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)…

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 The King

Details

AGLC: Vazquez v The King [2025] SASCA 71
Case: [2025] SASCA 71
Decision Date: 3 July 2025

CaseChat Overview and Summary

In *Vazquez v The King*, the appellant, Mr Vazquez, appealed against convictions recorded on a guilty plea to a drug offence, specifically the cultivation of cannabis. The appeal was heard by S Doyle and David JJ. The central dispute concerned whether the appellant's guilty plea accurately reflected his consciousness of guilt, particularly in light of his subsequent assertions and the advice he received.

The court was required to determine whether a miscarriage of justice had occurred, thereby justifying intervention by the appellate court. This involved assessing whether the appellant's guilty plea to the cultivation offence was entered under a mistaken understanding of the law, specifically whether an intention to sell was a necessary element of the offence. The court also considered whether the appellant had an arguable basis for defending the charge, and whether mistaken advice regarding the risk of confiscation of his house had influenced his plea.

The court reasoned that the appellant's plea of guilty did not reflect a true consciousness of guilt. It was satisfied that the plea was entered under a mistaken belief that an intention to sell was not an element of the cultivation offence. This mistaken understanding was compounded by advice received, which suggested that conviction would not expose him to the risk of his house being confiscated. While acknowledging the appellant might not have a strong defence to the cultivation charge itself, the court found he had articulated an arguable basis for doing so. Examining the appellant's affidavit, his former lawyer's affidavit, and the transcript of the hearing before the magistrate, the court noted that the factual basis presented by the prosecution did not include evidence of commerciality or an intention to sell. Although the Information mentioned an intention to sell, the appellant's lawyer appeared not to have appreciated this was an element of the offence and did not advise the appellant accordingly. Furthermore, the magistrate's comments and the prosecutor's and defence counsel's submissions did not refer to an intention to sell, and the magistrate incorrectly stated the appellant was not charged with that. The court concluded that a miscarriage of justice had occurred.

Consequently, the respondent's application to summarily dismiss or strike out the application for permission to appeal was dismissed. The applications for an extension of time and leave to appeal were granted. The appeal was allowed, the convictions were set aside, and the matter was remitted to the Magistrates Court for a rehearing.

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

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.

Ratio Decidendi

Legal Principle Established

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.