[2025] SASC 97

Prosecution: R Counsel: MS T AMOS - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: ALESSANDRO GIOVANNI CAVUOTO Counsel: MR S HENCHLIFFE KC WITH MR B MCCLOUD - Solicitor: MCDONOUGH COLE LEGAL Hearing Date/s: File No/s: SCCRM-22-005290 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v CAVUOTO [2025] SASC 97 Ruling of the Honourable Justice Kimber 17 June 2025 CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT - IMMATERIALITY OR ABSENCE OF PREJUDICE CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT - TIME FOR AMENDMENT CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY This is an application by the prosecution pursuant to s 128 of the Criminal Procedure Act 1921 (SA) (CPA) to amend the Information following the conclusion of closing addresses in a trial by judge alone. 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 application relates only to Count 2 and is to delete reference to the name of the alleged victim and to replace it with the word ‘another’. If the application is granted, the prosecution has undertaken to enter a nolle prosequi with respect to Count 3. Judgment was reserved on 3 March 2025. The application was made by the prosecution on 6 May 2025. The prosecution submits that the application was made because of their consideration of the closing address of the defendant. The submissions of the prosecution do not otherwise articulate why the Information is defective. The prosecution also submits that, having regard to the merits of the case, the amendment will not cause injustice to the defendant. The application is opposed by the defendant. The defendant submits that it would be unjust to allow the amendment and that it would occasion substantial prejudice. The defendant submits that there is -- 1 of 8 -- no defect in the Information and withdraws those aspects of his closing address which might have suggested the contrary. The defendant submits that to grant the amendment would make Count 2 duplicitous. Held, per Kimber J: 1. The power to amend the Information pursuant to s 128 of the CPA is not enlivened. The prosecution has not established that the Information is defective. 2. The application to amend the Information is refused. Criminal Law Consolidation Act 1935 (SA) s 29; Criminal Procedure Act 1921 (SA) ss 128, 181, referred to. Ducaj v The Queen (2019) 135 SASR 127; Lawrence v The King [2024] SASCA 145, applied. Island Maritime Ltd v Filipowski (2006) 226 CLR 328, considered. -- 2 of 8 -- R v CAVUOTO [2025] SASC 97 Criminal: Application KIMBER J: 1 This is an application by the prosecution pursuant to s 128 of the Criminal Procedure Act 1921 (SA) (CPA) to amend the Information following the conclusion of closing addresses in a trial by judge alone. 2 Mr Alessandro (Alex) Cavuoto (the defendant) is charged with the following offences: 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. 3 The application relates only to Count 2 and is to delete the words ‘Aisha Bistrovic’ and to replace those words with the word ‘another’. If the -- 3 of 8 -- [2025] SASC 97 Kimber J 2 application is granted, the prosecution has undertaken to enter a nolle prosequi with respect to Count 3. 4 I refuse to grant the application. My reasons follow. Background 5 The evidence the subject of each of the three offences need not be set out in detail within this ruling. That evidence is set out in considerable detail within R v Cavuoto (No 2) [2025] SASC 98, a judgment delivered at the same time as this ruling. 6 In short, all three offences relate to the defendant allegedly committing the same act, namely the throwing of petrol at the alleged victim in Count 1, Mr Todd Bradmore, with the intention of setting him on fire and intending to cause him grevious bodily harm (the act). The prosecution alleges that at the time of the alleged throwing of the petrol, the defendant and Mr Bradmore were in an office at a house they shared in Woodville West. Ms Bistrovic (the alleged victim in Count 2) and Ms Billie-Joan Dawkins (the alleged victim in Count 3) were in a loungeroom immediately adjacent to the office. 7 Judgment was reserved on 3 March 2025, immediately following the closing addresses of the prosecution and the defendant which concluded that same day. During his closing address, on the basis that it was always the prosecution case that the act the subject of Counts 2 and 3 was the same, the defendant submitted that the prosecution could not prove either count unless it proved beyond a reasonable doubt that the defendant knew, at the time of the act, there were two persons in the loungeroom. The defendant submitted that because the prosecution had charged Counts 2 and 3 and had elected to identify a different alleged victim in each count, any failure to prove knowledge of the presence of two persons in the loungeroom at the time of the act meant that neither count could be proven beyond a reasonable doubt. The defendant submitted that only one count contrary to s 29 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) should have been laid, not two.1 It is not necessary to examine whether those submissions reflect the law. 8 The defendant gave evidence at trial. While the defendant admitted in his evidence that he knew there was a person in the loungeroom before the alleged act, the defendant did not admit to knowing that there was a second person in that same room. 9 During his closing address, the defendant mentioned an authority that he thought might support the closing submissions summarised above. Leave having been given, that authority was sent to my chambers and to the prosecution on 4 March 2025. Notwithstanding the approach of the defendant, the prosecution did not seek leave to make any further closing submission, nor did it seek leave to 1 T2070-T2072. -- 4 of 8 -- [2025] SASC 97 Kimber J 3 provide any authority in support of its position. Nothing more was heard from either party until 6 May 2025. On that day, the prosecution sent to my chambers written submissions in which it makes the application and sets out submissions in support of that application (the prosecution submissions). Some procedural observations 10 While not material to the merits of the application, before turning to the submissions of the parties with respect to whether the application should be granted, I make some observations about the circumstances in which the application has been made. 11 First, a copy of the prosecution submissions was copied to those acting for the defendant at the same time as those submissions were sent to my chambers. It appears that might have been done without giving notice to the defendant. If that occurred, it is less than desirable. Second, the prosecution has not filed any formal interlocutory application to amend the Information. The application is simply outlined in its submissions. While an application of this type may be made orally, and so, obviously enough, no formal interlocutory application is essential, as set out earlier, closing addresses concluded about two months before the prosecution submissions were sent. In such circumstances, an application involving slightly more formality might have been made. Third, the prosecution has not provided any explanation for the delay. It is to be hoped that one was provided to those acting for the defendant. The submissions 12 Both parties provided written submissions and were given the opportunity to indicate if they wished to make oral submissions. Both parties were content to rely on their written submissions. The prosecution submissions 13 While the prosecution submissions refer to both ss 128 and s 181 of the CPA, those submissions expressly set out that the application is made pursuant to s 128.2 For that reason, I only propose to deal with the merits of the application pursuant to s 128. 14 Section 128 of the CPA relevantly provides: 128—Objections to informations in superior court, amendments and postponement of trial (1) An application to quash an information on the basis of a formal defect apparent on the face of the information must be made before the jury is empanelled and not afterwards. 2 Written Submissions of the Prosecution at [3]. -- 5 of 8 -- [2025] SASC 97 Kimber J 4 (2) Subject to subsection (3), the court may before trial, or at any stage of a trial, make an order to amend an information as the court thinks necessary if— (a) the information is defective; or (b) there is a variation between a particular stated in the information and the evidence offered in proof of that particular. (3) An order should not be made under subsection (2) if, having regard to the merits of the case, the proposed amendment to the information cannot be made without causing injustice. …. (7) Any power of the court under this section is in addition to and does not limit any other power of the court for the same or similar purposes. 15 The prosecution submits that the application is made because of their consideration of the closing address of the defendant. Viewed in the context of that closing address, the terms of the amendment sought, the undertaking to enter a nolle prosequi with respect to Count 3 if the application is granted and the reliance upon the power in s 128, it must be that the application is made on the basis that the Information is defective.3 Respectfully, the submissions of the prosecution do not articulate in any express way, if at all, why the Information is defective. Respectfully, those submissions also do not refer to authority which might support a submission that the Information is defective in the specific context of s 29 of the CLCA, bearing in mind the elements of that offence, nor any other authority that deals with any offence with elements which might be analogous to any offence created by s 29 of the CLCA. The prosecution also submits that, having regard to the merits of the case, the amendment will not cause injustice to the defendant.4 The submissions of the defendant 16 The application is opposed by the defendant. The defendant directs attention to the trial having been completed and the delay in making the application. 17 The defendant submits that it would be unjust to allow the amendment and that it would occasion substantial prejudice. The defendant submits that there is no defect in the Information and withdraws those aspects of his closing address which might have suggested the contrary. The defendant submits that to grant the amendment would result in a defect different to that the subject of his closing address. The defendant submits that the amendment would make Count 2 duplicitous ‘if it included more than one person within the single charge, which appears to be what the prosecution is trying to achieve by the amendment’.5 The defendant submits that while the defendant was cross-examined at trial about knowing that Ms Bistrovic was in the loungeroom, he was not cross-examined 3 CPA s 128(2)(a). 4 CPA s 128(3). 5 Written Submissions of the Defendant at [30]. -- 6 of 8 -- [2025] SASC 97 Kimber J 5 about whether he knew of the presence of Ms Dawkins. The defendant submits that the amendment would change the ‘pith and substance’ of the prosecution case and cause injustice. On one view of his submissions, the defendant submits that the identity of the two alleged victims in each of Counts 2 and 3 respectively are material particulars. Consideration 18 I reject that to allow the amendment would change the ‘pith and substance’ of the prosecution case, that the identity of the two alleged victim in Counts 2 and Count 3 are material particulars, or that granting the application would result in Count 2 being duplicitous. 19 Insofar as it might have been submitted that the application should not be granted as it was made after closing submissions and judgment was reserved, I reject that submission. Section 128 permits an application ‘at any stage of a trial’ and it has been held that that extends beyond the point at which judgment is reserved and closing submissions have concluded.6 I also doubt that granting the application would cause injustice, but I have reached the view that it is not necessary to decide. 20 I refuse the application as, on the submissions made, I am not satisfied that the Information is defective. For that reason, I am not satisfied that the power in s 128 of the CPA is enlivened. 21 As set out above, respectfully, the prosecution did not advance any clear submission which articulated why the Information was defective and no authority was cited in support of that being the case. It may be accepted that, in some circumstances, to charge two offences in relation to a single act may expose a defendant to double jeopardy such that a second count cannot proceed.7 Nevertheless, on the submissions before me, I am not satisfied that, in the circumstances such as those the subject of this trial, two counts contrary to s 29 of the CLCA cannot be laid with respect to the same act. At trial, there was no dispute that the elements of Counts 2 and 3 are: 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. 6 Lawrence v The King [2024] SASCA 145, [30]. 7 Island Maritime Ltd v Filipowski (2006) 226 CLR 328, 343 [41]. -- 7 of 8 -- [2025] SASC 97 Kimber J 6 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).8 22 On the submissions before me, I am not satisfied that only one offence contrary to s 29 of the CLCA can be alleged when the act the subject of the two offences is the same, provided that the ‘person’ in each count is not the same. That is not to suggest that, if particularised, the specific identity of the person is a particular which will certainly be material. 23 Were the Information in this case defective for the reason the prosecution might be inferred to advance, then a person who, knowing that four people were inside a house and asleep, disabled all fire alarms, set fire to the house at night and intended that the fire would engulf the house and burn it down, could only be charged with one offence contrary to s 29 of the CLCA. Absent the prosecution directing my attention to an authority in support of such an approach, I am unable to embrace it. 24 For the above reasons, I am not satisfied the Information is defective and I am not satisfied the power in s 128 of the CPA is enlivened. Order 25 I decline to grant the application of the prosecution to amend the Information. 8 Ducaj v The Queen (2019) 135 SASR 127, [7]-[48]. -- 8 of 8 --