Further evidence
47Insofar as Mr Kennedy's submissions seek to rely on material that was not before the primary judge (namely, attachments A, B, C, D, E and G), the prosecutor opposes leave being granted for further evidence to be adduced.
48As to the admission of fresh evidence, in Mickelberg v R [1989] HCA 35 (at [27]); (1989) 167 CLR 259 (at 273), Mason CJ considered the appropriate test to be applied by an appellate court in deciding whether to set aside a conviction on the ground of fresh evidence and said:
... It is established that the proper question is whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at the trial. This test was endorsed by four of the five Justices in Gallagher v The Queen. Deane J and I (at 402) considered that the test was best expressed in those terms. (footnotes omitted)
[There referring to Gallagher v R [1986] HCA 26; (1986) 160 CLR 392]
49In R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 (at [63]), it was said that material available at the time of the trial could not properly be characterised as "fresh evidence".
50The prosecutor submits that, with the exception of the results of the regrowth count held on 19 April 2013 in attachment E, all of the material was available to Mr Kennedy at the time of the hearing and therefore cannot properly be characterised as "fresh evidence" (in the sense considered in Abou-Chabake). (Attachment A would also fall within the category of attachment E in that it consists of photographs taken at that same time.)
51As to attachment E (and presumably also attachment A), the prosecutor submits that this is not of relevance to any issue on the appeal in any event. The prosecutor apprehended that this material was sought to be relied upon to show that no restoration program was necessary and submitted (as is clearly the case for the purposes of the relevant exemption) that a restoration program is required for clearing to fall within the relevant exemption.
52However, attachment E contains a statement that none of the regrowth counted in plots or observed in other areas was White Box or the species that constitute this community and that Stringybark was by far the dominant regrowth species as on adjoining timbered areas and retained timber on the subject property. It seems to be capable of supporting a submission by Mr Kennedy that one could infer from this that there had not in fact been White Box on the areas cleared by him and if so it would be of potential relevance (though suffers from the difficulty that evidence of that kind could have been obtained at the date of the hearing). In this regard I note that Mr Kennedy's position was that White Box does not grow on the property and accordingly there could not be an EEC of that description.
53The prosecutor submits that none of the material now sought to be relied on, had it been available at the hearing, could have resulted in an acquittal (assuming Mr Kennedy had not pleaded guilty), the prosecutor raises the following matters.
54First, while the prosecutor accepts that material going to the presence or absence of the endangered ecological community identified by Dr Nadolny might have relevance when considering the appropriateness of his Honour's acceptance of Mr Kennedy's guilty plea (there referring to attachments A and C), it is submitted that the presence or absence of an endangered ecological community was not something on which any defence based on clause 16 of the Native Vegetation Regulation would have turned (that defence relating to an intention to use the cleared vegetation for routine agricultural management infrastructure within an 18 month time period).
55Further, it is noted that Mr Kennedy relied on a report from Mr Cotter at the hearing and that this report did not address the issues now raised in attachment C. Mr Cotter was cross-examined on the presence or absence of an endangered ecological community. In the course of that cross-examination, Mr Cotter said that he had not assessed the communities which comprised the cleared vegetation; that he was "not convinced'' that the cleared vegetation could be separated into the two or three categories that Dr Nadolny had assessed; was not in a position to assess the work undertaken by Dr Nadolny; was "not sure" that part of the community was an endangered ecological community; and cavilled with the proposition that Dr Nadolny could make such an assessment based on trees in a "log dump" or based on a transept survey on a travelling stock route "unless you can demonstrate that it's like for like", pointing to the fact that prior to any clearing there was no vegetation assessment.
56Similarly, in re-examination, Mr Cotter said that his understanding was that Dr Nadolny had based his conclusion as to the occurrence of the tree species in the endangered ecological community on their presence within the log dump, querying that it could be said that all those trees in the log dump had occurred together.
57The prosecutor relies on the above and also submits that in further cross-examination Mr Cotter revealed a significant misunderstanding as to what Dr Nadolny's methodology had been. Mr Cotter there accepted that Dr Nadolny's conclusion could more confidently be drawn based on identifying juvenile eucalypts and saplings present throughout the cleared and uncleared parts of the property and having regard to trees or patches of trees remaining standing in the property.
58The prosecutor submits that there is nothing in Mr Cotter's further report that suggests that any new material or information had become available which might cast doubt on the primary judge's acceptance of Dr Nadolny's findings as to the presence of the endangered ecological community. It is submitted that Mr Cotter's further report reflects an impermissible attempt by Mr Kennedy to revisit a forensic decision made by him as to what evidence should be called at the trial (Ratten v R [1974] HCA 35 at [18]; (1974) 131 CLR 510 at 517).
59I accept that attachments C, D and G seek to revisit issues already dealt with at the hearing. Even though Mr Kennedy may be given some latitude, as a self-represented litigant, for unfamiliarity with procedural aspects of the trial, it is not appropriate for fresh evidence of this kind now to be adduced by way of submission when the prosecutor has not had the opportunity to test that evidence.
60Attachment F is clearly a submission and should be read as such.
61As to the photographs in attachment A and the regrowth count in attachment E, as noted above there was some doubt as to the purpose for which reliance was sought to be placed on them. If reliance was sought to be placed on them for the proposition that it could be inferred that, since there had been no regrowth of White Box there could not have been a White Box EEC on the property in the first place, that proposition is difficult to test without expert evidence as to the state of regrowth of such an EEC. In any event, it is not clear why such evidence could not have been made available at the hearing (which was some 3 years after the clearing had taken place). Furthermore, for the reasons I set out in relation to the conviction appeal grounds, the presence of an EEC was relevant not to conviction but only to sentence. That counts against its admission on the conviction appeal at this stage.
62Finally, as to attachment B, in my opinion this is of no weight whatsoever. Advocacy by the Farmers' Association as to legislative changes should be made in an appropriate forum. That forum is not the Court.
63I would therefore refuse leave for the admission of the further evidence sought to be relied on by Mr Kennedy but would treat attachment F as a submission relevant to his grounds of appeal.