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District Court 12 July 2024

R v Fiorenza

[2024] NSWDC 282

Sexual offences

Citation: R v Fiorenza [2024] NSWDC 282
Court: District Court of New South Wales
Date: 12 July 2024
Judge: Grant DCJ

Background

The applicant was charged with four counts of sexual offences arising from allegations made by a former casual employee at his pizza shop. Three counts related to alleged non-consensual sexual intercourse and one to alleged sexual touching, with the conduct said to have occurred between late 2019 and September 2021. The complainant made her report to police shortly after the applicant terminated her employment.

The applicant denied all allegations throughout, including in a police interview where he raised erectile dysfunction as an explanation inconsistent with the offences alleged. The trial ran for seven days before a jury in the Sydney District Court. The jury acquitted the applicant on all four counts on 7 March 2024.

Following his acquittal, the applicant sought a costs certificate under the Costs in Criminal Cases Act 1967 (NSW). If granted, such a certificate would have allowed him to apply to the Director General for reimbursement of his legal costs. The Crown opposed the application.

  • Whether the court was satisfied, under s 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW), that a hypothetically fully informed prosecutor would not have reasonably instituted proceedings against the applicant.
  • Whether the inconsistencies in the complainant's evidence were sufficient to render her "very substantially lacking in credit," a threshold drawn from the case law on word-against-word prosecutions.
  • Whether the features of the Crown case, including delayed complaint, lack of corroboration, and inconsistencies in the complainant's account, were enough to make the prosecution unreasonable.

Decision

Grant DCJ refused the application. The judge was not satisfied that the complainant's evidence rose to the level of being "very substantially lacking in credit," the standard that emerges from authorities such as Mordaunt v DPP as relevant in word-against-word cases. While the judge acknowledged significant differences in the complainant's account across various tellings, these inconsistencies fell short of the required threshold.

Even if that conclusion were wrong, the judge held that the features relied upon by the applicant, namely a single witness, absence of corroboration, and inconsistencies in the complainant's account, are common features of sexual assault prosecutions. The prosecution had available to it jury directions capable of addressing those issues, and the Crown was in fact granted such directions at trial (including directions concerning single witnesses, good character, and the Liberato and Markuleski principles).

The judge drew on Higgins v R (No 2) [2022] NSWCCA 82, a comparable sexual assault matter in which the Court of Criminal Appeal dismissed a costs certificate application despite similar hurdles facing the prosecution, including delayed complaint, lack of corroboration, consistent denials, and good character evidence. The same reasoning applied here.

The judge also confirmed the applicable onus: it rests on the applicant to demonstrate that commencing proceedings was not reasonable. It is not for the Crown to prove that the prosecution was reasonable. That burden was not discharged in this case.

Orders Made

  • The application for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW) was refused.
  • The application was dismissed.

Key Takeaways

  • Under s 3(1)(a) of the Costs in Criminal Cases Act 1967 (NSW), the applicant bears the onus of satisfying the court that a hypothetically fully informed prosecutor would not reasonably have instituted proceedings. The burden does not rest on the Crown.

  • In word-against-word prosecutions, an acquitted defendant cannot obtain a costs certificate simply by pointing to inconsistencies in the complainant's evidence. The inconsistencies must render the Crown witness "very substantially lacking in credit," a high threshold not easily met.

  • Inconsistencies in a complainant's account, absence of corroboration, and delayed reporting are common features of sexual assault trials and do not, without more, make a prosecution unreasonable, particularly where those issues can be addressed through jury directions.

  • A prima facie case, reasonable prospects of conviction, or a committal for trial are each insufficient on their own to establish that commencing proceedings was "reasonable" for costs certificate purposes, but a prosecution is not rendered unreasonable merely because the jury ultimately acquitted.

  • The District Court followed the Court of Criminal Appeal's approach in Higgins v R (No 2) [2022] NSWCCA 82, confirming that the costs certificate framework does not operate as a general mechanism for reimbursing acquitted defendants in contested sexual assault matters.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 4
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases
- AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
- Constantinidis v R; Lazar v R (Costs) [2022] NSWCCA 248
- Higgins v R (No 2) [2022] NSWCCA 82
- Mordaunt v DPP [2007] NSWCA 121
- R v Fesja (1995) 82 A Crim R 253
- R v Manly [2000] NSWCCA 196
- R v Moore [2015] NSWSC 1263
- R v Warrick Ian McFarlane (SCNSW, 12 August 1994, unreported)
- Elerton v DPP (1991) 24 NSWLR 550