R v Cavuoto (No 2)
[2025] SASC 98
•17 June 2025
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 193; Harris v The Queen (1990) 55 SASR 321; Mule v The Queen (2005) ALJR 1573; R v Allen (2011) 109 SASR 396; R v Golightly (1997) 17 WAR 401; R v Taheri [2017] SASCFC 92; Sadler v The King [2023] SASCA 63; Tonks v Hourigan [2017] SASC 77; Zoneff v The Queen (2000) 200 CLR 234, applied.
R v Baden-Clay (2016) 258 CLR 308, distinguished.HML v The Queen (2008) 235 CLR 334; Hughes v The Queen (2017) 263 CLR 338, considered.
R v CAVUOTO (No 2)
[2025] SASC 98Criminal: Trial by Judge Alone
KIMBER J
Introduction
Summary of verdicts
A brief outline of the prosecution case
A brief outline of the defence case
The offence of murder – Count 1
The offence of aggravated causing a likelihood of serious harm recklessly – Counts 2 and 3
Some legal directions
The onus of proof
Separate consideration
Circumstantial evidence
Prior inconsistent statements
Expert evidence and agreed facts
The view
Arrangements for witnesses
Intoxication of witnesses – potential impact upon reliability of evidence
The potential for drugs to impact upon behaviour – the deceased and defendant
Other aspects of the conduct of the deceased relevant to the issues
Discreditable conduct
Conduct other than lies and conduct other than evidence of subsequent evasive conduct
Lies and subsequent conduct said to be evasive
The property at 13 Calendar Place, Woodville West
The house
The office
The presence or absence of wax and oil
The presence of ‘wispy’ smoke patterns or ‘feathering’ in the office
The loungeroom
The backyard
The shed
The workshop area
The liquid within the fuel can – two-stroke petrol
Chronology
Events before about 15 March 2021
Monday, 15 March 2021
The morning of Tuesday, 16 March 2021
The night of Tuesday, 16 March 2021 and early hours of Wednesday, 17 March 2021
The first trip to a service station – the defendant and Mr Shannon
The second trip to a service station – Mr Shannon alone
The defendant goes into the house, the timing of the explosion and fire
The defendant finds and speaks to Mr Shannon
Mr Shannon returns – the arrival of emergency services
Movements and other conduct of the defendant
Injuries to, and the passing of, Mr Bradmore
The Key Civilians
Mr Shannon
‘Merge’ and discussions about him before the incident
The incident involving the small axe and machete
Fraudulent activity
Car rims
The defendant and Ms Bistrovic
16 March 2021
16 March and/or 17 March 2021
Mr Shannon eats with the deceased and Ms Bistrovic
The first trip to the service station on 17 March 2021
The return to the house at about 3:26am
The second trip to a service station and the conversation with the defendant
Mr Shannon returns to the house
The phone call at 4:48am
The state of Mr Shannon after his return to the house
Other matters emphasised as being relevant to credibility and reliability
Ms Pearce
The car rims
17 March 2021
Ms Dawkins
The car rims
16 and 17 March 2021 – before the incident
Events immediately before that
Ms Dawkins was not wearing glasses at the time of the incident
The defendant enters the office
What the defendant was holding
What was said and what happened
Ms Dawkins looks away from the office
Events after the fire started
Ms Dawkins - injuries
Ms Dawkins after the incident
Ms Bistrovic
The police attending the house on 11 March 2021
The fraudulent activity in the house
16 and 17 March - before the incident
Glasses
The defendant enters the office – the incident
After the explosion
About 9 months after the fire - requesting Ms Dawkins to tell the police something
Ms Bistrovic’s presentation after the fire
Ms Bistrovic - injuries
What the deceased said after the incident
‘I’m sorry’
‘Alex, Alex’ – not a dying declaration
The evidence of the defendant
Relationship with the deceased
Previous distribution of petrol in soft drink containers
Past violence by the deceased and character of the deceased
Dispute over car rims
Conversation with Ms Ramsey on 15 March 2021
Communications on 16 March 2021
Events of 16 March 2021 before the fire
Going out with Todd Shannon, including what was said and why
What he said to Ms Pearce
Going to the service station with Mr Shannon and returning home
Back at the house from about 3:26am
What happened when he went into the house
Why he left
The conversation with Todd Shannon behind the service station
Contact with Mr Shannon after the conversation
Where he went after seeing Todd Shannon
Contact with Ms Rodney
The phone call from Ms Ramsey
The text messages from Mr Rebbeck
The four phone calls
The approach to the fourth call at trial
The failure to cross‑examine - the rule in Browne v Dunn
Should the fourth call be treated as exculpatory?
The competing versions that arise on the evidence
Evidence of what is said to be subsequent evasive conduct and an admitted lie by the defendant
Subsequent evasive conduct
The lie to Mr Rebbeck
The expert evidence
Four areas of patterns consistent with ignitable fluid burning
The absence of burn patterns on the floor
The evidence about patterning on the front of the nib wall
The prosecution and defence scenarios – both open
The clothing of the deceased
The wax in the office
‘Oily residue’ on the screen of the black laptop
The damage to the Solo bottle
The expert evidence – conclusions
The third scenario – the fourth phone call
Further findings
The attitude of the defendant to the deceased at the time of the incident
The evidence of Ms Pearce
The attitude of the defendant about the deceased immediately before the incident
Why the defendant went into the house
What the defendant was holding when he went into the office
Evidence about the workshop area, the use of petrol and a cut off drink bottle
Might the deceased have taken the petrol inside?
The defendant took the petrol inside
The question of whether the petrol was thrown
Todd Shannon – the two conversations – findings
The first conversation at the service station
The phone call in the presence of the police officer at about 4:48am
What else was said in the office
Ms Dawkins
Ms Bistrovic
Inconsistent statements
The suggestion to Ms Dawkins about what should be said to the police
Evidence about fraudulent activity
Recollection of calling the police
The view that Ms Bistrovic had of the office
The evidence of the throw
The evidence of Ms Dawkins about her observations of Ms Bistrovic
The evidence of subsequent evasive conduct and the lie to Mr Rebbeck
The lie to Mr Rebbeck
The evidence of subsequent evasive conduct
Conclusion – the petrol was thrown
The lie to Mr Rebbeck and evidence of subsequent evasive conduct – not relevant to the mental elements
Intention – Count 1
Counts 2 and 3
Verdicts
Introduction
On 19 March 2021, Mr Todd Bradmore (the deceased) passed away from severe burns to about eighty per cent of his body. The burns were sustained at about 3:37am on 17 March 2021 during an incident (the incident) between the deceased and Mr Alessandro (Alex) Cavuoto (the defendant). Both men had been friends for many years. The incident occurred in the office of a house at 13 Calendar Place, Woodville West (the house). Also present in the house were Ms Aisha Bistrovic (Ms Bistrovic) and Ms Billie‑Joan Dawkins (Ms Dawkins).
On the prosecution case, knowing that the deceased was holding a lit candle and that there were other lit candles in the office, the defendant threw petrol at the deceased intending to start a fire and to cause grievous bodily harm. As a result of having allegedly thrown the petrol at the deceased, the defendant is charged with the three offences set out below. The act the subject of each offence is the same (i.e. – the alleged throwing of the petrol). The three offences and their particulars are as follows:[1]
[1] Information, FDN 5, filed 23 November 2022.
Count 1:
Offence Details:
Murder. (Section 11 of the Criminal Law Consolidation Act, 1935.)
Particulars
Alessandro Giovanni Cavuoto between the 16th day of March 2021 and the 20th day of March 2021 at Woodville West, murdered Todd Ian Bradmore.
Count 2:
Offence Details:
Aggravated Creating Likelihood of Serious Harm. (Section 29(2) of the Criminal Law Consolidation Act, 1935.)
Particulars
Alessandro Giovanni Cavuoto on the 17th day of March 2021 at Woodville West, without lawful excuse, ignited accelerant and caused a fire, knowing that act was likely to cause serious harm to Aisha Bistrovic, and being recklessly indifferent as to whether such harm was caused.
Count 3:
Offence Details:
Aggravated Creating Likelihood of Serious Harm. (Ibid.)
Particulars
Alessandro Giovanni Cavuoto on the 17th day of March 2021 at Woodville West, without lawful excuse, ignited accelerant and caused a fire, knowing that act was likely to cause serious harm to Billie‑Joan Dawkins, and being recklessly indifferent as to whether such harm was caused.
Summary of verdicts
I am satisfied beyond a reasonable doubt that the defendant consciously, deliberately and unlawfully threw petrol at the deceased, intending to cause him grievous bodily harm. The defendant is guilty of Count 1. I have a reasonable doubt about whether, at the time that he threw the petrol, the defendant gave any thought to causing any harm to any person other than the deceased. I find the defendant not guilty of Counts 2 and 3 and their alternatives.
My reasons for the verdicts follow.
A brief outline of the prosecution case
At the time of the incident, the defendant and the deceased were sharing the house with Ms Bistrovic, the partner of the deceased, and Mr Todd Shannon (Mr Shannon), a friend of the defendant and the deceased. Despite their friendship, the defendant and the deceased would argue from time to time. On occasions in the past, those arguments had involved weapons. At least in part, the arguments related to the deceased’s relationship with Ms Bistrovic and/or the involvement of the deceased and the defendant in fraudulent activity. The defendant and the deceased were involved in a form of identity fraud.
On the prosecution case, before 17 March 2021, the defendant and the deceased had argued more than once and, in the hours before the incident, the defendant had threatened to harm the deceased. On the prosecution case, immediately before the fire, the defendant entered the house to confront the deceased, carrying with him a container into which he had placed petrol. The container had been fashioned from the base of a 2‑litre Solo brand plastic drink bottle (the Solo bottle). The deceased was in the office. Ms Bistrovic and Ms Dawkins were in the loungeroom immediately adjacent to the office. The loungeroom and the office were separated by an open area; there was no door.
At the time the defendant entered the office, there was more than one lit candle on the desk. Earlier that night, there had been a power outage. When the defendant entered the office allegedly holding the petrol, he demanded that the deceased speak to him. The deceased was behind the desk. On the prosecution case, the deceased picked up a lit candle from the desk and, holding that candle in front of him, moved towards the defendant. On the prosecution case, with an intention to start a fire and intending to cause grievous bodily harm, the defendant threw the petrol at the deceased, resulting in an explosion, fire and the burns to the deceased.
There is no dispute that, immediately after the explosion, the defendant left the house, drove away in his car and never returned to the house. There is no dispute that, a few minutes after the fire, the defendant met with Mr Shannon and gave an account of what had happened at the house. On the prosecution case, the defendant told Mr Shannon he had set the deceased on fire.
About an hour after the fire, Ms Venette Ramsey (Ms Ramsey), the mother of the deceased and a woman the defendant knew, phoned the defendant. There is no dispute that the defendant decided not to answer that call. About four hours after the fire, Mr Darryl Rebbeck (Mr Rebbeck or ‘Blackie’), the partner of Ms Ramsey, exchanged text messages with the defendant. Mr Rebbeck told the defendant that the deceased was in surgery and had been ‘firebombed’.[2] The defendant replied that he had not been at the house since the previous afternoon. There is no dispute that was a deliberate untruth. Within a few hours of the fire, the defendant decided to leave South Australia (SA). There is no dispute that he drove to New South Wales (NSW) and tried to avoid being stopped by police there. The defendant was ultimately arrested on the night of 17 March 2021, after his car left the road during a police chase.
[2] Exhibit P57, page 3.
A brief outline of the defence case
The defendant gave evidence. His evidence is to be evaluated in the same way as any other witness.
There is no dispute that shortly before the incident, the defendant went into the office intending to engage with the deceased. The defendant says his intention was merely to speak to the deceased. The defendant says he did not take petrol into the office and did not throw any petrol. The defendant says the deceased had the Solo bottle containing petrol in the office. The defendant says that shortly after he entered the office, the deceased picked up Solo bottle from beneath or behind the desk, picked up the lit candle from the desk and moved towards the defendant. The defendant says he went to knock the petrol from the hand of the deceased. The defendant says the deceased moved at least to his right and, in doing so, expelled petrol at least on to the desk which was to his right. There was then the explosion and the fire. The defendant says there was no throwing of the petrol by him.
The defendant agrees that he left the house immediately after the explosion, drove away, and never returned to the house. The defendant says he did not tell Mr Shannon that he had set the deceased on fire. The defendant says he told Mr Shannon that the deceased had set fire to the house.
The defendant agrees that he did not respond to the phone call received from Ms Ramsey; agrees that he was not honest with Mr Rebbeck; agrees he decided to drive to NSW; and does not dispute that he tried to avoid being stopped by the police. The defendant denies doing any of those things because he had thrown petrol at the deceased.
The offence of murder – Count 1
A person commits murder if they cause the death of another person, deliberately and unlawfully whilst, at the same time, intending to cause death or grievous bodily harm. In this case, the prosecution does not seek to establish an intention to kill and so I will only refer to an intention to cause grievous bodily harm (or really serious harm).
To prove the charge of murder, there are five elements that the prosecution must prove beyond a reasonable doubt:
1.The defendant threw the petrol (the act);
2.The act was voluntary (i.e. – the result of the exercise of the will);
3.The act was a substantial cause of the death of the deceased;
4.The act was unlawful (i.e. – self-defence or defence of another must be excluded);
5.The act was done with the intention to cause grievous bodily harm to the deceased. That intention must exist at the same time that the act was committed.
In this case, if the prosecution proves the first element beyond a reasonable doubt, there is no dispute that the second, third and fourth elements will also be proven to that standard. The real issues in Count 1 are the first and fifth elements.
The offence of aggravated causing a likelihood of serious harm recklessly – Counts 2 and 3
In this case, the offences of Aggravated Causing a Likelihood of Serious Harm Recklessly have the following elements[3]:
1.The defendant threw the petrol (the act);
2.The act was voluntary (i.e. – the result of the exercise of the will);
3.The act was unlawful; (i.e. – self-defence or defence of another must be excluded).
4.The act was likely to cause serious harm to another person.
5.At the time of the act, the defendant knew the act was likely to cause serious harm to another person;
6.At the time of the act, the defendant was recklessly indifferent to whether serious harm would be caused (i.e. – the defendant knew it was probable that serious harm would be caused).
[3] Ducaj v The Queen (2019) 135 SASR 127, [7]-[48].
For the purposes of Counts 2 and 3, ‘serious harm’ is ‘harm that endangers a person’s life; or harm that consists of, or results in, serious and protracted impairment of a physical and mental function; or harm that consists of, or results in, serious disfigurement’.[4] For the purposes of Counts 2 and 3, the word ‘likely’ is not limited to describing a consequence which is more probable than not. It carries its ordinary meaning. For the purposes of Counts 2 and 3, the aggravated offence will be made out if I am satisfied beyond a reasonable doubt that petrol is an offensive weapon. In both counts, if all other elements are proven beyond a reasonable doubt, there is no dispute that the element of aggravation is established to that standard. In each of Counts 2 and 3, if the prosecution proves the first element beyond a reasonable doubt, there is no dispute that the second and third elements will also be proven to that standard.
[4] Criminal Law Consolidation Act 1935 (SA) (CLCA) s 21(1).
The defendant submitted that, in this case, proof of either Count 2 or 3 required the defendant to know that more than one person was in the loungeroom when he threw the petrol. Putting that aside, there is no dispute that, in a respective count, if the fifth element is established beyond a reasonable doubt, the sixth element would also be established to that standard. It follows that the real issues in the respective counts are the first, fourth and fifth elements.
Some legal directions
It is not necessary for a Judge having conducted a trial without a jury to set out the standard legal directions of which a Judge is bound to be aware. Nevertheless, I set out the following principles which I have applied.
The onus of proof
Consistent with the above, the onus of proof is beyond a reasonable doubt. The defendant is presumed innocent unless and until his guilt is proven beyond a reasonable doubt. Before the defendant can be found guilty of any offence, every element of that offence must be established beyond a reasonable doubt. The defendant does not have to prove anything, to any standard. The burden of proof is always on the prosecution.
Separate consideration
Each of the three offences must be given separate consideration.
Circumstantial evidence
On the prosecution case, there is direct evidence from Ms Bistrovic of the act the subject of each offence. She says that she saw the petrol thrown by the defendant. However, the prosecution also relies upon circumstantial evidence to prove the defendant committed that act and to prove other elements. Proof of an element based upon circumstantial evidence demands that what the prosecution must prove be the only rational inference. In a case involving circumstantial evidence, there are two steps. First, to consider the evidence upon which the prosecution relies and decide what facts are established. Second, to consider what inference or inferences can be drawn from the established facts. The second step requires consideration of the combined strength of the facts established by the evidence. Proof of the relevant element must be the only rational inference.
Prior inconsistent statements
Witnesses called by the prosecution were cross‑examined about statements made outside court. Such statements are only admissible if they are inconsistent with evidence given in court. In that event, they may be relevant to credibility and/or reliability. Things said outside court by a prosecution witness are not admissible for the truth.
Expert evidence and agreed facts
Evidence was given by the following experts: Mr Pickburn, Mr Forbes and Mr Cox (all persons with experience in fire investigations); Dr Coghlan (a medical practitioner); Dr White (a pharmacologist with training in psychology); Ms Djulamerovic (a forensic scientist with expertise in analysing items for the presence of ignitable liquid residues); and Mr Cook (a forensic scientist, also with expertise in analysing items for the presence of ignitable liquid residues). Reports/statements of other experts were tendered without those experts giving oral evidence. Those experts were Dr Gilbert (a forensic pathologist); Ms Lindsay (a forensic scientist with expertise in toxicology); Dr Rudd (a medical practitioner involved in the treatment of the defendant in NSW); Ms Pinyon (a forensic scientist with expertise in DNA analysis); Ms Black and Ms Wilczek (forensic scientists with expertise in examining items for the presence of ignitable fluid residue).
The usual rule is that witnesses can only give evidence of facts, not opinions or conclusions drawn from those facts. An exception to that rule is that a properly qualified expert can give evidence of their opinion on matters within their expertise. There are two key rules in assessing expert evidence. First, it is for the trier of fact to decide what evidence to accept and what weight to give to it. There is no requirement to blindly adopt the opinion of an expert witness simply because they are an expert. Second, an expert witness is to be assessed in the same way as any other witness, but with other considerations in mind. Those considerations include an assessment of whether the witness appeared impartial or biased; how their evidence fits with other accepted evidence; and whether the witness had been referred to all the relevant facts in forming an opinion.
There are several matters that are the subject of agreed facts. There is no dispute that I should accept the agreed facts.
In addition to evidence given by experts based upon their work experience, witnesses gave evidence about the appearance and behaviour of Ms Bistrovic, Ms Dawkins and Mr Shannon after the incident. That evidence is part of a body of evidence relevant to whether those witnesses might have been affected by a drug(s) at the time of events about which they gave evidence.
The view
During the trial, a view was held at the house and at other locations. The view is not evidence but can assist in understanding the evidence.
Arrangements for witnesses
Several witnesses gave evidence after orders were made as to how their evidence was to be given. Those arrangements involved some witnesses giving evidence by video link and/or giving evidence in a closed court. It is not necessary to detail the witnesses, nor the precise arrangements. What matters is that these arrangements are irrelevant to my task. No inference adverse to the defendant is to be drawn from the making of any arrangement. No such arrangement can impact upon the weight which is to be given to the evidence.
Intoxication of witnesses – potential impact upon reliability of evidence
At the time of relevant events, the following witnesses had consumed drugs and might have been under the influence of those drugs: Ms Bistrovic; Ms Dawkins; Ms Pearce; Mr Shannon; and the defendant. Without overlooking that the defendant bears no onus of proof, this is an important matter in evaluating the reliability of the evidence of each witness. Drugs, such as those consumed by the witnesses just mentioned, have the potential to impact adversely upon perception, memory and vision.
There is no dispute that within the blood of Ms Dawkins and Ms Bistrovic at the time of the incident were methylamphetamine and amphetamine. The blood of Ms Dawkins also contained clonazolam and its metabolite, 8-aminoclonazolam, diazepam and a prescription antidepressant. The prescription antidepressant was at a level consistent with normal therapeutic use. That drug may have potentiated some effects of the methylamphetamine, but not in a way likely to be pronounced. The blood of Ms Bistrovic contained 8-aminoclonazolam, but not clonazolam. Before the incident, Ms Bistrovic had also taken a prescription anti‑depressant drug which may have enhanced some potential effects of methylamphetamine, particularly the physical effect of that drug and the degree of agitation experienced. At the time of the incident, the predominant effect upon Ms Bistrovic would have been the methylamphetamine.
The potential adverse effects of clonazolam include sedation; general impairment of motor skills, such as balance, co-ordination and clumsiness; indifference; impaired thinking and judgement, including confused and irrational thinking; and risky and impulsive behaviour.
This is no dispute that drugs such as methylamphetamine, clonazolam and cannabis can have an adverse impact upon the reliability of memory.
The undisputed evidence is that Ms Bistrovic may have experienced cognitive and memory deficits due to her use of methylamphetamine.
The undisputed evidence is that the predominant effect on Ms Dawkins would have been due to her consumption of methylamphetamine, with potential effects including confused thinking. The undisputed evidence is that Ms Dawkins may have experienced cognitive and memory deficits due to her use of methylamphetamine.
There is no dispute that users of methylamphetamine have reported experiencing blurred vision. The undisputed evidence was that this potential effect was ‘probably more likely to affect a person at night’.[5]
[5] T989.2-3.
There is no dispute that before the incident, Mr Shannon and Ms Pearce had consumed methylamphetamine and cannabis. The concentration of drugs in the blood of Ms Pearce and Mr Shannon at the time of events the subject of their evidence is unknown. I proceed on the basis that the drug use of Ms Pearce and Mr Shannon has the potential to have had an adverse impact upon their memory, vision and perception of events.
Blood and urine were taken from the defendant, but not until the night of 18 March 2021. Those samples contained methylamphetamine and amphetamine. Expert evidence was given of the possible concentration of methylamphetamine at the time of the incident. However, in evidence that I do not reject, the defendant said that he had consumed methylamphetamine after the incident. It follows that the expert evidence given as to the possible concentrations in his blood at the time of the incident must be disregarded. That said, there is no dispute that the defendant had consumed methylamphetamine before the incident. I am satisfied that he consumed that drug at least between about 12:52am and about 2:05am on 17 March 2021. Ms Pearce was with the defendant during that time. The defendant did not challenge her evidence that he was ‘smoking the same pipe [of methylamphetamine] the whole time [she] was there’.[6] The defendant said that he used methylamphetamine while with Ms Pearce.[7]
[6] T302.37; T1383.
[7] T1496.11-20.
I proceed on the basis that the consumption of methylamphetamine by the defendant before the incident has the potential to have had an adverse impact upon his memory, vision and his perception of events.
The potential for drugs to impact upon behaviour – the deceased and defendant
In this case, drug use is relevant in evaluating how both the defendant and the deceased might have behaved at relevant times. As set out above, drugs, such as the ones just mentioned, can also impact upon how events are perceived.
At the time of his death, the blood of the deceased contained methylamphetamine, amphetamine (at a concentration consistent with it being a metabolite of methylamphetamine), clonazolam and the clonazolam metabolite, 8‑aminoclonazolam.
Relevant to how the deceased and defendant might have acted before, and at the time of, the incident, and relevant to the defendant’s conduct after the incident, methylamphetamine can lead to increased activity, erratic, impulsive, risky or reckless behaviour and confused thinking. Methylamphetamine use has been frequently linked to aggressive and violent behaviour. Users can suffer confused thinking when withdrawing from the drug; a person can be irritable.
Methylamphetamine can produce psychotic effects, which almost always include paranoia. Users can behave very irrationally and in a way which is dangerous to themselves and others. The evidence was that tolerance does not develop to the psychotic effects of methylamphetamine, but psychotic symptoms are more likely to occur in people with a pre-existing psychotic disorder, such as schizophrenia. There is no evidence that either the deceased or the defendant had any psychotic disorder.
The expert evidence was that ‘it is reasonable to conclude that [the deceased] was significantly affected by methylamphetamine’ at the time of the explosion and that he could have been experiencing any of the effects of that drug which I have summarised above.[8] Relevant to the deceased, but not relevant to the defendant, are also the potential effects of clonazolam. I have earlier set out the potential adverse effects of that drug. The expert evidence was that it is likely the deceased ‘would have been experiencing some effect of clonazolam’ at the time of the explosion and fire.[9] Given the drugs he had consumed before the incident, I am satisfied that, at the time of the incident, the deceased was at a greater risk of engaging in impulsive, risky and aggressive behaviour than when not affected. He was also at risk of being more irritable than usual, being clumsy, having difficulties with co-ordination, and experiencing thinking that was irrational and confused.[10]
[8] Report of Professor White, Exhibit P68, page 12.
[9] Ibid.
[10] T991; Report of Professor White, Exhibit P68, page 6.
Plainly enough, these are all matters which are important to the evaluation of what the defendant has said about what occurred immediately before the fire (e.g. – whether the deceased might have had petrol in the office; how the deceased might have responded to the defendant after he entered the office; whether the deceased might have picked up both petrol and a lit candle and held them in close proximity; whether the deceased might have moved towards the defendant; whether the deceased might have threatened the defendant; and whether the deceased might have acted in a way which disturbed the petrol and caused the explosion - and - whether, on the whole of the evidence, the prosecution has proven beyond a reasonable doubt that the defendant threw the petrol).
While I am satisfied that, at least between about 12:52am and 2:05am on 17 March 2021, the defendant had consumed methylamphetamine, there was nothing in the evidence of the three witnesses who spent time with the defendant before the incident to suggest that he was showing any relevant effect, other than that the drug may have contributed to his mood. Ms Furkaliev was with the defendant between about 6:40pm and 9:30pm on 16 March 2021. Mr Shannon was with the defendant for substantial periods of time between about 10pm on 16 March 2021 and about 3:45am on 17 March 2021. Ms Pearce was with the defendant between about 12:52am and 2:05am on 17 March 2021.
Nevertheless, given that the defendant consumed methylamphetamine at least in the presence of Ms Pearce, it is likely that, at the time of the incident, the defendant was affected by methylamphetamine to some degree. For reasons to be given, at the time of the incident, the defendant was frustrated, preoccupied and angry with the deceased. Drug use may have contributed to, and increased, those states of mind. Further, I am satisfied that, at the time of the incident, the defendant was at a greater risk of experiencing confused thinking and of engaging in impulsive, risky and aggressive conduct than he would have been had he not been affected by methylamphetamine.
As set out earlier, there is no dispute that after the incident, the defendant left the house and never returned. The defendant also did not answer the phone call of Ms Ramsey; gave certain responses by text message to Mr Rebbeck; drove to NSW; and avoided the police. The potential effects of methylamphetamine must be borne in mind in evaluating the significance, if any, of that conduct.
Other aspects of the conduct of the deceased relevant to the issues
It is not just the evidence about the drug use of the deceased that is important to the evaluation of the issues in the trial. There was other substantial evidence about the behaviour of the deceased before the incident. Such evidence is relevant to whether the deceased might have had a container of petrol behind the desk in the office and how the deceased might have behaved at the time of the incident (i.e. – whether the deceased might have behaved aggressively; might have picked up both the petrol and a lit candle and held them in close proximity; might have threatened the defendant; might have moved towards the defendant; and might have acted in a way which disturbed the petrol and caused the explosion).
I am satisfied that the deceased was capable of being volatile, irrational, violent and aggressive, including towards the defendant. I am satisfied that the deceased could arm himself with a weapon; could decide to use a weapon; and could make threats (i.e. – by words and/or actions). I am satisfied that the deceased could act in a reckless and irresponsible way, including by acting with disregard to the risk of harm to the defendant, himself and others.
At the time of the incident, the deceased kept two large knives next to his bed. They were positioned to enable them to be taken up and used at short notice. I am satisfied that the deceased was prepared to use both as weapons. I accept that the deceased had armed himself with a machete, waved it at the defendant and made contact, notwithstanding the defendant was holding a small axe. This occurred before 17 March 2021. I accept that on a different occasion, the deceased had become upset with the defendant and came into his bedroom armed with a knife.
I accept the evidence of Mr Shannon that the deceased could be erratic, nasty, ‘a bit aggressive’, ‘a bit irrational’ and that he could make accusations that were not true.[11] I accept the evidence of Mr Shannon that the deceased could behave in such ways whether intoxicated or not. I accept that the deceased had threatened violence to Mr Shannon and had punched him in the head six or seven times when Mr Shannon had not given the deceased the phone number of Ms Pearce. I accept the evidence of Mr Shannon that the deceased could be ‘quite volatile’, could ‘talk himself into trouble’ and had a fast mouth.[12]
[11] T793.4-12.
[12] T790.3-11.
I accept the evidence of Ms Jennifer Rodney (Ms Rodney) that the deceased could become ‘quite aggressive’, ‘quite irrational’ and that he had threatened the defendant with violence.[13] I accept the evidence of Ms Bistrovic that the deceased had struck her on the cheek. I accept the evidence of Ms Dawkins that the deceased could be irrational.
[13] T902.26-33.
Discreditable conduct
There is evidence that the defendant engaged in discreditable conduct. There was no objection to any such evidence being admitted. The impermissible uses of any such evidence must be identified. No such evidence can be used to suggest that the defendant is more likely to have committed any offence because he engaged in discreditable conduct (i.e. – ‘rank bad person’ reasoning is not permissible).[14] No such evidence has a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue.[15]
Conduct other than lies and conduct other than evidence of subsequent evasive conduct
[14] Evidence Act 1929 (SA) (EA) s 34P(1).
[15] Ibid, s 34P(2)(b).
The evidence of discreditable conduct by the defendant that the parties submitted attracted the application of s 34P of the Evidence Act 1929 (SA) (EA) can be summarised as follows:
·the defendant used drugs;
·the defendant participated in fraudulent activity with the deceased;
·the defendant drove without a licence and/or while disqualified from driving;
·the defendant had armed himself with a weapon during a disagreement with the deceased before 17 March 2021;
·the defendant kept a baton in his car;
·before the incident, the defendant had threatened to be violent to the deceased; and
·the defendant had referred to Ms Bistrovic in a demeaning fashion (i.e. – as ‘a mutt’).
There was also evidence that the defendant had been on home detention in the past. That evidence was given to explain how Mr Shannon and the defendant had met. There was no evidence as to why the defendant was on home detention. It may have been for an offence that was not subsequently proven. Consequently, I will not treat the defendant having been on home detention as evidence of discreditable conduct. That the defendant had been on home detention in the past has no use, other than to establish how the defendant met Mr Shannon.
Beyond the potential effects of drug use on the defendant mentioned above, the only other permissible use of the defendant using drugs is to place into context his relationships with persons whom the evidence establishes also used drugs; and to shed light on whether the defendant might have used methylamphetamine on the night of, and after, the incident.
The only permissible use of the evidence that the defendant had possessed a weapon before 17 March 2021 during a dispute with the deceased is to place into context the evidence given of that dispute. The evidence of the defendant was that, despite him holding a small axe, the deceased came towards him with a machete and cut him. I have already set out what this might say about the deceased and how he might have behaved at the time of the incident. That the deceased approached the defendant with the machete despite the defendant holding an axe, can also shed light on whether, before entering the house immediately prior to the incident, the defendant might have had any reason to believe that if he approached the deceased with a weapon, the deceased might nevertheless arm himself and approach the defendant. Put another way, this earlier altercation might inform whether, on the night of the incident, the defendant might choose a weapon (i.e. – petrol) which he could use without coming within reach of the deceased. The only permissible use of the evidence that the defendant had a baton in his car is to give context to evidence of things the defendant allegedly said about that weapon on 16 and 17 March 2021. The only permissible use of evidence that, on 16 or 17 March 2021, the defendant threatened to be violent to the deceased is to shed light upon the way the defendant felt about the deceased before the incident. Put another way, evidence of alleged threats is relevant to whether, at the time of the incident, the defendant might have been angry with the deceased, motivated to confront him and motivated to harm him.
On the prosecution case, during the incident, a person by the name of ‘Merge’ was mentioned. Merge had been injured in a fire and he was a person well known to the deceased and the defendant. There is evidence that, before the incident, both the deceased and the defendant had referred to making the other ‘look like Merge’.[16] To the extent such words were said by the defendant before the incident, the only permissible use is to place into context what is alleged to have been said at the time of the incident; to inform what might have been intended, and understood, by the reference to Merge; and to inform whether hearing reference to ‘Merge’ might have given cause to Ms Bistrovic and/or Ms Dawkins to pay attention to the incident.
[16] T672.8-23.
The only permissible use of evidence that the defendant had engaged in fraudulent activity with the deceased is to provide context to that aspect of the relationship between the defendant and the deceased; to shed light on whether that might have been a source of conflict between them; and to shed light on whether that might have motivated the defendant to enter the office.
The only relevance of evidence that the defendant referred to Ms Bistrovic in a demeaning way is to place into context past confrontations between the defendant and the deceased which might, in whole or in part, have been about her.
The only relevance of evidence that the defendant drove disqualified and/or without a valid driver’s licence is that it might shed light on why the defendant sought to escape from the police in NSW (i.e. – whether that evidence is a possible explanation for that conduct in NSW rather than being related to what the defendant did in the office).
Lies and subsequent conduct said to be evasive
As will be seen, the defendant admitted lying to Mr Rebbeck after the incident. Further, on the prosecution case, there is evidence which I will later summarise and refer to as ‘subsequent conduct said to be evasive’. There was no objection to the admission of these two bodies of evidence and no party submitted that any aspect attracted the application of s 34P of the EA. The submissions were directed to whether the lie to Mr Rebbeck was relevant to the credit of the defendant and/or was relevant as circumstantial evidence and whether the evidence of subsequent conduct said to be evasive, or any part of that evidence, was relevant as circumstantial evidence. The potential uses just mentioned are the only permissible uses of the evidence just mentioned. Later, I will refer to this evidence in more detail and outline whether it has been used.
A lie may be discreditable conduct evidence to which s 34P of the EA applies.[17] I have treated the lie to Mr Rebbeck as subject to the prohibitions set out at [55] above.[18]
[17] Sadler v The King [2023] SASCA 63, [30]; [99] ff.
[18] At [55] above, the prohibitions are upon rank bad person reasoning (s 34P(1)) and evidence of propensity or disposition used as circumstantial evidence of a fact in issue (s 34P(2)(b)). In my view, the use of a lie as circumstantial evidence is not a use which relies upon the propensity of a defendant and so s 34P(2)(b) does not apply to that potential use. There is obiter that a lie used as relevant to credibility is ‘a form of permissible propensity reasoning’ (Sadler v The King, [102]). However, accepting that to be so, used as relevant to credit, in my view, s 34P(2)(b) does not apply because the alleged lie is not being admitted as ‘circumstantial evidence of a fact in issue’. It is being used only as to credit. The facts in issue in a criminal trial are those which establish the elements of the offence (Hughes v The Queen (2017) 263 CLR 338, 348-349 [16]; HML v The Queen (2008) 235 CLR 334, 351-352[5]).
I am not aware of any authority which has determined that s 34P of the EA applies to evidence of subsequent evasive conduct.[19] Relevant is that all that might be required for conduct to be discreditable is that it be ‘wrongful or morally repugnant in some way, such that it reflects poorly upon the defendant’[20] or involves ‘immoral, unethical or unjust departures from broadly accepted social standards which attract opprobrium of right thinking members of the community’.[21] That being so, the state of mind of a person at the time of conduct might determine whether the conduct is discreditable. For example, if nothing is known about why the statement was made, it is not discreditable for a person to make a statement about their whereabouts at a particular time. But it may be discreditable if the person knows the statement is false and intends to deceive (i.e. – tells a lie). Put another way, in the application of s 34P of the EA, any distinction between a lie and other forms of post offence conduct might be difficult to identify. These issues were not the subject of submissions, and it is not necessary that they be determined. I will take an approach not contrary to the interests of the defendant. Without deciding, I treat the evidence of subsequent evasive conduct as evidence to which s 34P of the EA applies. It follows that it is evidence which is the subject to the prohibitions set out at [55] above.
[19] In De Marchi v The King [2024] SASCA 49, it was held that cleaning or repairing a room in which a person knew cannabis had been grown was not discreditable conduct.
[20] Ibid [27].
[21] Barnes (a pseudonym) v The King [2025] SASCA 53, [2].
As set out, I will return to both bodies of evidence later.
The property at 13 Calendar Place, Woodville West
Before turning to some other aspects of the evidence, it is helpful to set out some evidence about the house; items found at that house; and some other matters. Aspects of this evidence assist in understanding evidence to which I will later turn.
The house
The property at 13 Calendar Place, Woodville West was a house with three bedrooms. The layout of that house is set out within the plan below. Insofar as furniture and fittings are shown, they are just approximations using generic symbols/shapes. They do not reflect in a perfect way the furniture and fittings.
Bedroom 1 is at the front of the house, closest to the driveway and street. The front door opened into a hallway. To the right upon entry through the front door is a door into the loungeroom. The deceased and Ms Bistrovic shared bedroom 1. In that room, at the time of the incident, were the two machetes or large knives. They were positioned in the bedside drawer in a way only consistent with them having been placed there to be used as weapons by the deceased. The defendant was using bedroom 2. Bedroom 3 was a spare room used, from time to time, by Ms Dawkins.
The rooms within the house of particular significance to the issues in the trial are the office and the loungeroom. As earlier set out, there is no dispute that, at the time of the incident, the deceased and the defendant were in the office and Ms Bistrovic and Ms Dawkins were in the loungeroom.
The office
In the office was a desk, approximately in the middle of the room as shown in the above plan. The desk was about 73cm high and not symmetrical. It was about 80cm deep at the widest point. A person sitting behind the desk would be facing in the direction of the dining room. Behind such a person was a set of open bookshelves of about the same height as the desk. The top of the bookshelves formed a bench. Working vertically, the bookshelves were divided in two at about halfway. Working horizontally, they were divided in four. There was a large window in the wall which faced towards the backyard.
There were double doors (the double doors) between the dining room and the office which, when opened, swung into the office. The combined width of both doors was about 1.6m.[22] If a person entered the office from the dining room, immediately to their left were two rows of filing cabinets and, on the night of the incident, a chair. The distance from the middle of the double doors to the closest edge of the couch in the loungeroom was about 3.932m.[23]
[22] T82.29-32.
[23] T83.12.
When police entered the house (which was after fire officers had been inside to check whether there were any occupants, to put out the fire, and to ventilate the house), several potentially relevant items were found.
In the office, on the floor and just inside the double doors, the Solo bottle, cut off at about the level of the top of the label was located. In the base of that bottle was a small amount of liquid, which contained petrol and oil (i.e. – two-stroke petrol).
Further into the office, on the floor but closer to the opening between the office and the loungeroom, was a glass candle within a diamante mesh. The mesh was damaged. Immediately to the right of that candle (from the perspective of a person walking from the dining room into the office) was a board positioned such that the right-hand side double door (i.e. – the door to the right of a person entering the office from the dining room) was held open. On the surface of that board, which faced into the office, was wax. I am satisfied that the board was not in that position at the time of the incident. The evidence of the fire officers who first entered the house was that it was common to use items to keep doors open to aid ventilation and the removal of smoke.
On the front corner of the filing cabinet, being the corner closest to the middle of the office, there was a tea light candle with red wax.[24]
[24] Exhibit P12, page 1.
On the desk, approximately in the middle and towards the edge closest to the dining room, was a pair of sunglasses. Also on the desk were two laptops, including one red laptop at the end of the desk closest to the window looking into the rear yard. That red laptop was closed. On top of the red laptop were two tea light candles, apparently containing white wax. The second laptop was black and was open. It was approximately in the middle of the desk and facing towards where a person would sit if seated behind the desk. There was a chair approximately facing that laptop, but at an angle to it. There was a phone attached to that laptop. On the desk, to the left of the black laptop and adjacent to it, were a lighter and pipe suitable for smoking methylamphetamine. On the desk, approximately halfway between the black laptop and the edge of the desk closest to the loungeroom, was a candle in a ribbed glass holder. Patterning on the desk beneath, and immediately adjacent to, that candle establishes that it was on the desk during the fire. Near to that candle were a burnt tissue and a small piece of burnt paper or cardboard.
On the floor of the office, behind the desk and approximately underneath the window, was a Tilley brand candle. There was a lid on that candle. I am satisfied that it was not lit at the time of the incident and is irrelevant.
On the floor of the office, behind the desk and immediately in front of the shelves, was a piece(s) of a broken small drinking glass with red striping. It was a novelty type glass obtained at some point from Hungry Jacks. It had been broken into at least three pieces. There was no wax within the glass. My inspection of the photographs of that item does not suggest that it might have held a lit candle (i.e. – there is no obvious sooting).
The presence or absence of wax and oil
Putting aside the wax on the board referred to above and any wax within any tealight or glass candle, there was other wax in the office. There was also oil/oily residue.
On the black laptop, there was an ‘oily residue’ on the screen. On the keyboard of that laptop, there appeared to be waxy residue. There was also a waxy residue on the surface of the desk to the left of that laptop (i.e. – the side of the laptop closer to the loungeroom). Behind that laptop (i.e. – on the side closer to the dining room) was a relatively large area of waxy residue on the surface of the desk and on top of the red laptop.
There was residue of oil and/or wax[25] on the phone that was on the desk which was attached to the black laptop. At the end of the desk closest to the loungeroom, there was an oily residue on the surface of the desk.
[25] T114.14; T197.11.
In the area between the double doors and the edge of the desk closest to the loungeroom (which includes, but is not limited to, the area immediately around the Solo bottle), there was no wax or oily residue, no indication of wax or oily residue and no indication of any ignitable fluid being on the ground or having burned.[26]
[26] T139.
On the floor between the side of the desk closest to the loungeroom and the opening between the loungeroom and the office, there was no oily or waxy residue. There was also no patterning consistent with ignitable fluid,[27] other than on the vertical surface of the side of the desk closest to the loungeroom and on the vertical surface at the front of the desk which was closest to the loungeroom.
The presence of ‘wispy’ smoke patterns or ‘feathering’ in the office
[27] T160.
There is no dispute that a ‘wispy’ smoke pattern, or a smoke pattern with ‘feathering’, can be caused by the burning of a flammable liquid (or an ignitable fluid). This can occur because of flammable liquid being present in the location, igniting in that location and then leaving the pattern. It can occur because of a flammable liquid having already ignited before reaching the location (i.e. - travelling to the location while alight), continuing to burn once at the location and then leaving the pattern. When the vapours of an ignitable fluid burns against a surface, particularly a vertical surface, a ‘very light-coloured soot’ or ‘wispy soot’,[28] can deposit. Such patterns are ‘consistent with the burning of ignitable liquid’ in that area but can have other causes.[29] This was explained by Mr Forbes as follows:[30]
[28] T1115.21-23.
[29] T1115.25-26; T1593.1-2.
[30] T1115.27–T1117.4.
QOn that last topic there about the sooting, the type of sooting that you have described visually, is that something that you see with any other type of burning other than ignitable liquid.
ACertainly burning, whatever it might be, in these small areas, or a small fire burning in an area where there's been wispy soot, yes. Other things can burn, things like a Jiffy firelighter, you could have 10 of those lined up. They are small fires, they are producing soot and they can produce this wispy soot as I've described and other small items there, but when you see these wispy soot consistently in different areas at a scene and there is nothing else there, and that's one other telltale sign for a fire investigator is, essentially, you should be at the scene when it's still being guarded, the fire has been extinguished, so no-one else has been there, and so the fire has been burning, you can see the soot, the wispy soot, on the vertical surface, but you look underneath it and there's no residue. So, in other words, when a solid burns, something solid, it produces debris, so that debris can be found when you do an excavation and you can try and identify what that item was. It could be plastic, it could be timber. But with a liquid, when that burns, the liquid has gone and there's no remnants burning underneath it. So one of the telltale signs for an ignitable liquid burning is the wispy smoke, because there's been a fire there, but there's nothing else underneath it, nothing to excavate, no debris. So the fire investigator can say with confidence that an ignitable liquid has been burning in these locations because there is no fire debris.
QCan I take you back to the beginning of that answer and we started out by talking about irregular patterns as one thing that is consistent with the burning of ignitable liquids and ask you the question: the irregular patterns that you've spoken about, are they produced by other fires other than ignitable liquids.
AYes, certainly solids can produce the burning. Again, I've seen paper, paper can be used as an accelerant and you can line your paper up to try and let it burn from one area to another area and that can produce an irregular pattern because it's, I guess, just not consistent. Like a desk burning is straight edges and it burns and it falls over and you can see where it has been burnt in a nice little square, but yeah, certainly there are solids, paper, cardboard, can be burnt in an irregular pattern and create those patterns to observe, but the difference between a solid burning in an irregular pattern and a liquid burning is that the solid will have debris left over.
HIS HONOUR
QSomething of the solid will remain.
AYes.
Consistent with the above evidence, I am satisfied that it is not only the burning of ignitable fluid which can cause such patterns.
Such patterning was in more than one location in the office. The areas set out below are areas of wispy smoke patterns consistent with ignitable fluid which are not the subject of dispute between the two relevant experts, Mr Forbes and Mr Cox.[31]
[31] See, for example, the evidence of Mr Cox at T1601, T1616-T1621, T1631-T1632, T1649, T1674-T1679, T1683-T1687 and T1693.
One area was on the vertical side panel of the desk, closest to the loungeroom. On the evidence, that pattern was consistent with the ignitable fluid having been on the floor. Another area also consistent with ignitable fluid being on the floor was on the vertical front panel of the desk (facing the dining room) at the end of the desk which was closest to the loungeroom. There was also patterning on the surface of the desk closest to the loungeroom, which was consistent with ignitable fluid having burned in that area.
There were smaller areas behind the desk. The patterns were on and within the three bookshelves closest to the loungeroom. The bookshelf closest to the loungeroom had such patterning on both the upper and lower shelves. In addition, there was patterning consistent with ignitable fluid on the bench above that set of shelves. The middle of the three shelves had such patterning on the upper shelf. The third bookshelf had such patterning on both the upper and lower shelves.
A key issue in the trial is why these patterns were in the office. There is no dispute that the flammable liquid (or ignitable fluid) that was in the office was petrol which had been in the Solo bottle. For reasons to be given, it is my view that the smoke patterns and other relevant aspects of the scene can accommodate the prosecution and defence cases.
The loungeroom
There was no door between the office and the loungeroom. The open area between those two rooms was 1.63m wide. The two nib walls either side of that opening were both about 90cm in length. The longer walls of the loungeroom were each 4.51m long. There was a lounge suite in that room, approximately in the position shown in the above plan. At the time of the incident, there was a coffee table approximately in the middle of that room.
The backyard
Behind the house was a lawn within which there was a clothesline.
Within the backyard, there were three structures, all separate from the house. While the three structures were separate from one another, they were effectively connected. They were an open workshop area; a shed; and a ‘granny flat’ that was occupied by Mr Shannon.
The shed
The shed contained several items, among which were items belonging to Ms Ramsey. Among the items in the shed were a lawnmower; a red jerrycan apparently suitable for petrol with a hose that could be used to pour from the jerrycan; and a box within which were two used tyres. The jerrycan was not inspected for the presence of petrol.[32]
The workshop area
[32] T184.35-185.6.
At the time of the incident, within the open workshop, there were two chairs positioned in a way which enabled them to be used immediately upon entering that area (i.e. – they were not ‘stacked’). At some point between about 6:40pm and 9:40pm on 16 March 2021, the defendant and Ms Furkaliev had sat together on those two chairs. This was likely at a time closer to 6:40pm than 9:40pm.
I am satisfied that at the time of the incident, on one of those chairs, was the top of a plastic soft drink bottle from which the base had been cut away (the top of the bottle on the chair). Given its position, I am satisfied that item was not on that chair when the defendant and Ms Furkaliev had sat together on those two chairs when she was at the house. There was no brand or label on that item. Due to damage to the base of the Solo bottle found in the office, it was not possible to compare that item to the top of the bottle on the chair. I accept the evidence of the officer who collected that item that its width was consistent with a 2‑litre bottle.[33] I find that it was the top of the Solo bottle.
[33] T177.25.
There were no suitable fingerprints on the top of the bottle on the chair.
A swab from the mouth area of that item contained the mixed DNA profile with four contributors. One contributor was likely a police officer or other person who had contaminated the item in some way after the incident.[34] Relevantly, the mixed DNA profile was compared to the DNA profiles of Mr Shannon, the defendant and the deceased. DNA potentially consistent with the known DNA profile of those three men was found within the mixed profile.
[34] A person with a reference DNA profile within what is known as the Quality Assurance Register.
With respect to each of those three men, two competing hypotheses were considered. First, that they had contributed to the mixed profile (known as H1). Second, that they had not contributed to the mixed profile (known as H2). The probability of each hypothesis was then given a statistical weighting. It is greater than 100 billion times more likely to have obtained the mixed profile if Mr Shannon was a source of the DNA in the mixed profile than an unknown individual (also referred to as extremely strong support for that hypothesis). It is 7.4 billion times more likely to have obtained the mixed profile if the defendant was a source of the DNA in the mixed profile than an unknown individual (also referred to as extremely strong support for that hypothesis). It is three times more likely to have obtained the mixed profile if the deceased was a contributor (also referred to as slight support for that hypothesis). A swab of the outer surface of the top of the bottle on the chair gave an inconclusive number of contributors and was not further analysed.
The DNA evidence appears only in a statement tendered by consent.[35] No evidence was given about the ability of DNA to be transferred from one person to another; from an object to a person; how many transfers might occur; or about how long DNA might remain on an item once deposited. Nevertheless, it is well known that the presence of the DNA of a person on an item might not establish, of itself, that person had direct contact with the item. It is also well known that DNA cannot be dated.
[35] Statement of Rebecca Pinyon, Exhibit P69, page 3.
Along one wall of the workshop area was a bench on which there were several items. Among those items were a 5-litre fuel can which contained only a small amount of two-stroke petrol; two blades; a pair of scissors; and the cut off base of a drink bottle which contained a very small amount of liquid. The colour of that liquid was consistent with two-stroke petrol. That cutoff base was the size of a 1.25-litre bottle. The balance of the bottle was not found by police.
The 5-litre fuel can and the two blades were swabbed for DNA. DNA was not detected within the swabs from either blade. A very low amount of DNA was detected in the swab from the fuel can and was not analysed further.
The fuel can was examined for the presence of fingerprints. The left thumb; left middle finger; and left ring finger of the defendant had touched that fuel can. Other prints located on that fuel can had insufficient detail to enable any comparison. Once a fingerprint is left on the surface of an item, such as the fuel can, that fingerprint can remain there indefinitely, subject to environmental and other factors. From the presence of fingerprints alone, no conclusion can be drawn about when an item was touched.
The liquid within the fuel can – two-stroke petrol
The liquid within the fuel can contained petrol and motor oil. I am satisfied that the fuel can contained what is commonly referred to as two-stroke petrol. Two stoke petrol is commonly used in lawnmowers and is ordinarily not obtained from the petrol pump at a service station. To make two-stroke petrol, a person needs to add synthetic oil to petrol obtained from the pump at a service station. The common ratios are 50:1 or 25:1, with the greater part being the petrol.
I am satisfied that the oil profile of the petrol in the can was consistent with that of the liquid in the base of the Solo bottle in the office.[36] I find that the liquid in the base of the Solo bottle had come from the fuel can.
[36] Statement of Michael David Cook, Exhibit P73.
Chronology
An aspect of the evidence was phone records; closed circuit television (CCTV) footage; and agreed facts. That evidence, along with other evidence that I accept, assists in setting the context for some other aspects of the evidence. Unless indicated, the matters set out under this heading of ‘Chronology’ are findings.
Events before about 15 March 2021
As set out earlier, at the time of the incident, the defendant, the deceased, Mr Shannon and Ms Bistrovic all lived at the house. The house was owned by Ms Ramsey, the mother of the deceased, but at the time of the incident she was not living there.
Ms Dawkins was a friend of Ms Bistrovic’s and would visit from time to time. Mr Shannon lived in what can be described as a ‘granny flat’ at the rear of the house. Ms Pearce was the partner of Mr Shannon. Ms Pearce would visit the house from time to time. Ms Pearce was at the house before the incident but left about an hour and a half before.
At the time of the incident, the deceased and the defendant had been friends for many years. Nevertheless, before the incident, the defendant had been saying things to others which establish that, at times, their relationship was subject to tension and disagreements. At least some of that tension and disagreement related to Ms Bistrovic and the fraudulent activity in which the defendant and the deceased were engaged.
For example, on 3 February 2021, the defendant sent a text message to Ms Ramsey, stating that he was ‘struggling with [the deceased’s] constant mood swings and paranoia [and] being accused of random things’.[37] The defendant wrote that the deceased needed ‘serious help’ and that if ‘he keeps it up I’m going to have to move out because it’s affecting work with him sending abusive messages every second’.[38]
[37] Photographic Evidence Booklet, Exhibit P35, image 1.
[38] Ibid.
Ms Rodney was a friend of the defendant and would regularly see him in the months before the incident. I accept her evidence that, before 15 March 2021, the defendant had expressed frustration with the deceased.
Monday, 15 March 2021
Ms Ramsey spoke to the defendant in person on 15 March 2021. In that conversation, the defendant said that he and the deceased had been having issues. The defendant said that he was ‘quite frustrated’ about ‘being accused of things, about [Ms Bistrovic]’ and ‘that he had enough’.[39] The defendant told Ms Ramsey that he may be moving out. Ms Ramsey also spoke about the deceased having alleged that the defendant stole tools from a shed at the house. The defendant told Ms Ramsey that was not true.
[39] T270.16-17; T270.30-31.
At about 10:20pm on Monday, 15 March 2021, the defendant sent a text message to Ms Rodney asking if he could come and spend time with her and that he was ‘about to smash every cunt in this house’.[40] The defendant was referring, at least in part, to the deceased.
[40] Exhibit P55, page 2.
At about 11:20pm on 15 March 2021, the defendant sent a text message to Mr Shannon in which he said someone had ‘just lied to my face’.[41] The defendant was referring to the deceased.
The morning of Tuesday, 16 March 2021
[41] Exhibit P50, page 18.
At about 1:45am on 16 March 2021, the defendant sent a text message to Ms Rodney saying, ‘I’ve gone for a drive because I’m literally about to fucking smash Loyola’s [the deceased’s] head in and give me a buzz when you get home just gonna fucking chill somewhere’.[42] At about 2:35am, the defendant apologised for hanging up the phone earlier and, in what was a reference to the deceased, wrote that he had done so as the ‘cocksucker was coming towards me’.[43]
[42] Exhibit P55, page 3. There is no dispute that ‘Loyola’ is a misspelling of ‘Loola’, the latter being a nickname of the deceased.
[43] Exhibit P55, page 4.
At about 2am, the defendant wrote to Mr Shannon claiming that he was getting blamed for stealing car rims from the deceased and said that the deceased had blamed him twice. At about 2:07am, the defendant sent a text message to Mr Shannon which read, ‘Give a fuck I can’t do this shit anymore. This cunt is making me feel like I am worth nothing. Maybe I’am [sic] maybe I should go neck myself’.[44] At about 2:14am, the deceased wrote to Mr Shannon, ‘All good this cunts [sic] just fucken lost it’.[45] The ‘cunt’ to whom the defendant was referring was the deceased.
The night of Tuesday, 16 March 2021 and early hours of Wednesday, 17 March 2021
[44] Ibid, page 24.
[45] Ibid, page 26.
The defendant, Ms Bistrovic and Ms Dawkins were at the house at the time of the incident, which occurred at about 3:37am. Ms Bistrovic and Ms Dawkins were in the loungeroom. The defendant and the deceased were in the office. Mr Shannon was at a nearby service station, having left the house on his own minutes before the fire.
Not long after about 6:40pm on 16 March 2021, Ms Furkaliev, a woman the defendant had met on Tinder before 16 March 2021, came to the house to visit the defendant. As set out earlier, the defendant and Ms Furkaliev spent time together in the rear workshop area. They also spent time together inside the house. That time was spent in, at least, the loungeroom/office area and in the bedroom of the defendant. At least some of the time spent inside the house was likely after about 8:30pm. At about 9:40pm, Ms Furkaliev left the house on her own.
At about 8:40pm, the deceased, Ms Bistrovic and Ms Dawkins left the house together in a vehicle that had been rented by Ms Dawkins. They went to more than one location, including into the city.
At about 10:04pm, the defendant placed petrol into his black commodore (the commodore) which was parked in the driveway of the house. At about 10:07pm, the defendant and Mr Shannon left the house together in the commodore. Mr Shannon and the defendant went to the home of a woman by the name of Marina. She was a drug dealer known to the defendant and Mr Shannon. They also went to the street in which Ms Rodney lived but did not meet with her. The defendant and Mr Shannon returned to the house at about 10:55pm.
At about 11:13pm, there was an unplanned power outage (i.e. – a blackout) at Woodville West, including at the house. The power was restored at about 12:25am on 17 March 2021. The blackout explains why there were candles in the office. The evidence has some differences about whether there were lights on in the house after power was restored. Nevertheless, the prosecution submitted that, at the time of the incident, there were no lights on in any relevant room (other than light from several candles in the office and a computer screen in the same room). So, I proceed on that basis.
The deceased, Ms Bistrovic and Ms Dawkins returned to the house at about 11:57pm. Ms Dawkins then left alone at about 12:12am, driving away in a hire car.
At about 12:52am on 17 March 2021, Ms Pearce arrived at the house, having ridden her bike there to visit Mr Shannon. Ms Pearce spent most, if not all, of her time in the granny flat used by Mr Shannon. The defendant was with Ms Pearce for much of that time, if not all. The defendant and Ms Pearce both consumed methylamphetamine whilst in the granny flat. There is a dispute about whether, during this time, the defendant spoke to Ms Pearce about the deceased.
At about 2:03am, Ms Pearce left the house with Mr Shannon. At about the same time, take away food was delivered to the house. It was collected by the deceased and taken inside.[46]
[46] A pizza delivery driver attended the house on more than one occasion between about 1:49am and 2:12am. See Exhibit P36.
At about 2:17am, Mr Shannon returned to the house alone. Between about 2:17am and 2:48am, Mr Shannon came and went from the house. He was collecting items of hard rubbish from nearby streets and bringing them back to the house.
The first trip to a service station – the defendant and Mr Shannon
At about 3:12am, Mr Shannon and the defendant walked away from the house together. They attended an On the Run (OTR) service station on Woodville Road, Woodville South. That service station was not open. They returned to the house at about 3:26am.
In the interim, Ms Dawkins had returned to the house at about 3:21am. Ms Dawkins went inside. The deceased was in the office. Ms Bistrovic was in the adjacent lounge room.
At 3:29am, the deceased made a phone call to the frequent flyer programme for the airline Lufthansa. The call was made from a phone attached to a computer on the desk in the office.[47] The call must have been to further the fraudulent activity in which the deceased was engaged. There is no evidence as to the duration of that call. Nevertheless, the deceased was on the phone when the defendant entered the office shortly thereafter. Whether the deceased was participating in the same call made at 3:29am is not of significance.
The second trip to a service station – Mr Shannon alone
[47] T1073.38.
At about 3:32am, Mr Shannon left the house to get cigarettes and cash from a different OTR service station at Woodville West. Mr Shannon made this trip alone and on his bike. The defendant remained at the property. Mr Shannon arrived at the service station at about 3:36am and left at about 3:39am.
The defendant goes into the house, the timing of the explosion and fire
Between when Mr Shannon left the house at about 3:32am and the explosion and fire which were at about 3:37am, the defendant went into the house and entered the office. The deceased was behind the desk in the office and on the phone. Ms Bistrovic and Ms Dawkins were in the adjacent loungeroom and remained in that room until after the explosion and fire.
There is no dispute that the intention of the defendant upon entering the house was to engage with the deceased in some way. I find that happened. Key issues in dispute include why the defendant intended to engage with the deceased; how the defendant felt about the deceased; whether the defendant carried into the house an open container of petrol; and how the defendant engaged with the deceased once in the office.
Upon entering the office, there is no dispute, and I find, the defendant spoke to the deceased and asked that there be a ‘family meeting’, but the deceased did not immediately hang up the phone. The term ‘family meeting’ had been used before the incident to describe discussions between those living at the house. It was a term familiar to the defendant and would have been familiar to the deceased.
At about 3:37am, the explosion and fire which caused the death of the deceased occurred.
At about 3:37am, immediately after the explosion and fire, the defendant left the office by going into the dining room and left the house itself through doors which lead from the dining room to the rear yard. At approximately 3:37:48am, immediately after leaving the house, the defendant entered his car and drove away. At about 3:39am, approximately one minute after the defendant left the house, Ms Dawkins left the house by the front door. She sought help from a neighbour(s). Ms Bistrovic left the house by the front door at about 3:41am but returned towards the house within less than two minutes.
Precisely when the deceased left the house is unclear, but he was outside and at the rear of the house when Mr Shannon later returned. The deceased must have left the house by the doors from the dining room towards the rear yard. Before leaving the house, the deceased spent time in a bathroom within the house and under the shower. Before leaving the house, the deceased, or at least his upper clothing, was alight. After leaving the house, the deceased went into the backyard. In the backyard, a tap was used to assist the deceased and a wet towel(s) was placed on him.
At 3:42am, the first 000 call from the vicinity of the house was made.
The defendant finds and speaks to Mr Shannon
As set out above, the defendant left the house immediately after the explosion. The defendant never returned to the house.
About 30 seconds after driving away, the defendant called Mr Shannon. The call connected for 18 seconds. Whether the connection resulted in a conversation or a voice message is not clear, but it does not matter. Shortly after that call, the defendant and Mr Shannon met in the street behind the service station.
There is no dispute, and I find, that they had a conversation, and that the defendant mentioned a fire. There is a significant dispute about whether the defendant said he had set the deceased on fire (the prosecution case) or whether the defendant said that the deceased had set the house on fire (the defence case). I will return to this conversation and make findings later. Immediately after that conversation, Mr Shannon returned to the house. He did so alone. The defendant went elsewhere and, as previously mentioned, he never returned to the house.
Mr Shannon returns – the arrival of emergency services
At about 3:44am, Mr Shannon returned to the house on his bike. At about the same time, the defendant sent a text message to Mr Shannon, ‘Call me as soon as you get home’.[48] It is unlikely Mr Shannon read that message when it first appeared on his phone. At that time, he had only just returned to the house and made three phone calls to 000 between 3:44am and about 3:47am.[49] At about the same time, Mr Shannon was with the deceased in the rear yard at the house.
[48] Exhibit P50, page 32.
[49] Exhibit P51, page 2.
It is appropriate to consider the findings already made which may be relevant to whether the defendant threw the petrol.
I have found that, before entering the office, the defendant had threatened to harm the deceased and was angry with the deceased. I have found that the defendant went into the office to confront the deceased.
I have found the defendant took the petrol inside. I have found that he took the petrol inside in the Solo bottle which had been cut. I find that using an ‘open’ container such as the Solo bottle was a deliberate choice. The choice of the Solo bottle can be contrasted with merely taking in the fuel can. The fuel can would not have permitted petrol being thrown as easily. I find that the defendant chose a container from which petrol could be expelled readily.
I have found that immediately before the fire started, the defendant said, ‘Do you want to end up like Merge’. I have found that those words were intended as a threat to cause burns to the deceased. I find that those words were uttered only moments before the explosion. I find that the only means that the defendant had to cause burns to the deceased was the petrol that he was holding. I find that, to start a fire, the defendant knew that petrol, or its vapours, had to, in effect, encounter a flame. That is, the petrol had to leave the Solo bottle, or a flame had to be brought to that bottle. I find that when the defendant entered the office, he was not holding a candle nor any other item which was alight. I find that he did not pick up any such item after he entered the office.
I have found that after the incident, the defendant told Mr Shannon that he had set the deceased on fire. Among the inferences from what the defendant said is an intention to convey to Mr Shannon that he was responsible and was admitting to having caused the deceased to be on fire by committing a deliberate act. Nevertheless, before any inference is drawn from what was said to Mr Shannon, the exculpatory aspect of the statement in the fourth call (i.e. – that the deceased pulled the petrol from his hand) must also be considered. I have earlier set out matters which I am satisfied are relevant to the weight to be attached to that out of court statement. That includes that in evaluating the weight to be given to the exculpatory aspect of the fourth call, it is relevant that I find that the defendant has shown himself to be a person lacking in credibility when giving his account of the key events which resulted in the death of the deceased. In the context of lies which are relevant to credit, I have borne in mind that the defendant lied to Mr Rebbeck; lied in evidence about the conversation with Ms Pearce; lied in evidence about not taking the petrol into the office; and lied in evidence about the two conversations with Mr Shannon.
Relevant to the inferences to be drawn from what was said to Mr Shannon is that I find that Mr Shannon was a person whom the defendant trusted. They were friends; the defendant sought Mr Shannon out immediately after the incident; and, in the past, they had spoken of the conduct of the deceased. Those things being so, there is significance in, when saying ‘I just set Todd on fire’, the defendant not saying the deceased had done anything to cause the fire. If this was an accident because the petrol was pulled from the defendant’s hand by the deceased, notwithstanding the emotional state in which he may have been in when speaking to Mr Shannon, I find that, had that happened, the defendant had the opportunity to say that. I find that the defendant did not say to Mr Shannon that the deceased had done anything which might have caused the fire in a manner consistent with the potentially exculpatory aspect of the fourth phone call.
I reject the potentially exculpatory aspect of the fourth call as having any weight.
I find that when the defendant told Mr Shannon that he had set the deceased on fire, the defendant was not intending to convey that he had taken the petrol into the office and that it had been pulled from his hand. I find that when the defendant said to Mr Shannon that he had set the deceased on fire and said that he did not know why he had done it, the defendant was intending to admit that he had committed a deliberate act which had caused the deceased to be on fire. I find that the deliberate act admitted was more than just taking the petrol into the office.
I must consider the evidence of the defendant that he did not throw the petrol and his exculpatory out-of-court statements. I find that his evidence and the out-of-court statements are to be evaluated bearing in mind that the defendant has shown himself to be a person without credit about several key matters. I have earlier identified the matters about which the defendant has lied, and which of the lies are relevant to his credibility.
It is not necessary to determine what I might find if Ms Bistrovic’s evidence was the only evidence which might establish that the defendant threw the petrol. The evidence of Ms Bistrovic about that is just one aspect of the evidence to be considered in evaluating whether the evidence of the defendant should be rejected and whether the prosecution has proven that the petrol was thrown beyond a reasonable doubt.
I find that the statements to Mr Shannon, ‘I just set Todd on fire’ and ‘I don’t know why I did it’, are relevant to the evaluation of whether the evidence of Ms Bistrovic that she saw the petrol thrown is both truthful and reliable. Also relevant is that the defendant was frustrated and angry with the deceased; had threatened the deceased in the hours before the incident; and that immediately before the explosion, while holding the Solo bottle containing petrol, the defendant had threatened to make the deceased look like Merge (a man the defendant knew had been burned and suffered injury). I recognise the matters that demand caution in considering the evidence of Ms Bistrovic. I recognise aspects of the evidence of Ms Dawkins given in cross-examination and re-examination which, if accepted, would indicate that Ms Bistrovic was not looking into the office at the precise moment of the alleged throw. But those aspects of the evidence of Ms Dawkins must be evaluated bearing in mind what she said about that in evidence-in-chief and the whole of the evidence. In my view, that evidence‑in‑chief tends to support that, immediately before the explosion, Ms Bistrovic was looking away from Ms Dawkins despite the request to ‘call Sam’. The obvious place for her to have been looking is into the office. There is no dispute that a confrontation was occurring and, for reasons given, Ms Bistrovic’s partner was asking for help. Bearing in mind the evidence of Ms Bistrovic and the other matters referred to immediately above, I find that those aspects of the evidence of Ms Dawkins which suggest that Ms Bistrovic was not looking in the direction of the office at the very moment of the explosion are not reliable.
In the circumstances, I reject the evidence of the defendant that he did not throw the petrol, and I reject his exculpatory out-of-court statements. Those rejections do not add to the prosecution case. In the circumstances, I am satisfied beyond a reasonable doubt that the evidence of Ms Bistrovic that she saw the defendant threw the petrol was both truthful and reliable. I find beyond a reasonable doubt that the defendant threw the petrol at the deceased. I find beyond a reasonable doubt that the throwing of the petrol was a voluntary, conscious and deliberate act which was a substantial cause of the death of the deceased.
Although I have found that the two statements to Mr Rebbeck and the evidence of subsequent evasive conduct can be used as circumstantial evidence that the defendant threw the petrol, I have made the findings immediately above without relying on that evidence. Had I used the two statements and the evidence of subsequent evasive conduct as circumstantial evidence that the petrol was thrown by the defendant, that evidence would only further support a conclusion already reached beyond a reasonable doubt.
The defendant had come into the office holding the petrol to confront the deceased and threatened him. Anything the deceased did was in response to the conduct of the defendant. I find beyond a reasonable doubt that the throwing of the petrol was unlawful.
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.
A starting point is why the defendant obtained the petrol and went into the office. I have found that he did that not only because he was frustrated with the deceased but because he was angry with him. I find that the intensity of those feelings did not diminish once he was in the office. I find that despite the demand of a ‘family meeting’, the deceased did not immediately stop what he was doing and give his immediate attention to the defendant.
I find that the defendant knew, before the petrol was thrown, that the deceased was holding a lit candle. That was seen by others and is consistent with the defendant’s evidence. The defendant and the deceased were in the same room approximately a few meters apart. Given the reason he entered the office and the demand for the meeting, the defendant would have been watching the deceased.
I have found that the defendant said something about the deceased ending up like Merge. I find that the defendant knew that Merge had sustained injuries in a fire and had him in mind when he threw the petrol. However, although the defendant knew Merge well and must have seen at least some of the injuries that he had sustained, the evidence of those injuries was limited. The only admissible evidence of the injuries to Merge was given by a police officer who had spoken to him. That police officer ‘observed a burn to the side of [Merge’s] face and scarring and burning, redness to his neck’.[436] The nature of the scarring and burning was not further explained. While I am satisfied that the defendant had Merge in mind when he threw the petrol, I cannot find that the defendant knew the burns Merge had been any more extensive, or otherwise more serious, than those observed by the police officer.
[436] T965.8-11.
I am satisfied beyond a reasonable doubt that at the same time as he threw the petrol, the defendant not only intended to start a fire, but he also intended the deceased would be burned. While not all the petrol thrown struck the deceased, as some landed on the desk, at least some reached the bookshelves, and it is not possible to determine in any meaningful way how much other petrol there was, I find, beyond a reasonable doubt, that the petrol was thrown at the deceased. Recognising the care that must be taken with her evidence, that was the impression formed by Ms Bistrovic. It may also be inferred solely from the threat made by the defendant about Merge; that the defendant had earlier threatened to harm the deceased; and that he was angry with the deceased when he entered the office.
Ultimately, I find that the matters of most significance in reaching a conclusion about whether the prosecution has met its burden are the anger of the defendant; the earlier threats made on the night; the weapon chosen; that the petrol was thrown at the deceased and intending to strike him; and that, in all the circumstances, the threat about Merge shows the defendant intended to cause the deceased to be burned.
Having considered the matters immediately above, I am satisfied beyond a reasonable doubt that when he threw the petrol the defendant intended that the deceased be set on fire. I am satisfied beyond a reasonable doubt that, at the same time as he threw the petrol at the deceased intending that the deceased be set on fire, the defendant also intended to cause grievous bodily harm to the deceased.
I find the defendant guilty beyond a reasonable doubt of the offence of murder in Count 1.
Counts 2 and 3
Counts 2 and 3 must be given separate consideration from each other and from Count 1.
Given the approach in submissions at trial, an issue arises with respect to what state of mind, if any, the defendant had to have when the petrol was thrown about the presence of any person other than the deceased.
I understood the prosecution to submit that the defendant could not be guilty of Counts 2 or 3 unless he knew that at least one person was in the loungeroom.[437] Put another way, the prosecution submitted that the ‘person’ within the relevant elements in Counts 2 and 3 had to be someone other than the deceased. I am fortified that was the position of the prosecution for two reasons. First, the defendant understood that to be the prosecution submission.[438] Second, the defendant having articulated that understanding, the prosecution did not correct it. In contrast to the position of the prosecution, the defendant submitted that, if Counts 2 and 3 were to be proven, the defendant had to have knowledge, beyond a reasonable doubt, of the presence of two persons in the loungeroom.[439]
[437] T1892-T1893.
[438] T2070.
[439] T2070-T2071.
I find beyond a reasonable doubt that the defendant knew, at the time that he threw the petrol, that there was at least one person in the loungeroom. The defendant gave evidence that when the deceased asked about his cousin, he appreciated that someone was in that room.[440] While the defendant has been found to be without credit with respect to more than one issue, I accept that evidence beyond a reasonable doubt. For reasons already given, there is no dispute that the deceased spoke to a person in the loungeroom and did so before the petrol was thrown. Acceptance of the evidence of the defendant that he knew that another person was in the room is sufficient. Nevertheless, were it necessary, without the evidence of the defendant, I would find beyond a reasonable doubt that the defendant saw at least one of the women in the loungeroom. The gap between the two rooms was a large one; the defendant would not have needed to look very far to his right upon entering the office to see the area where both women were; the defendant moved in the general direction of the loungeroom, and therefore slightly closer to the women; both women were able to see the defendant, confirming both that there was nothing between the defendant and the women that prevented them from being seen and that the lighting, while no more than candles and a computer screen from the office, was such that people could be seen.
[440] T1437.33-T1438.13.
The fifth element in both Counts 2 and 3 is whether, at the time that he threw the petrol, the defendant knew that act was likely to cause serious harm to a person other than the deceased. The person in Count 2 must be a different person than person in Count 3.[441] I am not satisfied beyond a reasonable doubt that the defendant contemplated any harm to any person, other than to the defendant. This is despite the defendant knowing that at least one person was in the loungeroom.
[441] If the doctrine of transferred malice might apply, and I have no view, the prosecution did not seek
to rely on that doctrine.
The only person in the house with whom the defendant interacted in any way was the deceased. The intent of the defendant upon entering the office was to confront the deceased. It was the deceased with whom he was angry. The deceased was in the office, and it was the deceased at whom the defendant threw the petrol. It was the deceased the defendant intended to cause grievous bodily harm. While it is not possible to state with precision the distance over which the petrol was thrown, I would not conclude that the defendant made any deliberate attempt to throw the petrol into the loungeroom.
In the circumstances, I have been left with a reasonable doubt about whether the defendant knew that the throwing of the petrol, intending to cause the fire that set the deceased alight, was likely to cause serious harm to a person other than the deceased. I have a reasonable doubt about whether the defendant even turned his mind to that issue. Those reasonable doubts mean that the defendant cannot be found guilty of Count 2 or Count 3. It is not necessary to consider any other element of either count.
I find the defendant not guilty of Counts 2 and 3.
Counts 2 and 3 both have an alternative verdict of aggravated causing a likelihood of harm contrary to s 29(3) of the CLCA. In the alternative offences, harm means ‘physical or mental harm (whether temporary or permanent)’.[442] Mental harm means ‘psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm’.[443] Physical harm includes ‘consciousness; pain; disfigurement; [and] infection with a disease’.[444]
[442] CLCA s 21.
[443] Ibid.
[444] Ibid.
In this case, the harm relevant in the alternative offences is physical harm, namely pain or disfigurement. Again, the person in Counts 2 and 3 must be a person other than the deceased and the person in Count 2 must be a different person than the person in Count 3.
For the reasons given in Counts 2 and 3, I am not satisfied beyond a reasonable doubt the defendant gave thought to harm being caused to a person other than to the deceased. In both alternative offences, I have a reasonable doubt about the fifth element. It is not necessary to consider any other element of the alternative offences.
In both Counts 2 and 3, I find the defendant not guilty of the alternative offences contrary to s 29(3) of the CLCA.
Verdicts
The defendant is guilty of Count 1.
The defendant is not guilty of Count 2 and not guilty of the alternative offence contrary to s 29(3) of the CLCA.
The defendant is not guilty of Count 3 and not guilty of the alternative offence contrary to s 29(3) of the CLCA.
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