Kennedy v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 107

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kennedy v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 107 Hearing dates: 10 February 2014 Decision date: 18 June 2014 Before: Ward JA at [1] Johnson J at [112] R S Hulme AJ at [113] Decision: Appeal dismissed. Catchwords: CRIMINAL LAW - appeal and new trial - appeal against conviction - appellant pleaded guilty - whether miscarriage of justice in circumstances where guilty plea made under apparent misunderstanding by appellant as to basis on which clearance permitted under exception for routine agricultural management activities exception

CRIMINAL LAW - appeal and new trial - admission of new evidence - whether evidence "fresh" - whether evidence would have lead to acquittal at first instance

CRIMINAL LAW - offences under the Native Vegetation Act 2003 - clearing native vegetation otherwise than in accordance with a development consent or a property vegetation plan - appeal on grounds that clearing was permitted because native vegetation was "regrowth" within meaning of section 9 of the Act or otherwise permitted under exceptions for routine agricultural management activities within meaning of section 11 of the Act

CRIMINAL LAW - appeal against sentence - whether error in exercise of sentencing discretion Legislation Cited: Criminal Appeal Act 1912 Environmental Planning and Assessment Act 1979 Native Vegetation Act 2003 Native Vegetation Conservation Act 1997 Native Vegetation Regulation 2005 Rural Fires Act 1997 Rural Lands Protection Act 1998 Threatened Species Conservation Act 1995 Cases Cited: Charlesworth v R [2009] NSWCCA 27 Chief Executive, Office of Environment and Heritage v Rummery [2012] NSWLEC 271 Clark v R [2012] NSWCCA 158 Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 Elmir v R [2009] NSWCCA 22 Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 Gilmour v Environment Protection Authority [2002] NSWCCA 399; (2002) 55 NSWLR 593 Han v R [2012] NSWCCA 257 Lars, Da Silva and Kalanderian (1994) 73 A Crim R 91 Meissner v R (1995) 184 CLR 132 Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259 R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 R v Boag (1994) 73 A Crim R 35 R v Chiron (1980) 1 NSWLR 218 R v Kouroumalos [2000] NSWCCA 453 R v Liberti (1991) 66 A Crim R 120 R v Marchando (2000) 110 A Crim R 337 R v O'Sullivan [2002] NSWCCA 98; (2002) 128 A Crim R 371 R v Parkes [2004] NSWCCA 377 R v Sewell [2001] NSWCCA 299 R v SL [2004] NSWCCA 397 R v Toro-Martinez (2000) 114 A Crim R 533 R v Van (2002) 129 A Crim R 229 Ratten v R [1974] HCA 35; (1974) 131 CLR 510 Rummery v Chief Executive, Office of Environment and Heritage [2014] NSWCCA 106 Thalari v R [2009] NSWCCA 170; (2009) 75 NSWLR 307 Walker Corporation Pty Ltd v Director General, Department of Environment, Climate Change and Water [2012] NSWCCA 210; (2012) 82 NSWLR 12 Wong v Director of Public Prosecutions (2005) 155 A Crim R 37 Category: Principal judgment Parties: John Francis Kennedy (Appellant) Chief Executive, Office of Environment and Heritage (Respondent) Representation: Counsel: Appellant (self-represented) E C Muston (Respondent) Solicitors: Department of Environment and Climate Change (Respondent) File Number(s): CCA 2012/00285716 Publication restriction: Nil Decision under appeal Citation: [2012] NSWLEC 159 Date of Decision: 2012-07-20 00:00:00 Before: Biscoe J File Number(s): 50577 of 2011