R v Fuller (No 4)

[2024] NSWSC 1420

Supreme Court

New South Wales

Medium Neutral Citation:

R v Fuller (No 4) [2024] NSWSC 1420

Hearing dates:

23 September 2024 – 17 October 2024

Decision date:

12 November 2024

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

The accused is found guilty of the murder of Mark Tozer.

Catchwords:

CRIME – Murder – Trial by judge alone – Verdict – Where accused had a car accident with the deceased – Where accused failed to stop after the accident – Where deceased followed the accused home – Where accused caused fatal injury or injuries during the physical confrontation at the accused’s home – Where accused pleaded guilty to manslaughter on the basis of excessive self-defence – Where manslaughter plea not accepted by Crown in satisfaction of murder count – Where accused conceded the conduct was not a reasonable response in the circumstances as he perceived them – Whether reasonable possibility that the accused believed it was necessary to apply the force that caused the death in order to defend himself

Legislation Cited:

Crimes Act 1900 (NSW), ss 18(1), 23A, 419, 421

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)

Criminal Procedure Act 1986 (NSW), s 133(3)

Evidence Act 1995 (NSW), ss 32(3), 38

Cases Cited:

R v Fuller (No 1) [2024] NSWSC 1206

R v Fuller (No 2) [2024] NSWSC 1208

R v Fuller (No 3) [2024] NSWSC 1294

R v Katarzynski [2002] NSWSC 613

R v Oblach (2005) 65 NSWLR 75; [2005] NSWCCA 440

Category:

Principal judgment

Parties:

Rex
Connor Fuller (Accused)

Representation:

Counsel:
Mr B Costello (Crown)
Mr M King (Accused)

Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Accused)

File Number(s):

2021/216116

JUDGMENT

1. HIS HONOUR: On Monday 23 September 2024, the accused, Connor Fuller, was arraigned at trial in the Supreme Court, sitting at Newcastle, on three counts:

1. that on 28 July 2021 at South West Rocks and elsewhere in the State of New South Wales, he did intimidate Gregory Hunt with the intention of causing the said Gregory Hunt to fear physical or mental harm (Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1));

2. that on 28 July 2021 at South West Rocks in the State of New South Wales, he did murder Mark Tozer (Crimes Act 1900 (NSW), s 18(1)(a)); and, in the alternative

3. that on 28 July 2021 at South West Rocks in the State of New South Wales, he did unlawfully kill Mark Tozer (Crimes Act, s 18(1)(b)).

2. The accused entered pleas of guilty to the first count (intimidation) and the third count (manslaughter), and a plea of not guilty to the second count (murder). The Crown declined to accept the plea to manslaughter in satisfaction of the second count, which then proceeded to trial before me, sitting as a Judge alone, for reasons explained in R v Fuller (No 1) [2024] NSWSC 1206. Closing addresses concluded on Thursday 17 October 2024.

3. Mr Tozer died from injuries that he sustained during a verbal and physical confrontation with the accused (the confrontation). The defence, in its opening, conceded that the accused inflicted those injuries, and foreshadowed that it would rely upon two partial defences: substantial impairment because of mental health or cognitive impairment (Crimes Act, s 23A) (substantial impairment); and excessive self-defence (Crimes Act, s 421). On 2 October 2024, counsel for the defence informed the Court that it was abandoning the partial defence of substantial impairment and confirmed that the plea to manslaughter was on the sole basis of excessive self-defence. The only remaining issue in the trial, therefore, was whether the Crown could establish beyond reasonable doubt that the accused did not believe it was necessary to apply the force that caused Mr Tozer’s death in order to defend himself: s 421(1)(c) of the Crimes Act. If the Crown failed to do so, the accused remained guilty of manslaughter, pursuant to his plea to the third count.

4. At the outset of the trial, following a voir dire hearing, I ruled that certain tendency evidence that the Crown proposed to lead was admissible for that purpose: R v Fuller (No 2) [2024] NSWSC 1208. During the trial, I ruled that certain edited audio recordings of phone calls in which the accused was a party while on remand, that the Crown proposed to lead, were admissible: R v Fuller (No 3) [2024] NSWSC 1294.

The structure of the verdict judgment

5. The first part of the verdict judgment comprises certain fundamental directions of law by which I am bound.

6. The second part is a review of the evidence in the Crown case, almost all of which was not challenged by the defence, which facilitates, for the most part, a narrative form of review of the Crown case. The accused did not give evidence or call witnesses in the defence case. I will not review all of the evidence in the trial, but rather, the evidence that the parties have identified to be of some significance, and additional evidence that I consider to be significant.

7. The third part is a review of the evidence that emerged in the Crown case as to the accused’s personal history and childhood and adolescent exposure to domestic and social violence, which is relied upon by the defence as being relevant to the accused’s belief as to his safety at the time that he inflicted the fatal injury or injuries upon Mr Tozer.

8. The fourth part is a review of the closing addresses of counsel as to their respective cases.

9. The fifth part comprises further directions of law that I have followed in the course of my deliberations.

10. Finally, the sixth part is my deliberations, findings of fact and the verdict.

1. Initial directions of law

11. Pursuant to s 133(3) of the Criminal Procedure Act 1986 (NSW), I make the following directions by which the Court is bound.

The presumption of innocence

12. The accused is presumed to be innocent, unless and until the Court is persuaded by the evidence that he is guilty of the offence charged beyond a reasonable doubt. Those words have their ordinary, everyday meaning.

The burden and standard of proof

13. The Crown bears the onus of proving the charge of murder and doing so beyond reasonable doubt. The accused is presumed to be innocent and has no obligation to prove anything. As is apparent from s 419 of the Crimes Act, the onus and standard of proof remains with the Crown when the defence contends that the accused is not criminally responsible for murder on the basis of excessive self-defence.

Assessing the reliability of witnesses

14. In assessing the evidence of each witness, the Court must decide if their evidence was both honest and accurate. A witness may be honest, but mistaken in the evidence they give, and not realise they are mistaken. That is, they believe the evidence they give to be true, but they are wrong. If the Court concludes that in some part or parts of their evidence a witness was not doing their best to tell the truth, then the Court needs to determine to what extent, if at all, that conclusion should affect the ultimate assessment of that witness’s evidence.

15. Accordingly, in relation to a witness’s reliability, an honest witness may be inaccurate, either wholly or partly, and to that extent, their evidence will be wholly or partly unreliable. A witness who is honestly telling the truth might have a tendency, even unconsciously, to exaggerate, or to distort, or to simply mistake the truth. In making its assessment, the Court brings to bear its real life experience.

The drawing of inferences

16. From the evidence that I accept, I am entitled to draw inferences. An inference is simply a conclusion of fact which can be rationally drawn from a combination of other proven facts. I must exercise extreme care in drawing inferences. If the evidence rationally gives rise to more than one inference, accepting only one of those inferences as a conclusion of fact would be drawing an unjustifiable inference. I must examine a possible inference to ensure that it is a justifiable inference.

The use of transcripts

17. The Crown case included audio recordings captured by CCTV cameras; a telephone call to 000; multiple telephone calls made from prison by the accused; audio captured by police body worn videos (BWVs); and a formal police interview recording. These audio files, which are exhibits tendered in the trial, are accompanied by transcripts of what is recorded.

18. I direct myself that the evidence in each instance is the recording and the transcript of it is an aide memoire. Accordingly, if there is a discrepancy between what I hear on the recording and what appears in the transcript, I disregard that part of the transcript. This direction applies to all transcripts of recordings that were tendered in the trial. The same direction applies to the transcript of the trial itself; the evidence is what was said in Court, not what is in the transcript.

1. The case for the Crown

19. The accused inflicted the fatal injury, or injuries, upon Mr Tozer on the evening of 28 July 2021 at some time between about 6:41pm and 6:54pm. The accused was 27 years old and Mr Tozer was 61 years old. There was a separate incident in the hour beforehand involving the accused and Gregory Hunt, which is the basis of the intimidation count. The Crown led evidence of this incident in its case on the murder count, to seek to establish that the accused was in an angry and aggressive mood by the time that he and Mr Tozer crossed paths. There was no evidence that the accused, Mr Hunt and Mr Tozer knew each other before that evening.

The intimidation incident

20. A statement by a friend of the accused, Khan Mills, dated 29 July 2021, was tendered (Mr Mills is deceased). Mr Mills stated that he and the accused were “best mates”. At about 2:30pm on 28 July 2021, the accused visited Mr Mills at his home at West Kempsey, bringing with him “a 10 pack of Jim Beam Double Serve bourbon cans”. Another of Mr Mills’ friends, named James, was present. Mr Mills said that during the time they were together, he thought that he drank two cans of the Jim Beam, while the accused and James had one can each. The accused left “sometime between 4:00pm and 5:00pm”, saying he was “going home”. Mr Mills said that the accused left three of the original 10 cans in Mr Mills’ fridge and took the remaining three cans with him. Mr Mills stated that while the accused was there, “both James and I smoked some cannabis … I can't recall if Connor smoked any cannabis”. After the accused left, Mr Mills found the accused’s mobile phone under a cushion. At about 7:34pm, he sent a message to the accused’s mother, Tracey Williamson, asking her to let the accused know that he had the accused’s phone.

21. West Kempsey is about 34km south-west of South West Rocks. The most direct route from there to South West Rocks is by Macleay Valley Way, through Frederickton, turning right into Plummers Lane at Clybucca. I take judicial notice of the fact that, by that route, Frederickton and Clybucca are about 8km and 21km respectively from West Kempsey. After about 6km, Plummers Lane reaches and follows the left bank of the Macleay River, crosses the river near Jerseyville and proceeds onto South West Rocks.

22. The accused had a white four-door Hyundai Getz, which is a small hatchback (the Getz), that he was driving that evening. A light bar was fitted to the centre of the front grille, which provided powerful illumination when turned on. Closed circuit television (CCTV) at a location in Frederickton captured the Getz travelling north on Macleay Valley Way at about 5:54pm. It was not in dispute that the accused was driving the Getz at the time. I note there is no evidence of what the accused did between when he left Mr Mills’ home and 5:54pm. The Getz was captured by CCTV in Plummers Lane, Clybucca, about 300m past the intersection with Macleay Valley Way, at about 6:04pm.

23. That evening, Mr Hunt was also driving from Kempsey to his home in South West Rocks, in a Suzuki Alto (the Alto), which I note is also a small hatchback. He drove on Macleay Valley Way through Frederickton and turned onto Plummers Lane. He said, in evidence, that he saw that a “little white car” had pulled up at the intersection of Plummers Lane and Menarcobrinni Road, which I note is about 550m past the intersection of Macleay Valley Way and Plummers Lane, in a position that blocked that road. He said:

“I noticed a car up on my lefthand side. And a gentleman standing next to it. He was actually urinating … on the driver's side. Which I thought was strange, but as soon as I saw him, I dropped my high-beam down.”

24. Mr Hunt said the reason he dropped his high beam was to give the man that he saw urinating “a bit of privacy”. Mr Hunt had a “quick look at him. And then … just went about my way”. There was no dispute between the parties that the driver of the other car who Mr Hunt saw urinating was the accused.

25. In cross-examination, Mr Hunt agreed that when one turned right off Macleay Valley Way and proceeded on to the intersection of Plummers Lane and Menarcobrinni Road, one drove through two tight bends. He said that he was driving at “60, 65”, and when he saw the man, he reduced his speed “a little bit”. He agreed that in his statement to police, he stated, “I was crawling along in my car because of the bends” and when he saw the man urinating, “I crawled [past] in my car and looked at him as I went [past]”.

26. Mr Hunt continued:

“… a bit further up the road … I noticed a car had come behind me … previous to that I actually did see some headlights in the background, a fair way back. They were definitely on high beam, because … they were very, very bright. But when I got into that straight, and halfway, a little bit further, this car come around that bend that pulls away from the river, and just, on high beam again, and just lit me up. Like, yeah. I actually had to move my mirrors in my car as this car approached me, which got to me quite quick … He was on me before I even knew it.”

27. Mr Hunt said the car did not overtake him and was so close behind him that its headlights disappeared from his view. The CCTV at Jerseyville captured the Getz, with its light bar on, being driven closely behind the Alto. Mr Hunt decided to drive directly to South West Rocks police station, which is located on Memorial Avenue in the downtown part of South West Rocks. I note that the distance from the intersection of Menarcobrinni Road and Plummers Lane to South West Rocks is about 13km. The police station would appear to be about an extra kilometre past the town entrance. The main road into town, and to the town centre is Gregory Street, which runs in a north-south direction.

28. Mr Hunt said:

“I pulled up directly out front of the police station. I turned my car off … the car behind me was still behind me at that point, but then pulled up beside me. So I then wound my window down … it was the man who was urinating … his passenger side, to memory, was down already … he lent across the passenger seat, he pointed at me and he said, ‘You’re fucked. I’ll be back with my Rottweiler.’”

29. Mr Hunt said that the driver’s tone was “aggressive”. He drove off. Mr Hunt sat there for “probably a couple of minutes” and then drove home.

30. The Crown read a statement of Joshua Wilson, dated 3 August 2021. Mr Wilson stated that on the evening of 28 July 2021, he was driving out of the Coles supermarket (which has driveway access onto Gregory Street) and was about to turn north (to the right) onto Gregory Street when he saw a small hatchback, which he thought was pink, heading north and apparently being tailgated by “a small white hatch”. He stated, “During that time, the white car had verged left a few times”. At Landsborough Street, both cars turned right and Mr Wilson followed. They then turned left into Memorial Avenue with the second car still closely behind. Mr Wilson’s statement continued:

“The driver of the first car then pulled up outside the police station. The white car drove past the pink car stopping momentarily as I was behind it. I heard the driver of the white car yell out abuse aggressively at the pink car, then took off quickly turning left into Paragon Avenue. At this time, I drove past the pink car and saw that there was an older male driver in the car with the window wound down. The male looked visibly shaken. I lost sight of the white car at Paragon Avenue. I then turned into Paragon Avenue and drove up to my driveway. At that time, the white car was nowhere to be seen.”

31. Mr Wilson arrived home “around 6:30pm or a little later”. A statement of another witness, Diane Yeo, dated 30 July 2021, was read. She stated that on 28 July 2021 at about 6:25pm, she was driving along Memorial Avenue past the police station, which I note was in the opposite direction to that in which Mr Hunt and the accused were facing. She said:

“I was nearing the police station when I was blinded by a car stopped directly outside the police station facing my direction, so this vehicle was shining its high beams and light bar ...I ceased being blinded once being out of the beam and being next to the car.

I was frustrated from being blinded and I was looking at the driver. I saw that two cars were parked next to each other blocking the lane of traffic in the opposite direction. The car closest to me, second car out from the curb, is the one with the light bar and high beams on. I could see a younger male adult in the driver seat, and he was facing towards the other car on his inside. Both cars were small little bubble type cars like a Toyota Yaris and Hyundai Getz. I think the Getz was on the inside and it looked like an older man, possibly elderly driving that car. I thought the other car on the outside which had a light bar was strange and out of place on a smaller car like that.

He looked timid compared to the other younger male in the other car. I could definitely see that the younger male had a problem with the older man. This younger man looked like he was glaring angrily towards the older man. As I drove past, they both started to move off towards in the direction of the Surf Club. Another car which I cannot describe drove up behind them and this may have forced them to move on. I didn't see where the other younger male driver went but the older male turned left into Paragon Avenue, which is a one-way street, very slowly. It was a very quiet night in South West Rocks and nearly everything was closed and the wind was very blowy. I couldn't hear anything.

I drove past them both slowly and paying attention. From what I saw, I became concerned for the older man in the other car. It looked like a road rage thing, like the younger male was there to intimidate or threaten the older man. I went to the roundabout and turned around and drove back in the same direction that these other two cars were facing. By the time I got to the intersection of Paragon Avenue, I couldn't see anything. I stopped nearby, I turned the engine off, and I sent a message to a friend, and I took a note of the time. It was now 6.35pm ...”

32. The police station had CCTV onto Memorial Avenue, which captured a vehicle pulling up outside the station at 6:19pm, which is accepted to be the Alto. The Getz can be seen pulling up alongside it, and drives on seconds later, with another car closely behind it. After about 30 seconds, the Alto moves off as well.

33. CCTV cameras at various locations around South West Rocks captured the Getz travelling from the police station via Paragon Avenue to the address in South West Rocks where the accused resided with his mother, 10 Albert Harrower Crescent (Number 10), which is approximately 1.5km from the police station. He collected his dog, a Rottweiler named Nova, and drove back to the police station, by which time Mr Hunt had driven off.

The events leading up to the confrontation between the accused and Mr Tozer

Albert Harrower Crescent and Number 10

34. By way of background, Albert Harrower Crescent was a cul-de-sac with about ten houses, lying approximately north-south. Number 10 was a single storey brick and tile house on the western side of the street, facing east, with a straight driveway running parallel to the northern boundary (on the right side, facing the house from the street), which led to a garage that was incorporated into the dwelling. A gate at the northern side of the building gave access to the backyard. A metal fence marked the northern boundary of the property, extending along the full length of the front yard to the footpath (the metal side fence). The property did not have a front fence, so that there was a continuous lawn and garden from the front of the house to the street guttering. There were three mature palm trees to either side of the driveway on the property and three other palm trees and shrubbery elsewhere in the front yard. A concrete path led from the driveway alongside the front of the house and up five steps to a small patio, and the screen and main doors.

34. A short dead-end street, Greenway Close, with about another ten houses, branched off the end of Albert Harrower Crescent to the east (to the left, as one faced down Albert Harrower Crescent). Albert Harrower Crescent ran off Simpson Street, which ran approximately east-west. Number 10 was one house down from the intersection. The property between Number 10 and Simpson Street, that is, the corner block, was 18 Simpson Street, which was a single storey house in which a medical practice was operating. The property immediately alongside 18 Simpson Street to the west was a single-storey residence, 20 Simpson Street. The backyards of both buildings backed on to the metal side fence on the northern boundary of Number 10.

35. The relevant events at Number 10 occurred at night-time in the front yard, and the adjacent footpath and gutter. The nearest streetlight to Number 10 was located on the western footpath of Albert Harrower Crescent, approximately 23m north of the northern boundary of Number 10. It was not functioning on the night.

36. The accused and Ms Williamson were the only residents at Number 10. On the night of his arrest, the accused told police he had been living there for about eight months. Ms Williamson had two jobs: day-time employment in a local caravan park; and casual evening work at a Chinese restaurant in Memorial Avenue, South West Rocks. On 28 July 2021, around 5pm, she arrived home from her first job and drove off at about 5:30pm to start work at the Chinese restaurant.

37. There were two alternative primary routes from the South West Rocks downtown area to Albert Harrower Crescent, via either Gregory Street or Mitchell Street, both of which run roughly north-south and intersect with Simpson Street. Both routes would require the vehicle to drive past 18 and 20 Simpson Street, then turn right (south) into Albert Harrower Crescent.

CCTV video and audio of Simpson Street and Number 10

39. The property at 20 Simpson Street had a CCTV that faced Simpson Street and captured images of passing vehicles (the Simpson Street video). A CCTV on an eave at a rear corner of 18 Simpson Street that was pointed in the direction of Albert Harrower Crescent was able to capture sounds from that direction but not images, the view being blocked by a plant growing close to the camera (the CCTV audio). A CCTV camera at the rear of 20 Simpson Street that was directed towards its backyard captured grainy images of a limited section of the metal side fence and the upper bodies of people moving along the Number 10 driveway (the CCTV driveway video). An edited form of the CCTV captured from 18 and 20 Simpson Street on 28 July 2021 was tendered into evidence.

40. The CCTVs for each building were connected to a hard drive for the respective properties that retained images and sounds captured by the cameras. The accuracies of the dates and times that appear on the respective CCTV recordings were examined by Nathan Brown, an IT expert, whose three statements were read in the Crown case. His evidence was to the effect that the dates and times that appear on the recordings from the hard drive on 18 Simpson Street were inaccurate, but those on the hard drive for 20 Simpson Street were accurate. The date stamp inaccuracy on the 18 Simpson Street camera was three weeks. There was conflicting evidence in the trial regarding the time stamp inaccuracy on the 18 Simpson Street camera. The statement of Mr Brown recorded the inaccuracy as seven hours, whereas the schedule of the accuracy of times of CCTV camera evidence in the trial prepared by the officer-in-charge of the investigation into the death of Mr Tozer, Detective Sergeant Lorenda Barber (Det Sgt Barber), recorded the inaccuracy as being 15 hours and 14 minutes. I note that although Mr Brown recorded his observation of the time stamp inaccuracy as being seven hours, his calculation of the discrepancy aligned with the figure of 15 hours and 14 minutes in Det Sgt Barber’s schedule. In any event, the CCTV times in this summary of the Crown case, concerning events at Number 10, are taken from the time stamps on the CCTV video recorded from 20 Simpson Street, which, as noted above, was accurate.

The accused drives to Number 10 to collect his dog

41. When the accused returned home to collect his Rottweiler, he took the Mitchell Street route from the police station to his home. The Simpson Street video captured the Getz driving past at 6:22pm. It turned into Albert Harrower Crescent and the driveway of the accused’s residence. It was common ground that no-one else was home. The Getz was captured by the Simpson Street video as being driven away at about 6:28pm.

42. In the intervening six minutes, the CCTV audio captured sounds, including the voice of the accused, apparently talking to himself and shouting. Not all of what the accused said is discernible. I am able to hear the sound of the Getz pulling into the driveway immediately after it drives past 20 Simpson Street and, on the CCTV driveway video, see the headlights from the Getz light up the driveway beyond the metal side fence and then turn off. One can hear a dog barking and the characteristic sound of a door closing. There is the sound of about 25 impacts in quick succession, inaudible yelling by the accused, the sounds of a screen door and another door slamming, then the words “Jump on his head right now before he gets home to his wife … let’s go, come on, inside” (apparently speaking to Nova), the sound of a car door closing, then the words “Before he gets home to his wife”, followed by more inaudible words, the sound of a car door opening and closing, and the ignition starting. The Getz is then seen, on the Simpson Street video, to leave and drive west along Simpson Street.

The accused returns downtown

43. CCTV in various locations captured the Getz returning to the police station via Mitchell Street, driving past it at 6:28pm and turning left at the next intersection into Paragon Avenue.

44. A CCTV in the downtown area afforded a front-on view of the Getz pulling up alongside a bottle shop on Paragon Avenue (known as South West Rocks Cellars) at 6:29pm. The accused’s dog occasionally pokes its head through the open front passenger window and rests its chin on the sill, thereby establishing that the window was fully down. The driver’s window is about a third of the way down. The left-hand side mirror is in the extended position.

45. The accused is seen to alight from the Getz and disappear from view near the doorway to the bottle shop. He is wearing a turned-back cap, an elbow-length loose shirt, knee-length shorts and shoes. He has a small shoulder bag looped across his chest from his left shoulder. After about ten seconds, he returns to the Getz and leans into the car through the front passenger window, apparently rummaging around in the back seat. He returns to the door of the bottle shop, staying just inside. After about four minutes, he waits alongside the Getz, receives a carton of cans from the staff and, right on 6:34pm, he drives away. The light bar is off.

46. Shayne McGrath, who was an employee of the bottle shop, made a statement dated 29 July 2021, that was read in the Crown case. He stated:

“Yesterday, Wednesday 28 July 2021, I was at work when a male person came to the front door and was not wearing a mask as required. I told him he could not come in, to give me his money, and I would get what he wanted. He gave me cash and asked me to get him a six-pack of Woodstock and cola cans, which I did. He kept coming in the doorway and I kept telling him to get out. I took his drinks out to him. He was driving a white, small hatchback car. I gave him his six-pack … The whole time he was going on about the face masks and saying he was going to ring the council and put us in. He was mostly saying this to [Sonja] Boschke.”

47. A statement by Sonja Boschke, dated 1 August 2021, was also read. She stated:

“About 6.30pm, I was finishing my shift at South West Rocks Liquor and about to leave the liquor shop. Shayne was talking to Connor Fuller inside the store. I have known of Connor as he lives around South West Rocks for some time as well.

Shayne said, ‘Don’t come in here without a mask, I’ll get you what you want’. He said, ‘I want a six-pack of Woodstock’. Shayne went and got the six-pack for him. Connor came into the store again without wearing a mask and had $55 cash on him, in a $50 note and a $5 note. Shayne said, ‘Get out. I’ll bring you the change.’ Whilst Shayne was trying to work out the price of the six-pack of Woodstock bourbon, I tried to help by going over to the fridge to find the ticket with the price on it. Again, Connor came into the store without a mask on. Shayne said, ‘Get out’. Connor walked out of the liquor shop. I also walked out of the liquor shop and waited with him outside on the street on Paragon Avenue. Connor had a little white hatchback parked out the front of the liquor shop.

In the front passenger seat of the little white hatchback was a Rottweiler dog. Connor said, ‘I seen plenty of people walk in without a mask, is that something I should advise the council about?’ I said, ‘If people walk in without a mask, we send them outside’. Connor said, again, ‘I’ve been seeing plenty of people walk in without a mask. Is that something I should advise the council about?’ I did not reply again the second time. Shayne came out of the liquor shop with Connor’s change … The six-pack of Woodstock was just inside the door of the liquor shop. I picked up the six-pack to give to Connor … Connor got into the driver's seat of the little white hatchback and drove away from outside the liquor shop, and turned right on Prince of Wales Avenue.”

48. Downtown CCTV cameras captured the Getz moving off and circling around the streets of the downtown area, including a location that gave it a view of the road outside the police station again, before turning south onto Gregory Street, apparently from Livingstone Street, and driving south past Paragon Avenue at 6:37pm.

Mr Tozer finishes work

49. A few minutes earlier, Mr Tozer had finished his shift, half an hour late due to COVID-19 duties, as an operator in the United service station, which was situated on Gregory Street about 1km south from the intersection with Paragon Avenue. A complex of retail shops and an IGA supermarket were located alongside and behind the service station, utilising the same driveways off and onto Gregory Street as the service station. A CCTV inside the service station cashier area captured Mr Tozer walking away from the glass doors, apparently having locked up, carrying his small black backpack and white lunch bag, ^[1] disappearing from sight in the direction of his car, which was a Ford Falcon XR8, registration number DNP 45V (the XR8). The XR8 was parked immediately outside in its usual spot on Gregory Street, between the vehicle entrance and exit driveways.

    1. Ex G 37:22 (time shown is 18.32.39, which is 5 minutes and 6 seconds behind the time on the images taken from the Dive Centre and Outdoor Adventure shop).

50. Mr Tozer’s wife, Lee-Anne Tozer, gave evidence that the XR8 was in a “very good condition” and was Mr Tozer‘s “pride and joy”. She thought that if the XR8 was deliberately damaged, Mr Tozer would have been upset. She saw it parked in its usual spot when she drove past the United service station at 4:30pm that afternoon.

51. In her statement, Ms Boschke stated that she also had a casual shift at the United service station. She stated that, after she saw the accused drive away from the bottle shop:

“I walked to the car park where my car was parked. This car park is at the intersection of Paragon Avenue and Gregory Street. As I left the car park, I turned left onto Gregory Street. As I drove along Gregory Street, I noticed a co-worker, Mark Tozer’s car. Mark’s car is a white car with a blue stripe. The brake lights to his car were on as I drove past. The lights to the service station was in darkness. I did think that Mark was a little late as the service station normally closes at 6pm. I went home.”

Mr Tozer gives chase to the accused

52. A statement by Brooke Hardy, dated 1 August 2021, was read. Ms Hardy said that she paid for a takeaway meal from the Chinese restaurant in Memorial Avenue at 6:36pm, according to her internet banking records. She entered her car that was parked in the same street:

“I noticed [a] white Hyundai Getz travel along Memorial Drive towards Livingstone Street … I noticed that this Hyundai had a large dog in the front passenger seat … I drove along Memorial Drive to the roundabout at the intersection of Landsborough Street and turned right into Landsborough Street. I travelled along Landsborough Street until I got to the intersection of Gregory Street. I gave way to a white Hyundai Getz that was travelling on Gregory Street. The Hyundai did look like it was travelling faster than the 50 kilometre per hour speed limit at the time.

I turned left onto Gregory Street. As the Hyundai was travelling along Gregory Street near the school, I noticed the Hyundai was swerving to the left a little. I think there is a solid white line in this area on the left side of the road. As a result of this, I dropped back some distance from the back of the Hyundai. As I drove along Gregory Street, near the entrance to the United service station, I noticed the Hyundai Getz swerve to the left again as it was travelling along Gregory Street.

There was a white Ford Falcon parked on the side of the left side of the road along Gregory Street. I did not get the full registration of this Ford Falcon, but I think it started with a capital D. The headlights and the brake lights to the Ford Falcon were on at the time. The Ford Falcon was parked in between the driveway to the United service station and the IGA driveway. The Hyundai drove past the Ford Falcon, and I thought it just missed the driver’s side of the Ford Falcon. As I attempted to drive past the Ford Falcon, it started to drive along Gregory Street as I was beside it. I did not see who was driving the Ford Falcon.

I had to take evasive action and drive onto the opposite side of the road to avoid colliding with the Ford Falcon as it came out. I froze for a second, as did the Ford Falcon. The Hyundai Getz was still along Gregory Street towards Simpson Street. The Ford Falcon drove really quickly along Gregory Street. The Getz turned left into Simpson Street and was followed by the Ford Falcon. I continued to drive along Gregory Street towards Coles. I went to Coles and did some shopping. I went for a drive around South West Rocks to see if I could find a white Ford Falcon registration plate so I could report it to police.”

53. A CCTV camera that was located on the front of a building alongside the northern end of the United service station (the “Outdoor Adventure” shop CCTV) captured the Getz driving past at 6:38:42pm. At that location, Gregory Street was a straight two-way road, which was single-lane in both directions, with a parking lane marked on either side with a white unbroken line. As the Getz disappears from view to the south, its nearside wheels can be seen to pass over the parking lane line.

54. A CCTV that was positioned behind the United service station captured the Getz disappearing from view on the northern side of the building and reappearing three seconds later on the southern side. It is the Crown case that in those three seconds, the left-hand side mirror of the Getz impacted the driver’s side mirror of the XR8. The Getz did not stop. Mr Tozer immediately gave chase, driving at speed. The Getz turned left into Simpson Street, but rather than turning the next right into Albert Harrower Crescent, the Getz turned left into Mitchell Street and drove north, turning into a side street and then back again down Mitchell Street, into Simpson Street and then into Albert Harrower Crescent. The Simpson Street video captured the Getz driving past with all its lights off and the XR8 10 seconds behind. The accused pulled up in the driveway of Number 10 at 6:41:20pm. Seconds later, Mr Tozer pulled up at an angle across the driveway entrance.

The acts causing, and circumstances surrounding, Mr Tozer’s death

55. There was a period of about 19 minutes between the arrival of Mr Tozer at Number 10 and the attendance of neighbours upon Mr Tozer at around 7pm, who lay unconscious and severely injured in the gutter alongside the driveway to Number 10. Police and ambulance officers arrived about half an hour later. Mr Tozer was pronounced deceased at 10:57pm, without having regained consciousness.

56. Other than accounts subsequently provided by the accused to neighbours, family members, friends and police, there is no direct evidence as to the circumstances of the infliction of the injuries on Mr Tozer; that aspect of the Crown case is circumstantial in nature. The elements of evidence that contribute to that circumstantial case for the Crown include the CCTV audio on which impact and other sounds and some speech during the confrontation may be heard, the CCTV driveway video, the autopsy report of Dr Lorraine du Toit - Prinsloo, admissions made by the accused, forensic investigations and some tendency evidence.

57. As noted, the case for the defence is that the accused inflicted the fatal injury or injuries upon Mr Tozer in a belief that it was necessary for him to do so in self-defence, although he accepted by his plea to the third count that the conduct was not a reasonable response in the circumstances as he perceived them. From his first interactions with others following the confrontation, the accused admitted that he was responsible for the injuries suffered by Mr Tozer, and that he assaulted Mr Tozer, among other reasons, in order to defend himself and his mother. Other evidence relied upon by the accused as to what occurred and why, from his perspective, included statements heard on the CCTV audio by him that he was scared for his safety and that he had been threatened; evidence as to the social, emotional, moral and psychological environment in which he grew up; evidence as to items that the accused may have mistaken for a weapon that he believed Mr Tozer had on him; and some statements he made to family and friends while on remand.

The location of Mr Tozer and subsequent weather

58. The first people to arrive at Number 10 after the confrontation came from the residence on the eastern corner of Simpson Street and Albert Harrower Crescent, that is, diagonally across the road from Number 10, which was 16 Simpson Street. They described Mr Tozer as unconscious, lying on the road, face up, with his head in the gutter on or immediately alongside a drain grate (the grate), which, according to a computer aided diagram (CAD), was about 2m north of the driveway. His tracksuit pants were pulled down and his right shoe and his broken glasses were on the road to the south of where his body lay, that is, closer to the XR8. Multiple items were scattered around that area.

59. At about 10pm that night, there was a storm, that was described by Det Sgt Barber as a “torrential downpour”. A gazebo was erected over part of the crime scene, but a video taken during the storm, which was in evidence in the trial, shows water flowing along the gutter into the grate and items in that vicinity being exposed to the rain.

The CCTV audio and CCTV driveway video

60. I have listened to the CCTV audio with noise cancelling headphones and combined my understanding of what can be heard with the times recorded on the CCTV driveway video, as reproduced on a compilation tendered in the trial: Exhibit G1. In my opinion, the voices of Mr Tozer and the accused are distinctive from each other, so that it is relatively easy to attribute discernible words to each of them. There is a voice that is distinctive from both, which I attribute to a third person. There is limited visibility in the first few minutes of, effectively, shadow-like figures over the top of the metal fence, captured by the CCTV driveway video. I have summarised my findings as to the attribution of the content of the audio and the CCTV driveway video in a table below.

TIME	ATTRIBUTION	CONTENT
6:41:17 – 6:41:39	(Two vehicles arrive at Number 10, 10 seconds apart. The second vehicle (the XR8), revs as it moves across the area of the driveway of Number 10. Neither vehicles’ engine can be heard after this point. A sound consistent with a car door opening.)
6:41:39 – 6:41:41	Mr Tozer	“What the fuck is your problem?” (Dog yelping as this is said.)
6:41:45	Mr Tozer	“Why’d you get my. Why’d … dipstick” (Immediately after this is said, a figure can be seen walking up the driveway of Number 10 towards the residence.)
6:41:54	The accused	“Don’t be jumping up to my face cunt I’ll knock you clean the fuck out.”
6:41:58	(Sound of an impact.)
6:41:59	Mr Tozer	Fuck off. (Shouted.)
6:42:01	The accused	“I’ll knock you clean the fuck out cocksucker you’re on my lawn.” (Shouted.) (As it is said, two figures can be seen moving down the driveway, one behind the other, towards the road.)
6:42:04	Mr Tozer	“I’ll get off then.”
6:42:05	Mr Tozer	(A loud slamming sound, over the top of Mr Tozer speaking, as the person behind moves up to the person in front, near the metal side fence.)
6:42:06	Mr Tozer	“Fuck off.” (Shouted.)
6:42:07	The accused	“You’re on my lawn …”
6:42:07	Mr Tozer	“Fuck off.” (Shouted.)
6:42:09	The accused	“You’re on my lawn.”
6:42:10	Mr Tozer	“Fuck off.” (Shouted.)
6:42:10	The accused	“You’re trespassing.”
6:42:11	Mr Tozer	“Fuck off.” (Shouted.)
6:42:12	(Unclear; sound of horn twice.)
6:42:14	The accused	“You’re trespassing.”
6:42:16	Mr Tozer	“Get fucked. Fuck off.” (Shouted.)
6:42:17	The accused	“You’re trespassing, I’m scared.”
6:42:18	(Unclear.)
6:42:19	The accused	“I’m scared for my own safety.”
6:42:19	Mr Tozer	“Fuck off.” (Shouted.)
6:42:20	(Unclear)	“I’m scared for my own safety.”
6:42:21	A third person	(Unclear.)
6:42:25	The accused	“I’m scared for my own safety.”
6:42:25	A third person	(Unclear.)
6:42:26 – 6:42:31	The accused	“Who are you, who are you, I’ll knock your head off, cunt. What we want.”
6:42:30	The accused	(Muffled sound of the accused’s voice.)
6:42:34	Mr Tozer	Arghhhhhhh (Screamed.)
6:42:39	Mr Tozer	“Stop it, I can’t breathe.” (Sounding panicked, desperate.)
6:42:47– 6:42:54	Mr Tozer	(Unclear) ... “Leave me … leave me alone, help, help, someone help.” (Screamed.)
6:42:57	(Unclear.)
6:42:59	(Dog yelping.)
6:43:00	(Unclear.)
6:43:01 – 6:43:05	(Unclear.)
6:43:05	Mr Tozer	“Help. Somebody help, help … Please.”
6:43:06	The accused	(Unclear.)
6:43:09	Mr Tozer	“Help”
6:43:11	(Sound of car passing.)
6:43:13	(Unclear) “Somebody please help me …” (Screamed out.)
6:43:19	The accused	(Unclear)
6:43:23 – 6:43:32	Mr Tozer	“Somebody help me, help, somebody help me, help … someone please…” (Screamed out.)
6:43:32	(Unclear.)
6.43.33	The accused	(Sounds of major exertion by the accused, which is over gasps by Mr Tozer.)
6:43:35-40	Mr Tozer	“Help me, help me.” (Screamed out, followed by the sound of a scream.)
6:43:45	(Unclear, possibly third person)	(Unclear, sounds like “what the fuck” in a questioning tone.)
6:43:48	(Unclear)	“… he won’t let me” (Followed by further words that are unclear.)
6:43:49	(Unclear)	“Yes …”
6:43:49	The accused	“Yes …” “… this cunt out of this fucking …”
6:44:57	A third person	(Unclear) “I’ll call …” (Unclear.) (Said while Mr Tozer is screaming.)
6:44:02 – 6:44:06	Mr Tozer	Four long screams.
6:44:09 – 6:44:15	Mr Tozer	“I’m fucked if you leave me here.” (Followed by two long screams.)
6:44:16	Mr Tozer	“Help me someone. Help me.” (Screamed out, followed by the sound of a scream.)
6:44:27-6:44:40	The accused	(Unclear. In this period there are 14 oral sounds of exertion by the accused, sounding like “hump”, with some noises by Mr Tozer, which are the last sounds coming from Mr Tozer on the recording.)
6:44:40 – 6:44:45	The accused	“… kick box … cunt. I’ll jump on your head.”
6:44:47 – 6:45:15	In this period, there are eight sounds of major exertion, followed by three sounds of minor exertion.
6:45:15	The accused	“Fucking (unclear) fucker … (unclear.)”
6:45:15 – 6:46. 21	The accused	(In this period, there is one sound of major exertion, and 13 sounds of minor exertion in quick succession until 6:45:30, then a pause followed by the sound of a major exertion at 6:45:36.)
6:45:36 – 6:46:21	(Silence.)
6:46:18 – 6:46:21	The accused	(Unclear.)
6:46:23 – 6:46:38	The accused	“You fucked up on me, you pulled out on my car, you understood that you could come back (unclear) your insurance, you pulled out on my car. Who’s on the ground now.”
6:46:44 – 6:46:56	The accused	(Unclear.) (In this period, there is an initial sound of a major exertion, followed by at least three sounds of minor exertion.)
6:46:48	The accused	(Unclear.)
6:46:57	The accused	(Unclear.) “…fucked … cunt.”
6:47:03	The accused	(Unclear.)
6:47:05	The accused	(Unclear.) “fuck … cunt.”
6:47:10	The accused	(Unclear.)
6.47.15	The accused	“ … gaol. Call the cops, you threatened me.”
6:47:15-22	The accused	“I felt scared. You were on my private property, I defended myself. That’s my right.”
6:47:26 – 6:47:30	The accused	(In this period, there is one sound of major exertion, and one sound of minor exertion.)
6:47:48	The accused	(Unclear.)
6:47:49 – 6:48:19	The accused	(Unclear.) (Sounds of three major strikes, either punches or kicks, with unclear speech.)
6:48:20 – 6:48:34	The accused	“Right now, you’re messing with a two times New South Wales lightweight boxing champ.”
6:48:34 – 6:48:39	The accused	(In this period, there are three sounds of major exertion.)
6:48:42	The accused	(Unclear.) “… pull me up down here. Make all my neighbours think I’m a bad person.”
6:48:54 – 6:49:02	The accused	“10 years older than you, lets go, lets go, lets go.”
6:49:45- – 6:51:54	The accused	(In this period, there are six sounds of major exertion and one sound of minor exertion.)
6:49:45	The accused	(Unclear.)
6:49:51 – 6:50:16	The accused	(Unclear.)
6:50:30	The accused	Car door closing. “… car out of my house.”
6:50:49	The accused	(Unclear.) “… a full grown man …”
6:50:57 – 6:51:28	The accused	(In this period, there are 11 sounds of exertion.)
6:51:44	The accused	(Unclear.) “fuckin.”
6:52:58 – 6:53:02	(Unclear, sound of a cough.)
6:53:41	A car drives north past Number 10.
6:53:49 – 6:54:24	The accused	(Unclear.) (his words can’t be discerned.)
6:54:25	The end of the CCTV audio and CCTV driveway video.

Was there a witness to the physical confrontation?

61. Although the voice of a third person is audible on the CCTV audio, despite police canvassing the surrounding residences in Simpson Street, Albert Harrower Crescent and Greenway Close, no one admitted to witnessing any part of the physical confrontation.

62. Ben Pierce is a young male who lived in Simpson Street a few houses east of the intersection with Albert Harrower Crescent. He was captured by the Simpson Street video driving east at 6:40pm, that is, a minute before the Getz and XR8 arrived. In evidence, he said he parked his car when he heard cars revving and driving fast into Albert Harrower Crescent. He said:

“A. Like, I heard the cars go past, and then the cars stopped, and then I was down around the corner, couldn’t hear anything else, and then I was more, like, hearing things like, ‘Fuck off’ and et cetera, that I have in my statement there. And, like leaving and, like, stopping. I didn’t hear anything else.

Q. So specifically, what words could you hear? You’ve mentioned, ‘Fuck off.’ Was there anything else that you actually heard in terms of words?

A. Yeah, like, ‘Get off him.’

…

Q. ‘Get off me’?

…

A. No, it was like, ‘him’. It, it wasn’t - it was, like, people coming out of their houses, per se, not - it sounded like people were opening up doors and coming out and then trying to stop whatever was happening.

Q. Did you move away from your car at all or what?

A. Curiosity, when I first seen the cars, led me to go up the road a little bit, but as soon as I heard there was other people there, then I just went home.”

63. Police examined Mr Pierce’s phone records which indicated that he made a wi - fi call at 6:45:19pm, but could not determine who it was made to. Mr Pierce became uncooperative with investigating police, in particular, he declined to make available his phone log.

64. Leave was granted to the Crown Prosecutor pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine Mr Pierce, who maintained that he did not walk around the corner into Albert Harrower Crescent, explaining, “I’m not a hero. I didn’t want to put myself in danger”.

65. There was evidence of some neighbours hearing argument or passing Number 10 after the physical confrontation had apparently ended and before the accused went to 16 Simpson Street.

66. A statement of Peta-Lee Watt, dated 29 July 2021, was read. Ms Watt drove north along Albert Harrower Crescent that evening and noticed what must have been the XR8 parked diagonally across the driveway with its headlights on and its motor running, and a man lying on his back on the ground. She described a second man:

“I could see another male in the headlights of this car. He was standing in the front of the yard of the house in front of this car. I can’t remember what this male looked like, but he was wearing shorts, possibly yellow, I’m not too sure. He was of a thinner build. He wasn’t wearing a hat at all, and he was bent over like he was being sick or vomiting. His hands were on his knees, as to brace for his weight.”

67. Ms Watt did not stop because she had her young children in her car but immediately phoned the police and returned after dropping off her children, by which time the street was cordoned off. The Simpson Street video captured the vehicle that police believed to be that of Ms Watt driving from the intersection of Simpson Street and Albert Harrower Crescent at 6:53pm, that is, well after the voice of a third person is heard.

68. Daniel Ferrari was a resident at 8 Albert Harrower Crescent. He drove past Number 10 en route to a supermarket, passing the Simpson Street video at 7pm. He noticed the XR8 with its headlights on. He said:

“The driver’s door was open, and there was a person lying on the ground facing the same way as the car, with their feet in the middle of the road and their head … to the gutter.”

69. Mr Ferrari said that he assumed the person lying on the ground was “drunk or passed out”. He did not see anyone else. I will return to his evidence later in the judgment.

70. Kerry Clarke resided at 2/5 Albert Harrower Crescent. In a statement dated 30 July 2021, she said, as to the events that night:

“Around 6.30 to 6.45pm, I heard a car coming into the street from Simpson Street. The car was revving really loud. I went towards the front door of our duplex which looks directly out into the [cul-de-sac] at our end of Albert Harrower Crescent. There were headlights facing down our street towards our duplex. The car was sort of parked on the nature strip outside the doctor’s surgery that is on the corner of Albert Harrower Crescent and Simpson Street. I also recall some music with loud bass playing. I thought this music was coming from the direction of this parked car with its headlights on.

I noticed some figures in the darkness. I’m not sure how many figures I saw but it was definitely more than one. I also heard some raised voices but I am unsure if they were aggressive or just having a good time. I was inside my home with my husband. We sat down at the dining table to have dinner.”

The post-mortem

71. The post-mortem examination of Mr Tozer’s body was conducted by Dr du Toit-Prinsloo. Mr Tozer’s height was 1.76m (about 5’ 9”) and he weighed 94kg. She established the cause of death as blunt force head and abdominal injuries. She did not think that the overall injuries, and in particular, injuries to Mr Tozer’s brain, were survivable.

72. It is apparent from Dr du Toit-Prinsloo’s evidence that Mr Tozer suffered extensive abrasions, lacerations and bruising to his head, neck, arms and abdomen, as well as a significant injury to his right testicle. He had fractures to his skull, nasal bones, and his hyoid bone, in his neck. The following is a more detailed account of Dr du Toit-Prinsloo’s evidence of those injuries, contained in her autopsy report, which was an exhibit:

“Evidence of lnjury:

* All the lacerations described below had irregular wound margins with tissue bridges present. The majority of measurements are done with the wound edges apposed.

Posterior aspect of the body:

1.   In the occipital region of the scalp, 8cm inferior to the vertex of the scalp and 12cm superior and posterior to the tragus of the left ear was a large irregular area of abrasion which measured 8.5 x 9cm. Within this area was a large irregular laceration which measured 5.5 x 9cm, with an area where the underlying skull was exposed. In the superior aspect of this area of superficial abrasion was a second area of abrasion which measured 3 x 0.5cm.

2.   On the left elbow was an 8 x 11cm area of blunt force injury. Within the area was 3cm in diameter blue bruise on the medial malleolus. There was 3.5 x 3cm area of superficial abrasion with deeper irregular lacerations on the elbow. A 3cm in diameter blue bruise was present just inferior of the elbow.

3.   On the posterior aspect of the left forearm, above the wrist, were 2 blue bruises which measured 1.5cm in diameter each. There is also a blue bruise overlying the 5th metacarpal on the dorsum of the left hand.

4.   There was a 9 x 8cm blue bruise on the right deltoid region.

5.   There were a 10 x 7cm area of blunt force injuries on the right elbow. This area included an area with irregular abrasions which measured 3.5 x 4cm on the lateral aspect and a red/blue bruise which measured 3.5 x 5cm inferior to the medial epicondyle.

6.   There were diffuse areas of bruising on the posterior aspect of the right forearm.

Anterior aspect of the body:

Head:

7.   There were large confluent areas of bruising, extending over nearly the entire of the face, particularly on the right side of the face, both eyelids, upper lip and the nose. The total area of bruising measured approximately 23 x 24cm.

8.   On the right side of the forehead, 5.5cm above the lateral aspect of the right eyebrow, was a 1cm superficial laceration in an oblique plane.

9.   In the right eyebrow was a 3.5cm curved laceration, with a 1cm laceration present in the central aspect of the right eyebrow.

10.   Lateral to the lateral canthus of the right eye was a 1.5cm oblique laceration.

11.   There was a 3cm curved laceration inferior to the right lower eyelid.

a. There were diffuse subconjunctival haemorrhages in the right eye.

12.   There was a 1.8cm oblique laceration towards the right side of the bridge of the nose. The nose was fractured. Several smaller superficial abrasions were present on the tip of the nose.

13.   Irregular lacerations which measured 3 x 0.5cm were present at the right side of the lower lip. These lacerations extended into the oral cavity.

14.   There was a 2.5cm oblique laceration below the chin.

15.   On the left side of the forehead, 12cm above the tragus of the left ear, was a 1cm superficial abrasion.

16.   Three centimetres superior and posterior to the left eyebrow, was a 1.5cm superficial abrasion.

17.   There was a 2cm curved laceration in the left eyebrow.

18.   A nearly V-shaped laceration which measured 1.5cm and 2cm was present adjacent to the lateral canthus of the left eye.

19.   Adjacent to the medial canthus of the left eye was a curved laceration which measured 2.5cm.

a. Diffuse subconjunctival haemorrhages were present in the left eye.

20.   There were four superficial abrasions on the left cheek. These lacerations measured between 0.8cm to up to 2 x 1cm.

21.   On the left side of the lower lip were irregular lacerations which measured up to 2cm. These lacerations extended into the buccal mucosa.

a. There were bruises noted to the inner aspect of both lips and the upper frenulum was torn.

Abdomen/inguinal region:

22.   On the right side of the abdomen was a large confluent area of blue bruising. The area measured approximately 18 x 14cm.

23.   In the right inguinal area, extending towards the right testes, was a large confluent area of blue bruise.

Extremities:

24.   On the antero-lateral aspect of the left upper arm was a blue bruise that measured 3cm in diameter.

25.   There was a 0.5cm healing abrasion on the right knee and a 3 x 0.5cm healing linear abrasion lateral to the right knee.

26.   There were several smaller healing abrasions on the right first toe.

27.   There were small healing abrasions, which measured 0.5cm and 0.8cm in diameter on the anterior aspect of the left knee.

28.   On the antero-lateral aspect of the left forearm, above the wrist was a 1.5cm in diameter blue bruise.”

73. Dr du Toit-Prinsloo said that subconjunctival haemorrhages in the eyes were consistent with blunt force having been applied to the eyelids.

74. The internal injuries to Mr Tozer’s head included linear fractures to the left orbital plate, which is the “thin plate that covers the eye”. The results of a neuropathological examination of Mr Tozer’s brain were described by Dr du Toit-Prinsloo:

“In summary, it confirmed an acute left-sided subdural haemorrhage … the haemorrhage between that mid-brain on the inside, and the brain, and the multifocal, so several areas of sub-arachnoid haemorrhage, haemorrhage under the thinner layer on top of the brain. Furthermore, it showed a contusion, or a bruise, in the corpus collosum. That’s a very specific area within the brain that sort of connects your left and your right side of your brain together. Furthermore, there was features of diffuse traumatic axonal injury, and it’s listed the areas within the brain. So anterior, at the front, the mid, the middle, and the posterior, or the back part of this corpus collosum, the structure that connects the two parts together. The posterior midbrain and the cerebellar peduncles, which [are] two very specific areas at the bottom part of the brain.”

75. Dr du Toit-Prinsloo was asked to explain how a traumatic axonal injury is caused. She responded that it was:

“… a form of rotational forces that’s applied to the moving head. So there must be a form of movement or rotation, not just a linear force that is applied to the head.”

76. An internal examination of Mr Tozer’s neck disclosed “haemorrhages in several of the muscles in the anterior aspect of the neck”, fractures of the hyoid bone and associated haemorrhage. Dr du Toit-Prinsloo considered that these were caused by the application of blunt force to the neck.

77. Abdominal injuries included “confluent areas of bruising to the right side of the abdomen and the right inguinal canal and scrotum”. The report noted the presence of numerous lacerations in the mesentery of the small bowel and in the mesocolon of the ascending colon and haemorrhage surrounding the right testes.

78. Features of blunt force injuries were observed on the arms. A subcutaneous dissection of the arms “showed confluent areas of haemorrhage involving the posterior aspect of the entire right arm, the posterior aspect of the left forearm and the left deltoid region”. It was noted that the distribution of some of those injuries was in keeping with so-called defence injuries.

79. No alcohol was detected in Mr Tozer’s blood. Dr du Toit-Prinsloo concluded:

“All the injuries sustained were in keeping with inflicted blunt force injuries. Due to the nature and extensive distribution of the injuries, it was not possible to comment on the degree of force that was used to inflict these injuries. It is also not possible to comment on the number of blows or kicks that were inflicted and a differentiation between which injuries were sustained from a kick and those sustained from a hit by a fist, was also not possible.

The exact position of [Mr Tozer] during the reported assault is not known. It is possible that some of the injuries sustained (specifically the lacerations to the occipital region of the scalp and the diffuse traumatic axonal injury seen on neuropathology) could have resulted from a fall during the assault.”

The accused’s accounts to neighbours

80. Shortly before 7pm, the accused approached 16 Simpson Street and asked the occupants if he could borrow a phone to call for assistance. The house had a gate entrance onto Albert Harrower Crescent. Karen Irvine resided there with her then partner Jamie Young. Ms Irvine’s daughter Clancey and her partner, Joel Cooper, were dinner guests that night. Intending no disrespect, I will refer to Karen Irvine and Clancey Irvine as Karen and Clancey respectively, to avoid confusion.

81. The four occupants went across the road and provided assistance to Mr Tozer, Mr Cooper assuming the role of the primary caregiver and Clancey contacting emergency services, for a period of approximately half an hour, until police and ambulance services arrived at the scene. As noted, Mr Ferrari provided assistance as well.

82. The accused gave various explanations to the five neighbours as to where and how he first encountered Mr Tozer that night, but consistently said that following a disagreement elsewhere, the other man, who was a stranger, chased the accused home, got out of his car and “pulled a knife” on the accused. The accused hit the other man, variously referring to elbowing, punching and stomping, and noting that he was a kickboxer. The accused said the knife had fallen into the gutter when he hit the other man. The accounts of those five people are considered in more detail.

Joel Cooper

83. The first person that the accused spoke to at 16 Simpson Street was Mr Cooper, who said in evidence that the accused came to the gate of the house, shirtless, wearing board shorts and shoes, “asking for some assistance and asking to borrow my phone”. Mr Cooper’s evidence as to his first conversation with the accused was as follows:

“Like I said … he asked for my phone and then, like I said, I was a bit curious to why he needed my phone, so I said, ‘What’s going on?’ and he just said, he’d just been followed home from the beach and yeah, needed some help. Which I was still a bit unsure about, so I questioned him a bit more …

…

… I’m pretty sure he just said …. He wanted to call the police and told me that, … he’d just been chased home by somebody, so I was a bit concerned, so I said, you know, ‘Are you all right? Is the fellow still around?’ … he kind of reached over the fence and I seen that his hands were all bloodied up and … then I … said, ‘Are you all right?’ and he said, ‘Yeah, I’m fine but the other fellow is out on the road.’”

84. Mr Cooper went across the road and saw Mr Tozer lying on the road on his back with his head in the gutter and his feet facing across the street. He and the other witnesses who came across from 16 Simpson Street described Mr Tozer as being unconscious, having difficulty breathing, and having a swollen and bloodied face with an obvious deep laceration to the back of his head.

85. Mr Cooper said that he and others from 16 Simpson Street rolled Mr Tozer onto his side, into the recovery position. He was asked where the accused was, when they did this. He replied:

“At first he was with us and like I said, we were kind of trying to just reassure him that everything was all right and were kind of just more concerned about the fellow on the ground and then as it went on … he probably went back inside two or three times. Like, he was kind of present and then he went back inside for a little bit and then would come back out, went back inside. So, that happened, yeah, multiple times.”

86. And later:

“I think the first time he come back out, he was looking for his keys which, yeah, Mr Ferrari had pointed out were on the roadside, so he picked those up and I think he picked up a few other belongings. Later on, he came back out and he was looking for - I think he picked up a black bag … a little bumbag kind of thing and he had that over his shoulder at this time.”

87. Mr Cooper said that the accused’s “story” about the chain of events leading up to the altercation changed as he recounted it to Mr Ferrari. Mr Cooper heard the accused say to Mr Ferrari that he had been “down the street seeing his mum” when there “was a bit of a road rage incident, and the victim had followed him home”.

“… by then, the story had once again slightly changed and he’d actually claimed that the victim had a – had pulled a knife on him which then obviously, we were all quite concerned about where the knife was and which Mr Fuller claimed had gone down the gutter. The drain, sorry, which was right – yeah, which was right next to the victim.”

88. When asked whether there was anything else said by the accused when he was looking around for some personal items, Mr Cooper testified that during another conversation later on, the accused’s narrative:

“… slightly changed to who we were seeing or where he come from, but he had said that he was driving home. Old mate had followed him home and he then made a remark on the way of saying, you know, ‘If you’re going to follow me home and pull up in my driveway, you’re going to get stomped’ or ‘You’re going to get gutter stomped.’ I can't quite remember which he said and then at the time, it kind of led me to look at his feet which, yeah, were also covered in blood or his shoes, sorry, were covered in blood.”

89. Mr Cooper also said that the accused’s “delivery” as to his narrative of what had happened was slightly different, particularly in relation to the details of the actual assault on Mr Tozer:

“So, that’s what - when I was kind of - when I was kind of asking, ‘Is everything all good? Are you all right?’, Mr Fuller had said that he’d done boxing in the past so he, he knew how to handle himself and then when Mr Ferrari … come over, it was more of a – he’d actually claimed that he’d done kickboxing in the past and this time, he’d actually said that, yeah, he’d, he’d elbowed and punched the man multiple times.”

90. Mr Cooper said that about 20 minutes later:

“… just before the police turned up, I believe the last time Mr Fuller come out, he was actually … trying to assist or he was offering to assist particularly myself who was obviously … the primary carer of the victim or who was kind of in charge at the time which I said, ‘No, it’s all right, we didn’t - we don't really need any assistance at the moment’ or ‘There’s nothing that we can do.’ After that, Mr Fuller had actually - had claimed to have his bronze medallion in the past so he knew a bit of first aid and as he walked past the victim on the final time, he kind of said, ‘He’ll be right, I’ve seen, I’ve seen plenty worse’ and went back inside.”

91. Mr Cooper agreed in cross-examination that the form of assistance that the accused offered on that occasion was an ice pack that he had brought out of the house. Mr Cooper said he told the accused, “I’m not sure what we would do with the ice pack so we’ll just, we’ll just continue to monitor him”.

Clancey Irvine

92. When Clancey first approached the accused at the gate, Mr Cooper and the accused were conversing. She recalled the accused saying, “Can I borrow a phone? I’ve knocked someone out over here. He’s laying unconscious in my driveway”. Having refreshed her memory by way of her statement to the police made on the night of 28 July 2021, Clancey also recalled the accused saying at that point:

“Yes, that [the other man had] tried to - when [the other man had] followed him home, he had tried to stab - gotten out of the car and tried to stab Connor and that there was an altercation downtown prior to that. Yeah, and that he - when he came over, he was asking Joel to come and give him a hand with the unconscious man.”

93. She recalled the accused saying that the other man had been lying unconscious in the gutter for about 20 minutes. Thereafter, Clancey said that she went inside to retrieve her phone and to call 000, at which point, she went back out again onto the road where Mr Tozer was lying unconscious. She said that after they put Mr Tozer in the recovery position, they put a towel under his head to apply pressure to the open wound at the back of his head and Mr Cooper cleared his mouth to assist his breathing.

94. She recalled the accused saying that “he’d been followed home, and the injured male had tried to stab him; and that the knife had fallen into the gutter”. She “had a quick look around at the gutter”, however, she “couldn’t see any knife sitting in the gutter itself”.

95. Clancey also recalled the accused coming and going from the residence and picking some items and “putting [them] in the cars”, including the other man’s car keys which the accused threw into that man’s car. In cross-examination, she agreed that she did not have a recollection of the accused putting any items in his own car. She also agreed to the proposition, put to her during cross-examination, that although she had specific recollection of particular items, being pearls from a broken necklace, a pair of glasses with a shattered lens, and car keys, because of the nature of her focus on attending to Mr Tozer, there could have been other items that the accused may have picked up.

96. She recalled that the accused’s demeanour was calm. She remembered that the engine of one of the cars was running, but she was unsure which one it was.

Jamie Young

97. Mr Young said that he first spoke with the accused that night at the gate of 16 Simpson Street, when Clancey summoned him there. He saw the accused, who he knew as a neighbour. He said:

“Connor … didn’t have a shirt on … I could see blood splatter on his chest and his stomach. He put his hand out to shake my hand and I noticed there was blood on his hand, on his right hand and I just said, ‘What’s going on?’ and … he just looked straight at me and he said, ‘Had an incident. Bloke’s followed me home, pulled a knife and I - I’ve knocked him out.’”

98. Mr Young was asked to provide further detail as to what the accused said at the time that they were still at the gate of 16 Simpson Street, including the particular language that he used at the time, to which Mr Young responded:

“From what I can recall, he just said that he had - he was taking Chinese down to his mother that works at the Chinese restaurant, and he went to get into a car park and another bloke tried to take it. They had a disagreement, and then he drove off in his car. The bloke in the other car followed him home, and parked when he parked in his driveway, old mate parked in beside him on an angle and jumped out with a knife, apparently.”

99. Mr Young described the accused thus:

“Q. What sort of emotional state was Mr Fuller in … when you spoke to him? How did he present?

A. Yeah, I could smell - you could smell alcohol for starters. He wasn’t blind by any stretch of the imagination, but he - you could tell he’d had a drink, but he was a bit edgy, a bit - edgy, I suppose but not. He was sort of calm but edgy, if that makes sense and sort of - he was chewing a bit. He didn’t have any chewing gum in his mouth, but he - he just seemed a bit edgy, that’s all.”

100. Mr Young noticed blood on the accused’s right shoe.

101. Mr Young went across the road and saw that Mr Tozer was lying in the crucifix position with his head in the gutter on a drain. He said, “His right shoe was off beside him. His tracksuit pants were down around his ankles. He had a pair of boxer shorts on”. In cross-examination, Mr Young agreed that in his statement made that night he said the tracksuit pants were down around Mr Tozer’s knees. The XR8 was parked at an angle across the front of the driveway with its driver’s door open and its lights on, but the motor wasn’t running.

102. After Mr Young saw Mr Tozer, he asked the accused what had happened:

“… when we got over to him and I realised just how bad he was, I said to him, I said, ‘So … What's happened here?’ You know? And he just said things like, ‘Fuck him. I’m a boxer. A kickboxer. I can look after myself. Fucker wants to hassle me or come at me with a knife.’ And I said, This guys in a really, really bad way, mate. And he said, Fuck him. I seen worse. And then he was just walking around, pretty agitated, looking for keys, looking for a phone or something. And then … he was trying to … pull old mates pants up, and I just told him, I just said, you know, ‘Mate, we’re trying to look after the bloke’. But he - at no stage did he … try to offer any assistance.”

103. Mr Young said that when he and Mr Cooper inquired into the whereabouts of the knife, the accused responded by saying that “it must’ve fell in the gutter, down the drain or something”.

Karen Irvine

104. Karen said that Clancey told her of an incident across the road, at which point she went over to assist. Pursuant to s 32(3) of the Evidence Act, she read out certain parts of her statement that was made to police on the night of the incident, in which she recounted the accused saying:

“I need you to call the police. He came at me with a knife. He’s down in the gutter. He’s asleep in the gutter but he’s not waking up.

…

I need you to call the police. I don’t need any trouble. I’m in Family Court for my kids. I don’t need any trouble.

…

He followed me home and pulled up in my driveway, and something about a parking issue.

…

I’ve been kickboxing since I was a child. I’ve seen my mother go through shit like this. I stomped on his head.”

105. When asked about the accused’s behaviour prior to his arrest, Karen said that “he was doing a lot of pacing up and down”, and that he went back inside the house “at some stage”. When asked whether she observed any objects in the accused’s hands, she recalled:

“A. I believe he picked up a few items in the early stages. I can’t recall if he had anything later. He picked up something out of the gutter and something off the grass, but I don’t recall anything else in his hands; yeah.

Q. Did you see what he picked up?

A. One of the - one of the items, I believe he said was part of a necklace or something. I can’t recall what the other piece was, but they - they weren’t big objects; they were only small.”

106. Karen recalled the accused saying that the other man had “come at him with a knife”. She did not recall what was said by the accused about why the altercation occurred. She recounted the accused saying, “something about the knife in the gutter or disappearing down the drain” and, in reference to the other man’s injuries, “I’ve seen much worse”. She agreed that in her statement she had recorded an offered act of assistance by the accused; he brought an icepack from the house, but was told that it would not be needed.

Daniel Ferrari

107. On Mr Ferrari’s return from the supermarket, which was captured by the Simpson Street video at 7:07pm, he noticed that the man that he observed earlier lying on the street was in the same position, and his neighbours from 16 Simpson Street were there. He was told by another neighbour that there was something wrong, so he pulled over to help. He assisted Joel Cooper to get Mr Tozer into the recovery position.

108. The accused came out of the house, to where Karen, Clancey, Mr Young, Mr Cooper and Mr Ferrari were. Mr Ferrari asked the accused, “what happened? Was he hit by the white car?”, to which the accused replied, “Nah, mate … we had an argument at the pub, he followed me home … He tried to stab me”.

109. Mr Ferrari said that the accused said, “I’m a kickboxer. I smashed him. I kicked him and … I jumped on him … What do you expect me to do? He tried to - he had a knife”. When asked what the accused’s exact words were about a threat to himself, Mr Ferrari said:

“Okay, so he said, ‘What do you expect me to do? I’ve got to defend myself. He tried to, he tried - he had a knife’, was the - first off, he said, ‘He stabbed me. He wanted to stab me’ … and then later on he said, ‘He had a knife’, so I was thinking there’s a knife somewhere.”

110. Mr Ferrari said that when he arrived, the engine of the XR8 was running. After Mr Ferrari’s initial conversation with the accused, the accused was:

“… standing near us looking for something and we’re trying to keep the guy breathing, you know, in, in his position and I remember there was some stuff in the gutter … he said he was looking for his mobile phone.”

111. Mr Ferrari decided to help the accused look for the mobile phone and, at the same time, Mr Ferrari would look for the knife, “so I was going to try and secure the knife and obviously get his mobile phone”. Mr Ferrari extensively searched an arc of the front yard area around the scene and found neither a knife nor a mobile phone.

112. After the search, he saw the accused lean into the XR8 and turn off the engine and headlights. He was unsure if the accused also closed the car door. The accused then walked back into the house at Number 10.

The 000 call

113. For much of the 000 call, which was made by Clancey at 7:07pm, she was positioned alongside Mr Tozer and those who were administering first aid to him. On the call, the voice of the accused is captured in the background stating, “Mate, that knife’s in the bottom of there” and, shortly afterwards, stating, “I went up town, I got called a white cunt, then got followed home with a knife, like … are you serious, bro, my, my dad’s Aboriginal and shit”.

Admissions to police and observations by police at Number 10

114. The Crown case includes admissions that were made by the accused prior to being cautioned as a suspect. No objection was taken to those admissions, which were generally repeated after he was cautioned. The accused continued to give differing accounts of his first encounter with Mr Tozer. He initially told police that the other man pulled a knife on him and tried to stab him, claiming he had stab marks on his body. The accused said he asked the other man to leave, but he would not do so. Over the course of the night, the accused’s account became that the other man got out of his car holding “something”, that the accused thought he was going to be stabbed and that he only hit the man three times, a left and right punch and a kick to his head, with some variations. The accused’s accounts to the police are now reviewed in more detail.

Senior Constable Andrew Black and Senior Constable Chloe Thompson

115. The first emergency responders to arrive at Number 10 were Senior Constable Andrew Black (SC Black) and Senior Constable Chloe Thompson (SC Thompson). The Simpson Street video captured their arrival at 7:26pm.

116. Both officers have since left the police force. A statement by SC Black, dated 6 February 2023, was read, in which he said that when he and SC Thompson arrived, he turned on his BWV, which commenced at 7:28pm, while he was in conversation with Mr Cooper. SC Black stated that he was focussed on assisting the others already there in the administration of first aid to Mr Tozer. He recalled that someone alerted him to the accused coming out of the house and that he went over to the accused and arrested him, but little else. Shortly afterwards, at 7:34pm, the first ambulance arrived. Later, Sergeant Damien Goddard (Sgt Goddard) and Sergeant Nicole Ward (Sgt Ward) also arrived at the scene.

117. The BWV activated by SC Black was an exhibit in the trial. At 7:28pm, he approached the accused, who was standing at the back of the Getz, which was parked up the driveway behind another car (a black Jeep). The accused was wearing shorts, shoes and a small shoulder bag, with the strap over his left shoulder and the bag on his right side, as it was at the bottle shop, if indeed it was the same bag. His torso was unclothed and he was in the process of putting on a long-sleeve shirt. SC Black informed the accused that he was being video-recorded and asked him what happened. The accused replied, “Old cuz followed me home with a knife … Jumped out the front of my house and then tried to pull a knife on me”. The accused was then cautioned, and he continued, “He tried to stab me”. The accused declined to say anything further and went to walk away, at which point SC Black informed him that he was under arrest for an assault. The accused then continued, “What, because he tried to stab me ... I come home with my dog and he tried to stab me”. Shortly after, at 7:30pm, the accused was placed in the caged back of a police vehicle, at which point he said, “look, there's a stab mark in me from where he tried to”.

380. The accused then yelled at him, “I’ll knock you clean the fuck out cocksucker, you’re on my lawn”. As this is said, two figures are seen to move along the driveway towards the road. Mr Tozer said, “I’ll get off it then”. As he said those words, the figure that was behind can be seen to quickly move up to the figure in front, and a loud clanging sound can be heard, coming over the top of the last of Mr Tozer’s words. I am satisfied beyond reasonable doubt that the accused moved up behind Mr Tozer and assaulted him with a forceful punch or kick, probably knocking him into the metal side fence, thus causing the loud sound. Mr Tozer again immediately shouted “fuck off!”

381. Over the next six seconds, the accused is heard to repeatedly say, “You’re on my lawn” and “You’re trespassing”, even though it is apparent that both men are in the vicinity of the XR8. I do not accept the defence submission that because Number 10 did not have a front fence it was open to the accused to regard the footpath as private property.

382. A horn sounds twice. A recording of the XR8’s horn and the horn of the Getz was made by police, and was an exhibit in the trial. The XR8 horn had a distinct sound. I am satisfied that it was the horn of the XR8 that is heard at this stage on the CCTV audio. The fact that it was sounded twice in relatively equal periods in quick succession satisfies me that Mr Tozer sounded it deliberately, as he tried to get into his car, and that he did so in order to summon help. I am satisfied that, during the confrontation, the accused pulled or dragged Mr Tozer in a northerly direction along the gutter, in view of his pants being pulled down and his right shoe being between the XR8 and the grate. It is likely that occurred at this point, as Mr Tozer tried to get into his car.

383. Between 6:42:17 and 6:42:25, the accused in quick succession said he was “scared” and, three times, “I’m scared for my safety”. Those expressions were followed by the accused saying, “Who are you, who are you? I’ll knock your head off, cunt. What we want”. This is a transitional point in the confrontation. The tone of the accused’s voice, the sounds of multiple impacts, the groans and screams of Mr Tozer and the desperation in Mr Tozer’s voice when he did speak suggest that the level of violence escalated markedly immediately after these words were spoken and remained at that elevated level thereafter.

384. There are a few seconds of silence after those words, followed by the first of many drawn-out screams by Mr Tozer, and his words in a panicked tone, “Stop it, I can’t breathe”. For the next 60 seconds, Mr Tozer can be heard screaming and calling out for help. The accused’s words are softly spoken, in a relatively calm tone, but unclear.

385. There are noises made by the accused, often in quick succession, that I find were involuntary sounds made during physical exertion, in this case presumably associated with forceful punches or kicks; some major and some relatively minor. An example of major exertions is at about 6:43:33, heard over gasps by Mr Tozer.

386. At around 6:43:45 to 6:44:15, a third voice can be heard, with whom Mr Tozer appears to engage, pleading that the person not leave him there. The voice sounds like it is some distance away from the accused and Mr Tozer. The presence of a third person is supported by the accused’s account during questioning by Sgt Goddard and Det Sgt Barber that he believed that neighbours had witnessed the physical confrontation, which adds weight to the proposition that a third party witnessed part of the physical confrontation and has not come forward.

387. Over a period of 13 seconds until 6:44:40, there are 16 sounds of physical exertion with a verbal aspect, sounding like “hump”. Mr Tozer’s voice is not heard again. At 6:44:40, the accused is heard saying, “kick box … cunt. I’ll jump on your head”. As he said “head”, the first of eight major exertion sounds is heard, followed by three minor sounds, ceasing at about 6:45:15. I am satisfied beyond reasonable doubt, by that coincidence of events, that when the accused said “head”, he either kicked or jumped on Mr Tozer’s head.

388. From that point until 6:51:28, that is, over the next six minutes and 13 seconds, the accused is heard to make 16 sounds of major exertion and at least 29 sounds of minor exertion. I am satisfied that those sounds were associated with the accused applying blunt force to Mr Tozer, by either punches, elbowing, kicks or stomps.

389. In view of Dr du Toit-Prinsloo’s opinion as to the cause of Mr Tozer’s death, namely, blunt force head and abdominal injuries, in particular, the axonal (rotational) injury to Mr Tozer’s brain, I consider the timing of the infliction of the fatal injury or injuries to be in the period after 6:42:31, that is, after the accused said, “I’ll knock your head off, cunt. What we want”. It is not possible to conclude with certainty from the evidence whether the axonal injury was inflicted before or after Mr Tozer is last heard to be conscious or whether the injury came about by one or more blows to the head, although it is likely to be one or more of the eight sounds of major impact shortly after 6:44:50 when the accused said “kick box” and that he was about to jump on Mr Tozer’s head.

390. As noted, the accused said during his formal police interview that when Mr Tozer arrived, and alighted from his car and chased the accused with a weapon, he was saying he was going to kill the accused. The accused also said that he, that is the accused, was “screaming out for help”, and “yelled for my neighbours … Help me. Help me stop him. But no-one would listen”. I am satisfied beyond reasonable doubt that if those words, or similar, were yelled or said by the accused, they would have been captured on the CCTV audio and would be audible. I am satisfied beyond reasonable doubt that the accused did not say or scream such words.

Evidence of a tendency by the accused to threaten violence in response to minor vehicle incidents, from aggression and not fear

393. As noted in Fuller (No 2) at [38], the relevance of the tendency to be derived from the evidence of the two car park incidents in the Crown case was as to the issue of whether the accused was the initial aggressor when he and Mr Tozer arrived at Number 10.

394. Having heard Ms Bilsborough’s evidence as to those two incidents, to the extent that it does establish a tendency as alleged, I do not regard it as useful in resolving that issue of fact, that is, whether the accused was the initial aggressor at Number 10. This is because, having heard all of the evidence in the trial as to the confrontation between the accused and Mr Tozer, it seems to me that the circumstances described by Ms Bilsborough and the evidence as to what occurred at Number 10 are so different, that evidence of the tendency does not assist with the question of whether the accused acted in a particular way during the confrontation. Accordingly, I disregard that evidence.

Whether there is any evidence on the CCTV audio and the CCTV driveway video that the accused believed that Mr Tozer was armed or was otherwise a threat of physical harm to him or his mother

395. Mr Tozer is not heard on the CCTV audio to say or infer that he has a weapon or to say something that could reasonably be interpreted as a threat of physical harm to the accused or his mother. The only times that Mr Tozer sounded angry were when he told the accused to “fuck off”, which was in the context of him verbally responding to the accused. Mr Tozer is seen to be on the accused’s private property for about 15 seconds, when he walked up to where the accused was and then immediately withdrew back down the driveway, saying he would get off the accused’s lawn. It is apparent that the accused in fact prevented Mr Tozer from leaving.

396. The accused is not heard on the CCTV audio to accuse Mr Tozer of having a weapon. He is heard to say the words that he was scared, but in an aggressive tone and immediately after he had stopped Mr Tozer from leaving. The accused did not move away from Mr Tozer or call out for help or try to remove himself from the location, for example, by going into the house or running down the street.

397. At 6:47:15, when Mr Tozer had been silent, most likely unconscious, for about two and a half minutes, the accused said, “You threatened me. I felt scared. You were on my private property, I defended myself. That’s my right”. The accused is not suggesting by those words he was scared at that time, but rather that he had been scared earlier in the confrontation.

398. When the accused is heard on the CCTV audio to say that he is “scared” and “scared for my safety”, his tone is inconsistent with the ordinary meaning of those words; indeed, it conveys anger and aggression rather than fear and concern. There was no objective indication that he was in fact scared; rather, it is the opposite. Although the accused is heard to say that he had felt threatened, there is no evidence of acts, words or sounds by Mr Tozer that could reasonably be construed as threatening to him, or behaviour by the accused that could be construed as responding to threats, such as calling for help or leaving the scene.

399. The tone suggests the words were said by way of self-justification, justifying (bizarrely) to Mr Tozer why he was attacking him, and for the benefit of anyone other than Mr Tozer who may have been in earshot.

Whether Mr Tozer may have been holding an implement that could be used to stab the accused or mistaken for a knife

The screwdriver

400. It is apparent that the accused handled the screwdriver, which police found on the patio, after he had Mr Tozer’s blood on his hands, which suggests that the accused handled it in that location after he had stopped attacking Mr Tozer. As noted, the last sound of physical exertion detected on the CCTV audio was at 6:51:44, which appears to be about ten minutes before he appeared at 16 Simpson Street.

401. In gaol call 19 (25) to his mother, the accused said that after his confrontation with Mr Tozer, he sat on his verandah and had a cigarette. The only purpose for which, on the evidence, the accused had potential use of a screwdriver at that point in time was to prise the mirror panel from the casing on the XR8. In any event, for the purposes of this judgment, it is unnecessary to determine precisely why the accused handled the screwdriver, since it is accepted by the defence that it was not handled by Mr Tozer.

The pen

402. As noted, the Crown and defence both submitted that when Mr Tozer got out of the XR8, he “most likely took a pen with him”, presumably to take down the accused’s details, since only Mr Tozer’s DNA is found on the pen lid. After the accused became aware of that fact, he is recorded effectively saying that perhaps Mr Tozer was holding the pen and he, that is, the accused, had mistaken it for a knife.

403. However, I note that when the accused handed the pen to Sgt Goddard, he said he had it because, “I try to write down everything that happens”, thereby implying it was his pen, which he routinely carried with him for that particular purpose. I note that Mr Tozer’s wife stated that she did not know Mr Tozer to carry a pen. She said there may have been one in his backpack, but I note that Mr Tozer had placed that in the boot and that he did not access the boot again. If the pen was in fact the accused’s pen, the expert evidence by Ms Friedman as to how DNA may be transferred from one surface to another could explain how Mr Tozer’s DNA was detected on it.

404. Since the accused claimed ownership of the pen and the presence of Mr Tozer’s DNA is otherwise explicable, I am satisfied that there is no reasonable possibility that it was Mr Tozer’s pen. With respect, I do not accept the joint submission that it was most likely Mr Tozer’s pen.

405. Accordingly, I am satisfied beyond reasonable doubt that Mr Tozer was unarmed and that there is no reasonable possibility that he was holding an item that could be mistaken for a weapon in either of his hands during the confrontation.

Whether the accused’s lies concerning a knife, its whereabouts and the screwdriver demonstrate a consciousness of guilt

406. I am satisfied that the accused lied to others in claiming either that Mr Tozer was armed, or that he believed he was armed, with a knife or a screwdriver, and that the knife fell down the grate.

407. I am satisfied that these lies relate to the offence because by those lies, the accused attempted to justify the acts and level of violence he perpetrated against Mr Tozer. I am satisfied that these lies were not told out of panic or to escape an unjust accusation. I am satisfied that he lied from a realisation that telling the truth, namely, that Mr Tozer was unarmed and that he did not believe that Mr Tozer was armed, would expose him to criminal liability for the injuries he inflicted on Mr Tozer. They were told out of a consciousness of guilt; that he did not believe that what he did was necessary in self-defence, so he fabricated a threat to his safety.

Whether the evidence of the accused’s upbringing is relevant to his infliction of the fatal injury or injuries on Mr Tozer

408. The relevance of the evidence of the accused’s childhood and adolescent exposure to domestic and social violence (that is, the stabbing injuries on his father and life in South Kempsey) hinges on statements he made to civilian and police witnesses to the effect that his violent reaction to Mr Tozer’s presence at Number 10 was conditioned by those experiences. In essence, he said that he believed that Mr Tozer was armed when he emerged from his car and he had to immediately neutralise that threat, which he did by punching him twice and kicking him to the head, because he was not prepared to risk Mr Tozer stabbing him or otherwise attacking him or his mother.

409. There are difficulties with this version of events. According to the accused, the trigger for his violent response was his belief, based on what he saw or believed (that Mr Tozer was armed) and, based on what Mr Tozer said (that Mr Tozer was going to kill the accused), that Mr Tozer was about to attempt to kill him by stabbing him.

410. As noted, Mr Tozer was unarmed and there is no evidence that he was holding something that might give the impression of being armed, and it is apparent from the CCTV audio that he did not express an intent to cause physical harm to the accused. Further, the CCTV audio establishes that the accused’s serious violence against Mr Tozer commenced not when Mr Tozer first emerged from his car and approached the accused, but as Mr Tozer was walking away from the accused and attempting to leave the property, in compliance with the accused’s demand. As well, the accused did not strike Mr Tozer three times, but rather dozens of times after Mr Tozer was incapable of offering resistance, let alone a threat of attack. The fatal injury or injuries were delivered after Mr Tozer was screaming for help.

Whether the accused was affected by a substance or a mental condition

411. As I have noted, aspects of the accused’s behaviour that night were bizarre and/or irrational. Mr Young smelt alcohol on the accused at about 7pm and Const Adnum smelt it on him at Kempsey police station at about 9:35pm. There is evidence of the accused having been diagnosed with stress-induced epilepsy and requiring medication for it, on that night.

412. Neither party has submitted that the accused was affected by drugs or alcohol, or by a mental illness or cognitive impairment during the incident in question. Nor is there evidence that would suggest that was so. Accordingly, I regard the references to those matters in the evidence as being irrelevant to the question of the accused’s belief at the time he inflicted the fatal injury or injuries on Mr Tozer.

Although the accused’s account is rejected, does the evidence nevertheless give rise to a reasonable doubt?

413. For the reasons expressed above, I disregard the accused’s account of his motive for attacking Mr Tozer. The question remains whether, on the evidence, there is a reasonable possibility that the accused believed that it was necessary to inflict the fatal injury or injuries on Mr Tozer, in view of the CCTV audio capturing him saying during the attack that he was scared for his safety and, later, that he had felt threatened. As noted, the words “I’m scared” and “I’m scared for my safety”, were uttered in a tone suggesting he was angry, indeed taunting Mr Tozer, not that he was actually scared of him. In considering this question further, I turn to the evidence of the accused’s alleged tendency to falsely claim he is in fear to manipulate situations and justify criminal activity.

The accused’s alleged tendency to claim that he is in fear as a means of manipulating or controlling a situation, or justifying criminal activity

414. When the accused was questioned by SC Taylor about the hospital incident, he explained that his motive for damaging the car, which was owned by Ms Bilsborough’s mother, was that she had criticised him at the sensitive moment of the birth of his child. He sought to minimise his responsibility for that criminal act by reasoning that he was “protecting his family” and that he felt threatened and hurt; he had been “shaking and I started feeling like I was getting attacked”; which in my view, is patently illogical.

415. The questioning of the accused about the Crescent Head incident had the potential to result in a criminal charge against him. When SC Taylor expressed scepticism by the tone of his voice as to the veracity of some of the accused’s answers, he declined to answer further questions on that topic because, he said, the officer made him feel “quite scared”, and that he was shaking and trembling. He referred to a diagnosis of stress-induced epilepsy, by which I infer he meant to convey that if the questioning continued, he was in danger of having an epileptic fit and, later in the conversation, that his reaction was also due to his past experiences with “bad dealings with police” which caused him to “get shaky”.

416. The Crown submitted that the accused demonstrated a tendency to claim he was in fear, in the hospital incident to minimise criminal responsibility, and in the Crescent Head incident to manipulate or control the situation he found himself in, with the two officers.

417. The Crown submits that its relevance is that it tends to support the contention that the accused’s expressions captured on the CCTV audio of being scared, fearing for his safety and feeling threatened, did not in fact arise from fear, but were a means of minimising criminal responsibility and manipulating the situation by attempting to justify what he was doing.

418. The defence submitted that, on the contrary, the BWVs support the defence case, by illustrating some of the accused’s attributes with respect to his sensitivities in gauging threats, that manifested at Number 10 during the confrontation.

419. The question, put simply, is whether the accused on 26 July 2018 and 4 November 2020 was expressing fear and feeling threatened as a tactic, or because he genuinely felt it. I accept that in relation to the hospital incident, the birth of a child may well bring to the fore extreme emotions and sensitivities. However, in the absence of expert evidence as to how the accused’s responses might reasonably be outside the bounds of normalcy, it is absurd to claim that keying the car and writing “slut” and “die” on it were his response to feeling threatened and his way of protecting his family.

420. The assessment of the circumstances of the accused expressing fear on 4 November 2020 in relation to the Crescent Head incident is assisted by the two BWVs. The quality of the video and light is very good. Although the accused said he was shaking and trembling, I could not observe him doing so at any point during the encounter on the BWVs and I would expect to see such movement if the accused was experiencing it. He declined to answer further questions at all on that topic and the conversation moved to another issue that involved the accused and SC Taylor. His demeanour remained engaged and calm throughout and he did not express any further discomfort with SC Taylor. He appeared to have a co-operative, indeed friendly, exchange with him thereafter until both officers departed, some 11 minutes later. I find that the accused’s claim that he was scared was false and motivated by a desire to avoid answering further questions relating to the Crescent Head incident.

414. I do not accept the defence’s submission as to how the accused’s expression of fear should be understood. I find that the evidence does establish a tendency by the accused to claim that he is in fear to manipulate or control a situation and to justify criminal activity. In other words; he had a tendency to express fear when he was not actually feeling afraid, as a tactic in these situations.

Conclusion as to whether there is a reasonable possibility that the accused believed the fatal injury or injuries were necessary in self-defence or defence of another

422. I return to the other evidence, in respect of the incident at Number 10. Mr Tozer was more than twice the accused’s age and not in good health. The accused had fighting skills. In contrast to the multiple injuries suffered by Mr Tozer, the only injuries incurred by the accused were to his knuckles and a toe on his right foot, which were from punching and kicking Mr Tozer.

423. I accept the submission made by counsel for the defence that it is possible for a person to be both angry and afraid. However, I am satisfied beyond reasonable doubt, by the extent of Mr Tozer’s injuries and the inferences that I have drawn from the CCTV audio, that the motive for the accused’s infliction of violence upon Mr Tozer was exclusively one of anger and that there is no reasonable possibility that he believed that the violence he inflicted on Mr Tozer, in particular, the fatal injury or injuries, was necessary for his defence.

424. The accused was in an angry and aggressive mood, as his intimidation of Mr Hunt established, and he was outraged that Mr Tozer had followed him home and confronted him on his property. As the accused started to assault Mr Tozer in this one-sided contest, it is apparent from the CCTV audio that his anger developed into sustained, focussed rage, which was unimpeded by the brief presence of a third party and Mr Tozer’s state of unconsciousness. The accused continued to bash Mr Tozer, unaware that his acts, words and sounds were being audio recorded. I am satisfied that there are marks on Mr Tozer’s polo shirt and T-shirt that were caused by the accused stomping on him. I note that in gaol calls 11 (17) and 14 (20), the accused conceded stomping and kicking Mr Tozer, as he also did in his admissions on the night of 28 July 2021. The accused’s established tendency to falsely claim he is afraid for specific tactical reasons adds support to this finding, although I find its use on this occasion is, in any event, independently established by the evidence surrounding the utterances to that effect.

425. It follows that I am also satisfied beyond reasonable doubt that the accused did not perpetrate the fatal injury or injuries on Mr Tozer from a belief that it was necessary to protect his mother. In any event, the accused knew she was at work downtown, and that she was not home. Her car was not there. He knew she was not expected home at that time, because he told Sgt Goddard that she worked at the Chinese “six hours every night”. At 8pm, he told Sgt Goddard that she would be knocking off work “soon”. Ms Williamson, reading from her statement to police dated 29 July 2021, said she finished work that night “as per normal” at 8:45pm.

Orders

426. As to the count that on 28 July 2021 at South West Rocks in the State of New South Wales, the accused did murder Mark Tozer, I find the accused guilty.

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Endnote

Decision last updated: 13 November 2024