Vazquez v The King - [2025] SASCA 71

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
VAZQUEZ v THE KING
[2025] SASCA 71
Judgment of the Court of Appeal
(The Honourable Justice S Doyle and the Honourable Justice David)
3 July 2025
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - MANUFACTURE, PRODUCTION OR CULTIVATION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE
Applications for extension of time and leave to appeal, and appeal against conviction.
The offending arose out of a police search of the appellant’s home address during which 22 cannabis plants were located.
The appellant pleaded guilty before a magistrate to charges of cultivating cannabis plants for the purpose of sale contrary to s 33B(3) of the Controlled Substances Act 1984 (SA) (‘CSA’), possession of prescribed equipment contrary to 33LA(a) of the CSA, and interfering with an electricity meter contrary to s 85(1)(b) of the Electricity Act 1996 (SA). The magistrate convicted the appellant and placed him on a bond to be of good behaviour for 12 months.
A second magistrate later determined that the appellant’s property had been forfeited under the Criminal Assets Confiscation Act 2005 (SA) (‘Confiscation Act’).
The appellant appealed his conviction to a single judge of the Supreme Court who dismissed the appeal. He now seeks to appeal to the Court of Appeal.
The appellant appeals on the grounds that: (i) he only intended to plead guilty to cultivating cannabis for personal use (as opposed to its sale) and (ii) that his plea was entered on the misapprehension that his conviction would not subject his property to automatic forfeiture.
Held, per the Court, granting the extension of time and leave to appeal, allowing the appeal, setting aside the convictions and remitting the matter for rehearing:
1.The appellant did not appreciate that the cultivation offence included an intention to sell element and therefore his plea of guilty did not reflect a consciousness of guilt.
2.The appellant’s counsel, on a misunderstanding as to the nature of the offence, wrongly advised him that his house would not be confiscated under the Confiscation Act.
3.In circumstances where the appellant has an arguable basis for defending the cultivation charge, there has been a miscarriage of justice.

Criminal Assets Confiscation Act 2005 (SA); Controlled Substances Act 1984 (SA) ss 33B(3), 33B(4), 33B(5), 33LA(a); Electricity Act 1996 (SA) s 85(1)(b), referred to.
Sabato v The Queen [2021] SASCA 65; Stropin v The Queen [2021] SASCA 50; Vazquez v Police [2024] SASC 142, considered.

VAZQUEZ v THE KING
[2025] SASCA 71
Court of Appeal – Criminal: S Doyle and David JJA

THE COURT: On 5 March 2021, the appellant pleaded guilty to, and was convicted by a magistrate of, three offences: (i) cultivating cannabis plants for the purposes of sale, contrary to s 33B(3) of the Controlled Substances Act 1984 (SA) (‘the CSA’); (ii) possession of prescribed equipment, contrary to s 33LA(a) of the CSA; and (iii) interfering with an electricity meter, contrary to s 85(1)(b) of the Electricity Act 1996 (SA).
The offending related to 22 cannabis plants located at a property owned by the appellant. Of these 22 plants, 13 were growing in the garden, and nine were growing in a shed using a hydroponic set up.
Noting that the appellant had served three months custody, and had been on home detention bail for 12 months, the magistrate convicted the appellant, and placed him on a bond to be of good behaviour for a period of 12 months.
On 15 November 2022, a second magistrate determined that the appellant’s property had been forfeited under the Criminal Assets Confiscation Act 2005 (SA). This determination was predicated upon the cultivation offence for which the appellant was convicted being an indictable offence, and hence a ‘serious offence’ for the purposes of the Criminal Assets Confiscation Act 2005 (SA) (‘the Confiscation Act’).
The appeal to a single judge
On 20 July 2023, the appellant appealed his conviction to a single judge of this Court.
On 6 December 2024, the single judge dismissed the appeal on the basis that it had no merit.[1] Her Honour rejected an argument based upon evidence that another person (Mr Harding) might have been responsible for the nine plants in the shed, noting that even if the appellant was only responsible for 13 plants, this was more than the trafficable quantity (10 plants) necessary to give rise to a presumption of an intention to sell the plants or their products. Her Honour also rejected an argument based upon an assertion to the effect that there were other people who could come and go form the house, that the appellant was only responsible for two plants, and that these were intended for his personal use.
[1] Vazquez v Police [2024] SASC 142.
The single judge was satisfied that the appellant’s plea reflected a consciousness of guilt, that the appellant was not acting under any misapprehension when entering his plea of guilty, and that there was no real question about the appellant’s guilt. Her Honour went on to observe that insofar as the appellant’s appeal was underpinned by an endeavour to avoid the application of the confiscation of his property, this did not provide a basis for allowing the appeal. She was not persuaded that the appellant had established any error or miscarriage of justice that warranted setting aside his conviction.
The appeal to this Court
On 3 February 2025, the appellant filed a notice of appeal to the Court of Appeal. The appellant requires an extension of time, and leave to appeal given that his appeal would be a second appeal.
The appellant’s proposed grounds of appeal are not clearly articulated. However, it is apparent that he wishes to challenge his conviction on grounds similar to those agitated before the single judge. In particular, he complains that he only intended to plead guilty to cultivating cannabis for personal use, and that he did not appreciate that a conviction might result in his property being confiscated.
With the authority of the President, this matter was listed for hearing and determination by two judges of the Court of Appeal. In part that was because the respondent brought an application to summarily dismiss or strike out the application for leave to appeal on the basis that it had no merit. At the oral hearing of this matter, it initially appeared as though the appellant’s application had no merit. However, during the course of the hearing, and for reasons which are explained below and which had not clearly emerged before the single judge, it became apparent that there was merit in the appellant’s challenge to his conviction. The matter was adjourned to give the respondent an opportunity to file further submissions in writing, which it did.
Having reflected upon these submissions, we are not satisfied that the appellant’s plea of guilty to the cultivation offence reflected a consciousness of guilt. To the contrary, we are satisfied that the plea was entered under a mistaken understanding that an intention to sell was not an element of the offence. The plea was also entered in circumstances where the appellant had a mistaken understanding, based upon mistaken advice, that conviction for the offence would not expose him to any risk of his house being confiscated. Whilst the appellant does not appear to have a strong basis for defending the cultivation charge, he has articulated an arguable basis for doing so. In the circumstances, for the reasons elaborated upon below, we consider that there has been a miscarriage of justice and that this Court should intervene.
Consideration
The appellant relied upon an affidavit in which he swore that, at the time he pleaded guilty, he did not understand that an intention to sell was an element of the cultivation offence with which he was charged. He claimed that his lawyer at the time, and the magistrate, both led him to believe there was no allegation of an intention to sell. He also relied upon a statutory declaration from a Mr Harding who accepted responsibility for the nine plants in the shed, albeit that Mr Harding was not available for cross-examination. He asserted other people would come and go from the house, apparently suggesting that some of the cannabis might have been used by them. Whilst accepting that some of the plants were his, the appellant said they were for his personal use. He said that he was using the cannabis to assist him in coping with his arthritis and mental health difficulties.
Whilst the single judge was entitled to be sceptical of the appellant’s assertions as to his state of mind at the time of his plea to the cultivation charge, and his contended basis for defending that charge, an examination of the affidavit of the appellant’s lawyer, Mr Lloyd, and the transcript of the hearing before the magistrate, supports aspects of the appellant’s evidence.
It is apparent from this material that Mr Lloyd, a duty solicitor, only had limited time to advise the appellant. Mr Lloyd noted in his affidavit that the factual basis relied upon by the prosecution did not include any evidence of commerciality or an intention to sell. Whilst the Information charging the cultivation offence made reference to an intention to sell, it appears that Mr Lloyd did not appreciate at the time that this was an element of the offence and, more importantly, did not advise the appellant that it was an element.
In considering the appellant’s understanding, it is significant that his pleas of guilty were made through his counsel. As a consequence, the magistrate did not ever read the allegations to the appellant. Further, in making submissions, neither the prosecutor nor Mr Lloyd referred to any intention to sell. In reply, the prosecutor made a passing reference to the appellant being charged with cultivation with an intention to sell. However, this was followed by Mr Lloyd saying that ‘there was no evidence of any sale’. The magistrate (incorrectly) responded that the appellant was ‘not charged with that’, which Mr Lloyd confirmed by saying ‘No, no’. The magistrate then made his ex tempore sentencing remarks in which he accepted the appellant’s claims of personal use, and made no reference to any intention to sell, whether presumed or otherwise.
In the circumstances described, we are satisfied that the appellant did not appreciate that the cultivation offence with which he was charged included an intention to sell as an element. It follows that his plea of guilty to the cultivation offence was not a plea entered with a consciousness of guilt. Whilst this is not necessarily a sufficient basis for allowing an appeal against conviction predicated upon a plea of guilty, it is a significant consideration.
Given the presumption of an intention to sell which applies when the offence involves 10 cannabis plants, the appellant may face difficulties in defending the cultivation charge. However, the presumption is rebuttable; it applies only ‘in the absence of proof to the contrary’.[2] In circumstances where the appellant says that he personally used cannabis on a daily basis to assist with his arthritis and mental health issues, and suggests that some of the plants did belong, or might have belonged, to others, we are not in a position to find that he does not have an arguable basis for defending the charge.
[2] CSA, s 33B(5).
In considering whether there has been a miscarriage of justice, which is the ultimate test,[3] we have also had regard to the appellant’s contention that he was wrongly advised that his plea of guilty would not expose him to any risk of his house being confiscated under the Confiscation Act. Once again, it appears that there is merit in the appellant’s contention.
[3] Stropin v The Queen [2021] SASCA 50 at [34] (Kelly P, Doyle and Bleby JJA); Sabato v The Queen [2021] SASCA 65 at [53] (Doyle JA, Kelly P and Bleby JA agreeing).
On the basis that the information described the cultivation offence as a summary offence, Mr Lloyd accepts that he advised the appellant that his house would not be confiscated under the Confiscation Act. This misunderstanding of the nature of the offence was reinforced by the magistrate referring to the offence as a summary offence.
In fact the cultivation offence was an indictable offence, and hence triggered the application of the relevant provisions of the Confiscation Act. The reason it was, confusingly, referred to as a summary offence on the information was s 33B(4) of the CSA. That subsection provides that the s 33B(3) cultivation offence must be prosecuted and dealt with by the Magistrates Court ‘as a summary offence’, unless the Court determines that the defendant, if found guilty, should be sentenced to more than five years imprisonment.
In circumstances where, for the reasons explained, the appellant’s plea of guilty to the cultivation offence was not entered with a consciousness of guilt, the appellant has an arguable basis for defending the charge, and he was given erroneous advice as to a very significant consequence of conviction for the cultivation offence, we are satisfied that there has been a miscarriage of justice.
There have been significant delays in the progress of these proceedings. However, in circumstances where the appellant has generally been without legal representation, we are satisfied that it is appropriate for this Court to intervene.
Conclusion
The respondent’s application to summarily dismiss or strike out the application for permission to appeal is dismissed.
The applications for an extension of time and leave to appeal are granted. The appeal is allowed, the convictions are set aside and the matter is remitted to the Magistrates Court for rehearing.