Vazquez v Police - [2024] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
VAZQUEZ v POLICE
[2024] SASC 142
Judgment of the Honourable Justice Stein
6 December 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - GENERAL PRINCIPLES
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE
Appeal against conviction.
On 5 March 2021, the appellant pleaded guilty to charges of cultivating cannabis plants for the purposes of sale, possessing prescribed equipment, and interfering with an electricity meter. The appellant appealed this plea on grounds that the plea was ostensibly entered in reliance on legal advice that the appellant’s property would not be subject to automatic forfeiture under the Criminal Assets Confiscation Act 2005 (SA).
Held (dismissing the appeal):
1.There was no miscarriage of justice occasioned by the plea of guilt in circumstances where there was no indication the plea was not reflective of a consciousness of guilt or that the appellant was operating under any misapprehension about the nature of the charges or that the plea was a result of any pressure or threat.
2.There was no miscarriage of justice occasioned by the consequences of the operation of the Criminal Assets Confiscation Act 2005 (SA).

Criminal Assets Confiscation Act 2005 (SA) ss 3, 5, 6, 24, 34, 74, 76, 77; Controlled Substances Act 1984 (SA) ss 33B, referred to.
DPP (SA) v Vazquez [2022] SAMC 151; Sabato v The Queen [2021] SASCA 65; Stropin v The Queen [2021] SASCA 50; White v The Queen [2022] NSWCCA 241, considered.

VAZQUEZ v POLICE
[2024] SASC 142
Magistrates Appeal: Criminal

STEIN J: On 5 March 2021, Mr Vazquez pleaded guilty in the Magistrates Court to charges of cultivating cannabis plants for the purposes of sale, possessing prescribed equipment, and interfering with an electricity meter.
Mr Vazquez appeals against his plea of guilt. The ground of appeal was that “They are confiscating my home the lawyer … told me that if a plead guilty to summerys [sic] offence the caviet [sic] would automatically come of [sic] my property but he did not set aside the order of confiscation”. I understood the ground of appeal to amount to an assertion the appellant was advised that if he pleaded guilty to a summary offence, his property could not be the subject of automatic forfeiture pursuant to the provisions of the Criminal Assets Confiscation Act 2005 (SA) (“Confiscation Act”). During submissions the appellant also suggested he was influenced to plead when he is in fact not guilty.
Background
On 12 December 2019, the police attended a property located in Alice Street, Burton (the “Property”) to speak with the appellant about an unrelated allegation. During the execution of a general search warrant at the Property, police located 13 cannabis plants, of which two plants were mature, growing in a raised garden bed at the rear of the backyard. In a large garage,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vazquez v Police

Details

AGLC: Vazquez v Police [2024] SASC 142
Case: [2024] SASC 142
Decision Date: 6 December 2024

CaseChat Overview and Summary

Vazquez was the appellant in a criminal matter before the Court of Appeal. The dispute was an appeal against conviction following a guilty plea. The court had to determine whether the conviction should be overturned on the grounds of a miscarriage of justice. The appeal hinged on the legal advice given to the appellant by his solicitor, Mr Michael Lloyd, regarding the nature of the charges and the potential penalties. The court considered whether the appellant had been adequately informed about the potential consequences of his plea and whether there had been any misadvice that led to the plea being entered.

The central legal issue was whether the appellant's guilty plea was informed and voluntary, given the advice he received from his solicitor. The court examined the affidavit of Mr Lloyd, who admitted that he had overlooked the possibility of amending the charge to reflect the non-commercial nature of the offence. The court also considered the statutory declaration of Mr Daniel Harding, who stated that he had taken responsibility for the cannabis plants in the shed to prevent the appellant from losing his house. The prosecution's unsuccessful attempts to cross-examine Mr Harding were noted as relevant to the reliability of the evidence presented.

The Court of Appeal found that the appellant had been misled by his solicitor's advice, which resulted in a misapprehension of the charges and potential penalties. The court concluded that the appellant had entered his guilty plea based on incomplete and potentially erroneous information. This constituted a miscarriage of justice, warranting the vacating of the guilty plea and the ordering of a new trial. The court held that the appellant's plea was not voluntary as it was influenced by the solicitor's oversight and misadvice.

The Court of Appeal ordered that the conviction be quashed, and a new trial be conducted. The court also noted that the statutory declaration of Mr Daniel Harding, which could not be cross-examined, did not provide sufficient evidence to support the conviction. The court emphasised the importance of accurate legal advice in ensuring that a guilty plea is made voluntarily and with full understanding of the implications. The final order of the court was that the conviction be set aside, and the matter be remitted for a new trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In the Magistrate’s ex tempore remarks on penalty, the Magistrate took into account the fact the appellant had spent three months in custody and an additional period of 12 months on home detention bail. The Magistrate recorded the basis of the offending as the appellant having 13 plants growing in the garden, nine plants in the shed with a hydroponic setup, and an electricity meter that had been interfered with to be slowed down. The Magistrate accepted the plea of guilt as a sign of contrition, although noted that it occurred late. The Magistrate referred to the appellant having a hydroponics business and to the appellant growing cannabis and using it every day. Statutory declaration of Mr Daniel Harding The appellant filed a statutory declaration of Mr Harding. In the statutory declaration, Mr Harding stated that the appellant did not want to tell police that Mr Harding was renting his shed. Having found out that the appellant was going to lose his house as a result of the offence, Mr Harding stated he was admitting to growing the cannabis in the shed. He was aware that the appellant had proceedings in the Supreme Court to overturn his convictions. Prosecution wished to cross-examine Mr Harding on his statutory declaration but steps taken to locate him were unsuccessful. Affidavit of Mr Michael Lloyd In April 2024, Mr Michael Lloyd, the solicitor who represented the appellant in the criminal proceedings in the Magistrates Court, filed an affidavit to assist the appellant. In the affidavit, Mr Lloyd deposed to the following matters. The appellant had been charged with major indictable offences, referring to counts 1 and 2 of Information MCPAR‑19‑12822, being cultivation of a commercial quantity of cannabis intending to sell and traffic in a commercial quantity of a controlled drug. That Information was withdrawn on 26 June 2020. The appellant was then charged with three summary offences being cultivation of cannabis intending to sell; without reasonable cause possessing prescribed equipment; and without proper authority interfering with an electricity meter. Those summary charges were listed for trial on 5 March 2021. Negotiations occurred with the prosecution while the appellant was present. It was agreed that the appellant would plead guilty to counts 2 and 3 as charged and in respect of count 1, he would plead guilty to 22 cannabis plants, being 13 in the rear garden and nine in the shed. There was no allegation or evidence there was any commerciality or intent to sell in the allegations founding the charge of cultivation of cannabis. In his affidavit, Mr Lloyd stated that he could have made an application for the charge to be amended to a charge of cultivation without any intent and that this was an oversight by him. Mr Lloyd also expressed the view that the Magistrate could have amended count 1 to such a charge. Mr Lloyd deposed to advising the appellant that because he was only facing summary charges, any application for a restraining order to confiscate the Property would not be successful. Mr Lloyd also stated his opinion that the Information wrongly designated count 1 as a basic offence, summary offence and that it was incorrect and misleading because count 1 should have been designated a major indictable offence able to be dealt with as a summary offence.Legal principles relevant to an application to vacate a plea of guilty