R v Fiorenza

The case of R v Fiorenza involved a defendant, Fiorenza, who sought a certificate for costs under the Costs in Criminal Cases Act 1967 (NSW). The defendant was acquitted of sexual assault charges after the trial judge accepted that the prosecution’s case was substantially lacking in credit due to significant inconsistencies in the complainant’s account. Fiorenza contended that the inconsistencies were so severe that it was unreasonable for the prosecutor to have instituted the charges, thus justifying a costs certificate.

The legal issues before the court included whether the inconsistencies in the complainant's testimony were of such a degree that it would not have been reasonable for a hypothetical prosecutor to institute the proceedings, and if so, whether this warranted a costs certificate under the Act. The court had to consider the nature of sexual assault cases, where discrepancies and inconsistencies are not uncommon, and whether these should be treated as inherently rendering a prosecution unreasonable.

The court held that while the inconsistencies were notable, they were not so severe as to render the prosecution unreasonable. The court emphasised that inconsistencies are common in sexual assault trials and can be managed through appropriate directions to the jury. It was found that the hypothetical prosecutor would not necessarily have been aware of the inconsistencies at the time of instituting proceedings, and thus it would have been reasonable to do so. Consequently, the application for a costs certificate was refused, as the court was not satisfied that the prosecution was unreasonable to the requisite standard.

Accordingly, the court's final order was to refuse the application for a costs certificate under the Costs in Criminal Cases Act 1967 (NSW).