Vazquez v The King

[2023] SASCA 134

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

VAZQUEZ v THE KING

[2023] SASCA 134

Judgment of the Honourable President Livesey  (ex tempore)

11 December 2023

CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA - GENERALLY

The applicant’s application for an extension of time and permission to appeal against conviction following a plea of guilty were summarily dismissed because the Court did not have before it properly drawn material demonstrating why it should favourably exercise its discretion concerning an extension of time and permission to appeal.

Joint Criminal Rules 2022 (SA) r 201.1(2)(e), referred to.
MacFarlane v The Queen [2022] SASCA 46; Buckmaster v The King [2022] SASCA 101, considered.

VAZQUEZ v THE KING

[2023] SASCA 134

Court of Appeal – Criminal

LIVESEY P (ex tempore):

1. By notice of appeal dated 17 July 2023, Mr Vazquez seeks permission to appeal his conviction for “stalking” following a guilty plea entered during 2021.  He says he is not guilty and was “blackmailed by DPP” into entering a guilty plea.[1]

   [1]     Though it is unclear from his handwritten materials, it would seem that Mr Vazquez has served any sentence which may have been imposed following a period of home detention bail.

2. Mr Vazquez’s matter has been in the Court of Appeal callover list on four occasions since 23 August 2023.  On the first occasion I spoke with Mr Vazquez and outlined the necessity for him to file further material which complied with the rules of court and which gave a proper basis for this Court to grant an extension of time and permission to appeal in respect of matters which occurred some considerable time ago now.[2]

   [2]     No attempt has been made to address the requirements for setting aside discussed in cases such as MacFarlane v The Queen [2022] SASCA 46, [46]-[69] and Buckmaster v The King [2022] SASCA 101, [25]-[26].

3. Mr Vazquez did not attend the next callover on 16 October, nor the third on 13 November 2023.  He has not complied with the orders made.  Today he has attended and explained that he filed materials at about 1.00 am on 5 December in response to my last order that materials be filed by 4.00 pm on 4 December.  No materials have been received, though Mr Vazquez says they are on his mobile phone.

4. As matters stand, this case is listed for hearing before the Court of Appeal in two days’ time and it cannot properly proceed in the absence of materials having been filed and served in accordance with the orders of the Court. 

5. In these circumstances, I am prepared to summarily dismiss the applications for an extension of time and for permission to appeal pursuant to r 201.1(2)(e) of the Joint Criminal Rules 2022 (SA) on the basis that the Court does not have before it properly drawn material which demonstrates even on an arguable basis why it should favourably exercise its discretion concerning an extension of time and permission to appeal.[3] 

   [3]     Joint Criminal Rules 2022 (SA), r 201.1(2)(e) provides that a Judge may make orders:

   … striking out an appellate document or summarily dismissing an appellate proceeding if—

   (i)     the appellate proceeding is incompetent or has not been validly commenced;

   (ii)   none of the grounds has a reasonable prospect of succeeding; or

   (iii) the appellant has not obeyed these Rules or any order made under them;

6. The applications for an extension of time and permission to appeal are dismissed.