R v SICILIANO and ORS No. SCCRM-98-191 Judgment No. S85

R v SICILIANO and ORS
[1999] SASC

Criminal

PERRY J. Michael Anthony Siciliano stands charged with eight counts of selling amphetamine/methylamphetamine, one count of taking part in the sale of cannabis and two further charges of possessing amphetamine and methylamphetamine respectively for sale. He proposes to defend the charges.
On Tuesday 23 February 1999, I dismissed an application by Mr Siciliano for an indefinite stay of the proceedings.
At the time I dismissed the application, I reserved the right to deliver reasons.

History of the matter

Mr Siciliano was originally charged on a joint information involving five other accused. Two of them have since pleaded guilty. I have remanded them to a date to be fixed for sentencing. The Director of Public Prosecutions now proceeds on an amended information for the 8 March sessions, as to which, apart from the two who have pleaded guilty, there are three other accused in addition to Mr Siciliano.
The counts upon which he stands charged are against him alone.
During the latter part of 1998, I conducted a number of pre-trial directions hearings during which I rejected applications for separate trials of the co-accused and dealt with other pre-trial matters. I directed that the trial commence on 27 January 1999.
When the matter was called on for hearing on 27 January 1999, Mr Siciliano appeared unrepresented. He said that he did not have the funds to pay for a lawyer, although at one stage Mr Michael Waye had represented him. He told me that he owned a number of cars which, if he could sell them, would enable him to fund his defence, but they were the subject of a restraining order.
In fact, it appears that, sitting in the Civil Division of the Magistrates Court at Adelaide, Mr Cannon SSM made an order on 25 August 1997 under the Criminal Assets Confiscation Act 1996 (“the Act”) restraining Mr Siciliano from disposing of his interest in a house property at Roediger Road, Gawler River, two blocks of land at Moonta and Moonta North respectively, and four motor vehicles. The motor vehicles the subject of the restraining order were a Mercedes sedan registered number SED 474, a Holden sedan registered number GTS 083, a Chevrolet sedan registered “Comaro” and a Porsche sedan registered number UOD 699. A sum of money, namely, $9,287.10 was also the subject of the restraining order, being money seized by the police during the course of their inquiries.
Mr Siciliano intimated that, short of obtaining a release of some of the restrained assets, he was unable to fund his defence.
Given that under s15 and s20 of the Act the court may authorise the application of restrained property towards the payment of legal costs, I made immediate inquiries to see whether or not an application by Mr Siciliano for the release of part of the restrained property could be heard as a matter of urgency, so that the trial in this Court would not be unduly delayed. On the same day, that is, 27 January 1999, I was able to ascertain from the Chief Magistrate, Mr Moss, that he would be able to call on the proceedings in which the restraining order had been made the following morning, so as to entertain an application by Mr Siciliano for the release of some of the assets. I then stood over the hearing before me.
On 28 January 1999, Mr Moss CM ordered that Mr Siciliano and his wife, who joined in the application in that court, file affidavits detailing their financial situation and other matters, following which he adjourned the matter.
On Tuesday 9 February 1999, he delivered an ex tempore judgment dismissing the application. He found that neither Mr or Mrs Siciliano was able to satisfy him “that they have cleared the hurdle in placitum (a)(ii) of subs2 of s20 of the Act”.
That subsection provides, amongst other things, that before permitting the application of property the subject of a restraining order towards legal costs, the court must be satisfied that the person seeking access to the property “has no other source of funds (within or outside the State) that could reasonably be applied towards legal costs”. The reason why the magistrate concluded that neither Mr Siciliano nor his wife could satisfy that requirement, was that they owned a number of other motor vehicles not the subject of the restraining order, which, if realised, would be ample to cover the estimated costs of the trial. During the course of Mr Moss CM’s reasons, which were subsequently tendered in this Court, it appears that on the evidence given before him, Mr and Mrs Siciliano were likely to incur costs of the order of $40,000 each to defend the trial.
The learned Chief Magistrate specifically found that there was no evidence before him that any of the vehicles which he considered capable of being sold to pay for legal expenses were encumbered in any way. He made that finding in the face of evidence from Mr and Mrs Siciliano that they owed large debts, principally to Mr Siciliano’s father, and that they did not consider that they could sell the cars without repaying those debts.
Following the Chief Magistrate’s decision, namely, on 10 February 1999, the matter was re-listed before me. When I questioned Mr Siciliano to ascertain his intentions, he made some comments which could only be interpreted as challenging the decision of the Chief Magistrate. I explained to him that he was not in a position to do so in that way, and that it was not open for me to review the decision. I asked him whether, despite the Chief Magistrate’s decision, he nonetheless sought an order from me to stay the proceedings in this Court, on the basis that he lacked the means to pay for legal representation. When he informed me that he did wish to apply for a stay, I waived the formalities attendant upon the making of an application, and indicated that I would start the hearing of the application for a stay the next day.
I then proceeded to hear the matter on 11, 12, 15, 16, 17, 19, 22 and 23 February 1999. On the last mentioned date, as I have explained, I dismissed the application.

The hearing of the application

Mr Siciliano gave evidence, and called his wife Gillian Siciliano and his father Eugenio Siciliano.
Mr Snopek for the Crown called Ms Karen Lehmann from the Legal Services Commission, and two other witnesses, Vincent Ventrice, manager of Unique Autos which trades from Beverley, and Steven Ward, new car sales manager with United Motors.
Mr Siciliano is 40 years of age. He was born in Italy and came to Australia in 1960. He took his schooling to the stage of obtaining a leaving certificate, and started to work in the Commonwealth Bank, but more recently has made a living from selling and detailing cars.
He has two children by his wife Gillian, aged 13 and 14. He lives with his wife and family in a house on an allotment which he estimates to be just under two and three-quarter acres at Roediger Road, Gawler River. The house property is registered in his and his wife’s names. As well, there are two blocks of land registered in the names of his children, one at Moonta and the other at Moonta North. It appears that the blocks of land are worth of the order of $6,000 each.
The Roediger Road property was bought in 1989 for a price of approximately $124,000. It has first and second mortgages on it in favour of the Commonwealth Bank. Evidence as to the present value of the Roediger Road property is sketchy, but it appears that it is presently worth of the order of $140,000. An amount of approximately $70,000 is currently due in total on both mortgages to the Commonwealth Bank.
The Commonwealth Bank has taken action in this Court for an order for possession in aid of sale, re-payments on the mortgage being substantially in arrears. On 9 December of 1998, an order for possession was made against Mr and Mrs Siciliano by Judge Bowen Pain. At the time of the hearing before me, Mr and Mrs Siciliano had been told to leave under threat of execution of the order, and were looking for another place to live.
As I have already indicated, the Roediger Road property and the two blocks of land at Moonta and Moonta North, together with several motor vehicles, are the subject of the restraining order made under the Act. The restraining order is, of course, subject to prior equities, and will not operate to prevent the bank from taking possession of and selling the Roediger Road property.
In recent years, Mr Siciliano has conducted a business of sorts from that property, which is best described as a business of “wheeling and dealing” in cars, including car detailing.
On 4 July 1997, police officers raided the Roediger Road property, upon which they found, amongst other things, some 32 vehicles. A sketch plan was prepared indicating roughly where each of the vehicles was located, and in most instances the make and the registered number. That plan was tendered in evidence on the hearing of the application before me.
The Crown case in answer to the application was that, even putting aside the house property, the two blocks of land at Moonta and Moonta North and the vehicles the subject of the restraining order, a number of other motor vehicles still in Mr Siciliano’s possession could, if necessary, be sold by him and would, if that course was taken, be likely to yield a sum of money which would be ample to fund Mr Siciliano’s defence.
Mr Siciliano’s case was that over the years his father has lent to him considerable sums of money, in excess of $100,000, and that it is his father’s money that has gone into most of the vehicles in question. As to one or two vehicles, he said in evidence that he owed money to others, in one instance to his brother. He submitted that he was not in a position to sell any of the vehicles without accounting for what he owed to his father and brother, and that if he did so, there would be virtually nothing left by way of net proceeds. They were therefore, in the relevant sense, encumbered, and not available to be realised to fund his defence.
During the course of his evidence, Mr Siciliano gave a convoluted and unconvincing account of various complicated transactions which related historically to his acquisition and possession of a number of the vehicles. Having seen him in and out of the witness box over many days of hearing, I do not regard him as a witness of credit, and I am not prepared to accept his account of those transactions, even on the balance of probabilities, except where there is clear corroboration by reference to documentation or other evidence.
Throughout the proceedings, I gained the clear impression that Mr Siciliano was determined to waste as much time as he could in the hope that if he spun out the hearing of the application for long enough, this might prejudice the ability of the Crown to proceed with the trial of the substantive charges.
During the course of the hearing before me, I made orders restraining the disposal of a number of cars still then in Mr Siciliano’s possession, not the subject of the restraining order made under the Act. I did so as an exercise of the inherent jurisdiction of the Court to prevent an abuse of process, and to preserve the subject matter of proceedings before their determination. I was of the view that if I did not do so, there was a risk that they would be sold, and the proceeds applied other than towards the cost of Mr Siciliano’s defence. I discharged the order when I dismissed the application.
Mr Siciliano’s father gave evidence of the various advances of money which he had made to his son over the years. The major part of the loans which he made were to assist his son in the purchase of Roediger Road and certain properties which Michael Siciliano and his wife had purchased before they moved to Roediger Road. If I was to be conducting an exercise in tracing, it seems to me that most of the moneys advanced by Mr Siciliano senior should be regarded as taken up in whatever equity there is in the Roediger Road property.
Be that as it may, Mr Michael Siciliano concedes that he has never repaid a cent to his father, and the main point which his father made in evidence was that he wanted his money back, despite the fact that he had asked his son for repayment many times. Furthermore, Mr Siciliano senior indicated that he was not interested in the motor vehicles as such, only in repayment of what was owed to him from whatever source his son might be able to finance repayment.
Mr Ventrice and Mr Ward gave evidence of their involvement in certain transactions to do with some of the vehicles, but their evidence goes nowhere in establishing any legally recognisable encumbrance over those of the vehicles which the DPP singles out as being available to be realised by Mr Siciliano.
Ms Lehmann, who is a solicitor in the employ of the Legal Services Commission, informed the Court that Mr Siciliano had lodged an application for legal assistance on 25 January 1999. By letter dated 8 February 1999, the Commission wrote a letter asking for further information. As at the time when the hearing before me was completed, the further information had not been supplied by Mr Siciliano.
In this case, the question of the availability of funding from the Legal Services Commission is not a factor upon which anything turns. I say that because if Mr Siciliano was to satisfy the Court that the other items of property available to him, apart from the property the subject of the restraining order, were insufficient to pay for his defence, there is clearly enough value in the restrained assets for that purpose.
At the end of the day, I am satisfied that there are at least five vehicles which are available to Mr Siciliano, which are not legally encumbered, and which could be realised by him to fund his defence. In reaching that view, I have in mind the evidence of Mr Michael Waye given before the Chief Magistrate, which was tendered by consent before me, from which it appears that a reasonable assessment of the cost of the defence of the trial, which is estimated to last about six weeks, is $40,000.
I list the cars which I consider to be available for that purpose. I refer to them by the number assigned to them in the sketch plan prepared by the police officers on the occasion of the raid in July 1997, and in each case give the approximate value:
Car 2 - Monaro - registration number SGH 018 - $2,000 to $3,000.

Car 4 - Commodore - registration number UMR 530 - $8,000.
Car 6 - Ford sedan - registration number 3512 - $10,000.
Car 11 - Commodore - registration number HSV 402 - $27,000.
Car 7 - Commodore - registration number HSV 043 - $30,000.

Cars 2, 4 and 7 are registered in Mr Michael Siciliano’s name. Car 6 is registered in Gillian Siciliano’s name, and car 11 in the name of their children.
As to car 6, Gillian Siciliano’s evidence was that she owed $5,000 to her own lawyer to do with the proceedings, but that she would be happy to have it sold and after payment of her legal expenses of $5,000, would be prepared to see the balance applied towards the cost of her husband’s defence.
As to car 11, Mr Michael Siciliano maintains that it was bought with moneys provided by his father, including a car formerly owned by a Mr Mignione, to whom his father advanced money. Mr Michael Siciliano’s case was that if that car was sold, the proceeds would have to be repaid to his father. Not, it should be noted, for the benefit of his children, notwithstanding the fact that it is registered in their names. Furthermore, Mr Eugenio Siciliano’s evidence was that he never asked for the car to be put in his grandchildren’s names and did not know that it had been.
In those circumstances, it seems clear that the registration by Mr Michael Siciliano of car 11 in the name of his two children cannot be regarded as evidence of any proprietary interest in the vehicle on their part.
Furthermore, as I have indicated, that evidence falls far short of establishing that there is any legally recognisable interest in any of the vehicles to which I have referred, whether by way of charge, lien or in any other way in favour of Mr Siciliano senior or any other person, except for car 6, in which I accept Mrs Gillian Siciliano may have an interest.
In these circumstances, the inevitable conclusion is that Mr Siciliano has not discharged the onus upon him of satisfying me that he is indigent in the sense in which that expression is used in Dietrich v R.[1]
[1] (1992) 177 CLR 292. See also R v Marchi (1996) 67 SASR 368.
It is for these reasons that I dismissed his application for a stay.
At the same time I indicated that I would allow some two weeks before commencing the trial, during which time he could make appropriate arrangements to sell vehicles, if that was what he wished to do, in order to obtain funds to brief counsel. In fixing that period, I took account, inter alia, of the evidence of Mr Ward, who deposed to the fact that “everything is saleable”; that if appropriate instructions are given to an auctioneer, a car should sell “in the first day”; that “90% of the cars that go through move through on the day”; that sales by auction are cash transactions; and that there are auctions by the three major car auction houses in Adelaide on Monday, Wednesday and Friday of each week.
When Mr Siciliano appeared before me on Monday 8 March 1999, he indicated a desire to appeal from my decision. I dealt with the matter on the footing that he was applying for leave to appeal pursuant to s352(1)(c)(i) of the Criminal Law Consolidation Act 1935. I explained to Mr Siciliano that I could only grant leave to appeal if it appeared to me that there were “special reasons” within the meaning of the subsection as to why the appeal should be determined before the commencement of the trial. He was unable to satisfy me that there were any such special reasons, and I refused leave. In doing so, I took into account the decision of Kirby J sitting in the High Court, in Frugtniet v Victoria.[2]
[2] (1997) 148 ALR 320.
Mr Siciliano also indicated that he had approached several lawyers to see if they would act for him, but without success. They included Mr Michael Waye, who had previously been briefed in the matter. Mr Siciliano said that he had offered them a certain sum of money, but did not indicate how much he had offered.
I took the view that he had been given a reasonable opportunity to realise assets and brief counsel. He did not satisfy me that he had made proper use of that opportunity, and I was again of the view that he was deliberately attempting to hold up the proceedings in a manipulative fashion, hoping that if he procrastinated long enough, he would frustrate the trial process.

I therefore determined to proceed with the trial, which commenced on Monday 8 March 1999.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

(1992) 177 CLR 292. See also R v Marchi (1996) 67 SASR 368.
(1997) 148 ALR 320.

[1999] SASC 85

11 March 1999