[1983] HCA 17
R v WatsonEx parte Armstrong (1976) 136 CLR 248[1976] HCA 39
Re JRLex parte CJL (1986) 161 CLR 342
Re Polites
Judgment (5 paragraphs)
[1]
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Fahmy Lawyers (Offender)
File Number(s): 2018/00230025
[2]
JUDGMENT
HIS HONOUR: The accused, John Jamie Tozer, applies for the Court, as presently constituted, not to determine the sentence to be imposed on Mr Tozer because of apprehended bias associated with the determination of issues at sentence. The Crown submits that the Court, as presently constituted, should hear and determine the sentence.
The issue arises because of the history of this matter and the history of the charges that have been preferred against Mr Tozer. Initially, the Court, as presently constituted, arraigned Mr Tozer and his alleged co-offender, Mr Bushell, and commenced a trial of each of them jointly for the crime of murder.
During the earlier proceedings, as a result of issues associated with the failure or refusal of law enforcement authorities to provide information to the Crown and the consequential failure of the Crown to provide appropriate disclosure in relation to a particular witness to Mr Tozer's legal representative, the jury in the joint trial was discharged, but only in relation to the charge against Mr Tozer. The trial continued on the charge against Mr Bushell.
Eventually, the jury returned a verdict of not guilty of murder, but guilty of manslaughter. The Court, as presently constituted, proceeded to sentence the offender, Mr Bushell. [1]
The trial against Mr Tozer was adjourned and listed for hearing commencing Monday, 10 February 2025. On that date, the Court was informed that there were discussions between the parties and the matter was ultimately adjourned until 10am, 12 February 2025.
At the last-mentioned hearing, the Crown indicated that there would be a plea. The then accused was arraigned and pleaded not guilty of murder, but guilty of manslaughter, which the Crown accepted in full satisfaction of the indictment. No application had been made for disqualification in relation to the trial.
Once the plea had been entered and recorded, the sentence proceedings commenced and two exhibits were tendered: Ex S1 ("Agreed Facts"), a document in which the parties agreed on facts for the purpose of the sentencing hearing; and Ex S2 ("Agreed Facts under s 191 of the Evidence Act"), a set of agreed facts, largely of a formal or uncontroversial nature, which had been tendered in the course of the joint trial.
Under the agreed facts in Ex S1, the Crown concedes that it is unable to establish beyond reasonable doubt two relevant facts: that the deceased was sedated at the time of the injection; and that the deceased did not consent to the administration of drugs. It is not agreed that the deceased did consent to the administration of the drugs and that issue may be an issue of contention in the sentencing proceedings.
In the course of sentencing the co-offender, Mr Bushell, I made comments in relation to evidence that was before the Court through a person given the pseudonym Witness A. I concluded that Witness A was truthful and generally reliable. [2] Witness A gave evidence of a conversation between the witness and Mr Tozer. The Court then, in the course of the sentencing remarks, said:
"24 Nevertheless, there would have been very good reason why Mr Tozer would have been untruthful about the circumstances of the consumption by the deceased of a mixture of heroin and cocaine and I do not accept, even on the balance of probability, that Mr Tozer was being truthful. Further, given other evidence, to which I will come, I do not accept this version as a reasonable possibility.
25 I note, at this juncture, that any conclusion of fact to be held against the offender is required to be proved beyond reasonable doubt. Because of that onus, it is unnecessary for the offender to prove that the deceased consumed the drugs willingly; it is only necessary for there to be a reasonable doubt that the deceased consumed the drugs in circumstances where he was not consenting to that consumption.
26 The offender submits that the Court should sentence him on the basis that he or Mr Tozer injected the deceased with drugs with the deceased's consent. In my view, this puts the burden of proof incorrectly. It is only necessary for the Court to have a reasonable doubt that the injection occurred without consent.
27 On the other hand, if the offender seeks to rely upon the proposition that the deceased requested the injection, the deceased bears the onus of proving that on the balance of probabilities. It also involves the proposition that the deceased was fully conscious and able to give consent at the time that Mr Bushell or his brother injected the drugs that, ultimately, killed Mr Ciano.
28 The Jury verdict is consistent only with the proposition that the offender and/or his brother deliberately injected the deceased with a mixture of drugs containing heroin and cocaine. It is also consistent only with the proposition that the injection occurred in circumstances where the Crown has been unable to prove that the offender intended to kill the deceased or to cause him grievous bodily harm." [3]
As can be seen from the foregoing, I commented on the existence of good reason why Mr Tozer may have been untruthful about the circumstances of the consumption by the deceased of the drugs that caused his death. I did not accept, even on the balance of probability, that Mr Tozer was being truthful in his account to Witness A.
The evidence in these proceedings is very different and there is no reliance on the sedation of the deceased, which was an issue in the Bushell Sentence. On the basis that the issue of consent by the deceased to the injection of the fatal drugs is an issue in the hearing for the sentence of Mr Tozer, Mr Tozer submits that there is an apprehension of bias relating to the findings that the Court may conclude.
[3]
Principles on bias
The general principle is that a judge should not hear case if, "in all the circumstances, the parties or the public might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the questions involved in it." [4]
In R v Watson, supra, the majority said:
"The view that a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial, and that if a judge does sit in those circumstances prohibition will lie, is not only supported by the balance of authority as it now stands but is correct in principle." [5]
In Livesey, supra, the High Court said:
"That principle [the above principle laid down in R v Watson] is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it." [6]
The foregoing principle is applied universally. The principle does not require actual bias or an inability in a judicial officer (and other tribunals) not to be able to deal with the matter. Rather, it examines the reasonable apprehension of the public or parties.
[4]
Conclusion
In Livesey, the High Court was dealing with a situation where members of the Court of Appeal had made findings against the applicant or in relation to conduct of the applicant in an earlier application before the Court. Two of the judges were involved in the earlier finding and were also involved in the Court of Appeal judgment with which the High Court was dealing.
The Crown in these proceedings submitted that a reasonable observer would know that judges of the Supreme Court often deal with different cases on different evidence and have the ability to put from their minds evidence heard and findings made in other cases. In those circumstances, a judge is able to determine impartially and fairly the circumstances involving the latter case without regard to earlier evidence.
I accept that submission. But, with respect, the submission deals with the capacity of the judge, not the perception of the public or the parties.
It is fair to say that there is a public confidence in the integrity of the judiciary in this country and its capacity to deal fairly and impartially with the issues that come before it on the basis of the evidence before it in those particular proceedings. But the public's confidence in the integrity of the judiciary is based, amongst other things, on the perception of lack of bias and independence. Such matters are fundamental to the integrity of a Court and its reputation.
In this case, as in Livesey, [7] it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties which impacts upon the necessity of the Court, as presently constituted, to deal with the sentencing hearing and determine and impose the sentence required. I am of the view that a fair-minded observer might well entertain a reasonable apprehension of bias in circumstances where I would sit to hear the sentence proceedings after I have expressed clear views about the truthfulness of the offender now before me and the version of events given by him to a witness who gave evidence in prior proceedings.
The truthfulness of the previously impugned version of events is a live and significant issue in this case and goes to the credit of the offender, who is to be sentenced. Further, where the Court is required to deal with issues such as the prospects of rehabilitation and the existence of remorse, there might be a reasonable apprehension that the findings on credit, made in earlier proceedings, might impact the determination by the Court, as presently constituted, in relation to such matters.
In all of the circumstances, it seems advisable that I disqualify myself from hearing and determining the sentence to be imposed on Mr Tozer. I make it clear that I bear in mind that it is inappropriate for a judicial officer to take the easy option and accede to an application for disqualification without concluding that it is necessary. Judicial officers are under a duty to hear and determine matters allocated to them and I bear in mind the comments of the High Court as to the duty to determine such matters when allocated unless there are good grounds to disqualify. [8]
In Polites, supra, the High Court ordered that a tribunal member who had disqualified himself sit, hear and determine the proceedings before the tribunal. Even bearing those aspects in mind and bearing in mind the view that I could, objectively, determine the sentence to be imposed, I accept that there may be a reasonable apprehension by a fair-minded observer that the earlier findings in relation to credit may impact the independence of the determination and prejudice any findings that might be made against the offender on sentence.
I disqualify myself from further hearing, and issue and confirm the following orders:
1. The offender, John Jamie Tozer, is, according to his plea, accepted by the Crown in full satisfaction of the indictment, guilty of manslaughter and said guilt is recorded.
2. The sentence hearing for Mr Tozer is adjourned to 4 April 2025 to be heard and determined by a judge, other than the Court as presently constituted, allocated so to do by the Court.
[5]
Endnotes
R v Bushell (No 20) [2023] NSWSC 1456 (hereinafter "the Bushell Sentence").
The Bushell Sentence at [23].
The Bushell Sentence at [24]-[28].
Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; [1983] HCA 17 (Mason, Murphy, Brennan, Deane and Dawson JJ); R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258-263; [1976] HCA 39 (Barwick CJ, Gibbs, Stephen and Mason JJ).
R v Watson, supra, at CLR 262.
Livesey, supra, at 293-294 CLR.
Livesey, supra, at CLR 300.
Re JRL; ex parte CJL (1986) 161 CLR 342 at 352; Re Polites; ex parte Hoyts (1991) 173 CLR 78 at 85-86.
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Decision last updated: 13 February 2025