of proof
(1) The applicant in any proceedings under this Act bears the onus of proving the matters necessary to establish the grounds for making the order applied for.
(2) Subject to section 47(7) and section 98, 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.
In her affidavit of 30 March 2023, the first respondent made the following assertions:
·The first respondent started gambling in 2014;
·She used her own money to do so;
·She gambled mostly on poker machines at venues throughout the eastern suburbs;
·She started gambling on horse races through the TAB;
·She received TAB winnings in cash;
·She kept TAB tickets for some winning transactions;
·She banked some of the money but kept the rest in a box in her wardrobe;
·She used the money from time to time from the box in the wardrobe.
Exhibited to the 30 March 2023 affidavit were some winning TAB tickets. It was agreed that the amount of winnings represented by the tickets that were exhibited was $109,000.[10]
[10] TS 18 May 2023 in CIV-21-001552, p 8; AB 22.
A police officer, Detective Brevet Sergeant Jones, filed an affidavit affirmed on 15 April 2023 responding to these reasons but it was not tendered at the hearing before the Magistrate. It was included in the Appeal Book but it was agreed that it was not material before the Magistrate as counsel for the Director advised the Court that the Director did not seek to tender it.[11]
[11] AB 115.
A police officer, Detective Sergeant Brian Smith, filed affidavits affirmed on 19 and 20 April 2023 in response to the first respondent’s claims, which also contained information about the first respondent’s finances.[12]
[12] AB 117, 124.
The first respondent filed a further brief affidavit, affirmed on 1 May 2023, expanding upon one of the assertions in her earlier affidavit. [13] The affidavit was tendered and received at the hearing.
[13] AB 149.
The exclusion application by the first respondent was heard by a Magistrate on 18 May 2023. The way in which the hearing proceeded was as follows.
Mr Caldicott, for the first respondent (who was the applicant for the purposes of that hearing), called the first respondent to give evidence. Her affidavits were tendered and received without objection.[14]
[14] TS 18 May 2023 in CIV-21-001552, p 2; AB 16.
Key aspects of the first respondent’s evidence in chief included her assertion that the seized $150,000 was her money and that it was derived from gambling. She said that it was solely her money, and that it was not derived from criminal activity.[15] She said that she would “dip into” the fund from time to time and later replace what had been taken out, in order to maintain a “set amount at all times”.[16]
[15] Ibid, p 6; AB 20.
[16] Ibid.
She was then cross-examined by counsel for the Director. The evidence that arose from cross-examination was:
·Whether the first respondent acknowledged that her assertions were incompatible with any other person’s claim to the money, with which she agreed;
·The betting slips tendered amounted to $13,000 in bets and $109,000 in winnings, but she provided $166,000 in winning tickets to the Crown in the criminal proceedings and does not know why there is now a discrepancy;
·Although she played poker machines in the eastern suburbs, she went further north to make TAB bets;
·She did so to avoid seeing people she knew, to “increase her chances” and to attend different locations;
·Over time, she accepts that she may have used $80,000 of the $150,000 in various transactions and then replaced it, which explained why $80,000 was in currency that only commenced circulation in 2018;
·She was advised that she did not need to use the sum to purchase a house in relation to which she took out a mortgage, and so did not do so;
·She did not use the sum to pay off a higher education debt because the debt was interest-free;
·She has a previous conviction for using a false name to rent premises which were used to cultivate cannabis.

The first respondent’s case closed. Counsel for the Director sought to tender an affidavit of Detective Sergeant Brian Smith affirmed on 11 April 2023, but did not pursue it after objection from the first respondent’s counsel, and accepted that the relevant content was contained in an excel spreadsheet demonstrating the dates and locations to which the betting tickets corresponded. The spreadsheet was tendered without objection.[17]
[17] Exhibit A1; AB 152.
Counsel for the Director also sought to tender the subsequent affidavits of Detective Sergeant Brian Smith affirmed on 19 and 20 April 2023. Following legal argument, paragraphs 8-16 of the affidavit of 19 April 2023 were admitted.
In relation to the affidavit of 20 April 2023, the parties agreed as a fact the proposition that on 18 October 2018 the Reserve Bank of Australia released a new $50 note into circulation and the note was not, prior to that date, available to any organisation or the public.[18] The affidavit of 20 April 2023 was otherwise not agreed. Detective Sergeant Smith was called and gave evidence as to how he watched a video of the sorting of the 3000 bank notes that were seized, and that at least $80,000 of it was made up of post-2018 $50 notes.[19] He also gave evidence of the police process by which it was ascertained from the Registrar of Births, Deaths and Marriages that the first respondent and Mr Frrokaj were married.[20] Finally, he confirmed the process of using the SAPOL Licence and Vehicle System to ascertain the first respondent’s residential address.[21] He was cross-examined on the money counting process and agreed that he could not give an exact number of notes that were the new currency, and that the money had since been banked.[22]
[18] TS 18 May 2023 in CIV-21-001552, p 29; AB 43.
[19] Ibid, p 33; AB 47.
[20] Ibid, p 34-35; AB 48-49.
[21] Ibid, p 35-36; AB 49-50.
[22] Ibid, p 37; AB 51.
For the purposes of the appeal, the parties agreed that paragraphs 8-16 and annexure BS2 of the Smith affidavit sworn on 19 April 2023 was tendered, and that Detective Sergeant Smith’s oral evidence was consistent with paragraphs 4.1, 4.2, 10, 15, 38-40, 42, 44 and 45 and annexure BS6 of the Smith affidavit sworn on 20 April 2023.
Following cross-examination, the first respondent’s lawyer tendered a photograph of bundles of money and the first respondent’s mortgage application.[23]
[23] Exhibit R1 and R2 in CIV-21-001552. These were not in the Appeal Book.
The parties made closing submissions and the Magistrate reserved her decision, and subsequently granted the application and gave written reasons.[24]
[24] AB 5.
The reasons
The Magistrate summarised the evidence and the law applicable to the application. Her Honour directed herself that the first respondent was required to establish that she owned the money, that she acquired it lawfully, that it was not the proceeds of an illegal activity, and that it would not be contrary to the public interest to return it to her.[25]
[25] Director of Public Prosecutions (SA) v Juljan Frrokaj, Stephanie Angelina Scalzi [2023] SAMC 79 at [30].
The Magistrate made the following statements about the first respondent’s case:
Ms Scalzi gave an account of a lawful acquisition of the Property. She gave her evidence, including cross examination, with consistency and without hesitation.[26]
The DPP did not suggest to Ms Scalzi that she obtained the Property through any other means. Counsel for the DPP submitted that Ms Scalzi’s explanations were unlikely and that the Court should not accept them. There was no evidence or submission about why her explanations were unlikely and what was a more likely explanation.[27]
The case for the DPP was cursory. It was never put to Ms Scalzi that:
·She was not telling the truth about where she got the Property from;
·She had been involved in any illegal activity;
·She acquired the Property unlawfully;
·She acquired the Property through any other means other than as she had indicated;
·She acquired any of the Property from her husband; or
·She was not telling the truth about believing that she had better odds of winning by travelling further afield (to the northern suburbs).[28]
[26] Ibid, at [31].
[27] Ibid, at [32].
[28] Ibid, at [33].
Having observed that there was “no contradictory evidence put before the Court in relation to the Property”, her Honour then considered whether she accepted the evidence. The Magistrate said:
I then turn to consider whether Ms Scalzi’s explanation was so inherently preposterous or unlikely that the Court should reject her evidence in this regard. This was not submitted to me by either party.[29]
[29] Ibid, at [36].
The Magistrate reflected upon the first respondent’s evidence and concluded that while her behaviour might be considered “unusual”, her explanation was “not inherently unlikely or unbelievable”.[30] The Magistrate found:
Having regard to the evidence put before the Court, on the balance of probabilities I am satisfied that:
1. Ms Scalzi owns the Property;
2. The Property was lawfully acquired; and
3. It would not be contrary to the public interest for the Property to be excluded from forfeiture under the Act.[31]
[30] Director of Public Prosecutions (SA) v Juljan Frrokaj, Stephanie Angelina Scalzi [2023] SAMC 79 at [41].
[31] Ibid, at [43].
The appeal
The Director filed an appeal nominating 6 grounds of alleged error in the decision. They were:
1.An error in effectively placing the onus of proof upon the DPP to prove that the property that was the subject of the exclusion application pursuant to section 76 of the Criminal Assets Confiscation Act 2005 was not the property of the Respondent, that the property was the proceeds of unlawful activity and that the Respondent’s interest in the property was not lawfully acquired when the Respondent bore the persuasive onus of proof in relation to those matters pursuant to section 220(1) CACA.
2.In the alternative to Ground 1, an error in placing an evidentiary onus of proof upon the DPP to adduce evidence that the property was not the property of the Respondent, that the property was the proceeds of unlawful activity and that the Respondent’s interest in the property was not lawfully acquired before the Respondent could be required to discharge a persuasive onus of proof in relation to those matters.
3.A misdirection at paragraphs [37] and [38] that there is no general power at common law or statute which allows a state to effect forfeiture of goods simply because they appear suspicious, when sections 24 and 74(1)(b) CACA when construed in combination, and absent a successful exclusion application pursuant to section 76 CACA, do as a matter of law allow the State to effect forfeiture on the basis of the existence of reasonable grounds to suspect that the property is the proceeds of, or is an instrument of, a serious offence. This misdirection led to the Magistrate having regard to an irrelevant consideration.
4.An error at paragraph [41] in finding that, in the absence of any contradictory evidence, the Respondent’s explanation of the source of the property was not inherently unlikely or unbelievable when the Respondent’s explanation was of itself and without reference to contradictory evidence unlikely and unbelievable.
5.An error at paragraph [33] by having regard to an irrelevant consideration, namely that counsel for the DPP failed to put to the Respondent in cross-examination that she had acquired the property unlawfully, when the DPP bore no persuasive onus to provide that the Respondent acquired the property by any particular unlawful means and that the Respondent bore the persuasive onus to prove that she did not acquire the property by unlawful means of any type.
6.An error at paragraph [33] by having regard to an irrelevant consideration, namely that counsel for the DPP failed to put to the Respondent in cross-examination that she was not telling the truth about believing that she had better odds of winning by travelling further afield to the northern suburbs, when the Respondent’s assertions in that regard were of themselves manifestly absurd.
The appeal is governed by r 217 of the Uniform Civil Rules 2020 (“UCR”), of which r 217.10 provides:
217.10—Hearing
(1) Subject to any statute to the contrary—
(a)     an appeal or review is to be by way of rehearing;
(b)     the Court may draw inferences from evidence adduced in the proceeding at first instance; and
(c)     the Court may hear further evidence in its discretion.
(2) The Court may, if it considers that it is in the interests of justice to do so, determine an appeal on the merits notwithstanding a failure of a party to raise or state properly a ground of appeal or alternative contention in the notice of appeal, notice of review or a notice of alternative contention.
The appeal was heard on 6 September 2023. The parties made submissions on the grounds of appeal. It emerged during those submissions that the Director sought to have the Court conclude that the Magistrate ought to have relied upon the content of the Talbot affidavit as contextual information in deciding whether the first respondent’s account was plausible. Counsel for the Director submitted that it was a significant omission on the part of the Magistrate not to have referred to the fact that $7,450 in $50 notes was located in the vehicle that Mr Frrokaj was approaching at the Fullarton property where the cannabis was being cultivated, when police arrived. The source of that information was the Talbot affidavit. It was not referred to in the hearing before the Magistrate on 18 May 2023.
Towards the end of the Director’s submissions on appeal, the parties ascertained that they were not in agreement as to what had been in evidence before the Magistrate upon which her Honour’s decision was made. Counsel for the Director submitted that the Talbot affidavit, upon which the application for restraint had been granted, was in evidence before the Magistrate and ought to have been taken into account, notwithstanding that counsel for the Director had not sought to rely upon it in the exclusion application hearing.
Counsel for the first respondent argued that the Talbot affidavit was not in evidence in the hearing before the Magistrate and that the Magistrate made an appropriate assessment on the evidence and submissions that were in evidence before the Court.
The Director sought and was granted leave to file an amended set of grounds of appeal. The appeal was adjourned for that purpose. The Director’s Appeal Grounds (Revision 2) added a further ground of appeal (ground 7), as follows:
7.The learned Magistrate erred by not having regard to the material contained in the affidavit of Ian Talbot dated 17 February 2021 (“Talbot affidavit”) (Appeal Book “AB” pages 74-82, and in particular without limiting the generality of the foregoing, erred by not having regard to:
(a)     Julian Frrokaj’s (now Second Respondent) involvement in the cultivation of 14 cannabis plants at the Alma Road, Fullarton premises, referred to in paragraph [8] of the Talbot affidavit (AB pages 76-77);
(b)     The finding of $7,450 cash in $50 notes in a tray under the driver’s seat of a vehicle that was parked in the front yard of the Fullarton premises and which was being approached by the (sic) Julian Frrokaj before police spoke to him, referred to in paragraph 7.2 of the Talbot affidavit (AB page 75);
(c)     The material in the Talbot affidavit regarding yield, pricing and potential value of the 14 cannabis plants being cultivated at the Fullarton premises, referred to in paragraph [17] of the Talbot affidavit (AB pages 77-78).
The Director’s Appeal Grounds (Revision 2) also sought to have the order of the Magistrate quashed and an order made forfeiting the sum of $151,050 to the Crown or in the alternative, that the matter be relisted before a different Magistrate.
The parties filed further written submissions which the Court has considered.[32] A further hearing to hear the first respondent’s objection to leave being granted with respect to the ground, and to hear that ground, was held on 22 November 2023.
[32] Appellant’s further written submissions filed 19 October 2023; first respondent’s further written submissions filed 20 November 2023.
The parties agreed that the appropriate process was for ground 7 be determined first, and if accepted, orders made as to the disposition of the appeal. If ground 7 is rejected, previously-argued grounds 1-6 were to be considered.
The Director’s submissions
The Director submitted that the Talbot affidavit was, by virtue of having been filed in the proceedings for the substantive restraint application, available to the Magistrate to consider in the disposition of the interlocutory application for exclusion. Further, it was submitted that the Talbot affidavit contained information of such relevance that the Magistrate ought to have considered the information and to the extent that her Honour did not, the process miscarried.
It was submitted that the effect of relevant legislation and procedural rules (being s 76 of the CACA and UCR 236.1) is that the restraining order was not a final order but an interim order, and the proceedings were ongoing. The restraining orders were not final orders. They only prevented dealings with the moneys pending other events. Counsel for the Director argued that it was relevant for the Magistrate to know how and why the serious offence for which Mr Frrokaj was convicted is related to the property sought to be excluded by the first respondent. By analogy with other forfeiture-related applications, such as a revocation application, counsel for the Director argued that it must be accepted that the original application and the material filed in relation to it, is before the Court in the consideration of subsequent related applications. A revocation application is decided by reference to the reasons for which the order was made in the first place. Such reasons must, in the absence of written reasons, be discerned from the material filed and received on the original application. It was submitted that the fact that an exclusion application must be dealt with by the same court that made the restraining order, lends support to the contention that each is a part of a single process, with a successful exclusion effectively bringing the application wholly or partially to an end by virtue of s 76(iv) of the CACA.
The Director conceded that it would appear that the propositions in the Talbot affidavit had not been tested but that “at least some of the material in the affidavit” could be understood to constitute the basis for the making of the restraining order.
Counsel for the Director submitted that although it had been open to counsel for the Director to have made reference to the Talbot affidavit in the exclusion application before the Magistrate, it was not strictly necessary for him to have done so.
Counsel for the Director submitted that, in the alternative, if the Talbot affidavit was not in evidence before the Magistrate, the Court in this appeal should admit the evidence, in reliance on the discretion conferred by UCR 217.10(1)(c). It was submitted that the Court should do so because it is in the interests of justice to have the matter determined on its merits, which requires consideration of the evidence in the Talbot affidavit.
The Director’s position can be understood as positing that the implausibility of the first respondent’s account is reinforced by three matters set out in the Talbot affidavit. The first is the location of 14 cannabis plants at the Fullarton Road premises on the same day as the location of the $151,050 all in $50 dollar notes during the search of the Beulah Park premises where Mr Frrokaj and the first respondent lived together. The second was the location of the $7,450, again all in $50 dollar notes, situated in a tray under the driver's seat of a vehicle that was being approached by Mr Frrokaj on the day of the search of the Fullarton premises where the cannabis plants were located. The third factor was the pricing and value of the 14 cannabis plants located in the Fullarton premises.
It was submitted that those matters were so germane to the making of the decision, that to the extent that they were not relied upon, the disposition of the application to exclude the two sums from the restrained amounts miscarried.
The first respondent’s submissions
The first respondent contended that the Talbot affidavit was not in evidence before the Magistrate for the exclusion application. Counsel for the first respondent submitted that the exclusion application is an interlocutory application in respect of which affidavit material needs to be filed in support. Mr Marcus submitted that a proper construction of the CACA and relevant rules yields the conclusion that the materials filed in support of interlocutory applications are not thereby received by the Court for the purposes of subsequent applications or for the final contested hearing.
Counsel submitted that the threshold test for the making of a restraining order is only that the Court is satisfied that there is a reasonable suspicion that the property was unlawfully obtained. He submitted that once the restraining order is made, the evidence adduced on that application should be tendered for any subsequent use in a later aspect of the proceedings. It was submitted that accordingly the Magistrate could not, as a matter of law, have had regard to the Talbot affidavit.
Further, the Magistrate sought and obtained from counsel for the Director confirmation of the materials the Court was being asked to make its decision upon, and the Talbot affidavit was not referred to. It was evident from two particular exchanges between the Magistrate and counsel for the Director that the Magistrate considered that she was being asked to determine the application based on specified materials which did not include the Talbot affidavit.
The first exchange followed immediately upon the first respondent, as dux litis, closing her case:
Her Honour:     Thank you, yes Mr Nguyen.
Mr Nguyen:Nothing further.
Her Honour:     You’re not tendering any evidence?
Mr Nguyen:If I could tender what has already been provided on the portal that would be-
Her Honour:     You have to go through it, so there’s a difference between the court file and what is tendered as evidence, because I suspect that there is going to be some objection- objections raised, so you’ll need to go through them one by one.
Counsel for the Director then took the Court to various affidavits filed on the exclusion application, leading to the exclusion or abandonment of some of the affidavit evidence and the calling of Detective Sergeant Smith to give evidence. In this process, neither the Talbot affidavit nor any other document filed in the proceedings prior to the exclusion application, was referred to.
The second exchange occurred after the hearing resumed after the lunch break. Counsel for the Director updated the Magistrate as to instructions received over the lunch break:
Her Honour: Okay, so where’s it at from your perspective? Are you closing your case evidentiary – from an evidence perspective?
Mr Nguyen: Yes, I only have submissions left and that will be it.
Counsel for the first respondent in the appeal submitted that the parties had framed the issues in the manner they saw fit. It was submitted that the Director ought not now be granted leave to adduce fresh evidence to allow the matter to be litigated in a different way. It was submitted that the circumstances in which the Director, as an experienced litigant in such matters, ought to be held to the manner in which the application was made originally. It was submitted that in any event, the content of the Talbot affidavit is not ‘fresh’ for the purposes of the ‘fresh and compelling’ test for the admission of fresh evidence on an appeal. Counsel for the first respondent was critical of the Director for not adducing any evidence as to why the matter was run in the way that it was, in circumstances in which the Director sought to have the Court infer an explanation about that.
Consideration of ground 7

There was no dispute that the Magistrate was required to make the findings as to whether:
·Ms Scalzi owns the $151,050 sought to be excluded from the confiscation order against her husband;
·The money was lawfully acquired; and
·That it would not be contrary to the public interest for the property to be excluded from forfeiture.
Pursuant to s 220 of the CACA, the onus of establishing those matters lay with the applicant for exclusion, Ms Scalzi. The standard of proof was the balance of probabilities.
Upon what was the Magistrate required or permitted to make findings?
The Director’s submissions must be considered against the following uncontroversial propositions of fact and law:
(1)The Talbot affidavit was filed in action CIV-21-001552, being the same proceedings in respect of which the first respondent’s exclusion application was determined;
(2)The use, if any, to which the Talbot affidavit was put for the purposes of the making of the restraining order was not put to this Court on appeal;
(3)The facts deposed to in an affidavit are not part of the evidentiary basis upon which a decision may be made until a party seeks the tender of the affidavit or that it be read, and any objection to it or any part of it is resolved;
(4)The Talbot affidavit was not referred to by either counsel in any aspect of the determination of the exclusion application;
(5)The Talbot affidavit was not referred to by the Magistrate in her decision.
The restraining order was not a final order. The proceedings with respect to the property, being action CIV-21-001552, were ongoing. The restraining order application and the exclusion application were both confiscation applications arising from the seizing of property with respect to particularised offending by Mr Frrokaj.
For the Director to succeed, he must show that the Talbot affidavit was admitted for the purposes of the making of the restraining order. The Director did not show that. However, I am prepared to infer that it was tendered, because to conclude otherwise would lead to the conclusion that the original order was made without evidence to support it. No submission to that effect has been made. It follows, however, there is no information before this Court as to whether any part of it was excluded, or any part of it was received for a limited use only.
Assuming that the Talbot affidavit was admitted for the purposes of the making of the restraining order, the issue becomes whether it was permissible, or indeed necessary, for the Magistrate to locate that affidavit on the file and, in circumstances in which it had not been referred to in the proceedings.
At this point, it may be noted that during argument, counsel were asked what should be understood by the reference to what “was on the portal” by counsel for the Director in the exclusion application hearing.[33] Counsel agreed that, given what followed, it can safely be assumed that counsel was not referring to all of the documents filed in the action including the Talbot affidavit, and was instead referring to the documents that had been filed with respect to the exclusion application only.
[33] Referred to at [60] above.
The first respondent’s emphasis upon the interlocutory nature of the exclusion application is of limited assistance. It is correct that each application concerning confiscation of particular property, including an exclusion application, requires its own evidentiary material. It is also true that evidence filed and used for a particular purpose may be objected to in respect of its proposed subsequent use for a different purpose. But neither of these propositions establish whether evidence received for a particular application or purpose is in evidence, and therefore available for use, in the disposition of a separate aspect of a proceeding.
The lack of authority or rule concerning the issue underscores the fact that, invariably but not always, counsel will ensure that the evidentiary base for the disposition of the particular issue to be determined is properly before the Court. In some cases, counsel will seek to tender material that has already been tendered, and in others, counsel will simply identify that their case seeks to rely upon already-tendered evidence. Where counsel identifies the filed material (admitted into evidence or otherwise) upon which that party’s case relies, it is because to do otherwise is to risk a breach of procedural fairness to the opposing party.
On the assumption that the Talbot affidavit was admitted as evidence on the restraining order application, the Magistrate could not have relied upon its content without an invitation to do so, without breaching procedural fairness. It was the manner in which the proceeding before the Magistrate was conducted that dictated that the Talbot affidavit was unavailable to be considered in the disposition of the exclusion application. Counsel for the Director had been expressly asked to identify the material upon which the Director relied, and the Talbot affidavit was not part of the evidence base for that application.
I find, therefore, that the Talbot affidavit was not part of the evidence upon which the Magistrate was required or permitted to determine the application.
The only basis, therefore, upon which the Director can succeed in the appeal is if it can be said that the proceedings miscarried by virtue of having been decided without recourse to that affidavit. In other words, that UCR 217.10(2) should be invoked to enable the matter to be reconsidered with the inclusion of that affidavit.
The Director has fallen short of establishing that it would be appropriate to invoke the rule.
Firstly, there is some strength in the first respondent’s argument that the Director ought not be permitted to re-run the trial on a different evidentiary base when the evidence was available to be relied upon originally.
Secondly, there is no guarantee that the outcome would be different. There is nothing in the Talbot affidavit that directly contradicts Ms Scalzi’s account. The Talbot affidavit provides information upon which Ms Scalzi might have been cross-examined. But it is evident that counsel for the Director did not consider himself prohibited from drawing upon it for cross-examination. He simply did not do so.
It is therefore quite conceivable that the exclusion application might have been granted even if the Talbot affidavit were tendered for the purpose of the exclusion application. It still would have been a question of whether the first respondent’s evidence was accepted or not.
Finally, as the first respondent submitted, its tender on appeal would not lead to the conclusion that the process before the Magistrate miscarried.
Given these reasons, it would not be appropriate to grant leave to the Director to tender the Talbot affidavit. Ground 7 of the Appeal Grounds (Revision 2) is rejected.
Grounds 1-6
Having rejected ground 7 and the Director’s application to adduce the Talbot affidavit, it remains to be considered whether any of the errors alleged in grounds 1 to 6 are made out.
It is convenient to address grounds 1 and 2 concerning the onus of proof, together.
Those grounds are:
1.The learned Magistrate erred by effectively placing the onus of proof upon the DPP to prove that the property that was the subject of the exclusion application pursuant to section 76 of the Criminal Assets Confiscation Act 2005 was not the property of the Respondent, that the property was the proceeds of unlawful activity and that the Respondent’s interest in the property was not lawfully acquired when the Respondent bore the persuasive onus of proof in relation to those matters pursuant to section 220(1) CACA.
2.In the alternative to Ground 1, the learned Magistrate erred by placing an evidentiary onus of proof upon the DPP to adduce evidence that the property was not the property of the Respondent, that the property was the proceeds of unlawful activity and that the Respondent’s interest in the property was not lawfully acquired before the Respondent could be required to discharge a persuasive onus of proof in relation to those matters.
Director’s contentions
Counsel for the Director submitted that although the Magistrate identified correctly where the onus lay, the reasoning of the decision discloses a failure to adhere to it. It was argued that the reasons disclosed a failure to assess whether the first respondent had established, on the balance of probabilities, that the money was hers and that it was the proceeds of gambling in the manner that she described. Instead, it was contended, the Magistrate moved to a comparative assessment of the first respondent’s version and the submissions made by the Director, and found the latter wanting. This amounted to an effective reversal of the onus and a failure to make a proper assessment of the first respondent’s evidence against the standard of proof that was required to be achieved.
It was suggested that the Magistrate inverted the task and reasoned that because the first respondent’s evidence was not contradicted and was not inherently implausible, the evidence was proven.
First respondent’s contentions
The first respondent contended that there had been no error in relation to the onus of proof. Counsel for the first respondent submitted that the Magistrate’s description of the Director’s case was an appropriate account of her consideration of whether the Director had discharged its evidentiary onus in relation to any proposition that it sought to put, and its persuasive onus in final submissions. The Director’s failure to put any proposition of substance to the first respondent in cross-examination, or tender any evidence that undermined her account evidence, had the effect of requiring the Magistrate to consider whether the first respondent’s evidence was inherently unbelievable.
Consideration of grounds 1 and 2
I find no error in the Magistrate’s reasoning in relation to the onus. The first respondent was required to prove certain matters. She gave oral evidence about each of them. Specifically, she stated that the property was hers. She set out in an affidavit the origin of the money. She was examined and cross-examined on it. She told the Court it was not unlawfully obtained. The Magistrate heard her evidence and found it uncontradicted. The Magistrate then, correctly, asked herself whether the evidence ought nevertheless (i.e. though not contradicted), be rejected for its inherent implausibility. She found that it ought not. It was open to the Magistrate to accept the evidence. I admit to having some doubt as to whether I would be persuaded on the basis of the evidence, but that is not the test. The Magistrate was required to feel an “actual persuasion”.
Importantly, the Magistrate’s observation that there was no contradictory evidence put to the first respondent cannot be read as the placing of an evidentiary burden on the Director. In its context, it is clearly a statement that establishes the orthodox process of evidence assessment. The witness’ account is assessed against the contrary evidence (in this case, none) and then assessed against inherent implausibility.
Grounds 1 and 2 are not made out.
Ground 3
Ground 3 alleges a specific error of law, as follows:
3.The learned Magistrate erred by misdirecting herself at [37] and [38] that there is no general power at common law or statute which allows a state to effect forfeiture of goods simply because they appear suspicious when sections 24 and 74(1)(b) CACA when construed in combination, and absent a successful exclusion application pursuant to section 76 CACA, do as a matter of law allow the State to effect forfeiture on the basis of the existence of reasonable grounds to suspect that the property is the proceeds of, or is an instrument of, a serious offence and that by so misdirecting herself she had regard to an irrelevant consideration.
Director’s submissions
The Director submitted that the Magistrate’s reliance on Chairman, National Crime Authority v Flack[34] led her into error as that case was determined in relevantly different circumstances. In particular, the respondent Flack did not bear an onus of proof in those proceedings. Further, it was submitted that the very proposition to which reference was made was one that does not apply to the South Australian forfeiture scheme. The Director submitted that this reinforced the Magistrate’s erroneous approach in relation to the onus of proof.
[34] (1998) 86 FCR 16.
First respondent’s submissions
The first respondent submitted that the Magistrate’s statements in respect of the common law and statutory position derived from Flack were not incorrect and that it was evident from the reasoning that the Magistrate had nevertheless not deviated from determining the application by reference to the statutory scheme under the CACA. The first respondent submitted that, in any event, the Magistrate’s remarks regarding Flack did not form a material part of her Honour’s reasoning process and if there was an error, it would not justify interference with the decision by this Court.
Consideration of ground 3
Her Honour referred to the authority of Chairman, National Crime Authority v Flack.[35] Her Honour made two points by reference to that authority. The first was that two of the judges in that matter observed that the presence of large amounts of cash at a residential property is unusual but not necessarily evidence of criminal activity. Such an observation is not a legal proposition. It was evidently used to establish that, in undertaking the “inherently preposterous” assessment, the Magistrate’s conclusion had been drawn by other judges. The Magistrate also made reference to the lack of a common law or statutory power to effect forfeiture of goods simply because they appear suspicious. The Director submitted that this was not correct, and that the Magistrate erred in law.
[35] Ibid.
The difficulty with the Director’s submission is that the statement referred to was called upon by the Magistrate in the context of her Honour’s consideration of the quality of the evidence as to the explanation given. There is nothing in the reasoning to indicate that the Magistrate was in error in her understanding of the matters that the first respondent had to prove, or the statutory provision which governed the application to restrain or the application to exclude.
The Director has not made out ground 3.
Ground 4
Ground 4 alleges that:
4.The learned Magistrate erred at [41] in finding that in the absence of any contradictory evidence, the Respondent’s explanation of the source of the property was not inherently unlikely or unbelievable when the Respondent’s explanation was of itself and without reference to contradictory evidence unlikely and unbelievable.
Director’s submissions
The Director submitted that the first respondent’s assertion that the whole of the moneys were lawfully obtained was “objectively unlikely”.[36] It was also said that the first respondent’s explanation for the source of the funds “collapsed under the weight of inherent unlikelihood”.[37] It was submitted that the provenance of the moneys was “manifestly unlikely” by reference to the evidence that:
·The entirety of the funds were in $50 notes when that was not consistent with the manner and circumstances that she said she acquired and maintained the fund;
·Mr Frrokaj was also found with a sum of $50 notes;
·She shared a bedroom with Mr Frrokaj;
·The money was hidden in an unusual and concealed location;
·The betting tickets did not account for all of the money;
·Her evidence as to why she attended at different TABs was “manifestly absurd”.
[36] Appellant’s written submissions filed 29 August 2023 at [20].
[37] Ibid at [25].
First respondent’s submissions
Counsel for the first respondent submitted that the first respondent had given an account of how she had acquired the money, and where and how and why she had kept it in the manner that she did. In the absence of any contrary evidence or any explanation as to why the evidence should not be accepted, the Director had failed to establish any error in the Magistrate’s reasoning.
Consideration of ground 4
The concept of “inherent implausibility” is fraught and, quite properly, is infrequently relied upon. It refers to the decision-maker’s understanding, from experience of the world and the people in it, of the likelihood of the evidence being true. Whilst perhaps a useful concept in respect of matters pertaining to the laws of physics, it is prone to be inapt for use in relation to human behaviour and perhaps gambling behaviour in particular. The matters advanced by the Director as demonstrating the inherent implausibility of the first respondent’s evidence were indeed matters that may have, if put to the first respondent, diminished the confidence that the Magistrate had in that evidence. However, the matters were not in fact incompatible with the truth of the account and the first respondent was, for the most part, denied the opportunity to comment upon them.
Ground 4 does not succeed.
Grounds 5 and 6
It is convenient to consider grounds 5 and 6 together. They are:
5.The learned Magistrate erred at [33] by having regard to an irrelevant consideration, namely that counsel for the DPP failed to put to the Respondent in cross-examination that she had acquired the property unlawfully when the DPP bore no persuasive onus to provide that the Respondent acquired the property by any particular unlawful means and that the Respondent bore the persuasive onus to prove that she did not acquire the property by unlawful means of any type.
6.The learned Magistrate erred at [33] by having regard to an irrelevant consideration, namely that counsel for the DPP failed to put to the Respondent in cross-examination that she was not telling the truth about believing that she had better odds of winning by travelling further afield to the northern suburbs when the Respondent’s assertions in that regard were of themselves manifestly absurd.
Director’s submissions
The Director submitted that the Magistrate wrongly placed significance on the failure of counsel for the Director’s to put to the first respondent that she had acquired the property unlawfully. It was argued that it was not necessary for that to occur and that it was clear from the Director’s affidavit evidence filed (though not tendered) that the claimed provenance of the money was opposed. It was submitted that the Director could not be expected to put to the witness all of the possible unlawful methods of acquisition.[38] It was contended that the Magistrate’s focus upon the manner in which counsel for the Director responded to the application demonstrated the reversal of the onus of proof.
[38] Appellant’s written submissions filed 29 August 2023 at [26].
First respondent’s submissions
The first respondent submitted that counsel for the Director’s failure to litigate the matter in accordance with the rule in Browne v Dunn[39] justified the Magistrate’s careful treatment of the cases. It was submitted that the Magistrate was not faced with “issues of fact well and truly joined on the evidence” but rather accounts that had “not been brought into direct opposition, and serenely pass[ed] one another by like two trains in the night.”[40]
[39] (1893) 6 R 67.
[40] Reid v Kerr (1974) 9 SASR 367 per Wells J at 373-374.
The first respondent further contended, based on the reasoning of the Full Court of the Federal Court in Ashby v Slipper,[41] that evidence not challenged and not inherently unbelievable will be taken by the parties to be accepted.[42]
[41] (2014) 219 FCR 322 at [74]-[78] per Mansfield and Gilmour JJ.
[42] First respondent’s written submissions filed 4 September 2023 at [29].
Consideration of grounds 5 and 6

The Director’s criticism of the Magistrate’s decision at [33] must be rejected. A fair reading of the decision indicates that the list of propositions that were not put to Ms Scalzi was not advanced as an argument of the Director’s failure to satisfy a burden of proof. The following paragraph, in which the Magistrate cites Commissioner of the Australian Federal Police v Zhang (Ruling No 1),[43] is consistent with the proposition that the Magistrate may have considered it unfair for counsel for the Director to have invited the Court to reject the first respondent’s account without offering any basis to do so. However, the statement that there was no contradictory evidence put before the Court is accurate. It properly establishes the steps that the Magistrate was required to take to assess whether the first respondent had made out her case. Had she put forward evidence on each of the matters required to be proved? Had that evidence been undermined by anything put in response? If not, was the evidence inherently implausible?
[43] [2015] VSC 390.
It was not irrelevant for the Magistrate to include, as a reasoning step, the fact that the first respondent’s evidence had not been contradicted.
Nor was it irrelevant for the Magistrate to take into account the fact that it had not been put to the first respondent that her account of why she visited varied betting outlets far from her home was a lie, or “manifestly absurd”. It was relevant to the reasoning process in that it explained the evidentiary basis upon which the Magistrate was required to assess the first respondent’s explanation. In the context, it is not fairly understood as an improper application of the rule in Browne v Dunn,[44] or a reversal of the onus of proof.
[44] (1893) 6 R 67.
That is not to say that the Magistrate was not required to feel an actual persuasion in relation to the first respondent’s evidence. The Magistrate was still required to be satisfied that the first respondent had made out her case. What is clear from the Magistrate’s reasons is that this threshold was reached and the Magistrate was so satisfied. Grounds 5 and 6 are not established.
Conclusion
The Director has not established that the hearing miscarried in a manner that justifies the interference of this Court. The appeal is dismissed.