R v Fiorenza

RELEVANT PRINCIPLES

1. The section requires the decision-maker to assume that the hypothetical prosecutor had knowledge of evidence of all the relevant facts at the time of institution of the proceedings. The question is whether in the light of that retrospectively obtained knowledge, "it would not have been reasonable to institute the proceedings": R v Moore [2015] NSWSC 1263 at [5].
2. A number of propositions may be discerned from the cases. They are: 1. The provisions are intended "to create an environment in which earlier rigid resistance to the reimbursement of costs incurred by an acquitted defendant was diminished": R v Manly [2000] NSWCCA 196; alternative citation 49 NSWLR 203 at [74]. 2. The provision allows the Court to relieve a person who has been acquitted (or discharged following the withdrawal of proceedings by the DPP) of the financial burden of defending themselves in criminal proceedings without casting any criticism on police or prosecutors. Because of the retrospective wisdom implicit in s 3(1)(a) the provisions: "When applied judicially, permit Courts to make orders in appropriate cases without any inuendo arising from the making or the refusal to make such orders that would be critical either of the prosecutor or the accused": Elerton v DPP (1991) 24 NSWLR 550 at 560 to 561. 1. "It is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that in the end the question for the jury depended upon word against word. In a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury. It would be different where the word upon the Crown case depended had been demonstrated to be one which was very substantially lacking in credit": Mordaunt v DPP [2007] NSWCA 121; 171 ACrimR 510 at [36]. 2. A decision to prosecute is not "reasonable" simply because there was a prima facie case or because there were reasonable prospects of a conviction or because a magistrate committed the matter for trial: R v Warrick Ian McFarlane (SCNSW 12 August 1994 unreported), cited with approval in R v Fesja (1995) 82 A Crim R 253 at 255. 3. In AB the Court of Appeal said that one must treat with caution what was said in Mordaunt particularly at [36]. They did so because: "many of the statements did not purport to state 'principles' but merely summarised circumstances in which certificates have been granted or not granted. Secondly, most were irrelevant to the decision itself and hence even if reflecting principles of law are not binding. Thirdly, the illustrations are collected without reference to the statutory changes over time, particularly in the scheme for pre-trial disclosure under the Criminal Procedure Act 1986 (NSW) which may affect its exercise of the discretion as to costs certificates": AB supra at [11].
3. The onus is on the applicant to demonstrate that it was not reasonable for the Crown to bring the proceedings. It is not for the Crown to establish that it was reasonable to institute the proceedings.

THE ALLEGATIONS

1. The complainant was a casual employee of the accused at his pizza shop. Some of the alleged acts are said to have occurred in the storeroom. The accused terminated her employment due to her relationship with customers. Not long after the termination the complainant made a complaint to police. The accused denied the allegations.

SUBMISSIONS

1. The applicant submits this was a "word on word" case where the complainant's evidence was demonstrated to be very substantially lacking credit, and not believable in multiple respects and in some instances plainly wrong. In his police interview, he denied his guilt and raised an explanation consistent with innocence (his erectile dysfunction). His exculpatory explanation was incapable of being disproved by the Crown beyond reasonable doubt. The Crown was on notice of the Defence's case prior to trial.
2. The applicant submits there are three features of the complainant's evidence which would lead the Court to conclude her evidence was substantially lacking in credit: 1. Aspects of the complainant's evidence which suggests she experienced paranoid and delusional thoughts regarding the applicant, or alternatively, that she told the police and the Court outright and deliberate lies, 2. The presence of significant inconsistencies between her evidence and what she initially told police (as well as CCTV footage of 15 September), and 3. A propensity to add implausible details as her evidence progressed.

Aspects of the complainant's evidence that suggests she either experienced paranoid and delusional thoughts or told deliberate lies

1. The complainant gave evidence that the accused was controlling her and was aware of her movements through her phone. She said he knew about her ex-husband preventing her from getting other work, and she alleged a third person, Geon Ho, was giving information to the accused about her. Geon Ho is actually Gunho Bhang. He was called in the Crown case and his unchallenged evidence was that he did not know the applicant, had never been to the pizza shop, did not know about, or had asked the complainant any details about sexual assaults and that he had not otherwise behaved towards the complainant in an improper manner: see T 171-173.
2. The applicant submits that no evidence was adduced in the Crown case that would have been capable of demonstrating that the complainant's asserted beliefs were true or had any rational basis. The applicant further submits that on their face, they are obviously implausible.
3. It is clear that her evidence regarding Mr Bhang was untrue.

Significant inconsistencies between the complainant's evidence and what she had told the police (and the CCTV footage)

1. The applicant submits that parts of the complainant's evidence and what she said to police in her statement of 16 September 2021 is inconsistent.
2. The Crown acknowledges that there were inconsistencies between the complainant's evidence and what she told the police. These are: 1. Suggesting in her statement that she remained employed with the applicant after the December 2019 incident as she could not obtain employment in the Korean community, yet her sworn evidence was that she did in fact have employment in the Korean community. 2. Suggesting in her statement that the applicant pulled her onto the mattress yet her sworn evidence was that she laid down next to him. 3. Suggesting in her statement that the applicant took off her clothes without a struggle yet her sworn evidence was that she struggled considerably. 4. Suggesting in her statement that the applicant told her that he was not going to come inside her, and that she had menopause, yet her sworn evidence was that he said that he wanted to impregnate her. 5. Suggesting in her statement that the applicant touched her the vaginal area outside her clothing and there being no struggle, yet her sworn evidence was that she struggled at about the time that he pulled down her pants to her knees before he reached into her underpants and touched her the vagina. 6. Suggesting in a statement that after the last incident, she remained at the shop for the rest of the day, yet her sworn evidence was that she left the shop and did not return for some considerable time. Additionally, when confronted with CCTV of the front of the shop which showed that she did not leave during the relevant period, she asserted that she left by the back door, yet CCTV of the rear of the shop confirmed that she did not, in the relevant period, leave the shop via the rear door.
3. The Crown conceded that there were significant issues with the credibility of the complainant, yet they were insufficient, either alone or in combination, to justify a conclusion that the complainant was very substantially lacking in credit.

Erectile dysfunction

1. In his interview with police, the applicant said it was not possible for him to have had sex with the complainant because he suffered from erectile dysfunction. Exhibit 7 was an agreed facts document about the applicant's medical records. They showed multiple attendances on his GP for erectile dysfunction commencing in 2009. The records also showed various medications have been prescribed to treat that condition. The applicant submits that Counts 1 and 3, allegations of penile-vaginal intercourse, could not have occurred as a result of the applicant's condition.
2. It is submitted that the applicant's long-standing erectile dysfunction raises a significant issue with the credibility of the complainant's evidence, namely, that the applicant told her that he became spontaneously aroused just by seeing her move around (T 20) and her evidence in relation to him ejaculating (T 21, 28, 49).
3. The Crown says of the applicant's submission that "evidence of a person receiving a prescription alone falls far short of proving that Counts 1 and 2 could have happened. Here there is no evidence that the prescriptions were filled," that this is contradicted by some of the answers in the applicant's interview: 1. That he had experienced erectile dysfunction in the last three to four years (Q2 23). 2. That two or three years ago, he tried Viagra (a medication used to treat erectile dysfunction) and his head nearly exploded so he never touched it again (Q2 25-227). 3. The last time he had sexual intercourse was three maybe four years ago (Q2 34).
4. The applicant submits that the only evidence capable of proving that the applicant had an erection (an important aspect of her evidence) was the complainant's evidence.
5. The Crown submits that the hypothetical prosecutor could have reasonably formed the view that a tribunal of fact might readily reject the interview assertions of the applicant on this aspect. The agreed facts show that since 2009 the applicant had repeatedly been prescribed three forms of medication to treat erectile dysfunction. In his interview the applicant asserted that he had at the latest, by 2018, taken Viagra and successfully attained an erection.
6. The agreed facts show that he was first prescribed Viagra in 2015 and continued being prescribed it until at least April 2021 when he received two repeats. The Crown submits that the hypothetical prosecutor might reason that it was implausible that the applicant had been prescribed Viagra (continuously) over five years and only tried it once, and that following his claimed adverse reaction in 2017/2018 he continued to be prescribed the medication. There is some force to this submission.
7. The applicant referred me to Constantinidis v R; Lazar v R (costs) [2022] NSWCCA 248. The applicant submitted in that case, the Court of Criminal Appeal found that the Crown was not in possession of an apparently credible complainant and a reasonable decision to prosecute the applicants would have required some independent corroboration of the complainant's evidence. Having found the complainant's evidence was unbelievable in several aspects, the Court held that the word upon which the Crown had depended had been demonstrated to be one which was very substantially lacking in credit and thus it was not reasonable to institute proceedings and issued a certificate.
8. The Crown responded to this submission in three ways. First, the facts in Constantinidis were different from the case before me - in Constantinidis the Crown was relying on a witness who, amongst other things, was criminally concerned in the matters before the Court, and was the subject of a warning under s 165 of the Evidence Act 1995 (NSW), both on this aspect and on others. The matter before me is not such a case.
9. Second, s 164 of the Evidence Act 1995 (NSW) abolished the requirement that a witnesses' evidence required corroboration. Third, s 294AA(2) of the Criminal Procedure Act 1986 (NSW) prohibits any direction to the tribunal of fact to the effect that there is a danger in convicting on the uncorroborated evidence of a complainant.
10. The applicant submits the Crown case relied on a single witness. The complainant's lack of credibility and reliability rises to the level where she could only be described as "very substantially lacking in credit". In addition, the applicant had the advantage of a single witness direction, limited good character direction, a Markuleski direction, a Liberato direction and agreed facts that demonstrated a long history of erectile dysfunction.
11. The applicant submits that had the Crown been in possession of all the relevant facts, it would not have been reasonable to institute proceedings, and it is appropriate that I grant a certificate.
12. The Crown relies upon Higgins v R (No 2) [2022] NSWCCA 82, submitting that the reasonableness issue depends upon the precise and peculiar facts and circumstances of the case. The Crown submits that those facts and circumstances include the statutory framework as previously set out. The Crown submits that the statutory framework in sexual assault matters would not lead me to conclude that it was not reasonable to commence proceedings.
13. Higgins was a sexual assault matter, where the Court dismissed an application for a costs certificate. In Higgins the Court took into account some factors which are present in the current matter, namely, delayed complaint, lack of corroboration, consistent denials and good character. At [32] the Court said "despite the considerable hurdles facing a successful prosecution, it was not a case where we are satisfied that it would have been unreasonable for the prosecution to institute proceedings if it had been in possession of evidence of all the relevant facts".

DETERMINATION

1. Despite the many differences in the account given by the complainant, I have not been satisfied that the complainant was "very substantially lacking in credit". If I am wrong about that, the hypothetical prosecutor was in possession of evidence which contains features common to many sexual assault matters, namely a single witness, lack of complaint, and inconsistencies in a complainant's account. Notwithstanding that, there were significant issues of credit. It was not unreasonable for the prosecution to commence proceedings in circumstances where they could seek and were granted jury directions dealing with those issues.
2. I refuse to grant a certificate and dismiss the application.

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