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, nine cannabis plants were located under grow lights in a sectioned‑off portion of the garage. The section was constructed as a hydroponic grow room with high wattage light globes, light amplifying shades, and ballast boxes together, with irrigation pipes connecting to pots.
In a bedroom containing child’s toys and a cot, police located 29 cannabis cuttings inside a wardrobe. The appellant was not charged in relation to the cuttings.
A number of items consistent with cultivation of cannabis via hydroponic means were found in a small, insulated room within the garage, including prescribed equipment. The appellant was charged with one count of possessing prescribed equipment. Police also located boxes containing stripped cannabis which was drying however, no charges were laid in relation to that cannabis.
Police located a Facebook account on the appellant’s mobile phone and noted that at least one page had been created related to the focus of hydroponic cultivation of cannabis. No messages were located consistent with a direct purpose of trafficking in cannabis.
Police detected that electricity had been diverted from a nearby electricity meter and the appellant was charged with one count of interfering with an electricity meter.
On 15 December 2019, Ms Alison Vazquez transferred the Property to the appellant, who became the registered proprietor.
The appellant was initially charged with offences including cultivation of a commercial quantity of a controlled drug.
On 17 April 2020, the appellant’s interest in the Property was restrained pursuant to the Confiscation Act on the basis that the appellant had been charged with a serious offence within the meaning of s 6 of the Confiscation Act.
On 26 June 2020, the original Information which charged the appellant with offences including cultivation of a commercial quantity of a controlled drug was withdrawn. The appellant was then charged on a fresh Information with three offences being cultivation of cannabis intending to sell (count 1); without reasonable cause possessing prescribed equipment (count 2); and without proper authority interfering with an electricity meter (count 3). All three counts were designated a summary offence.
On 5 March 2021, the appellant pleaded guilty to the three offences and was convicted of cultivation of a controlled drug (cannabis) pursuant to s 33B(3) of the Controlled Substances Act 1984 (SA) (“Controlled Substances Act”). The Magistrate sentenced the appellant to a good behaviour bond for 12 months on the condition he enter into a recognisance for the amount of $300. No application was made for the Magistrate to deal with the appellant on the basis that no conviction should be recorded to any of the offences before the court. The appellant was represented by a legal practitioner at the hearing.
On 4 May 2021, the appellant applied to revoke the restraining order over the Property.
On 1 November 2021, the Director of Public Prosecutions (“DPP”) filed an application pursuant to s 77 of the Confiscation Act seeking a declaration that on 7 September 2021, the appellant’s interest in the Property had automatically been forfeited to the Crown. The appellant was represented and opposed the application.
On 15 November 2022, Magistrate Fotheringham determined that the Property had been forfeited under the Confiscation Act and barred any application to exclude the property from forfeiture.[1]
[1] DPP (SA) v Vazquez [2022] SAMC 151.
The appellant did not appeal Magistrate Fotheringham’s decision.
On 20 July 2023, that is, some 16 months after his guilty plea, and seven months after Magistrate Fotheringham’s decision, the appellant filed this appeal. The appellant did not seek an extension of time nor did he file material explaining the delay.
The matter was adjourned on a number of occasions to enable the appellant to obtain material to support his appeal. The appellant was on all occasions self-represented.
Remarks on penalty
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
In Stropin v The Queen,[2] the Court of Appeal summarised the relevant principles in relation to an application to vacate a plea of guilty as follows:[3]
[2] Stropin v The Queen [2021] SASCA 50.
[3] Stropin v The Queen [2021] SASCA 50 at [34] (Kelly P, Doyle and Bleby JJA).
(1)A guilty plea involves an admission by a defendant of all of the essential elements of the offence.
(2)Courts approach attempts to change a plea of guilty or to assert a lack of understanding of what was involved with caution which borders on circumspection. This rests on the public interest in the finality of legal proceedings and that a person in possession of all relevant facts is normally taken to be an admission of all of the necessary legal ingredients of the offence.
(3)As a general rule, an informed and deliberate plea of guilty should be treated as final unless it can be established that a miscarriage of justice has occurred.
(4)A person may plead guilty and be held to that plea even if the plea is made on grounds extending beyond the person’s belief in their guilt.
(5)The onus lies upon the defendant to establish grounds that to hold him or her to the plea of guilty would result in a miscarriage of justice.
(6)There is every reason why a deliberate and informed guilty plea should be treated as final and the defendant must persuade the Court a miscarriage of justice would result. However, the rule is based upon a deliberate and informed plea not one based on an uncritical or amorphous understanding.
(7)A court will not lightly set aside a conviction founded on a plea of guilt and in general will only do so if it is established to the satisfaction of the Court that the plea was induced by material mistake or some improper threat or promise on the part of a police officer or other person in authority and that but for the inducement to plead it would not have been made.
(8)A court will act on a plea of guilty when entered in open court by a person of full age of apparently sound mind and understanding where entered in the exercise of a free choice in the interests of a person entering the plea. There is no miscarriage of justice if a court does act on such a plea even if the person entering it is not in truth guilty of the offence.
(9)While the presence or absence of genuine consciousness of guilt by the defendant is a relevant consideration, the ultimate test is whether there has been a miscarriage of justice.
Where an accused seeks leave to withdraw a plea of guilt before conviction, the relevant test is an interests of justice test. However, once the accused has been convicted and sentenced, if an applicant seeks to set aside a plea of guilt on an appeal, the onus lies on the applicant to demonstrate a miscarriage of justice.[4]
[4] White v The Queen [2022] NSWCCA 241 at [58]-[62] (Bell CJ, Button and N Adams JJ).
In Sabato v The Queen,[5] Doyle JA set out a number of relevant circumstances the Court will consider in relation to whether there has been a miscarriage of justice, including:[6]
·whether the plea reflects consciousness of guilt;
·whether there is a real question as to the guilt of the appellant;
·whether the plea was based on imprudent or inappropriate advice;
·whether the defendant lacked an appreciation of the nature of the charges or the facts alleged against him;
·whether the plea was the result of a free choice and not the product of the defendant’s will being overborne by inappropriate pressure or threats.
[5] Sabato v The Queen [2021] SASCA 65.
[6] Sabato v The Queen [2021] SASCA 65 at [53] (Doyle JA), quoting Tsavalas v Police [2016] SASC 103 at [13]-[15] (Doyle J).
In this case, the appellant has not applied to the Magistrates Court to set aside the guilty plea and has directly appealed against his conviction on his plea of guilt.
Appellant’s submissions
The appellant’s submissions were made over a number of hearings. At times, his position was not entirely clear and he vacillated in some respects. However, it was apparent that he sought to overturn the guilty plea on the basis firstly that he did not understand that if he pleaded guilty, he was at risk of forfeiture of the Property, and secondly, that he was not guilty in relation to the plants in the garage which were not his. His position in relation to the plants in the garden changed in the manner set out below.
Respondent’s position
The respondent did not take any point in relation to the delay in commencing the appeal, however, opposed the orders sought on the basis that the appellant had failed to demonstrate there was a miscarriage of justice justifying setting aside his guilty plea. The respondent contended that there was sufficient evidence to demonstrate the appellant’s guilt and there was no foundation for the appellant’s arguments in relation to the forfeiture proceedings.
Was there a miscarriage of justice?
As set out above, the onus lies upon the defendant to establish a miscarriage of justice.
I turn to consider the factors referred to in the authorities above.
Alleged offending
Firstly, addressing the offence itself, the respondent submits in this matter there was clear evidence before the Magistrate dealing with each element of the offence of cultivating cannabis plants intending to sell pursuant to s 33B(3) of the Controlled Substances Act. The respondent submits it can be inferred that the occupant deliberately cultivated the cannabis plants at the Property.
The transcript of the hearing before the Magistrate on the day the appellant entered his plea does not suggest anything other than a voluntary and deliberate plea in which the appellant accepted his guilt. The interactions between the Magistrate and the appellant indicate the appellant wished to dispose of a number of matters and to do so that day. The transcript is inconsistent with any suggestion of pressure on, or a lack of understanding by, the appellant.
There is no dispute the appellant was residing at the Property. There is no dispute that 13 female cannabis plants were growing in the garden.
The respondent did not have an opportunity to cross-examine Mr Harding about his statement of responsibility for the plants in the garage. Even if I were to assume that Mr Harding was responsible for the nine plants in the garage, Mr Harding did not assert responsibility for the remaining plants in the garden and the appellant did not suggest Mr Harding had any responsibility for those plants.
During the hearings, the appellant’s position in relation to the 13 plants in the garden changed. The appellant initially stated unequivocally that the 13 plants grown in garden were his and he only resiled from his plea of guilt in relation to the nine plants in the garage which he maintained were not his. During submissions at an early hearing, the following exchange occurred:[7]
[7]     Transcript of hearing on 25 March 2024 at 4.32-5.17
HER HONOUR:   And you are asking for that guilty plea to be set aside on the basis that Daniel Harding says he was renting the shed from you and so he's admitting to growing the cannabis?
APPELLANT:    Yes.
HER HONOUR:   All right.
APPELLANT:    There was also cannabis in the ground but -
HER HONOUR:   Sorry?
APPELLANT:    There was also cannabis in the ground but that wasn't his, they were mine.
HER HONOUR:   All right, so the cannabis in the shed was -
APPELLANT:    Daniel's.
HER HONOUR:   That of Daniel, but the cannabis plants that were growing -
APPELLANT:    In the ground.
HER HONOUR:   - in the ground were yours?
APPELLANT:    Yes.
HER HONOUR:   Well, then on what basis are you asking - if the cannabis that was growing is yours on what basis are you asking me to set aside the guilty plea?
APPELLANT:    Well, I'm only guilty of growing 13 plants.
In response, the respondent pointed to the presumption of trafficable intent arising from 13 plants.
During submissions in a subsequent hearing, the following exchange occurred:[8]
HER HONOUR:   Mr Vazquez, this is your appeal. On previous hearings you've put a number of matters to me, you've taken me to the transcript of the hearing before the magistrate. You've put forward the affidavit of Mr Lloyd. You've put forward a statutory declaration of Mr Harding and you've made a number of submissions including that the cannabis in the shed was that of Mr Harding, but the cannabis in the garden was your cannabis.
APPLICANT:     Theoretically there was seven or eight people living at my premises at the time and that could have been anyone's plants. I am putting my hand up for my two personal plants because I smoke weed for my arthritis and for my mental issues, you know what I mean? That's the only thing that helps me. Pharmaceutical drugs are making me worse.
HER HONOUR:   So on previous occasions you said to me, I'll stand to be corrected if I'm wrong but my recollection was that you said all of the plants in the garden, which were I think 13 from memory, were yours. You just said two plants.
APPLICANT:     Like Mr Slocombe said 'That won't change anything', but at the same time commercial quantity is over 20 plants. That's going to change everything. Mr Slocombe is not entirely correct. Now I'm putting my hand up for some couple of plants. That house, everybody was coming and going from that house, yeah, and now at the same time your Honour I am allowed to do anything on my property as long as I don't cause no harm to anybody. Doesn't matter how much weed I'm growing. Look at the weed now, everyone's got it, aren't they, but for pharmaceutical, yeah? I mean, it's pretty well illegal. I've got to switch. I could have walked in with cannabis in my pocket today and smoke the whole courtroom out. I actually buy, every two weeks I get a container of cannabis, so I don't have to grow it now.
[8]     Transcript of hearing on 12 August 2024 at 4.26-5.23.

I took this to amount to a somewhat ambiguous submission that only two of the plants were his. In contrast to the position that Mr Harding was responsible for nine plants, this position was based on a general assertion that the plants could belong to anybody who may have been at the Property. The appellant did not put forward any evidence to substantiate his assertions. It was not disputed that the appellant was living at the Property at the time.
Section 33B(5) of the Controlled Substances Act provides if, in any proceedings for an offence against ss (1), (2) or (3) of the section, it is proved that the defendant cultivated a trafficable quantity of a controlled plant, it is presumed in the absence of proof to the contrary that the defendant had the relevant intention concerning the sale of the plants or their products necessary to constitute the offence. Part 2 of Schedule 3 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) provides that 10 plants constitute a trafficable quantity of cannabis plants. Accordingly, the presumption of the relevant intention was enlivened by the presence of more than 10 cannabis plants, that is, the 13 plants in the garden at the Property. That is the case even if I take the statutory declaration of Mr Harding at its highest and exclude the plants in the shed in my consideration. If the matter had proceeded to trial and the Magistrate had accepted the prosecution had proved beyond reasonable doubt the plants in the garden were the appellant’s plants, the onus would have been on the appellant to rebut the presumption as to trafficable intention. I take the appellant’s submissions during the last hearing to amount to a submission that only two of the plants were his and they were for his personal use. However, in the appeal, the appellant failed to put forward any evidence or reliable explanation to support that submission.
Given the matters to which I have referred, I am not satisfied that the plea of guilt reflected anything other than a consciousness of guilt or that there was any real question about the appellant’s guilt. Similarly, I am not satisfied that the appellant was operating under any misapprehension about the nature of the charges or the facts alleged against him or that the plea was a result of any pressure or threat.
Despite the appellant’s somewhat inconsistent attempts to assert he was not guilty of the charged offences, at its core, it appeared from the ground of appeal that the appeal was underpinned by the appellant’s endeavour to avoid the application of the Confiscation Act.
The respondent’s position implicitly accepted that advice in relation to the consequences of a plea of guilt, as opposed to advice concerning the offence itself, was relevant to the question of whether there was a miscarriage of justice and accordingly I will proceed on that basis and consider whether there has been a miscarriage of justice based on the advice given to the appellant about the Confiscation Act proceedings.
Property forfeiture
As set out above, the DPP sought a declaration that the appellant’s interest in the Property had been automatically forfeited to the Crown. The appellant was represented in those proceedings and a number of submissions were made on his behalf all of which were rejected by the Magistrate.
Section 74 of the Confiscation Act provides for automatic forfeiture of property at the end of a relevant period if:
(a)the respondent has been convicted of a serious offence;
(b)the property is covered by a restraining order that relates to that serious offence at the end of the relevant period; and
(c)the property is not subject to an order pursuant to s 76 excluding the property from forfeiture.
The relevant period[9] is six months after the start of the day of the relevant conviction unless an application for exclusion from forfeiture or exclusion from the restraining order has been filed.
[9] Criminal Assets Confiscation Act2005 (SA), s 74(6).
Once the criteria are met, forfeiture occurs automatically by force of the Confiscation Act.
Even if the appellant proceeded on an erroneous understanding of the consequences of a plea of guilty vis à vis the potential for forfeiture, the appellant had available to him under the Confiscation Act the opportunity to apply for an exclusion from the restraining order under s 34 or an exclusion from forfeiture under s 76 if the appellant could make out the basis for exclusion set out in the relevant sections.
While the appellant filed an application for revocation, he did not file an application for exclusion pursuant to either ss 34 or 76 of the Confiscation Act.
The Magistrate concluded the relevant period ended on 6 September 2021 and the appellant was not entitled to relief from forfeiture.
One of the grounds upon which the appellant opposed the orders sought by the DPP were that he had not been convicted of a serious offence. The appellant contended that count 1 of the Information was dealt with as a summary offence and was not a serious offence for the purposes of s 74 of the Act.
Section 3(2) of the Confiscation Act provides that:
A reference in this Act to an indictable offence includes an indictable offence of a kind that is required to be prosecuted, and dealt with by the Magistrates Court, as a summary offence under a provision of any Act.
Section 33B(4) of the Controlled Substances Act provides that an offence under s 33B(3) of the Controlled Substances Act (that is, the offence for which the appellant was convicted) must be prosecuted and dealt with as a summary offence. The section obliges the Court to commit the person to the District Court for sentence if the Court determines a person found guilty should be sentence to a term of imprisonment exceeding five years.
The DPP submitted that the offence was an indictable offence despite being particularised as a summary offence on the Information. Magistrate Fotheringham found that in light of the specific definition of indictable offence in s 3(2) of the Confiscation Act, the appellant had been convicted of a serious offence for the purposes of the Confiscation Act.
The appellant also submitted that the Property was not covered by a lawful restraining order which related to that serious offence. He contended the fresh Information dated 26 June 2020 containing the charges to which he pleaded guilty was not a related offence to the original Information and once the original Information was withdrawn, the restraining order ceased to be in force 28 days thereafter.[10] Magistrate Fotheringham rejected that argument, concluding that the appellant was charged with a related offence. Section 74(4) of the Confiscation Act provides that a restraining order in relation to a related offence is taken to be a restraining order in relation to the serious offence of which the person is convicted. “Related offence” is defined[11] such that one offence is related to another is the physical elements of the two offences are substantially the same acts or omissions. The Magistrate concluded the physical acts and omissions were substantially the same other than the quantity, which dictates the penalty, and that the offences were related offences. Accordingly, the restraining order did not cease and validly continued in force.[12]
[10] Relying on s 46 of the Criminal Assets Confiscation Act, which states that a restraining order which relates to one or more serious offences ceases to be in force 28 days after all charges that relate to the restraining order are withdrawn.
[11] Criminal Assets Confiscation Act2005 (SA), s 3(1).
[12] Criminal Assets Confiscation Act2005 (SA), s 46(1)(g).
Magistrate Fotheringham concluded that in light of the failure of the appellant to apply for an exclusion order under s 76, even if he were to revoke the restraining order, it would not cure the difficulty that the Property had not been excluded from automatic forfeiture prior to the end of the six-month period.
Magistrate Fotheringham rejected the appellant’s argument that the restraining order was invalid because he did not own the Property and only became the registered owner of the Property on 16 December 2019, four days after his arrest. The restraining order was made pursuant to s 24 of the Confiscation Act which provides that effective control of the property is sufficient. The Magistrate considered the appellant’s argument that there was no evidence the Property was under his effective control. However, he noted that the appellant was represented at the hearing of the restraining order application, the sealed order was served, and there was no appeal against the decision.
The Magistrate rejected other arguments raised by the appellant including that due to hardship or other reason the forfeiture order should not be made given the level of alleged offending was at the lower end of the scale, as reflected by the punishment, and the conversely large value of the Property.[13] The Magistrate did not consider that the appellant could rely on s 47(4) as the DPP had not brought an application under s 47, rather the DPP sought a declaration of automatic forfeiture under s 74.
[13] Relying on s 47(4)(a)-(d) of the Criminal Assets Confiscation Act 2005 (SA).
The Magistrate accepted that all the criteria had been satisfied and there was no basis available for the appellant to avoid the forfeiture that had occurred.
The appellant was represented by Mr Lloyd and did not appeal the decision. The appellant did not apply to the Magistrate’s Court to set aside his plea of guilt either before the application was heard or after the judgment was delivered.
It is apparent from the Magistrate’s judgment that the potential hardship to the appellant arising from forfeiture resulting from the plea of guilt was expressly addressed by the appellant in opposing the orders sought and considered by the Magistrate. Submissions to Magistrate Fotheringham on that topic were made pursuant to the provisions of the Confiscation Act.
The appellant’s plea of guilt resulted in the forfeiture of his interest in the Property. He was not aware of that potential consequence.
There is no doubt that the consequence of the application of the Confiscation Act is significant. However, it is the direct result of the application of the legislation. For the reasons set out by the Magistrate, the Confiscation Act applied in the circumstances. The appellant’s failure to file an exclusion application within the timeframes prescribed was fatal to excluding the property from automatic forfeiture under s 74 of the Act once his conviction had been recorded.
A summary offence is an offence that is not punishable by imprisonment or an offence for which a maximum penalty of imprisonment for two years or less is prescribed.[14] All other offences are indictable offences. Section 33B(3) prescribes a penalty of $50,000 or imprisonment for 10 years or both for a basic offence not involving a serious repeat offender and higher penalties for serious repeat offenders and aggravated offences. The definition of serious offence in the Confiscation Act combined with the effect of s 33B(4) of the Controlled Substances Act (requiring the offence to be prosecuted and dealt with as a summary offence) and s 3(2) of the Confiscation Act (defining indictable offence as including indictable offences required to be prosecuted and dealt with by the Magistrates Court as a summary offence) had the unavoidable result that the offence charged under s 33B(3) of the Controlled Substances Act was a serious offence for the purposes of the Confiscation Act with the associated consequences described above.
[14] Together with specified offences under the Criminal Law Consolidation Act 1936 (SA) not relevant for present purposes: section 5 of the Criminal Procedure Act 1921 (SA).
Even if the Magistrate had not recorded a conviction, s 5(1)(b) of the Confiscation Act provides that a person is taken to be convicted of an offence if a person is charged with and found guilty of the offence but discharged without conviction. Accordingly, it would not have protected the appellant from forfeiture even if the Magistrate been prepared to proceed without conviction in the light of the appellant’s prior convictions for relevant drug offences.
It does not follow that if the appellant were to succeed in setting aside the plea of guilt that the appellant would necessarily escape the consequences of the application of the Confiscation Act. If the appellant’s conviction and the forfeiture was set aside, avenues would still be available for the DPP to take proceedings under the Confiscation Act. There is therefore a connection between any arguments on miscarriage of justice based on the application of the Confiscation Act and arguments concerning miscarriage based on the appellant’s plea of guilt. If the appellant had put forward evidence or explanations to satisfy me that the plea of guilt did not reflect a consciousness of guilt or that there was any real question about the appellant’s guilt, that may support a conclusion of miscarriage of justice in the context of the consequences of the application of the Confiscation Act. However, in circumstances in which I am not satisfied the appellant has made out the test for setting aside his conviction on grounds associated with the conviction, I am also not satisfied the appellant has established a miscarriage of justice flowing from the consequences of his conviction which are provided for in the Confiscation Act and which have resulted from the conduct of the confiscation proceedings.
The respondent did not take issue with the absence of an application for an extension of time. However, the absence of an application for an extension, together with the delay and the failure to provide any explanation for the delay in commencing the appeal would have militated against an extension of time to appeal.
For the reasons above, I do not consider the appellant has established a miscarriage of justice justifying setting aside the plea of guilt.
Orders
The appeal is dismissed.