R v Cavuoto (No 2)

Case [2025] SASC 98

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v CAVUOTO (No 2)

Criminal Trial by Judge Alone

[2025] SASC 98

Reasons for the Verdicts of the Honourable Justice Kimber  

17 June 2025

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY

CRIMINAL LAW - EVIDENCE - CORROBORATION AND POST-OFFENCE CONDUCT - PARTICULAR CATEGORIES OF EVIDENCE - ADMISSIONS AND CONDUCT OF ACCUSED - LIES, DENIALS ETC

CRIMINAL LAW - EVIDENCE - CORROBORATION AND POST-OFFENCE CONDUCT - PARTICULAR CATEGORIES OF EVIDENCE - ADMISSIONS AND CONDUCT OF ACCUSED - OTHER CASES

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - MISCELLANEOUS MATTERS

CRIMINAL LAW - EVIDENCE - UNSWORN STATEMENTS BY ACCUSED - WEIGHT

The defendant is charged with one count of Murder (Count 1) and two counts of Aggravated Creating Likelihood of Serious Harm (Counts 2 and 3).  The act the subject of each offence is the same, namely the alleged throwing of petrol at the deceased intending to cause a fire and intending to cause grievous bodily harm to the deceased (the alleged act).  Having been set alight, the deceased passed away from severe burns to about eighty per cent of his body.  At the time of the fire which caused the death of the deceased, the alleged victims in Counts 2 and 3 were in a room immediately adjacent to the defendant and the deceased. 

Among the evidence, on the prosecution case, is the defendant being seen by the alleged victim of Count 2, but not by the alleged victim of Count 3, to commit the alleged act and the defendant later admitting to a different prosecution witness that he had set the deceased on fire. 

The defendant gave evidence at trial.  He denied committing the alleged act and denied making the alleged admission.  The evidence of the defendant included that at the time of the fire that caused the death of the deceased, the petrol was in the possession of the deceased who was threatening to use it to harm the defendant and that the evidence of the prosecution witness about the alleged admission was a lie or, in the alternative, unreliable. 

Verdicts

1.The defendant is guilty of Murder (Count 1).

2.The defendant is not guilty of Aggravated Creating Likelihood of Serious Harm (Counts 2 and 3).

3.The defendant is not guilty of the alternative offence to Counts 2 and 3 respectively.  

Criminal Law Consolidation Act 1935 (SA) ss 11, 21, 29; Evidence Act 1929 (SA) ss 28, 34P, referred to.

Bale v Mills (2011) 81 NSWLR 498; Barnes (a pseudonym) v The King [2025] SASCA 53; Bristow v The Queen (2020) 137 SASR 449; Browne v Dunn (1893) 6 R 67; De Marchi v The King [2024] SASCA 49; Ducaj v The Queen (2019) 135 SASR 127; Edwards v The Queen (1993) 178 CLR…

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AGLC
R v Cavuoto (No 2) [2025] SASC 98
Case
[2025] SASC 98
Decision Date

CaseChat Overview and Summary

In the case of R v Cavuoto (No 2), the accused was charged with various offences including murder. The dispute arose from an incident where the accused allegedly threw petrol at the deceased, leading to a fire and the deceased's death. The primary legal issues before the court were whether the accused had the requisite intent to commit the offence and whether the evidence of the accused's conduct and statements post-incident could corroborate the necessary mens rea.

The court examined whether the accused intended to cause grievous bodily harm when throwing the petrol. It was acknowledged that the accused had a history of disagreements with the deceased and had made threats in the past, but the court found these past incidents to be irrelevant to the present case. The court also considered the possibility that the accused was under the influence of methylamphetamine at the time of the incident, but ultimately deemed this factor neutral in proving the necessary intent. The court found that the circumstances of the incident and the context in which it occurred were more relevant in determining the accused's intent.

The court concluded that the evidence of the accused's post-incident conduct, including a lie to a third party and subsequent evasive behaviour, did not substantiate the necessary mens rea for the offence. The court emphasized that while such conduct might be indicative of guilt in some cases, it was not relevant in this instance to prove the requisite intent or state of mind. The court found beyond reasonable doubt that the accused threw petrol at the deceased intending to cause a fire and with the intention that the fire harm the deceased.

The court ordered the accused be found guilty of the charges as per the indictment. The specific sentencing and further details regarding the penalties were not included in the extract.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In the circumstances, I find beyond a reasonable doubt that the defendant threw the petrol at the deceased intending to cause a fire and with the intention that the fire harm the deceased. The lie to Mr Rebbeck and evidence of subsequent evasive conduct – not relevant to the mental elements As set out above, the prosecution submitted that the lie to Mr Rebbeck and the evidence of subsequent evasive conduct were relevant to the mental elements in each count. There may be cases in which a defendant goes to such lengths to distance himself or herself from a death that it provides a basis to conclude not only that the defendant committed the act the subject of the offence but did so with the intent or state of mind necessary to prove the offence charged. There are no hard and fast rules.[434] However, in this case, I am not satisfied that either the lie to Mr Rebbeck nor the evidence of subsequent evasive conduct are relevant to whether the defendant had the necessary intention in Count 1 or had any relevant state of mind in Count 2. [434] R v Baden-Clay (2016) 258 CLR 308, 331-332 [72]-[76] and the authorities referred to therein.Intention – Count 1 In Count 1, the intention sought to be established is intention to cause grievous bodily harm. That intention must exist at the same time as the petrol was thrown. The defendant submits that intention to cause grievous bodily harm has not been established beyond a reasonable doubt. Attention was directed to the importance of not assuming intent, given what was submitted to be the ‘dysfunctional, sometimes irrational conduct’ of the household; the care that must be taken given the consumption of a drug(s); and the weapon chosen.[435] [435] T2081-T2082. In my view, the past disagreements between the deceased and the defendant have no relevance in support of the prosecution case with respect to intention. If the nature of the household has any relevance, it is that the defendant had been involved in disagreements with the deceased before without harming him, including making threats about Merge without acting on them. But I do not consider that to be of much weight in evaluating the intention of the defendant. Past incidents and past threats involving Merge had not resulted in petrol being thrown with the intent to cause a fire. I recognise that the deceased was a friend of the defendant. That had been so for many years and the friendship had endured past disagreements. Nevertheless, while that does not weigh in favour of the prosecution case, in this case, I find that it does not weigh against it either. I regard it as a neutral matter. I find that what matters is what happened in the office and the context. I cannot discount that the defendant was affected by methylamphetamine, but I am not satisfied that assists in proof of an intent to cause grievous bodily harm. I also reject that it weighs against the prosecution case. I regard it as a neutral matter. While a person affected by methylamphetamine might behave recklessly and might be more likely to form the intent to cause grievous bodily harm than a sober person, I cannot discount that it may be just as likely that, when intoxicated and emotional, they might fail to consider the consequence of an act they perform before they perform that act.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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