Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Hudson v Director-General, Department of Environment Climate Change and Water [2012] NSWCCA 92
• Hearing dates: 12 and 13 December 2011
• Decision date: 11 May 2012
• Before: Bathurst CJ at [1]; Whealy JA at [105]; McClellan CJ at CL at [106]

Decision

1 Grant leave to the appellant to tender the following material:

(a) The affidavit of John Ross Hudson sworn on 9 March 2010;

(b) The transcript evidence provided at the committal hearing in R (Commonwealth) v John Ross Hudson by Elizabeth Savage, Daniel Keenan and George Boland.

2 Reject the tender of all other fresh or new evidence sought to be relied on by the appellant at the hearing.

3 Dismiss the appeal so far as it relates to conviction.

4 Quash the penalties imposed by Lloyd J on 11 Feb 2009.

5 Remit the proceedings to the Land and Environment Court for the purpose of determining the appropriate penalty to be imposed on the appellant.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: CRIMINAL LAW - Appeal - Conduct of defence - representation by unqualified person - whether permitted under Land and Environment Court Act s 63.; CRIMINAL LAW - Appeal - Conduct of defence - representation by unqualified person - obligation of judge to ensure fair trial - conviction - whether miscarriage of justice.; CRIMINAL LAW - Appeal - Conduct of defence - representation by unqualified person - obligation of judge to ensure fair trial - sentencing - failure to inform defendant of right to raise matters of mitigation - miscarriage of justice.
• Legislation Cited: Criminal Appeal Act s 5AA, 5AB, s 6, s 12; Native Vegetation Act 2003 s 11, s 12, s 13, s 19, s 22, s 27, s 36, s 48; Noxious Weeds Act 1993 s 35; Fines Act 1996 s 6; Land and Environment Court Act 1979 s 56, s 63; Mining Act 1992
• Cases Cited: Brickworks Limited v The Council of The Shire of Warringah (1963) 108 CLR 568; Burns v State of Queensland & Croton [2007] QCA 240; Clee v R [2009] NSWCCA 18; Cooling v Steel (1971) 2 SASR 249; Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292; Director General of the Department of Land and Water Conservation v Greentree [2002] NSWLEC 102; Director General of the Department of Land and Water Conservation v Greentree [2003] NSWCCA 31; (2003) 140 A Crim R 25; Frawley v R (1993) 69 A Crim R 208; Gilmour v Environment Protection Authority [2002] NSWCCA 399; (2002) 55 NSWLR 593; He Kew Teh v R (1985) 157 CLR 523; Kirk Group Holdings Pty Limited v WorkCover Authority of NSW [2006] NSWCA 172; (2006) 66 NSWLR 151; MacPherson v R [1981] HCA 46; (1981) 147 CLR 512; Mei Ying Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485; (2008) 251 ALR 135; Milne v Minister for Planning [2006] NSWLEC 745; Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493; O'Toole v Scott (1965) AC 939; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; R v Birks (1990) 19 NSWLR 677; R v Birlut (1995) 39 NSWLR 1; R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10; R v Zorad (1990) 19 NSWLR 91; Schagen v The Queen (1993) 8 WAR 410 Scotts Head Development Pty Limited v Pallisar Pty Limited (Court of Appeal, 6 September 1994, unreported); TKWJ v R [2002] HCA 46; (2002) 212 CLR 124; Von Lieven v Stewart (1990) 21 NSWLR 52; Watts v Ellis [2007] QCA 234; Wood v Marsh (2003) 139 A Crim R 475
• Category: Principal judgment
• Parties: Mr John Ross Hudson (Appellant); Director-General, Department of Environment, Climate Change and Water (Respondent)
• Representation: Counsel; Mr P King; Ms F Sinclair (Appellant); Mr M G Sexton SC; Mr E C Muston (Respondent); Solicitors; Levitt Robinson, Solicitors & Attorneys (Appellant); Department of Environment, Climate Change and Water (Respondent)
• File Number(s): 2009/324002

Decision under appeal

• Citation: Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4
• Date of Decision: 2009-02-11 00:00:00
• Before: Lloyd J
• File Number(s): 50014 of 2008 and 50035 of 2008

Judgment

1 BATHURST CJ: By a summons filed on 26 February 2008 the appellant was charged with an offence under s 12 of the Native Vegetation Act 2003 ("the Act") in that he authorised the carrying out of clearing of native vegetation other than in accordance with a development consent granted in accordance with the Act, or a property vegetation plan. The particulars to the summons indicated that the place of the offence was a property, "Yarrol", in the Moree Plains Local Government Area. It indicated that the native vegetation cleared (to use its common name) included Coolibah, Belah and River Cooba trees.

2 By a summons filed on 24 June 2008, the appellant was charged with a contravention of s 36(4) of the Act in that, without reasonable excuse, he failed to comply with a notice issued under s 36(2) of the Act to the extent he was capable of complying with it. Section 36 of the Act empowers the respondent to seek information about a possible contravention of the Act and obliges a person to supply the requested information. A failure to supply such information without reasonable excuse is an offence under s 36(4) of the Act.

3 Following a hearing before Lloyd J, the appellant was convicted of each offence. He was fined $400,000 for the offence against s 12 and $8,000 in respect of the offence against s 36(4). He was also ordered to pay the prosecutor's costs.

The reasons of the primary judge

4 Having regard to the nature of the issues raised on appeal, it is not necessary to deal with the primary judge's reasons in any great detail. So far as the contravention of s 12 was concerned, he found that clearing occurred, that the clearing was of native vegetation, that there was no development consent or property vegetation plan and that Mr Hudson authorised the clearing. He noted that none of the evidence presented by the prosecutor on these issues was challenged by the person who represented the appellant, a Mr Walters, who was not a qualified lawyer. The primary judge rejected a submission by Mr Walters that the Act was "null and void" (an argument not pursued on this appeal) and also rejected a number of other defences brought forward by the appellant.

5 The first of these defences was that the clearing was permitted under s 22 of the Act being for routine agricultural management activities. In that regard the primary judge accepted the undisputed evidence of a Mr Beaman, a compliance investigator employed by the Department of Environment and Climate Change, that only 14 hectares of the land needed to be cleared for routine agricultural management activities. Mr Beaman's evidence was unchallenged.

6 The primary judge also rejected the defence that the clearing was part of the permissible activity of removing the noxious week lippia. He noted that the removal of noxious weeds under the Noxious Weeds Act 1993 fell within the definition of routine agricultural management activities. However, he pointed to s 22(2)(a) of the Act which provided that clearing for routine agricultural management activities does not authorise any clearing of native vegetation if it exceeds the minimum extent necessary for the carrying out of the activity. The primary judge accepted that lippia was a noxious weed but referred to the fact that the Moree Plains Shire Council, a "local control authority" for the purpose of s 35 of the Noxious Weeds Act, produced a weed management plan for lippia which provided a range of control measures but expressly limited mechanical control unless done under the direct written instructions of the local control authority. His Honour found that the clearing was not done pursuant to such instructions and therefore did not amount to routine agricultural management activity. He also found beyond reasonable doubt that the clearing exceeded the minimum extent necessary for the carrying out of the activity. In this regard he expressed a view, first, that the appellant's contention that the extent of his clearing was necessary to cut tap roots by using a "cutter bar" was contrary to the evidence of a Mr Keenan, who was employed to do the clearing and stated he did not use a cutter bar. Secondly, he said there was no evidence to suggest that the massive number of mature trees felled was necessary to cut the tap roots of the lippia. Third, he referred to the fact that only short term control could be achieved by mechanical methods and that herbicides could be used to reduce lippia without harming competitive grasses. Finally, he referred to the fact that long term management of lippia is best obtained through an integrated approach involving herbicides, pasture improvement and grazing management. In that regard he relied on a publication produced by the New South Wales Department of Primary Industries.

7 The trial judge also rejected a defence raised by the appellant that the clearing activities had been consented to by Ms Elizabeth Savage, a catchment officer with the Border Rivers-Gwydir Catchment Management Authority. In this regard he referred to two letters of Ms Savage which stated that trees over ten years old had to be retained on the land. In that context he rejected the contention that Ms Savage authorised the clearing.

8 No additional defences were raised in relation to the offence under s 36. The primary judge stated that to the extent the same defences raised in relation to s 12 were relied on, they were rejected for the same reasons.

9 So far as sentencing was concerned, the primary judge stated uncontroversially the factors which he should take into account in imposing sentence. He said that the objective gravity of the offence was reflected in the maximum penalty. He concluded that the seriousness of the offence was affected by the extent to which it may have been done deliberately and stated that the reasons for committing the offence could be taken into account in measuring its objective seriousness. He noted that Mr Hudson did not give evidence and rejected the submission of Mr Walters that the purpose of the clearing was to remove lippia. He found that the purpose was to make more land available for agriculture. In those circumstances he concluded that the offence was within the high range of objective seriousness and the extent of the clearing meant the harm caused was substantial. He stated this was a factor of aggravation.

10 So far as individual deterrence was concerned, his Honour expressed satisfaction that since Mr Hudson ignored the advice of Ms Savage and proceeded to do precisely what he was told not to do, that unless deterred by a substantial fine, he was likely to reoffend. He noted that apart from the fact that Mr Hudson was not known to have any record of previous convictions, there were no other mitigating factors, pointing out that nothing was known of Mr Hudson's personal circumstances. He stated, however, that he would take into account the fact that Mr Hudson was a first offender.

11 His Honour recognised that s 6(a) of the Fines Act 1996 required him to take into account such information regarding the means of the defendant as was reasonably and practically available to the Court. However, he pointed out that no such information was put before the Court.

12 In those circumstances, he imposed the fine referred to above.

The nature of the appeal

13 Proceedings brought against the appellant were proceedings in Class 5 under the Land and Environment Court Act 1979. Section 56 of that Act provides that except as provided by the Criminal Appeal Act in relation to proceedings in Class 5, 6 or 7 of the Court's jurisdiction, a decision of the Land and Environment Court should be final and conclusive. Section 5AA of the Criminal Appeal Act provides for appeals to the Court of Criminal Appeal against conviction, sentence or (subject to leave) an order for costs made against a person by the Supreme Court in the exercise of summary jurisdiction. Section 5AA(4) of that Act deals with the powers of the Court of Criminal Appeal on such an appeal. It provides as follows:

"5AA(4)The Court of Criminal Appeal, in proceedings before it on an appeal under this section, may confirm the determination made by the Supreme Court in its summary jurisdiction or may order that the determination made by the Supreme Court in its summary jurisdiction be vacated and make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal."

14 Section 5AB of the Criminal Appeal Act extends the operation of s 5AA to convictions by the Land and Environment Court in its summary jurisdiction.

15 It is convenient to set out the grounds of appeal in full:

"Conviction

1.That the prosecution proceedings in respect of Summons 50014/2008 and 50035/2008 ('the Proceedings') were each a nullity in that each prosecution proceeded contrary to law and/or were maintained in contravention of the Land and Environment Court Act 1979 (the 'ACT'), section 63.

2.A miscarriage of justice occurred as a result of the incompetence of the Appellant's legal representative, including, inter alia, in that he:

A.Failed to object to any evidence led by the Prosecutor including unsworn evidence.

B.Failed to cross-examine any Crown witnesses in circumstances where his instructions contradicted those witnesses, and the evidence of such witnesses was prejudicial to the defence.

C.Advanced a defence at law which he was aware or should have been aware had negligible chances of success.

D.Was not competent to act or appear for the Appellants in the proceedings as agent or otherwise.

E.Failed to call evidence and/or make any submissions on behalf of the Appellant on Sentence thereby denying the Court of evidence of relevant considerations on sentence, including, inter alia;

1.That the Appellant did not have a record of any previous convictions (s.21(3)(f) Crimes (Sentencing Procedure) Act 1999 (NSW);

2.That the Appellant was a person of good character (s.21(3)(g) Crimes (Sentencing Procedure) Act 1999 (NSW);

3.That the Appellant had conducted the Clearing for the purpose of removing the noxious weed Lippia (Affidavit of Kevin Humphries MLA affirmed 14 December 2007, paragraphs 7, 16; TOI of Daniel Keenan dated 1 November 2007, p11 and 28).

4.That the Appellant had expressed to the Crown Witness Mr Kevin Humphries MLA that he was willing to make restitution for any wrong done by him (Affidavit of Kevin Humphries MLA affirmed 14 December 2007, paragraph 16).

5.Evidence from Daniel Keenan to the effect that the clearing of Lippia was not possible on the Property because of an inability to get 'spray riggers' in there (TOI of Daniel Keenan dated 1 November 2007, page 28), notwithstanding that Mr Walters was aware of the crowns position as to the necessary means to remove Lippia;

6.the capacity of the Appellant to pay any fine imposed in circumstances where the Appellant was exposed to a potential fine of $1,100,000 being a relevant consideration pursuant to section 6 of the Fines Act 1996 (NSW);

7.The extra-curial punishment suffered by the Appellant in the nature of large amounts of negative media publicity arising out of the alleged events, in circumstances where authorities establish that such a consideration is relevant to sentence - Vincent Gerard Ryan v R [2001] HCA 21; Laws (No 2) (2000) 116 A Crim R 70.

F.Failed to present effectively or competently the Appellant's instructions at trial and/or to advance a coherent legal defence in accordance with those instructions.

G.Failed to call any evidence in support of the defence that the Native Vegetation Act 2003 (NSW), section 12 is invalid and being a law of the state made in furtherance of an agreement between the Commonwealth and the State to acquire property or to evade the constitutional guarantee in respect of Yarrol in the Constitution of Australia Act 1901 (Cth), section 51 (xxxi).

3.The Court erred, by one or more of its judicial officers, or by one or more of its Registrars in the exercise of the Court's jurisdiction in relation to the prosecution of the Appellant in that the Appellant did not receive a fair trial, and/or that the Court failed to exercise its inherent jurisdiction to prevent an abuse of process resulting in an unfair trial of the Appellant.

The Appellant gives notice that he will seek the leave of the Court to lead evidence in respect of Grounds 2B and 2F in the Appeal.

Sentence

4.The Court erred in relation to sentence in the following ways:

A.By failing to consider the capacity of the Appellant to pay any fine pursuant to section 6 of the FINES ACT 1996 (NSW);

B.By imputing a Motive to the Appellant, namely that the clearing was done for the purpose of increasing the land available for Agricultural use in circumstances where;

i.The Appellant's representative had advanced an alternative motive (namely that the clearing had been undertaken by consent of the CMA and for the purposes of clearing the noxious weed Lippia); and

ii.There was insufficient evidence before the Court for a finding of a motive that aggravated the sentence, in circumstances where such finding had to be made beyond reasonable doubt.

iii.There was evidence before the Court that the Defendant had performed the clearing under the belief the clearing had been approved by the CMA.

5.The sentence was manifestly excessive."

16 A number of things may be noted about these grounds. First, although the incompetence of the applicant's legal representative is not expressly relied on in relation to the sentence appeal, it is self-evident that some of the matters in ground 2E relate to the sentence appeal as well as the conviction appeal. (See, for example, ground 2E(1), (2), (4), (5), (6) and (7).) Second, ground 2G was not the subject of any submissions on the appeal. Third, ground 3 which on its face is difficult to comprehend was also not the subject of any submissions during the course of the appeal.

The course of the proceedings

17 Because of the nature of the appeal and the application to lead fresh evidence, it is important to have regard to the conduct of the proceedings.

18 On 4 July 2008, the proceedings were listed for mention before Jagot J. The appellant entered a plea of not guilty to the charges. He also indicated that he wanted Mr Walters to act on his behalf. Her Honour determined not to go to the details of who could be an agent and appear at that stage but permitted Mr Walters to address the Court.

19 Her Honour on a number of occasions during the course of the hearing on that day suggested that the appellant may wish to get legal advice.

20 The matter was next listed before Lloyd J on 21 November 2008. During the course of the hearing on that day, Mr Walters indicated that he put in "an application for a writ of mandamus and prohibition into the Federal Court" in relation to that matter. Further, he asked Lloyd J the following question:

"One thing if I could ask your Honour is this a criminal prosecution where you will have the power of a Supreme Court judge at common law and equity or will it be a prosecution subject to the Statute Law (Miscellaneous Provisions) Act of the Land Court?"

21 Lloyd J somewhat unsurprisingly indicated he did not know what the question meant.

22 The trial commenced on 1 December 2008. At the outset Mr Walters asked the following question:

"So we are actually in the criminal court of New South Wales?"

23 The trial judge indicated that the case was being heard in the Land and Environment Court of New South Wales exercising criminal jurisdiction. Immediately after this interchange the trial judge asked the appellant whether he was content for Mr Walters to represent him indicating to him that the charges were serious criminal charges which exposed him (the appellant) to a possible penalty of $1 million. The appellant responded he was aware of that but did not wish to make any further submissions.

24 Thereafter the whole of the prosecution case was admitted without objection and without cross-examination. The parties then proceeded to address. I have read Mr Walters' address and with respect it was in the main irrelevant and indicated no real appreciation of the nature of the issues the subject of the charges.

The appeal

25 A Notice of Appeal was filed on 2 September 2009.

26 On 9 November 2010 an application was made to adduce fresh evidence on the appeal, accompanied by an affidavit of Louise Marie Cassar, a solicitor in the employ of the solicitors for the appellant, identifying the documents sought to be tendered. The documents the subject of this application apparently related to the constitutional issue which I have indicated was not pressed. Accordingly, there is no need to deal with these documents further.

27 On 3 March 2011 a further application was made to adduce fresh evidence on the appeal, namely the transcript evidence provided at the committal hearing in R (Cth) v Hudson by Ms Elizabeth Savage, Mr Daniel Keenan and Mr George Boland and further documents produced under subpoena at that committal hearing.

28 The application was also supported by an affidavit of Ms Cassar. She deposed that the issues in the committal proceedings were similar to those raised in the proceedings the subject of the appeal and that on the evidence of the witnesses called by the prosecution in the committal proceedings, there existed an arguable basis that the appellant should have been acquitted.

29 On 9 May 2011 a further application was made in similar terms. The affidavit in support exhibited a folder of documents being exhibits of the three witnesses in the committal proceedings.

30 On 16 May 2011 a further application was made to adduce fresh evidence, namely the documents produced under subpoena at the committal hearing of the Commonwealth proceedings.

31 In addition, the appeal book contained an affidavit of the appellant which together with annexures comprised some 70 pages. Although no motion was filed to adduce this evidence on the appeal, counsel for the appellant indicated during the course of argument that he wished to rely on this affidavit in support of the allegation that there was a miscarriage of justice.

32 Although the material the subject of the application to adduce fresh evidence (apart from the affidavit of Mr Hudson) comprised three relatively large lever arch folders of documents together with a folder of transcripts of the committal hearing, only limited reference was made to it. I indicated during the hearing that to the extent that the documents were relied upon on the appeal, the parties should conduct their argument on the basis that they were admitted and a decision as to their admissibility would be given in the course of this judgment.

The appellant's submissions

33 In his written amended submissions dated 11 March 2010 the appellant referred to what were described as background facts designed to support a submission that the respondent had consented to the clearing. The material as referred to by the appellant may be summarised as follows:

(a)At the time of the incidents the subject of the charges Ms Savage was employed as Catchment Co-ordinator (Riverina Ecosystems) with the Border Rivers - Gwydir Catchment Management Authority. In her affidavit of 25 January 2008, Ms Savage exhibited a map which she said reflected discussions in relation to vegetation on the property and the clearing.

(b)Ms Savage brought copies of what was described as "an authorisation", "a second copy of the PVP" (a property vegetation plan) and the map referred to in (a) above, to a meeting with the appellant on 13 February 2006, and left them with the appellant. However, Ms Savage's affidavit of 25 January 2008, on which the appellant relies, does not show that Ms Savage said that she left the property vegetation plan with the appellant.

(c)The appellant asserts, referring to a transcript of the interview of Mr Daniel Keenan on 18 December 2007, annexed to the affidavit of Mr Jason Bentley sworn on 25 February 2008 and filed in the proceedings, that the appellant told Mr Keenan that he had spoken to Ms Savage on the evening before, and during that conversation Ms Savage said words to him, the appellant, to the effect: "You'll be fine. I've spoken to [Mr Keenan] and he knows what he's doing. You know what you're doing, you'll be fine". The reference given by the appellant to the transcript of interview does not contain any such material. Rather, on the page of the transcript referred to , Mr Keenan stated that he determined the areas to work according to a "Case Number" map he had been given. He said that at the time he received the map Mr Hudson also gave him a file full of information that came from Ms Savage, "it had her business card and all in it". He said that the appellant told him he had asked Ms Savage if she would like to come out when they were there, but that he, Mr Keenan, never saw her on site. Subsequently in his evidence he identified a yellow manila folder which he said was the folder that he was given. However, it appears from the affidavit of Mr Hudson on which reliance is sought to be placed and the transcript of the evidence of Ms Savage in the committal proceedings to which I have referred, that a conversation of the nature suggested did take place.

(d)The appellant also referred to statements of Mr Keenan in his interview with Mr Bentley to the effect that Mr Hudson told him (Mr Keenan) that Ms Savage did not want particular areas touched.

(e)The appellant placed particular reliance on an interview Ms Savage had had with a compliance investigator, a Mr Stephen Beaman, on 16 May 2007, annexed to the affidavit of Mr Beaman sworn on 25 February 2008, in which the following questions and answers were given:

"Q:My question is: given the obvious environmental values -

A:Yes.

Q:- or however else you want to state it --

A:Yes.

Q:-- there on Yarrol, and given Mr Hudson's - the impression you've given is that Mr Hudson was very concerned about undertaking this clearing. That seems to be evidenced by the number of times you've gone out there and given advice, and the length of time he's taken to consider it - can you tell me why there isn't a PVP there, which basically gives the landholder assurance, or almost insurance that he can go ahead and do the works set out on a PVP, and then very clearly defend the work he's done.

Why have you, it appears, given him advice to use the Ramsar available in the legislation, rather than a PVP, which it would seem to me to give him much more security?

A:The PVP, because of the - because the Coolabah Woodland was identified by Silvertson, and because of the presence of the elderly Coolabahs in the landscape, is an automatic red light.

Q:So you are saying that under a PVP you wouldn't have been able to clear here?

A:That's right. Even though its invasive native species - okay. There's an invasive native species list for this area. However, because of the presence of the large Coolabahs, PVP developer issues a red light for landscape.

Q:So in your role with the CMA, were you aware that he would have got a red light which indicates you can't clear?

A:That's right. I took the PVP developer to his place, ran it and showed him the red light, so that was it.

Q:So we are here now speaking to you about alleged breaches of the Act. The PVP developer indicated a red light indicating not to clear.

A:That's right.

Q:He has now gone ahead and cleared, apparently with your advice?

A:Yes.

Q:Were you at all hesitant to advise him to clear after the red light came up?

A:Because he was - because a red light comes up doesn't mean that you can't use your Ramsar. People need to know what Ramsar they can use."

It should be noted that this passage does not suggest that there was a property vegetation plan in existence which permitted the clearing to take place.

34 The reference to Ramsar is a reference to routine agricultural management activities which are dealt with in s 11 of the Act.

35 The appellant referred to a number of conversations he had after the clearing in which he asserted he had permission to clear. These assertions would seem to be of little evidentiary weight.

36 The appellant, after referring to the conduct of the trial to which I have referred above, made the following submissions in relation to the particular grounds of appeal.

37 Ground 1 - The appellant submitted that s 63(1) of the Land and Environment Court Act provided the only basis on which a non-qualified lawyer could appear in the Land and Environment Court. He submitted that as the right of appearance of a non-qualified agent provided for in that section did not extend to proceedings in Class 5, Mr Walters was not entitled to appear.

38 The appellant submitted that there was no residual discretion in the Court to permit a non-qualified agent to appear in Class 5 proceedings. He supported this argument by cases which indicated the approach of the Court that it was only in exceptional cases that persons without legal qualifications were permitted to represent litigants in court: Schagen v The Queen (1993) 8 WAR 410 at 412; Scotts Head Development Pty Limited v Pallisar Pty Limited (Court of Appeal, 6 September 1994, unreported) per Mahoney AP; Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149 at [86]. He emphasised what was said by Mahoney AP in Scotts Head supra, that the reasons for this restriction were based on considerations central to the proper administration of justice and the protection of parties and litigation.

39 The appellant emphasised the right of an accused person to a fair trial according to law and submitted, relying on what was said by Kirby P in R v Birlut (1995) 39 NSWLR 1 at 5, that the judge's consent to the appellant being represented by an unqualified person was a procedural requirement that was so significant that it struck "at the heart of the jurisdiction of the court".

40 At the hearing counsel for the appellant accepted that a court had power to control its own proceedings but suggested that this power was limited by the provisions of s 63 of the Land and Environment Court Act. He submitted that the jurisdiction of the Land and Environment Court in Class 5 proceedings was subject to a condition that the accused could only appear in person or by a qualified legal representative and if that condition was not fulfilled the proceedings were a nullity.

41 Alternatively, it was submitted that if s 63 did not preclude a court granting leave for a person to be represented by an unqualified person, the judge erred in exercising his discretion in this particular case as there were no exceptional circumstances which required it.

42 Ground 2 - The appellant relied on the well-known passage from the judgment of Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 685 to the effect that while generally an accused person will be bound by the way his or her case was conducted by counsel, there may be cases in which something occurs as a result of the "flagrant incompetence" of counsel which will be recognised as involving or causing a miscarriage of justice. See also Clee v R [2009] NSWCCA 18 at [27]. He submitted that Mr Walters did not object to any of the evidence led by the prosecution, including sworn evidence, did not seek to cross-examine, and advanced a defence which plainly had no prospects of success, namely that the owner of freehold had a right with which the State could not interfere to clear such vegetation as the owner pleased. He pointed out that this defence sought to be advanced by Mr Walters had been rejected on two occasions by the Queensland Court of Appeal: Burns v State of Queensland & Croton [2007] QCA 240; Watts v Ellis [2007] QCA 234. He also relied on Mr Walters' failure to call any evidence on his behalf on sentence.

43 Importantly, he contended that Mr Walters failed to effectively or competently act in accordance with his instructions at the trial and to advance a coherent legal defence in accordance with those instructions. He contended that Mr Walters had received instructions that Ms Savage had authorised a clearing on behalf of the respondent or, alternatively, that he, the appellant, had an honest and reasonable belief of the same. He relied on the material to which I have referred above in support of his arguments, together with an extract from a record of interview with a Mr Boland which was tendered in the proceedings as an exhibit to an affidavit of Jason Robert Bentley sworn on 23 May 2008, in which he, Mr Boland, said that the appellant had told him that the clearing was done under the direction of Ms Savage, and that he, Mr Boland, had received previous advice from Ms Savage that it was necessary to plough lippia in order to remove it. On that basis the appellant contended that the clearing had been performed by him under the direction and by agreement with Ms Savage who was authorised to permit it, or that he had made an honest and reasonable mistake of fact, namely, the documents provided to him by Ms Savage at a meeting in January 2006 were a development consent or property vegetation plan permitting the clearing to take place.

44 In supplementary submissions filed by the appellant, he relied on the following evidence of Ms Savage at the committal hearing of September 2010:

(a)That Mr Hudson wanted to know exactly the importance of the vegetation and that in her view he was relying on information given to him by her in carrying out the clearing.

(b)That Mr Hudson adopted a collaborative approach seeking a good outcome.

45 The appellant also referred to the evidence of Ms Savage at the committal proceedings in which she agreed she advised the appellant to undertake clearing on areas previously cleared and retain an uncleared buffer zone. Her evidence at the committal proceedings was she had suggested a 200 metre buffer zone around the water, and that this would address the issues raised by her. He referred to the fact that Ms Savage had agreed that he was entitled to remove regrowth.

46 The appellant also referred to the fact that Ms Savage gave evidence at the committal proceedings that Mr Hudson had entered into a management conservation contract and that she confirmed that the work done from 12 February 2007 which she observed during a walk through conformed to the work she approved in her discussions with Mr Hudson.

47 The appellant also sought to put reliance on the evidence of Mr Keenan, the contractor who did the clearing work. He referred to the fact that Mr Keenan in his evidence in chief at the committal hearing stated that he received information from Ms Savage in a manila folder which contained information on the control of lippia weed and the dimensions of the clearing of the fence line. He pointed out that that was consistent with the evidence of Ms Savage at the committal hearing that she provided a manila folder marked "To the Contractor" to the appellant which contained information such as pamphlets about native vegetation and definitions and included a mosaic map. Copies of these documents, which became exhibits in the committal proceedings, formed part of the additional material which the appellant sought to tender at the hearing.

48 At the hearing counsel for the appellant contended, first, that there was in fact a permit in existence which permitted the clearing to take place. Second, that the appellant, had he been properly represented, would have been entitled to rely on the defence of honest and reasonable mistake of fact. He initially identified the honest and reasonable mistake of fact three ways. First, a mistake as to the existence of a permit. Second, a mistaken belief that the clearing conformed to the authorisation that Ms Savage gave to the contractor. Third, a mistaken belief that the exception as to regrowth provided in s 19 of the Act applied, and that "Hudson had no reason to believe, nor did Savage nor Keenan, that they'd transgressed that factual question".

49 Counsel for the appellant identified the permit as comprising, first, a document entitled "Map 1: 'Yarrol' Boundary & Paddocks Continuing Use PVP". This document was an annexure to Ms Savage's affidavit sworn 3 April 2008, relied on by the respondent in these proceedings at first instance. Counsel for the appellant stated that this formed only part of the permit. He said the balance of the permit was contained in documents behind Tab 17 in Exhibit LMC 1 to the affidavit of Ms Cassar of 9 May 2011 filed in support of the application of 9 May to adduce further evidence. The documents, which were exhibits in the committal proceedings, comprised a document headed "Draft Continuing Use Property Vegetation Plan" which was stated to commence from the date "at which it is signed by a delegate of the Minister". It was not so signed. The next document was a document entitled "Site Value/Plot Data Sheet" which contained a PVP number 311. The final document was a management agreement between the appellant and his wife and the Border Rivers Gwydir Catchment Management Authority which related to certain clearing. It was acknowledged by counsel for the appellant that this document was not signed until the clearing, the subject of the proceedings, had in fact concluded.

50 In that context the appellant placed particular reliance on evidence given by Ms Savage at the committal proceedings to the following effect:

"Q.Now, in the course of the inspection that you had with Mr Hudson on 9 January 2006, which you described to his Honour earlier with particular reference to the Lippia infestation, you also provided to Mr Hudson at or about that time, it have been a little bit later, copies of the documents that I have now shown to you?

A.Yes, yes.

Q.If I can just take you to exhibit 14 first, please, do you see that in the reference box in the bottom right-hand side it has the number '4' and then the word 'paddocks', and the number '1' and then the word 'PVP'; do you see that?

A.Mm-hmm.

Q.Now, as I understand it, that is part of your codification built into your system at that time identifying paddocks and then PVP, meaning PVP areas?

A.Yes.

Q.So if we can just look at the case number, exhibit 14, Mr Hudson had previously provided you with an identification of the paddocks. You had then consulted your information and identified various areas of concern in relation to clearing activity, and then you had marked the map with various paddock numbers or area numbers; is that right?

A.That's right, yes.

Q.So, for example, at the house area you've marked that area '4d'?

A.Yes.

Q.And then you see in this copy of exhibit 14 somebody has written in bold upper case the words 'Horse PK'?

A.Yes.

Q.That's Mr Hudson's writing, isn't it?

A.Yes, it is.

Q.Meaning horse paddock?

A.Yes.

Q.And then the next paddock or the next area down, we see it's marked '4KL & M', and it's described by Mr Hudson as 'Billy's paddock'; do you see that?

A.Yes.

Q.But you have identified three areas of interest and concern to you in relation to attention of vegetation, and I won't take you to those, but that's the general gist of it; is that right?

A.Certainly, yes.

Q.And if we can then come down. We cross the channel, the freshwater channel, going south, and then through a gate you come to the dip paddock; do you see that?

A.Yes.

Q.To the left-hand side there's the devisor paddock?

A.Yes.

Q.Then there are gates, three gates along the fence between those two paddocks, and the next large paddock, which is the channel paddock, the subject of this matter; is that right?

A.Yes, yes.

Q.Again Mr Hudson has identified the gates by a square with a cross and the names of the paddocks in the handwriting to which you've referred?

A.Yes.

Q.Then is it fair to say that at this time, that is on or about 9 January 2006, you identified for him some of the issues that would need to be addressed in relation to clearing and your handwriting appears on this document in that regard?

A.Yes, it does, yes.

Q.And the words 'Voluntary 200 metre buffer zone', with a squiggly line going through the middle of the channel paddock, is a reference, is it not, to the suggestion that you'd made to Mr Hudson that he adopt that advice of yours to address the bird questions you had raised in your letter of 9 December 2004?

A.Yes.

QIt was your view, wasn't it, that if the buffer zone was put in place by Hudson, that it would address the issues that you had raised in the letter?

A.Yes."

51 The document referred to in that passage of cross-examination as Exhibit 14 was the document at Tab 2 of Exhibit LMC 1 to the affidavit of Ms Cassar of 9 May 2011. It was the document entitled "Map 1: 'Yarrol' Boundary & Paddocks Continuing use PVP" to which I have referred earlier.

52 The appellant also referred to the evidence of Mr Keenan at the committal hearing to the effect that he believed that all trees he cleared were regrowth trees, saying that this was also a mistake of fact. This was put in support of the third way he put this defence (see par [48] above).

53 In support of the proposition that the mistakes to which he referred were mistakes of fact, senior counsel said the position was analogous to that considered by Reeves J in the Federal Court in Mei Ying Su v Australian Fisheries Management Authority (No 2) [2008] FCA 1485; (2008) 251 ALR 135 where the defence of honest and reasonable mistake was upheld in circumstances where a fisherman believed that his navigational position was outside the area for which a fishing licence was required.

54 In supplementary submissions directed to the question of whether the principles in cases such as R v Birks supra applied where the accused was not represented by a qualified lawyer but rather an unqualified person, the appellant relied on a number of cases which emphasised the importance of ensuring an accused person received a fair trial and in particular referred to MacPherson v R [1981] HCA 46; (1981) 147 CLR 512 and Frawley v R (1993) 69 A Crim R 208 where new trials were ordered in circumstances where the Court considered that an unrepresented accused did not receive a fair trial.

55 Ground 3 - The appellant essentially relied on his submissions in relation to ground 2 above.

The submissions of the respondent

56 The respondent pointed out that the combined operation of s 5AA and s 5AB of the Criminal Appeal Act meant that an appeal is of the same nature as that for which s 5 of the Criminal Appeal Act provides. She submitted that in these circumstances, the appellant must demonstrate error on the part of the Land and Environment Court.

57 The respondent submitted that s 63 of the Land and Environment Court Act conferred an as of right entitlement to lay representation in proceedings in Classes 1-4: Milne v Minister for Planning [2006] NSWLEC 745 at [14]. She submitted that the section could not be construed as depriving the Land and Environment Court of a discretion to allow lay persons from appearing in Class 5 proceedings, having regard to the context and purpose of the relevant legislation. She submitted that to the extent that the trial judge exercised a discretion to allow Mr Walters to appear, there was nothing to suggest his discretion miscarried. The Director General sought to distinguish the present case from cases where a trial has miscarried due to the incompetence of counsel. She referred to the fact that the recognition and regulation of legal practitioners as officers of the court give rise to a presumption that they possess specialist skills and that an accused is entitled to assume a practitioner possesses those skills when instructing him or her to act on the implied understanding that he or she is to have complete control over the way the case is conducted: see TKWJ v R [2002] HCA 46; (2002) 212 CLR 124 at 147 [74]; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.

58 In that context the respondent emphasised that although the Land and Environment Court was a statutory court it had by implication such powers as were incidental and necessary to the exercise of its jurisdiction which powers include an inherent right to allow a person (not being a lawyer) to conduct a case on behalf of a party where it is desirable to do so in the interests of justice. She submitted that s 63 did not oust this jurisdiction. In his oral submissions, the Solicitor-General who appeared on behalf of the respondent in the present case, submitted that the fact that the Land and Environment Court had the power to regulate its own proceedings including permitting an unqualified person to appear, was supported by the decision of this Court in Damjanovic v Marley supra at [33] and by the decision of the Privy Council in O'Toole v Scott (1965) AC 939.

59 The respondent submitted that having regard to the role that legal practitioners play, it is hardly surprising that flagrant incompetence on their part in a trial can give rise to a miscarriage of justice. She submitted initially that none of those considerations arose in the case of lay representation. However, in supplementary submissions filed at the direction of the Court she accepted that whether or not the appellant was legally represented the primary judge was under an obligation to ensure he received a fair trial in which the rules of procedure and the laws of evidence were properly followed: McPherson v The Queen supra; R v Zorad (1990) 19 NSWLR 91. She accepted the statement made by Gleeson CJ in R v Frawley supra at 212 that in the circumstances of the present case the Court must consider whether there was a miscarriage of justice but it does so in a context in which the fact that the appellant was unrepresented was a result of his own conduct.

60 The respondent also submitted there was no miscarriage of justice in the present case. She submitted that neither particular criticism made by the appellant nor any of the additional material demonstrated that there was such a miscarriage. She submitted by reference to the affidavit of Mr Hudson that the highest the case on honest and reasonable mistake could arise was that he was authorised to clear the land within the boundaries of a map provided to him by Ms Savage. She submitted that that was not a mistake of fact. She also submitted that such a belief could not reasonably be held having regard to the letter from Ms Savage to Mr Hudson of 9 December 2004 and her letter to Mr and Mrs Hudson of 13 February 2006

The appellant's submissions in reply

61 Counsel for the appellant in reply acknowledged that the relevant belief held by the appellant was the one set out in par [26] of his affidavit. He reformulated the belief which he stated was held by the appellant in the following terms:

"What Mr Hudson believed was having regard to the map which had been marked up specifying that the trees, the corridors to be left which were left and specifying the paddocks which were to be used in a PVP the four paddocks, the continuing use PVP and the management agreement in relation to clearing parts of the land for the benefit of the local CMA - what was called the 'birdie track' for which Mr Hudson was paid by the CMA - that he had a what's called a continuing use PVP or an authority or consent to clear those areas which in fact were cleared. And that the conversation with Ms Savage the night before the clearing commenced, which everybody agrees occurred, was evidence of that consent independently of the documents that were handed to Mr Hudson and given to the clearer in a folder marked 'to the contractor' with her card in it."

62 In support of the proposition that the mistake was a mistake of fact not a mistake of law he relied on the decision of the High Court in Brickworks Limited v The Council of The Shire of Warringah (1963) 108 CLR 568.

Consideration

Ground 1

63 Section 63(1) of the Land and Environment Court Act in terms entitles a litigant as of right to appear by an authorised agent in proceedings in the Court except in proceedings in Classes 5,6 or 7. It does not in terms prohibit the Court granting leave for an agent to appear in proceedings in those Classes. The purpose of the subsection was self-evidently to give persons with expertise in the areas within the jurisdiction of the Court, town planners and the like, the right to appear whilst not extending that right to the criminal and quasi-criminal matters generally covered by Classes 5, 6 and 7.

64 In my opinion this section does not by necessary implication prohibit the Court from giving leave to a person being represented by an unqualified person in Class 5 proceedings. Even though the Court is a statutory Court it has the power to control its own proceedings. In Damjanovic v Maley supra, an appeal from a decision by a District Court (a statutory court) judge to refuse leave to commit an unqualified person to represent a plaintiff, Stein JA, with whom Mason P and Sheller JA agreed, made the following remarks (at [33]):

"[33]According to Halsbury's Laws of Australia a court has an inherent right, in regulating its own proceedings, to allow a person (not being a lawyer) to conduct a case on behalf of a party where it is desirable to do so in the interests of the administration of justice."

See also O'Toole v Scott supra.

65 Section 63(1) is to be construed having regard to its object and purpose: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [91]; R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 at [44]-[45]. I have set out the object and purpose above. The object, in my opinion, was not to impose a limitation on the powers of the Court to regulate its own proceedings.

66 The contrary argument is not advanced by the provisions of s 63(2) which requires leave of the Court for an unqualified person to represent a litigant in Class 8 proceedings. Section 63(2) was inserted in the Land and Environment Court Act at the same time as the Land and Environment Court was given jurisdiction in Class 8 proceedings (see the Courts and Crimes Legislation Further Amendment Act 2008). The view is evidently taken by the legislature that unqualified persons should not appear in any matters arising under the Mining Act 1992 without leave. It does not seem to me that the insertion of s 63(2) to give effect to this intention leads to the conclusion that it was otherwise the intention of the legislature to remove the power of the Court in proceedings in Classes 5, 6 and 7 to permit unqualified persons to appear with leave.

67 Even if this was not correct it would not follow the proceedings were a nullity. The relevant question is whether an act done in breach of the provision is invalid: Project Blue Sky supra at [93]; R v Janceski supra at [46]. It does not seem to me that there is anything to suggest that the legislature intended that the consequence of permitting an unqualified person to appear was that the proceedings would be a nullity. Any difficulty which arose as a consequence of representation by an unqualified person, if it involved an error of law or miscarriage of justice, could be dealt with on appeal. There does not seem to me to be any reasons to suggest that the legislative intention was to the contrary.

68 Nor do I think that the primary judge erred as a matter of discretion in permitting Mr Walters to appear. In circumstances where no objection was taken by either party there does not seem to me to be any room to say that the discretion miscarried. Even if there was an erroneous exercise of discretion that would not nullify the proceedings. It follows that ground 1 is not made out.

Grounds 2 and 3

69 The respondent did not seriously contest that the conduct of the case by Mr Walters was incompetent. It only has to be stated that he focused on issues which were plainly unarguable. Irrespective of whether there are differences in consideration of the question in a context of incompetent legal representation or incompetent self-representation or representation by an unqualified person, the ultimate question is whether what occurred at the trial resulted in a miscarriage of justice. In the present case, at least so far as the conviction was concerned, there does not seem to me to have been any such miscarriage. It was put first that it should have been contended that there was a permit in existence. I have set out in par [49] above what was said to constitute the permit. With respect it could not be said on any view that the documents referred to in that paragraph, whether considered alone or together, could be said to constitute a permit. If by the expression 'permit' it was intended to convey there was a development consent granted in accordance with the Act, it is clear that there was not if only because there is nothing to suggest that the relevant consent authority, the Minister, had granted consent as required by s 13 of the Act.

70 It is equally clear that there was no property vegetation plan within the meaning of s 12(1)(b). Such a plan only has effect if approved by the Minister (s 27(1)). There is nothing to suggest that the Minister had approved any such plan. Further, there is no evidence to suggest the Minister had delegated his approval function under s 48(2) of the Act. Even if it could be inferred that he had, the draft plan relied upon was stated to commence from the date it was signed by a delegate of the Minister. There is no evidence that it was ever signed.

71 It follows that to the extent Mr Walters failed to contend that a permit was in existence, there was no miscarriage of justice.

72 It is also alleged that there was a miscarriage of justice in that Mr Walters failed to adduce evidence or make submissions going to the defence of honest and reasonable mistake of fact. That defence is available to a person prosecuted for a contravention of s 12 of the Act: Director General of the Department of Land and Water Conservation v Greentree [2002] NSWLEC 102 at [90], on appeal [2003] NSWCCA 31; (2003) 140 A Crim R 25 at [67]-[71]. However, the mistake must be a mistake of fact not a mistake of law: He Kew Teh v R (1985) 157 CLR 523 at 534-535, 582; Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493 at [10], [46]. In the latter paragraph McHugh J made the following remarks which are apposite to this case:

"[46]Thus, it is no defence to a criminal charge that the defendant believed that his or her actions were not regulated by law or that his or her actions satisfied the provisions of a law. Such beliefs are mistakes of law, not mistakes of fact. In Von Lieven v Stewart, the Court of Appeal of New South Wales held that the belief by a promoter of a scheme operated by a company that the scheme 'neither involved an offer to the public nor a prescribed interest' and accordingly did not contravene the Companies (New South Wales) Code or the Securities Industry (New South Wales) Code was a mistake of law, not fact. It provided no defence to charges of breaching provisions of those Codes. Clarke JA said that, once the defendant knows all the facts which constitute the elements of the offence, a mistake as to their legal effect is not a defence to a criminal charge. Handley JA (with whom Mahoney JA agreed) said:

'[A] belief or assumption that the acts in question are lawful either because they are unregulated, or because the requirements of the law have been satisfied, cannot excuse in cases such as this. ... The only excuse is the existence of an actual or positive belief, based on reasonable grounds, in the existence of some fact or facts which, if true, would make the act in question innocent.'"

73 McHugh J also emphasised (at [53]-[54]) that it was immaterial that the error was induced by erroneous advice by a government official.

74 In par [26] of the affidavit of the appellant which was sought to be relied upon, he stated his belief as follows:

"As a result of the conversations that I had previously had with Ms Savage since 2003, and the conversations had between Ms Savage and I referred to in paragraphs 11 to 24 above, I held a belief that I had been authorised by the CMA, and the Minister, to clear the land within the boundaries of the authorisation as outlined in the map provided to me by Ms Savage."

75 I have indicated earlier how this belief was reformulated on the appeal (par [61]).

76 Irrespective of whether regard is had to the belief deposed to by the appellant or to the belief as reformulated, it seems to me that to the extent there was a mistake it was a mistake of law, either that the documents received from Ms Savage constituted sufficient authorisation to enable the clearing to take place, or that Ms Savage had authority to consent to the clearing. Either error is a mistake of law. The position is indistinguishable from that considered by the High Court in Ostrowski supra and the decision of this Court in Von Lieven v Stewart (1990) 21 NSWLR 52 cited with approval by McHugh J in Ostrowski.

77 Counsel for the appellant placed particular reliance on two decisions, the decision of the Federal Court in Mei Ying Su v Australian Fisheries Management Authority (No 2) supra and the decision of the High Court in Brickworks Limited v The Council of the Shire of Warringah supra. Neither of these two cases assists the appellant. The first involved a mistake by a fisherman as to his navigational position. The mistake led him to the conclusion that he was not within Australian waters. There was no issue that had the belief held by the fisherman been correct he would not have been in Australian waters. The mistake in that case was a mistake as to his navigational position, not a mistaken belief that he was authorised to fish in Australian waters or a mistaken belief as to their territorial limits. Had the mistake been of the latter category it would have constituted a mistake of law. It provides no assistance in the present case, where the relevant belief is a belief that a person was authorised to carry out a particular act.

78 The decision of the High Court in Brickworks supra provides no assistance. The issue in Brickworks was whether the respondent Council had failed to discharge the onus of proving that it had not consented to a particular development. The majority held it had not (see at 577, 589). The decision has no relevance to the issue in the present case. It follows that the failure of Mr Walters to adduce evidence and rely on the defence of honest and reasonable mistake of fact did not cause a miscarriage of justice.

79 In these circumstances ground 2 of the Notice of Appeal is not made out. It was not suggested that ground 3 raised any different issues, so it also cannot succeed.

80 In the result, the appeal against conviction should be dismissed.

The appeal against sentence

The course of the hearing

81 Following conclusion of submissions on the question of contravention, it was agreed between the parties that submissions would be made on sentence so there would be no need for a separate hearing if the primary judge found that the contraventions had been made out.

82 Mr Walters' initial submission on sentence was to the following effect:

"Your Honour, I've asked it to be totally dismissed with no penalties and that's it. If you find penalties well there's nothing. That is your decision and yours alone."

83 Following those remarks his Honour indicated he would hear from counsel for the present respondent.

84 Counsel for the present respondent then addressed the Court, followed by Mr Walters on behalf of the appellant. Mr Walters' address was short and because it graphically illustrates his total inability to grasp the nature of the case and the issues raised on sentence it should be set out in full:

"All I can say is your Honour that my learned friend just said a criminal matter, not a quasi criminal matter. To have a criminal proceedings in this court, Mr Hudson - and I refer to the correspondence from Ms Hicks where she said 'this is a criminal ... in the land'. How can you have a criminal proceedings brought by the state for property which they are supposed to have an interest in, which they don't, for a criminal offence. All criminal offences revolve around the ownership of the property. Why do we have a problem with euthanasia. It doesn't matter if you're two seconds off it, your personal property it starts with your life. No one can decide to remove it.

The charge is murder, a malice of forethought, mens rea and actus reus. If you're two second off the end of your breath. Mr Hudson owns his property at common law and equity, this State has no interest in it. It was sold of the Crown and he paid for it. That is why when the Act says the Crown in that capacity, this legislative government, or the executive government has the Crown in a different capacity, therefore subject to the Statutory Law Miscellaneous Provisions Act, that if he had signed agreement, if he had and it was registered on his title deed they then had an interest in the property. And if they had on that title deed and in the interest, and in the civil law where you sign it to breach it, and everything revolves around common law, our right to move. My right to get on an aeroplane tomorrow and go to far north Queensland without having to get a permit to enter Queensland."

85 There then followed a short interchange between the primary judge and Mr Walters. Mr Walters concluded by making the following remarks:

"If you do say you are going to convict him you record the conviction with no penalty and no fine. And if it goes the other way, they pay his relevant costs to the relevant legal people, and his travel, nothing else."

86 Following those remarks the hearing on sentence concluded.

87 I have summarised the primary judge's remarks on sentence above (see pars [9]-[11]).

The parties' submissions

88 The appellant submitted that the primary judge erred in failing to consider the capacity of the appellant to pay any fine pursuant to s 6 of the Fines Act 1996 (NSW). In fact this submission is incorrect as absent any submission to the contrary, the trial judge took the view that the appellant had the capacity to pay any fine. The appellant's real complaint is that Mr Walters failed to make any submissions on the issue.

89 The appellant also submitted that there was no basis for the trial judge for inferring that the purpose of the clearing was to increase the land available for agricultural use. He submitted that the Court should not have drawn the inference unless it was satisfied that the matter had been proved beyond reasonable doubt and that there was insufficient evidence to enable this inference to be drawn. Reliance was placed in that context on certain statements made by the appellant as to his purpose of clearing after the clearing had taken place and on the discussions which the appellant had had with Ms Savage to which I have earlier referred.

90 The appellant finally submitted that the penalty was manifestly excessive relying on a series of what was said to be comparable cases.

91 Further, as I have indicated earlier ground 2E of the notice of appeal alleges that a miscarriage of justice in the sentencing procedure occurred as a result of the incompetence of Mr Walters.

92 The respondent submitted that for the appeal against sentence to succeed it was necessary to demonstrate error. She submitted that there was no error in the trial judge inferring the appellant was able to pay any fine absent any submission to the contrary. She contended that it was open to the primary judge, absent any acceptable evidence, to conclude that the clearing was done for the purpose of making more land available for agriculture, pointing out that a desire to clear the land of lippia was consistent with this purpose. So far as the appellant's submissions that the sentence was manifestly excessive were concerned, she pointed to the danger of relying on cases involving different factual scenarios and different penalties.

93 In supplementary submissions, as previously noted, the respondent acknowledged that whether or not the appellant was legally represented at the trial, the primary judge was under an obligation to ensure he received a fair trial in which the rules of procedure and the laws of evidence were properly followed. She submitted that the proper approach was to view the trial as though the appellant had represented himself and that the primary judge was in those circumstances required to provide some assistance to the appellant. She submitted that the particular obligations of a trial judge in the context of a hearing on sentence where a convicted person is unrepresented were addressed in Cooling v Steel (1971) 2 SASR 249 and Wood v Marsh (2003) 139 A Crim R 475 at [35]-[40] (483-485). The respondent further accepted that if the Court were to conclude that the primary judge ought to have provided a greater explanation to the appellant of the sentencing process and his rights thereto and that as a result the appellant had been deprived of an opportunity to adduce evidence of his belief that the clearing was authorised, that evidence might have had an impact on the sentence imposed.

Consideration

94 I have set out above Mr Walters' submissions on sentence. They were plainly inept and should have confirmed to the trial judge what was probably already apparent to him from the conduct of the trial, namely, that Mr Walters was quite incapable of representing the appellant.

95 The primary judge in those circumstances was obliged, in my opinion, to take steps to ensure that the sentencing procedure was conducted fairly. Whether or not he should have revoked Mr Walters' leave to appear at that stage, he should at least had ensured that the appellant knew that he was exposed to significant pecuniary penalties and of his right to make submissions and to adduce evidence in mitigation of the penalty: see Cooling v Steel supra; Wood v Marsh supra. The primary judge made no such attempt.

96 In my opinion, the respondent was correct in stating that the appellant was in the same position as an unrepresented litigant. In these circumstances the primary judge was under an obligation to ensure that the trial including the proceedings so far as they related to sentence, was conducted fairly: Macpherson v The Queen supra at 546; R v Zorad supra at 108; R v Frawley supra at 212.

97 The result of such failure was that the appellant was not made aware of the opportunity to put before the Court matters of mitigation including his belief that he was entitled to clear the land and the evidence which gave rise to the belief summarised in pars [33], [44]-[47] and [50]-[52] above. These matters were capable of having significant impact on the penalty to be imposed.

98 In my opinion, therefore, the trial judge erred in failing to ensure that that part of the proceedings which dealt with the question of sentence was conducted fairly and the accused thereby lost the opportunity of putting before the Court matters which could have impacted on the penalty imposed. In these circumstances the penalties imposed should be set aside.

99 As I have taken the view that the primary judge fell into error in the manner I have identified and that there was a real prospect that the error resulted in a miscarriage of justice, there is no need in this case to consider the interrelationship of s 5(1), s 5AA and s 6 of the Criminal Appeal Act: see Gilmour v Environment Protection Authority [2002] NSWCCA 399; (2002) 55 NSWLR 593 at [15]-[27]; Kirk Group Holdings Pty Limited v WorkCover Authority of NSW [2006] NSWCA 172; (2006) 66 NSWLR 151 at [73]-[75], [118]-[127]. It is not necessary in this case to go beyond s 5AA and s 5AB of the Criminal Appeal Act to determine the issues in this appeal.

100 There remains the question of the future conduct of the proceedings. The parties agreed that if this Court was of the view that the sentence should be quashed, it was not possible for it to resentence the appellant. That is correct. A great deal of the evidence sought to be tendered was inadmissible in form. Whilst the respondent did not oppose the admission on this ground alone, so far as it went to the question of miscarriage of justice, it does not mean it would be admissible on any sentencing hearing. Further, the respondent will be entitled to test the evidence given by Mr Hudson at any sentencing hearing.

101 In these circumstances the question arose whether there is power to remit the sentencing proceedings to the Land and Environment Court. Each party contended there was such power, the appellant basing it on what he described as the Court's inherent jurisdiction, the respondent on s 12(2) of the Criminal Appeal Act.

102 Section 12(2) of the Criminal Appeal Act gives a court power to remit a matter or issue to a court of trial. A court of trial is not defined but would mean the court in which the proceedings were determined at first instance. The question of the appropriate sentence on conviction would fall within the meaning of the expression "matter or issue". In these circumstances, the Court has power to remit the question of sentence to the Land and Environment Court and should do so.

The additional evidence sought to be tendered

103 As will be apparent from what I have written above some but not all of the additional evidence sought to be tendered by the appellant goes to the issue of miscarriage of justice and should be admitted. Leave to admit the balance of the evidence should be refused. That approach is consistent with what was said by Gleeson CJ in R v Frawley supra at 212 that in the case of a litigant unrepresented at trial this Court should treat the subject of fresh or new evidence in a more flexible manner than might otherwise be the case. However, as I indicated above the question of the admissibility of that evidence on any sentencing hearing will be a matter for the sentencing judge.

104 In these circumstances I would make the following orders:

1Grant leave to the appellant to tender the following material:

(a)The affidavit of John Ross Hudson sworn on 9 March 2010;

(b)The transcript evidence provided at the committal hearing in R (Commonwealth) v John Ross Hudson by Elizabeth Savage, Daniel Keenan and George Boland;

2Reject the tender of all other fresh or new evidence sought to be relied on by the appellant at the hearing.

3Dismiss the appeal so far as it relates to conviction.

4Quash the penalties imposed by Lloyd J on 11 Feb 2009.

5Remit the proceedings to the Land and Environment Court for the purpose of determining the appropriate penalty to be imposed on the appellant.

105 WHEALY JA: I agree with Bathurst CJ

106 McCLELLAN CJ at CL: I agree with Bathurst CJ.

**********

Amendments

15 May 2012 - Correct spelling of R v Janceski
Amended paragraphs: Coversheet. pars [65] & [67]

Decision last updated: 15 May 2012