Australia, March 12 -- New South Wales Land and Environment Court issued text of the following judgement on Feb. 13:

1. 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.

2. 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.

3. 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.

4. 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]

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/194fcd9d6d1d287ffbf49015)

Disclaimer: Curated by HT Syndication.