R v MARK ALLAN MUSOLINO [2025] SADC 125

Applicant: R Counsel: MR J SLOCOMBE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: MARK ALLAN MUSOLINO Counsel: MR S JOYCE - Solicitor: STANLEY & CO LAWYERS First Interested Party: ROSINE PAULETTE MUSOLINO In Person Second Interested Party: SECURE FUNDING PROPRIETARY LIMITED No Attendance Hearing Date/s: 30/09/2025, 03/10/2025 File No/s: CIV-20-000440 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil: Interlocutory Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA v MUSOLINO [2025] SADC 125 Decision of Her Honour Judge Mackenzie (ex tempore) 3 October 2025 INTERLOCUTORY INJUNCTIONS - RELEVANT CONSIDERATIONS CRIMINAL LAW - PROCEDURE - CONFISCATION OF ASSETS - FORFEITURE OR CONFISCATION - PROCEDURE - GENERALLY CONSENT ORDERS - GENERAL CONTRACTUAL PRINCIPLES - SETTLEMENTS AND COMPROMISE - VARIATIONS AND STAYS These proceedings relate to an urgent application by the Respondent for an interlocutory injunction seeking to restrain the Director of Public Prosecutions from executing a sale of land contract for property forfeited pursuant to consent orders. The application also sought to have other orders made by consent varied or stayed. The consent orders were made following agreement reached pursuant to which the Director gave up rights to forfeited assets under the Criminal Assets Confiscation Act and the Respondent and the First Interested Party (his wife) agreed to the Director acting to dispose of other property notwithstanding an anticipated appeal of the Respondent's criminal conviction. Held: 1. Insufficient grounds established for interlocutory injunction. 2. Application for stay or variation of consent orders refused. Criminal Assets Confiscation Act 2005 (SA); Uniform Civil Rules 2020 (SA), referred to. -- 1 of 11 -- -- 2 of 11 -- DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA v MUSOLINO [2025] SADC 125 Background 1 The respondent, Mr Musolino, has brought an urgent application for an injunction to stop the imminent sale by the Crown of the property at 28 Emmet Road, Crafers West, South Australia, (the “Crafers West property”). The property was automatically forfeited to the Crown upon his conviction on 12 December 2024 for a serious drug offence under s.32(1) of the Controlled Substances Act. 2 The disposal of the Crafers West property is presently being undertaken by the Crown in accordance with the consent orders made on 13 June 2025 (FDN35). The application and procedural background 3 Mr Musolino confirmed through his counsel that he was seeking only an injunction for a short time to prevent the imminent signing by the Director of the contract for sale of the property. Though, ultimately, the application seeks broader relief about setting aside the consent orders. I have raised a concern in this matter with counsel for Mr Musolino that the application for injunction may not be appropriate to achieve the kind of relief his client substantially seeks. This was particularly so in view of the terms of the earlier consent orders being akin to a compromise or settlement having been reached with the Director for substantial resolution of these confiscation proceedings. 4 I have difficulty in reconciling the court now ordering an injunction that would be at odds with the disposal orders previously made by consent on 13 June 2025. It seems to me that the relief sought would necessarily require a variation or partial stay of the disposal orders, and that this is actually the form of relief sought by Mr Musolino. In any event, I have power to deal with such deviations pursuant to UCR 12.1. I will now turn to the key facts. Appeal of criminal conviction 5 One factor particularly relevant to Mr Musolino's application concerns his appeal against conviction for a prescribed drug offence. 6 The Director has pointed out that the parties were aware of the appeal back in June when the consent orders were made; so much is apparent from recital (I) of the consent orders which expressly mentions the appeal proceedings relating to the commercial drug offence as ‘still pending’. Mr Musolino's application for bail pending hearing of the appeal was granted by orders of Bleby J on 24 July 2025 (see FDN14 of SCCRM-25-016421). The hearing of the appeal has been set-down for 18 February 2026, being the first available date. -- 3 of 11 -- [2025] SADC 125 2 7 In hearing the bail application Bleby J formed a view that Mr Musolino has reasonable prospects of success on one ground of appeal and to some extent on another ground of appeal. I should draw attention to the fact that the criminal proceedings are separate to these confiscation proceedings which are in the civil jurisdiction of this court and governed by the Criminal Assets Confiscation Act, which I also refer to as the “CAC Act”; whilst the criminal proceedings are relevant to the confiscation proceedings they are different proceedings and an appeal against conviction does not operate to stay these proceedings. I will say more about this in terms of the provisions of the CAC Act shortly. 8 It is apparent that in view of the appeal, there is now a prospect of Mr Musolino's conviction being overturned or quashed. This, of itself, does not change the course of the confiscation proceedings; and, more relevantly to the application here, does not affect the consent orders, including disposal orders for the Crafers West property. I will now turn to the Crafers West property. Crafers West property 9 The Crown is the current registered proprietor of the Crafers West property and in accordance with the 13 June consent orders has been preparing the property for sale. The Crown has identified a buyer and a contract for sale has been prepared. The Director was scheduled to sign it earlier in the week, but that has been deferred because of the hearing of Mr Musolino's application. 10 Mr and Mrs Musolino purchased the Crafers West property in 2004 and Mr Musolino has said his family, including their two adult children, have a sentimental attachment to it and the Adelaide Hills region. Further, I have been informed this morning that loan arrears continue to accrue to the National Australia Bank (“NAB”) in relation to this property and there is a prospect of a mortgagee sale by NAB. I accept this risk is present regardless of the Crown's current holding of the property, as NAB's interests as mortgagee are preserved. I will now turn to the consent orders of 13 June 2025. Consent orders of 13 June 2025 11 The consent orders are critical to the determination of this application. Importantly, both Mr and Mrs Musolino were legally represented when the consent orders were made on 13 June 2025. 12 The affidavit of Mr Khor for the Director, that was admitted into evidence earlier this week, provides a detailed history of the negotiations between the Director and Mr and Mrs Musolino's legal representatives (they were separately represented) in relation to the properties that were subject to forfeiture, including not only the Crafers West property, but also the home at Wilsden Street in Walkerville. This morning, Mr Musolino sought to contest the extent of his involvement in the making of those consent orders, but the evidence before me is clear that he voluntarily agreed to those orders via his legal representative at the time, being Mr Lister. -- 4 of 11 -- [2025] SADC 125 3 13 It is evident from the materials filed by the Director that Mrs Musolino initiated a proposal for the early sale of the Crafers West property in a formulation of draft consent orders, which led to negotiations concerning the proposed form of consent orders with the Director. I refer to the exhibits to Mr Khor's affidavit, particularly at JK-9, JK-10, JK-12 and JK-14, as evidencing those negotiations. In the interest of time I will not repeat the terms of the consent orders in detail. They are before the court. However, I do wish to mention recital J of the consent orders. It records: J. The Applicant, the Respondent and the First Interested Party (“the Parties”) have come to a negotiated settlement as to the Respondent's property [earlier defined as both the Crafers West property and the Walkerville property] interests as a ‘prescribed drug offender’ under the Act. This settlement deals with all of the filed Applications for Exclusions in these proceedings. 14 In essence, the orders provide for the Musolinos to retain ownership of the Walkerville home, and for the Crown to have and dispose of the Crafers West property - with proceeds from the sale being applied to expenses, a payment to Mrs Musolino of $120,000 and the balance to be paid into the District Court Suitors' Fund where the balance of those proceeds would remain, subject to restraint. Mrs Musolino is then barred by the orders from making any further claim in relation to the Crafers West property. 15 The Crown proceeded to act on these consent orders and certain extensions of time were given for the Musolinos to remove personal effects and hand over keys to the property. The Director is engaging with an interested buyer of the Crafers West property and the Crown also informed the court that preparations for the sale of the property have been undertaken by the Crown since the consent orders were made, noting that further work would be required prior to settlement due to the dilapidated condition of the property. 16 I am satisfied that in agreeing to the consent orders the Crown has given up certain rights it would have otherwise retained, particularly having regard to the dealings with the Walkerville home by the terms of the consent orders and its exclusion from forfeiture. 17 It is also apparent from the letter of 22 July 2025, mentioned at JK-18 to Mr Khor's affidavit, and surrounding correspondence between Mr Lister for Mr Musolino and the Director's office, that Mr Musolino had regrets about entering into the consent orders. That correspondence indicates the reasons he wishes the Director to not execute the orders, including: • in circumstances where Mr Musolino was suffering financial difficulties flowing from his arrest and the restraint of his properties at the time the orders were made; • the poor condition of the Crafers West property meaning that its sale would result in a substantially diminished return; and -- 5 of 11 -- [2025] SADC 125 4 • the prospects of his ultimate acquittal on appeal which would see the property returned to him if it is not sold. 18 These are no doubt difficult and harrowing circumstances for the Musolinos. The operation of the CAC Act is designed to result in harsh financial consequences for serious drug offenders and their families. Mr Musolino's situation is not a unique one and this court deals with such matters numerous times per week. 19 Relevant to my consideration of the application - I am not satisfied that the circumstances Mr and Mrs Musolino experienced represent coercion of their will or duress when agreeing to the consent orders; they were legally represented and, particularly in Mrs Musolino's case, very keen to save the Walkerville home from possession orders. Further, it could not be said that the circumstances faced by the Musolinos as a consequence of Mr Musolino being charged and convicted of a serious drug offence were at the hand of the Director. The Director is required, as is the court, to take certain actions under the CAC Act. It is apparent from the correspondence between the parties to the consent orders that the Director was made an offer by Mrs Musolino's lawyer, Mr Bidhendi, and that those orders for consent were not initiated by the Director. CAC Act 20 I will turn now to briefly point out some relevant provisions of the CAC Act. Before considering the relief sought, it is necessary to say something about some of the relevant provisions of the CAC Act, particularly as it applies where a criminal conviction is subject to appeal. Section 56A(3) of the CAC Act provides that the Act applies to a deemed forfeiture order in all respects as if it were a forfeiture order made under s 47(3)(a) in relation to conviction for the conviction offence. That is the forfeiture order relevant in Mr Musolino's case. 21 Subdivision 3 of the CAC Act then deals with the effect of acquittals and the quashing of convictions in relation to such forfeiture orders made or taken to be made under s 47(3)(a) being the provision that applies to Mr Musolino's forfeiture. 22 Section 64(1)(a) of the CAC Act provides, inter alia, that a forfeiture order made under s 47(3)(a), in relation to a person's conviction of a serious offence is discharged if the conviction is subsequently quashed. I note provision exists for the Director to apply, nevertheless, to have the forfeiture order confirmed in those circumstances pursuant to s 64(1)(b). 23 Section 91 of the CAC Act provides for when the Crown can begin dealing with property specified in a forfeiture order. Relevantly, if a forfeiture order was made in relation to a person's conviction of a serious offence under s 91(1)(b)(ii), the Crown may only dispose of, or otherwise deal with, property specified in a forfeiture order after, and only if the order is still in force - if an appeal against the conviction has been lodged, the appeal lapses or is finally determined. That means that the matter would have taken a different course under s 91 had the consent orders not been entered into. -- 6 of 11 -- [2025] SADC 125 5 24 Section 91(2) of the CAC Act does, however, permit the Crown to dispose of, or otherwise deal with, property specified in a forfeiture order at an earlier time with the permission of, and in accordance with any directions of, the court. That is a matter which I will return to. Injunctive relief sought 25 I will only spend a brief moment talking about the injunctive relief sought. As mentioned, Mr Musolino's application at FDN37 seeks to set aside the consent orders made on 13 June 2025 on the grounds that there is a pending appeal; and further seeks injunctive relief to restrain the Director from signing a contract for sale of the Crafers West property. 26 Counsel for Mr Musolino, during the hearing, indicated that it was only the injunctive aspect of the relief that was to be urgently pressed - to prevent the signing of the sale contract, with him seeking the other relief relating to the setting aside of the orders to be listed for a later date. Ultimately, for the reasons I will come to - and also foreshadowed earlier today (refer to the transcript), I am not satisfied that this is a satisfactory course. 27 The principles relevant to the granting of injunctive relief are well-known. It is suffice for me to deal with them briefly. First, I note Mr Musolino's counsel confirmed he would give the usual undertaking as to damages, though I accept grounds may exist for the Crown to not be satisfied as to Mr Musolino's financial capacity to meet that undertaking - ultimately, it is unnecessary to explore this issue further. 28 Secondly, the court must determine whether the applicant, Mr Musolino, has a prima facie case - it is not clear to me what prima facie case or cause of action underpins the relief being sought, that is the injunctive relief being sought. Here, the appeal on criminal conviction is a separate proceeding and will not affect the operation of the consent orders as they stand. It seems to me that if injunctive relief is to be considered (which I am not sure is appropriate) there must be a claim directed to a breach of the consent orders or other grounds for them to be set aside or varied. 29 On the face of the application and the supporting affidavit, I am not satisfied that there is any such prima facie case articulated before me. I will shortly turn to consider the issue arising from the potential application of s 91 of the CAC Act, though ultimately, I am not satisfied this forms a basis for overturning or varying the consent orders or for ordering of an interim injunction. 30 Thirdly, I must consider the balance of convenience and determine whether the inconvenience or damage to Mr Musolino if the injunction is refused outweighs the inconvenience or damage to the Crown if the injunction were granted. As I have found no prima facie case underpinning the application for injunction, it is not strictly necessary for me to go on to deal with the balance of convenience element. In any event, I will attempt to deal with it briefly. I am not satisfied that -- 7 of 11 -- [2025] SADC 125 6 Mr Musolino will have any significant loss if the injunction is not granted. He has deposed to an emotional or sentimental connection to the Crafers West property and the Adelaide Hills region. I am not convinced that such an emotional or sentimental connection establishes a sufficient inconvenience. To my mind, the interests of the Crown are detrimentally impacted if the injunction is granted because the sale of the land will not proceed and the works undertaken by the Crown to date for preparation of the sale will have been fruitless, at least for a period of time. 31 Further, I accept that the Crown gave away rights when it entered into the consent orders particularly concerning the forfeiture of the Walkerville home - where I have been informed that title is now solely in the name of Mrs Musolino. I accept that the Crown would now suffer detriment if those orders are now interfered with by an injunction (or the granting of any subsequent relief to set those orders aside). 32 Fourthly, determining whether damages are an adequate remedy for Mr Musolino is also a relevant consideration. As I have found, there is a flaw in the element concerning establishing a prima facie case - so this element does not arise. In any event, even on Mr Musolino's case - he will - if his conviction is finally quashed or set aside, be entitled to financial compensation in respect of the forfeiture of his interest in the property. 33 Delay by Mr Musolino is also a relevant consideration. It is simply unclear to me why there has been a three-month delay in bringing this application. Such a delay is significant in the context of consent orders enabling the Crown to proceed to dispose of the Crafers West property - and which it has acted upon. The delay in bringing the application is a significant factor in my refusing relief. 34 For these reasons, I decline the application for the injunction sought to restrain the Director from signing the sale contract. I will now deal with the broader orders sought by the application for relief as to setting aside certain of the consent orders. I think there is good reason to address those aspects today. Legal principles relating to the setting aside or variation of consent orders 35 Ultimately, at the heart of the substantive relief sought by Mr Musolino, is the interference with the consent orders by a variation, stay, partial-stay or orders sought for setting them aside. 36 As a general principle, if terms of settlement or compromise of pending proceedings are expressed in a consent order then there is an agreement between the parties for good consideration and the parties are then precluded from proceeding further with the action except for the purpose of enforcing the agreement embodied in the consent order. The consent orders made in this matter are of the nature of a settlement having been reached between the parties as to the substantive issues in dispute, particularly having regard to the applications for exclusion that had been filed by Mrs Musolino. -- 8 of 11 -- [2025] SADC 125 7 37 As such, the consent orders may only be set aside on grounds which would justify setting aside a contractual arrangement, like a settlement deed, upon which a settlement or compromise was based. I will not refer to the many authorities which support this principle but note paragraph [12.210] of Australian Civil Procedure by Bernard Cairns, 12th Edition, and paragraphs [11.62]-[11.65] of Zuckerman on Australian Civil Procedure, LexisNexis 2018, provide details of these authorities and the principles in play. Such grounds are those which would justify a court voiding or invalidating a contract, such as fraud, duress, misrepresentation, undue influence, unconscionability, and the like. I now turn to consideration of those principles against the facts. Consideration 38 The application of the legal principles concerning interfering with consent orders means that Mr Musolino would need to establish fraud, duress, mistake or another like ground in order for the court to be in a position to make further orders concerning the rights of the parties as reflected in the consent orders. 39 I do not consider any allegations of that kind have been made or would be available for me to find on the evidence before the court. 40 In this regard, I note that the parties all had legal representation at the time the consent orders were made, and negotiated; and there is no claim of duress, fraud or other grounds that would be capable of voiding or invalidating a contract. So much is evident from the material appended to Mr Khor’s affidavit (FDN 40). 41 There is, however, one aspect peculiar to the CAC Act which deserves further attention. It is the extent to which the consent orders might be taken to be inconsistent with s 91(1) of the CAC Act. If they were inconsistent then there would be a basis for the court to declare them to be invalid. As I have mentioned already (refer to the transcript), s 91(1), if operative, would have required the Director or Crown to refrain from disposing of the Crafers West property until the appeal of Mr Musolino's conviction lapses or is finally determined. This is in contrast to the consent orders providing for the Crown to dispose of the property; a process which is already underway. Importantly here, s 91(2) operates so that the Director is not compelled to comply with s 91(1) - and may therefore proceed to dispose of the Crafers West property - if the property is disposed of, or otherwise dealt with, “with the permission of, and in accordance with any directions of, the court”. 42 An issue therefore arises on the face of the consent orders as to whether disposal of the Crafers West property is permitted in terms of s 91(2) because of the operation of the consent orders which represent permission from the court to deal with and dispose of the property. I note that rules of construction applicable to orders generally apply to consent orders. The orders must be construed as a whole and given effect to on their terms - and where they give effect to the compromise of a dispute, and there is ambiguity, it is permissible to take into account the same material which would be admissible in construing a contract -- 9 of 11 -- [2025] SADC 125 8 (including surrounding circumstances known to the parties). (For reference to that principle see Perry Hertzfeld and Thomas Prince, Interpretation, Third Edition, 2024, Law Book Company of Australasia at paragraph [36.110]). 43 In my opinion, having regard to: (i) the fact that the pending appeal was known to the parties at the time the consent orders were agreed and made; and (ii) this was a fact referred to in the recitals of the consent orders, the clear import of the orders is to permit a dealing with the Crafers West property by the Crown so as to bring about its disposal. As such, I find that there is permission of the kind contemplated by s 91(2) of the CAC Act, and the Crown is not bound by s 91(1) to refrain from disposing of the property pending final determination of the appeal. 44 I am also fortified in reaching this conclusion by the general principle relevant to interpretation of court orders that requires orders to be construed so as to give them valid effect, if possible. 45 Further, it would be inappropriate for the court to set aside or otherwise interfere with the consent orders made by the parties to compromise the substantial issues in the confiscation proceedings. Simply put, there is no sound basis for the court to do so. 46 Finally, I note that there is also a public policy reason for refusing to interfere with the consent orders; to do so would inevitably expose other compromises entered into by the Crown and made subject to court orders to be reopened. It would also foster a reluctance on the part of the Director to entertain settlements of confiscation matters which are typically advantageous to not only the parties but to the efficient use of court resources. 47 In view of these matters, I think there is utility in dealing with the interlocutory application in toto today. To not do so leaves uncertainty for the Director in continuing his dealings with the Crafers West property. 48 Now I turn to the orders. Orders For these reasons, I make the following orders: 1. The respondent’s, Mr Musolino's, application is refused. And I am also going to make an order as to costs because I do not see any reason for costs not to follow the event in this matter. So order 2 is: 2. The respondent, Mr Musolino, is to pay the Director's costs of the application. Is there any correction or anything counsel wish to point out to me? I'm sorry that was rather lengthy. -- 10 of 11 -- [2025] SADC 125 9 MR SLOCOMBE: Your Honour, thank you. We simply don't seek any further date for this matter at this stage. In the event there is an issue with costs, we just simply seek liberty to call the matter on. Thank you. HER HONOUR: Thank you, Mr Slocombe. I will allow you to depart the bar table, Mr Joyce. MR JOYCE: Yes, I'm very grateful. HER HONOUR: And thank you for your earnest submissions and attempts to deal with the difficulties you were facing. MR JOYCE: I'm very grateful for that, your Honour. Thank you. HER HONOUR: We'll adjourn the court. ADJOURNED 1.16 P.M. -- 11 of 11 --