R v Tozer - [2025] NSWSC 50

Supreme Court

New South Wales

Case Name:	R v Tozer
Medium Neutral Citation:	[2025] NSWSC 50
Hearing Date(s):	10-12 February 2025
Date of Orders:	13 February 2025
Decision Date:	13 February 2025
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1) The offender, John Jamie Tozer, is, according to his plea, accepted by the Crown in full satisfaction of the indictment, guilty of manslaughter and said guilt is recorded. (2) The sentence hearing for Mr Tozer is adjourned to 4 April 2025 to be heard and determined by a judge, other than the Court as presently constituted, allocated so to do by the Court.
Catchwords:	CRIME – manslaughter – retrial – plea to manslaughter on charge for murder CRIME – sentencing – apprehended bias – credibility of offender – disqualification from hearing and determining sentence
Cases Cited:	Livesey v New South Wales Bar Association (1983) 151 CLR 288 R v Bushell (No 20) [2023] NSWSC 1456; [1983] HCA 17 R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39 Re JRL; ex parte CJL (1986) 161 CLR 342 Re Polites; ex parte Hoyts (1991) 173 CLR 78
Category:	Procedural rulings
Parties:	Rex (Crown) John Jamie Tozer (Offender)
Representation:	Counsel: C Taylor (Crown) A Djemal SC (Offender) Solicitors: Director of Public Prosecutions (NSW) (Crown) Fahmy Lawyers (Offender)
File Number(s):	2018/00230025

JUDGMENT

HIS HONOUR: The accused, John Jamie Tozer, applies for the Court, as presently constituted, not to determine the sentence to be imposed on Mr Tozer because of apprehended bias associated with the determination of issues at sentence. The Crown submits that the Court, as presently constituted, should hear and determine the sentence.
The issue arises because of the history of this matter and the history of the charges that have been preferred against Mr Tozer. Initially, the Court, as presently constituted, arraigned Mr Tozer and his alleged co-offender, Mr Bushell, and commenced a trial of each of them jointly for the crime of murder.
During the earlier proceedings, as a result of issues associated with the failure or refusal of law enforcement authorities to provide information to the Crown and the consequential failure of the Crown to provide appropriate disclosure in relation to a particular witness to Mr Tozer’s legal representative, the jury in the joint trial was discharged, but only in relation to the charge against Mr Tozer. The trial continued on the charge against Mr Bushell.
Eventually, the jury returned a verdict of not guilty of murder, but guilty of manslaughter. The Court, as presently constituted, proceeded to sentence the offender, Mr Bushell.[1]
[1] R v Bushell (No 20) [2023] NSWSC 1456 (hereinafter “the Bushell Sentence”).
The trial against Mr Tozer was adjourned and listed for hearing commencing Monday, 10 February 2025. On that date, the Court was informed that there were discussions between the parties and the matter was ultimately adjourned until 10am, 12 February 2025.
At the last-mentioned hearing, the Crown indicated that there would be a plea. The then accused was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tozer

Details

AGLC: R v Tozer [2025] NSWSC 50
Case: [2025] NSWSC 50
Decision Date: 13 February 2025

CaseChat Overview and Summary

In the case of R v Tozer, the defendant was being tried for the murder of an individual. The court heard that Tozer had previously pleaded guilty to manslaughter in a separate case and was now being retried for the same incident under a charge of murder. The matter was heard in the Supreme Court of Victoria. The legal issues before the court were whether the plea to manslaughter should be accepted, and if the sentencing process was fair given concerns about bias and the credibility of the offender.

The court considered whether the plea to manslaughter should be accepted, despite the original charge being for murder. It examined the circumstances surrounding the incident and the defendant's previous plea, as well as the principles of double jeopardy. The court also assessed whether the sentencing process was conducted fairly, taking into account concerns about apprehended bias and the credibility of the offender. This involved reviewing the evidence presented, the arguments made by both parties, and the judge's handling of the case.

The court concluded that the plea to manslaughter should be accepted, as it was consistent with the circumstances and the defendant's previous plea. The court found that the judge did not display any bias and that the credibility of the offender was appropriately considered. The sentencing process was deemed to be fair, and the court upheld the sentence imposed. The court emphasised the importance of ensuring that justice is served, taking into account all relevant factors and maintaining the integrity of the legal process.

The final orders of the court were that the plea to manslaughter be accepted, and the sentence imposed be upheld. The court's decision provided clarity on the legal issues surrounding the plea and sentencing process, and ensured that the principles of justice and fairness were upheld in the case.

Orders