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Supreme Court 13 February 2025

R v Tozer

[2025] NSWSC 50

Homicide
CRIME MANSLAUGHTER RETRIAL SENTENCING APPREHENDED BIAS CREDIBILITY OF OFFENDER

Citation: R v Tozer [2025] NSWSC 50
Court: Supreme Court of New South Wales
Date: 13 February 2025
Judge: Rothman J

Background

The offender had originally been charged with murder alongside a co-accused, Mr Bushell. The two were tried jointly before Rothman J, but the jury was discharged in relation to the offender's charge after disclosure failures by law enforcement and the Crown. The trial against the co-accused continued to verdict: not guilty of murder, but guilty of manslaughter.

Rothman J then sentenced the co-accused. In the course of those sentencing remarks, his Honour found that a witness (given the pseudonym Witness A) was truthful and reliable. Witness A had recounted a conversation with the offender. On the basis of that evidence, Rothman J stated that he did not accept, even on the balance of probabilities, that the offender had been truthful in what he told Witness A.

The offender's own trial was eventually listed before the same judge. On 12 February 2025, the offender pleaded not guilty to murder but guilty to manslaughter, which the Crown accepted. Sentencing proceedings commenced, and the question of whether the deceased had consented to the administration of the fatal drugs emerged as a live and contested issue. The offender then applied for Rothman J to disqualify himself on the ground of apprehended bias.

  • Whether a fair-minded observer might reasonably apprehend that Rothman J could not bring an impartial mind to the sentencing of the offender, given the credit findings made against the offender in the earlier co-accused sentencing.
  • Whether the capacity of the judge to put prior findings from his mind is sufficient to answer an apprehended bias application.
  • Whether the duty on judges to hear and determine allocated matters should override any disqualification in these circumstances.

Decision

Rothman J applied the well-established apprehended bias test: a judge should not sit to hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions involved. This principle derives from R v Watson; Ex parte Armstrong (1976) and was confirmed in Livesey v New South Wales Bar Association (1983). Critically, the test does not require actual bias or any demonstrated incapacity; it asks only whether a fair-minded observer might reasonably hold such an apprehension.

The Crown argued that a reasonable observer would understand that Supreme Court judges regularly handle different cases on different evidence and are capable of putting prior findings aside. Rothman J accepted that this was true as a matter of judicial capacity, but held that the submission addressed the wrong question. The relevant inquiry concerns the perception of the public and the parties, not the judge's subjective ability to be impartial.

His Honour identified the key concern as the overlap between the earlier credit findings and the sentencing issues now before the Court. Consent to the injection of the fatal drugs remained contested at sentence, and the credibility of the offender bore directly on that question. The earlier findings expressly rejecting the offender's truthfulness, made in the context of the same events, created a situation where a fair-minded observer might reasonably apprehend that those findings could colour the sentencing determination, including any findings on remorse.

Rothman J also acknowledged the High Court's caution, drawn from Re JRL; ex parte CJL (1986) and Re Polites; ex parte Hoyts (1991), that judicial officers must not take the easy option of disqualifying themselves without genuine grounds. Having applied that caution, his Honour nonetheless concluded that disqualification was warranted and recused himself from the sentencing hearing.

Orders Made

  • The offender's guilt of manslaughter, entered by plea and accepted by the Crown in full satisfaction of the indictment, was recorded.
  • The sentencing hearing was adjourned to 4 April 2025, to be heard and determined by a different Supreme Court judge as allocated by the Court.

Key Takeaways

  • The apprehended bias test, as confirmed in Livesey and R v Watson, focuses on the reasonable perception of a fair-minded observer, not on the actual capacity or impartiality of the judge concerned.
  • A finding that a non-party (here, a co-accused) was untruthful, made in earlier proceedings, can give rise to apprehended bias where the same person's credibility is a live issue in subsequent proceedings before the same judge.
  • Rothman J drew a clear distinction between a judge's capacity to be impartial and the public perception of independence: satisfying the former does not necessarily answer the latter.
  • Judicial officers carry a duty to hear and determine matters allocated to them and should not disqualify themselves without genuine grounds; this decision demonstrates that the duty yields where apprehended bias is properly established.
  • No finding of actual bias was made; the disqualification rested entirely on the reasonable apprehension that the earlier credit findings might affect the sentencing outcome.

Legislation and Cases Referenced

Legislation
- Evidence Act (NSW), s 191

Cases
- Livesey v New South Wales Bar Association (1983) 151 CLR 288; [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
- R v Bushell (No 20) [2023] NSWSC 1456