R v Cavuoto - [2025] SASC 97

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

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 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.

R v CAVUOTO
[2025] SASC 97
Criminal: Application
KIMBER J:

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.
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 16^th day of March 2021 and the 20^th day of March…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cavuoto

Details

AGLC: R v Cavuoto [2025] SASC 97
Case: [2025] SASC 97
Decision Date: 17 June 2025

CaseChat Overview and Summary

In the matter of R v Cavuoto, the defendant was convicted of three offences: Count 1 was the alleged throwing of petrol at Mr Todd Bradmore with the intent to set him on fire and cause grievous bodily harm. Counts 2 and 3 related to the defendant allegedly throwing petrol in the direction of Ms Bistrovic and Ms Billie-Joan Dawkins respectively, while they were present in the adjacent lounge room, with the intent to cause serious harm. The defendant argued that the Information was defective as it should only have charged one count for the act, not two. The prosecution sought leave to amend the Information to reflect this argument.

The legal issues before the court involved the amendment of the Information to address the defendant's contention that only one count should have been laid. The court needed to determine whether the Information was defective and whether the amendment would cause substantial prejudice to the defendant. Additionally, the court considered whether the amendment could be made after closing submissions and the reservation of judgment.

The court held that the Information was not defective and that the prosecution had not adequately demonstrated why it should be amended. The court found that the elements of Counts 2 and 3 were sufficiently distinct and that charging two counts was not inherently improper in the circumstances. The court further noted that the power to amend the Information could be exercised at any stage of the trial, including after closing submissions and the reservation of judgment. Therefore, the court refused the prosecution's application to amend the Information.

The final orders of the court were that the prosecution's application to amend the Information was refused, and the trial would proceed with the original charges as laid.

Orders

Orders of the court

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Background

Background to the litigation

I refuse to grant the application. My reasons follow. Background 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. 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. 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.[1] T2070-T2072. 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. 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 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 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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. [5] Written Submissions of the Defendant at [30].Consideration 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. 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. [6] Lawrence v The King [2024] SASCA 145, [30]. 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. 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.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][7] Island Maritime Ltd v Filipowski (2006) 226 CLR 328, 343 [41].[8] Ducaj v The Queen (2019) 135 SASR 127, [7]-[48].