R v Votino

[2025] SADC 5

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v VOTINO

[2025] SADC 5

Judgment of his Honour Judge Slattery 

5 February 2025

CRIMINAL LAW - PROCEDURE - BAIL - RECOGNISANCES - FORFEITURE AND ESTREATMENT - RELIEF FROM ESTREATMENT AND REDUCTION OF LIABILITY

The applicant, Mr Pasquale Votino, executed a guarantee of the bail of his son, Enrico Votino in the amount of $5,000.

Upon a failure by Enrico Votino to comply with the conditions of his bail, an order was made for the estreatment of the bail agreement and for the payment of the amount due under the guarantee of bail.

Whether for s 19(3) and (3)(a) of the Bail Act 1985, orders should be made for the reduction of the amount payable under the guarantee or the rescission of such order or time for payment orders should be made.

Held:

Application dismissed.

Bail Act 1985 (SA), referred to.
Re McKinnon (1986) 40 SASR 326 ; Schoenmakers v Director of Public Prosecutions (No.2) (1991) 31 FCR 429; R v Uxbridge Justices; ex parte Heward-Mills [1983] 1 All ER 530; R v Southampton Justices; Ex Parte Green [1976] QB 11 ; R v Agius [2012] SASC 136; R v Rigney (No.2) (1988) 49 SASR 389 , considered.

R v VOTINO
[2025] SADC 5

1. This is an application by Mr Pasquale Votino dated 12 September 2024 for the rescission or reduction of a bail forfeiture. On May 2024, Mr Pasquale Votino executed a guarantee of the bail agreement of his son, Mr Enrico Votino. The guaranteed amount was $5,000. The requirement for the provision of this guarantee was a condition of bail granted to his son, Mr Enrico Votino.

2. The circumstances of the prosecution brought against Mr Enrico Votino are that on 31 October 2018, Police attended at 21 and 23 Goodall Avenue, Kilkenny. The accused, Enrico Votino who was arrested on the same day, was initially alleged to be the owner of both properties at which large amounts of chemicals and equipment were located. The chemicals and equipment found are said to be associated with the manufacture of methylamphetamine. It was estimated that a total of 1.8 kilos of methylamphetamine could have been manufactured from the quantities of the chemicals found. Mr Pasquale Votino is the registered proprietor of the property more commonly known as 23 Goodall Avenue, Kilkenny.

3. Mr Enrico Votino was jointly charged with Stephen Patti with two counts of manufacturing a large commercial quantity of a controlled drug for sale.

4. Both accused pled not guilty on 3 July 2020 and an initial trial date was set for 28 June 2021; seven days were set aside. This trial was not reached, and a new trial date was listed for 20 June 2022. The trial was then set to commence on 27 June 2022, however Mr Votino’s counsel brought an application to withdraw from the file, citing a relationship breakdown. A new trial was listed for 19 June 2023. Following a number of adjournments, the trial was vacated on the application of defence counsel and another separate trial for Mr Patti was listed for 4 March 2024. There was a mistrial of this separate trial.

5. On 9 April 2024, a new trial for Mr Enrico Votino (and Mr Patti jointly)  was ordered to commence on 8 October 2024, with twelve days set aside. A directions hearing was set for 9 May 2024 at 9.00 am. On 9 May 2024, Mr Enrico Votino failed to attend and a warrant for his arrest was issued; on 10 May 2024, he was arrested and granted bail but on the condition that there be two guarantors. His father Mr Pasquale Votino was notified that his son had been arrested. He agreed to be a guarantor in the amount of $5,000.

6. On 24 May 2024, Mr Enrico Votino failed to appear at Court as required and so was in breach of his bail.  Her Honour Judge Telfer issued a second warrant for his arrest. On 28 May 2024, Mr Enrico Votino surrendered to police when he became aware of the warrant and a subsequent bail application on 24 July 2024 was refused. On 14 June 2024, the Director of Public Prosecutions made an application for estreatment of bail and claimed upon the guarantee. Orders were made in favour of the Director.

7. As I earlier recounted, the guarantee executed by Mr Pasquale Votino was dated 10 May 2024. He guaranteed his son’s bail in the amount of $5,000. Mr Francesco Puopolo executed a guarantee in the same terms and on the same day.

8. S 19(3) of the Bail Act 1985 provides:-

   (3)If a court makes an order under this section, the court may at any time for any sufficient reason, on the application of the person in relation to whom the order is made or on its own initiative—

   (a)     reduce the amount of the forfeiture as stipulated in the bail agreement or guarantee; or

   (b)     rescind its order.

   (3a)A court that makes an order under this section may allow time for payment of the amount forfeited and, if appropriate, direct that the amount be paid in instalments.

9. Under these sub sections, the Court has the discretion whether at any time or for any sufficient reason, on the application of a person in relation to whom the order is made, to reduce the amount of the forfeiture as stipulated in the bail guarantee or to rescind the order.

10. Mr Pasquale Votino has brought an interlocutory application dated 12 September 2024 (FDN 191). The application details are:-

    ‘This application is for rescission or reduction of an order that a pecuniary forfeiture order stipulated in a bail agreement or a guarantee be carried into effect. This application is made under s 19(3) of the Bail Act.’

11. Lengthy grounds are contained within the application; an affidavit in support was filed later in November 2024. The grounds of the application filed are in a narrative form and are reminiscent of an affidavit. In summary, these grounds state:-

    1.   Mr Pasquale Votino (read) but misunderstood the bail conditions as English is his second language.  He does not say what difficulties he has comprehending written English. He understood that he had to prevent his son from leaving the state. He did not realise there were other conditions attached. He does not say how he obtained comprehension of one term of a bail agreement but not others.

    2.   Mr Pasquale Votino was aware that his son had been arrested and taken to the Port Adelaide Police Station between 8 and 9 pm on 10 May 2024. His son’s girlfriend asked him for help and although he did not have a clear understanding what had happened, he then went to the Port Adelaide Police Station to give assistance as requested.

    3.   Mr Pasquale Votino had not been aware that his son was going through court, he did not see his son often and had little communication with him. By later attending court, he then gained the understanding that his son was attempting to evade court hearings to avoid the trial and was changing lawyers. He did not understand the terms of the guarantee until he was asked to pay the $5,000. He does not say how it is that he understood that the document he signed meant that his son could not leave the state, what role he played in that condition and how it could be that he did not understand he was signing a guarantee of bail.

    4.   Due to a combination of circumstances, he did not truly comprehend all his responsibilities as a guarantor. He asks for an order for rescission of the order for the payment of the sum of $5,000 required the guarantee or alternatively reducing that amount.

12. There are a number of significant weaknesses in the material filed in support of the application of Mr Pasquale Votino. It is not clear how he only understood that he needed to prevent his son leaving the state. This was only one of several conditions of the bail agreement required to be observed by his son. He said he was told this by Mr Puopolo, but I have significant doubts about the credibility of this statement.

13. He was aware his son was arrested and held at a Police Station. It takes little imagination to realise that his son was arrested because he is accused of committing an offence. His son’s girlfriend asked for his help which logically was in connection with the arrest.

14. He may well not have been aware that this son was going through Court initially but he was asked and he agreed to be a guarantor of bail, at least one of the terms of which he understood. It is a very strange result that he is aware of his son’s arrest, is asked for help, goes to a police station where his son is being held and then subsequently is asked to sign a guarantee but he does not connect those events with the behaviour of his son and his troubles with the police, including that he was charged with a serious offence. It was even more peculiar that as a father, he did not take the time to get a full explanation about the whole of these events from his son, Enrico Votino, whose bail he had just guaranteed.

15. Following a preliminary hearing on 11 November 2024, Mr Pasquale Votino filed an affidavit dated 19 November 2024 in support of his application. Subsequently, on 27 November 2024 the affidavit was read into evidence and Mr Pasquale Votino was cross-examined.[1]

    [1] See in Re: McKinnon (1986) 40 SASR 326 at 328 per Matheson J.

16. In his affidavit, the contents of which were not accepted by the Director, Mr Pasquale Votino avers that:-

    1.   He is the father of Enrico Votino who was subject to 2 charges of Manufacturing a Large Commercial Quantity of a Controlled Drug for Sale;

    2.   He is originally from Italy and states that English is his second language and therefore struggles to read and write in English. In compiling the information for the affidavit, he had been assisted by his two daughters. The affidavit was later read to him, and he confirmed that he understood the contents of the affidavit;

    3.   Enrico Votino spent time in custody approximately 15 years ago, and following his release he married his wife Wanlaya, who speaks limited English. Mr Pasquale Votino was of the belief that his son was on the right track and living a law-abiding life.

    4.   On 10 May 2024 Wanlaya rang Mr Pasquale Votino at approximately 7 pm. They both struggled to communicate with each other as Wanlaya also struggles with the English language. Mr Votino was able to understand that his son Enrico had been taken by the Police.

    5.   He understood that his son needed someone to sign something for him to be released.

    6.   He attended at the Port Adelaide Police Station with Mr Puopolo and understood that if he did not sign ‘it’, his son would not come home.

    7.   He recalls speaking to a Police Officer, but could not remember the specifics of that conversation or discussing the conditions of Enrico’s bail agreement. He did not understand that he would have to pay $5,000 if Enrico did or did not do certain things.

    8.   He recalls Mr Puopolo telling him a couple of times that Enrico could not leave the state. At a certain point thereafter, he became aware that Enrico did not attend Court on 24 May 2024.

    9.   On 9 August 2024 he attended the Court for one of Enrico’s hearings with his daughter Rosie. At this hearing he learnt of the true nature and history of his son’s charges. He did not quite understand what it all meant.

    10. If he had known the truth about these matters, he would not have been willing to act as guarantor for any amount of money.

    11. He is a pensioner and does not have any savings. He receives $794.35 per fortnight from Centrelink.

17. I think it is clear from the averment in this last paragraph (11) that Mr Pasquale Votino intended to convey that he is not a man of means, that he has no assets of particular worth and he survives on his pension without any other source of income.

18. Also filed and read into evidence was an affidavit of Brevet Sergeant Barry Phillips dated 1 October 2024. In his affidavit, Brevet Sergeant Phillips deposes that:-

    1.   At about 5:30pm, Mr Puopolo arrived at the Port Adelaide Police station with Wanlaya to sign the bail guarantor papers in relation to Enrico Votino.

    2.   Sergeant Phillips explained to Mr Puopolo each clause of the bail agreement and then Mr Puopolo clarified his own understanding of what he was signing. He then signed the guarantor agreement.

    3.   When attempting to explain the bail agreement to Wanlaya, Sergeant Phillips formed the view that she spoke limited English and did not understand what was being said.

    4.   He refused to allow Wanlaya to sign the guarantor papers.

    5.   At about 7:30pm, Mr Puopolo returned with Mr Pasquale Votino.

    6.   Sergeant Phillips sat down with Mr Pasquale Votino and explained each clause of the guarantor agreement and had Mr Pasquale Votino explain back to him, in his words, what each clause meant.

    7.   Mr Puopolo made multiple attempts to interfere and manipulate Sergeant Phillip’s actions, and so Sergeant Phillip’s was extra pedantic in ensuring that Mr Pasquale Votino understood what he was signing.

    8.   Having spent many years as a Bail Authority, Sergeant Phillips always ensured that a person had a thorough understanding before signing a bail or guarantor agreement.

    9.   He was satisfied that Mr Pasquale Votino was able to satisfactorily explain the agreement (back to him), thus indicating that he understood what he was signing.

    10. Only then did Sergeant Phillips allow Mr Pasquale Votino to sign the agreement.

19. Mr Pasquale Votino was cross-examined on the content of his affidavit. In making my observations of him giving evidence, I have made full allowance for the fact that: English is not his first language; he is elderly; that the court process is foreign to him, as it is to most people; and that I should not draw conclusions about his evidence too quickly as that may be unfair.

20. During cross-examination on his affidavit, I found that Mr Pasquale Votino was an unreliable witness who provided contradictory and confused evidence in direct contrast to the evidence of Sergeant Phillips. For example, he was able to recall Sergeant Phillips explaining the guarantor agreement, but that he did not understand it fully, whereas on his unchallenged affidavit, Sergeant Phillips said that he was satisfied that Mr Pasquale Votino had understood the terms.[2] This is in direct contradistinction to Mr Pasquale Votino’s affidavit which stated that he could not ‘remember the specifics of that conversation.’

    [2]     T13.20-28; T14.8-13; T14.26-29.

21. This raises a further peculiarity about the evidence of Mr Pasquale Votino. On 19 November 2024 Mr Pasquale Votino swore an affidavit in support of his application. It is expressed in plain but formal English. It was taken and prepared by his solicitor Mr Horskins. I am satisfied from the evidence of Mr Pasquale Votino that Mr Horskin’s very carefully took instructions from him, prepared the affidavit and ensured by reading it out carefully to him, that Mr Pasquale Votino understood its contents and was prepared to swear to the truth and accuracy of its contents.

22. Then in evidence before me about a week after he swore to the contents of this affidavit and when questioned about the making of this affidavit, he said that he didn’t read the affidavit he signed.[3] I am satisfied that the affidavit was prepared on his instructions, it was read over to him paragraph by paragraph, he signed each page only after satisfying his solicitor that he understood and agreed to its contents and he was prepared to swear to the accuracy of the contents of the affidavit. This is the same process in connection with the execution of the guarantee which was used by Sergeant Philips at the Port Adelaide Police Station. I am not prepared to accept the evidence of Mr Pasquale Votino to the contrary as being credible or reliable.

    [3]     T20.36-21.27; T21.34-22.16.

23. Following Enrico Votino’s breach of bail and arrest, the Court made an order that Mr Pasquale Votino pay the bail forfeiture. Then, at a hearing before her Honour Judge Telfer to determine whether to reinstate Mr Enrico Votino’s bail, Mr Pasquale Votino once again stated that he was prepared to act as guarantor.[4] In cross-examination, however, he stated that he did not remember Enrico Votino going into gaol on this occasion and that he never offered a further guarantee of bail.[5] Her Honour refused to reinstate bail on that occasion.

    [4]     T15.34-35; T17.11-26; T18.16-32.

    [5]     T20.30-33.

24. This in turn raises a number of other troubling aspects of the version put to the court by Mr Pasquale Votino.

25. On 9 August 2024, Justice McIntyre heard and dismissed an appeal from the refusal of Judge Telfer to grant Mr Enrico Votino bail. Mr Lloyd, solicitor, appeared for Mr Enrico Votino. He informed the court that Mr Pasquale Votino and his wife owned the property at 23 Goodall Avenue Kilkenny and they had built a unit at Bedford Street Croydon, in which they live. The solicitor informed McIntyre J that this Goodall Avenue property remains the address of Mr Enrico Votino. It may reasonably assumed that Mr Enrico Votino and his wife rent the property from his parents. It is a certainty that the property has capital value and an ongoing cashflow value in the very competitive rental market in Adelaide.[6]

    [6]     Mr Pasquale Votino gave no evidence to suggest that the property in Kilkenny was subject to a legal or equitable mortgage.

26. In his affidavit, Mr Pasquale Votino makes no mention of this asset (or the potential income stream that may be earned from either or both of them). In submissions put on his behalf by Mr Horskins on his capacity to pay, no mention was made of the asset of the property at Kilkenny. I am unable to accept the submissions put on behalf of Mr Pasquale Votino that his capacity to pay must be measured against his version of events. As well as his residence at Bedford Street Croydon, he jointly owns with his wife a house property in Kilkenny and therefore (notionally at least) a half share of a potential income stream from the rental of that property.

27. A further matter was put to McIntyre J. The solicitor for Mr Enrico Votino informed her Honour that Mr Pasquale Votino had agreed before Judge Telfer he would again be prepared to act as guarantor for his son’s bail despite his exposure to a liability to pay the sum of $5,000 on the first guarantee. In cross-examination before me, Mr Votino agreed that the statement of the solicitor to McIntyre J was accurate. This exchange before McIntyre J occurred after a hearing before Judge Telfer who expressed concerns about whether Mr Pasquale Votino would be prepared to execute a second guarantee of his son’s bail despite his liability for the $5,000 on the first guarantee. Mr Pasquale Votino said he would be so prepared.[7]

    [7]     T16.1-T17.31; T35.21-37.19.

28. This evidence confirms the adverse view of the evidence of Mr Pasquale Votino that I have formed. I am unable to accept his evidence on these topics as credible or reliable. The evidence of the police officer Brevet Sergeant Phillips was not challenged in cross examination. The process employed by him to explain the guarantee to Mr Pasquale Votino was remarkably similar to that employed by his solicitor in preparing the affidavit of Mr Votino of 19 November 2024. Both carefully ensured that Mr Pasquale Votino was informed of the contents of the document he was to sign, each required him to explain to them the content of those documents and each was satisfied that he fully understood the whole of the content and the effect of the documents. The evidence of Mr Pasquale Votino to the contrary in my view has no credibility. It is not reliable and carries no weight.

29. Finally, Mr Pasquale Votino clarified during cross-examination that he thought he would become liable only if Enrico Votino left the state. He did not realise that the same would occur if his son breached his bail conditions in the state, for example if Enrico Votino failed to attend court.[8] There was no explanation about how he came to this understanding, even after speaking to Mr Puopolo and then later to Sergeant Phillips. I would not accept as credible or reliable that this was his understanding after the further hearing before her Honour Judge Telfer and on the appeal before McIntyre J. I reject this evidence for the same reasons.

    [8]     T20.1-7.

    The application of principle

1. Under s 19(3) of the Bail Act, I have a discretion at any time and for any reason on the application of the person affected, to reduce the amount of forfeiture stipulated in the bail guarantee or to rescind the order. There are a number of authorities which bind my consideration of the material in this application.

2. The decision of Foster J in Schoenmakers v Director of Public Prosecutions (No.2)[9] involved a request of the Government of the United States that Mr Schoenmakers be arrested on a provisional warrant under the Extradition Act 1988 (Cth). The requested order was made by a Magistrate. Mr Schoenmakers applied to the Supreme Court of Western Australia for a review of the Magistrate’s decision. The application was dismissed. He lodged an appeal to the Federal Court of Australia where, pending the appeal hearing, he was granted bail, conditional upon him entering into a recognisance with two cash securities in the sum of $100,000. Mr Schoenmakers failed to appear on the appeal hearing date and following a motion by the Director of Public Prosecutions, the Court ordered that his bail be estreated. The sureties brought an application against that order seeking orders for the reduction of the amount of forfeiture on account of hardship.

   [9] (1991) 31 FCR 429.

3. In reaching his decision, Foster J referred with approval to a passage from the speech of Lord Denning in R v Southampton Justices; Ex Parte Green.[10] Lord Denning explained that in considering such an application, a Court should give consideration to the degree of culpability of the surety and, if for example, the surety had not connived, aided, or abetted in the breach of bail. His Lordship said that it may be proper to rescind the bail forfeiture if the guarantor was guilty of no want of diligence and used every effort to secure the appearance of the accused.[11] In Shoenmakers, Foster J accepted that these were some of the appropriate considerations to take into account in the exercise of the discretion.

   [10] [1976] QB 11 at 19.

   [11] Ibid at pp 19.

4. In R v Uxbridge Justices; ex parteHeward-Mills,[12] McCullough J referred to a number of cases which were canvassed in Lord Denning’s judgment in R v Southampton Justices; ex parte Green. McCullough J emphasised that the onus is on the guarantor to prove that the discretion should be exercised by the Court and the starting point is that, upon giving an undertaking for a certain sum of money, prima facie, the surety can and intends to pay it.[13]

   [12] [1983] 1 All ER 530.

   [13]   At 535 a.

5. In the background of the application of those principles, Courts also recognise that the majority of guarantors have very little opportunity to control the movements of an accused but the fact that the guarantor and the accused do not reside together does not excuse the guarantor from the obligations under the guarantee. It would defeat the whole purpose of the bail system if the amount payable was strictly limited to the guarantor’s means, and in this case, his understanding and comprehension of the guarantee. The aim of such a bail agreement is the force it exerts on the accused not to subject his family and others who are prepared to stand as guarantors for him to the undue discomfort and the pain of the guarantee. These matters must be considered by anyone who agrees to become a guarantor, as the obligation is a very serious one. At page 62 McCullough J said:-

   ‘Having summarised all the passages in the cases where this topic falls to be considered as a matter of principle – so far as I know and as far as the research done by counsel has shown – I would draw together the more important principles to be derived from the authorities as follows. (1) When a defendant for whose attendance a person has stood surety fails to appear, the full recognisance should be forfeited, unless it appears fair and just that a lesser sum should be forfeited or none at all. (2) The burden of satisfying the court that the full sum should not be forfeited rests on the surety and is a heavy one. It is for him to lay before the court the evidence of want of culpability and of means on which he relies. (3) Where a surety is unrepresented the court should assist him by explaining these principles in ordinary language, and giving him the opportunity to call evidence and advance argument in relation to them.’

6. The decision of McCullough J in R v Uxbridge Justices was cited with approval by Matheson J in Re McKinnon.[14] The effect of the decisions to which his Honour referred may be summarised as follows:-

   1.   A full guarantee should be forfeited if the accused has failed to appear before the court, unless it would be fair and just to pay a lesser sum;

   2.   The burden of not paying the full amount rests on the guarantor;

   3.   If a guarantor is unrepresented, the court should assist by explaining the relevant principles.[15]

   [14] (1986) 40 SASR 326 at 328.

   [15]   See also R v Rigney(No.2) (1988) 49 SASR 389 at 400.

7. In Schoenmakers, Foster J held that the payment by the surety is not equivalent to the imposition of a fine and that there is no notional sliding scale regarding the reduction of a surety’s liability. The primary rule is that full payment should be made if there has been complicity or connivance and a lesser amount should be paid or a total remission made if the guarantor has taken all reasonably practicable steps to prevent the person bailed from absconding.

8. Foster J explained that pending a trial, a person will be held in custody to ensure appearance for the trial. Alternatively, that person will have a grant of bail and in some circumstances a guarantor is necessary. The guarantor undertakes the obligation of ensuring the accused’s attendance at the trial. Failure to restore the accused to the custody of the Crown at the trial results in the guarantee being forfeited. Thus, the obligation to ensure appearance is a serious and onerous one.[16]

   [16]   Schoenmakers v Director of Public Prosecutions (No.2) (1991) 31 FCR 429 at 441.

9. In Schoenmakers, Foster J accepted that the guarantor maintained no more than mere family contact with Mr Schoenmakers and placed trust in him that he would make an appearance at the court hearings. The guarantors took no significant steps consistent with their obligation. This led to the unfortunate result of the amount of the surety having to be paid and so leading to the loss of the guarantor’s property in the amount of $100,000.

10. In R v Agius[17] Kourakis CJ said that personal hardship was not a sufficient reason to reduce the liability of a guarantor but that a change in financial circumstances may be sufficient for the court to order a reduction of bail forfeiture. At [15] the Chief Justice held:-

    ‘where a substantial guarantee is required, the bail authority must be satisfied that forfeiture will not result in a degree of hardship, in the event of a breach’

    [17] [2012] SASC 136.

11. S 9 of the Bail Act empowers a court to ascertain the financial worth of a proposed guarantor as that may determine the value of the guarantee. The value of the guarantee may affect whether or not the court would exercise its discretion to release the accused person on bail. At [16] Kourakis CJ emphasised that guarantors carry a responsibility (to think carefully about the wisdom of what they are doing) when they enter into guarantees with forfeiture conditions that they cannot afford. The court will have regard to the pecuniary amounts in a guarantee proportionate to a guarantors means and have regard to the emotional pressure under which a guarantor undertakes obligations.

12. At [17] Kourakis CJ emphasised that what appeared to be a prevailing view, that if the guarantor did as much as could reasonably be expected, the guarantor would be spared the greater part of the stipulated sum, was mistaken. His Honour held that the deterrent effect of guarantees would only work if guarantors lost a substantial amount of the sum guaranteed. That said, in some circumstances it may be oppressive to strictly apply that approach and these are all questions of fact and degree to be considered in light of the evidence before the Court.

13. In the application of principle and in the circumstances of this case, nothing has been put before the court to satisfy me that Mr Pasquale Votino used every effort to procure the appearance of his son in the observance of his bail terms. There is no evidence before the court about whether as guarantor, he has taken all reasonably practicable steps to ensure that his son complied with the terms of his bail. To the contrary, the evidence is that Mr Pasquale Votino now claims to have only obtained, at best, a rudimentary understanding of the document he signed that he should prevent his son from travelling interstate, but did not trouble himself to find out if there were other terms. I am unable to accept this evidence as being truthful or reliable. Even on his own version, Mr Pasquale Votino’s approach was perfunctory; he took no active steps to understand what his son was doing or where he was, even in the most general sense.

14. On the question of means, Mr Pasquale Votino and his wife jointly own two properties; one at West Croydon and one in Kilkenny. The property at Kilkenny is occupied by his son Enrico (and his wife) and Mr Pasquale Votino (and his wife) do not now earn any income from it.[18] I gained the clear impression from the evidence of Mr Pasquale Votino that his son and his daughter in law stopped paying rent as a consequence of the charges brought against him by the Director of Public Prosecutions which I have earlier described in [2] above. Those changes have now been finalised. The jury found both defendants not guilty on all charges. For the reasons earlier discussed, I am not satisfied that there is any relevant aspect of hardship that I should take into account. On the question of change of circumstances (c.f Re Agius) the only relevant information is that Mr Pasquale Votino owns more assets than he was initially prepared to disclose to the court and that he has an entitlement to receive income from this undisclosed asset. Whether he does receive income from the commercialisation of that asset is not pertinent to my consideration of the applicable principles that guide the exercise of my discretion. Mr Pasquale Votino may not have the benefit of the favourable exercise of the court’s discretion because he chooses not to charge rent to his son. That is the subjective decision of Mr Votino. The objective facts are that the asset exists and has obvious income earning potential.

    [18] T36-37.

15. On the material before the court there is no basis to make any of the orders sought. I dismiss the application dated 12 September 2024.