R v Fuller - [2024] NSWSC 1420 - NSWSC 2024 case summary — Zoe

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R v Fuller

[2024] NSWSC 1420

Supreme Court of NSW|2024-09-23|Before: Ierace J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2024-09-23

Before

Ierace J

Source

Original judgment source is linked above.

Judgment (100 paragraphs)

[1]

Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Legal Aid NSW (Accused) File Number(s): 2021/216116

[2]

JUDGMENT

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)).
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.
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.

[11]

The intimidation incident

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.
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.
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.
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."
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.
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]".
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."
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.
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.'"
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.
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."
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 ..."
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.
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.

[13]

Albert Harrower Crescent and Number 10

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.
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.
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.
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.
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.

[14]

CCTV video and audio of Simpson Street and Number 10

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.
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.

[16]

The accused returns downtown

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.
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.
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.
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."
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."
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.

[18]

Mr Tozer gives chase to the accused

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."
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.
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.

[19]

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

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.
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.
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.

[21]

The CCTV audio and CCTV driveway video

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.

[22]

Was there a witness to the physical confrontation?

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.
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."
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.
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".
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.
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."
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.
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."
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.
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."

[23]

The post-mortem

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

[25]

Joel Cooper

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.'"
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.
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."
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."
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."
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."
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."
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."
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".

[26]

Clancey Irvine

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."
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.
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".
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.
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.

[27]

Jamie Young

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.'"
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."
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."
Mr Young noticed blood on the accused's right shoe.
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.
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."
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".

[29]

Daniel Ferrari

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.
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".
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."
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."
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.
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.

[32]

Senior Constable Andrew Black and Senior Constable Chloe Thompson

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.
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.
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".
A BWV activated by SC Thompson was also an exhibit. It captured the same conversation and continued for another few minutes beyond what was recorded by SC Black's BWV, including the accused saying, "He chased me in my driveway with a knife" and later, the following exchange with SC Thompson: "A. I have marks on me where he tried to stab me. I was walking … Q. Where? Where's the marks? Show me the marks? A. Just everywhere. Look. Q. There's no stab marks anywhere. A. I was walking home from there, he chased me from up town there's video footage of him chasing me from up town to my house. … I come home just to go to sleep and I end up getting staunched in my front yard. … I come back here he was in my front yard, jumped out of the car and started running at me …"

[33]

Admissions to Sergeant Damien Goddard and Sergeant Nicole Ward

Sergeants Goddard and Ward arrived at Number 10 at 8:32pm. Sgt Goddard noticed that the driver's door of the XR8 was open. Sgt Goddard activated his BWV and approached the accused, who was seated in the caged vehicle. He cautioned the accused, and asked him what had happened. The accused replied: "I wanted to go to the bottle-o. This mate up behind me, was calling me a white this and a white that and honking the horn up my ass. I've come all the way down Simpson Street to come home … I pull up out the front and this fella wants to fucken fight me. He pulls out a knife and what do I do mate? He pulled a knife so I started fighting and I was scared mate. I told him I was scared. I said to him I'm scared. Leave. Leave. Leave. And he wouldn't leave … I sped along Mitchell Street at ninety kilometres to get here so he didn't know where I was and he still fucken found me and then this shit happened."
When asked what happened then, the accused continued: "I pulled out my car … said, what do you think you were doing that for, you white cunt. He put his hand behind his back, I grew up, my dad's in South Kempsey, I ain't getting stabbed … I got scared. I trained boxing me whole life, the moment he come at me with his fucken thing, I hit him three or four times and then I made sure that he could not scare me again. Do you know what it's like to see your mum get bashed her whole life, and try and sit there and stop someone from that? My whole life mate I've been trying to stop this shit. I fucken, I've been so good for so long, I go to the bottle shop for my mum … Not even for me. I went to the bottle shop for my mum and then he follows me home and wants to have a fight. Like, are you serious? … like I understand that he's in that way over there but I thought I was getting stabbed. I thought I was going to die. Like, what are you do when someone comes at you with that?"
When asked how many times he hit Mr Tozer, the accused said, "three … Left, right and a head kick. Because I train kickboxing". He was asked, "Is this where it happened, just where he is now", referring to the location where Mr Tozer was found lying unconscious. The accused replied, "Just where he is now".
Sgt Goddard asked which bottle shop the accused went to. The accused replied, "I went to the crazy man, well not the crazy man bottle shop just up from Jack's and then I went to the drive thru". The accused said that he "told my mum I'd get her a six-pack because she works two jobs … I went to go do that and then that happened". He then repeated the words said to him at the drive through, which on his account were, "You white cunt, get out of the fucken drive thru, you white cunt, you white dog". He was asked, "So which drive thru was that mate?" and replied, "Mate, that was the bloody, Seabreeze drive thru and the drive thru at the crazy man". The following exchange ensued: "Q. But you, you said you went to two drive thru bottle shops, so you went to the Seabreeze first and you had the altercation with him, did you buy the beer at that place? A. No I didn't buy the beer at that place. Q. So you left. And then, which, which is the other bottle shop what's it called? The crazy A. The crazy mans …" … Q. So you walked into the bottle shop, the, what you referred to as the Crazy Man's Bottle shop. A. And they just being cheeky in the car. Q. So you walked in, grabbed your six pack? A. And they're just being cheeky mate. … Q. Was there anyone in the car with him? A. There was, I'm not sure … There was me and my puppy dog that went for a drive. Q. And you said there was a couple of them being cheeky. Was it just him or was there other people in the vehicle? A. To be honest I just heard them getting cheeky and I wasn't going to be looking around and stuff while they're driving."
The accused was asked, "Did you get the six pack of beer in the end mate, and you brought that home?" He replied: "Yeah I got the six pack of beer and it's there for my mum in the car. I couldn't even bring it inside because … I was more worried about getting him a pillow and making sure that he was okay, after everything. You know what I mean? I didn't want him to be hurt but mate, I thought I was getting stabbed."
When asked if his mother was home, he said she was at work at the Chinese restaurant, "she works ten hours at Big 4 and then like six hours at the Chinese every night". At 8pm, the accused said to Sgt Goddard, "mum's going to knock off work soon".
I note that Ms Williamson gave evidence that she finished work at 8:45pm that night. When she arrived at the intersection of Simpson Street and Albert Harrower Crescent, she saw police tape and spoke with police, who informed her that the accused was in custody.
Sgt Goddard asked the accused, "Just walk me through, what happened out the front here mate? He's obviously come out of the car and called you out". The accused replied: "He come out of the car and I thought he was going to stab me … Got out of the car with something and the moment I've seen him, I fucken hit him in the head with this hand, I elbowed him in the mouth and then because I've done kickboxing, I fucken roo booted him in the head that was it, he was down."
The accused indicated his right hand as the one with which he hit Mr Tozer in the head, his right elbow as the one he used to hit Mr Tozer in the mouth and his right foot as the one he used on Mr Tozer's head. And later: "So what do I do mate? He's saying he's going to stab me. What the fuck do I do? I probably shouldn't have done it. I could've ran away but mate, I was scared. I watched my dad get hit with a machete in the head, get a samurai sword straight through his knee and out his ass cheek, the samurai sword, straight through him. I'm not watching that happen again."
Sgt Goddard searched the accused, who was cooperative. The accused said, "And in this pocket I think there is a pen, because I try to write down everything that happens". The accused handed over the pen, which was in the left pocket of his shorts, and some pearls from the same pocket, saying, "it's just the pearls off me Nan's necklace, old mate ripped it off before so it doesn't matter". Sgt Goddard placed the broken necklace and other items in exhibit bags.
The accused referred to the presence of eyewitnesses during the incident. He said to Sgt Goddard, "if I had witnesses from across the road and stuff whose seen everything that happened, would I be able to bring them in with me to court?" Sgt Goddard asked him, "Do you know which neighbours saw it all?" The accused replied, "Yeah, well they seen him chase me into the driveway, do all that, me jump out try to be nice and then him pull a weapon and then things happen". When asked again which neighbours, he appeared to refer to various residences, saying: "Them neighbours over there, they called the police. Those neighbours over there, were there. Yeah so them neighbours over there seen the thing happen. Those neighbours over there seen the thing happen, they come out when he was assaulting me and then I defended myself and stuff like that so - yeah."
The accused added: "I was coming home, I got chased, in my driveway I defended myself in my driveway. You know, I didn't go out on the street to hurt him, I didn't do anything. He was on my driveway come into my property and tried to attack me, so. Like I was literally screaming for help to them. Like it's not like I went out of my way to bash him like? I got back into my driveway. Called for help."
Sgt Goddard asked the accused if he had any injuries. He replied, "Mate, look, can't even walk properly, look at my toe. Look at my hands mate. He bit me. He told me he was going to stab me". Sgt Goddard asked him, "Where'd he bite you?" The accused replied, "Look. He bit me all over the hands … Mate that's the, he bit me all over the hands, look - teeth. Teeth. Teeth. Teeth. Teeth".
The accused again referred to the threat he claimed to have heard, saying: "Yeah, he jumped out, said that he was going to bash me and stuff and ... What else do you do when your life is threatened? Especially when some fella says he's got a knife, like? … I know that old cuz tried to stab me so I ain't getting in any trouble."

[34]

Admissions to Detective Sergeant Barber and Detective Senior Constable Priest

Det Sgt Barber and Detective Senior Constable Priest (Det SC Priest) approached the residence at Number 10 while the accused was in the police van. Det SC Priest's BWV, which was an exhibit, was active. As they approached a small patio alongside the front door at 8:32pm, a screwdriver could be seen on the ground alongside a front door mat, which was later seized (the screwdriver).
The officers gained entry to the residence via the back door. The Rottweiler, which was in the back yard, was friendly towards them. They briefly searched the residence and from 8:43pm, they questioned the accused while he was in the back of the police vehicle. They asked him when his mother normally got home from work. He said, "I don't know, anywhere from 7:30 till 11:30".
The accused told them that the other man had tried to stab him ("Old mate tried to stab me"). He said, "my neighbours … they heard him chase me. They heard the whole thing". The following exchange occurred between Det Sgt Barber and the accused: "Q. What did he try to stab you with? A. I don't know. But when you see somebody jump out of the car with somethin' in their hand, you start to run away. Q. What did he have in his hand? A. I don't know, it was dark. Can you see if somebody's got somethin' in their hand runnin' at you through the dark? … I've got no idea. But when he tells you, You white cunt, I'm goin' to get you. And he's chasin' you - - - what are you [indiscernible] what do you think?"
A few minutes later, he said: "I was chased back here with a knife … I just went up town to go and get a six pack for my mum … and then this, I don't know what happened, he cut out behind me, and then he started hitting the horn at me. So I went 90ks down Mitchell Street which is speeding, I … sped down Mitchell Street to get away from him. 'Cause I thought he was goin' to try to hurt me."
When asked "Where was the first place you saw him?", the accused initially replied, "At the Chinese", explaining later that he meant a Chinese restaurant in South West Rocks where his mother worked. He was asked, "So when you say the Chinese, you say you were getting your drinks from there?" He replied, "No. My mum works at the Chinese. Just up from the Chinese … Yeah. They've got two bottle shops in South West Rocks".
The accused was again asked where he first saw the other man, and said: "It would have been in the main street of South West Rocks … when I pulled up, and he pulled up behind me to go into the bottle shop … and then when I went go take off …"
Later, the accused was asked which of the two bottle shops in South West Rocks he meant. He replied: "I would have went to the crazy man bottle shop … I'm pretty sure that was the one that I went to. And if not, it would have been the one at the Sea Breeze. But from what I remember, I just grabbed them from the crazy man's place."
The accused was asked: "Q. So when you said the Chinese restaurant before, did you park down there first of all or - - - A. No, no, no. My mum works at the Chinese … so I just drove up the top I asked her what she wanted. She wanted a six pack of beer, 'cause she's worked two jobs today so I told her I'd get her a six pack of beer after her big day and that. And then when I was comin' back here all that shit happened …"
The accused said he bought a six-pack of Carlton Dry, which was in the front of his car. He was asked where he was before he went to the bottle shop. He replied that he had visited his friend, Khan Mills, at Kempsey. The questioning continued: "Q. And so after you visited Khan Mills that's when you've gone to see your mum. Just let me know, if I've got anything wrong here, OK? A. Yeah. Q. So you went to see your mum, got her drink order, went to the bottle shop A. No I just texted Mum and asked her what she wanted … I went up there, went to go grab it, he was up my arse, makin' insults and stuff."
Later, Det Sgt Barber asked the accused: "Q. All right. I'm just taking you back to when he first started chasing you in the car … Do you remember what happened to make that happen? A. No. Q. What caused that? A. I was probably goin', like, 35, 40, up the hill next to the Peter Needs ... like, next to Peter Needs ... you've got that little hill, I … You know, like … Q. Up towards the little bottle shop? A. Yeah. I was goin', like, 30ks up there. And he was just right up my arse. And then I didn't think it was anything of it and then he was just screamin' out the window, You white cunt. You white cunt, this and that. My dad's Aboriginal. Q. Yes. OK. And did the, was this guy at the bottle shop at all? A. No. I've never seen him before."
I note that "Peter Needs" was a chemist that was on the corner of Memorial Avenue and Paragon Avenue, not far from the Chinese restaurant where Ms Williamson worked. The accused said the route of the chase as he tried to lose Mr Tozer was as follows: "I tried to go up Back Creek, and then turn left near the school. Like. And then go over behind the school, and then onto Mitchell Street but he followed me over like that little hill, onto Mitchell Street, and then followed me all the way up here …"
As to what occurred when they arrived at the accused's residence, he said the other man: "… comes scootin' in my driveway and jumped out and he, that's when I called for my neighbours … And then my neighbours started coming over and they witnessed the whole thing."
Later, he added: "I called my neighbours when I got out the front. And then he's out the front wantin' to do stuff. I got instantly scared. Called my dog because I thought my dog was gonna help me. And then, I've been trained to look after females my whole life. So I made sure that he couldn't hurt me or my mother and then I put a pillow underneath his head. I made sure he was OK. And I got them to call the police."
The accused said that when he arrived back home he was "scared as shit". He continued: "I jumped out of my car, and I thought some black fellow was goin' to stab me. What else, like, what else do you think when some fellow's sittin' there chasin' you down, You white dog. I'm goin' to get you. What the hell, what else do you think? … he jumped out of the car, he come towards me, with his hand. I thought he was goin' to stab me … I punched him with this hand [indicates left hand], I punched him with this hand [indicates right hand] because I've practised boxing and stuff my whole life. I wanted him to get away from me and then when he ran at me, I kicked him, and then he laid on the ground."
I note that the accused appeared to be imitating his attacker, when he said, "You white dog. I'm goin' to get you". The accused was asked where on the body he kicked the other man. He replied: "Mate, when you're trained Muay Thai, where do you kick? … You kick anywhere from the feet to the head … [the kick] struck somewhere in between his foot and his head. All I know is that I was scared, and I was screamin' for my dog and my neighbours … I was screamin' for them and askin' for help."
The accused later indicated that he kicked the other man with his right leg. When asked what happened when the man fell, he said: "I'm not sure, mate, to be honest. I was lookin' the other way, tryin' to run. When that stuff happens you don't try to stay there. I was tryin' to get out of there and lock my house. I don't want to stay out the front and get in the middle of that shit and have the whole mission rock up to my house. I just wanted to fuckin' get inside and get my mum her beer, and just sit there."
The following exchange occurred between the accused and Det Sgt Barber: "A. I hit him twice. I kicked him, and then I got out of there. Q. And where was that? Where did that happen at? A. Just out the front there, so he could get off my property and get away from me. That's why I was calling them to call the police. Q. All right. Did you get back inside the house? A. I couldn't get back inside the house because he had, I was worried that he was gonna bloody break something, so … I stood at my front door to make sure that nobody can come inside my house and break anything. … Q. OK. Did he go inside your house at all? A. No. But look at him, he's on my front driveway. Q. No, no, no, I'm just talking about your house though. A. No, but he went on my front driveway and walked halfway up to my front door sayin' derogative comments. Sayin' he was goin' to hurt me."
Towards the end of the questioning, the accused gave a different account of when the neighbours were present. He said: "But he come to my mother's house, and I tried to tell him, Please, leave. Please, leave. He wanted to have a fight. I called for the neighbours. By the time the neighbours got over here he was on the ground and I was puttin' a pillow under his head, tryin' to make sure he was OK."

[36]

The formal police interview: Detective Sergeant Barber and Detective Senior Constable Dingle

The formal police interview occurred at Kempsey Police Station, commencing at 5:11am on 29 July 2021. It was conducted by Det Sgt Barber and Detective Senior Constable Robert Dingle (Det SC Dingle). The accused was asked when he first came into contact with the other man, to which he replied: "I was driving down Mitchell Street … And that was when he started following me and I went to go up to the bottle shop. I didn't go to the bottle shop because he was following me and stuff. I remember I was going to go, but I just ended up doing laps around South West Rocks trying to lose this car that was following me … I full pulled over to the side of the road and turned my lights off … He come up my arse, honking his horn, turning his lights on and stuff. You white cunt, you, and just screaming stuff at me and I don't, didn't even understand what was happening. Like, I just literally got straight home, jumped out of my car, called for my dog, 'cause I thought if he seen my puppy dog, he might run the other way, but … he didn't."
The accused was asked what it was that Mr Tozer was yelling at him: "… he just kept saying, 'You white cunt.' He just kept saying, 'What are you doing? What are you doing?' And I couldn't understand it, because I wasn't doing nothing. I was just driving."
The accused said, "He followed me all the way to my house, to the point I was scared shitless". The accused said that when he arrived home, "I jumped out and I ran … To my front door to go and get my dog, get my, like, you know, and my neighbours were across the road". He later explained that after he got his dog, a Rottweiler: "I was coming back to my car, because my car was still fully opened. You know. I just jumped out of the car. Keys were still in the ignition … I just literally ran, so I walked back to the car …"
The accused said that the other man had pulled up across his driveway, "I parked in my drive-way and he parked me in, so I couldn't drive anywhere". As to what then happened, the accused said: "I seen that he, the front seat of his car was open. I seen he grabbed something and as soon as he went to come out and that, my first instinct was just to punch him and punch him again, and then I kicked him so he'd stay away from me and then that was when the neighbours come over from across the road and he's, when I'd kicked him he'd fallen and he's, like, on the cement and his head had hit the gutter, so that was why I'd grabbed the, like, the stuff to put underneath his head, you know, because I was worried that he might've hit his head hard or something. You know, and all the neighbours were worried."
As to where he and Mr Tozer were when he punched and kicked Mr Tozer, the accused said, "Next to his car that was parked in my driveway". As to his use of force on Mr Tozer, he said: "Come at me with a weapon. I've trained kickboxing and boxing my whole life. Hit him with a left. I hit him with a right and I head-kicked him. He hit the ground. I put a pillow underneath his head and that was it ... I only hit him three times. … It was dark and I was scared. Like, it all happened like this, you know. He come at me with something. I went left, right, kicked him in the head and screamed help, sat just screaming help."
As to the extent of the injuries he thought he had inflicted on Mr Tozer, he said: "I just thought he was knocked out. Like, I watch a lot of boxing and I grew up boxing and kickboxing and stuff. Like, you can tell when someone gets knocked out … Like, I've been knocked out heaps of times in the ring, so I just thought that he was knocked out."
The accused said that he felt fear as a result of being followed by Mr Tozer and his belief that Mr Tozer had a weapon. He also referred to his actions as defending his property rights against a trespasser: "I'm just someone who tried to defend himself on his own property from someone trespassing …"
He said that there were eyewitnesses, but would not identify them: "A. I got home. I tried to get my dog. I yelled for my neighbours. He chased me with a weapon and now I'm in here. Q. O.K. Did your neighbours come out? A. Yeah. My neighbours were there. They watched the whole thing. That's why my mum will be talking to the neighbours tomorrow, because they seen what happened. Q. O.K. And those neighbours, do you know their names? A No. … Q. Do you know which house they were from, for instance, or - - - A. Three or four houses. Q. Ah hmm. And did they help? A. And as I said, that's something that me and my mum, we will go and talk to them, you know. I didn't have to make any comments in this. I'm making comments … to make sure that youse guys are happy, not for my benefit, so youse guys are happy. … Q. All right. And did you have, did you say anything to the neighbours when they came over about what had happened? A. I said help ... I said, 'Help me. Help me stop him.' So many fucken times, but no one would listen. Q. And so did you tell the neighbours what, what, what he had, what had happened? A He was chasing me. There was, like, there was a, fifteen seconds ... Not even that … Ten seconds, fifteen seconds. Literally, I walked to the front door, got back, was screaming out for help as soon as I got out of the car. Neighbours were pretty much there."
Towards the end of the interview, the accused gave a different version of his and Mr Tozer's movements when they first arrived at the property: "Q. All right. I just need to just try to understand something clearly. Did, did this male, this man ever go up onto your porch? A Yes. No. Not onto my porch, but he parked across my drive-way. So he jumped out and was, when I was going inside, he was screaming and following me inside. So he probably would've got, I don't know, halfway to my door and that's when I said, 'Nova.' And I screamed out to the dog and I opened the door and the dog ran out. Q. O.K. So how close up to your, the front porch did it get? A There's the door. Here's about the porch. It's not very far at all. He was almost in my door and stuff and that was when I ran around back to the car and stuff and that was when I was screaming for help, you know. As I said, I screamed help for more times than I ever should."
The accused appeared to indicate a distance with his hands of about a metre, between the door and porch. It is difficult to understand what the accused was attempting to communicate by the gesture, since it was unresponsive to the question, and the front door was on the porch.
As to what Mr Tozer was holding, the accused said: "A. … so I walked back to the car and that was when he jumped out with the, you know, I don't know what the fuck it was. First thing I thought in my head was a knife, just because I know what it's like around here and shit. Q. Did you see, um, did you see any weapon that he was holding? A. I seen something. Bloody oath, I seen something. That's, I wouldn't have got upset and scared if he wasn't holding something." Q. Ah hmm. What did it look like? What could you see? A. It was dark. I couldn't really see much, you know what I mean? I could see this big dude coming at me swinging something."
Det Sgt Barber asked the accused: "Q. Did you know about a screwdriver? Did you know anything that? A. No. Q. O.K. No, nothing about that. A. A screwdriver. Q. Yeah. I was just going to ask you some questions about that. A. No. Maybe there, there was a screwdriver in my car, 'cause I just replaced the fuel pump module, but apart from that, and I've got a toolkit in my car, but, no. Nothing about a screwdriver. Why is that? Q. There was just a screwdriver, like, like, at the scene and I just was wondering if you knew anything about it. A. No. As I said, it could've been from when I was working on my car the last couple of days. My car only just started working, well, today's a, another day. Tuesday, I got my car working. So my backseat was out of my car. I had the fuel pump module taken out, 'cause the fuel filter and all that all stuffed up. … Q. What, describe that screwdriver, your, your screwdriver. A. Fuck me. I've got that many screwdrivers, aye. I wouldn't even know. Q. O.K. A. Like, if anything, it might be a little yellow one with, like, like, you know the little fuse, like, the little fuse light ones. But then I don't even think I'm missing any, like, to be honest. I don't think I'm missing any screwdrivers. I'd have to go home and look through my kits and stuff, sorry. … A. Most of the mechanic's stuff's all inside in the bags."
The accused was reminded of his earlier answer which was that, at the time he first had contact with the other man, he was driving to get some beers. The following exchange occurred: "Q. … And you mentioned you were just going to get some, some beers or some … A. Yeah. Well, I was going to go get some beers for mum and then I just remember that, that mum'd be home soon and to not even worry about it. Q. Did you end up making it to the bottle shop? A. Fuck, I think I made it to the bottle shop, but then I was that scared too that I don't even remember, you know what I mean? There was a can on my seat for mum for when she got home, because I know that she works two jobs and she likes to have a drink when she gets home … but I can't really remember, you know what I mean? Like, I was just pretty much, it sounds bad, but I was just pretty much speeding and trying to run away from that car from … Mitchell Street in South West Rocks all the way around the whole town. So I've pretty much done big laps around the whole town getting chased by this car. So in the end there's probably cans underneath my seat."

[41]

Forensic examination of the accused, his clothing and footwear

A forensic procedure was conducted on the accused between 3am and 3:50am on 29 July 2021, including the collection of swabs from the accused's hands and legs for DNA analysis. The DNA analysis revealed that Mr Tozer could not be excluded as a contributor to swabs taken from the thumb and little finger of the accused's left hand, the index, ring and little fingers of his right hand, and his left leg. Mr Tozer was a major contributor to swabs taken from the accused's right hand thumb.
The accused's shoes and socks were seized while he was in the police van at Number 10. Photographs subsequently taken of his shoes reveal dark discolouration over all their surfaces. Photographs of his socks, which are white, show small amounts of discolouration, on one sock (sock 1), which was determined to be caused by blood, and extensive discolouration on the other around the toe area (sock 2), also caused by blood. There was no evidence as to which foot each sock was removed from. A DNA tape lift from the extensive area of blood on sock 2 disclosed it to have the same profile as Mr Tozer.
On forensic examination, the accused's shoes were found to have a significant amount of bloodstaining. On the right shoe, the areas where the bloodstaining was found included the front, rear, top, medial side, lateral side and the sole. A blood swab from the top of the right shoe disclosed that the DNA recovered had the same profile as Mr Tozer. Five blood swabs were taken from the sole of the right shoe, being the heel, toe, medial (arch) area, lateral (arch) area, and the ball or centre area of the sole. All were found to have the same profile as Mr Tozer. The accused could not be excluded as a minor contributor to two of the swabs.
The area of bloodstaining on the accused's left shoe included the top, medial side, lateral side and sole. A blood swab from the medial side of the left shoe disclosed that the DNA recovered had the same profile as Mr Tozer. Five areas of the sole of the left shoe, approximating the same areas as those tested on the sole of the right shoe, were subjected to blood swabs. Mr Tozer was found to be a major contributor to two of the areas and could not be excluded as a contributor to the remaining three, which were from the heel and toe, and the lateral (arch) area.
Following his arrest, the accused was photographed, then his clothing was seized and separately photographed. Blood was located on the front and rear of the accused's shorts, particularly on the right front side. A trace DNA tape lift from the rear inner waistband, that was selected in order to maximise the prospect of obtaining the DNA of the person who normally wore the shorts, obtained a mixture of at least two individuals. Mr Tozer and the accused could not be excluded. A blood swatch from the area of the front right side of the shorts had the same profile as the accused.
The shirt that the accused was putting on at the time of his arrest was examined. Bloodstains were located on its front and rear. A trace DNA lift from the rear inner neck area was a mixture of at least three individuals. The major contributor had the same profile as the accused and Mr Tozer could not be excluded as the minor contributor. A blood swatch from the shirt had the same profile as the accused.

[44]

A comparison of the accused's shoe soles and impressions on Mr Tozer's polo shirt and T-shirt

Acting Sergeant Aleisha Vercoe (Acting Sgt Vercoe), a crime scene officer, conducted a number of experiments in an attempt to enhance and compare marks on the polo shirt with the pattern on the soles of the accused's right shoe. The experiments involved the capturing of infrared images of the polo shirt that better revealed the marks upon it, in particular, blood deposits. Another crime scene officer, Louise Craft, had access to the shoes and the polo shirt images that had been prepared by Acting Sgt Vercoe, and conducted a comparison of those items, utilising silicon spray on the sole of the right shoe to create an impression of its pattern and Photoshop software to enhance contrast in the images.
Ms Craft's evidence was that she discerned three types of patterns in different parts of the sole of the right shoe, which she described as tracks, pentagon shapes and a V-shaped impression. She was able to discern all three patterns on an enhanced part of the polo shirt, left on it by a transfer of blood from a shoe "of a similar size and tread pattern" as the accused's right shoe. This was demonstrated in a chart comparing the sole of the accused's shoe with the impressions on the polo shirt, which were tendered into evidence.
Ms Craft undertook a similar experiment with the T-shirt and the right shoe, and produced a comparison chart on which, in her opinion, the tracks pattern could be discerned on enhanced (infrared) images of the T-shirt. She concluded: "A. I could make the determination that the impression on the shirt had been left by a shoe with similar class characteristics to the right shoe of Mr Fuller. Q. Again, was it your understanding that the - and consistent with the use of the infrared photography - marks on the Pink Floyd t-shirt were marks that were left in blood? A. That's correct."
The images on the T-shirt between the track pattern and the other two patterns are further apart than on the shoe. When asked if there was any observation she would make about that, Ms Craft replied: "A. It's difficult being a moveable surface. The t-shirt was not flat when the impressions were made. They could be due to multiple impressions or they could just be how the shirt was positioned on [Mr Tozer's] body. Q. In which case, it could be just the one impression? A. It's possible, yes."

[45]

The damage to the right side mirror of the XR8

An examination of the XR8 disclosed that its right side mirror was severely damaged. The casing was hanging down at 90 degrees to the ground. The mirror and the plastic panel that held it in place, and the exterior covering for the casing, were missing. On 30 July 2021, police recovered fractured pieces of white plastic from the street parking strip between the driveway of the United service station and Gregory Street, that is, where the XR8 was parked on the evening of 28 July 2021. A police crime scene officer determined that the pieces of plastic fitted the back of the casing of the damaged XR8 side mirror.
Det SC Priest's BWV was operating as he walked up the driveway of Number 10 at 8:32pm on 28 July 2021, passing the Getz on its left side. The left side mirror of the Getz is seen to be folded back against the body of the car. Later that evening, the Getz was moved to a secure police holding yard and forensically examined on 30 July 2021. A vehicle side mirror holding panel (the mirror panel), with a piece of the mirror still in place, was lying on the middle of the back seat. Some small fragments of mirror were located in the rear of the Getz, including in the space between the door and the seat on the rear passenger side. A police crime scene officer found that the mirror panel fitted inside the casing of the right side mirror of the XR8, including an alignment of the broken edges of the plastic joint that held it in place. That is, the pieces of plastic located on Gregory Street outside the United service station and the mirror panel located in the rear seat of the Getz were all from the right side mirror of the XR8.
The height from the ground of the XR8 damaged side mirror and the left side mirror of the Getz were measured and found to be 90cm and 93cm respectively.
A DNA profile from a blood stain on the bottom edge of the mirror panel had the same profile as that of the accused.
In the course of evidence about the Getz left side mirror, there was considerable focus on a white mark that can be seen on photos taken of that mirror in its folded-back position. In those photographs, white paint-like smears can be seen on that part of the mirror casing that, in the extended position, would be flat against the mirror fixing/anchoring mechanism. Connie Adalba, a forensic chemist employed by the Forensic and Analytical Science Service of NSW Health (FASS), gave evidence that the white paint-like smears on the Getz side mirror did not share the same origin as the white paint from the pieces of plastic located on Gregory Street outside the United service station, which belonged to the XR8 mirror casing.
I am satisfied that the white paint-like smears on the Getz side mirror could not have been made during, or as a consequence of, an impact as alleged in the Crown case. It is obvious that if the side mirrors did make contact while the Getz side-swiped the XR8 from behind while driving up Gregory Street, the Getz mirror casing, which is black, would have been impacted by the rim of the XR8 side mirror panel, which is also black.

[47]

The screwdriver

Acting Sgt Vercoe attended Number 10 on the evening of 28 July 2021. She photographed a bloodstain on the bonnet of the Jeep, a bloodstain on the garage door and drip stains on the steps leading up to the patio. They were subsequently found to have the same DNA as the accused. Bloodstains on the exterior front door handle and door jamb were found to have DNA of at least two individuals, of which the accused was the major contributor.
Acting Sgt Vercoe photographed the screwdriver in situ and seized it. She subsequently examined it, which she described as a black and yellow-handled Phillips-head screwdriver. The screwdriver was measured to be 200mm long with a 100mm handle. There is a black tip which is 15mm long. The screwdriver itself was also an exhibit. It is apparent from photographs of the screwdriver taken at the time of Acting Sgt Vercoe's forensic examination that it was not in a new condition, having dark smudge marks on the handle and multiple rust spots on the shaft.
Acting Sgt Vercoe located two areas of fingerprint ridge detail on the handle, which were not sufficiently detailed to enable fingerprint comparisons to be made. A blood swab of two small bloodstains on the end of the handle yielded DNA from at least two individuals, the major contributor being Mr Tozer. The accused could not be excluded as the minor contributor. A trace DNA swab from the tip of the screwdriver was unsuitable for comparison. A trace DNA swab from the handle, taken by Acting Sgt Vercoe utilising what she described as her "best attempts at avoiding the blood staining", yielded a mixture that originated from at least three individuals, the major contributor being Mr Tozer. The accused could not be excluded as the minor contributor. Acting Sgt Vercoe explained that her reason for attempting to avoid blood stains with these trace DNA swabs was: "I was looking to sample trace DNA, so what perhaps might be, you know, skin cells from potentially someone who was holding it, as opposed to someone who had bled onto it. So I was trying to separate those as best I could."
In cross-examination, Acting Sgt Vercoe was asked: "Q. All right. And prior to taking that tape lift, I take it that you examined that surface very carefully to ensure that there was no blood that was visible? A. I certainly looked over it in an attempt to avoid any blood before taking the tape lift, yes. Q. Because that's the very point of taking the tape lift: you'e looking for an area which would not be contaminated with blood? A. Correct. Q. And I take it you were confident, when you took the tape lift, that you had performed that task, as you would expect you would? A. To the best of my knowledge, yes."
Virginia Friedman, the analyst employed by FASS who carried out the DNA analyses of the samples submitted by police as part of their investigation, was called by the Crown to give evidence as to the DNA tape lift from the handle of the screwdriver. She confirmed her initial result, as noted above. She also confirmed that in her report she had said that statistics could be provided, if requested.
In a supplementary report dated 15 February 2024, Ms Friedman provided the statistics, which referred to the mixture being from at least four individuals. When asked what caused the change from three individuals, she said: "When we conducted further testing in order to provide statistics, we analysed more DNA from the original extract of DNA that was recovered from the sample from the screwdriver. When we analysed that re extraction or re amplification, we could see that there was an additional contributor that did not appear in the original DNA testing, probably due to the smaller amount of DNA that was tested."
Ms Friedman's supplementary report also differed from her initial report as to whether there was a major contributor. She said: "We will nominate someone as a major contributor if their profile can be clearly determined above the level of the additional contributors. In the additional testing, that distinction between the major and the minor contributors was not as clear as previously determined and so we just reported Mr Tozer and Mr Fuller as not being able to be excluded."
Ms Friedman was asked: "Q. The likelihood ratios that indicate that it is highly likely that Mark Tozer and Connor Fuller contributed to that DNA that was found on the handle of the screwdriver, does that tell us anything about who may have handled the screwdriver or how the DNA got there? A. No, unfortunately not … DNA is able to be deposited on the surface of an item through direct transfer, such as if I pick up a glass, if I have DNA bearing cells on the surface of my hand, I can transfer those onto the surface of the glass through a process known as direct contact. Another form of direct contact is if I am sitting here talking, I can cough, I can sneeze, and small bits of fluid might be ejected from my mouth or my nose and land on the desk. That's also a form of direct transfer because nothing has come between myself and the desk in the transfer of that DNA. Secondary transfer occurs when DNA is transferred from one surface through an intermediary to another. An example of that - the simplest example might be if you and I were to shake hands, you might transfer some of your DNA onto my hand, I might transfer some of mine onto yours. For example, let's say we've shaken hands, some of your DNA is transferred onto my hand, I then go and pick up a glass of water, I could transfer your DNA onto that glass of water. If your DNA is recovered from that glass, it means that - if - okay, your DNA is transferred onto the glass even though you haven't directly had contact with that glass. I am the intermediary through which your DNA has been transferred from one surface to another and that's a form of secondary transfer. Simply recovering from an item, we are unable to tell whether the DNA got there through primary or secondary transfer."
Ms Friedman was asked whether, given that some of the swabs taken from the accused's fingers detected DNA to which Mr Tozer had contributed, Mr Tozer's DNA could have been transferred to the screwdriver handle by the accused subsequently holding the screwdriver. She replied, "Yes, that's one explanation for Mr Tozer's DNA being recovered on an item". She also agreed that another possibility was that Mr Tozer could have transferred the accused's DNA onto the screwdriver without the accused having ever touched it.

[49]

The scrunched-up shirt

After the storm, Acting Sgt Vercoe located a shirt on the nature strip outside Number 10, and photographed it in situ. It appears scrunched up, lying on the grass. The shirt was in an area that was not protected from the storm, so that rainwater may have caused blood stains on the shirt to spread. Acting Sgt Vercoe recorded her subsequent examination of the shirt as follows: "Coagulated blood and biological matter was located on the inside surface of the shirt, and the right shoulder area and the lower rear right of the shirt. Large areas of bloodstaining were located over the outside surface of the shirt. An area of bloodstain on the front of the shirt was identified. A test was performed that confirmed it was human blood. A small hole on the front right side of the shirt, near the buttons, was identified. The hole was approximately 2mm x 3mm in size."
A trace DNA tape lift from the inner left shoulder/back area of the shirt, which was selected because it did not have apparent blood stains, was found to have DNA from at least three individuals. The major contributor had the same profile as Mr Tozer and the accused could not be excluded as the minor contributor. A blood swatch from the shirt had the same DNA profile as Mr Tozer.
The evidence of the occupants of 16 Simpson Street was to the effect that when the accused appeared at their side gate shortly before 7pm, he was stripped to the waist. It is apparent from the BWV of SC Black that when he arrested the accused at 7:28pm, he was putting on a long-sleeved shirt. An inference might be drawn that, since Mr Tozer did not appear to be missing any upper clothing, the accused had been wearing the scrunched-up shirt that was located by Acting Sgt Vercoe, during the confrontation, and took it off and discarded it on the lawn before he went to 16 Simpson Street.
However, the CCTV that captured images of the accused at South West Rocks Cellars between 6:29 and 6:34pm shows him wearing a collared, button-up shirt that appears plain in colour, possibly green or khaki, with short sleeves. I would describe the scrunched-up shirt, gauged from photographs taken when it was forensically examined, as a patterned shirt with predominantly red colours, and short sleeves. While this suggests that the shirts are not one and the same, I note photographs taken of a shirt on the back of a chair in the residence of Number 10 that Det Sgt Barber described as having the same appearance. In the photograph, which was taken some metres from the shirt, the colours blur and appear to be a uniform dull colour. That being so, I draw an inference that the scrunched up shirt is the one that the accused is seen to wear outside South West Rocks Cellars ten minutes before the confrontation and, likely, during, at least part of, the physical confrontation.

[51]

Examination of the XR8

The XR8 had a V8 engine, which was very loud. The car had passed a vehicle inspection for registration renewal the day before, on 27 July 2021.
Acting Sgt Vercoe commenced her forensic examination of the XR8 on the evening of 28 July 2021 where it was parked at Number 10, and continued it on subsequent dates after it was moved to a secure police location. A mobile phone was seen in the area between the two front seats and a set of keys, including a Ford car key, were on the driver's seat. Subsequent testing of the Ford car key for DNA disclosed a mixture from at least two individuals, the major contributor being Mr Tozer.
Three small bloodstains were located on the right side of the rear of the XR8; one towards the top of the boot lid and two on the corner of the bumper bar. One of those stains on the bumper bar was tested and found to have the same DNA profile as the accused. Blood swabs were taken from blood stains that were located in the area of the driver's door handle and the roof immediately above the driver's door. The driver's door handle swab had the same DNA profile as the accused. The roof swab disclosed DNA that originated from two individuals. The accused and Mr Tozer could not be excluded as contributors. A fingerprint analysis of a latent palm print on the external side of the driver's door glass identified it as a left palm print of the accused.
A drip stain, that was located on the car floor alongside the right side rail of the driver's seat, was also found to have the same DNA profile as the accused. Bloodstains were located near the ignition barrel, indicator arm, fuel release button and boot release button, which were found to have the DNA of at least two individuals, the major contributor being the accused. Mr Tozer could not be excluded as the minor contributor.
A photograph taken by Acting Sgt Vercoe of the contents of the boot showed a black backpack and another bag, which are consistent in appearance with the bags seen to be carried by Mr Tozer as he walked away from the entrance to the cashier area of the United Service Station that night.
Mr Tozer's wife gave evidence that to her knowledge he did not have a knife in the car.

[56]

The calls referring to the screwdriver

In seven of the calls (calls 1 (1), 4 (6), 8 (13), 9 (14), 10 (16), 13 (19) and 14 (20)), the accused refers to the nature of the weapon that he says he believed Mr Tozer was holding, in particular, that it was, or may have been, the screwdriver (the screwdriver calls).
In gaol call 1 (1), on 20 August 2021, the accused is heard to state to his father: "I'm not sure if he had a knife or a screwdriver or a pen or whatever the fuck it was, but he jumped out the car with somethin', and I wasn't gettin' whacked."
In gaol call 4 (6), on 4 September 2021, the accused is heard to state to one of his brothers: "Accused: You know, and that's the way it should go, old cuz want to come at me with a shank and fuckin' … You expect me to do nothing? And you know what I mean, like, bro, the way that we were raised, bro, any cunt comes at us with a shank, what did he expect to happen? Might have been a screwdriver. Might have just been a screwdriver, but it's still a shank. I ain't getting screw, I ain't getting screwdriver'd for no cunt, bruz you know … Look what happened to Dad, Dad got the fuck stabbed out of him Brother: Exactly ... someone comes to your house and threatens like you in your safe zone bruz you, if they don't let you walk away, you deal with it. Accused: I tried to walk away, bruh, tried walk away, tried driving away. This cunt just followed me. Followed me and followed me, and followed me."
In gaol call 8 (13), on 20 October 2022, the accused said to his father: "I fucking got scared for my life 'cause old cuz come at me with a screwdriver, and how's this, his DNA is on the screwdriver. You know, he's got DNA on the screwdriver. It's not contact DNA where, like, I touched him and then touched the fucking thing, like, nuh. His DNA's the lead DNA on it. His fingerprints are on it and everything's on this screwdriver, you know what I mean. And I've got … just contact DNA, because fucking I threw it away, you know what I mean. That's why afterwards I was looking around frantically for it but I couldn't remember where the fuck it was, you know what I mean, 'cause everything … that just happened I was fucking, you know what I mean. You just fucking survive and then afterwards, like fuck, I need to fucking make sure this fella's all right, you know what I mean."
Similarly in gaol call 14 (20), which was made on 2 August 2023 to his mother, the accused said that he was defending himself and that the other man had a knife which had the other man's DNA "all over the knife, but it was a screwdriver".
In gaol calls 9 (14) and 13 (19), the accused refers to the screwdriver having Mr Tozer's DNA on it and the prosecution being unable to prove that it was not the weapon used against him.
In gaol call 10 (16), the accused said to a friend: "Friend: Did he have … he had a knife? I thought, uh, I got told he had a bat. Accused: Nuh. Friend: Someone told me he had a … Accused: Well, it found out, it ended up it was a screwdriver, but I thought it was a blade. It looked like, it was middle of the, uh, like, it was night time bruz, I thought it was a blade, you know what I mean,"

[58]

The calls referring to the circumstances of the confrontation

In gaol call 6 (9), which was with his father on 30 March 2022, by which time he was aware there was an audio recording of the confrontation, the accused stated that his memory of what occurred was imperfect, but that Mr Tozer had said that he was going to kill him: "I can barely fucking remember how it all, it all happened in, like, a fuckin', legit, a blink of a fuckin' eye, like … even now, now trying to think about it, like, fuck. But he jumped out … of the car … and said he was gunna kill me. You know? I screamed for help, so there's all these things that are on my side you know? Like I've just got to listen to it first."
In gaol call 14 (20), which was on 2 August 2023 with his mother, by which time the accused had heard the audio of the confrontation, he conceded that he may have kicked the deceased while the deceased was on the ground, including by kicking him on his chest, but he did not recall. Because "I was in a state of … fear, and shock, and I was scared for my life". And later: "I may have kicked him on the chest when we were scufflin' on the ground, but that's the thing ... I can't remember, Mum. I was in a state, I was just defendin' myself. I didn't want to die."
In call 15 (21), which was on 2 August 2023 with his mother, a matter of minutes after the previous call, the accused gave a relatively detailed account of what occurred. He said: "I pulled up at home after being chased by him. He came at me with a … something in his hand, I thought was a knife, and I'm gunna say, and I'm gunna put in brackets, A screwdriver. I'm gunna say, He approached me. We got to the end of my car. He said that he would leave. I walked behind him, making sure he would leave. He turned around at the back of my car, came back towards me. I got scared for my life, punch, punch, kick. And then I can't really remember. I remember that being it. And then they're sayin' that it kept goin'. And I'm, Yes, he went to jump back up, OK. They go, He was knocked out but. I said, Yeah, but people get knocked out and jump back up. Haven't you seen boxin', you know? So he got knocked out. I waited. He jumped up. And then I went back, you know? He jumped up, took a few steps towards me. We had another fight, you know? I'll say, like, I'm just gunna say it's all a blur, but he jumped back up, and the only reason the assault continued was because I feared for my safety. I say I have no recollection of how many punches were thrown apart from the first few. All I can remember is him getting up and me wanting to be safe, you know? I need to just word that in a different way. I'm, like … 'Cause I can't say that the assault didn't go for that long. All I'm gunna say is that I didn't know that, you know … I can't even really remember him even gettin', like, you know, I can't even remember him fuckin' getting' up. You know what I mean? I can't remember fuckin', you know, all I can remember is throwin' a few fuckin' punches, him hittin' the ground, and then fuckin' me walkin' around for a bit, you know? I started fuckin' yellin' at him, you know? He fuckin' went to get back up. We had another altercation. That stopped. I looked for my phone to call the police. I sat on the porch, waiting for him to get up and walk away, and after a substantial amount of time of him not getting up, and me not finding my phone, I went and got help. 'Cause they're saying the assault went for a prolonged amount of time. Yes, there was a prolonged amount of time between the start of the incident and when the ambulance was called. But half of that time, if not more, was spent looking for the phone, to call the ambulance, and to also sit and wait for him to get up and leave. I did not think he was in that state. I did not realise the extent of damage that I did, which is the exact thing I told the police. I didn't realise the, the extent of damage I did could happen through that many punches. So I waited … I waited, I waited until he got up and walked away, 'cause I thought he was knocked out, but when he didn't, I knew that there was something wrong, and I got help. I also tried to render first aid by putting a thing on his head and pulling, she's gone, Why was his pants down? I said, I don't know. I also told tried pullin' his pants up because I didn't want him to be indecent … when the ambulance came."
In call 16 (22), which was with his mother on 6 August 2023, the accused said: "He chased me, we got into a fight, I hit him a couple of times, and that was it. 'cause I can remember him getting up and I remember us getting into another altercation, but I can't really remember."
In call 17 (23), which was with his mother on 8 August 2023, the accused said: "I can't remember him getting back up but. I thought he might have got back up, but I can't remember him getting back up. I can't remember what happened, I hit him a few times, that's all I can remember. And it's not like I just … bashed him relentlessly while he was unconscious, 'cause he was making noise for fucking half the time. And I was making noise saying, I was scared for my safety too. So fuck me dead, it's not just like it was a fucking total bashing, I'm screaming saying I'm scared for my safety too."
In call 18 (24), on 10 August 2023, the accused said to his mother that Mr Tozer: "… come at me and attacked me, and like I was scared for my life. I hit him a few times. That's all I can remember. I can remember him goin' to get up, and I thought I was gunna get attacked again, and then I blacked out."
In call 19 (25), on 11 August 2023, the accused said to his mother, "he chased me, yeah fuckin oath he did, he cornered me, like he come at me … with a weapon". Later in the call, he said: "I remember throwing a few punches, I remember being scared for my, like, scared thinking that I was, that he was gunna kill me, I defended myself, like, I threw a few punches and that was all I can remember. I can, and, like then I went inside, you know, I say, I sat out the front with Nova … I went out, you know that's it, I sat up on the veranda, I had a cigarette."

[63]

The car parking incidents

A former partner of the accused, Courtney Bilsborough, gave evidence of two incidents that she witnessed, where the accused became angry with other drivers. She said that the first incident in time occurred when she was pregnant with their child, who was born in July 2018, when they drove to a supermarket in Port Macquarie. The accused was driving, and Ms Bilsborough was the only passenger. She said that they were on the rooftop car park, waiting for a car to exit a particular parking spot, when another elderly driver took the spot before the accused. She said that when the accused got angry the veins in his forehead would "pop out", which happened on this occasion. Ms Bilsborough reported that the accused got out of their car and yelled at the other driver, saying: "… it was his park and then he was calling him an idiot and stuff and said he was going to throw him over the edge … Throw him over the roof, if - cause - for taking his park."
She said the other driver was "old old" and had a female passenger with him. She recalled that the other driver was going to get out of his car, that the accused was yelling, and that the other driver subsequently changed his mind, shut his door and drove off. She said, "The man drove off. Connor was obviously still upset, just calling him names and stuff, but that's it".
Ms Bilsborough said that the second incident also occurred while she was pregnant. It was at a supermarket in South West Rocks. The accused was driving the Jeep, which was the accused's mother's car, and she was in the passenger seat. She said: "We were parked in … the no stopping zone and a man had come out of the park and hit Connor, like, he's reversing out. I don't think he meant to, obviously, but he went to get out and talk to him about it and Connor just flipped out where we were in the wrong spot."
She said that, from his driver's seat, the accused "got angry and yelled at the other driver. He just called him names and stuff and threatened to, I don't know, do something. I can't remember. Sorry". She said the other driver drove off, and so did they.

[65]

BWV of SC Taylor at Kempsey Police Station on 26 July 2018

The Crown tendered the BWV of a conversation between the accused and SC Taylor that occurred at Kempsey Police Station on 26 July 2018. The accused had attended the police station to assist police with their inquiries into an allegation that he had damaged a car while it was in a car park at Kempsey Hospital that belonged to Ms Bilsborough's mother (the hospital incident). The accused was forthright in response to SC Taylor's questioning, readily admitting the damage. He explained that the circumstances were that he was at the hospital with his partner, Ms Bilsborough, who was in labour. Ms Bilsborough's mother (Leanne) and her partner (Lee) were invited to be there as well. The accused said: "… when [Leanne] got there she just started undermining and telling me that I didn't know what I was doing because it was my first birth … She just pretty much said, 'You don't know what you're doing,' then she yelled at me. And made me feel, I started shaking and I started feeling like I was getting attacked and that I wasn't allowed to be there for the birth of my own child."
The accused said that when their child was born, Leanne and Lee held the baby before he did, which upset him. He said: "I was emotional. Anger, happiness and everything, it all comes in one big package, you know? I was just emotional … I got quite upset. I walked outside. And I put a key on the car. I scratched the car. And then I walked away … I shouldn't have scratched the car. It was definitely the wrong thing to do. But I thought that that was the best way for the situation to be handled without any physical violence or without any mental abuse".
The accused offered that, as well as keying Leanne's car, he wrote "slut" on it and, he thought, "die". He said to SC Taylor, "But what extents would you go to, to protect your family and be there for your family? That's the moral and questionable argument". SC Taylor asked the accused why he did it. He replied that he felt threatened, hurt, and that his "whole world had got taken" from him, adding: "And as I said, everybody handles stuff differently but the extent you'd go to protect or be for your family. I don't know what you'd go to but I'd do anything to protect my family and make sure that I was there. Not illegally but that was unfortunately in the circumstance I overreacted."

[66]

BWVs of the accused being interviewed by Constable Norman and SC Taylor on 4 November 2020

On the morning of 4 November 2020, Constable Norman (Const Norman) and SC Taylor attended Number 10 to interview the accused about an incident that occurred a month before at a tavern in Crescent Head (the Crescent Head incident). The BWV's of both officers were activated at a point that they are standing on the footpath area outside Number 10, questioning the accused, who is wearing shorts, shoes and a cap, with a small dark shoulder bag over a shoulder, and holding a football. During the course of the questioning, he sat on the football, rolled a cigarette and smoked it. Both BWVs were exhibits.
The questioning was primarily conducted by Const Norman. Occasionally, SC Taylor would also ask a question, in a tone that indicated he was sceptical of the truth of the accused's account. As the questioning continued, SC Taylor asked questions that challenged the accused's claim that he did not recall certain matters, which could, in my opinion, be characterised as a gentle cross-examination. After a few such questions, the accused said he did not want to speak to SC Taylor, explaining: "I feel like you're actually putting it over me so I'd like to not speak to you right now. I'm feeling like you putting quite an aggressive way towards me and I'm actually feelin' quite scared right now. If you could not speak it would actually make me feel a lot better. I'm shakin', tremblin' … I suffer stress inducted epilepsy. I suffer stress inducted epilepsy. You make me really worried. Like, I'm starting to shake."
Later in the interview, by which time the accused and SC Taylor were discussing another issue unrelated to the Crescent Head incident, the accused said: "… sorry about before too officer, as I said, I've had bad dealings with the police. I get quite shaky … Like, my whole life, I've had, me dad was a bad dude. He had police come in and scrap us around when we were little kids and … that's what, when it comes to mind and I see police, I went to go help my mate on dialysis do some weeding and then I heard police. I thought it was something to do with me daughter. As I said, I felt like you were coming across a little bit strong and it just makes me feel scared."

[68]

The accused's mother's evidence as to 28 July 2021

Ms Williamson said that the accused had been living at Number 10 for about 18 months before the incident. He had set up a gym in the garage, which included a speed ball positioned off a wall, which she described as having a punching bag on it. As to the events of 28 July 2021, Ms Williamson read from her statement: "I finished work 8.45pm, which I did as per normal, and I drove home with dinner from work". She said that when she got to Albert Harrower Crescent and was told the accused had been arrested, she drove to the residence of a friend, Lisa Gae Phillips. The accused phoned his mother some time after midnight. She asked him what had happened: "He said that something had happened on Gregory Street. He had been chased. He had gone up around all the back streets and things, trying to lose the car that was chasing him. He said - I, I must have asked, you know, why and he said he had given someone the finger, and he assumed that's why they were chasing him, but he couldn't get rid of them, and he had driven home. He also said that the gentleman had come at him with a weapon, some sort of - he said a weapon of some sort, he didn't know what it was, and that he had to defend himself."
Ms Williamson was permitted, pursuant to s 32(3) of the Evidence Act, to confirm what the accused said to her on the phone, as it was recorded in her statement that was made to police on 29 July 2021: "Connor said, 'I was driving back from Kempsey. I went and did a lap around town. I had an incident with a car in town, someone right up my backside. I stuck my finger at him and he followed me. I took all the back ways home to get rid of him, but he is chasing me. I got home, the other bloke got out of his car, and he had something like a weapon in his hand. I don't know what it was, but he had something. I yelled out, 'Help', and yelled for someone to call the police. The man came at me and I had to defend myself. I had to hit him.'"
In cross-examination, Ms Williamson said that when she left the accused and went off to work at about 8am on the morning of Wednesday 28 July 2021, the accused appeared to be in a particularly good mood, apparently because he was looking forward to having access to his 3-year-old daughter on the following weekend.
Ms Williamson said she had a text exchange with the accused about lunch time on 28 July 2021, in which she asked him to replace "a couple of beers" that he said he had taken from the fridge.

[70]

Ms Williamson's evidence as to the accused's childhood and upbringing

As to the accused's childhood and upbringing, Ms Williamson said that the accused was the oldest of her three children, all of whom were sons. The children were the product of Ms Williamson's marriage with Michael Fuller, who is an Indigenous man. Intending no disrespect, I will refer to Michael Fuller by his first name, in order to avoid confusion with the accused. The accused is about two years older than the middle son, and seven years older that the youngest son. Ms Williamson and Michael commenced a relationship when she was aged 17 and he was 22. At that time, they were both recreational drug users and drank alcohol to excess. At one stage while they were together, Michael was an associate with the Rebels outlaw motorcycle club (the Rebels), which facilitated a supply of amphetamines. She consumed alcohol and drugs up to the twelfth week of her pregnancy with the accused, because she did not realise until then that she was pregnant.
Ms Williamson described her time with Michael as "very tumultuous … we had quite a lot of domestic disputes, arguments, domestic violence", much of which the accused witnessed. Michael would bring members of the Rebels home, which was "not a great environment for the kids". She said Michael had physically assaulted her, and she denied having ever physically assaulted him.
Ms Williamson described some specific incidents, beginning with one on 25 October 1999, at which time they were living at Clybucca. The accused was aged six. She said she and Michael had an argument in her bedroom, during which he said he would kill her. She left the room and phoned friends. A short while later, he called her back in. When she re-entered, he was holding a .222 rifle that he owned, saying, "I'm going to kill you, you'll never have your kids, I'll kill you first". The accused was in the house at the time. According to a police fact sheet, friends attended and he calmed down.
Ms Williamson then moved to an address in South West Rocks with her two children. On 10 November 1999, Michael came to her door, and the accused let him in. She asked him to leave and he grabbed her by her arms, pushed her and left. She contacted the police, who attended and charged Michael with two counts of assault (one for the incident on 25 October 1999, and the other for the incident on 10 November 1999), two counts of possessing an unregistered forearm, and one count of not keeping a firearm safely.
Michael was made the subject of an apprehended domestic violence order (an ADVO), which included a condition that he not approach Ms Williamson or the children. Neither of them always respected the conditions of the ADVO. She admitted to excessive consumption of alcohol and the abuse of drugs during her time as a single parent. On one occasion, when the accused was aged about six, she admitted that she was driving while intoxicated with her children in the car, and the car ran off the road.
Ms Williamson and Michael resumed cohabitation and the accused's youngest brother was born in March 2001. On 21 October 2001, when the accused was aged 9, she and Michael had a physical fight at home, which prompted the accused to go to a public phone box and call 000. A police Computer Operated Policing System (COPS) entry of that date, which was an exhibit, records that he told police that his parents were having a fight and "dad has threatened to hurt mum … [informant] is very young child who ran down to the phone box". A telephone interim order was applied for.
The COPS entry records this account by Ms Williamson and Michael: "On Sunday afternoon, 21.10.01 the victim, Tracey Anne FULLER, was at home at 37 Main St, Smithtown having a sleep. The POI, Michael John FULLER allegedly took offence to this as the children were not being cared for properly. He then woke the victim and both parties have then started arguing and one of the children ran to a phone box and called police who attended about 4.50pm. The victim was spoken to and expressed fears of the POI, stating there had been violence in the past, although no offences were complained of on this occasion. The defendant was spoken to and declined to say anything about the matter, claiming he learnt his lesson last time and would not be saying anything."
Another COPS entry records that on the night of 8 November 2001, Ms Williamson and Michael went to a hotel for dinner with friends. They returned home with the friends for further drinks. When the friends left, Ms Williamson left with them, taking the accused's younger brother with her, who was then a 7-month-old child. The COPS entry states that upon her return: "… the defendant allegedly started abusing the victim, who by this time was in bed with the child. The defendant then allegedly punched the victim about the legs a number of times, causing bruising to this area."
The following night, Ms Williamson and Michael planned to return to the hotel for drinks with friends. Michael decided to stay home to care for the three children. When Ms Williamson returned, she was intoxicated and tried to breast-feed their youngest child and Michael pushed her out of the house, down a few stairs and out the front gate, causing her to have a back injury. She contacted police and reported the events of both nights. Michael was charged with a count of assault in respect of each night.
In evidence, Ms Williamson admitted that on the night of 8 November 2001, when she left with the baby, she was drunk, and on 9 November 2001, she drank alcohol throughout the afternoon and evening before she went to the hotel, and that she was drunk when she arrived back home just before midnight. She agreed it had been a "terrible idea" to breastfeed the baby in that condition.
Michael was again made subject to an ADVO with a non-contact condition, the breach of which was allowed for or acquiesced to by Ms Williamson. On 7 January 2002, while Ms Williamson and Michael were at home they had an argument which escalated to a point where she believed that he was about to strike her. She lifted up her youngest child in front of her, in the belief that he would not strike a child. She said that he struck her across her right temple and to the back of her legs and buttocks. The accused was in a different room of the house at the time, but within earshot of the yelling and shouting. She left the house with the children and stayed with friends. Michael was charged with assault and breaching the ADVO.
Ms Williamson said that she noticed that the two children were becoming very fearful, scared to be in the house and scared of their father. On 3 April 2002, when the accused was aged eight, Ms Williamson and Michael had an argument that deteriorated to a point that she sought refuge in the accused's bedroom, while the accused was in the kitchen. Michael yelled an insult at her and said, "If you ring the police, the day I get out is your last day". She fell onto the accused's bed and Michael stood over her with a raised fist. The accused came up the hallway and said to his father, "Don't hit mum. Stop it". The police were contacted, and the above allegation was reflected in a tendered police facts sheet for a charge against Michael of breaching an ADVO.
Ms Williamson said that in 2002, when she was a single parent of the three children, she was drinking to excess and using amphetamines. She came to the attention of the then-named NSW Department of Community Services (DOCS) in respect of the poor quality of care she was providing to her children. On one occasion that year, she left the children at home with a woman while she visited friends, but the woman departed, leaving the children unsupervised. In April of that year, the accused, then aged eight, was reported to roam in public areas with a knife in his possession "for protection".
Ms Williamson commenced a new relationship in late 2002 with Matthew Geatches. She said that by early 2003, it was apparent that Mr Geatches had an issue with alcohol, and would be violent towards her in the accused's presence.
On 21 February 2003, while Ms Williamson and Mr Geatches were at a hotel with the three children, Mr Geatches became abusive to her and another woman, and bit Ms Williamson's ear. He was removed from the hotel by the management. When Ms Williamson left later with the children, Mr Geatches was still outside. She said the children were scared, and fortunately a passing police car stopped and Mr Geatches approached it. He was later charged with domestic-related assault. The police facts, as to the circumstances of his arrest, state: "Whilst [the victim was] hiding from the Defendant patrolling Police have stopped and spoken to a group of people including the victim. At this time Police have observed the Defendant nearby in a well affected intoxicated state. The Defendant approached the vehicle in a confrontational manner. At this time the victim and her children became visibly upset and disclosed the course of events to Police and the fact that they were unable to go home as they feared the Defendant was waiting for them so as to continue his abusive and violent behaviour."
Mr Geatches received an ADVO with a no-contact condition within 12 hours of consuming alcohol, which he and Ms Williamson did not always observe. On 12 September 2003, he was at a barbeque with mutual friends at her home at her invitation where they both consumed alcohol. Ms Williamson was led through the police facts in respect of an incident on that occasion. During the evening, Mr Geatches walked over to Ms Williamson who was seated with her youngest child on her lap and slapped her twice across her face while calling her a derogatory term. He then grabbed her by the throat, saying he was going to kill her. The other two children, including the accused, witnessed the attack as well. Another guest pulled him off. Neighbours contacted police, who found Mr Geatches hiding in bushland. He was charged with assault and breaching an ADVO.
Ms Williamson said that Mr Geatches was verbally abusive to her children, calling them "little bastards" to their faces.
On 14 January 2004, when the accused was aged 10, Ms Williamson and Mr Geatches were cohabiting. At 11:30pm, they started fighting and, in the children's presence, Mr Geatches threw furniture around. When police arrived, the kitchen table had been smashed, the refrigerator and a lounge chair had been tipped over, and small household items were strewn around. A COPS entry recorded that neighbours called police because "Domestic occurring … Informant can hear several children at location screaming". The police facts record that they were also contacted by "The victim's young son [who] contacted 000, stating the defendant was assaulting the victim".
Attending police noted that there was smoke throughout the house that appeared to be coming from the tipped-over fridge. The police facts state that while taking details from the victim "her three small children were seen in the house and appeared visibly upset … The victim was well-affected by alcohol at the time". Police found Mr Geatches hiding in bushland. He resisted arrest and was charged with one count of assault occasioning actual bodily harm against Ms Williamson and one count of assaulting a police officer in the execution of their duty.
Ms Williamson said that her relationship with Mr Geatches ended with that incident. She commenced a new relationship with Gavin Williamson, who she ended up marrying. Mr Williamson was violent towards her and did not get along with the accused. At age 14, the accused tried to hang himself in his bedroom. As she took him down, Mr Williamson said to "let him go". The accused took a knife and ran into bushland near the house. Ms Williamson found the accused and she and Michael took him to hospital. The accused had two follow-up sessions with a counsellor.
The accused attended high school at South Kempsey and decided to move in with his father who lived there. In the 12 months during which he stayed with his father, he did not visit Ms Williamson.
Following the accused's return to cohabitation with Mr and Ms Williamson, an incident occurred on 28 June 2009 involving police attendance, and Mr Williamson was charged with assaulting Ms Williamson. According to the police facts, which Ms Williamson accepted as being accurate, Mr and Ms Williamson were home drinking alcohol from 12:30pm until 8:45pm, at which time they had an argument about the accused, who was then aged 15. Mr Williamson considered that the accused was "undisciplined and disobedient towards him and his mother". Mr Williamson assaulted Ms Williamson by grabbing her by the throat and face, and pushing her twice into a cabinet. He then pushed her out of the house and locked the door, leaving him inside with her children. She saw their bedroom light come on and heard Mr Williamson "yelling and screaming". She smashed a glass panel in the front door in an unsuccessful attempt to regain entry and he phoned the police, who arrived at about 9:50pm. Police noted that Mr Williamson was holding a glass of alcohol as he spoke to them. He denied assaulting Ms Williamson.
Mr and Ms Williamson broke up at some point after that incident. Within a month of the break-up, the accused told Ms Williamson that he did not want her to be in any more relationships. Ms Williamson said that the accused left school in Year 11 and moved to the Gold Coast for about 18 months. Upon his return, which was in about mid-2016 (when the accused would have been aged 22), he lived with Ms Williamson and her partner at the time, Ben Kilpatrick, who also drank heavily and was abusive to her. Ms Williamson said that they both were consumers of alcohol and the accused warned her, "You're doing it again, mum".
On 25 January 2017, Mr Kilpatrick threw something at Ms Williamson. It missed her, but hit the wall, which made a noise. The accused talked to Ms Williamson about the incident the next morning, saying that "he was upset with, you know, the argument that happened the night before, that he could hear it and yeah, he was concerned". Ms Williamson then went to work. The accused was charged with assaulting Mr Kilpatrick after she left for work. The accused moved out three or four months later.
Ms Williamson said that when the accused was aged about 16, Michael was stabbed and the accused visited him in hospital shortly afterwards.

[71]

The accused's father's evidence as to the accused's childhood and upbringing

The accused's father, Michael, gave evidence in cross-examination as to the accused's upbringing, that was broadly corroborative of the evidence of Ms Williamson. He said that in his younger years, when he was in a relationship with Ms Williamson, "there was a lot of drug and alcohol use" by both of them. He said that Ms Williamson consumed alcohol and amphetamines throughout her pregnancy with the accused. He agreed there were significant periods when they were "physically abusive" to each other, "more often than not" in front of the children. He agreed that, "more often than not", he did not comply with ADVOs that were made against him, which was "partially" his or her decision.
Michael said that during some of his fights with Ms Williamson, the accused became involved, because he was "very, very protective of his mother … He would physically get in between us. He would yell and scream at me to get out and the both of us to stop".
Michael said that after Ms Williamson lost control of her car and drove through a fence, he fixed the fence and repaired the car. When she was in a relationship with Mr Geatches, when the accused was aged about nine, the two younger boys came to live with him for a while. The accused declined, explaining to him that "someone had to stay and protect his mum". Michael said his relationship with the accused in those years was "very strained … He was distraught".
Michael confirmed that the accused lived with him in South Kempsey for a year when he was aged 14, while Ms Williamson was in a relationship with Mr Williamson. During this period, the accused was able to connect with his Indigenous family for the first time. However, his being very light-skinned "didn't sit well" with some of his Indigenous family. At the same time, some of his non-Indigenous friends distanced themselves from him. As a result, he was not accepted by either side. He became involved in several fights at school.
The accused continued to worry about Ms Williamson while he was living with his father and returned to live with her, but remained at the high school at South Kempsey.
Michael was asked to describe South Kempsey. He said: "… it can be a very violent, ugly place. There's a lot of drugs. There's a lot of alcohol. There's violence … on the streets, off the streets … it isn't a nice place to live."
Michael said that in about 2009, he was attacked by three men with machetes. He received wounds to his head, torso and legs. The accused visited him in hospital, "before they'd stitched me up completely".

[72]

Address by the Crown

The Crown submitted that the accused had a pre-existing tendency to engage in significant threats of violence over minor incidents involving motor vehicles (the pre-existing tendency"). Shortly prior to the accused's contact with Mr Tozer on the evening of 28 July 2021, when he returned home to pick up his Rottweiler, his words concerning his intention in respect of Mr Hunt, that he would "jump on his head before he gets home to his wife", demonstrated the agitated and aggressive mood he was in and was consistent with his pre-existing tendency.
The Crown referred to the CCTV, eyewitness and forensic evidence which it said established that the accused's Getz did make contact with the side mirror of the XR8 and significantly damage it. The Crown submitted that the accused can be heard on the CCTV admitting that Mr Tozer had "pulled out" on the accused's car and wanted the accused to pay "your insurance". When Mr Tozer realised the accused was not going to stop, he gave chase to the accused, which would have added to the accused's pre-existing agitation and anger.
The following is a summary of the Crown's submissions as to the confrontation between the accused and Mr Tozer. When Mr Tozer arrived at Number 10, he alighted, most likely carrying a pen to take the accused's details, and walked up the driveway. Mr Tozer was not carrying a weapon and did not engage in physical violence. The accused was immediately aggressive to him. A "slapping sound" can be heard on the CCTV audio, at the time when the violence against Mr Tozer commenced. Mr Tozer retreated back down the driveway towards his car. The "bang" was another blow and possible contact with the metal side fence. Mr Tozer continued to try to retreat, in so doing, sounding his car horn twice, either inadvertently or trying to attract the attention off anyone nearby.
The position of Mr Tozer's right shoe, which had a miniscule drop of blood on it, and the fact that his tracksuit pants were pulled down suggests that at some stage likely early on in the assault, the accused dragged Mr Tozer by his feet. The accused said "I'm scared for my safety", because he was aware that he was inflicting serious violence on Mr Tozer and it was possible that neighbours were watching him.
The Crown submitted that what the accused can be heard saying on the CCTV audio is inconsistent with a belief that what he was doing was in self-defence. The accused's later admissions to having stomped on Mr Tozer's head and kicked him is consistent with the CCTV audio of exertion noises. The accused's assault of Mr Tozer included punches, kicks and stomping on parts of his body and head. The soaking of blood through the accused's right shoe is indicative of the extent of the violence. It occurred while Mr Tozer was yelling out for help and continued for some time after he was silent, likely unconscious, which indicates the extreme level of his anger towards Mr Tozer.
The accused told significant lies to his neighbours and police; why and from where Mr Tozer followed him; that Mr Tozer was armed; and where the knife was. His later claim that Mr Tozer was armed with the screwdriver was a lie. The lies related to material issues in the trial, namely, the true reason that the accused engaged in violence towards Mr Tozer; and a fear that if he told the truth, his acts of violence against Mr Tozer could not be justified.
The accused did not sound scared on the CCTV audio or identify what he was scared of. He did not refer to a weapon.

[75]

The events of 28 July 2021

As to the events of 28 July 2021, counsel for the defence submitted that the statements of Ms Phillips and Mr Mills established that the accused was in a good mood that morning and afternoon respectively. Mr Mills' statement suggested that the accused did not appear to be affected by drugs or alcohol. Counsel said: "… it is no case for either the accused or the Crown that the accused was intoxicated at the time of the incidents with either Mr Hunt or Mr Tozer by either alcohol or cannabis. Mr Mills said that whilst the accused was at his residence on the afternoon of 28 July 2021, he observed him to be happy and his usual self."
Counsel for the defence submitted that the accused's words to Mr Hunt, "You're fucked. I'll be back with my Rottweiler", were an empty threat, since if he really intended to harm Mr Hunt, the obvious time to do so would have been there and then, at the police station. As a local resident, the accused could be assumed to know that the police station was not operating at that time of night. He would surely have realised that Mr Hunt would not still be there by the time he returned with his dog which, in any event, was a friendly dog.
Although it was conceded that while he was home getting his dog, the accused said the words, "jump on his head right now before he gets home to his wife" and repeated the words, "before he gets home to his wife", the Court would be slow to infer that he meant that threat literally, since there is no evidence that he knew Mr Hunt, whether he had a wife, or his destination that night. One cannot conclude that the accused's objective was to confront Mr Hunt with the Rottweiler, since the route he took was consistent with him intending to drive directly to the bottle shop to replace the beers in the fridge, given that Paragon Avenue was a one-way street. At the bottle shop shortly afterwards, he was "comparatively calm and settled in his demeanour".
Counsel for the defence acknowledged the significance of the issue of the side mirror collision in establishing the accused's state of mind at the time of the altercation. Counsel did not concede that there had been a collision, although it was acknowledged that various pieces of evidence circumstantially supported that proposition. Counsel submitted that the probative value of the reconstruction of the mirror housing was reduced by the fact that the pieces of plastic had been on the road for a day and a half before they were retrieved and therefore could have been damaged, since they were on the main thoroughfare into and out of town. There was no sign of damage on the XR8's mirror casing, which one would logically expect to have been the point of impact. Although the Getz left side mirror was observed at 8:32pm to be bent back, there was a reasonable possibility that others walked past the car that night and knocked the mirror back as they did so.
As to the XR8's mirror panel that was located on the back seat of the Getz, counsel for the defence suggested there were only two possibilities as to how it came to be there. Either there was, in fact, a collision, and it flew in through the open passenger window, landing on the back seat, or it was placed there by the accused or someone else, after the incident. The most likely explanation is the latter one, since it had the accused's blood on it, which was likely to be a transfer stain; that the accused placed it there "when he was seen to be moving round the scene and coming to and from his car, looking for his phone". The accused touched it "most likely removing it from the XR8" and placing it in the Getz.
There was evidence that "some music with loud bass playing" was coming from the area of the cars on the front lawn of Number 10 shortly after the XR8 pulled up. Accordingly, the impact of the side mirrors may have been less destructive than the pieces of plastic located on the roadside and the condition of the mirror panel might suggest, so there is a reasonable possibility that the accused did not notice the collision when it occurred, perhaps because he was playing loud music. It was reasonably possible that he did not realise he was being pursued until he turned off Gregory Street, into Simpson Street.
Counsel submitted that if Mr Tozer merely wished to get the Getz registration, he could have done so when he was following it. Clearly Mr Tozer was angry and wanted to "reckon" with him. Being chased by "a high-powered car with a high revving engine" would have been a frightening experience for anyone, even if they were aware of the reason for the pursuit.
Counsel for the defence submitted that it was not part of its case that Mr Tozer was armed with a knife or screwdriver when he approached the accused, but rather, the defence adopts the submission of the Crown that it is most likely Mr Tozer had a pen in his hand when he approached the accused.
Counsel submitted that the evidence establishes that Mr Tozer approached the accused very closely, prompting the accused to say that Mr Tozer was jumping into his face, which caused the accused to genuinely fear for his safety. Mr Tozer then moved onto the front lawn, but since there was no front fence, the accused was entitled to consider the lawn to the kerb as all part of the front yard for Number 10. The accused was not being disingenuous when he repeatedly said that he was scared for his safety.
If the incident was observed by a third person, the CCTV audio does not suggest that the accused tried to dissuade them from doing whatever they thought appropriate, which is not indicative of a guilty mind.
The defence suggests that when the accused became aware that there had, in fact, been a collision, he can be heard referring to the issue of insurance on the CCTV audio. The defence accepts that the accused lied to neighbours and others when he said he did not know why Mr Tozer followed him.
Counsel for the defence identified some assertions made to neighbours that were lies. These were, to Mr Young, that he had an argument with the man about a car park; to Mr Cooper that he had been followed home from the beach; to Clancey that he had an altercation downtown with the man; to Mr Ferrari that he had an argument in a pub with the man; to Karen that it arose from a parking issue.
Counsel submitted that these lies did not constitute a consciousness of guilt, because the lie must relate to the subject offence, which is murder, whereas the lies he told were a denial of there being a collision between the two vehicles.
The accused's claim that Mr Tozer threatened him with a knife, while inaccurate, was not necessarily a lie, but rather, his perception, or an assumption he made, at the time. At the time he was spoken to by SC Thompson and SC Black, he was in a highly emotional state and they acted towards him in "an unprofessional and antagonistic manner". Although he repeated his false claims to Sgt Goddard, he was "locked in" to the account he had already given. He was "less dogmatic" when Det Sgt Barber spoke to him, conceding he didn't know what Mr Tozer had in his hand, saying, "Well honestly, I got back here and thought I'm not going through this shit again … my dad got stabbed last year", which, together with other statements he made in that interview, reflected his state of mind and the impact of his early childhood experiences.
In the formal interview the next morning, the accused "more or less conceded that he was not sure what it was that the deceased had in his hand but maintained that he believed at the time that he had 'something'". Therefore, since Mr Tozer may have had a pen in his hand, his earlier claims about being threatened with a knife were not necessarily lies.
Similarly, counsel for the defence submitted that the parts of the gaol calls that are relied upon as lies evidencing consciousness of guilt do not stand up to scrutiny as such.
Counsel for the defence submitted that if the fatal injury was a kick that caused the axonal injury to his head, it was likely that this injury occurred while Mr Tozer was crawling, and therefore, relatively early on in the assault, when the accused was more likely to have a genuine belief that it was necessary to use the force that he did on Mr Tozer, in which case, the appropriate verdict is not guilty on the charge of murder.

[79]

Circumstantial evidence

The Crown relies on circumstantial evidence to establish its version of events during the confrontation from which, it submits, the Court may conclude beyond reasonable doubt that the accused did not believe that his infliction of the fatal injury or injuries was necessary to defend himself or his mother. I direct myself as follows, in relation to circumstantial evidence.
Circumstantial evidence may be as convincing and reliable as direct evidence. It will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole, not individually or in isolation, and upon whether the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused.
The Court must approach a circumstantial case by considering and weighing, as a whole, all the facts it finds established by the evidence. It is incorrect to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the accused's guilt.
The correct approach is first to determine what facts the Court finds established by the evidence. Any particular fact to be taken into account by the Court does not need to be proved beyond reasonable doubt. The Court then considers all of those facts together as a whole, and asks whether it can conclude, from those facts, the accused's guilt. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails because the Court is not satisfied of the accused's guilt beyond reasonable doubt, in which case the Court would find the accused not guilty.
If the Court finds that such a conclusion is a reasonable one to draw based upon a combination of those established facts, then it must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused. If there is, the circumstantial case fails, because the Court cannot be satisfied beyond reasonable doubt of the accused's guilt.
Drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. The Court must not base its conclusion upon mere speculation, conjecture or supposition. In order to be satisfied beyond reasonable doubt of the accused's guilt of the offence, the Crown must first persuade the Court that the inference or conclusion it relies upon is a reasonable one to draw from the facts that it finds established by the evidence. It then must prove that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts, viewed as a whole, is the accused's guilt. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion sought by the Crown, then the Crown's circumstantial case has failed.

[80]

Lies as consciousness of guilt

In its opening, the Crown stated that it relied upon evidence of certain statements that were made by the accused as lies that may be regarded as uttered out of his consciousness of guilt of the charge of murder, that is, that he did not believe that it was necessary to inflict the fatal injury or injuries for his self-defence. These are as follows: "i. The assertion by the Accused that there was no collision between his car and the deceased's car, and the various false explanations the accused advanced for why Mr Tozer had followed him to his house; ii. The assertion that the deceased was armed with a knife; iii. The knife was dropped in the gutter; and iv. The deceased was armed with a screwdriver that had been seized from the front porch of the house."
The first set of these utterances, which was primarily made to civilian and police witnesses, is either to the effect that he did not know why Mr Tozer followed him to Number 10 or that it was because of a reason other than that he had collided with Mr Tozer's driver's side mirror.
There are certain matters that, as the fact-finder, I must be satisfied of, if I am to conclude that an utterance identified by the Crown does, in fact, constitute a lie that is told from a consciousness of guilt. Those steps are: 1. Whether it is in fact a lie; that is, I must be satisfied that what the accused said was untrue and that at the time of saying it, he knew that it was untrue. Saying something that is untrue by mistake, or out of confusion or forgetfulness, is not a lie. 2. It must be a lie that relates to an issue that is relevant to the offence the Crown alleges that the accused committed, that is, that he did not believe that the force he used against Mr Tozer was necessary in self-defence or that of his mother. It must relate to some significant circumstance or event connected with that alleged offence. 3. The reason the accused told this lie must be because he feared that telling the truth might reveal his guilt in respect of the charge he faces. In other words, he feared that telling the truth would indicate that he did not genuinely believe that his actions were necessary in self-defence.
I remind myself that people do not always act rationally, and that telling a lie may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal their guilt, for example, a lie may be told out of panic or to escape an unjust accusation, in which case it cannot be used as evidence of the accused's guilt. If that is so, I will put it to one side and focus my deliberations upon the other evidence in the case.

[82]

The offence of murder and the partial defence of excessive self-defence

The accused is guilty of the offence of murder of Mr Tozer if the Crown establishes, beyond reasonable doubt, that at the time he inflicted the fatal injury or injuries on Mr Tozer, he did not believe that it was necessary to do so in order to defend himself or his mother. That question is to be determined subjectively: R v Katarzynski [2002] NSWSC 613 at [23], approved in R v Oblach (2005) 65 NSWLR 75; [2005] NSWCCA 440 at [50]-[51]. By his plea to the offence of manslaughter on the basis of excessive self-defence pursuant to s 421 of the Crimes Act, the accused accepts that the remaining elements of murder, when Div 3 of Pt 11 of the Crimes Act is raised, are made out, and I am so satisfied on the evidence in the trial.
The evidence in the trial as to what the accused believed at that critical time includes the statements made by him to neighbours, police, his family and friends. That account changed during the course of the night of the incident and the following morning, and again when the accused became aware of the forensic results on the screwdriver and pen, and the existence of the CCTV audio and its content. Some elements of those various accounts were demonstrated to be patently untrue by aspects of the police investigation, for example, images captured by CCTV cameras around South West Rocks; the statements of eyewitnesses as to where the paths of the accused and Mr Tozer first crossed that night; and the route they took to Number 10.
Indeed, the Court was invited by counsel for the defence in his closing address to contemplate a version of events that in some respects the accused did not adopt to others, such as that he may have realised that he had side-swiped the XR8 right side mirror during or immediately after the confrontation.
The defence case is that the accused was not in an angry or aggressive mood when he first encountered Mr Tozer. After picking up his dog, the accused returned downtown only to buy replacement beers for the fridge, as his mother had requested him to do, earlier that day.
The accounts by the accused to others as to the events that followed may be essentially reduced to the following. Mr Tozer, who was a stranger to the accused, chased him to Number 10. The accused did not know why he was being chased or, if he did, the chase was unjustified, or apparently irrational. In any event, the fact of the chase, and its aggressive manner, caused him to be afraid. The accused made attempts to 'lose' the XR8, eventually returning to his address at Number 10. After the accused parked up his driveway, the XR8 pulled up across the bottom of his driveway, which meant he could not reverse out and drive away in the Getz.
Mr Tozer got out of his car and ran towards the accused, saying he was going to kill him, and holding something in his hand that the accused believed would be used to stab him. The accused screamed out to his neighbours for help, but none was forthcoming. The accused punched Mr Tozer twice and kicked him to the head, causing Mr Tozer to fall to the ground. He did this because he did not want to be stabbed. Before becoming aware of the content of the CCTV audio, his version was that those three blows were the full extent of his violence towards Mr Tozer; Mr Tozer was knocked out and did not wake up. Afterwards, his account was that Mr Tozer may have got back to his feet, and if he did, the accused does not recall what happened from that point on until, after the confrontation, he looked for his phone and could not find it. He had a cigarette on the patio while he waited for Mr Tozer to regain consciousness. When Mr Tozer did not wake up, he crossed the road to 16 Simpson Street and asked to borrow a phone to call the authorities.
This version of events is now considered against the other evidence in the trial.

[83]

Was the accused in an angry and aggressive mood before he met Mr Tozer?

Ms Williamson's evidence and the statements of Ms Phillips and Mr Mills suggest that the accused was in a good mood on 28 July 2021, at least until he left Mr Mills' residence at Kempsey between 4 and 5pm. The accused later told police that he drove directly from Mr Mills' place to South West Rocks. However, he was captured by CCTV driving through Frederickton, which is only 8km from Kempsey, at 5:54pm, which suggests that he did not drive directly home from Mr Mills. However, I note that Mr Mills is deceased, so that his version of events was unable to be tested by cross-examination. I draw no inference adverse to the accused as to the apparent inconsistency arising from Mr Mills' account of when the accused left his place and the whereabouts of the Getz at 5:54pm.
When Mr Hunt saw the accused shortly after 6pm in Plummers Lane, the Getz was parked in the middle of an intersection, blocking the other road (Menarcobrinni Road) and the accused was urinating by the driver's door. Unsurprisingly, Mr Hunt dimmed his lights, slowed down and continued on.
The accused's behaviour towards Mr Hunt after that incident was bizarre. He apparently took offense to Mr Hunt slowing down, and tailgated him, with his powerful light bar turned on, for the distance of 14km to South West Rocks police station. As the accused tailgated Mr Hunt along Gregory Street, Mr Wilson, who followed them, saw the accused's car veer to the left a few times.
I am satisfied that the words spoken by the accused to Mr Hunt outside the police station ("You're fucked. I'll be back with my Rottweiler"), as he pointed to Mr Hunt, were said in anger. Mr Hunt said the accused's tone was aggressive. Mr Wilson said he heard the young driver, who was clearly the accused, "yell out abuse aggressively". Ms Yeo, who was driving past, said the young driver was "glaring angrily towards the older man".
The words captured on the CCTV audio when the accused arrived at Number 10 to pick up his dog ("Jump on his head right now before he gets home to his wife"), and the inaudible yelling, indicate that he was in a highly agitated and aggressive state, and at that point, was predisposed to physical aggression. The fact that there was no-one home, so that he was yelling to himself, adds to the bizarreness of his behaviour. I am satisfied that he returned to the police station with the intention of finding and confronting Mr Hunt, even though an expectation that Mr Hunt would be waiting for him was irrational.
The Crown in its opening and the defence in its address submitted that the 25 impact sounds that can be heard on the CCTV audio shortly before the sounds of the accused coming out of the house to get into the Getz, are consistent with him punching his speed ball in the garage. There is insufficient evidence to conclude that is so.
The accused returned to the police station and continued on to the bottle shop. There is nothing abnormal about the accused's demeanour outside the bottle shop, as captured on CCTV. However, the accounts of Mr McGrath and Ms Boschke, to the effect that the accused repeatedly disobeyed their requests to not come into the shop because he was not wearing a face mask, and directed menacing threats at them to report the shop to the council, point to an element of unnecessary provocativeness in his behaviour at that time. The fact that the accused drove around the block after he left the bottle shop and turned again into Paragon Avenue from Memorial Avenue, which gave him a view of the street outside the police station, is also indicative of his continuing desire to find and confront Mr Hunt, even though his expectation that Mr Hunt would have remained in the area was irrational.
Accordingly, I am satisfied that the accused was angry with, and aggressive towards Mr Hunt, and that his anger and aggression had not abated by the time he met Mr Tozer.

[84]

Whether the accused side-swiped Mr Tozer's right side mirror

The Crown relies upon inferential evidence to prove that the Getz impacted the right side mirror of the XR8 and that the accused was aware of that fact at the time it occurred.
I am satisfied that, after leaving the bottle shop and driving around the block, the accused drove south along Gregory Street and at about 6:38pm, he passed the XR8. I am satisfied by the statement of Ms Hardy that the XR8 was parked with its brake lights on at the time, that is, that it was stationary. I am satisfied by the images captured by the Outdoor Adventure CCTV that, just before the Getz passed the XR8, it veered to the left and crossed over the unbroken parking lane line.
I am satisfied by the evidence of the recovered pieces of broken white plastic covering from Gregory Street and the subsequently-observed retracted position of the Getz left side mirror (which had been seen to be in the extended position on CCTV moments before, outside the bottle shop), that the Getz left side mirror struck the right side mirror of the XR8. The impact caused the Getz mirror to fold back and the XR8 mirror to break off its anchor point, the XR8 mirror casing to fracture and the pieces to spray forward over the parking lane. The fact that Ms Hardy thought the Getz just missed the driver's side of the XR8 does not mean that the impact did not occur; it was night-time and she may not have had a line of sight to the impact point, since she was in the driver's seat, that is the right side, of her vehicle.
The likely precise impact point of the two mirrors was the casing of the Getz and the rim of the XR8 mirror panel, both of which were hard black plastic. The black rim, which protruded as a border around the XR8 mirror panel, would have been the point of impact with the back of the casing of the Getz mirror. Since the contact point of both side mirrors was hard black plastic, one would not expect to find a transfer of colour from one item to the other or, necessarily, marks. This is consistent with the expert evidence of Ms Adalba.

[85]

Whether the accused knew at the time that he had side-swiped Mr Tozer's right side mirror

The impact of the side swipe, given the damage done to the XR8 driver side mirror, would have produced a loud bang. Four minutes earlier, as the Getz drove off from the bottle shop, the front passenger window was seen on CCTV to be fully wound down, and the driver's window was seen to be about one-third of the way down. It is apparent from photographs of the interior of the front passenger door of the Getz that its window was manually operated, so that it is extremely unlikely that the accused wound it up in the four minutes before he passed Mr Tozer, or that the accused leaned across and wound it up as he was driving. The left side mirror of the Getz, having folded back from the impact, could not be utilised by the accused to sense Mr Tozer's vehicle as he gave chase.
There is no evidence which suggests, or from which it could reasonably be inferred, that the accused only realised that he had side-swiped Mr Tozer's right side mirror during the course of the accused's application of force to Mr Tozer. Accordingly, I do not accept the defence submission to that effect.
During the confrontation, the accused shouted at Mr Tozer when he was presumably unconscious: "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."
I interpret this passage as meaning that the accused blamed Mr Tozer for the damaged right side mirror of the XR8, for pulling out from the kerb as the accused passed him. An available, indeed inevitable, inference from that passage was that the accused knew at that time, that is, during the confrontation, that the vehicles' side mirrors had collided.
I conclude that there is only one explanation reasonably available on the evidence as to how the XR8 mirror panel came to be on the back seat of the Getz with the accused's blood on it; which is that the accused moved it there after he stopped his application of force on Mr Tozer, and before the police arrived at Number 10. It is further evidence that the accused knew that his vehicle had impacted the XR8's side mirror, since the only motive for him to remove it from the XR8 and place it elsewhere was to attempt to avoid questions being asked by those about to attend on Mr Tozer. Again, it was irrational, but nevertheless I am satisfied that he moved it for that reason.
For these reasons I am satisfied, beyond reasonable doubt, that the accused knew immediately, as the impact occurred, that his side mirror had struck the side mirror of the XR8.

[87]

What can be inferred from the CCTV audio and the CCTV driveway video

These are my findings as to what can be heard on the CCTV. I am satisfied beyond reasonable doubt of the fact that these words and sounds can be heard, and of the inferences that I draw from them.
Seconds after Mr Tozer arrived at Number 10, a sound consistent with him opening his car door is heard (there is no sound of him closing it, which is consistent with observations made by neighbours and police that the driver's door of the XR8 was open when they arrived shortly after 7pm). Seconds later, as the accused's dog is barking, Mr Tozer can be heard asking the accused, "What the fuck is your problem? Why'd you get my … Why'd … dipstick?". His tone is questioning and firm, but not aggressive. The indiscernible portions are fractions of seconds, so that the tone of the questioning is unaffected by those gaps. A figure is then seen on the CCTV driveway video moving along the fence line towards the house, which I am satisfied was Mr Tozer walking up the driveway. Seconds later, the accused is heard, yelling at him, "Don't be jumping up to my face cunt, I'll knock you clean the fuck out". This is followed by a slap-like noise and Mr Tozer immediately shouting, "Fuck off!". Although it may well be that at that point the accused struck Mr Tozer, I cannot be certain.
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!"
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.

[89]

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

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.
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.
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.
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.
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.

[97]

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

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.
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".
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.
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.
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.
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.
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.
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.

[98]

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

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.
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.
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.
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.

R v Fuller

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