Director of Public Prosecutions v Alviti

District Court of South Australia
(Civil)
DIRECTOR OF PUBLIC PROSECUTIONS v ALVITI AND ORS
[2022] SADC 9
Judgment of his Honour Judge Slattery
7 February 2022
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS
On 28 October 2018, police conducted a search of 2 Scotia Street, Croydon, the residence of Troy Alviti (‘Alviti’) and Antionette Hagidimitriou (‘Hagidimitriou’). Police located and seized a large clandestine drug laboratory and items related to the manufacture of methylamphetamine. As police were assessing and dismantling the clandestine drug laboratory, Alviti and Hagidimitriou drove into Scotia Street in a 1969 Holden Sedan, registration SHK412, engine number J077400C. They were arrested and interviewed.
Police determined that the vehicle was under the effective control of Alviti. Police sought a restraining order, pursuant to section 24 of the Criminal Assets Confiscation Act 2005 (SA) (the ‘Act’), of the 1969 Holden Sedan. Police then seized the vehicle, pursuant to section 178(b) of the Act.
On 19 December 2019, Alviti was convicted of manufacturing a large commercial quantity of a controlled drug. On the day of conviction, deemed forfeiture of the 1969 Holden Sedan occurred, pursuant to s 56A of the Act.
Gaetano Antonino, the Applicant, is the third interested party in these proceedings.
By application heard in this Court on 8 December 2021, the Applicant, sought leave to apply for an exclusion order in relation to the 1969 Holden Sedan. The Applicant further seeks an order to exclude the silver 1969 Holden sedan from the operation of the forfeiture order, that the vehicle be transferred to the Applicant, and costs be determined in favour of the Applicant.
Held:
1. Application dismissed.
2. No order as to costs.
Criminal Assets Confiscation Act 2005 (SA) s 6A, s 56A, s 59, s 60; Controlled Substances Act (1984) s 32, s 33; Summary Offences Act 1953 (SA) s 67, referred to.

DIRECTOR OF PUBLIC PROSECUTIONS v ALVITI AND ORS
[2022] SADC 9
Civil

By an application filed on 12 October 2021,[1] Mr Gaetano Paul Antonino (Mr Antonino), the third interested party, made an application under s 59 and s 60 of the Criminal Assets Confiscation Act 2005 (the Act) to exclude property from the operation of a forfeiture order. In his application, Mr Antonino sought the following orders:
1. That pursuant to s 60(2) of the Act, Mr Antonino be permitted to apply for an exclusion order under s 59 of the Act.
2. Upon the preconditions in s 59(1) being satisfied, that the Court make an order excluding property, namely a silver 1969 Holden Sedan registration SHK412 and engine number J077400CJC (the property) from the operation of the forfeiture order.
3.      That the property be transferred to Mr Antonino.
4.      Costs.
[1]    FDN 46.
The Director opposed the application. For the reasons which follow, the application is refused.
In these reasons, mention is made of a Mr Enrico Votino and a Mr Troy Alviti in connection with the subject vehicle. For the avoidance of any doubt, I am satisfied that neither of them now make any claim upon that vehicle.
In the hearing and determination of this application it is only necessary for Mr Antonino to satisfy me of his case on the balance of probabilities; that is, that his case as put is more likely than not. This is a much lower standard than the criminal standard of beyond reasonable doubt.
On 8 December 2021, I heard the application of Mr Antonino and evidence was tendered before the Court. Mr Antonino read the following affidavits:
1.Affidavit of Mr Antonino sworn 17 May 2017, being part of Annexure GPA1 to the affidavit of Mr Antonino sworn 13 May 2020 (FDN 13).[2]
2.Affidavit of Mr Antonino sworn 13 May 2020 (FDN 13 in its entirety).[3]
3.Affidavit of Mr Antonino sworn 12 November 2021 (FDN 47).[4]
[2]    Exhibit A1.
[3]    Exhibit A2.
[4]    Exhibit A3.
The Director read the following affidavits:
1.Affidavit of Detective Ian Talbot sworn 20 November 2018 (FDN 2).[5]
2.Affidavit of Detective Ian Talbot sworn 27 August 2020 (FDN 18).[6]
3.Affidavit of Angela Aristidis, sworn 25 October 2021 (FDN 53).
4.Affidavit of Oliver Klotz, solicitor, sworn 27 August 2020 (FDN 20).
[5] Exhibit DPP1.
[6] Exhibit DPP2.
I turn first to the content of the Act. Under s 24 of the Act, this court must, on the application by the Director, make a restraining order that specified property must not be disposed of or otherwise be dealt with by any person, if satisfied that the person has been convicted of or has been charged with a serious offence[7]; or it is proposed that the person be charged with a serious offence[8]; or the person is suspected on reasonable grounds of having committed a serious offence[9]. A court may only specify property in a restraining order made under s 1(a) or (b) of the Act if it is satisfied there are reasonable grounds to suspect that the property of another person that is subject to the effective control of the suspect.
[7] S 24(1)(a)(b) of the Act.
[8] Ibid.
[9] Ibid
By original Information in the Magistrates Court dated 29 October 2018, the respondent Troy Alviti (Alviti) was charged with the following offences:
1.On the 28 October 2018 at Croydon, manufactured a large commercial quantity of a controlled drug and believed that another person intended to sell that drug in breach of s 33(1) of the Controlled Substances Act (1984). This is a major indictable offence.
2.On 28 October 2018 at Croydon, did traffic in a large commercial quantity of a controlled drug. Section 32(1) of the Controlled Substances Act 1984. This is a major indictable offence.
Alviti was arrested as part of a police investigation into the manufacture of methylamphetamine. Alviti was identified together with his partner Antoinette Hagidimitriou (Hagidimitriou). They were then residing at an address in Croydon, South Australia. Another person involved was a person named Mr Mark Middleton who resided in NSW.
On 28 October 2018, police attended at the Croydon address. Under the authority of a general search warrant, police entered and conducted a search. No one was present. During that search, police located and seized:
1.A large commercial size clandestine drug laboratory, which was producing methylamphetamine within a rear shed;
2.A large quantity of precursors and chemicals used in the manufacture of methamphetamine inside the house and sheds of the property;
3.Approximately 200 litres of methylamphetamine related product which was in vessels within the clandestine laboratory;
4.20 grams of methylamphetamine which was within the house at the property;
5.$346.70 in cash located inside the property.
Police formed the view that the clandestine laboratory was capable of manufacturing a large quantity of methylamphetamine and whilst in the process of assessing and dismantling the laboratory, Alviti and Hagidimitriou drove into the street of the Croydon address in a white 1968 Holden. They were stopped by police before reaching the property. They were arrested and then interviewed. Alviti informed the police that he resided at the Croydon property with Hagidimitriou. At about the same time, Middleton drove into the street in a Volkswagen Polo sedan with a NSW registration number. The Volkswagen vehicle was searched and within it police found 100 kgs of pseudoephedrine and 75 litres of hydro phosphorous acid, products which are used in the manufacture of methylamphetamine.
Police continued their search of the Croydon property and identified the 1969 Holden Sedan, which had been parked on vacant land opposite the Croydon property. Police identified this vehicle as a restored vehicle in good condition which was under the effective control of the first defendant. Police enquiries disclosed that Alviti regularly obtained permits to drive the Holden and they consequently formed the view that Alviti is the true owner of the vehicle. Police sought a restraining order pursuant to s 24 of the Act for the Holden vehicle. Police enquiries revealed that the Holden was a silver 1969 Holden Sedan with an eight cylinder engine, South Australian registered SHK412, engine number J077400C. Mr Antonino was earlier recorded as the sole registered owner, but that registration had expired on 16 February 2012, some six years earlier. There were no registered securities over the Holden vehicle; it was seized by the police pursuant to s 178(b) of the Act.[10]
[10] The material is found in the course of a search conducted under another law and the officer suspects on reasonable grounds that the material is liable to seizure under this Act. Police conducted a search pursuant to s 67(4) of the Summary Offences 1953. The Holden was seized; police considered it was under the effective control of Alviti. Section 171(a) of the Criminal Assets Confiscation Act 2005 provides that material liable to seizure under this Act includes tainted property. ‘Tainted property’ is defined as ‘property owned by, or subject to the effective control of, a person who has been charged with, or is proposed to be charged with, an offence where the person would, if convicted of the offence, become a prescribed drug offender (other than protected property of the person).’
The Director contends that the Holden was under the effective control of Alviti who was driving the vehicle on 28 October 2018, in company with Hagidimitriou, when they were returning to the Croydon property. (see Exhibit DPP 1).[11]
[11] Affidavit of Ian Talbot sworn 20 November 2018.
By interlocutory application dated 27 August 2020 (FDN 19) the Director sought the following orders:
1.That a declaration is granted pursuant to s 56B of the Act that the following property has been forfeited to the Crown pursuant to s 56A of the Act on 19 December 2019.
2.     (a)
(b)
(c)
(d)     The silver 1969 Holden Sedan registration SHK412 and engine number J077400C; and
(e)
3.     No order as to costs.
The application was made on the grounds set out in an affidavit sworn by the solicitor Oliver Klotz.[12] On 11 December 2018, a restraining order was made under the Act in relation to the Holden motor vehicle amongst other property. On 19 December 2019, Alviti was convicted in the District Court of South Australia of manufacture large commercial quantity of a controlled drug. Under s 6A of the Act, Alviti became a prescribed drug offender upon his conviction because he was convicted of at least one commercial drug offence committed after the commencement of s 6A of the Act (after 10 August 2018). The offences to which this matter refers were committed between 1 September 2018 and 29 October 2018.
[12] FDN 20.
Under s 56A of the Act,[13] a deemed forfeiture order is taken to have been made by a convicting Court immediately upon Alviti becoming a prescribed drug offender. This order applies to all property owned by or subject to the effective control of Alviti on the day he was convicted for that conviction offence. There are exclusions to that deemed forfeiture order, including property that has been excluded from a restraining order under Part 3, Division 3 of the Act. At the relevant time, the Holden vehicle had not been excluded from the restraining order under Part 3, Division 3 of the Act. The Director had not by then received any application under s 60 of the Act for an exclusion order in respect of the property in general but has now received an application from Mr Antonino for an order that the Holden be returned to him.
[13] 56A—Prescribed drug offenders (1) Immediately on a person becoming a prescribed drug offender, a forfeiture order (a deemed forfeiture order) will be taken to have been made under Subdivision 1 by the convicting court. (2) A deemed forfeiture order applies to all property owned by, or subject to the effective control of, the prescribed drug offender on the conviction day for the conviction offence other than the following: (a) protected property of the prescribed drug offender; (b) property that has been excluded from a restraining order under Part 3 Division 3; (c) property that is otherwise forfeited to the Crown under this Act. (3) Except as provided in subsection (4), section 59A, section 59B and section 209A, this Act applies to a deemed forfeiture order in all respects as if it were a forfeiture order made under section 47(3)(a) in relation to conviction for the conviction offence, subject to such modifications as may be prescribed, or as may be necessary for the purpose. (4) Any power that may be exercised by a court that is hearing or that is to hear an application for a forfeiture order may be exercised, in relation to a deemed forfeiture order, by the convicting court at any time within the period of 6 months (or such longer period as may be allowed by the convicting court) after the conviction day for the conviction offence. (5) In this section— convicting court, in relation to a prescribed drug offender, means the court that convicted the prescribed drug offender of the conviction offence.
Deemed forfeiture of the property occurred on 19 December 2019 under s 56A(1) of the Act[14] and the Director seeks a declaration to that effect.
[14] Ibid.
Reliance was placed by the Director upon the affidavits of Detective Brevet Sergeant Ian Talbot sworn 20 November 2018[15] and 27 August 2020.[16]
[15] Exhibit DPP 1.
[16] Exhibit DPP 2.
Detective Talbot informs the court that a restraining order was reaffirmed by Judge O’Sullivan of this court on 11 December 2018 in relation to the motor vehicle because that vehicle was believed to be in the effective control of Alviti upon its seizure. The restraining order was initially granted in the Magistrates Court by Magistrate Schultz on 14 February 2020. On 28 October 2018, police observed Alviti driving the Holden with his partner Hagidimitriou as passenger on the street at Croydon when police were present at that property. A temporary registration permit relating to that vehicle was located which indicated registration and ownership of the vehicle vested in Alviti. That is why on 29 October 2018 the vehicle was seized by police as it was believed to have been under the effective control of Alviti.
Subsequently, police received correspondence of 30 October 2018 from Mr Michael Lloyd solicitor of the firm Koerner Lloyd Lawyers representing Enrico Votino. Relevantly it provides as follows:
I act for Enrico Votino regarding the above mentioned matter (the Holden).
My client is the legal owner of (the Holden) registration RICO 77.
My client has been informed that his Holden sedan was seized by police.
My client’s Holden sedan has been stored at [Croydon] for about the last 12 months.
The occupier of [the Croydon house], Troy Alviti is his ex brother in law and he understands that Troy Alviti may have moved the vehicle to [Croydon].
My client requests that the Holden be returned to him as soon as police have completed their investigations and examination of the car.
Mr Lloyd then asks for his client’s legal interest in the vehicle to be noted.
Subsequently, Police received further communication from Mr Lloyd dated 22 May 2019.[17] That letter relevantly provides as follows:
I act for Enrico Votino regarding the above mentioned matter.
I refer to my letter sent to you on 30 October 2018. It is now 6.5 months since I sent this letter.
I have not received any response.
Again, I request that you return my client’s Holden RICO 77 immediately to avoid court proceedings.
Please find an affidavit from Gaetano Paul Antonino dated 17 May 2019 and annexure that confirm my client is the owner of this HZ Holden and has been for some time.
[17] Exhibit IT 5 to the affidavit of Detective Talbot of 27 August 2020.
Attached to the letter of 22 May 2019 is an affidavit of Mr Antonino.
It reads as follows:
I am a friend of Enrico Votino (Enrico). I have known Enrico my whole life.
1.He now lives at … Kilkenny…
2.I know that about 15 years ago Enrico purchased a 1965 silver HK Holden Sedan (Holden). The Holden was kept at [Kilkenny].
3.In January 2011 I purchased the Holden from Enrico for $5,000.00. We had a gentleman’s agreement that if he wanted to buy it back from me he could on the proviso he paid me for all the work I was going to have to do on the Holden. The Holden was in bits at the time. I registered the Holden in my name with the registration plates SHK-412.
4.     In July 2011 and November 2011 I drove the Holden at two drag meetings.
5.     In April 2014 I took a photograph of the Holden in front of a house I was staying at.
6.In 2014 I had nowhere to store the Holden. I asked Enrico if I could store it at his place, at [Kilkenny]. I was short of money and I asked Enrico if he wanted to buy the Holden back. He said yes. He agreed to pay me back the money I had spent on the Holden.
7. In 2014 I took the Holden to [Kilkenny]. The Holden had little use since the end of 2011. I told Enrico that the transmission had an oil leak and it would need a mechanic to fix the leak and to check the Holden out before he drove it.
8.In 2018 I was aware that he had taken the Holden to Troy Alviti of … Croydon for mechanical work to be done. Troy is a good mechanic. I was aware that in October 2018 Troy or his partner got a permit to drive the Holden. I understand that this was to test drive the Holden after Troy had made repairs.
9.I became aware the Holden was seized by police from Troy’s premises in late 2018. I was later informed it was taken from an adjoining property to Troy’s.
10.     Troy is not the owner of the Holden. Enrico and I are the joint owners.
11.In October 2012 the Holden was registered with the plates RICO 77. RICO is short for Enrico. And 77 is the year of his birth.
Police then made a search of the registration of the vehicle. It disclosed that the vehicle was registered in the name of Enrico Votino before it was registered in the name of Mr Antonino. After the registration in their names, a permit was given to Hagidimitriou. There were then changes made to the registration details in the vehicle. These include the registration number, the colour of the car, advice of disposal was given, there were renewals of the registration, first by Enrico Votino on 24 December 2005, on 23 December 2005 and then registration of the vehicle in the name of Mr Antonino on 17 May 2011. On 1 June 2011 the registration plates were changed to SHK412. On 3 June 2011, the Holden was changed from a six cylinder vehicle to an eight cylinder vehicle and on 2 November 2011, there was a change of the registration plate of the Holden by Mr Antonino from SHK412 to RICO 77. Then on 2 November 2012, there was a cancellation of the registration by Mr Antonino and this was exchanged for a short term registration permit. On 2 November 2012, Mr Antonino obtained an exemption to surrender the Holden registration plate RICO 77. Then on 1 May 2019, there was an issue of a replacement registration certificate.
A short-term permit was obtained by Mr Antonino on 8 December 2012 which permitted the Holden to be driven on roads for a funeral procession. All subsequent short-term permits were obtained by Hagidimitriou: on 13 April 2018, 15 April 2018, 11 June 2018, 13 June 2018, 29 July 2018, 31 July 2018, 1 August 2018, 3 August 2018, 25 August 2018, 27 August 2018 and 28 October 2018 and 30 October 2018. All of the permits obtained by Hagidimitriou were for short, limited journeys.

Hagidimitriou, the partner of Alviti, was the person obtaining the permits from and after 13 April 2018 until 30 October 2018. On this basis, the Director formed the view that the vehicle was under the effective control of Alviti when it was seized by police.
On 11 December 2020 her Honour Judge Thomas made an order that Mr Antonino be changed from the 4^th interested party to the 3^rd interested party. Her Honour further ordered that the applications made by Mr Antonino for return of the Holden vehicle were dismissed for want of prosecution. Her Honour made the following orders:
Upon noting that the second and third interested parties have had notice of the proceeding and this hearing and have not appeared and that the first interested party is neutral and does not oppose the declarations sought pursuant to s 56B of the Criminal Assets Confiscation Act, I make the following orders:
Terms of order
A declaration is granted pursuant to s 56B of the Criminal Assets Confiscations Act 2005 (the Act) that the following property has been forfeited to the Crown pursuant to s 56A of the Act on 28 October 2019:
(a)
(b)
(c)
(d)The silver 1969 Holden sedan, registration number SHK412 and engine number J077400C; and
(e)
(f)
(2) No order as to costs.
The orders made by Judge Thomas of this Court on 16 December 2020 concern the interlocutory application made by the Director of 7 August 2020.[18] I have earlier set out the orders sought by the Director. I have also set out earlier the terms of the interlocutory application brought by Mr Antonino dated 12 October 2021.[19]
[18] FDN 19.
[19] FDN 46.
I heard the application of Mr Antonino on 8 December 2021. Section 60 of the Act provides as follows:
60—Applying for exclusion orders
(1) A person may apply for an exclusion order if a forfeiture order that could specify the person's property has been applied for, but is yet to be made.
(2) A person cannot, except with the permission of the court, apply for an exclusion order after a forfeiture order specifying the person's property has been made if—
(a) the person—
(i) appeared at the hearing of that application; or
(ii) was given notice of the application for the forfeiture order, but did not appear at the hearing of that application; or
(b) 6 months have elapsed since the forfeiture order was made.
(3) The court may only give permission to apply under subsection (2) if satisfied that—
(a) if subsection (2)(a)(i) applies—the person now has evidence relevant to the person's application that was not available to the person at the time of the hearing; or
(b) if subsection (2)(a)(ii) applies—the person had a good reason for not appearing; or
(c) if subsection (2)(b) applies—the person's failure to apply was not due to any neglect by the person; or
(d) in any case—there are special grounds for giving the permission
I granted permission under s 60(2) for Mr Antonino to proceed with his application notwithstanding he did not appear at the hearing of the application before Judge Thomas but was given notice of it. So much is apparent from the order of Judge Thomas made on 11 December 2020.
In support of the application Mr Antonino read Exhibits A1, A2, and A3. He also gave viva voce evidence in support of the application.
On his case, Mr Antonino principally focussed his attention upon FDN 47, his affidavit of 12 November 2021 (Exhibit A3) and he did not give any further viva voce evidence in chief. He was then cross examined. He said he first purchased the Holden from Mr Enrico Votino in April or May of 2006. It was in parts. He had some skills as a car restorer. He was asked whether a vehicle, such as this, if restored might have some value. He did not answer that question. He said that he did not have in mind restoring the vehicle to increase its value.[20] I do not accept that evidence. I think it is neither credible nor reliable. In the end, and after many questions, he said that he thought that if a restorer could replicate a factory rebuild with no modifications the vehicle could possibly be worth $100,000. However, he said that he built the vehicle to race, and he only registered it once or twice for specific occasions after 2012. He told me that he never thought of selling the vehicle. I am unable to accept that evidence. I consider that it is open to me to find on all the evidence that he sold the vehicle at least to Enrico Votino. This was at a time when he was short of money which was quite often the case. He said that he has never spoken to anyone about purchasing the vehicle once it has been repaired and restored. However, I think in light of the affidavit evidence before the court, that this evidence is not truthful, credible or reliable.
[20] T22.12.
Mr Antonino said that when he first purchased the vehicle, it was kept at the home of Enrico Votino in Kilkenny. It was then kept at the yard of Pasquale Votino, also located in Kilkenny. He then said that Pasquale Votino lives in Croydon. Ultimately, he was not able to give clear evidence as to where particular people lived, he did not know if Enrico Votino lived at Croydon and thought that he lived in a house at Kilkenny. It took a number of questions in cross examination to obtain this quite straightforward information and it was not clear to me why he did not answer that question directly.
He was then referred to his affidavit of 12 October 2020 which is Exhibit A3.[21] It is quite apparent to me that the affidavit was prepared by a solicitor. Mr Antonino initially emphatically denied that this affidavit was prepared by a solicitor. He was pressed in cross examination on his assertion that he had prepared the content of the affidavit, and apparently typed it himself. It was only when he was challenged on whether he had sat down at a computer and typed it himself that he agreed that he hand wrote out the material for the affidavit and gave it to a solicitor. His previous lawyer was called Eleanor. She was the person who drafted the affidavit and that much is very obvious from its content. He could not explain why he did not agree earlier that it was she who had drafted the affidavit based upon information that he had given to her. I consider that his denials of the involvement of the solicitor in the preparation of that affidavit are quite peculiar and are neither truthful or credible nor reliable. They are disingenuous.
[21] FDN 47.
Mr Antonino then said that between 2006 and 2011, he worked upon the vehicle but only when he had some money; he thinks he spent between $11,000 and $12,000 on the vehicle. He had other people do such things as electrical work and engine work. He entered the car into drag racing at the Adelaide International Raceway in November 2011. He said that the drag racing was a reason why he would get a permit to drive the vehicle. However, he then said that he took the vehicle to the drag racing on a trailer. Also, at that time he had moved to Port Augusta for work in or about April 2006. He had a girlfriend who lived in the northern suburbs and would stay with her on the weekends. By 2011, he had moved back to Adelaide and was living in Campbelltown. Also, by that time he had split from his partner, with whom he had been living for two years. In contrast, in his affidavit he said that he split from her in 2015 and not in 2011-2012 when he came back from Port Augusta. He agreed that he had split from her sometime in 2015.
Mr Antonino said that at the end of 2006, after he got all of the pieces together, he took the vehicle to his mother’s home at Campbelltown and stored it there. Thus, it had been moved from Mr Votino’s yard in Campbelltown to his mother’s home. In that time, he asked friends to do some work on it. He left it wherever he could. He left the keys with the car so that it could always be driven. How it could then possibly be driven is not clear to me. By about April or May of 2011, the car had been restored so that it could be driven on the road and it could be stored or based at the Campbelltown house owned by his mother.
He registered the vehicle sometime in 2011 under the registration plate SHK412.
In 2016-2017, he moved to a property at Burton from Campbelltown but there was no room to store the vehicle at Burton. The address at Burton is some 24 kilometres by road from Campbelltown. Work had been done on the vehicle during the year prior to that time. He thinks that it took at least a year between the dates when particular jobs were done, for example panel beating and electrical.
Mr Antonino then denied emphatically that the vehicle was sold to Enrico Votino in 2014. However, it is known that Enrico Votino, at about that time, registered the vehicle in his name. He denied again that the vehicle had been sold to Enrico Votino and that is why he was so vague about where the car was stored from time to time.
He agreed that in time, he moved the vehicle to Pasquale Votino’s residence so that it could be undercover in the shed. It was not to be driven except with his permission. He told Enrico Votino that the vehicle was not to be driven. However, as I have earlier recounted, it is known that Enrico Votino obtained permits to drive the vehicle upon the road and that Mr Antonino was aware that Enrico Votino was driving the vehicle.
Mr Antonino said he went to that house at Kilkenny two or three times per year for family functions, but he never looked at the vehicle. That was despite the fact that it had been outside from 2011 – 2016/2017 when it was put in the shed of Pasquale Votino’s property. For some reason he had not thought earlier to put the vehicle in the shed at the Votino property. I think this is very unlikely. He knew of the shed for many years, and he says that he only thought of putting it in the shed of Enrico Votino in 2016/2017. I consider that it is more likely that he had transferred ownership of the vehicle to Pasquale Votino in 2016/2017 and that is why the vehicle was parked in that shed.
Mr Antonino then said that he gave Enrico Votino something in the nature of the first right of refusal; that is, if he ever wanted to sell the vehicle, he would first give him the option to purchase it. I do not accept that evidence. I think it is far more likely, on the balance of probabilities, that in 2014-2016 the vehicle had been sold to Enrico Votino and it was being stored in the shed of Pasquale Votino.
Mr Antonino then confirmed that before he made his affidavit with the assistance of Mr Lloyd that he discovered that the vehicle had been seized by the police.[22] He spoke with Mr Lloyd within a week and told Mr Lloyd that the car belonged to him. He left Mr Lloyd in no doubt about that fact.[23] He then confirmed again that Pasquale Votino was storing the Holden in his shed from at least early 2017, and that it was being housed there and not driven. His specific instructions to everyone were that he would drive it by himself if he wanted to but otherwise no one was to drive it.
[22] T44.17.
[23] T44.21.
He was aware that the car had been lent to Alviti and that is something he discussed with Enrico Votino after having a discussion with Pasquale Votino. He said that the car needed work because he found out that there was an oil leak and an exhaust leak and also engine repairs were needed. He said that he asked Enrico Votino whether Alviti could fix the car. He knew Alviti because he had married Enrico Votino’s sister and he had known them a long time, perhaps twenty years. However, he had no conversations separately with Alviti about the repair of his car. That was a matter he left entirely with Pasquale Votino and Enrico Votino. In my opinion, he did that because he knew that he was not the owner of the car and the only person who could and would make that arrangement was the owner of the car, namely Enrico Votino.
He was aware that the car went from Pasquale Votino’s shed to Alviti’s property sometime in 2016 or 2017.[24] It had only been in Pasquale Votino’s shed before he discovered that these repairs were required. I think again that is very unlikely and I find this evidence is not credible, reliable or truthful. In my opinion the greater likelihood on the balance of probabilities is that he knew that the car was going from Enrico Votino’s possession into the possession of Alviti as part of a transaction between them.
[24] T46.22.
I am satisfied on the evidence that he did not ever go to Alviti’s house to check on the vehicle.[25] He knew the vehicle was there for a period of about twelve months but he made no enquiries of anyone about the state of the vehicle or its state of repair. Mr Antonino was aware that Alviti drove the vehicle but could not say when he gave him permission to drive it. He said he only spoke about that to his godfather Pasquale Votino and also to Enrico Votino. He did not speak to Alviti; he did not go to his property and he only ever met him or saw him twenty years earlier. However, he claimed that he got along well with him and he knew that the vehicle was at Alviti’s house for at least twelve months. Notwithstanding, he did not ever speak to Alviti about him driving the vehicle.[26] I consider that on the balance of probabilities, this evidence is neither credible, reliable nor truthful. I would not accept that Mr Antonino knew that the vehicle was with Alviti for twelve months and did not speak to him at all about the vehicle in that period of time, and did not authorise him to drive the vehicle and only spoke to the Votinos about it.
[25] T47.24.
[26] T48.12-36.
Mr Antonino then said that he left the repairs to Alviti and expected him to do the mechanical work necessary without ever speaking to him directly. He also made no arrangement with him about who would be paying for these repairs.[27] I think that evidence is very unlikely and has no credibility or reliability. I do not accept it as truthful evidence.
[27] T50.1-8.
He was then shown his affidavit of 17 May 2019, Exhibit A1. He said immediately that there were errors in this document. He said that he went to Mr Lloyd’s office on two occasions. The first was to give him instructions and the second was to sign the documents which were the affidavits. On the second occasion, he read the document and then queried a number of points and insisted that corrections be made. He saw Mr Lloyd make these corrections on his computer and Mr Lloyd made all of the requested amendments.
When he spoke to Mr Lloyd the vehicle had already been seized by police. He was speaking to Mr Lloyd for him to act for him to get the car back; he had no doubt about that.[28]
[28] T53.9.
He recalls Mr Lloyd conferring with him, writing down his instructions and reading the draft of his affidavit. The document that he prepared which is his affidavit, Exhibit A1, was signed by him after reading it and being satisfied that it was true and correct to the best of his knowledge and belief at the time he had signed it. His signature is upon it. He now says that this same affidavit is untrue when it says that he had purchased the vehicle from Enrico for $5,000.00 in January 2011. He agrees that he took a photograph of the vehicle in April 2014 in front of a house at which he was staying. He provided that photograph to Mr Lloyd. These photographs are Exhibits GPA 3.1, 3.2 and 3.3 of his affidavit. There are also photographs at Exhibits GPA 3. He says that he took the photographs in GPA 3 because the vehicle was clean after he had washed it. I do not think that is accurate evidence. I am unable to give that evidence any weight. I think it has no credibility or reliability.
Mr Antonino agreed that he asked Enrico Votino to buy the Holden back because he was short of money. Enrico Votino agreed and also then agreed to pay him back the money that he had spent on the vehicle. However, he says that it was in 2014 he asked Enrico to store the vehicle at his father’s place in Croydon.[29] In contrast, the content of his affidavit is not that he gave Enrico a first right of refusal, rather he said that he was short of money and asked Enrico whether he wanted to buy the Holden. He said that was right as he had nowhere to store the vehicle. He agreed that he had told Enrico that if he wanted to buy the Holden back, he could buy it.[30] Mr Antonino then said Enrico Votino did not offer to buy the vehicle back.
[29] T60.31.
[30] T62.15-17.
Mr Antonino was upset about the fact that this affidavit contained mistakes. For example, Enrico Votino did not agree to pay him back the money that he had spent on the Holden. He had a folder of receipts to show him how much money he had spent which was somewhere between $10,000 - $15,000. However, he then said that he did not show the contents of this folder to Enrico Votino.[31] He also agreed that it was necessary for further work to be done on the vehicle before it could be driven. This was despite the fact that the vehicle appeared in the condition it was in 2014, as shown in Exhibit’s GPA 1, GPA 2, GPA 3 to Exhibit A1. These repairs were required before he could drive the vehicle. He told Enrico Votino he could not drive the vehicle until the repairs were done.
[31] T63.16.
He then agreed that the affidavit he made in Mr Lloyd’s office was dated 17 May 2019 and he may well have had a better memory then than now. He also said he has been taking a lot of medication; he has been taking antidepressants and antipsychotic medicines. He was under the care of a psychologist. He agreed that he could not say one way or the other whether his memory was better then than it is now.[32]
[32] T65.33.
Mr Antonino agreed that from the time the car went into the possession of Alviti, he had nothing more to do with it. He had no communications with Alviti and he was not keeping up with what was going on with the car. He had washed his hands of it once it went into the possession of Alviti. It was in early 2019 that he become aware that the Holden had been seized from Alviti’s premises.[33]
[33] T68.3-32.
Mr Antonino was again taken to Exhibit A1 at paragraph 10 where he says that he and Enrico Votino are the joint owners of the vehicle. He said that paragraph is not true. He did not say that to the solicitor Michael Lloyd, and he only told him that the car belonged to him. He did not ever consider that in a sense, cultural or otherwise, that Enrico Votino was the owner of the vehicle or any part of it. I am unable to accept this evidence. I think that it is neither truthful, credible nor reliable.
Mr Antonino then agreed that he changed the number plate to RICO 77. 1977 is the year of Enrico Votino’s birth. He said that he did that because if Enrico wanted to take the car to the drags, he can drag race it with his own number plate upon it.[34] I am not prepared to accept that evidence, I think it is fanciful. There is no evidence that a number plate has to be put upon a vehicle when it is used for drag racing. I consider that, on the balance of probabilities it is quite obvious that the new number plate was arranged at the time he had transferred the vehicle to Enrico Votino.
[34] T70.1-15.
He was then taken to his affidavit of 6 September 2019; in paragraph 14 he said that throughout the period of not having any place to store the Holden, Enrico Votino was not paid any money; in the period of the storage he had lost his licence; and that he did not put much thought into the use of the vehicle. When he got his licence back, he wanted to collect the motor vehicle but that is when he discovered that it was seized by the police.
He was asked whether or not that passage in that paragraph of Exhibit A2 was true. He denied that it was true. He said he found out when he was told in 2019 by Michael Lloyd. He made no effort at all to get his vehicle back either from Alviti or either of the Votinos prior to being told that it was seized by police.[35] He also denied that when he got his licence back he wanted to collect his vehicle. He said he wanted to collect the vehicle well prior to that time. He does not know precisely when he got his licence back but he knows that he got it back at the time when the vehicle was at Alviti’s house.[36]
[35] T72.1.
[36] T72.34.

Referring again to paragraph 14 of Exhibit A2, he was asked whether, he had not put much thought into the use of the motor vehicle throughout the twelve months that he was under suspension of his licence. He then said that affidavit was prepared by the solicitor Jennifer Stefanac and he was not agreeing to the content of that affidavit as correct. He said that she had written the affidavit wrong. I am not prepared to accept this evidence. There is no evidence before me that raises any credible suggestion that the solicitors Mr Lloyd and Ms Stefanac did anything apart from to faithfully record the instructions given to them by Mr Antonino. I am conscious that Mr Antonino has had some personal medical difficulties, but he now asks me to accept a very different version of events than is reflected in the affidavits. This version now better suits the factual basis of his application. I am not prepared to do so because I am satisfied that his evidence was unsatisfactory, and it was not credible, reliable or truthful.
I obtained no assistance from the evidence given by Mr Antonino or from Exhibits A1, A2, A3, the contents of which were contradicted by Mr Antonino in his evidence notwithstanding that they were his affidavits.
On the question of proof, it is only necessary for Mr Antonino to satisfy me on the balance of probabilities of his alleged right. He needs to satisfy me on the balance of probabilities that he has a right to an exclusion from the forfeiture order in respect of the Holden motor vehicle. He has received the permission of the Court to bring the application.
I have already discussed in detail the content of the evidence of Mr Antonino. This evidence does not satisfy me on the balance of probabilities of the right of Mr Antonino to obtain the exclusion order. The evidence he has given was not sufficient to discharge the onus on the balance of probabilities that he owned the Holden vehicle. In my opinion, his evidence varied between incredible and unreliable. I am of the opinion that his evidence about where the vehicle was at any particular time leading up to the time it was at Alviti’s home in 2018 was neither credible nor reliable.
The letters from Mr Lloyd that I have set out in some detail earlier in these reasons were written at the time when Alviti had been arrested. They were written on the instructions of Mr Antonino. The affidavit was prepared by Mr Lloyd, a careful and experienced solicitor. Mr Antonino contends that at that time he wanted to get his car back because, as he said, he wholeheartedly and strongly felt that it was his vehicle and his alone. That contention cannot sit with the contents of the affidavits sworn by Mr Antonino as prepared by Mr Lloyd. The content of those affidavits was checked by Mr Antonino and he identified errors within them which were corrected before being signed.
Similarly, Mr Antonino would not accept the content of the affidavits prepared by Ms Stefanac, who is also a careful and experienced solicitor. Notwithstanding that Mr Antonino said that he had detected errors in the affidavit, and asked for them to be corrected, he now says that the content of the affidavit is erroneous. I accept the submission of the prosecution that if those paragraphs were erroneous and those errors had been identified, there can be no doubt that they would have been corrected. On the evidence of Mr Antonino, this did not occur; I am unable to accept this evidence. I consider that the affidavits reflect accurately the state of mind of Mr Antonino at the time. They are inconsistent with his case now and strike at the credibility and reliability of his version of events which he would ask the court to accept.
I am satisfied that in 2018, Mr Antonino was not the owner of the Holden vehicle. I am satisfied that by agreement with Mr Antonino that vehicle came into the possession and control of Mr Votino sometime in 2014 because of the shortage of cash then being suffered by Mr Antonino. I am also aware that Mr Votino now makes no claim to the ownership of the vehicle and it is accepted that for all intents and purposes, Alviti had the effective control of that vehicle. Mr Alviti makes no claim upon the vehicle.
Although it is not necessary for me to make any finding on the point, I think it is likely that there was some arrangement made between Mr Votino and Alviti in relation to the ownership of the vehicle such that there had been a transfer of ownership between them. I am satisfied that Alviti was in effective control of the vehicle at the time of his arrest. The declaration of deemed forfeiture has been made. I am satisfied that there is no basis on the evidence before me that any order should be made in favour of Mr Antonino for an exclusion order in respect of that Holden motor vehicle. I dismiss the application.
I will hear the parties on the question of any consequential orders or other declarations.

[2022] SADC 9

31 January 2022