Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales

Judgment

1. HIS HONOUR: On 4 November 2010, Vincent Stanizzo was arrested and charged with six counts arising from the alleged sexual assault of Vivian Sgangarella-Valvano (also known as Karina Vivianna Fregnan) on 19 September 2008 and 25 May 2009. Mr Stanizzo was a solicitor. Ms Fregnan was his client.
2. An indictment originally dated 29 April 2011, but later as presented dated 8 July 2013, contained six counts as follows: 1. On 19 September 2008, Mr Stanizzo had sexual intercourse with Ms Valvano without consent: s 61I of the Crimes Act 1900. 2. On 19 September 2008, Mr Stanizzo attempted to have sexual intercourse with Ms Valvano without consent: s 61I and s 61P of the Crimes Act 1900. 3. On 19 September 2008, Mr Stanizzo threatened Ms Valvano with physical injury and financial detriment with intent that Ms Valvano not report the sexual assaults to police: s 315A of the Crimes Act 1900. 4. On 25 May 2009, Mr Stanizzo had sexual intercourse with Ms Valvano without consent or alternatively indecently assaulted her: s 61L of the Crimes Act 1900. 5. Between 1 January 2009 and 18 September 2009, Mr Stanizzo intimidated Ms Valvano with the intention of causing her to fear physical or mental harm: s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. 6. On or about 4 November 2010, Mr Stanizzo attempted to have Mr Badarne knowingly make a false statutory declaration with the intent to pervert the course of justice: s 319 of the Crimes Act 1900.
3. Mr Stanizzo was also charged upon a second indictment dated 29 April 2011 relating to his former employee Muhammad Badarne. It was alleged that Mr Stanizzo intimidated Mr Badarne on 14 November 2009, 10 June 2010, 12 September 2010 and 21 October 2010, with the intention of causing him to fear physical or mental harm: s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.
4. On 15 November 2011, Mr Stanizzo entered pleas of guilty in respect of: 1. Charges of indecent assault on Ms Valvano on 19 September 2008 and 25 May 2009: s 61L of the Crimes Act 1900. 2. Intimidation of Ms Valvano between 19 September 2008 and 31 March 2009: s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. 3. Intimidation of Mr Badarne between 13 November 2009 and 30 October 2010: s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.
5. Mr Stanizzo later applied for, and was granted, leave to withdraw his pleas. He was thereafter tried on these charges in the District Court commencing in July 2013. However, in circumstances to which detailed reference is made later in these reasons, all of those charges were subsequently withdrawn. By then, in 2012, Ms Valvano had commenced proceedings against Mr Stanizzo claiming damages arising out of the assaults that she alleges he committed upon her, and which formed the basis of the charges in the first indictment. Mr Stanizzo cross-claimed against Ms Valvano in those proceedings seeking damages alleging that she maliciously prosecuted him by complaining to the police and maintaining the sexual assault allegations against him. Mr Stanizzo commenced separate proceedings against Mr Badarne in 2014 and against the State of New South Wales in 2016 claiming damages in each case for malicious prosecution by them.
6. That somewhat brief and anodyne summary unfortunately belies the considerable depth and width of the relatively complex facts and circumstances out of which these three proceedings have emerged, as well as the frankly poisonous state of the relationship among Mr Stanizzo, Mr Badarne and Ms Valvano on one side as well as Mr Stanizzo's unconcealed contempt for the machinery of the State that prosecuted him on the other side. I have referred to this state of affairs at an early stage of these reasons in order to indicate that it will not be possible for me to produce any decision with which at least one party is not disappointed or possibly with which any party is satisfied. So deeply do these enmities appear to extend that I am even cautious about adopting, if only and obviously for the sake of efficiency, any summary of the facts contained in any one party's written submissions. Accordingly, to the extent that I reproduce such material in the course of these reasons for judgment, I should indicate that I am doing so, recognising and accepting that there is no universally agreed position on almost any allegedly important matter of fact and that these differences will ultimately, with varying degrees of urgency and significance, have to be resolved.

Background facts

1. The starting point for a consideration of the relevant events is when Ms Valvano reported to Detective Senior Constable Murdock at Wollongong Police Station on 8 October 2009 that Mr Stanizzo had sexually assaulted her. She provided details of what she said happened to her on 19 September 2008, including that Mr Stanizzo had sexually assaulted her at his home on that day and that he had threatened "to take her out in the ocean and throw her overboard with concrete legs". She also said that she had been assaulted at Mr Stanizzo's office and that Mr Badarne had seen what had happened.
2. Detective Murdock made a COPS entry record of his meeting with Ms Valvano in the following terms: "The POI in this matter, STANIZZO is a practicing [sic] solicitor and is known to several members of the Wollongong Detectives Office. The VIC met the POI whilst trying to sell her property in early 2008. After the sale of the property fell through the POI offered to purchase half of it to which the VIC agreed. On 19th September 2008 the VIC attended the POIs place of work at 62 King St Warrawong to collect a cheque for this sale. The POI handed over a cheque of $135,000 which was partial payment for the sale. The VIC alleges that the POI invited her to his residence (LOC) to have a drink and 'celebrate' the sale of the property. The VIC agreed and the VIC and POI then travelled to the LOC in the POIs vehicle. The VIC alleges that upon arrival she informed the POI that she needed to use the toilet and the POI showed the VIC to an ensuite bathroom off the main bedroom which she entered, closing the door. The VIC alleges that upon opening the ensuite door she observed the POI standing in the bedroom completely naked with an erection. The VIC alleges that the POI took hold of her and threw her onto the bed before pinning her down and penetrating her vagina with his fingers. The VIC was wearing a skirt at the time. The VIC further alleges that the POI then attempted to penetrate her vagina with his penis however was unable to do so due to her struggling and trying to keep her legs together. The VIC alleges that at one point the POI got his penis 'a quarter of the way in'. The VIC was screaming and struggling and states that the POI was telling her to 'be quiet' and 'shut up'. The VIC alleges the POI was continually rubbing his penis on her clitoris for an unknown time before ejaculating on her legs. The VIC immediately left the LOC and went to the nearby Balgownie Shops where she caught a taxi home, she did not disclose the incident to anyone. Over the following months the VIC attended the POIs place of work in Warrawong several times in relation to ongoing problems with the sale of her premise [sic]. She alleges that each and every time the POI continues to threaten to kill her if she tells anyone. She also alleges that on several occasions the POI has been physically violent towards her in his office and that another solicitor, M BADARNE was present and can offer certain evidence in relation to these assaults. Despite the alleged threats and physical violence the VIC did not contact of [sic] approach police. The VIC finally attended Wollongong Police Station on Thursday 8th October 2009, some thirteen months after the alleged assault, to report it. When questioned why it took so long for the report the VIC stated that it was because of the threats made by the POI. Whilst talking to her it became apparent that there is still ongoing civil and financial issues between the two with the VIC making numerous comments about ongoing financial dispute and the fact that she has tried to get every solicitor in Wollongong however none will 'take the POI on'. She also made reference to having future contact with Sydney Legal Aid to act on her behalf with the civil case relating to the property dispute. Investigators believe this ongoing civil issue may be a motive for the report. It will be explained to the VIC that at no time will police waste any time or resources on investigating this allegation if it is solely for her leverage or gain in her civil case. Also of interest is that the VIC has prior intel on COPS for prostitution. At the time of speaking with her the VIC appeared somewhat erratic, speaking very quickly and jumping from one thing to the next. She was advised to create a timeline of events, being as detailed as possible and contact detectives when completed so that a detailed statement can be obtained from her. Once a statement is obtained the alleged WIT will be spoken to about what evidence, if any, he can offer. There are no witnesses to the actual sexual assault and due to time, no physical or biological evidence available to police to co-oberate [sic] the VIC's version. Detectives will now wait to hear from the VIC before investigation the matter any further. Investigation continuing."
3. Detective Murdock spoke with Ms Valvano again a little later on 16 October 2009 by phone and then in person on 30 October 2009.
4. Ms Valvano went to the Wollongong Police Station on 13 November 2009 and commenced giving her statement to Detective Murdock. That statement was completed and signed on 25 November 2009. Mr Stanizzo tendered that statement in these proceedings. Part of what Ms Valvano told the police is as follows.
5. She first met Mr Stanizzo in 1982 when she was 21. In January 2008, she wanted to sell her house. She was referred to Mr Stanizzo by a real estate agent. Mr Stanizzo asked her if she was married. She said she was not. He said he was infatuated with her, and made a number of comments about his former wife. They later went to the Portuguese Club for lunch.
6. Ms Valvano said that Mr Stanizzo was constantly touching her in different ways.
7. On 4 July 2008, Ms Valvano signed a deed in Mr Stanizzo's office which provided for the sale of half her property to him and him paying $240,000 for half the mortgage. On 7 July 2008, Mr Stanizzo paid $21,282 in arrears owing on the mortgage as well as other bills.
8. Ms Valvano's statement to the police then contained details of the matters which formed the basis of the charges of sexual assault on 19 September 2008. Ms Valvano said that Mr Stanizzo called her that morning asking her to collect a cheque for the proceeds of the sale of her house which she expected would be in the order of $200,000. She went to his office late in the afternoon and Mr Stanizzo wrote out a cheque for $134,518. Mr Stanizzo wrote out a list of amounts he had paid either to her or on her behalf. Ms Valvano questioned the amount of the cheque and was told it was all that she was owed. This made her "angry inside". However, Ms Valvano was desperate for money so she had no choice but to take it.
9. Ms Valvano said that before Mr Stanizzo gave her the cheque, he asked her to go back to his house. Once again she said she was desperate for the money so she did so. Mr Stanizzo drove her in his silver/grey Alfa Romeo. He handed her the cheque shortly before they arrived.
10. Ms Valvano described Mr Stanizzo's house and driving into his garage. Once inside, Mr Stanizzo poured himself a drink and lit a cigar. After smoking some of the cigar, they went upstairs into an open plan kitchen/dining/living room, with a piano against one of the walls. Mr Stanizzo made her a coffee and she played the piano. They spoke at the dining room table for about 15 minutes.
11. Ms Valvano then asked to go to the bathroom. Mr Stanizzo took her downstairs to a bedroom with an ensuite. She described the bedroom and the bathroom. When she came out of the bathroom, Ms Valvano said that Mr Stanizzo was "half naked, only wearing a dark coloured T-shirt and no pants at all". She said to him that she was not having sex with him. However, he moved her against her will to the bed. She asked him to stop. He placed his fingers under her skirt and in her vagina all the time while she was telling him to stop. Mr Stanizzo was then thrusting and trying to get his penis into her vagina. His erection was rubbing on her left thigh. She struggled with him and he ejaculated on her thigh. Ms Valvano said she felt humiliated and disgusted.
12. Ms Valvano said that Mr Stanizzo said "if you tell anyone I will put you in the ocean with concrete legs and withdraw the cheque just like I did with the other cheque a week ago". She then left, walking to Balgownie shopping centre, where she rang a taxi and went home. She was shaken and shocked by what had occurred but was too scared and embarrassed to call the police.
13. Ms Valvano said that she stayed away from Mr Stanizzo thereafter for several months, only contacting him by letter or phone concerning the property. He never mentioned what happened. He did ring her and ask her out to the Portuguese Club and other restaurants. He even asked her to go with him to Italy. She declined all of these offers. Mr Stanizzo told her not to say anything about their relationship, saying "you know what happens to people who open their mouths". Ms Valvano did not see Mr Stanizzo again until Mr Badarne contacted her in late February or early March 2009 on behalf of Mr Stanizzo, asking about her mortgage payments. She went to their office to see Mr Badarne and Mr Stanizzo walked in. He asked her to pay him $80,000 saying that he would release her from her contracts. They argued and she left.
14. Ms Valvano also gave details of another alleged sexual assault on 25 May 2009. She said that she went to the Shellharbour TAFE with Mr Badarne for a conference with the manager, John Boss. The conference was recorded and she was given a copy of the recording. Mr Badarne and Ms Valvano then went back to Mr Stanizzo's office to listen to the recording. When Mr Stanizzo returned, he started complaining about paying for Ms Valvano's nursing fees and asked her for a massage saying that if she did not give him a massage he wanted his $15,000 back. Ms Valvano agreed to give him a massage.
15. They went into his office. There was a bottle of massage oil sitting on his desk. Mr Stanizzo shut the door, took off his tie and undid his shirt. Ms Valvano massaged his neck before he told her to stop. She walked to the kitchen, next to his office, and washed her hands. When she returned, Mr Stanizzo tried to hug her, grabbing her and forcing her against a bookshelf. He grabbed her left breast and her shirt came undone. She could feel his erection pressing against her leg. She asked him to stop. He grabbed her groin with his left hand, forcing his fingers into her vagina. Mr Stanizzo then "sniffed his finger" and kept holding her against the bookshelf. Ms Valvano heard the door handle shake. Mr Stanizzo appeared startled and let her go. She opened the door and left the office. She walked past Mr Badarne without speaking.
16. Ms Valvano later spoke to Mr Badarne by phone and could hear Mr Stanizzo yelling in the background saying he could not act for her. Over the next few months she received several letters from him asking her to attend the office to sign documents.
17. In August 2009, Ms Valvano contacted Mr Badarne because she needed further legal advice concerning the Shellharbour TAFE. She told Mr Badarne over the phone what Mr Stanizzo had done to her on 19 September 2008 and 25 May 2009. Mr Badarne told her to go to the police. She ultimately did so on 8 October 2009.
18. On 7 November 2009, Mr Badarne attended the Wollongong Police Station and gave a statement to Detective Murdock. Mr Badarne indicated that he first met Ms Valvano in about March or April 2008 when she came into the office where he was working for Mr Stanizzo. He said that he had seen Mr Stanizzo act in various inappropriate ways towards Ms Valvano, including holding and touching her and that Ms Valvano had appeared uncomfortable. Mr Badarne said that on one occasion Ms Valvano went into Mr Stanizzo's office and that he could clearly hear Ms Valvano saying "leave me alone". Mr Badarne said that on one occasion he heard Ms Valvano say to Mr Stanizzo, "since when has a business transaction become a sexual transaction?".
19. Mr Badarne also told Detective Murdock about the incident on 25 May 2009 after he and Ms Valvano had attended Shellharbour TAFE. He said Ms Valvano was dressed immaculately and that they returned to his office to discuss the meeting. After about 20 or 30 minutes, Mr Stanizzo arrived and asked Ms Valvano for a neck massage. They went into Mr Stanizzo's office and closed the door. Mr Badarne heard Ms Valvano saying, "leave me alone; don't touch me". Mr Badarne gave other details of this incident to the police.
20. On 25 November 2009, Detective Murdock took Ms Valvano to the Balgownie shops from where she directed him to Peace Crescent and then to a particular house in that street. She told Detective Murdock that it was the house to which Mr Stanizzo had taken her on 19 September 2008.
21. In December 2009 and January 2010, Detective Murdock made several unsuccessful attempts to speak with Ms Valvano. On 18 February 2010, Detective Murdock spoke to Mr Badarne and asked him if he would be willing to participate in a telephone interface with Mr Stanizzo. Mr Badarne told police that he was confident that Mr Stanizzo would discuss the alleged offences with him. On 31 May 2010, upon his return from leave, Detective Murdock decided to recommence the investigation by applying for a telephone intercept. On 1 June 2010, he spoke again to Mr Badarne about this.
22. On 8 June 2010, Ms Valvano called Detective Murdock in an agitated state. She told him she had been advised by her lawyer that she might lose her house. Detective Murdock asked her to come to the police station but she declined, saying that she was too shaken and upset. However, the next day Ms Valvano phoned Detective Murdock and told him that she had spoken to a barrister in her civil matter who had advised her that it would help her civil case and speed it up considerably if Mr Stanizzo were charged. Detective Murdock advised Ms Valvano that he would not be acting in any way simply to assist her with her own civil litigation.
23. Mr Badarne attended the Wollongong Police Station on 10 June 2010 and spoke to Detective Murdock, alleging that Mr Stanizzo had made threats to him in March that year (actually in November 2009) when Mr Badarne had visited Mr Stanizzo's house, as well as earlier that day when he and Danny Lagapodis, the principal of the firm for whom Mr Badarne by now was working, had gone to Mr Stanizzo's office. Mr Badarne told Detective Murdock that he was still willing to participate in a telephone interface but that he was certain that Mr Stanizzo would not talk to him about "the Valvano matter", let alone make any admissions. Detective Murdock decided not to pursue that technique any further.
24. On 16 July 2010, Detective Murdock phoned Mr Stanizzo and spoke to him. Mr Stanizzo disputes Detective Murdock's version of this conversation, which Detective Murdock says was in these terms: Murdock: "Mr Stanizzo, my name is Detective Jake Murdock from Wollongong Detectives. I need to speak with you in relation to a woman called Vivian Valvano. Do you know her?" Stanizzo: "Yes, I know Valvano." Murdock: "She is alleging that you sexually assaulted her on two occasions, at your house and at your office." Stanizzo: "That's complete rubbish, she is just trying to discredit me and a woman called Gael McPherson." Murdock: "What I would like to do is formally interview you in relation to the allegations. Will you come into Wollongong Police Station to be interviewed?" Stanizzo: "No."
25. On 16 July 2010, Detective Murdock made a record in the COPS database of his conversation with Ms Valvano, at which time she was advised of the following: "Police view is that there is sufficient evidence to put Stanizzo before the court however prospect of a conviction is low. Advised that legal advising would be sought from DPP and their advice taken re action. Advise she would be contacted once result of legal advising was known."
26. On 5 August 2010, Detective Murdock again spoke with Mr Badarne at Wollongong Police Station. He made a note of that conversation as follows: "…He advised police that he was aware the author had spoken to Stanizzo in relation to this matter. He informed police that Stanizzo had since made contact with him in relation to the allegations and asked him that Badarne provide a statement or affidavit in relation to the matter in which he was to state that at no time did he see Stanizzo make any sexual advances towards Valvano, that his door was always open in the office whenever Valvano was present, and that he never heard anything in Stanizzo's office. He also stated that Stanizzo stated that he wanted Badarne to state that Stanizzo always had his door open when Valvano was present as he was scared of Valvano and such allegations. Badarne has agreed to provide a statement and is to attend WGPS on 09.08.10 to do so. Consideration is to be given to the possibility of conducting the telephone interface between Badarne and Stanizzo as Badarne now states that there is a high likelihood that Stanizzo will corroborate this and talk further on the phone."
27. On 25 July 2010, Mr Badarne had gone to Mr Stanizzo's house to deliver a deed of assignment of clients. Mr Badarne said that Mr Stanizzo asked, "Can you make a statement saying that I made no sexual advances to Vivian and that the door was always open when I met her?" Mr Badarne refused. On 30 July 2010, Mr Badarne went to Mr Stanizzo's office in relation to the deed, when he was asked by Mr Stanizzo to provide an affidavit in the civil matter. Mr Stanizzo produced a draft affidavit, which Mr Badarne read but refused to sign as he said it included statements of fact that were untrue.
28. On 21 August 2010, Mr Badarne gave a statement to the Wollongong police concerning his interactions with Mr Stanizzo. He said that he went to Mr Stanizzo's house on 23 December 2008 where he saw a piano in the lounge room, when Mr Stanizzo asked him not to act for Ms Valvano on the TAFE matter. Mr Badarne said that Mr Stanizzo phoned him on 8 July 2010 saying, "I want you to write a statement that I have never made sexual advances to her [Ms Valvano] and I always kept my door open when she was in my office." Mr Badarne said that Mr Stanizzo rang him again on 15 July 2010 asking him not to act for Ms Valvano, saying she was nothing but trouble. Mr Stanizzo again phoned him on 22 July 2010 asking him for a statement. Mr Badarne said he could not become involved
29. Mr Badarne again attended Wollongong Police Station on 24 September 2010 and gave another statement to Detective Murdock. He said he had been intimidated on four occasions. Among other things, Mr Badarne told police that on 15 November 2009, he had gone to Mr Stanizzo's house when Mr Stanizzo told him he would "bury him". Mr Badarne said the following conversation ensued: Mr Badarne: "What do you mean you want to bury me man?" Mr Stanizzo: "Not only do I bury you, I bury your daughter, your wife and everybody. I even go to Israel and bury your brothers if I need to … I do not care, I have done my career, right, my career is at an end. I do not want to practise anymore for two or three years, but your is not … I am telling you, I am telling you that I don't believe in the peace process, do you know in what peace process I would believe, you know what it is … the same one that the German did to the Jews. I tell you what there is no other solution … Do you know what I would do to your people, from Damascus or Palestine all the way to Rome crucified, like the Romans used to do, this is why they held an empire for a thousand years … We, I tell you something, I tell you something, we in my part of the world, we never make a threat unless we intend to carry it out … Do you know what they (relatives) are going to do to your family. They are going to slice them like Mortadella, bit by bit, bit by bit."
30. Mr Badarne said that as he said this Mr Stanizzo was using his hands to symbolise slicing. He said he felt very intimidated.
31. Mr Badarne said he had gone to Mr Stanizzo's office on 10 June 2010 to return a file with Mr Lagapodis. Mr Lagapodis took the file in to Mr Stanizzo who then came running out saying, "where is the rest of the file, smart arse?" Mr Stanizzo then came up to the car and said, "Why don't you come out of the car and let us see who will bury who?" Mr Stanizzo kept saying, "I will bury you."
32. On 11 June 2010, Mr Badarne complained about Mr Stanizzo to the Law Society. Mr Badarne said that Mr Stanizzo called him regularly after that, saying "I will make sure you lose your licence, I will find something to go to the Law Society with."
33. The following day, Mr Stanizzo came to Mr Badarne's house and spoke to him in the backyard where he was chopping wood. They had a conversation about a costs file. Mr Stanizzo said, "You will regret it; it will be either me or you in gaol but I tell you I will go to gaol because I am going to slice you with an axe. I will do you, I will chop you." Following this, Mr Badarne called the police.
34. On 13 September 2010, Mr Stanizzo rang Mr Badarne while he was travelling on a train to Sydney. Mr Stanizzo said, "I will teach you a lesson, even if I go to gaol."
35. Mr Badarne went to the Wollongong Police Station on 25 October 2010 and gave Detective Murdock another statement. In that statement he provided details of four abusive telephone conversations between 10.55am and 12.16pm, in which Mr Stanizzo referred to him as "disgusting human flesh", said "I have not finished with you yet" and said "You think I'm finished with you…you will regret the day you were born." Mr Badarne also said Mr Stanizzo said, "When I teach you how to fight you will be walking with a stick if you stay alive."
36. Accordingly, although it involves some repetition, it is apparent from the expanded COPS entry made by Detective Murdock that by 31 October 2010, he had assembled the following facts: "The complainant in this matter is Vivian SGANGARELLA-VALVANO, aged 51 years. For the purpose of this matter she will hereby be referred to as VALVANO. The accused in this matter is Vincent STANIZZO aged 57 years. STANIZZO is a practising solicitor owns VF STANIZZO Lawyers located at 62 King St Warrawong. For the purposes of this matter STANIZZO will hereby be referred to as the accused. The witness in this matter is Muhammad BADARNE, aged 44 years. He is also a practising solicitor and worked at VF STANIZZO Lawyers from March 2006 to August 2009. He will hereby be referred to as BADARNE. VALVANO states that she has known the accused since 1982 when she met him at the Fraternity Club in Fairy Meadow through her ex-husband. VALVANO states that she has seen the accused several times over the years however their interactions were limited to greetings only. In 1999 VALVANO and her (now ex) husband purchased a house at 51 Auburn St Wollongong. The following year they divorced and VALVANO retained the house following the property settlement. In January 2008, due to money problems, VALVANO decided to sell her residence and contacted 'Illawarra Properties' in Warrawong to list the house for sale. VALVANO was subsequently referred to a solicitor in the same office block to have contracts for sale prepared. VALVANO attended this solicitor and discovered that it was in fact the accused at VF Stanizzo Lawyers. VALVANO has told Police that during the initial consultation with the accused, he enquired about her marital status and made numerous comments such as, 'I am divorced, I have not told you this before but I am infatuated with you'. VALVANO has told Police that whilst she was unhappy with the accused's conduct she could not afford another solicitor and therefore engaged the accused's professional services. Over the following months, VALVANO attended the accused's practice numerous times to sign documents in relation to the sale of the house. VALVANO has told Police that on almost every occasion, the accused would get in her personal space, touch and rub her on the shoulders and try to hug her. The accused allegedly made remarks about how she should have married him. The accused allegedly made constant requests for VALVANO to massage his neck. BADARNE was present and is alleged to have witnessed the behaviour the accused exhibited towards VALVANO. BADARNE has told Police that VALVANO appeared uncomfortable with the accused persons behaviour. In June 2008, a prospective buyer was found for VALVANO's house. However, prior to the sale the accused allegedly approached VALVANO and offered to purchase the house. It was agreed between the accused and VALVANO that the accused would purchase half the house for $240,000. On 19 September 2008, VALVANO attended the accused's practice to collect a cheque for the monies relating to the sale of her house. Prior to giving VALVANO the cheque, the accused allegedly stated 'I have got some nice wines at home I can give you. Would you like to come back to my house and celebrate our business deal?' Fearing the accused would not give her the cheque if she refused his offer, VALVANO accepted and was driven to the accused's house at … Peace Crescent, Balgownie. On route, the accused allegedly said, 'This is a lot of money I am giving you, I hope you appreciate it'. VALVANO alleges that upon arrival at the accused's residence they entered the house and spoke for an amount of time during which the accused asked her to massage his neck, to which she declined. A short time later, VALVANO requested to use the bathroom and was led by the accused to a bedroom on the bottom floor of the residence where an en-suite bathroom was located. VALVANO entered the en-suite and closed the door. VALVANO alleges that after using the facilities she opened the en-suite door and observed the accused standing immediately at the door naked from the waist down. It is alleged that the accused then grabbed VALVANO in a 'bear hug' and put her up against the wall. The accused is alleged to have stated 'Look after me and you will get everything you want.' VALVANO stated 'No, I'm not having sex with you', however the accused started moving towards the bed. VALVANO said 'Stop, get off, leave me alone!' with the accused saying 'Come on, you are a mature woman, stop acting like a child, you want it just as bad as I do'. The accused then threw VALVANO on a nearby bed and lay on top of her. It is alleged that he then reached under her skirt, moved her underwear to the side and then penetrated her vagina with the middle finger of his left hand. VALVANO screamed for the accused to stop, however he then inserted his pointer finger into her vagina as well and told her to 'Shut up'. It is also alleged by VALVANO that she could feel the accused thrusting and trying to insert his erect penis into her vagina, however he was unable to due to VALVANO struggling. The accused then ejaculated on VALVANO's left thigh before rolling off her. The accused then said to her, 'If you tell anyone I will put you in the ocean with concrete legs and withdraw the cheque just like I did with the other cheque a week ago' (referring to different cheque). VALVANO collected her handbag and left the residence, returning home in a taxi. Due to shock, embarrassment and fear VALVANO did not report the matter to Police or disclose the offence to anyone. Following the offence, VALVANO stayed away from the accused for several months by restricting contact to telephone or correspondence. VALVANO alleges that the accused regularly made advances towards her and would say; 'Do not tell anyone I want to take you on dates, do not tell people I want to take you dancing, don't tell anyone I am your solicitor cause you know what will happen to you, you know what happens to people who open their mouths'. These comments scared VALVANO. Over the following months a civil suit commenced in the NSW Supreme Court involving the accused, VALVANO and other parties relating to monetary issues involving the proposed sale of VALVANO's house. On 29 April 2009, BADARNE commenced assisting VALVANO in relation to an unrelated legal issue and VALVANO was required to attend the accused's practice in Warrawong several times to speak with BADARNE. VALVANO alleges that whilst at the accused's practice, the accused would continually harass her and request her to massage his neck, but she ignored him. On 25th May 2009, VALVANO and BADARNE attended Shellharbour TAFE in relation to the unrelated matter before returning to the accused's practice at 62 King St Warrawong to discuss the matter. Shortly after arriving, the accused attended the office and again asked her to massage his neck. To stop the accused pestering her, and despite being very hesitant, VALVANO agreed and the two went into the accused's office. The accused shut the door. VALVANO observed that the accused already had a bottle of massage oil on his desk. After massaging his neck for several minutes VALVANO went to leave the accused's office and the accused attempted to hug her and she stepped back to avoid him. The accused then took hold of VALVANO and forced her up against a bookshelf in his office before groping VALVANO's left breast, digging his nails in. The accused groped VALVANO's left breast with such force that it caused her shirt to become untucked. VALVANO could feel that the accused had an erection. VALVANO said 'Don't touch me! Leave me alone!' several times. BADARNE has told Police that he heard VALVANO say, 'Don't touch me! Leave me alone!' several times. The accused then used his left hand to grab VALVANO on the vagina, he grabbed with such force that one of his fingers penetrated her vagina. At the time VALVANO was wearing a skirt and G-string. The accused then removed his hand and put it to his nose, sniffing his fingers. VALVANO stormed out of the room, retrieved her handbag from BADARNE's office and ran out of the building. VALVANO left the location and did not report the matter to Police or disclose the offence to anyone out of fear and embarrassment. BADARNE has told Police that prior to entering the accused's office VALVANO was immaculately dressed. BADARNE witnessed the accused enter and ask VALVANO to massage his neck and she was hesitant but agreed. BADARNE states that shortly after the two entered the accused's office he could hear VALVANO yelling 'Don't touch me, leave me alone' numerous times as well as the sound of furniture being banged or moved around. BADARNE approached the accused door and attempted to open it but it could not be opened. BADARNE made as much noise as he could with the door handle and then went back to his office. Seconds later, BADARNE observed VALVANO enter his office, grab her handbag and run out of the building. BADARNE saw that VALVANO's hair was now all messed up and her shirt was now untucked. The accused made no comment about the incident but asked BADARNE to do him a favour and not speak with VALVANO, as she was a liar. Following this incident the accused refused to allow BADARNE to act for VALVANO in relation to the Shellharbour TAFE matter, telling BADARNE 'she is a liar, don't believe her, don't believe anything she says, she is nothing but trouble …' VALVANO continued to attend STANIZZO's practice in relation to her house, however she would telephone BADARNE first to ensure that BADARNE was present and she would not be left alone with the accused. During one of these phone calls in early August 2009, VALVANO spoke with BADARNE and disclosed both sexual assaults to him. In early October 2009 VALVANO spoke again with BADARNE who agreed to provide a statement to police. VALVANO attended Wollongong Police Station on 8th October 2009 where she reported the alleged offences. VALVANO and BADARNE have provided statements to police in relation to the allegations. On 16th July 2010 Detectives contacted the accused and questioned him about the allegations. He claimed that the allegations were 'complete rubbish' and that VALVANO was just trying to discredit him in relation to the upcoming civil court proceedings. He was given the opportunity to attend Wollongong Police Station and be formally interviewed in relation to the allegations but he refused. BADARNE alleges that since the accused has been made aware of the police investigation he has contacted him on several occasions requesting BADARNE provide him with an affidavit or statement regarding the alleged offences, in particular that BADARNE never observed the accused make sexual advances toward VALVANO, that his office door was always open when VALVANO was in there and that BADARNE never heard anything occur inside the accused's office. BADARNE declined the accused's requests and has provided a second statement to police in relation to this. Detectives subsequently applied for and were granted warrant 10/0469 under the Surveillance Devices Act 2007 entitling them to utilise listening devices to covertly record the telephone conversations between the accused and BADARNE. This warrant was granted by his honour Mr Justice HULME of the Supreme Court of NSW on 26th October 2010."
37. On 4 November 2010, Mr Badarne had a conversation with Mr Stanizzo while wearing a lawfully authorised listening device. The conversation was recorded. On this occasion, Mr Badarne was given a statutory declaration to sign by Mr Stanizzo. Mr Badarne read the statutory declaration aloud, before saying that it put him in a predicament. The transcript of some of that conversation included the following: Mr Badarne: "It's the opposite of what I saw or heard…you ask her to give you the massage…But if I sign this, that is not the truth…so what, I should sign this regardless of…what I saw and witnessed?" Mr Stanizzo: "…that's what I remember." Mr Badarne: "[contrary to what was in the statutory declaration] rooms are not soundproof." Mr Stanizzo: "Are you going to sign this…I'm not insisting. But I will be pleased if you would sign it…Who's going to know…what happened here? Except you and me. I say…it did not happen. She says different…if there's not, your statement is not any use to me, what's the use of having the statement?" Mr Badarne: "These things are false and I cannot approve them. This, stat dec is false man, because when people lie…". Mr Stanizzo: "Listen to this. You know, we've been friends for a long time and we work, work every day, so what exactly is it that you want to change and I'll, I'll give you the money to, you, you know. I'll give you the money, I'm telling you otherwise you wouldn't be here…as men…let's try to work this out. Tell me what you want changed and we change it and yeah, I'll give you the money. Come on." Mr Badarne: "If you accept my changes you'll give me the money?" Mr Stanizzo: "Well depends what they are…Muhammad, before you go…you prepare a statement, all right. But…it looks very bad for me…I'm a victim here…I, I, I, I risk going to gaol. I, I risk being struck off. Look that's the risk there…I haven't done anything wrong…juries can get things wrong…innocent people end up in gaol."
38. Mr Stanizzo was arrested later the same day.
39. Mr Stanizzo pleaded guilty on 15 November 2011 to charges of indecent assault on 19 September 2008 and 25 May 2009, the intimidation of Ms Valvano between 18 September 2008 and 31 March 2009 and the intimidation of Mr Badarne between 13 November 2009 and 30 October 2010. Mr Stanizzo was then represented by senior counsel and a solicitor. Mr Stanizzo also signed a document at that time headed "Facts on Sentence". The facts on sentence effectively summarised the allegations contained in the material to which reference has already been made. They did not, however include any reference to, or suggestion that, Mr Stanizzo penetrated Ms Valvano as she alleged.
40. The charges were all originally listed for sentence hearing on 2 March 2012. However, on 28 and 29 May 2012, Berman DCJ heard Mr Stanizzo's motion to withdraw his guilty pleas. His Honour published reasons for his decision to permit Mr Stanizzo to do so on 29 May 2012. The basis of the decision was his Honour's conclusion that, even though in his opinion the Crown case against him was strong, Mr Stanizzo's pleas were not entered freely or voluntarily and that his confession was made and his pleas were entered for reasons other than being attributable to a genuine consciousness of guilt.
41. Mr Stanizzo's trial commenced on 1 July 2013. Detective Murdock produced a summary of what occurred concerning the circumstances in which the Valvano charges against him were withdrawn: "On 1st July 2013, the trial commenced at Downing Centre District Court. The matter commenced with a voir dire relating to the admissibility of the material obtained using the Listening Device on 2nd, 3rd and 4th November 2010. This voir dire was set down for a week with the final result being that the material from 2nd and 3rd November 2010 was inadmissible however the material from 4th November 2010 was admissible with some amendments made. A jury was subsequently empanelled and trial commenced. Vivian Valvano commenced her evidence and was in the witness box for over a week giving evidence in chief. Cross-examination commenced during which the defence provided documentation from Bluestone Mortgages, the company involved in the civil matter between Stanizzo and Valvano. As a result of the production of this material the Crown requested the author seek to obtain records from Bluestone regarding calls made by Valvano to Bluestone. Police obtained under subpoena voice recordings of calls made by Valvano on 19th September 2008 (date of first alleged sexual assault). These recordings revealed that Valvano had the cheque from Stanizzo at 3.48pm that date. In a statement obtained from her at prior date Valvano had told Police that she attended Stanizzo's office approx. 5pm that date and attended his home as he refused to give her the cheque if she refused. As a result of the obvious discrepancy existed. The defence was put on notice at the first opportunity and as a result the recordings were played to Valvano during her cross-examination. Valvano refused to accept it and claimed the version she provided to police was correct, not the recording. Severe credibility issues arose in relation to Valvano's evidence and a decision made by the Crown to seek permission to withdraw all charges against Stanizzo relating to Valvano. This was granted by the Director and all charges relating to Valvano were withdrawn several days later."
42. On 2 August 2013, the DPP directed that the Valvano charges be withdrawn.
43. It had earlier been determined that the Badarne charges should be heard separately. As at 2 August 2013, those charges had not also been withdrawn. However, on 16 January 2014, Detective Murdock was advised by the DPP that the charges against Mr Stanizzo relating to Mr Badarne had been withdrawn and that the hearing of those charges due to commence the following day had been "aborted".
44. I repeat for the sake of emphasis that the above summary is not intended to represent findings by me following a decision about contested issues of fact. It is intended only as a convenient, albeit possibly controversial, precis of the circumstances that generated this litigation. As will become apparent, several other factual matters of significance remain to be referred to and discussed.

Oral evidence

1. Despite the length of the hearing before me, only four lay witnesses gave evidence. The first was Ms Valvano, who, as the plaintiff in the first case, necessarily commenced. Her evidence starts at transcript page 102 and proceeds as far as transcript page 429. That evidence consists almost exclusively of Ms Valvano being cross-examined by Mr Waterstreet of counsel for Mr Stanizzo over nearly four whole days. Ms Valvano was not asked any questions by counsel appearing for either the State or Mr Badarne.
2. Mr Stanizzo was the next witness to give evidence. His cross-examination commences at transcript page 465 and his evidence concludes with his re-examination at transcript page 936. Mr Stanizzo was cross-examined by counsel for Mr Badarne and the State and by Ms Valvano.
3. David Stanizzo, who is Mr Stanizzo's son, and Gael McPherson, also gave evidence.
4. Neither Detective Murdock nor any other witness was called by the State. Mr Badarne also did not give evidence. The fact that Detective Murdock and Mr Badarne chose not to give evidence in response to Mr Stanizzo's case against them is unremarkable both in the circumstances of these cases in particular as well as in cases of malicious prosecution in general, when one has regard to the considerable burden resting upon Mr Stanizzo of establishing the elements of the tort.

Mr Stanizzo's case against the State of New South Wales

1. It is convenient to deal with this case first.
2. Mr Stanizzo contends that the State is liable to him in damages for malicious prosecution in having caused him to be arrested and for commencing his prosecution and maintaining it thereafter. Mr Stanizzo also contends that the allegations made by Ms Valvano and Mr Badarne, upon which his arrest and prosecution were based, were false and malicious and render them independently liable as prosecutors. These allegations are dealt with separately later in these reasons.

Absence of reasonable and probable cause

1. The absence of reasonable and probable cause will have been established if the prosecutors either did not in fact form the opinion that the material before them was sufficient to warrant the commencement or maintenance of the prosecution or, if they did form that opinion, they did so on insufficient grounds.
2. Mr Stanizzo submitted that this element was established by tracing the police records exhibited to the statement of Detective Murdock. Mr Stanizzo's detailed analysis of these records and COPS entries proceeds on the conspicuously undisguised thesis that Ms Valvano and Mr Badarne were conspiring between themselves to make false allegations against him and that Detective Murdock either knew it or should have.
3. For example, Mr Stanizzo refers to Detective Murdock's first meeting with Ms Valvano at the Wollongong Police Station at 1.51pm on 8 October 2009. Ms Valvano complained of a sexual assault by Mr Stanizzo on 19 September 2008, 13 months beforehand, and of "violence" towards her on other occasions. Mr Stanizzo contended that Detective Murdock noted Ms Valvano's ongoing civil disputes with Mr Stanizzo may be her motive for making the complaint, that the complaint may have been made solely to gain leverage in the civil case, that Ms Valvano had prior intelligence on the COPS system for prostitution and that there were no corroborating witnesses and no physical evidence. Mr Stanizzo then made this submission: "Murdock had therefore serious doubts as to [Valvano's] credibility, bona fides and motive (financial gain) from the outset - he realised the likelihood that she was lying out of malicious motives towards Stanizzo."
4. The State submitted that this submission should be rejected as it is not supported by, or established on, the evidence. The State contended that it is not appropriate to conflate Detective Murdock's initial doubts with the absence of a genuine belief, following a full investigation, that the offences had been committed. Part of the material that Detective Murdock was entitled to take into account was the recorded conversation between Mr Stanizzo and Mr Badarne, from which it is reasonably apparent that Mr Stanizzo was attempting on one view to encourage Mr Badarne to give a false account of what happened between Ms Valvano and Mr Stanizzo.
5. Mr Stanizzo's submission that Detective Murdock realised the likelihood that Ms Valvano was lying out of malicious motives towards him is the central theme of Mr Stanizzo's submissions and one that I take to cover the whole of the evidence that had been assembled by Detective Murdock by the time Mr Stanizzo was charged. I am, however, unable to conclude that Detective Murdock had, or even that he should have had, any such realisation.
6. I will in due course deal with the rest of Mr Stanizzo's primary contentions about what he says Detective Murdock should have realised having regard to the material that he had assembled. However, it is critical at an early stage in cases such as this, and in this case in particular, to distinguish between the healthy scepticism of an investigating detective about what he or she was being told by a complainant in a sexual assault matter on the one hand and actual knowledge ("realisation") that the story was false and that the complainant was lying or was motivated by malice towards the alleged assailant on the other hand. There is an important difference between the question of whether or not a complainant had, or may have had, such a motive and the question of whether or not the investigating detective suspected it or should have. It would be surprising if in this case Detective Murdock did not have some initial doubts about Ms Valvano's account. It seems apparent that he approached the complaint with an open mind and took the complaint seriously. He undertook further investigations and patently formed the view, despite his initial doubts, that the complaints were credible. On 19 October 2010, Detective Murdock swore an affidavit in support of the application for a surveillance device warrant in which he said that he believed the offences had been committed. The affidavit recited the same facts as those extensively recorded earlier in these reasons as extracts from Detective Murdock's COPS entries.
7. The inevitable burden of Mr Stanizzo's submission is that Detective Murdock had material in his possession that showed or demonstrated to him that Ms Valvano's allegations were in fact false or concocted for an improper motive. This submission effectively asserts that Detective Murdock had sufficient material with the benefit of which he should have determined to take her allegations no further. However, reasonable and probable belief does not equate to certainty. Detective Murdock could not in my view have been certain or even confident that Ms Valvano's allegations were false. He was entitled in the particular circumstances of this case, in the absence of material from which to conclude otherwise, that the allegations were true. I am satisfied that he formed that opinion. The material before him was sufficient for him to have done so. Ms Valvano's allegations were neither inherently improbable nor obviously false.
8. I remain of that view after having closely considered all of Mr Stanizzo's further submissions, which are referred to in what follows.
9. Mr Stanizzo has drawn attention to numerous examples taken from the COPS entries of Detective Murdock's dealings with both Ms Valvano and Mr Badarne suggesting that he too readily accepted what they told him. For example, Mr Stanizzo suggests that Detective Murdock should have questioned Ms Valvano closely as to why she waited so long to report the assaults or permitted her civil litigation to take precedence. Detective Murdock is criticised because he did not question Ms Valvano about having told Mr Badarne that she saw Mr Stanizzo emerging from the ensuite "totally naked" whereas in her statement she says that he was "half naked, wearing only dark coloured a T shirt". Mr Stanizzo says that Detective Murdock should in effect have sought an explanation from Mr Badarne why he, a solicitor having witnessed what he claimed to have witnessed on 25 May 2009, did not report it to the police and that he should also have questioned Mr Badarne about why he ceased to work for Mr Stanizzo's firm, lest a motive to harm Mr Stanizzo by making false claims might have been revealed.
10. In this same vein, Mr Stanizzo questions Detective Murdock's decision to have Mr Badarne engage Mr Stanizzo in a secretly intercepted telephone conversation and that he also ignored "the obvious possibility" that Mr Badarne might have given his statement to the police motivated by malice towards Mr Stanizzo "on undisclosed grounds, perhaps related to the undisclosed reasons why he had left Stanizzo's firm after 3½ years" [Emphasis added]. Mr Stanizzo goes as far as to suggest that adopting this procedure "at this early stage" shows that Detective Murdock was proceeding on the assumption that Mr Stanizzo was guilty and that the only obstacle to arresting and charging him was the lack of Mr Stanizzo's admissions. It is sufficient to observe that in my experience such an approach was then and is now both common practice and otherwise unexceptionable. It tells me nothing about whether Detective Murdock lacked a reasonable or probable cause to warrant the actions that he took.
11. Mr Stanizzo then submits that Detective Murdock's decision to inform Ms Valvano that he intended to ask Mr Badarne to speak to Mr Stanizzo in a secretly recorded conversation "amounted to an encouragement to Badarne and [Valvano] to continue to collude in making complaints, which in the case of each he must have known might well be malicious and false, see above, against Stanizzo."
12. Mr Stanizzo submits further that proper procedure would have been to ensure that they did not know of the strategy "to prevent them from colluding". Mr Stanizzo's submission then follows in these terms: "An inference arises of improper purpose on Murdock's part, a desire to make a case against Stanizzo to justify arrest without fair chance for him to respond, knowing that [Valvano] and Badarne would collude in supplying material to build that case, as well as the subjective and objective absence of reasonable and probable cause to prosecute."
13. It is probably uncontroversial that Detective Murdock desired to make a case against Mr Stanizzo. However, the suggestion that he did so for an improper purpose is no more than an unsubstantiated allegation. Any such inference does not arise upon the material before me. I have considerable difficulty with the contention that Detective Murdock knew that Mr Badarne and Ms Valvano would collude in some way to assist him.
14. Mr Stanizzo also draws attention to the fact that Detective Murdock told Ms Valvano that he would not be acting in any way simply to support her civil case. As is earlier recorded, Detective Murdock noted the following: "Investigators believe this ongoing civil issue may be a motive for the report. It will be explained to the VIC that at no time will police waste any time or resources on investigating this allegation if it is solely for her leverage or gain in her civil case."
15. Mr Stanizzo makes the frankly extravagant submission in this context that Detective Murdock should have been aware that Ms Valvano's "prospects of success in [her] civil case (about which Murdock had virtually no information, because he had not enquired) were poor" inasmuch as she had been advised by her lawyers that she might lose her case, and that her lawyers were urging that Mr Stanizzo be charged in order to improve her prospects. Quite to the contrary, the extracted portion from the longer COPS entry indicates clearly that Detective Murdock was aware of the possibility that Ms Valvano may have had a collateral purpose in seeking to have Mr Stanizzo charged. That is an entirely different proposition to the suggestion that the allegations were false and that Detective Murdock must have known it.
16. Mr Stanizzo next complains that the probabilities "strongly favour" his denial of Detective Murdock telling him that Ms Valvano alleged that he had sexually assaulted her on separate occasions at his house and at his office. Mr Stanizzo argues that if Detective Murdock had told him that Ms Valvano was alleging sexual assaults and had invited him to attend for a formal interview, Mr Stanizzo "would not, acting rationally, have simply retorted that the allegations were complete rubbish and declined the opportunity of an interview, without having taken advice from a criminal lawyer". Mr Stanizzo then makes the curiously unconnected submission that Detective Murdock "therefore, did not afford Stanizzo the opportunity to respond to [Ms Valvano's] sexual assault allegations" and "did not tell Stanizzo before the occasion of his arrest that [Ms Valvano] had made any such allegation".
17. I am once again unable to relate these complaints to the issue of reasonable and probable cause. The State has responded to these submissions suggesting that Mr Stanizzo's version of what passed between him and Detective Murdock is inherently probable as Detective Murdock's version was contemporaneously recorded in his Case Report, among other things, and Mr Stanizzo tendered it without limitation on its use in any event. But whatever be the resolution of this dispute, the fact that Detective Murdock turned up unannounced with no forewarning to arrest Mr Stanizzo may say something about his policing technique or lack of respect for Mr Stanizzo's position as a respected member of the community, but to my mind it says absolutely nothing about whether Detective Murdock had any reasonable or proper basis to believe that Ms Valvano's allegation were true.
18. Mr Stanizzo next somewhat boldly contends that he had told Detective Murdock a number of things about Ms Valvano from which Detective Murdock should have concluded she was fabricating the assault allegations. For example, Mr Stanizzo told Detective Murdock that Ms Valvano was a troublemaker who had made claims to the Office of the Legal Services Commissioner that had been dismissed, that she was complaining about a caveat Mr Stanizzo refused to withdraw, that he was entitled to maintain the caveat, that Ms Valvano had "signed the deeds after obtaining legal advice", that she was trying to put pressure on Mr Stanizzo and Gael Macpherson in relation to an approaching Supreme Court hearing and so on. Mr Stanizzo submitted in these circumstances that these "facts", related by him to Detective Murdock, somehow put Detective Murdock "on enquiry as to whether what [Ms Valvano] had told him of her dealings with Stanizzo was true, and what her real motives were in complaining to police about [him]". However, in my opinion, these are simply bald assertions by Mr Stanizzo, encouraged by a belief in his own assessment of the motives of Ms Valvano and Mr Badarne. They are no more than a recitation of several matters that Mr Stanizzo now promotes as his case theory of a conspiracy to harm him.
19. It is convenient at this point to recall what the High Court has said with respect to the elements of the tort of malicious prosecution. The principles appear to be well settled. They were authoritatively discussed by the High Court in A v New South Wales (2007) 230 CLR 500; [2007] HCA 10. The following passages are of importance: "[57] There are three features of the present law to which attention should be drawn. First, because questions of malicious prosecution can arise only where the prosecution has ended in the plaintiff's favour, the paradigm case to consider is where the plaintiff has been acquitted of the offence charged. (It is convenient to leave aside what other circumstances suffice to show that the prosecution has ended in the plaintiff's favour, and focus on the paradigm case of acquittal.) That acquittal is not to be controverted. The hypothesis for a subsequent action for malicious prosecution arising from such a case is, therefore, that the plaintiff was not guilty of the offence charged. But that alone does not entitle the plaintiff to a remedy against the prosecutor. [58] Secondly, the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful. [59] Thirdly, the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light."
20. It is clear from the material tendered by Mr Stanizzo that Detective Murdock thought that he had sufficient material to put Mr Stanizzo on his trial. That was his view. He swore an affidavit saying so.
21. What should Detective Murdock have made of the material in his possession? Mr Stanizzo would have it that Detective Murdock should have somehow divined that Ms Valvano was lying and that her allegations were false because she had a motive to cause harm to Mr Stanizzo. The difficulty with that submission is that it elevates Detective Murdock's obligation to the level of being required to consider and assess all of the material about a possible motive, both for and against, in order to determine whether the allegations were in fact true, not simply whether assessed objectively they warranted the commencement of criminal proceedings. Acceptance of the correctness of that approach would place a clearly onerous and unacceptable burden on Detective Murdock, or anyone in his position. It would elevate Detective Murdock to the trier of fact. In my view, Detective Murdock was not required to examine or explore Ms Valvano's possible motives for alleging that Mr Stanizzo had assaulted her unless there was material demonstrating either that her claims were in fact false or suggesting that they were inherently implausible, so that in either case, no reasonable prosecutor could have formed the view that commencement of the prosecution was warranted.
22. An example of the former would be if Detective Murdock knew or ought to have known that Ms Valvano was overseas when she claimed to have been assaulted. There is no suggestion that Detective Murdock was confronted with any evidence of that kind in this case.
23. An analogue of the latter is to be found in the facts in Beckett v State of New South Wales [2015] NSWSC 1017 to which Mr Stanizzo drew my attention. At [408]-[409] in that case, I had cause to consider whether Detective Thomas had a reasonable belief that Ms Beckett had solicited someone she met in a club to murder her husband. I said this: "[408] In my opinion, having regard to these matters, Detective Thomas could not have formed and therefore lacked an honest belief in Ms Beckett's guilt. The evidence at its highest indicated in terms that the only two witnesses to the allegation did not themselves think that Ms Beckett was serious. Ms Ridgeway thought Ms Beckett was drunk. Mr Morris had never even met Ms Beckett before. Ms Ridgeway introduced Ms Beckett to Mr Morris on that night. He went along with her in disbelief. Mr Morris and Ms Ridgeway had a bit of a laugh about it after Ms Beckett left. In her evidence at the trial Ms Ridgeway even went as far as to say that 'we thought it was funny' and that she 'didn't think she was serious.' In response to a suggestion by Ms Beckett's counsel at her trial that she thought it was 'quite hilarious' Ms Ridgeway responded, 'Yes, not many people walks up and offers my brother money like that.' Ms Ridgeway agreed that she had had about six middies of beer by that stage of the evening. Mr Morris had drunk five schooners. [409] At the time when these matters came to the notice of Detective Thomas, he was an experienced detective and investigator with the New South Wales police. I am prepared to assume that he had investigated a large number of allegations of criminal conduct in that time. I am however, unable to accept that in 1989 in this State of Australia Detective Thomas could have formed an honest belief in Ms Beckett's guilt of soliciting Mr Morris, a complete stranger to whom she had only been introduced that evening, to murder her husband in the course of a drunken conversation in a noisy RSL club in which neither Mr Morris nor his sister thought the offer was serious and said so, and which neither felt constrained to report to the police. It would surprise me to the point of astonishment if Detective Thomas had ever been presented with a more absurd complaint in the whole of his policing career to that point. It is difficult from my perspective to imagine a less credible or more unlikely set of facts upon which to base an honest belief in the guilt of anyone."
24. Although I was there dealing with Detective Thomas' subjective belief, the circumstances being considered were also an example of a situation in which no reasonable prosecutor could reasonably have formed a view that Ms Beckett was guilty of the offence in question.
25. When Mr Stanizzo was arrested, Detective Murdock had assembled what the State submits was "a substantial body of evidence" that "provided ample grounds for his suspicions that Mr Stanizzo had committed the offences with which he was charged". That evidence included, but was not limited to, the following: 1. A statement of Ms Valvano dated 25 November 2009 in which she made allegations, among other matters, concerning the 19 September 2008 sexual assault, Mr Stanizzo threatening her following the 19 September 2008 sexual assault and the 25 May 2009 sexual assault. That statement, if accepted by a jury, was capable of proving the offences in question. 2. A statement from Mr Badarne dated 7 November 2009 in which he provided further evidence concerning the 25 May 2009 sexual assault, evidence of Mr Stanizzo acting inappropriately towards Ms Valvano in his office and details of Ms Valvano's complaint to him that Mr Stanizzo had sexually assaulted her on two occasions. That statement corroborated aspects of Ms Valvano's account. 3. A statement from Mr Badarne dated 21 August 2010 in which he alleged Mr Stanizzo had asked him on a number of occasions to provide a false statement concerning Mr Stanizzo's conduct towards Ms Valvano, which arguably demonstrated Mr Stanizzo's consciousness of guilt in relation to the sexual assault offences. 4. Statements from Mr Badarne dated 24 September 2010 and 25 October 2010 which provided evidence concerning four separate occasions where Mr Stanizzo threatened Mr Badarne. 5. A statement by Danny Lagopodis, which corroborated Mr Badarne's account of the 10 June 2010 incident. Mr Lagopodis' statement had originally been prepared and provided to the Office of the Legal Services Commissioner. 6. A statement by Rown Badarne, Mr Badarne's wife, dated 26 October 2010 which corroborated Mr Badarne's account of the 12 September 2010 incident. 7. Mr Stanizzo's telephone records for 21 October 2010 which were consistent with Mr Badarne's account of the 21 October 2010 incident. 8. Notes prepared by Amy Lagapodis of Mr Stanizzo's conversations with Mr Badarne on 21 October 2010 which were consistent with Mr Badarne's account of those conversations. Ms Lagopodis was a receptionist at Good Legal, and she had listened to the conversations over a loudspeaker. 9. A recording (obtained pursuant to a warrant) of the conversation between Mr Badarne and Mr Stanizzo on 4 November 2010, which Detective Murdock had listened to as the conversation was taking place. The recording and transcript of that conversation was clear evidence that Mr Stanizzo had typed a statutory declaration without Mr Badarne's input, and was designed to discredit Ms Valvano and her allegations of sexual assault. During the course of the conversation, among other matters, Mr Stanizzo persistently asked Mr Badarne to sign the statutory declaration despite Mr Badarne indicating clearly that he was unwilling to do so as it was not true.
26. In support of the competing proposition, that Detective Murdock was either selective in his choice of matters to consider, or that he overlooked matters of importance, Mr Stanizzo made the following submissions.
27. Following the execution of a search warrant at Mr Stanizzo's office, Detective Murdock came into possession of a large number of files, binders, computers, letters and other office records. Mr Stanizzo has submitted that for the three years following his arrest, Detective Murdock had access to the whole of these materials comprising over 1,500 pages of data stored in two computers used in Mr Stanizzo's practice. Mr Stanizzo contends that the only examination by Detective Murdock of which there is evidence indicates that he looked at "less than 1% of the materials that had been seized", or presumably no more than 15 documents in total.
28. Mr Stanizzo then made the following submission: "Murdock's Police Statement contains no explanation of why he selected these items to examine and ignored the remaining 99% of the materials. There is no analysis of the contents of the items he examined, and he is silent as to what consideration he gave to the propriety of continuing with the prosecution of the charges he had laid, in light of those items. There is no evidence that any other police officer, or officer of the DPP (Ms Rallis or other) or the Crown Prosecutor Mr Barr, ever examined any of those seized materials, either those selected by Murdock, or any of the remaining 99% of the materials. The inescapable conclusion and very strong inference is that Murdock decided to ignore or suppress the materials that were adverse to the prosecution case. Proper consideration of such materials would have revealed that there was no reasonable and probable cause for the prosecution to continue."
29. The audacious breadth of that submission is difficult to process. First, it necessarily proceeds upon the unproven assumption that not only did Detective Murdock recommend the prosecution based on insufficient material, but that he actively overlooked or ignored material that would have exculpated Mr Stanizzo. Putting aside for the moment the fact that none of this "99%" of material is in evidence before me, Mr Stanizzo produces no evidence, such as the documents in question, upon which I could conclude that it would have had this effect. Secondly, the submission appears to assert that Detective Murdock not only overlooked this material in breach of his prosecutorial obligation, when there is absolutely no evidence to support it, but that he actively and hence wrongfully suppressed it. That submission is as scandalous as it is baseless. Thirdly, and in apparent contradiction of the submission, Mr Stanizzo lists at [54] of his submissions the very documents that he says Detective Murdock did examine, together with his arguments as to why they should have caused him to pause.
30. It is clear that Detective Murdock was aware of the commercial dispute between Mr Stanizzo and Ms Valvano arising out of the transaction pursuant to which Mr Stanizzo took an interest in Ms Valvano's property and that her unauthorised use of the funds, provided by him to her in accordance with the terms of their agreement to be used for the reduction of her mortgage to Bluestone, had led to even greater disharmony between them. It is in my view neither an inescapable conclusion nor a very strong inference that Detective Murdock's treatment of this material should have led him to doubt that her allegations were true, in the sense that the only reasonable assessment was that Ms Valvano concocted the allegations because her business dealings with him had gone sour.
31. I acknowledge that the case against Mr Stanizzo unravelled at trial when it became obvious that the terms of the phone conversation that Ms Valvano had with the Bluestone representative demonstrate that she already had Mr Stanizzo's cheque for $134,518.07 payable to Permanent Custodians Limited since shortly after 3.00pm on 19 September 2008, in contrast to her allegation that she was assaulted at about 5.00pm the same day at his home when she was induced to go there on a promise of then receiving the cheque. Ms Valvano's earlier possession of the cheque is also apparently supported by the existence of a receipt for it dated 19 September 2008 signed by her, although she denies that.
32. However, two things about that should be noted. First, the significance of the Bluestone call was never conceded by Ms Valvano either at the criminal trial or in these proceedings. It remained in the realm of controversy before me, even to the extent that Ms Valvano somewhat hopefully wished to contend that the transcript of the phone call had been fabricated or doctored. The prospect that Ms Valvano's credibility might be attacked upon the basis of this material ought not to be confused with the proposition that Detective Murdock should have been required or able successfully to foretell the outcome of any such challenge. Secondly, the Bluestone transcript only related to the 19 September 2008 allegations and not to the remaining charges.
33. The preferred approach to this issue is in my opinion appropriately summarised in the State's written submissions at [131] as follows: "The submissions and numerous dot points within the plaintiff's submissions at [54] are premised on an acceptance of everything Mr Stanizzo says, which unrealistically elevates the role of DSC Murdock to someone who must determine the truth of peripheral matters, and are made with hindsight reasoning. Ultimately, each of the matters raised by Mr Stanizzo at [54] are matters that might have been put to Ms Valvano and/or Mr Badarne during cross-examination in an attempt to undermine the credibility of their evidence, the acceptance of which was quintessentially a matter for a jury. It was not possible, nor was it appropriate, for DSC Murdock to determine where the truth lay in respect of each of those matters. None of the matters referred to positively disproved the substance of Ms Valvano's allegations and in any event they are all confined to only one of the various incidents alleged against Mr Stanizzo. The plaintiff's submissions to the contrary ought be rejected."
34. However, Mr Stanizzo made a series of further detailed submissions in aid of the contention that Detective Murdock lacked any reasonable or probable cause to commence the prosecution. In my view, none of these contentions has merit. They are forcefully dealt with in the State's submissions, to the following effect.
35. Mr Stanizzo submitted that the material seized by Detective Murdock included "the entire file in relation to the Civil Litigation Case, Macpherson v Valvano…". There is no evidence to support this assertion. Detective Murdock listed the material he seized and it did not contain a reference to this or anything similar.
36. There is also no evidence that the material seized by Detective Murdock or any other officer included an affidavit of Ms Kimberley Bontigao, an employee of Bluestone Mortgages, dated 27 May 2019. Mr Stanizzo maintained that this was important because the affidavit referred to Bluestone file notes concerning telephone contact with Ms Valvano on 19 September 2008. However, there is no evidence that the Bontigao affidavit or the file notes were ever in Detective Murdock's possession. The affidavit is not referred to in his 13 December 2010 statement in which he outlined the exhibits that he had retained following his search of Mr Stanizzo's premises or in any other statement or affidavit he prepared. It is not mentioned in the COPS entries or in Detective Murdock's Case Report.
37. The State also emphasised, in the context of putting Detective Murdock's obligations as a reasonable prosecutor in proper perspective, that neither Mr Stanizzo nor his representatives thought that the affidavit was significant: it is not mentioned by Mr Stanizzo at any stage, whether in his chronology provided to his lawyers, his alibi notice, in any evidence at the withdrawal of his plea, or even in representations made by his counsel Mr Waterstreet to the DPP on 15 July 2013.
38. On the contrary, the Bluestone transcripts and recordings (but not the affidavit) only became available in late July 2013 during the cross-examination of Ms Valvano when the Bluestone transcripts were served upon the DPP by the defence and the DPP subsequently subpoenaed the tapes. The prosecution in relation to the Valvano charges was withdrawn almost immediately after this. Mr Stanizzo cannot establish that Mr Barr, Ms Rallis or Detective Murdock were aware of the Bluestone transcripts or recording any earlier.
39. Mr Stanizzo next asserts that Detective Murdock provided documents to Ms Valvano to assist her civil case. As the State points out, that assertion is completely inconsistent with Detective Murdock's note and is entirely unsupported by evidence.
40. Mr Stanizzo's submission implicitly suggests that Detective Murdock ought to have reviewed all of the documents provided to him by the Law Society and reached a conclusion in favour of Mr Stanizzo on the multitude of issues that have now been identified. The State characterised that submission as "utterly unrealistic". As the State points out, there were a number of allegations and counter allegations contained in those documents that were quite unrelated to the specific charges against Mr Stanizzo and which Detective Murdock was in no position to resolve. The resolution of where the truth might lie, in a contest between Mr Stanizzo and Mr Badarne arising out of differences between them in respect of their professional dealings, was not a matter for Detective Murdock to determine. If they became relevant at all, those matters were properly questions for a jury to consider: they neither proved nor disproved the allegations against Mr Stanizzo.
41. The State also characterised Mr Stanizzo's submission that Detective Murdock should have questioned Mr Stanizzo's lawyers to obtain further information about his alibi as "utterly unrealistic". It was neither his place nor his function to do so. The prospect that Mr Stanizzo's lawyers would at that stage have been prepared argumentatively to engage any further with the prosecution about the details of his alibi must be extremely doubtful. Significantly, Mr Stanizzo did not then contend, as he does now, that he saw Ms Valvano at 10.30am on 19 September 2008, or that he saw his doctor in the afternoon. The State submitted that, given that information was not contained in Mr Stanizzo's detailed instructions to his lawyers, it is highly unlikely that inquiries would have revealed it in 2010. At that time, Mr Stanizzo's instructions to Mr Henniker were that he had backdated the cheque, so presumably Mr Stanizzo was then asserting that he had given Ms Valvano the cheque before 19 September 2008 in any event.
42. Mr Stanizzo's submissions continue to press the issue of the authenticity of Mr Badarne's 14 November 2009 recording of their conversation. He maintains that the defence was deprived of the opportunity forensically to test Mr Badarne's assertion that the recording he gave to the police in September 2010 was authentic. However, Mr Stanizzo conceded in cross-examination that he in fact said what he is allegedly recorded as having said. His submission to the contrary is difficult to understand or accept having regard to his evidence about it. For example: "Q. Just so we're absolutely - the opportunity is given to you. If they were said on 10 August 2010, as Mr Newton has pointed out, how do you explain their appearance in Mr Badarne's letter to the Law Society dated 24 November 2009? A. I have no idea. Q. Is it, if those … A. Well they could have been said, they could have been said on both occasions. Q. It's very possible not only did you say that in August 2010, that you did indeed say them in November, on 14 November 2009; correct? A. Well, that's logical, yes. Q. The same thing is turning to page 1409. Halfway down the page you say, 'Listen, listen, listen, I don't know, I don't know, I'm telling you what you're fighting with fire' do you see that? A. Yeah. Q. That's you. And then Mr Badarne says, 'I should run, I should run you mean?' and you said, 'Look, I'm telling you, I'm telling you, I'm not the stupid American that believes in the peace process'? A. Yep. Q. 'The only peace I believe in, right, you know where that is, the same one that the Germans had for the Jews, I'm telling you that there is no other solution'. You said those words? A. I think those words were said at the end of August. Q. If these words also appear in Mr Badarne's letter to the Law Society dated 24 November 2009, do you have any explanation as to how they could appear there if they were not only 7 August? A. It could have been said on both occasions. Q. You're saying not only were they said in August 2010, but in fact they were also said in November A. Well, you know, I mean, I was upset. HIS HONOUR: I'm sorry, I think we need an answer to that last one. WITNESS: Yes, yes. HIS HONOUR: So they were said on both occasions? WITNESS: I think so, yes."
43. Mr Stanizzo next submitted in some detail that Detective Murdock's email to Sharon Fleming at the DPP was evidence of the absence of reasonable and probable cause. The burden of the submission is that the matters to which he referred demonstrated knowledge on his part of matters that should have caused him to doubt the reliability of Ms Valvano's allegations.
44. The State submitted in response that such a contention distorts the true significance of the email: it does not prove an absence of reasonable and probable cause at that time, or any time, by Detective Murdock, or at a much later time by Ms Rallis or Mr Barr. Furthermore, it is said to be powerful evidence of Detective Murdock's bona fides, not as a prosecutor, but as a police officer assisting the DPP. The State emphasised the following matters.
45. In the email, Detective Murdock quite properly brought Ms Fleming's attention to matters he considered arose from his investigations. He subsequently obtained statements from various people which were served upon Mr Stanizzo. Detective Murdock was conscientiously doing his job to assist the DPP. Nowhere in the email did Detective Murdock express an opinion that he did not believe the offences had occurred, or that the records demonstrated it was not possible that the offences had occurred.
46. The email identified a number of records that tended to support Ms Valvano's account and also undermined Mr Stanizzo's current version (unknown to Detective Murdock at the time) that he had met Ms Valvano at 10.30am on the morning of 19 September 2008. First, Ms Valvano was clearly in contact with Mr Stanizzo on several occasions after 10.30am, consistent with her arranging to meet him in the afternoon. Secondly, Ms Valvano appears to have been travelling south towards Berry at about the time Mr Stanizzo now alleges he met Ms Valvano. Finally, the email identified a period from 4.57pm to 6.07pm, during which period Ms Valvano made no calls, which allowed time for her to be sexually assaulted in the manner she alleges. On the withdrawal of plea application, the evidence of Mr Stanizzo's solicitor, Mr Henniker, was that he considered that period was consistent with Ms Valvano's allegations.
47. Detective Murdock's observations about cabs and the absence of a record of phone calls at Mr Stanizzo's office do not disprove Ms Valvano's allegations. Although Detective Murdock expressed doubt about Ms Valvano having access to other phones, the issue of the cab could equally be explained by her recollection being wrong on a peripheral detail, given that cabs are readily caught without having to make a call. Further, if the Bluestone recordings that surfaced in July 2013 are accurate (contrary to Ms Valvano's denials), they establish that Ms Valvano did have access to other phones on that day.
48. Detective Murdock's observations about where he considered the calls originated were lay opinions about what was written on a phone record. He did not say, and they did not prove, that Ms Valvano was in fact at those locations at the time a particular call was made, which would have been a matter for expert evidence about how phone networks operate. One of the afternoon locations was Balgownie, which was very near Mr Stanizzo's office in Warrawong. Despite him not calling expert evidence, there was some evidence to explain the records. As Mr Stanizzo's barrister, Ms Davenport SC advised Mr Stanizzo, the tower records did not disprove Ms Valvano's allegations. Rather, "mobile phone networks give you the general area within 20 kilometres from tower to tower" and "…if the tower is busy it can then be picked up by a tower elsewhere".
49. After the telephone records were served on Mr Stanizzo, he pleaded guilty and signed a fact sheet in which in substance he admitted the events alleged by Ms Valvano to have occurred on 19 September 2008. The overwhelming inference from Mr Stanizzo's plea of guilty is that Mr Stanizzo and his legal advisers did not consider the phone records were as conclusive as Mr Stanizzo now alleges. It is not appropriate now to contend that Detective Murdock should have been prescient when they were not.
50. Mr Stanizzo submitted that if Ms Valvano's allegations about what happened to her on 19 September 2008 were false, then her allegations about what occurred on 25 May 2009 must also have been false. He submitted that it was no answer to say that Ms Valvano's account in respect of the 25 May 2009 assault was corroborated by Mr Badarne. I do not understand that submission. Mr Badarne's account was capable of being accepted, even if Ms Valvano's evidence about the 19 September 2009 sexual assault was not. Mr Stanizzo's submissions proceed on an assumption that the Bluestone recordings proved Ms Valvano was lying about the 19 September 2008 incident. An alternative explanation might have been that she had become muddled about her timing, but was attempting to tell the truth. As the State correctly notes, even in her evidence in this Court, Ms Valvano did not back away from her allegations, which clearly continue to cause her a great deal of distress. It was not Detective Murdock's role in fact, and it was not the role of an objective hypothetical prosecutor, confronted with arguably competing or inconsistent versions of a particular event, to decide where the truth lay.
51. Mr Stanizzo's submissions also assert that the State is estopped from relying on his pleas of guilty, because of the finding that the pleas did not represent a genuine admission of guilt. However, in my view, the State would be entitled to rely upon those pleas, in defence of the allegation that the prosecution was maintained when it should not have been, at least up until the point when the pleas were withdrawn. In addition, the State does not rely upon the plea of guilty to submit that Mr Stanizzo was in fact guilty, but only that it was a matter that Detective Murdock was aware of and must have been entitled to take into account: Thomas v State of New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316 at [105].
52. It was also relevant because it undoubtedly formed part of the information that Mr Barr was aware of when he was briefed as Crown prosecutor in early 2013.
53. Mr Stanizzo's submissions extract an entry created by Detective Murdock on 9 February 2012 as follows: "At 4pm on Thursday 9th February 2012 the author contacted VALVANO at her request. VALVANO advised the author that the civil matter between herself and STANIZZO had been settled out of court. According to VALVANO the end result is a payout to her from STANIZZO for $50,000. The subject house has been sold and the mortgage debt cleared. VALVANO informed police that she was not happy with the outcome but took the advice of her barrister … VALVANO advised that she will be seeking victims compensation and some other form of civil action against STANIZZO. It appears to the author that the victim's number one priority is financial gain."
54. Mr Stanizzo submitted that this entry established that Detective Murdock continued to doubt Ms Valvano's account. However, that entry was created after Mr Stanizzo had pleaded guilty and before he was given leave to withdraw his plea. The implied acceptance by Mr Stanizzo of the truth of Ms Valvano's allegations was something that must be taken in context with this entry. Ms Valvano's victim's compensation claim was not discordant with Mr Stanizzo's plea but was on the contrary entirely consistent with it. I do not consider that Detective Murdock's reference to Ms Valvano's "number one priority" in the context of the note suggests that she was fabricating her allegations of sexual assault.

Continuance of prosecution after August 2013

1. Mr Stanizzo maintains that there is no evidence that Detective Murdock, Ms Rallis or Mr Barr gave any independent consideration as to whether the remaining charges should proceed after the assault allegations had been withdrawn. However, as the State makes clear, that is Mr Stanizzo's difficulty as he is the party bearing the relevant onus. Mr Stanizzo led no evidence that they had any involvement in prosecuting the Badarne charges after August 2013, let alone that they maintained them maliciously.

Consideration - absence of reasonable and probable cause

1. In Thomas v State of New South Wales at [105], Gyles JA said this: "[105] The material to be considered cannot be limited to that which is admissible in evidence. A reasonable basis for a decision by an investigating police officer to lay a charge is not to be equated with a magistrate's decision as to committal for trial or a trial judge's ruling on whether there is a case to go to the jury. The hypothetical reasonable prosecutor is not a judge or barrister specialising in criminal law. Neither is it necessary that the prosecutor be assured that all necessary witnesses will attend the hearing and give evidence in accordance with the information provided by them. The prosecutor may not be a public official. The decision to charge will often be taken promptly, if not immediately, in all kinds of circumstances. Investigations can be expected to continue where necessary, at least up to preparation of the brief of evidence for committal. That is not to suggest that these topics are not properly to be considered under this head. A practical assessment is required. Situations vary so much that it is not helpful to endeavour to lay down strict ground rules. (See Lister v Perryman (1870) LR 4 HL 521 per Lord Westbury at 538, Lord Colonsay at 540 and 542; Hicks v Faulkner (1878) 8 QBD 167 at 173-4; Birchmeier v Council of Municipality of Rockdale (1934) 51 WN (NSW) 201 at 202-3; Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 at 469-471)."
2. In this case, Detective Murdock had no personal knowledge of the facts or circumstances underlying the charge of sexual assault upon Ms Valvano. That fact is so uncontroversial as to require no comment. Significantly, it was a state of affairs that exists almost without exception in every case of the prosecution of charges of sexual assault or similar. Such offences occur beyond the gaze of the public, often without any witnesses apart from the victim, in circumstances where any investigating officer or prosecutor is required, for better or worse, to take and assess the allegations at face value. See, for example, Gillies v State of New South Wales (No 2) [2014] NSWSC 1598 at [51]. It would have been entirely inappropriate for Detective Murdock to have refused or to have neglected to charge Mr Stanizzo upon the basis that he did not believe Ms Valvano's account unless there had been some credible material, not being merely speculative or argumentative. The thrust of Mr Stanizzo's submission is that Detective Murdock should (controversially and inappropriately) have embarked upon a (questionable) consideration of competing forensic possibilities that supported his belief.
3. As was observed in A v New South Wales at [118]: "[118] Where a prosecutor has no personal knowledge of the facts underlying the charge, but acts on information received, the issue is not whether the plaintiff proves that the state of mind of the prosecutor fell short of a positive persuasion of guilt. As explained earlier in these reasons, it is whether the plaintiff proves that the prosecutor did not honestly form the view that there was a proper case for prosecution, or proves that the prosecutor formed that view on an insufficient basis."
4. Mr Stanizzo argues that there was simply not "a proper case for prosecution". He contends in effect that Ms Valvano and Mr Badarne, in their separate ways, gave stories to Detective Murdock that were not credible because they were the product of people who had a reason to make false claims against him. The existence and detection of such motives was, according to this analysis, something that Detective Murdock should have both appreciated and pursued.
5. The expression "proper case for prosecution" will vary in its scope and content depending upon the circumstances of each individual case. In Wood v State of New South Wales [2018] NSWSC 1247 at [240], Fullerton J said this: "[240] But unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an objectively insufficient basis, the absence of reasonable and probable cause is not established. Further, at [81], the Court [in A v State of New South Wales] observed that the expression 'proper case for prosecution' is not susceptible of exhaustive definition without obscuring the importance of the burden on the plaintiff of proving the absence of reasonable and probable cause in the variety of factual and forensic circumstances in which that question may arise."
6. The State contended in light of these principles that Detective Murdock had material before him that constituted a proper case for prosecution. The State emphasised the following matters.
7. On 9 June 2010, Detective Murdock told Ms Valvano that he would be taking appropriate action (if any) when the investigation had concluded and not when it suited her civil case. On 16 July 2010, he told Ms Valvano that he considered there was sufficient evidence to put Mr Stanizzo before the Court, even though at that time he thought the prospect of a conviction was low. Detective Murdock then obtained further statements from Mr Badarne and listened to the surveillance evidence. As earlier noted, Detective Murdock swore that he believed the sexual assault offences had occurred. When Detective Murdock arrested and charged Mr Stanizzo on 4 November 2010, he served a detailed facts sheet setting out the charges that he had laid, his beliefs as to the factual matters alleged against Mr Stanizzo and the evidence available to him to prove those allegations. These matters confirm the existence of the view held by Detective Murdock at the time.
8. Quite apart from Detective Murdock's subjective view, the evidence before a hypothetical prosecutor included the following material.
9. Ms Valvano's statement contained details of the offences that she alleged occurred on 19 September 2008 and 25 May 2009. This evidence, if accepted by a jury, was capable of proving the offences of sexual intercourse without consent with Ms Valvano on those dates. Mr Badarne's statement corroborated aspects of Ms Valvano's account concerning the 25 May 2009 sexual assault.
10. Mr Badarne had also given a statement on 21 August 2010 in which he alleged that Mr Stanizzo had asked him to provide a false affidavit concerning the 25 May 2009 sexual assault on a number of occasions. That evidence, if accepted, was capable of demonstrating that Mr Stanizzo had a consciousness of guilt in relation to that offence.
11. On 4 November 2010, Detective Murdock had listened to a conversation between Mr Badarne and Mr Stanizzo, during which Mr Stanizzo indicated that he knew the allegations against him involved the complaint of a sexual assault at his house and an allegation involving a massage at his office. Mr Stanizzo admitted that Ms Valvano had been to his house, that the door to his office did not work, consistently with the accounts given by Ms Valvano and Mr Badarne concerning the 25 May 2009 sexual assault, and that he had typed a statement that he persistently asked Mr Badarne to sign even though it contained a version that Mr Badarne protested was not true and which he refused to sign. This evidence was also arguably demonstrative of a consciousness of guilt.
12. There was also considerable evidence to justify charging Mr Stanizzo with the intimidation offences against Mr Badarne pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act. His statements were arguably corroborated by Mr Lagapodis and Mr Badarne's wife.
13. The substance of Mr Stanizzo's case then is not that there was no evidence capable of proving the offences, but rather that the prosecutors should not have believed Ms Valvano and Mr Badarne due to other matters, which Mr Stanizzo alleges damaged their credibility. However, a prosecutor does not necessarily act without reasonable and probable cause in instituting or maintaining a prosecution based only on the uncorroborated statement of the victim. As I have already observed, sexual assault cases are almost always in this category.
14. Nor is the absence of reasonable and probable cause demonstrated by showing only that there were further inquiries that could have been made before a charge was laid. When a prosecutor acts on information given by others it will very often be the case that some further inquiry could be made: A v State of New South Wales at [86]. As was said in Herniman v Smith [1938] AC 305 at 319: "It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is reasonable and probable cause for a prosecution."
15. The State also emphasised that a third-party prosecutor may have serious doubts about the ultimate success of the prosecution, but may consider, even before there was independent corroboration or evidence in support of the allegation, that the objective sufficiency of the material, in light of all the facts of the case, warranted a charge and a determination by jury. As was said in Clavel v Savage [2013] NSWSC 775 at [69], "the test of 'objective sufficiency' may require a consideration of the public policy that a contest as to credit worthiness should be determined by the fact finder (either a jury or a judicial officer) and not be pre-judged by the police".
16. In the present case, corroborative evidence was also obtained. In the case of the Badarne charges, the material on one view spoke for itself. Mr Stanizzo does not deny that he used the words in question.
17. There was therefore a substantial body of evidence that Mr Stanizzo had committed the offences alleged against him, and that his prosecution was a matter properly to be left to a jury.
18. As earlier indicated, the inquiry into the question of reasonable and probable cause directs attention to the state of affairs that obtained when the prosecution was commenced or when it is alleged it was maintained. The inquiry necessarily focusses on the material available for consideration by the prosecutor when deciding whether to commence or maintain the prosecution, not material later coming to light. In the present case, doing the best I can, it seems that Mr Stanizzo's contentions are based significantly, if not exclusively, upon the need, somewhat onerously, to characterise Detective Murdock's obligation concerning the material he had at his disposal in a way that assumes a knowledge or understanding of matters that he either did not have at the time or that assumes the existence of an obligation upon him to perform a forensic analysis of that material that went well beyond the scope of his role. Speaking bluntly, there was no material available to Detective Murdock that unambiguously or undoubtedly put the lie to the allegations that had been made to him. In the absence of such material, Detective Murdock was not obliged or required to perform the role of a magistrate or a judge. The unchallenged material demonstrates that Detective Murdock believed that there was a case fit to go to a jury. Any information that he may have had about the now clearly evident disharmony between Mr Stanizzo and his accusers was not sufficient to cast the veracity of their allegations into doubt or to require Detective Murdock to embark on some speculative or unfounded forensic adventure. In the case of Ms Valvano, it is as unremarkable that she might allege that she was sexually assaulted by Mr Stanizzo as a person with whom she had no history of commercial discord as it is in the circumstances that are known to have existed between them. In the case of Mr Badarne, the words used by Mr Stanizzo to threaten him probably did stem from their deteriorating professional relationship, but the unambiguousness of the threats was such that what prompted them appears to recede in importance: Mr Badarne's motives for reporting his complaints did not cast the facts supporting the complaints into doubt.
19. Nor am I satisfied that any prosecutor in Detective Murdock's position would or should have taken a different view.
20. I am not satisfied either that Detective Murdock did not believe the material he had was such as to warrant setting the processes of the criminal law in motion or that his belief that it was appropriate to do so was based on insufficient grounds.

Malice

1. In order to establish that the prosecution was commenced or maintained maliciously, Mr Stanizzo has to prove that it was motivated by some purpose other than the proper invocation of the criminal law. The law does not prescribe what such purpose must be, only what it must not be.
2. Detective Murdock's state of mind can only be established by inference from conduct. In the present case, Mr Stanizzo relies upon either Detective Murdock having no genuine belief in the truth of the allegations that were made to him, or the alternative possibility that he unreasonably believed they were true, as giving rise to the inference that he commenced and maintained the prosecution for other than a proper purpose. Mr Stanizzo maintains that Detective Murdock turned a blind eye at an early stage in the investigation to deficiencies in the material before him and what Mr Stanizzo characterises as "the obvious defects" in the credibility of the Valvano and Badarne complaints.
3. In particular, Mr Stanizzo alleges that Detective Murdock misled him in the course of a telephone conversation between them on 16 July 2010 when Detective Murdock deliberately withheld from Mr Stanizzo the fact that Ms Valvano had alleged that she had been sexually assaulted and that he was satisfied with Mr Stanizzo's explanation that Ms Valvano was merely making trouble to gain an advantage in her civil litigation. Mr Stanizzo contends that Detective Murdock endorsed Mr Stanizzo's response by saying "that's what I want to hear", thereby apparently giving Mr Stanizzo the false impression that Detective Murdock was satisfied with his explanation.
4. Mr Stanizzo then submitted as follows: "But Murdock had decided that he would proceed in any case and that a covert telephone recording strategy involving Badarne (whose axe to grind made him a completely unacceptable agent) would overcome the deficiencies in the evidence before him. The telephone call was an attempt to set up Stanizzo for such strategy to be carried out. He proceeded to arrest and charge because he was determined to obtain a conviction in defiance of the defects in the case. In so doing he acted in a way likely to lead to a miscarriage of justice."
5. The obvious difficulty with this submission, relying as it does upon the force of the case propounded by Mr Stanizzo based on the absence of reasonable and probable cause, is that I have already rejected that case. No inference of any sort helpful to Mr Stanizzo arises from anything done or not done by Detective Murdock. In particular, by way of the example upon which Mr Stanizzo has placed particular reliance, nothing sinister flows from the fact that Detective Murdock embarked upon a course designed, if possible, to obtain further evidence by using a lawfully authorised listening device with which secretly to record his conversation with Mr Badarne. Such a strategy is in regular use by police in this State. It does not generally, and it did not here, bespeak the existence of an oblique motive, even if Mr Stanizzo had let down his guard or taken comfort in the assumption that his earlier exculpatory explanation had been accepted by Detective Murdock.
6. Mr Stanizzo does not contest that in order to prove malice he must prove that the dominant purpose of the prosecutor was a purpose other than the proper invocation of the criminal law: A v State of New South Wales at [92]; State of New South Wales v Abed [2014] NSWCA 419. In a case of a public prosecution initiated by a police officer and subsequently taken over by the DPP, it may be more difficult for a plaintiff to prove that the prosecutor was acting for an improper purpose. This was emphasised by the High Court in A v State of New South Wales: "[41] … where the prosecutor has no personal interest in the matter, and no personal knowledge of the parties or the alleged events, and is performing a public duty, the organisational setting in which a decision to prosecute is taken could be of factual importance in deciding the issue of malice. [42] In the case of a private prosecution, it may be easier to prove that a prosecutor was acting for a purpose other than the purpose of carrying the law into effect than in the case of a prosecution instituted in a bureaucratic setting where the prosecutor's decision is subject to layers of scrutiny and to potential review."
7. However, as the State submits, even if Mr Stanizzo had established that there were further investigations which could have been made, this is not sufficient to prove malice by inference. While proof of malice will often be a matter of inference, "it is proof that is required, not conjecture or suspicion": A v State of New South Wales at [93]; State of New South Wales v Abed at [152]. Even if a prosecutor acts carelessly, or with inadvertence or with a misapprehension of his legal obligations as a prosecutor, that would not be sufficient alone, or in combination, to constitute malice: Wood v State of New South Wales at [1154].
8. As I have already considered, Mr Stanizzo seeks to establish malice by inference by pointing to Detective Murdock's reliance upon the evidence of Ms Valvano and Mr Badarne in the face of what he alleges is material that demonstrates their lack of credit. However, that does not prove he was motivated by malice. As was said in Fred Saad & Ors v State of New South Wales; Ashley Saad v State of New South Wales [2016] NSWSC 1247 at [392]-[393]: "[392] … The police or the DPP do not choose the persons who witness offences or admissions and many of whom do have personal deficiencies and attributes of unreliability. Whether their accounts should be accepted in a particular case is primarily for a court or jury. Accordingly, the mere fact that a prosecution, depending for its success on witnesses easily discredited or not able to be corroborated, is continued, while obviously relevant to the issue of reasonable and probable cause, says little or nothing otherwise on whether the prosecution was motivated by malice. [393] Nor are prosecutors required to give significant weight to exculpatory evidence. They should of course give it due consideration, make anyone charged aware of it and generally, at least, ensure that the evidence is adduced. But prosecutors are not required to assume exculpatory evidence is true as seems to be assumed in some of the Plaintiff's submissions, … nor if prosecutors believe that further incriminatory evidence can be obtained, is it necessarily improper for them to seek it, even if this involves some degree of entrapment."
9. In my opinion, the matters relied upon by Mr Stanizzo are not sufficient for him to establish malice by inference. It is also wrong to say that Detective Murdock acted recklessly. He carefully investigated the allegations against Mr Stanizzo over the course of a year, telling Ms Valvano that he would act if and when he considered it appropriate, and he only charged Mr Stanizzo when he believed the offences had occurred and after he was satisfied there was sufficient evidence to put the matter before a jury.
10. Mr Stanizzo has not established that Detective Murdock maliciously instituted the proceedings against him.

Conclusion

1. It follows that Mr Stanizzo's case against the State should be dismissed with costs.

Mr Stanizzo's case against Mr badarne

1. Mr Stanizzo's guiding inspiration for his claims in this litigation is his belief that he is the victim of a conspiracy to cause him harm. I am not critical of Mr Stanizzo for having that belief which I consider is probably genuinely held by him. The existence of the belief is hardly controversial, as Mr Stanizzo's opening paragraphs of his written submissions in his case against Mr Badarne clearly attest: "The present proceedings, and the two related proceedings Fregnan v Stanizzo and Stanizzo v State of NSW, arise from a complicated and protracted series of events, amounting to persecution of the plaintiff Mr Stanizzo by false allegations which has [sic] had a devastating effect on the professional and personal life of the plaintiff Mr Stanizzo. … The origin of the saga is the dishonest conduct of Mr Badarne in misappropriating costs due to Stanizzo's firm from Michael Ayoub. Stanizzo first had (strong) reason to suspect this when the letter from LBC Lawyers dated 7 October 2007 was discovered by him in October 2008 and he confronted Badarne about it. Badarne's conduct from that point onwards comprised deception, collusion and fabrication of evidence with the design of concealing his wrongdoing and preventing Stanizzo from vindicating his rights. Badarne has been aided in this campaign by Valvano whose conduct and motives were also dishonest. Badarne has conscripted the Legal Services Commissioner, Law Society, Police and DPP into his campaign. (Not that this excuses the State from responsibility for its own improper conduct in bringing the prosecution). The campaign has consumed enormous effort on Stanizzo's part to resist and defeat. Stanizzo had success in the criminal court, to the extent that the Crown were obliged to abandon the prosecution of all charges because the lack of credibility of Valvano and Badarne had been demonstrated. Because of Badarne's actions in all forums were orchestrated, the matters involving clients other than Ayoub that have occupied the OLSC and Law Society are inescapably relevant. Badarne's decision, despite service of evidentiary statements and exhibits thereto, to give no evidence and call no witnesses should be inferred to reflect a consciousness that to do otherwise would expose the falsity of what he has said and done. Anticipating a trial in which such material would be deployed, the plaintiff Stanizzo had issued various subpoenas and notices to produce - which Badarne has persistently objected to or failed to answer."
2. Mr Stanizzo's written submissions proceed in considerable detail thereafter to describe and analyse the somewhat tortured history of his relationship with Mr Badarne. This extensive historical journey, with specific references to a large number of incidents and accidents that were germinated in distrust and suspicion and ultimately matured into unalloyed enmity between the men, is relied upon by Mr Stanizzo to support the proposition that Mr Badarne had a strong and obvious motive to make false allegations about him and against him, even to the extent of being prepared to cooperate with prosecuting authorities to lay and maintain criminal charges.
3. The significant incidents to which these detailed submissions refer are as follows: 1. The alleged misappropriation of monies from Mr Stanizzo's practice by Mr Badarne. 2. The alleged misappropriation of $200,000 deposited by Mr Habib. 3. The alleged misappropriation of $20,000 deposited by Enviro Energy. 4. Complaints to the Law Society and the Office of the Legal Services Commissioner.
4. These matters and topics were revealed in evidence before me in excruciating detail over many days. Their relevance was not always immediately apparent. However, I am now prepared to accept, without repeating or referring to all of the matters that Mr Stanizzo says are capable of demonstrating that Mr Badarne had a motive to harm him, that the material is at least capable of showing that the relationship between the two men had broken down. Although Mr Stanizzo's submissions do not say so in terms, I take his reference to, and significant emphasis upon, all of this material to be relied upon to support the proposition that whatever Mr Badarne did, in either corroborating Mr Valvano's 25 May 2009 sexual assault allegation, or in complaining of intimidation directly to him, Mr Badarne must have borne him considerable malice. I accept that the history upon which Mr Stanizzo relies, when viewed in the detail to which his submissions have descended, is capable of supporting a submission to that effect. Whether it is material that is capable of supporting a finding that Mr Badarne in fact acted out of malice is a different matter to which later reference is made.
5. In either event, having regard to this material, Mr Stanizzo purported to outline the legal principles that he maintained informed Mr Badarne's liability.
6. Mr Stanizzo submitted, at [108]-[109], that Mr Badarne is liable for malicious prosecution of him if, as a matter of substance and not of form, he played an active role in the instigation and maintenance of the prosecution, such as to enable him to be characterised as a prosecutor. An example of such conduct is said by Mr Stanizzo to be "the supply of false complaints and concocted information to the authority that officially institutes the prosecution (here the police and later the DPP) and thereby procuring the institution and maintenance of an unjust prosecution."
7. Mr Stanizzo's submissions in this respect appear to draw upon passages from the following authorities: Commonwealth Life Assurance Society v Brain (1953) 53 CLR 343 at 379; A v State of New South Wales (2007) 230 CLR 500 at [34]-[36]; Johnston v ANZ Banking Group [2006] NSWCA 218 at [35]-[43]; Wood v State of New South Wales [2018] NSWSC 1247 at [144]-[147]; [220]-[242], [278]-[298].
8. Mr Stanizzo submitted that the decision of the official State prosecutors, being the police, in particular Detective Murdock, and the relevant ODPP officers and Crown prosecutor, to initiate and maintain the prosecution, was materially tainted by Mr Badarne's false allegations, concocted information and dishonest conduct. He submitted that "such allegations and dishonest conduct were without reasonable and probable cause, as the allegations were false to his knowledge, and were malicious, as must follow from the fact that they are false, and as he was acting on a powerful motive to harm Stanizzo arising from the events that led to his being sacked, and Stanizzo's complaints to OLSC, the Law Society and Warilla Police (re: the assault on him by David Dunn and Badarne's likely involvement) against him".
9. Mr Stanizzo's submissions helpfully direct attention in this context to the indictments that are described as "materially relevant to Badarne". I take that to be a reference to the indictments presented against Mr Stanizzo in respect of the proof of which the Crown relied on evidence from Mr Badarne.
10. Counts 4 and 5 related to allegations of an act of indecency on 25 May 2009. The only witnesses to these events were Ms Valvano and Mr Badarne. Mr Stanizzo submitted that their accounts to police, to which they adhered, "were false, and deliberately so" and "they colluded in putting forward such false accounts". Mr Stanizzo submitted that it was their word against his and that there was no independent corroborating evidence. Mr Stanizzo therefore contended that the "State prosecutor's decision [to prosecute] is thus materially tainted by their false statements and conduct".
11. The flaw in this submission will be immediately apparent. It is clear that Mr Stanizzo denies the allegations against him and says that they are based on false accounts given by Ms Valvano and Mr Badarne. However, an arguably uncorroborated statement is not for that reason a lie. As Mr Stanizzo accepts, it comes down to his word against theirs. It is not sufficient to demonstrate that something is a lie just by saying so. There is no evidence before me of collusion between Ms Valvano and Mr Badarne: co-operation and collusion is not necessarily the same thing.
12. Mr Stanizzo next referred to the four counts of intimidation in date order. First, the allegation of intimidation of Mr Badarne on 14 November 2009. He submitted that the sole witness to this alleged offence was Mr Badarne, and the evidence was restricted to his police statements and the recording that he supplied. Mr Stanizzo contended that "such evidence and such recording was not only illegal but also false and fabricated, and the circumstances and timing of Badarne's complaint and supply of the recording were engineered to hamper any attempt by police or by the defence to test their authenticity".
13. Mr Stanizzo therefore contended that "the proper inference" is that Mr Badarne "well knew" that Mr Stanizzo had not intimidated him on 14 November 2009 but that on the contrary Mr Badarne had visited Mr Stanizzo's house uninvited "in order to provoke words that he could falsely represent as intimidating". Mr Stanizzo maintained that subjectively Mr Badarne "was not fearful and intimidated by anything that Stanizzo had said" and "objectively Stanizzo did not speak to Badarne in a manner that was intimidating". Mr Stanizzo also submitted that Mr Badarne "combined words said on different accounts [sic] in different contexts to create the false impression of an intimidating outburst by Stanizzo".
14. With respect to the intimidation allegation by Mr Stanizzo on 10 June 2010, Mr Stanizzo characterised this as "a complete fabrication". He made the following submission: "Having been caught eavesdropping on Stanizzo's conversation with Lagapodis, he ran to the car, uttered words to the effect 'I think you are scared of me', and thereby provoked the words to the effect, 'Step out of the car and we will see who will bury whom' - a reference to Badarne's own words to Stanizzo, 'I will bury you' uttered on 12 May 2009. There was no threat by Stanizzo and Badarne was not and could not have been intimidated, as he was sitting in his car and had deliberately provoked Stanizzo to reply as he did. Badarne knew Stanizzo well enough to know how he would react in such situations. His dishonest report to police to the contrary tainted the decision to charge and prosecute."
15. With respect to Mr Badarne's complaint that Mr Stanizzo had threatened him on 12 September 2010, Mr Stanizzo submitted that the threat was "entirely uncorroborated and its falsity as an instance of intimidation is shown by Badarne's initially having told police that he wanted nothing done; only later to complain of it to Det Murdock in order to taint his judgment and help lay the ground for the arrest that he wanted to be made".
16. Concerning the 21 October 2010 allegation of intimidation, Mr Stanizzo again submitted that Mr Badarne provoked him into calling him and that Mr Badarne misrepresented the content of the telephone conversation between them to the police "in order to create a false impression of intimidation, and lay the ground for the police to make an arrest".
17. Doing the best I can, Mr Stanizzo's submissions about these charges appear to be directed to process rather than substance. Mr Stanizzo says that he was tricked or lulled into saying the things that he said. I do not understand him to deny that he said the things he is alleged to have said. Unless I misunderstand his submission, that must be the end of the matter.
18. Finally, Mr Stanizzo dealt with what his submissions characterise as an attempt on 4 November 2010 "to have Mr Badarne make a false statutory declaration and thereby pervert the course of justice". Mr Stanizzo submitted in writing as follows: "There was no such attempt, and viewed objectively, for the reasons set out above, the conversation could not be viewed as being such an attempt. It was in fact an attempt by Badarne to trap Stanizzo into statements that Badarne could characterise as such an attempt. This is reinforced by Badarne's false accounts of the preceding conversations on 2 and 3 November 2010, which were unverifiable as there was no recording. Badarne thereby induced Det Murdock to make the arrest Badarne was seeking."
19. It is convenient at this point briefly to record three paragraphs of the submissions made by Mr Badarne in response to the case against him: "14. Secondly, without seeking to be unduly critical or pejorative, Mr Stanizzo's closing submissions are wanting in both of terms of [sic, both in terms of] structure and content. In terms of structure, they do not…attempt to address the various elements of the tort of malicious prosecution and identify the evidence relevant to each element. Thus, nowhere in Mr Stanizzo's submissions does he grapple with why, on the evidence before the Court, and with regard to the relevant case law, Mr Badarne should be characterised as having prosecuted Mr Stanizzo. The closest Mr Stanizzo's analysis comes to this issue is set out at [108]-[109]. It falls well short of the analysis required… 15. In terms of what is written, large swathes of Mr Stanizzo's submissions are, regrettably nothing more than advocate's flourish. There is no detailed analysis of what actually lies at the heart of this case. Equally, significant tracts of the submissions are unsupported by evidentiary references (and even when there are evidentiary references, they often do not support the contentious submissions sought to be premises upon them). Instead, the focus of Mr Stanizzo's submissions is an attempted character assassination of Mr Badarne in the hopes that if Mr Badarne is portrayed as Mephistophelean this will make out the elements of the tort of malicious prosecution. It does not, putting aside that this characterisation is neither open [n]or apt. … 18. In any event, the matters raised (on the question of malice do not provide any basis for the Court to infer that Mr Badarne was actuated by an improper, illegitimate or oblique motive (or was lying) when reporting matters to the NSW Police. In respect of the principal matters, the Court would not be satisfied of any alleged misappropriation of money, nor of any of the matters raised in Mr Stanizzo's complaints to the OLSC or the NSW Law Society."

Consideration

1. Mr Badarne's first response to the proceedings is to maintain that he was never the prosecutor. Apart from the unexplored reference to some cases, Mr Stanizzo's submissions are completely silent on this interesting and difficult issue. It is also quite obviously an issue that is fundamental to Mr Stanizzo's claim against Mr Badarne.
2. Mr Badarne understandably made detailed submissions on this topic. He also referred to Johnston which in part said this: "[42] In circumstances where there is little by way of investigation of the facts to be undertaken by the police, the provision of false evidence by the complainant will readily support an action for malicious prosecution, even though the police may make the necessary inquiries, obtain a denial from the prospective defendant, and are then faced with conflicting stories. Such a case was Martin v Watson [1996] 1 AC 74, in which a woman complained that her neighbour had exposed himself to her (on more than one occasion). The neighbour was arrested, interviewed and granted bail to appear to answer the charge on a later date. At the hearing, the police prosecutor presented no evidence and the charge was dismissed. The defendant then sued the complainant for malicious prosecution and was successful, the trial judge having apparently concluded that the evidence given by the complainant was false. The Court of Appeal overturned that decision on the basis that the complainant had not been responsible for the decision to prosecute. That conclusion was, however, unanimously reversed by the House of Lords, the leading opinion being given by Lord Keith of Kinkel. In rejecting an argument that to uphold the plaintiff's case would tend to discourage members of the public from bringing criminal activities to the notice of the police, Lord Keith stated (at p 88B-C): 'It is to be kept in mind also that in actions for malicious prosecution the onus lies on the plaintiff to prove malice and want of reasonable cause. This would not be possible in the case of genuine complaints. It is suggested that adequate remedies for false accusations are available by way of prosecution for attempting to pervert the course of justice or wasting the time of the police, and also by way of prosecution for perjury if the complainant has actually false evidence. But none of these remedies affords any compensation to a person who may have been arrested and imprisoned and perhaps subjected to the ordeal of a trial.' [43] It follows that whether or not a complainant will be found liable in circumstances where a charge was laid and proceedings undertaken by the police, will depend upon the extent to which responsibility for setting the criminal process in train can properly be sheeted home to the complainant. But an independent exercise of discretion by the police could only be relied on as a defence where it is shown that the decision-making process was not materially tainted by false evidence provided by, or misleading conduct on the part of, the complainant."
3. The fundamental difficulty that I have with Mr Stanizzo's proposition that Mr Badarne was or became liable as a prosecutor because the complaints that he made were false to his knowledge and based on matters that he alone knew is that Mr Stanizzo simply has not proved it. I am not satisfied that Mr Stanizzo has established these things on the balance of probabilities, far less to the standard referred to in s 140 of the Evidence Act 1995.
4. The fact that Mr Stanizzo says that Mr Badarne is a liar does not make it so. Mr Badarne's only contradictor is Mr Stanizzo himself. His version is quite understandably, if not predictably, consistent with his protestations of innocence. However, word-on-word disputes are not quarantined from scrutiny by the criminal law. Mr Stanizzo has set himself the task, by commencing these proceedings, of demonstrating that his version of events should be preferred over that of Mr Badarne. He has produced no rational basis with evidentiary support why that should occur.
5. Secondly, Mr Badarne's complaints have not been, and cannot be, shown to be false by reference to any evidence or competing version of events coming from a source independently of Mr Stanizzo. Mr Stanizzo is unable to refer to or draw upon any credible testimony or objective evidence that has the slightest tendency to cast the accuracy or the veracity of Mr Badarne's statements to the police into any doubt at all.
6. However thirdly, and perhaps most significantly, much of what Mr Badarne told the police is supported by the evidence of others, or is persuasively established by reference to the particular circumstances, or accepted by Mr Stanizzo to be true in any event.
7. For example, the complaint about the 25 May 2009 incident at Mr Stanizzo's office in which Ms Valvano alleged that she was sexually assaulted is based principally upon what she told the police. She was the primary witness. The relevant charges could not have been brought without Ms Valvano's evidence: without her evidence the matter could have gone nowhere.
8. However, the 4 November 2010 conversation between Mr Stanizzo and Mr Badarne is difficult, if not very difficult, to characterise in any way other than an attempt by Mr Stanizzo to have Mr Badarne sign a document for later use in defending Ms Valvano's allegations that was prepared by Mr Stanizzo and which contained matters that Mr Badarne protested were wrong. It is clear from that transcript, to the point of demonstration, that Mr Stanizzo was very concerned about Ms Valvano's allegation. On one view at least, that concern was consistent with the allegations being true. It is not for me to determine in Mr Stanizzo's suit against Mr Badarne where that truth lies: it is sufficient to observe that it is evidence at the disposal of the police that was neither solely within Mr Badarne's knowledge nor demonstrably not believed by him to be true. The fact that Mr Stanizzo's senior counsel at the time of the criminal proceedings referred to the transcript of the conversation as "dynamite" conveniently encapsulates the use that the police might have made of it without reference or resort to Mr Badarne or his opinion about it.
9. In any event, Mr Stanizzo accepted that he said many of the things that formed the basis of the charges of intimidation. Mr Stanizzo can hardly complain about Mr Badarne's report to police about things Mr Stanizzo now agrees that he said. For present purposes it is entirely beside the point that Mr Stanizzo asserts without evidence that Mr Badarne was not intimidated in fact, that Mr Stanizzo did not intend to intimidate him in any event, or that the words used by him were not capable of intimidating anyone. Quite apart from the fact that these submissions misunderstand the issues that arise for determination on a charge pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act, the fact is that the words were spoken by Mr Stanizzo and were truthfully reported by Mr Badarne to the police. Mr Stanizzo's dislike for the way that some of his conversations with Mr Badarne were recorded without his knowledge is also entirely beside the point.
10. In my opinion, Mr Badarne was not at any time a prosecutor for the purposes of Mr Stanizzo's claim that he was maliciously prosecuted. That is so for a number of reasons, not the least of which is that Mr Stanizzo cannot demonstrate the falsity of anything that Mr Badarne told the police. None of Mr Stanizzo's allegations that Mr Badarne concocted his complaints withstands scrutiny.
11. For similar reasons, Mr Stanizzo has failed to establish that Mr Badarne acted maliciously. Mr Badarne submitted, and I accept, that the fact that Mr Stanizzo has not demonstrated the falsity of any of the matters or information that Mr Badarne reported or supplied to the police means that all of the wealth of other anterior facts and circumstances that he relies upon to prove malice are little more than an irrelevant distraction. That is even before one descends, which I have deliberately declined to do, into the myriad web of claims and counter claims about the fact and timing of things that Mr Badarne is alleged fraudulently and dishonestly and illegally to have done and to whom. As I have earlier attempted to make plain, accepting all of Mr Stanizzo's entrenched suspicions and theories about Mr Badarne at their highest, even someone with an axe to grind, to adopt Mr Stanizzo's metaphor, is able to make a legitimate complaint of criminal conduct. As Johnston emphasised, "in actions for malicious prosecution the onus lies on the plaintiff to prove malice and want of reasonable cause" which "would not be possible in the case of genuine complaints".
12. Finally I note that Mr Stanizzo places considerable emphasis upon the fact that Mr Badarne neither gave nor called any oral evidence in response to the claims made against him. Mr Badarne has provided me with comprehensive submissions in response to Mr Stanizzo's contention to the effect that some significance should attach to that decision.
13. It is necessary only to make three points to dispose of Mr Stanizzo's argument. First, Mr Stanizzo bears the onus of establishing his case on the balance of probabilities. The issue of whether, in this case, Detective Murdock subjectively believed that the material in his possession warranted prosecution of the offences is a significant issue that Mr Stanizzo had to establish. It was never incumbent upon his opponents, in adversary litigation such as this, to call Detective Murdock in order to assist Mr Stanizzo in that task.
14. Secondly, but possibly more acutely for present purposes, Mr Stanizzo has chosen, as part of the evidence upon which he relied, to tender all of the statements that Mr Badarne gave to the police. In that fashion, for better or worse, Mr Stanizzo has placed before the Court all of Mr Badarne's evidence about what occurred and what he saw and heard with respect to all of the charges. As Mr Badarne emphasises, there was nothing more for him to say. By reason of Mr Stanizzo's forensic choice, there can be no question that no adverse inference arises from Mr Badarne's decision.
15. Thirdly, no inference of any assistance to Mr Stanizzo arises from Mr Badarne's decision to ignore the material upon which Mr Stanizzo relies to suggest Mr Badarne had dishonestly dealt with clients' money or otherwise engaged in fraudulent activity. Mr Stanizzo's case in that respect depends entirely on his own characterisation of Mr Badarne as someone with a motive to lie and hence someone who could be shown to bear malice towards him. Mr Badarne could hardly be expected to join in any argument about that evidence when it all depended upon Mr Stanizzo's opinion that Mr Badarne engaged in wrongdoing, not upon credible evidence that he had done so. Moreover, Mr Badarne might well have chosen to conduct his case upon the basis that malice would not become an issue of significance because he considered, accurately as it has turned out, that I would form the view that he was never relevantly a prosecutor for the purposes of the tort.
16. Mr Stanizzo's case against Mr Badarne should be dismissed with costs.

Mr Stanizzo's case against Ms valvano

1. Although not in accordance with the sequence in which Ms Valvano's case was commenced, it is convenient, following the previous cases that I have considered, to deal with Mr Stanizzo's cross-claim first.
2. Mr Stanizzo's written submissions in response to Ms Valvano's claim against him, and in support of his cross-claim against her, commence with the following: "If one looks at the facts of this case, it is inescapable not to conclude that Valvano is a schemer and chronic liar using all her cunning to manipulate all including Stanizzo in order to achieve financial gain; this is an observation that Detective Murdock made in his COPS entries from the very start. In this selfish and relentless pursuit she has destroyed Stanizzo's life, career, professional standing and caused untold stress over the last ten years and she is continuing with her lies and outrageous allegations. She sold her house to Stanizzo and then she disappeared from the scene for about five months causing delays and frustrations. During this period she asserted that she kept away for fear from Stanizzo (putting her in concrete legs) but in fact she was drawing down on the Mortgage Loan Facility to the tune of $10,000 per week until the whole of the $134,500 cheque drawn in favour of the mortgagee (Perpetual Custodians Ltd), was within her grasp. She banked these funds into a new account out of reach of Bluestone Mortgages Pty Ltd (the mortgage manager for Permanent Custodians Ltd). She claims to be unaware of Stanizzo's action to stop the cheque, given that Bluestone refused to give Stanizzo an undertaking that Valvano would not be allowed to redraw on the Mortgage Loan Facility. Letters from Bluestone and regular loan account statements prove the contrary. Once she had taken control of the said funds and placed them in another bank account which she had total control [sic], she contacted Stanizzo in February/March 2009 seeking to buy her property back with moneys she had misappropriated and demanding a withdrawal of caveat, which she was not entitled to. Stanizzo, as the evidence shows had lodged a caveat to protect his interests in the property and as security he had advanced to Valvano, as per her directions, during June to August 2008 totalling some $73,000. This sum is in addition to the $134,500. (But later stopped for the reason above mentioned). It is beyond any shadow of a doubt that Valvano was self-represented in the sale to Stanizzo and sought and received independent legal advice from a solicitor of her choice, which advice was readily available to her at any time she so needed it. The evidence demonstrates Stanizzo was reluctant to buy into her property but regrettably he did. All documents of sale were signed and exchanged by the parties by 4 July 2008. In the event that Valvano may believe that the sale was not in her best interests, Stanizzo advised her that he was willing to rescind the purchase ab initio by letter sent to Valvano on 14 July 2008. The offer was not taken. Notwithstanding that Valvano asserted that she could not meet the mortgage instalments during the period 2005 to early January 2008 (when she decided to list the property for sale and instruct Stanizzo to prepare relevant contract to enable Real Estate Agent to market the property), records from Bluestone reveal that this was false and indeed the mortgage debt (the principal) had reduced by about $7,000 as she asserted that her three adult children were helping out financially by paying board. During the period June 2008 to about the end of August 2008, Stanizzo made available to Valvano no less than $73,000 towards outstanding mortgage instalments (of about $30,000), outstanding council rates and water rates, for about $8,000 and fees paid for the surveyor for preparation of the Strata Plan (about $10,000) TAFE fees so that she could attain qualifications as a nurse to make it easier for her to get full time work ($15,000), payment for a car as the one she then had was road unworthy ($15,000), so as to enable her to attend TAFE lectures etc. She claims that such payments were 'gifts' but they were clearly not. A fact that the many letters sent to her by Stanizzo clearly demonstrate, and this was a fact that the police and the ODPP were well aware but chose to ignore and unreasonably placed undue credence on her lies, notwithstanding warnings from the documentation seized by the police on the day of the arrest and enquiries made. Valvano received a phone call from Graeme Horne (Credit manager at Bluestone) on or about 2 June 2009 requesting refund of all moneys unlawfully drawn from the Loan Facility. An oversight by them that Stanizzo's cheque had not been paid on presentation as mentioned above. Notwithstanding her allegation of being sexually assaulted on 25 May 2009 in Stanizzo's office, Valvano rang Stanizzo for advice on 2 June 2009. Hardly the person from whom to be seeking such advice if the said allegation was true. Valvano being cornered by such revelations, embarked on a series of further false allegations by making official complaints. The first to the OLSC in August 2009 based on Stanizzo's refusal to remove the said caveat, which complaint was dismissed by that Office on 17 December 2009. The second on 8 October 2009, the day immediately following service on her of interim court orders made on 7 October 2008 by His Honour Slattery J. Matter returnable in Court on 9 October 2009. The second complaint made no mention of being sexually assaulted but repeats Stanizzo's refusal to remove the caveat. But importantly, Valvano made no mention of such sexual assaults to the Court either on 9 October 2009 or her affidavit filed subsequently in her defence to the plaintiff's claims. A fact specifically noted in COPS entries by Det Murdock, but a fact that the police and ODPP unreasonably chose to ignore. Murdock's COPS entries speak loudly of his doubts about Valvano's true motives and it was incumbent on him to make a full and proper investigation and the ODPP as well, as the trial judge Syme DCJ stated in her judgment of 5 August 2013 when her Honour made a costs order in favour of Stanizzo."
3. The ability to understand this somewhat curious, unstructured and discursive material assumes an extensive background and knowledge of matters that are otherwise unexplained. It is in my experience a most unusual way to commence a written response to a claim for damages alleging sexual assault or as an opening submission in aid of a cross-claim for damages for malicious prosecution. It will be recalled that the withdrawal of the indecent assault charges against Mr Stanizzo was inspired by a perception that Ms Valvano's claim, and her evidence, that she was assaulted by Mr Stanizzo at his home when they went there at about 5.00 pm on 19 September 2008 to receive the Permanent Custodians cheque, could not stand with evidence that she had spoken on the phone to employees of Bluestone Mortgages at about 3.15 pm on the same day, at which time she referred to having already received the cheque in question. Mr Stanizzo maintains that the cheque was handed to Ms Valvano in his office at about 10.20 am that day. It is perhaps in that context unsurprising that Mr Stanizzo wishes to emphasise his fractured commercial relationship with Ms Valvano and the discord and frustrations that he says it produced.
4. Mr Stanizzo's primary and overarching submission both on his cross-claim and in defence of Ms Valvano's claim is that her allegations are false. His general submissions in support of that contention are as follows.
5. Mr Stanizzo contended that each of Ms Valvano's allegations of assault suffers from fatal flaws. There is no physical evidence to support them. Ms Valvano delayed for 13 months before reporting the first assault and almost five months before reporting the second assault. When Ms Valvano made that first complaint on 8 October 2009, she had strong motives to fabricate the allegations against Mr Stanizzo, stemming from their dispute over her breaches of the deeds entered into between them that related to her property in Auburn Street, Wollongong.
6. Despite her allegations that she had been assaulted by Mr Stanizzo on 19 September 2008, Ms Valvano chose to return to his office unaccompanied on 23 September and again on 25 September 2008, after she had attended on Mr Peter Bahlmann, a solicitor, in order to obtain advice and witness her signature. On that date, Ms Valvano executed the Deed of Variation and a Transfer of the property in performance of her obligations. Mr Badarne witnessed her signature on the Transfer. However, Mr Stanizzo submitted that if her allegations about 19 September 2008 were true, her later visits would have been an obvious and perfect opportunity for her to complain to him or them at that time, but she said nothing.
7. At that time, the only thing left for Ms Valvano to attend to was to arrange for Bluestone Mortgages to discharge the mortgage so that her arrangement with Mr Stanizzo could proceed to settlement. Instead, Ms Valvano became uncontactable from late September 2008 to late February 2009, during which time, without notice to Mr Stanizzo, she was drawing down on her loan facility at the rate of $10,000.00 per week until the whole $134,500.00 was exhausted.
8. On 27 February 2009, Ms Valvano rang Mr Stanizzo's office and spoke to Mr Badarne. Instead of arranging for the mortgage to be discharged, she offered Mr Stanizzo $80,000 in consideration for the removal of his caveat. She attended Mr Stanizzo's office on 3 and 10 March 2009 and made the same offer. In April 2009, Ms Valvano, through her then solicitors Dribbus Kovacevic, reconfirmed her offer which Mr Stanizzo finally accepted. However, Ms Valvano failed to pay the money.
9. The matter remained in limbo until early June 2009 when, on discovering that Mr Stanizzo's cheque had not been paid on presentation, Bluestone demanded a refund of the $135,000.00 that it had inadvertently permitted Ms Valvano to draw down from her loan facility. Despite what Mr Stanizzo characterises as "Ms Valvano's allegations and insinuations that she did not understand the documents she was signing and her obligations under them", he submitted that "it is beyond doubt" that he had required her to take independent legal advice before she signed the documents that made up their arrangement. Ms Valvano took such advice from Mr Bahlmann and signed the Deed of Variation and Transfer contrary to his advice. Having done so, Ms Valvano then ignored a long series of letters from Mr Stanizzo calling on her to perform her obligations under the Deeds.
10. Although Dribbus Kovacevic had been acting for Ms Valvano in the dispute with Mr Stanizzo, had corresponded on her behalf during April 2009, had acted on her behalf during April 2009 and had acted on her behalf in her dispute with Shellharbour TAFE contemporaneously, no allegations of sexual assault were ever made to them or mentioned by them.
11. Despite having allegedly been assaulted a second time on 25 May 2009, Ms Valvano telephoned Mr Stanizzo on 2 June 2009 and sought his advice on how to deal with her default under the mortgage to Permanent Custodians, caused by her surreptitious redraws on the account.
12. When Mr Stanizzo made it clear to Ms Valvano that he relied on his rights under their agreement, she issued a Notice of Lapsing of the caveat lodged by him in accordance with their agreement. Indeed, she chose to visit his office on 21 September 2009 to serve the notice personally. Mr Stanizzo submitted that, having "pocketed or received" the benefit of the $73,000.00 and the $135,000.00, Ms Valvano unreasonably expected to have his caveat withdrawn so that she could sell the property and avoid repaying him the moneys he had paid to her or on her behalf.
13. On 22 September 2009, Ms Valvano personally delivered a further letter to Mr Stanizzo's office. Four days later, Ms Valvano lodged a complaint against Mr Stanizzo with the Legal Services Commissioner. That complaint made no mention of sexual assault. According to Mr Badarne's 7 November 2009 statement to the police, Ms Valvano first made allegations of sexual assault to him in "early August". Ms Valvano also says this was in "early August" in her statement. Ms Valvano lodged a further complaint with the Legal Services Commissioner dated 8 October 2009, which again made no mention of her having been sexually assaulted.
14. Ms Valvano made her first complaint to the police on 8 October 2009, having been served the previous evening with Gael Macpherson's summons and interim orders made by Slattery J that day. Ms Macpherson had taken an assignment from Mr Stanizzo of his interest under the arrangement he had with Ms Valvano. By the summons, first returnable on 9 October 2009, Ms Macpherson brought proceedings against Ms Valvano to enforce her rights under the assignment.
15. Mr Stanizzo submitted that, from this sequence of events, the following can be inferred.
16. Ms Valvano's decision to make a second complaint to the Legal Services Commissioner on 8 October 2009 was made before her decision to complain to the police, "more likely than not encouraged by [Mr] Badarne to do so and to assist him with his own issues with Stanizzo who had reported him to the Law Society (via OLSC) on 28 August 2009". Having lodged the complaint with the Legal Services Commissioner, which was silent as to sexual assault, Ms Valvano "consulted and colluded" with Mr Badarne who advised her how to go about it. Her very regular attendances at his new place of employment "are self-explanatory/evident". Mr Stanizzo submitted that it "can be inferred at this point Valvano and Badarne had begun their collusion as to what each would say to Police".
17. Mr Stanizzo submitted that, "on Mr Badarne's advice", Ms Valvano did not make a written statement to the police on 8 October 2009 and deliberately delayed her attendance on Detective Murdock in order to do so until 13 November 2009, after Mr Badarne had made his own statement on 7 November 2009. Mr Stanizzo submitted that the "similar content and language of the two statements shows that they were colluding with each other in the making of each".
18. Mr Stanizzo re-emphasised that Ms Valvano made no mention to Slattery J in the Macpherson proceedings of the sexual assault allegations at any time in the 13 months between their commencement and Mr Stanizzo's arrest on 4 November 2010. Ms Valvano's affidavits of 5 November 2009 and 27 November 2009 are silent on the matter. Ms Valvano attended a court ordered mediation with Mr Eardley of counsel before Registrar Flaskas on 19 July 2010. Mr Stanizzo also attended. Ms Valvano made no mention of having been sexually assaulted by him.
19. During this same period that Ms Valvano was pressing Detective Murdock to charge Mr Stanizzo, saying that it would assist her in the civil case, Detective Murdock recorded that her priority appeared to be financial gain.
20. Mr Stanizzo's arrest on 4 November 2010 enabled Ms Valvano to apply for the hearing of the civil case, which had been fixed to begin on 30 November 2010, to be vacated pending conclusion of the criminal proceedings. He contended that Ms Valvano stood to gain nothing from that case, so the vacation worked to her advantage.
21. In addition to the $73,000.00 paid by Mr Stanizzo, he submitted that Ms Valvano has received the following extra moneys: 1. $135,000.00 of redraws; 2. $50,000.00 from the civil case settled by LawCover on behalf of Mr Stanizzo contrary to his express instructions; 3. $15,000.00 value of a car transferred to her by Mr Stanizzo; 4. $15,000.00 TAFE fees, later the subject of a claim by Ms Valvano receiving a further lump sum settlement of about $30,000.00; 5. Criminal injuries compensation of about $50,000.00; 6. Free occupation of the subject property for four years at the rate of $30,000.00 per annum ($120,000.00).
22. Mr Stanizzo then proceeded to make submissions specifically directed to each separate incident of alleged sexual assault.

19 September 2008 - Mr Stanizzo's submissions

1. Mr Stanizzo somewhat boldly asserted that Ms Valvano's allegations of this first assault "are demolished by the following further matters".
2. There is no corroborating witness.
3. Ms Valvano told the police that Mr Stanizzo visited her house on 18 September 2008 and asked for her help in posting a photograph to the "RSVP" website. According to Mr Stanizzo, this was "a complete fabrication": he did not register for the RSVP website until April/May the following year.
4. Ms Valvano claims to have attended Mr Stanizzo's office late in the afternoon on Friday 19 September 2008, to collect the cheque for $134,518.07 to be used in the reduction of her mortgage debt on her house, but that she did not receive it until well afterwards on arrival at his house. Mr Stanizzo emphasised that Ms Valvano signed a receipt for this cheque at his office at about 10am that morning, together with a direction to pay that sum to Permanent Custodians. Both documents are in her handwriting and bear that date.
5. However, Bluestone's electronic loan notes record telephone calls to Bluestone on 19 September 2008, in which Ms Valvano tells Lanoai Latini at 3.19pm, Narelle Stringer at 4.09pm and Fritz Vanhoff at 4.38pm that she has a cheque of "over $100k", or "about $100k", or "$130k", to deposit into her loan account. Mr Stanizzo submitted that this can only be the cheque that he had already given her that morning. The electronic recording of Ms Valvano's calls to Bluestone on 19 September 2008 includes Ms Valvano telling Bluestone at 3.19pm on 19 September 2008 that she has Mr Stanizzo's $134,518 cheque.
6. Ms Valvano does not deny giving Mr Stanizzo the receipt or the direction to pay, each dated 19 September 2008. According to Mr Stanizzo, her evidence does not explain how they can exist if her version of when and where she received the cheque is true.
7. Ms Valvano's police statement and the mobile telephone records annexed to it show that between 2.56pm and 4.57pm on 19 September 2008 she made 8 calls from the Wollongong CBD up to 4.41pm, then one from Berkeley at 4.52pm, then another from Wollongong CBD at 4.57pm. These calls have a total duration of about 35 minutes.
8. Ms Valvano then makes no calls until 6.07pm, when she makes a call from the Crown Street Mall. The visit to Mr Stanizzo's office at Warrawong and the subsequent events that Ms Valvano alleges can only have happened in this period of no more than 1 hour and 10 minutes. Accordingly, Mr Stanizzo submitted that in order to be truthful, Ms Valvano's evidence requires that all the following events have happened in this period of 1 hour and 10 minutes.
9. Ms Valvano drives from the Wollongong CBD to Warrawong, attends Mr Stanizzo's office, sees him write out a cheque and has the conversation that she describes. They leave the office and drive to Mr Stanizzo's house. She is handed the cheque on arrival. She is shown to a downstairs room where Mr Stanizzo has a glass of wine and partly smokes a cigar. In contrast, in Ms Valvano's civil case affidavit dated 5 November 2009, she says only that she shared coffee with Mr Stanizzo, and makes no mention of sexual assault.
10. Ms Valvano and Mr Stanizzo then leave the downstairs room and go upstairs into a large combined kitchen/dining/lounge room. Mr Stanizzo makes coffee. Ms Valvano plays the piano. They converse at the table over coffee for about 15 minutes. Ms Valvano asks to use the bathroom. She is escorted downstairs to an ensuite, where she stays for a few minutes. On leaving the bathroom, Ms Valvano alleges that she is assaulted as she describes.
11. Ms Valvano then goes upstairs to the dining room, picks up her handbag, goes downstairs again and leaves the house. She walks to Balgownie Shopping Centre and phones for a taxi. She eventually hails a taxi passing by. She is driven home to Auburn Street, Wollongong. Ms Valvano then makes calls from the Wollongong CBD at 6.07pm and 6.32pm to her then boyfriend Paul Martin. Mr Stanizzo submitted that if, as she claims, her mobile telephone battery was out of charge when she earlier entered the taxi at Balgownie, a substantial time must have been occupied, after she arrived home but before 6.07pm, in recharging it to enable her to make these calls.
12. Mr Stanizzo submitted that it would have been impossible for all of these things to have occurred in the time suggested. Detective Murdock's analysis of relevant telephone records is said to support this.
13. Mr Stanizzo submitted that "the undoubted evidence is that Ms Valvano had received the cheque on 19 September 2008". Her telephone records show that she repeatedly telephoned Mr Stanizzo's office on that morning, at 9.12am, 9.19am and 9.21am. These calls were not answered. However, Mr Stanizzo contends that the calls were consistent with Ms Valvano urgently wishing to collect the cheque before travelling to meet Mr Latta in Berry for advice. This matches up with Mr Stanizzo's evidence that she collected the cheque from him at the office in the morning.
14. Moreover, Mr Stanizzo telephoned Ms Nikolovska from his home at 6.22pm for 23 seconds and Mr Badarne at 6.25pm for 23 minutes and 52 seconds. Such calls are consistent with his having gone home after visiting Dr Horan and inconsistent with Ms Valvano having just been at his house and the events she alleges having just occurred.
15. Additionally, Mr Stanizzo submitted that Ms Valvano's version of the assault on 19 September 2008 in her police statement is radically different from what Mr Badarne says she told him in his first statement to police on 7 November 2009. Her version given directly to the police is of events beginning "late in the afternoon" at Mr Stanizzo's office. At paragraph 28 of her statement she says "I opened the door [and] saw Vince standing directly in front of me … half-naked, only wearing a dark coloured T- shirt and no pants at all". That is to be compared to what Mr Badarne records her having told him, that "as soon as I went out of the toilet Vince was there standing at the toilet door and grabbing me totally naked…"
16. Mr Stanizzo's evidence is that Ms Valvano had never been inside his house. He disputes the accuracy of her descriptions to police of the interior layout. For example, downstairs, where she claims to have been taken, there is no bedroom and no ensuite as she claims. Mr Stanizzo suggests that what Ms Valvano said to the police about the premises could easily have come from Mr Badarne, who had visited Mr Stanizzo's house several times.

25 May 2009 - Mr Stanizzo's submissions

1. Once again, Mr Stanizzo submitted that Ms Valvano's account of this alleged assault was "demolished" by the following further matters.
2. It is completely uncorroborated. On her case, Mr Badarne witnessed the assault. He was available to be called by her but was not. He was able to give evidence in his own case that supported her, but did not. A very strong Jones v Dunkel inference is said to arise.
3. The evidence of Mr Stanizzo is that his relationship with Ms Valvano as at 25 May 2009 had broken down. They were locked in a dispute as to her failure to perform her obligations under their property deal and she had engaged Dribbus Kovacevic to act for her. Mr Stanizzo contended that it was "inconceivable that she would have visited [his] office and interacted with him as she claims" in those circumstances.
4. Mr Stanizzo's evidence is that on that day he merely saw Ms Valvano and Mr Badarne together at the office briefly at around the middle of the day, and had no conversation with them, after which they left and he did not see them again. Mr Stanizzo said that Mr Badarne was not acting for Ms Valvano in relation to her TAFE dispute with his permission or knowledge, and that he had nothing to do with the matter.
5. Mr Stanizzo's business with Mr Badarne that morning was dealing with a letter received from Henry Davis York dated 25 May 2009 in the matter of Boumelhem. After discussions and negotiations, the letter was faxed back to that firm bearing the written agreement and signature of them both.
6. Mr Badarne had been sacked from Mr Stanizzo's firm on 14 May 2009 by letter, and only allowed to return to complete work on his outstanding and very urgent court matters. Mr Stanizzo submitted that "they were enemies at this time". Mr Stanizzo contended that it "is ludicrous to suppose that [he] would have acted towards Ms Valvano at the office in Mr Badarne's presence" as she and Mr Badarne have alleged. Given the falling out between Mr Stanizzo and Mr Badarne, it is "unthinkable" that Mr Stanizzo would commit such an act in the presence of Mr Badarne, a person who had threatened to "bury" him less than two weeks before, "and thus present Mr Badarne with grounds to blackmail him" in connection to Mr Stanizzo's intention to report Mr Badarne to the Law Society in relation to Mr Stanizzo's belief that Mr Badarne had misappropriated $220,000.
7. Mr Badarne's claim to police that Mr Stanizzo had interfered with the lock on his office door so that it could not be opened from outside is said to be rebutted by the unchallenged evidence of Mr Stanizzo and David Stanizzo. Mr Stanizzo submitted that if Mr Badarne had truly witnessed what he claims on 25 May 2009, he would surely have reported it to police immediately.

Consideration

1. I have included these submissions in some more detail than might ordinarily have been expected in a case such as this. Mr Stanizzo made it clear on a number of occasions during his evidence what he thought of the events that have generated this litigation. In fairness to him, the following excerpt from the transcript is one example of his desire to give voice to his views and his feelings: "WITNESS: Your Honour I have been put through a torture through the torture chamber in the last eight years right? Based on lies, malicious, vindictive lies. You know my health and my career, and my reputation has been destroyed. Now when a comment like that is made you expect me to turn myself into a robot. I will not do that. HIS HONOUR: It wasn't a… WITNESS: My life has been ruined. It has been completely ruined and my health has been ruined. My relationship with my family has been ruined because and any association I had with people in the area of Wollongong I had to avoid people because I feel embarrassed of what happened or having to explain to people what has transpired or not transpired. I don't think that some people who sit in this Court understand all these things, unless you go through it yourself. I am subjected to lies and have to reject lies upon lies upon lies, I am sick of it to my back teeth. FREGNAN: Can I go on? WITNESS: One of my doctors said, 'You must be made of steel to survive all this. Most people would have a nervous breakdown'."
2. Ms Valvano is no less emotionally affected by these things. My observation of her in the course of the proceedings was that she was not managing well and found the task of simply turning up to court each day to be almost beyond her physical capacity and mental abilities. I will not include examples of events in court that possibly support my view. It is sufficient to note that a close reading of the transcript of the proceedings will make this clear to any reasonable observer.
3. Accordingly, on the sixth day of the proceedings, after Ms Valvano had been in the witness box for some time and extensively cross-examined, I said this: "HIS HONOUR: Before I do that I want to put some remarks on the record. Whether or not the transcript properly or adequately or indeed sufficiently reveals it, it seems to me, sitting as a judge in these proceedings, that there is a significant potential for an injustice to occur. It is no part of the function of the Court in any litigation to give legal advice to unrepresented parties. Clearly enough, Ms Fregnan, in these proceedings is an unrepresented party. The litigation in which is now engaged is difficult and complicated, not the least reason for which is the significant bundle of documents in ten large volumes covering events over many years, with which any litigant, including her, will necessarily have to come to terms. I should say, at risk of overstepping my role, that it does seem to me that Ms Fregnan is not capable, properly or adequately or sufficiently, of presenting her case as an advocate or as a self-represented litigant and there is every risk that in the proceedings so far, which I hasten to observe have been, in evidentiary terms, limited to her claim against Mr Stanizzo, that she has become easily diverted from the true and relevant matters or, on one view, lacks a full understanding or appreciation of what they are or may be. These proceedings have some distance to go but, on one view, the spectacle of a woman who is, for whatever reason, significantly distressed by the events in her life including this litigation having to appear for herself without legal assistance and protect her own interests adequately, is one that causes me particular concern, not only in my judicial capacity, but as an objective lay observer sitting in the back of the Court. I raise these matters in order that the parties might give some consideration to what should happen, if anything, to this case and indeed to all of the cases that I am required to determine. The events of which Ms Fregnan complains in her proceedings against Mr Stanizzo are clearly central to all of the three pieces of litigation. I understand that sentiment, including pride on the part of many parties to this litigation is important and runs deeply into and has informed responses by all parties to the claims and counterclaims that have been made. It is now 20 past 3 on Tuesday in what's become the second week of these proceedings and doing the best I can in my experience, there's no prospect that these cases will finish this week and there's similarly no prospect that They will finish without the need for several further weeks of litigation before that happens. I did not want this litigation to proceed further without making these comments. I don't necessarily invite a response from any of the parties, but would ask that they take them into consideration in their further dealings with each other from here on."
4. These concerns also led me on occasion to attempt to assist Ms Valvano to focus her attention on the matters in issue. For example: "HIS HONOUR: …Can I just give you what I hope is some help? WITNESS: Yes, your Honour. HIS HONOUR: For reasons that I think we all understand, the timing of your receipt, that is to say of obtaining the $134,000 odd cheque, becomes important in these proceedings, because you have given evidence about when you received it, and you have been cross examined to suggest that you received it much earlier, or earlier on the same day. Because the receipt of the cheque, on one view, is tied, in a temporal sense, to when you say one of these assaults occurred, establishing, if it can be established, when you got the cheque becomes important. You have had played to you some telephone conversations with Bluestone, the date and time of which, or at least one of those, I understand you to dispute, but in the course of which it appears you make reference to a cheque you have. Again, it is alive in these proceedings, and there is no secret about it, but Mr Stanizzo will suggest, and Mr Waterstreet has suggested to you in cross examination, that you had that cheque a little after 3 o'clock in your hand when you were talking to Bluestone, so that the allegations you make that suggest you received it at a later time when you were sexually assaulted, or near then, are either not true or are, on another view, cast in serious doubt. Q. It would assist me, and I think it well assist your case, if in terms you are able to tell me why it is the suggestion that you had the cheque at 3.19, when you spoke to Bluestone, is not correct, if you say it is not correct. A. It is not correct. Your Honour, I had the cheque for seven days, and on the digital statement it says I sent it on the 26th, and I have the letter here that I've sent it on the 24th to Bluestone, and they received it on the 30th. Q. I am not so much concerned about when you did that; my major concern, if I understand the case correctly, is to know when you received it. A. 19th. Q. What time? A. I received it when I went to Vince's office, and we drove to his house, and he handed it to me and said, 'I hope you appreciate it's a lot of money.' Q. Do you want to offer any evidence concerning the suggestion that you had it at 3.19 when you were speaking to Bluestone? A. Yes, in my evidentiary statement it lays out in seven pages that all the conversations that eclipsed otherwise it's impossible that I could have been on the phone and talking to Bluestone while I was talking to my boyfriend; it's impossible, your Honour. So what I'm saying is the phone calls that they've been recording were done a week later. Q. Did you want to say any more about that? A. I was going to show you the letter dated the 24th because in the Court book somebody's rubbed the date off that I sent it off to Bluestone. Q. Don't jump all over the place if you can possibly avoid it. If somebody were to say to you, 'Ma'am, listening to the telephone conversations you had with Bluestone in which the cheque appears clearly to be discussed, if they took place at 3 o'clock or shortly after 3 o'clock, what explanation would you have for that', if that suggestion were made? A. Your Honour, I've already been through this. It's in my evidentiary statement; that I cannot be talking with Bluestone at the same time with my boyfriend or whoever I was talking to because if I was doing what they're suggesting, I would be recorded on Bluestone's recording and that's my proof. The same that I've been accused about the Warrawong. Now Warrawong was a flashback of another cheque of the 17,000 that was on the 26th that I went to the bank. So when I was in the witness box and he was pounding me, 2.19 (as said), my mind was going, 'Where's this 3.19?' but 26/9/2008, your Honour, the bank told me he'd bounced the if I can tender that. Q. Don't worry about the 25th. I want A. All right, the cheque was bounced and that cheque was going that's the cheque that I was in Warrawong and that's why I was thinking, but what happened was, your Honour, there was another cheque, a computer cheque, a this cheque and then there was the $134,000 cheque. So when I was sitting there my mind was going, 'When did I do this call to Bluestone?' Q. Don't worry about when you were sitting in court and your mind was all over the place. A. Yes. Q. I think we all understand that the criminal case against Mr Stanizzo collapsed, to use a term, at the point when, on one view, it seemed that you might have had the cheque at 3.19 or thereabouts in the course of your conversations with Bluestone. You understand that? A. Yes, but the CD says I had the cheque yesterday I spoke to her for yesterday. They didn't play all that in the Court, your Honour. Q. What do you mean, 'Had the cheque yesterday'? A. Okay. So when they played it and it's in the note Mr Waterstreet said, 'Let's play a little,' after I had been interrogated for maybe three or four days, and he said, 'Let's play the CD.' They didn't play from the beginning. They played it and it's in Vince's evidentiary it goes, 'Hello. Latini' it starts straightaway in the middle. It doesn't start the very beginning. Q. No. A. So what they didn't play in the Court and I didn't have the opportunity that the Crown did not take me outside and allow me to listen to it to understand what was going on. I was tricked on the box, your Honour. It was not justice on my it was unfair because they did not play the tape from the beginning to the end. They only played the $134,000. So my mind is going 'but I had that cheque for one week. When did I I rang a number of times, Bluestone in the week after I got the cheque at 19 September 2009.' So I have actually proof here that they sent the cheque on 24th and Bluestone received it on the 26th, that they said I they said something about the 26th, that I was sending it away and they received it on the 30th. So when I was in the witness box I had that cheque for seven days. So those phone calls were over a series of a few days or a couple of days. So if you see on the cheque it's 24/9/2008, so I've obviously spoken to Fritz or whatever, whatever, on that day or the next day or on the 26th. So I believed that these recordings were done a week after and have manipulated to make it look like it was the 19th, because Vince Stanizzo had access of this in 2010, three years before of the trial. He knew of this digital stuff and he knew of the recordings. So he had ample time to manipulate and in Mr Stanizzo's evidentiary statement he agrees that there was a man at the end with a falsetto velvet voice saying, 'Vivianna speaking,' in a falsetto voice. He admits it's Fritz, but if you look on his if you hear the tape it's Victor who is talking to me. Mr Stanizzo says it's Fritz. Now, he admits that this fake voice that says, 'Vivianna speaking,' is a man's voice. So there is evidence there that this tape recording that I got hung for the 3.19 has been tampered with, your Honour. Q. All I wanted to make clear was that my anticipation is that the same reasons or the same bases upon which the criminal trial came to an end are matters that Mr Waterstreet, on behalf of Mr Stanizzo, will rely in a similar way in these proceedings, to counteract or meet your allegations of sexual assault. A. Yes. Q. I just want to make sure that I'm giving you a fair opportunity in these proceedings to meet that allegation in the witness box, if you think you can or want to? A. Okay. Your Honour, when do I put into the Court the rules, because there is criminal act. They are making an allegation there has been some criminal activity here because under the Commissioner's, the bank thing that's happened now, if you modify or adjust or tamper with any recordings you are open to criminal activity. And I want to put a I tender those things into court. Q. You can do that in due course if you have some material that suggests that the recordings of you speaking to the people at Bluestone at some time have been corrupted in some way, you can do that. But saying it from the witness box doesn't prove it? A. No. Q. I was only asking you and I won't repeat it again, but for the last time if you were to assume that you were unable to do that and that the recordings of the conversations you had with Bluestone people are accurate and correct, not corrupted, not changed in any way, if that assumption carries the day in this case I only wanted to know what your explanation would be for apparently having the cheque at 3.19 on the 19th. You've said a lot. If you don't want to say anymore or you don't feel you want to say any more about that, that's fine. But I would certainly be assisted if you had an explanation for it, on the assumption that that material is not corrupted or tampered with? A. Your Honour, I'd like to know on the day of the Court the recordings that appeared, where did they get the they got the recordings from Vince Stanizzo, so where did Mr Vince Stanizzo get the recordings from? Q. Hold on, you are asking questions on the one hand. On the other hand you are telling me that you'll establish that they're corrupted. I don't know the answer to the questions you are asking and they're a bit curious having regard to the assertions you make about their authenticity? A. Yes. Q. I hope that is plain to you. Now did you want to say any more about any matters that Mr Waterstreet cross examined you on that you think might be inaccurate or about which I might have gained the wrong impression or in which you think your evidence might not have done you justice? A. Yes, because, your Honour, he was saying something about authority yesterday, and in the transcript it says here, can I turn to it?"
5. Another matter of concern was the way in which the cross-examination of some witnesses in this case centred on matters of no or only marginal significance. By way of example, the following extracts from the transcript with respect to the 19 September 2008 events should be noted: "HIS HONOUR: Ma'am, could I just stop you there? Mr Waterstreet, why are we going through all of this? WATERSTREET: You're quite right. HIS HONOUR: The dispute seems to me one of timing. These incidents are collateral to it. If you have questions that can direct these matters to that question of timing, I'd be pleased if you do. If I misunderstand what it is that you contend in response to these allegations, and it goes beyond timing, then I'll keep quiet. WATERSTREET: It goes beyond HIS HONOUR: Sorry? WATERSTREET: It goes to a claim that she didn't attend the office. HIS HONOUR: I know that, but the question of whether or not the cheque to Permanent Custodians was irrevocably destined to reduce principal and that it was inappropriate for her to ask for a redraw facility against the credit balance then in her loan account with the mortgagee seems to me to be completely beside the point unless it informs some issue of timing. WATERSTREET: Yes, it does, your Honour. HIS HONOUR: Can we get to that? Could we get to that or timing will be a real issue in this whole case." … HIS HONOUR: Mr Waterstreet, out of interest, when I come to determine the truth or otherwise of Mr Fregnan's allegation of sexual and indecent assault against Mr Stanizzo, will this litigation about a caveat before Slattery J bear strongly upon it? … HIS HONOUR: Please. I note you've only got 55 minutes left. WATERSTREET: I may be a bit longer. HIS HONOUR: You didn't say that. WATERSTREET: I'm going to try. HIS HONOUR: I mean, it might have taken less time if we could have isolated the issues. … HIS HONOUR: Mr Waterstreet, isn't it better if you're not diverted by some answers that are not responsive, because every time that happens we go off on a tangent? WATERSTREET: But this is an allegation that WITNESS: Yes, it is. WATERSTREET: Concerning my client and the police. HIS HONOUR: What significance does it have in Ms Fregnan's claim for damages for sexual assault? WATERSTREET: It goes to her obfuscating the veracity of the Bluestone tapes. HIS HONOUR: If that's to be established she'll have to establish it in the normal course."

The evidence of Ms Valvano and Mr Stanizzo

1. I have attempted to afford Ms Valvano and Mr Stanizzo considerable licence with respect to the matters that they wish respectively to contend are relevant to the resolution of the central dispute. Although one could be excused for losing sight of the relatively narrow critical matters that are important to that dispute, having regard to the wide-ranging cross-examination of each of them and the mountain of (often scarcely helpful) documents in the court book, the case effectively distils, but is not limited, to the determination of whether Mr Stanizzo assaulted Ms Valvano on one or other of the two occasions as she alleged or whether he did not.
2. Resolution of that issue depends largely, but not necessarily exclusively, upon whom between them is telling the truth. That in turn is to be assessed by reference to their evidence in particular as well as to the surrounding circumstances and documentary material. As is apparent, apart from Mr Badarne's limited involvement with the events of 25 May 2009, there are no corroborating witnesses.
3. Ms Valvano appears to me to be a very vulnerable individual whose life has undoubtedly been very difficult for many years and for many reasons. This is described in detail in Dr Jonathan Phillips' 7 November 2014 report, which is referred to in considerable detail later in these reasons. Based simply upon my own observations, and with apologies to William Shakespeare, it does not seem to me that Ms Valvano could actually be described as the feather in Fortune's cap. She started out in the litigation before me with a barrister who, I regret to say, had no idea what he was doing. At one point he informed me that Ms Valvano's damages case was to be "discontinued". That did not appear to me then to have been a terribly well thought out position to adopt, if only for strategic reasons. It was unsurprisingly not pursued. Shortly after that, that barrister's retainer was terminated. Ms Valvano has been without legal assistance since then.
4. Without intending to be critical of Ms Valvano, the task of running her case and defending Mr Stanizzo's claim has clearly been beyond her. Ms Valvano had no concept of how to present her case or construct her defence, no idea about the relevance of evidence or the need to focus on what issues had to be proved and what allegations had to be rebutted. Ms Valvano made no submissions in response to Mr Stanizzo's allegations that she was a prosecutor in the relevant sense or that she commenced and maintained her allegations of criminal conduct against him without reasonable or probable cause or maliciously. She led little evidence of much assistance to her claim for damages and offered no assistance on the question of how I should distinguish between the psychological damage that she says was caused by being assaulted by Mr Stanizzo and any like condition that may have been the result of other life events.
5. An example of her confusion can be seen in her response to the recording of her conversations with the Bluestone Mortgage representatives, from which it appears, if accepted, that she was in possession of Mr Stanizzo's cheque well before she said that she went to his house that afternoon. Ms Valvano's response was to contend that the recording was "doctored" and that Mr Stanizzo was responsible for doing it. She offered no evidence or other support for the contention which presently remains untested and unproven. Having regard to the significance that this material received in the criminal proceedings, it is improbable that its provenance and authenticity have not already been closely examined. It is sufficient for present purposes to note that Ms Valvano has not demonstrated that this very cogent evidence is not genuine. She failed to address the ramifications of it being authentic.
6. There was other evidence to which Ms Valvano could have referred in aid of her own evidence that she was at Mr Stanizzo's office at around 10am on 19 September 2008. Mr Newton cross-examined Mr Stanizzo about this. Mr Stanizzo said in his evidentiary statement prepared in September 2017 that Ms Valvano attended his office for the purpose of settlement of the purchase of a share of her house. However, that version of what occurred was never given by Mr Stanizzo to his legal team in the criminal proceedings, was not referred to in his alibi notice, was never mentioned to Detective Murdock and only came to light some nine years after the event. The following transcript refers: "Q. You say that Ms Valvano attended your office for the purpose of settlement A. Yeah. Q. of the purchase of the one half share of the documents? A. Yes, that's correct. Q. Now, you say that she arrived mid-morning at 10.30 as arranged. Can you see that? A. Yes, mid-morning, you know, it would have been ten, 5 past 10, 10 past 10, you know. I don't know exactly. I wasn't keeping I'm not a time keeper. Q. You did this statement on the in 2017; is that right? A. With the assistance of Mr Rollinson, yes. Q. You hadn't put down in writing, ever before that you had that Ms Valvano come into your office around 10.30 in the morning; do you agree with that? A. So, sorry it again? Q. I'll go back a step. This was nine years after the events that you were talking about; do you accept that? A. Yes. Nine years, this was done Q. September 2017 and you were speaking about events in September 2008? A. Yes, yeah it's about nine years exactly all this. Q. And what I'm suggesting to you is that this is the first time that you have put in writing that Ms Valvano arrived at your office at 10.30 in the morning; do you still agree with that? A. This is the first time? Q. Yes? A. I don't know whether it's the first time or the second time or third time. I don't know. To me, mid-morning means mid-morning. It could be anywhere between 10, 5 past 10, 10 past 10, or I don't know exactly. Q. What I'm suggesting to you that this is the first time that you've given an account that Ms Valvano arrived at 10.30 in the morning. Do you agree or disagree? A. I don't know. I don't know whether it's the first time or the second time or the third time. You know, I don't know. Q. At no stage during the criminal proceedings did you or your legal team ever write to the prosecution and tell them that she had come to your office at 10.30 in the morning. … Q. You didn't tell Detective Murdock at any time that Ms Valvano came to your office at 10.30 in the morning on 19 September 2008. Do you agree with that? A. Well, I never spoke to Murdock apart from the day he rang me in July 2010. The 16th I think it was. And the day that I was arrested. I never had anything to do with Murdock. He never came back to me with anything. Q. Can I take it that you agree with me that you did not tell Detective Murdock that Ms Valvano came to your office at 10.30am on 19 September 2008? A. Yeah, I didn't tell him, no. Q. And you didn't tell anyone from the office of the Director of Public Prosecutions that Ms Valvano came to your office at 10.30am on 19 September 2008, did you? A. Me directly? Q. Yes? A. Me, no. Q. And at no stage did any of your legal advisors tell anyone from the office of the Director of Public Prosecutions that Ms Valvano came to your office at 10.30am on 19 September 2008? A. I don't know what my legal advice told the Director of Public Prosecution. Mr Henniker was running things in a way that you would have to see the statement of claim that I issued in the Supreme Court to get an idea how he was running my matter. Q. Is your answer that you just don't know one way or the other? A. I don't know one way or the other. … Q. It's your evidence now I take it that she left after seeing you mid-morning and you didn't see or hear from her again that day? A. That's right. … Q. You agree that your alibi notice didn't mention anything about her coming to the office in the morning at 10.30am? A. Now, now, I know, but, when it was sent I had no idea what Mr Henniker put in the alibi. Q. And do you agree with me that when Mr Henniker gave evidence at your reversal of plea application A. Yeah. Q. … he said nothing about you nothing about you instructing him that Ms Valvano came to your house [sic, office] mid-morning on WATERSTREET: No, I object. HIS HONOUR: Office. NEWTON: Yes, you're quite right. Q. Do you agree that when Mr Henniker gave evidence at your reversal of plea application he said nothing about you giving him any instructions that Ms Valvano had attended your office at mid-morning on 19 September 2008? A. I don't recall what he said in his evidence on that occasion. Q. I want to suggest to you that in evidence that he gave on that occasion that there was no mention of Ms Valvano attending your office at mid-morning on 19 September 2008 and you just don't recall; is that right? A. Recall what? HIS HONOUR: His evidence about that? NEWTON: Yes. Q. You don't recall his evidence about WATERSTREET: Not about that. NEWTON Q. that one way or the other? A. I didn't pay any attention, really I was in a state of anxiety that day as well. Q. And it's right isn't it that you didn't tell either Ms Davenport or Mr I withdraw that. At no stage during 2011 did you tell Mr Henniker that she attended your office at mid-morning, September, 19 September 2008? A. Look, I'm having trouble with your questions there. Can you repeat the question? Q. You didn't tell Mr Henniker that A. Go slower because I really am struggling at the moment. Q. Okay? A. Go slower. Q. Perhaps I'll move on from that. Go to paragraph 21 of your statement? A. Yeah. Q. You give an account of being at Dr Horan's surgery? A. Yeah. Q. In that statement. Now, I understand, if I understand your case correctly, you say this is something that the police should have investigated. Is that right? A. Well, I think so, I mean I don't know the job of a police officer what he should do and what he should not do. I've never studied you know how matters are to be investigated, but, if you are a detective one would think that that is the first thing you could do, because see, I had on my diary on my desk, that was Horan and I had to ring Horan at a certain time. Because I had arranged to have a cyst removed from my back the following Monday which would have been the 19th, 22 September. Which I did. Q. But you agree you didn't mention Dr Horan in your alibi notice? A. I didn't mention it. What's the name, what's his name again? Henniker, I'm not responsible what Henniker says in that notice of alibi. Unless he asked me. He didn't ask me. Q. No, but you, what the alibi notice said is that there were no witnesses that you were aware of who would be able to provide evidence in relation to your alibi. You know that don't you? A. No evidence, but, if you would go to Dr Horan it would be evidence."
7. It has always been Ms Valvano's contention that she did not attend Mr Stanizzo's office to receive the cheque on that morning, but that she was in fact some distance away in Shellharbour. Mr Stanizzo was cross-examined about that: "HIS HONOUR: Yes of course. Q. Do you remember when you signed the $134,000 odd cheque? A. It would have been 20 past 10 and half past 10 or thereabouts on 19 September during mid-morning of that day. Q. When you say it would have been, do you have a recollection that it was or A. Yes I do have a recollection, yes. Q. Just hold on, it's a good idea if my question stops before you start? A. I beg your pardon your Honour. Q. When you say it would have been do you have a specific recollection? A. Yes I do. FREGNAN Q. I put to you the 10.31 that you say I picked the cheque up I was in Shell Harbour 25 minutes away from there? … HIS HONOUR: I think the question is 'I'm putting to you that you knew I was in Shell Harbour at 10.31'. The question wasn't framed that way but I think that's what you're asking. Is that what you're asking? FREGNAN: Yes. HIS HONOUR Q. It's suggested to you that at 10.31 Ms Fregnan was to your knowledge in Shell Harbour on 19 September 2008? A. Well I don't know where she was that time. But when I say that Q. When you say you don't know where she was at that time you don't have any idea? A. Where she was in relation to what? Q. The question was, were you aware that she was at Shell Harbour at 10.31 on 19 September A. No. Q. Hold on. Your answer was you didn't know where she was at that time? A. Well that's right. That's correct. … HIS HONOUR Q. So she wasn't in your office at that time? A. Well she obviously was not but when I say about 20 past ten to half past ten I'm only relying on approximate times but I recall quite clearly that it was mid-morning. Now it could have been that she came in a bit earlier, left a bit earlier, but it would have been between the times of 10 to 10.30, around about that time yes your Honour."
8. The resolution of this dispute obviously plays into the question of whether or not Ms Valvano had the cheque when she spoke to the Bluestone representative and raises the associated issue of whether or not Mr Stanizzo is now untruthfully asserting in his 2017 statement for the purposes of these proceedings that Ms Valvano was at his office to receive it that morning whereas there was no contemporaneous reference to it at all in the criminal proceedings.
9. I have found the determination of who between Ms Valvano and Mr Stanizzo is telling the truth about 19 September 2008 and 25 May 2009 to be very difficult. Neither was an ideal witness. Both were prone to emotional outbursts, Mr Stanizzo protesting regularly that he has been the victim of a terrible conspiracy that has ruined his life, and Ms Valvano dissolving into episodes of emotional collapse and unintelligibility. Any attempt by me to resolve the issue with only the fragile assistance of demeanour would therefore be little more than an exercise in sophistry.
10. There is, however, a significant piece of evidence with the benefit of which I consider it is possible to solve the conundrum. In my opinion, the 4 November 2010 conversation between Mr Stanizzo and Mr Badarne, and the cross-examination of Mr Stanizzo with respect to it, permits me to conclude who is telling the truth about what happened to Ms Valvano on both days.
11. It is not in doubt that shortly before he was arrested, Mr Stanizzo had a conversation with Mr Badarne on 4 November 2010. That conversation was secretly (and legally) recorded, and it included references to the content of a document, in the form of a statutory declaration, prepared by Mr Stanizzo for execution by Mr Badarne. Mr Stanizzo said this about its preparation: "This woman comes around and makes all this wild and malicious allegations about things that never happened and then you you know, I mean, I type a stat dec, sometime you use you know, there's a choice of bad well, a bad choice of words. When you put in the correction, after all, it was, as far as I was concerned, it was just a draft. I mean, Mr Badarne didn't take the trouble as he was invited to to rectify or to change or to amend his statutory declaration. It was just a draft and he he asked me to actually draft the document the day before, except that Mr Murdock left everything to him. Mr Murdock did not make any notes about the fact that Mr Badarne had asked me to write this thing for him."
12. Mr Stanizzo was also cross-examined about it in the following extract: "Q. It's right, is it not, that when Mr Badarne came to your office on 4 November, that you had prepared an unsigned statutory declaration which you were hoping that he would sign? A. No, he asked me to prepare it. Q. But you had prepared it, that's right isn't it? A. Well because he asked me to prepare it the day before. Q. But you, leave aside the A. I am not saying that I didn't prepare it, but he asked me to prepare one. Q. And you prepared it without actually having any input from him as to its contents, that's right isn't it? A. No, that is not correct. The input was in relation or coming from the discussions we had the day before. Otherwise, what is the point of it all? We arranged for him to come and sign it. Q. I am suggesting to you that that's not the truth, that you drafted the statutory declaration without any input from Mr Badarne? A. I disagree. Q. Mr Badarne told you, well firstly, in your presence Mr Badarne read out the statutory declaration, do you agree with that? A. Well, I don't know whether he read it. It's apparent he didn't read very much of it. Q. Can you look at page 1775 of the Court book, and there there's a long paragraph of text and I suggest to you that that is Mr Badarne reading out to you word for word the statutory declaration that you presented A. No, no, no, incorrect. Incorrect. Q. What do you say it is? A. Well he read it to himself silently, he didn't read it out to me. Q. You were present during a conversation A. I was sitting at the computer in the where the secretary normally sits. HIS HONOUR Q. I am sorry, I think what's being suggested to you is that if this is a transcript of the conversation that was recorded and the contents of the document appear on the transcript, it seems A. I see, I beg your pardon, I misunderstood the question. Q. Apparently somebody read it out aloud? A. Yes, I'm sorry, I misunderstood."
13. It is therefore plain that the transcript of the recorded conversation between Mr Badarne and Mr Stanizzo includes in practical terms the complete text of the document drafted by Mr Stanizzo for him to consider. The transcript of the recorded conversation is very long, but having regard to the significance that I consider it should be given, it is included in full in what follows: "V.2 Ah, Hi … V.1 Yeah. What's up? V.2 … good morning … Yeah, yeah. V.1 Yeah, yeah, you know, as I told you - - - V.2 Do you want a drink? V.1 No, thanks. The police is, is asking me for a statement. Vivian is asking me to tell the truth. You are on the other side, on the other hand, you know. I don't know what's, how the, the hell is happening here. V.2 When did the police ring you? V.1 They called me again last night. V.2 … V.1 They have, have you made up your mind. And I rather speak to you first. V.2 Well, anyway, look, I, I, I prepared a Stat Dec for you. Come and read it and see what you think. V.1 Yeah. V.2 Mmm. V.1 … give me, read it, read it. Give me, I'll just read, save … the printer … and ah we'll go from there. Oh, all right, let me read it. V.2 … V.1 O.K. Let me read it. All right okay, I, Muhammad Badarne of xxx Crown Street, Wollongong, New South Wales. I have a sworn affidavit. Since paragraph 2, since this proceeding commenced in October 2009, I have become aware that Valvano has made certain sexual allegation to the police and other authority against Stanizzo, both in relation to the alleged event and have allegedly taken place in his office and outside. Also since the above date she has told me that Stanizzo has acted inappropriately and tried to touch her in his office. I always, I was always present at the office when she came to see him, which was mostly uninvited and at any time suitable to her and without forewarning. She had an arrogance about her presence and wanted to be attended to immediately. She would often walk into both my office and Stanizzo office without knocking on the door or excuse herself. Stanizzo did not wish to complain for fear that she would not cooperate with him in connection to the settlement of her sale of the property to him. That is paragraph 2. Paragraph 3. Paragraph 3 is this. At the time that I was working at Stanizzo office my room was located next to his room. And, indeed, the door to each of our respective room are next to each other. Whenever Valvano came into the office, Stanizzo would always keep his door open as he did not feel comfortable with her behind the closed doors for fear of her making the type of allegation such she has to favour her own causes. Paragraph 4. With both our respective doors open I would be able to hear all the conversation had. As such I have, I have, and never seen or heard, I don't know what, what that means, typographical error, such - - - V.2 … V.1 Never, never mind. As such I have never seen or heard Stanizzo acting inappropriately towards her at any time. He always conducted himself courteously and professionally with all client or any person that come to her, to our office. That is paragraph 4, this is page 1. Is that all? V.2 No, there's more here. V.1 Can I read it? Paragraph 5. I observed that if she, if he was busy on the phone, Valvano would take liberty to roam around the office without permission. In May last year Stanizzo was suffering from a pinched nerve in his lower neck and was in visible discomfort. Valvano, who happened to come to our office that day on that day, on noticing his discomfort offered to give him a neck massage, but Stanizzo declined her offer and told her that he was going to see his doctor for pain relief tablet. You know, I, I mean, apart from the preceding paragraph, this paragraph 5, I mean, puts me in a predicament. I mean, it's a opposite of what I, I, I saw or heard. I mean, you ask her to give you the massage. V.2 No, I didn't. No, I didn't. I did not allow her to touch me because knowing - - - V.1 All right. V.2 - - - the person - - - V.1 If you would say you didn't now, but I don't, I, I say I, I don't remember that she offered the massage. How can I sign this and say she offered the massage? V.2 But she did. V.1 But - - - V.2 She did. V.1 So you ask me to trust you and, and put your memory inside me and say so. I mean, as far as I remember you came and you ask her for the massage because your neck was painful. Now you say she did. But if I sign this, that is not the truth. V.2 Well that's the way I remember it. I would not allow her to touch me. V.1 But she went to your room and you shut the door even. And I'm, I'm not talking about the - - - V.2 I didn't, no, I didn't shut the door … I would not allow her to touch me. V.1 O.K. But, O.K. So what, I should sign this regardless of, of, of what I saw or witnessed, or just, just sign here or what do you want me to - - - V.2 Well, that's what I remember. V.1 O.K. But the, I am the witness. I am the witness here. I should sign what I remember, not what you. V.2 Well I asked you to make a statement. V.1 If I want to make a statement I have to, and so far as paragraph 5, you came and you ask her, 'Oh, my neck, give me a massage.' V.2 I don't … I don't … I wouldn't have asked her to do a massage. V.1 Paragraph 6. I have read the allegation levelled at Stanizzo by Valvano with horror and disbelief at the length of, I didn't read the allegation, man. What allegation? V.2 Huh? V.1 I didn't read the allegation. But anyway. Anyway. I know that she made certain, but I didn't read the protocol or anything like that. V.2 I, I have … V.1 But, but look, I, I don't want to go through and read more. I don't care what she says. If Stanizzo, O.K., paragraph 7. Paragraph 7 starts, if Stanizzo had behaved inappropriately, I would have heard it because, as I have said or, our respective rooms are not soundproof. And that's the whole idea. That our rooms are not soundproof, and on that day she went to your room, man. And I heard things. V.2 What did you hear? V.1 You know, the shoving and she said, 'Leave me alone'. And she just storm out. She go, even first, if you remember - - - V.2 … V.1 - - - she forgot her wallet. She forgot her bag and she came to my room and snatch it and I said, 'What's, what's up'. She just snatch it and went. Do, do you remember? When you gave me the glass of, even you noticed that I was upset about the episode and under stress, and you gave me a glass of, of whiskey to loosen up. You know. V.2 No, no, no, no - - - V.1 Well - - - V.2 - - - mate, come on. That's, you're just, that, I would not allow her to touch me. V.1 to … V.2 No way. V.1 Then, paragraph 8 starts. After the second deed for the sale was signed in September 2008, she disappeared from the scene. I don't remember disappeared or not disappeared. O.K. So basically, these two pages you want me to sign. V.2 Yeah. V.1 Stat Dec. And who will be the witness? V.2 Sorry? V.1 Who will be the witness if you want me to sign? You want to witness them? V.2 Well … - - - V.1 Look - - - V.2 - - - otherwise you can go to a solicitor's office. V.1 But, but if I, you know, Vince, I mean, if you want me to, to just to insert something in my memory, say so. But don't try to tell me - - - V.2 But that's what I remember. That's what I remember … V.1 So I give a statement as to what Stanizzo remember or what, as what I remember? V.2 Look … you know, I, I asked you to make a statement. If you want to change something, you know, we can discuss it. Look, she's a , she's a troublemaker, you know she's a troublemaker. V.1 Why do you think she is a troublemaker, really? I mean, why do you think she's a troublemaker? V.2 Because she is, because I did, did not want to sign the, withdraw the caveat. V.1 You know, I mean, look, we are, we are both men. And we, I mean, she used to come, she looks very nice. V.2 Well not to me, I mean, she obviously … you, mate. I, I mean, I was going out with another lady at the time. Why, why would I be interested in her? V.1 We, you, you - - - V.2 … V.1 - - - you told me what, well, you told me about your, your principle in life. You remember? To do as many as you can. Isn't that your objective? V.2 Just boasting and a general talk, you know, sometimes we boast about things, you know. But not, when it comes to serious stuff. V.1 And on, on the other hand, she comes and she is swear on the stack of bible to me, and as if I am a whatever, and that it wasn't the first time, she went to your home, blah, blah, blah. She is not specific. She is very distressed about it. She doesn't tell me, I mean, I'm not her brother or something. V.2 Well, well, yeah, why did she complain about this in October after … that she … in this? V.1 I don't know. Some people, some people are molested by their priest, they complain 50 years after. V.2 But, you know, somebody with … like her, she would've jumped, she would've jumped to the police station … V.1 But she was hoping, she was hoping that, some people soldier on because they need, you know, if you, they don't want to lose it from both sides. She must, she could have soldiered on because her house was on the line and I was acting on the TAFE, she was really in a predicament and she doesn't want to make noise. She, she could have soldiered on little bit. V.2 Look, look, I have not touched her. V.1 Well, it's, I, O.K. Good. And, you know - - - V.2 I, just - - - V.1 - - - why, why allow her, why bring her to your home? V.2 She came to my home to bring some documents for me. V.1 Bloody hell. What, how would she know your address? V.2 Well, I don't know how she knows my address? V.1 And you are, even, you are not listed on the thing, on the phone number. Well, how could she know you - - - V.2 Well, I don't know how she found out my address. V.1 You know. V.2 She's got girlfriends or she lives in the area for a long time. It was listed years before. V.1 And, well, you know, if I were you I would not even have her in my house to ever, to be, to have … I would have, no, stay out, out of this house. I mean, you allow her to come in and open, expose yourself to these things. V.2 That's where, it's because - - - V.1 … to be at, you know. So back to this thing that you want me to sign. V.2 Yeah. V.1 You want me, I mean, signing it just without, I mean, some, things are not true, Vince, here. How can I sign it? V.2 … V.1 Just sign it and forget about it and, is that what you say? V.2 Yes. V.1 But, you know, if I sign this, I will be fried. I mean, I am a solicitor, I'm not supposed to lie. V.2 I'm telling you, this, this is what happened, you know this is what … you can, you, this is what you seen around the office. I have not touched her in, in the office. V.1 Yeah, because the door was shut. V.2 But … it's not true, Muhammad. I would never shut the door. V.1 You see, you see, you, you do, do you see this window? Now I'm talking, this window. How many time I jump from this window to access the fax machine because your door was shut. V.2 But not when she was with me. V.1 When she was and when she wasn't also. I, I have to - - - V.2 … look - - - V.1 - - - jump here like lunatic because I can't open - - - V.2 - - - look, what, what did she … well very rarely … V.1 Well, how can I open, open? First of all, you hit the roof because you get very angry. Then, secondly, the, the door doesn't open from outside. It's disabled for somehow, some reason, I don't know. V.2 … that's the way I found it … built … V.1 Doesn't matter. I mean, doesn't matter. It's not, not functional, cannot be opened from outside. Sometime, even, I am concerned, when you are required there and I, the door is not open, it should be, it should be functional, anyway, just in case something happens to you, you know. But, anyway. V.2 I haven't touched her, Muhammad, I swear it. V.1 So you, so, look I am not here, I don't care if you touch her or not touch her. I'm not trying to, she is not, I'm not - - - V.2 Well this, well this document there - - - V.1 Well this, well this document there - - - V.2 - - - … V.1 - - - ramification, you know, attached - - - V.2 … will not go off the ground. V.1 Yeah. It has some ramification, this document here. First of all - - - V.2 Look, she is after me for one reason, her one reason, so she's after me. I'm saying to you she is after me and there is no, no basis of her allegations. None whatsoever. I swear it. It was, it's, it's her always trying to … with me. V.1 What, what - - - V.2 Look, I've known her for years, you know. V.1 - - -what, what do you, what do you, why, what do you think of her anyway? V.2 Well, I've heard that, you know, some people say that she was running a brothel that the bottom of Crown St these days … V.1 Running a brothel? V.2 Mmm. V.1 You know, I'm not - - - V.2 She hasn't got a very good reputation. V.1 Not very good, you know, nothing wrong with a brothel. After all, you ask me to, to, to buy her house and we run the brothel under Gail McPherson, you know. V.2 No. V.1 A brothel is nothing wrong as long as bring money. That's what you told me. We almost bought the house for that purpose. I mean, they are licensed nowadays. They are not in the olden days where, they don't have a stigma. And I almost put the money. V.2 Are, are you, are you going to sign this? V.1 I almost put the money with you to buy the house and run the brothel. But I was, I declined because I didn't feel comfortable about it, about the idea. Now, you insist that I sign this. V.2 No, I'm not insisting. But I will be pleased if you would sign it. V.1 So, well, if I amend it, if I delete a few things and, now, am I allowed to delete or add or delete and add, or what am I allowed, how, what's, what amendment? I mean, I, I want to say - - - V.2 Well, what, what do you want to change? Tell me what you, what do you want to change? V.1 Look, the fact that the door was open on that day wasn't true. V.2 Well, I think it is true because I would never, never shut the door. But why, like, why would I put my hands on her in the office? V.1 … I mean, because she, you asked for the massage to your neck. You know. V.2 Come on. Come on, please. I would not allow her to touch me, knowing what she's like. V.1 What's she's like? What's the wrong? What, I mean, what allowing her to touch me, I mean? You ask her - - - V.2 She used to flirt around and pretend at the club with me, you know a lot and everybody knew that she was just a troublemaker. V.1 I don't know. V.2 … V.1 I, I, now, I know. You, you, you said, you won't insist but you would be pleased if I sign it, just, just, you mean, just forget about it and just sign it, just for the sake of, is that what you - - - V.2 Well, that's what I. That's, that's the truth. V.1 You know, but, but I am confused, Vince. You threaten me, you want to slice my family, you come to my home and would threaten with the axe. And then now you tell me I am pleased - - - V.2 I didn't have the axe, you had the axe … V.1 Yeah, I mean, it's not - - - V.2 Yeah … V.1 - - - that, who the owner of the axe, it doesn't matter. But who uses the axe, that what matter, not who owns the axe. I mean, you, it can be owned by Bunning and you use it. It doesn't matter. V.2 No, but I, look, sometimes, when I get a little bit hyper you know, I get a, say, say the wrong things, man, I - - - V.1 O.K. V.2 - - - but at, at the end of the day I'd never raise a finger against you V.1 O.K. So, yeah … V.2 And I … got any, any, any … V.1 Vince, you think I am, what? A, a, the bloody hell, you know, this affidavit, this affidavit is - - - V.2 Stat Dec. V.1 Stat Dec. Which is, you know, and it says in the end, and I make this solemn declaration conscientiously believing it to be true and by virtue of the, of the provision of the Oath Act. To which I know the provision say, if you give a Stat Dec which is false or knowingly to be false, you can - - - V.2 Do you want to make a statement without, without the, the Stat Dec then? V.1 A statement without a Stat Dec. V.2 Yeah. V.1 Along this lines. V.2 Yeah. V.1 And what if, if, what if I'm proven to be a liar, if I make the statement? Who will, who will save me? You? V.2 Who, who, who's … who's going to know, you know, what happened here. Except you and me. I, I, I say that it, it did not happen. She says different. And I know why she says different. If she was so concerned about being touched, whatever, she used to come here, even, even when I, after you left. And fortunately there was Gail McPherson here otherwise - - - V.1 I know, I know sometime - - - V.2 Why would she come here? Why would she come here if she was sexually assaulted? Why, why would she come here? V.1 And why would she come here after 5 o'clock? V.2 After what? V.1 After 5 o'clock. V.2 When? V.1 When I left, you know. V.2 Sorry? V.1 When I left. V.2 What do you mean when you left? V.1 Yeah, sometime I leave and she is in and I leave, I, sometime. V.2 No way in the world she was ever here after 5 o'clock. Come on, come on, please. V.1 I - - - V.2 Come on, please. V.1 Mmm. O.K. V.2 Come on. No way in the world. V.1 It sound, sounds, sounds in retrospect its wrong and sounds bad. But reality - - - V.2 Reality is that I never remember had her here after 5 o'clock … V.1 That's, it's, it's all right. You know … I say here, are positive things. Fair enough if I say I did not see. But I can't positive statement that I did witness and saw things and I … things. If I say I didn't see, I didn't see. But how can I make a statement? (MOBILE PHONE BEEPING) V.2 You, you could not have seen it because it never happened. I would not allow her to touch me. V.1 Except when you ask her. V.2 … V.1 With your consent, with - - - V.2 I did not ask her. V.1 - - - your permission. Yeah, eye test, somebody sending me message, for eye test. And, and let's assume that I agree with whatever you say, let's assume. What, what is in it for me? V.2 I told you. V.1 What is it? V.2 Well, I told you. V.1 What, what? V.2 You know, I, I don't want any, to have anything to do with those matters anymore. V.1 I mean, if I sign … I collect the fees in the matters. V.2 Man, you keep it. Yeah, I don't want to have anything, anything to do with it. Not that you're going to get any money out of it anyway. V.1 Is that the price of this? If that - - - V.2 No, no, no, no, no, no. V.1 Not the price, but that's a quid pro quo, the deal, isn't it? V.2 Well - - - V.1 You could, you could - - - V.2 - - - … you know, said, I'm, I'm not, I'm not making any promises to you. It just if you do it I, you know, I, I, I don't want to buy the evidence. But that's, that's the, the way I remember it. That's the way. What happened there is the way I remember it… V.1 Yeah, I mean, the way, Vince, the way you remember it is … V.2 But I have not … V.1 Yes, yes. V.2 … would I allow her to touch … V.1 I cannot testify using your mind, you know. V.2 … V.1 A-B-C, the evidence says, what you have heard, what you have seen - - - V.2 Yeah. V.1 - - - what you have, you. V.2 Well - - - V.1 Not what has someone told you that he didn't. V.2 Well, I asked you to make a statement. And if there's not, your statement is not any use to me, what's the use of having the statement? V.1 No, if my statement, if not, if I make a statement and you think it does not advance your case - - - V.2 … V.1 - - - you, you will not accept the deal you told me. V.2 Jesus … V.1 You only accept, you only offer the deal if the statement if suitable to advance your interest. V.2 I will not make any comment … I'm not making any comment … V.1 But you said it wouldn't be of any use, meaning you wouldn't, you wouldn't, you're not prepared to - - - V.2 Look, what you say, that I touched her and if you … V.1 No, no, no, no, no, no, Vince. V.2 … V.1 I'm not saying that. V.2 But … V.1 I, I'm not saying. V.2 … I don't feel well, I need to go home. V.1 I'm not saying you touched her. I say that she says. V.2 Well, she can say what she likes. There's one … she's not, you know - - - V.1 And - - - V.2 You know what she's saying all this for. V.1 I know. And, and for her to, to offer, to offer you a massage. I mean. You, you ask her. You ask her. No client, out of the blue, comes to say, Can I give you a massage. I have been a lawyer for some time, both here - - - V.2 … V.1 - - - and overseas. V.2 Muhammad, can you come over here … V.1 Yes, I can. V.2 This is a lady that I have known for 30 years, with her husband around the Fraternity O.K. V.1 Mmm. V.2 Where, I have danced with her, even, at the Fraternity, Right. V.1 Yes. Yeah. V.2 And, and I know that she's got a reputation for being a troublemaker. V.1 In what way? She steal, is thief, is she a thief or what? V.2 Well, you know, she's got a bad reputation, you know. V.1 Like what, what does she do? V.2 Well, I don't, you know, I mean, just people talk and say, look, she's a bitch, you know, things like that. She's a troublemaker. V.1 I mean, and you thought she was easy going or what? I mean, look, if you, I mean, we are men, Vince. V.2 Oh. V.1 I mean - - - V.2 … V.1 - - - sometime you don't, you know. But I have to - - - V.2 And, and, and, and you don't make mistakes. V.1 Of course I make mistakes. Every day I make mistakes. V.2 I should not have got involved with her with this bloody property. V.1 And thanks God that we did not both get entangled with this and both, both with … the property and operated the brothel. Otherwise both - - - V.2 What brothel? I had no intention of operating a brothel. V.1 Not you. Gail McPherson, you know. V.2 Well, but how would Gail McPherson … V.1 I don't - - - V.2 Gail McPherson was not in the picture at the time. V.1 And you told me that we might be benefitting here if, if we operate it and we distance our self. V.2 I was only joking, for crying out loud. Only joking. V.1 All right. V.2 I was only joking - - - V.1 Yeah. V.2 - - - for crying out loud. V.1 Yeah, I hope, I hope, I thanks God I didn't put money on that … on that joke or went and mortgaged my house based on your joking. V.2 Are you sure you haven't got anything on you? V.1 … I have a, a Cannon. V.2 Pardon? V.1 Cannon. V.2 Sorry? V.1 Cannon. V.2 Well, if you cant just give it to me and we'll just forget about it, hey. O.K. V.1 Can I review it or look at it and delete what I think and add what I want? (TELEPHONE RINGING) V.2 Well … well what … V.1 I don't know. I don't know. I wish, I wish I know what to say. I wish, I don't know. Anything else? V.2 Sorry? V.1 Yeah, answer the phone. V.2 Sorry? V.1 Are you, you want to answer the phone? V.2 No, I know who's calling, so. V.1 So can I, can I add and subtract - - - V.2 I, I have, look, I have, look, you know, I have said this because it's true. You know, she used to come into the office here and look like owns the place. V.1 And why? Why … she specifically? V.2 Because that's the way she is. V.1 The other client did not own the place. They, they sit and behave very well. She goes into room. I, I used to feel uncomfortable even - - - V.2 But I said to you … - - - V.1 - - - she even - - - V.2 - - - when I'm not here make sure she doesn't - - - V.1 Yeah. V.2 - - - go through my papers. V.1 She doesn't go through the paper but - - - V.2 … V.1 - - - only she feels comfortable when you are around, actually. V.2 … No, no, no. V.1 When with me, she sits, like, behave like a, like a good girl and we go through things. Even I took her to the, to the, to the Shellharbour manager there and we went there. On that day, by the way. She was dressed very well. She thought that we going to meet somebody because she want to meet the, the, the manager. And when she came here she was dressed very well and very attractive, actually. And on that day you ask her for the, the massage. And when she went, her dress was all over the place and she stormed … V.2 No, no, come on, please. Come on, please. Just … V.1 What? V.2 Come on. Because you, you are really just playing games with me now … V.1 It's not game. Either, either it is, either you want me to sign what you want or I am playing games. V.2 Because it's not true. It's just not true, what you're saying about this. V.1 O.K. Do you have, like I tell, do you, do you want me to erase my mind? Erase my memory? If you erase it I will be with you. Erase my memory and good luck for you. You can have me, have my brain, if you erase it. Do you have any mechanism or any equipment or any technique whereby you can erase my memory? And, and you know that I need the, the money on, on those matters. And now you put this on me because I need the money, which is I am entitled to anyway. Is that fair? Is that fair? V.2 I'm not denying you the money. V.1 So give me then without this affidavit, without this Stat Dec. Can you give me my money with that Stat Dec? V.2 And then you've got to make a statement for me … V.1 Then I go to make a statement from them? V.2 Yeah. V.1 So what you telling me, that you, you wait, if wait, to wait to make me to decide. If I make a statement I kiss my money goodbye. Isn't it? You - - - V.2 No … V.1 - - - you know I am. Whether for you or for them, I have told you that I have been contacted by police. And I am potential witness in this matter. I, I, it's very likely that I will be called, and I told you before, I might be called, whether I give a statement or not. Anyone can call me witness. And now you tell me, if, if you give me the money you are concerned that I - - - V.2 No, it's got nothing to do with the money … V.1 So what, what makes you not pay me, paying me then? You hurt me? You delay and delay and delay and delay and delay and delay. The money, you got it from the woman. You got it from the client. And you know that it is, I am entitled to some share. V.2 But I'm entitled to, to your, your share of the money the money that you received from Ayoub case - - - V.1 Where, from where? V.2 - - - … It's - - - V.1 … V.2 Come on … V.1 Enforce it and receive it, you know. I, if, if somebody abscond - - - V.2 … V.1 - - - if somebody abscond on me and I can - - - V.2 … of course … V.1 - - - and if somebody abscond on me, that is towards my share. And because it's bad debt it's my bad debt. If you collect, it's your share. I am only my share. V.2 But you have collected that $200,000. V.1 No, I did not. I did not and you know that I did not. I, I … collect it, I wish. I would be singing. V.2 Where did you get the $200,000 from then? V.1 From you - - - V.2 And, and why but you deposit the money back there and he rung up and threatened to go to the law society about it - - - V.1 I don't know, you, it's - - - V.2 And you … my … V.1 - - - it's, it's a rhetorically question that why, like, why would, why would Vivian do these things. I don't know. V.2 Well, I do. I do. I … why, I know why. She's after money. I know her. I know her. She's a tight-arse and she, she, she's after my money. That, that's why. And you know that. And you know that, too. V.1 Everyone after money, but - - - V.2 Yeah, yeah, yeah, and you know that, too. V.1 - - - but, but, well - - - V.2 That's right. And you know what. V.1 And, and - - - V.2 And you know that she's a troublemaker, that, the, the things that you - - - V.1 No, no, troublemaker - - - V.2 - - - say about the dress … just totally untrue. Totally untrue. Totally untrue. V.1 You mean, you mean her dress was very well done? V.2 I have never touched the woman. I have never touched the woman. I would not let that woman touch me. V.1 Why? V.2 Because she's not my type anyway. V.1 Because you told me her figure have wrinkles or something. V.2 Well, she's not my type. A woman like that, if you touch her, she will be running to the police immediately. She wouldn't wait until Gail McPherson starts an action against her. V.1 Yeah, no, you, you, O.K. O.K. So - - - V.2 That's what she's after. A woman like that would be on top of the police immediately if that's the case. She would have screamed instead of going on the day she says, would've gone to the police straightaway to, to the Port Kembla police. If that's true. But it's not true. I know in my heart that it's not true. V.1 Yeah, Vince - - - V.2 I was complaining about the neck - - - V.1 - - - … V.2 - - - yes. But I didn't ask her to give me a massage, no way. I, I … you know, three, three prolapsed disc. The doctor would not even allow a physiotherapist to touch me because it's got nothing to do with a traditional massage. It's, it's a, a bone problem. V.1 … V.2 It's not, not a muscle. V.1 Vince, can I say something now? Can I say something? On that day, it's true what you say in the Stat Dec that I can hear everything. On that day, when she went there, I heard you even say, 'ohhh my God ohhh that's nice'. Even I heard that. You know. I, I said, 'Oh, my God, what's, what's happening'. I, did not expect, you know. You, you apparently, you had relief or something. You say 'ohhh that's nice, oh', yeah, something like that. I heard it. And - - - V.2 Well, you want to change this - - - V.1 But, but - - - V.2 - - - but you want to change this … is that what you want to … V.1 - - - the fact that - - - V.2 That … V.1 Listen, listen. One thing is to do, to be implicated in sexuality. And other thing is to ask for massage. I didn't see you having sex with her. V.2 Mmm. V.1 But I remember you ask her for the, for the massage. And you went to the room and the room was shut. And I heard things. V.2 No, I didn't. V.1 Now, I did not see that - - - V.2 No … V.1 - - - you have sex with her and I will not say that, no matter what. I didn't see that. So if you want to change that, what do you want to change in it? V.2 Well, what do you suggest? V.1 If I change it you wouldn't like it. I mean, you, you, you don't like it. And I, if you want to change it, if I want - - - V.2 Well, you, you V.1 - - - you throw it in the bin. V.2 You have a pen, you change it and see … V.1 Give me the pen, I change it. V.2 But hurry up because I, I've got to go. V.1 I'll, I'll hurry up … I have … heard allegations … Look, paragraph 7, you say, if Stanizzo had behave inappropriately I would have heard it. If, I mean, I, this, is that in a Stat Dec … or in evidence. You say, if. If is you asking if. You say I heard, I saw, I felt, I remember, I, you know. You don't say in that, in the evidence if - - - V.2 O.K. Change it. Change it, change it, just change it, see what comes out … V.1 You know. If, if anything happened in that room I would have heard it. V.2 O.K. That's a matter for … V.1 And, and, you know, or not necessarily. Something can happen without noise, I would not have heard it. I would have heard any noise that, I would have heard any noise that would come from Stanizzo office. Now, I would have heard any noise, depending, or we talking reasonable noise. We are not talking if somebody is whispering or if a mosquito is flying. Any reasonable noise. My, I don't know, maybe 40 decibel, 50 decibel, I don't know how you call it. Like me and you talking all reasonable. I would have heard it. But if I continue here, it will be disadvantageous to you because the continuation of that, and I heard on that day. Yes, if anything - - - V.2 Before you came here you said that you would sign what I had prepared. Now you come here and you change your story. O.K. That's what you said. V.1 … V.2 Otherwise I, I want to go home I'm, I'm not well … And this is probably going to kill me anyway. Is that what you want? V.1 No. V.2 … V.1 No, I don't want you dead, man, because you need to pay me money. V.2 Mmm. V.1 I, I don't want to chase your estate. V.2 Mmm. V.1 Easier with you rather many, many, you know, many people and many people might make a claim against your estate, you know. I don't know what you have been up to. So where we go from here, Vince? V.2 Are you making the amendments? You said that you would sign anything that I prepared to … V.1 I mean, like you, like, what we talk. Not anything if - - - V.2 Oh, come on, Muhammad, I, I've had enough, please. Just, please … V.1 What? What enough, what, man? V.2 I've had enough. V.1 You think I didn't have enough? You want me as a rubber stamp here, I mean, I was. Before, and, even under the Oath Act, no way hose [sic, Jose]. Vince. V.2 Are you finished or what? V.1 I didn't, I didn't finish, I don't know, Vince. I, I don't know. V.2 So you don't want to … V.1 I, look, it, I, I'm, I'm concerned about if I sign this. V.2 Well, what are you doing here? What are you doing here? I mean, why, why did you come here for? V.1 To, to, because we arranged yesterday and - - - V.2 Yeah, but you rang me, you rang me up and, you know … I, I, I … I … V.1 What is that? V.2 I can't rely on you, like, you know, you, you just a, you want to see my blood, you want to see … V.1 No. V.2 Yeah. V.1 No. V.2 Yeah. V.1 No. It's, in fact, you are the one who want to do that and , it's not in my, in my, in … You make a thing that suits you. If, if I were you, if I were you I would not ask for a statement just - - - V.2 Muhammad - - - V.1 - - - just pay me the money and wait - - - V.2 - - - listen, listen - - - V.1 - - - and wait for me and I give, whoever call me and tell the truth … V.2 - - - we both know … You know, you had something to do with this fella … with this Vivian … V.1 She can go to hell. I, I have nothing to do with her. I acted for her a little bit when she left. Even, I did not continue the, the CCT Tribunal with her. I did not continue that matter. V.2 … V.1 I do not act for her, I don't do anything. V.2 Are you prepared to do this statement or I'll go V.1 I'm you know. No, you put me at, at, at - - - V.2 I don't put you on any, anything … anything … V.1 Look, you didn't put me, but you will not pay me until I sign this. And if you pay me, you say, I'm concerned you'll give a statement to police. (PHONE RINGING) V.2 … V.1 Hey, fellows, anything more, anything, you can text me, if you, I don't know. V.2 … V.1 I'm waiting. I'm waiting for you, Vince - - - V.2 … V.1 - - - to text me something. V.2 Are you here or, or … V.1 I am here, still here. You accuse me of things. You are the, the one who is doing this. You put the pressure on me. I don't like this way, the price of this and this against that. You pay me what I'm entitled. And I will tell the truth and, why do you tear it? V.2 Well, what do you want me to do? What … I worked on this all morning. What do you want me to do? V.1 What I want you to do. V.2 What, what do you want me to do … V.1 Amend it properly and I will do it and we'll get over done with it. V.2 Yeah, well, what … V.1 I mean - - - V.2 I, I ask you to amend it and you haven't amend it. V.1 You don't like the, my amendment. V.2 Well because it's not true, that's why. V.1 Yeah, everything is like America, again. If you are not with, with me, you are against me. I'm, you know. V.2 Muhammad - - - V.1 Yes. Yes. V.2 - - - sign this. V.1 How can I sign it, Vince? How can I sign it if I am not confident that the, even, it's a true, how can I sign it? V.2 It is true. V.1 Is it, it, is it, you know, sometime it is the principle that matters. Like you told me, sometime it's not the money, it's the principle. Is it true or you want me to sign it anyhow? V.2 No, it's true. V.1 It's a truth and it's very hard because I'm not a stupid. V.2 I'm not saying that you're stupid. V.1 Yeah, I mean, yeah, yeah, at least ask. You say I, you know. I don't know. V.2 Well, I ask you to make a statement and you didn't make a statement - - - V.1 You, you don't like - - - V.2 - - - but then this morning you said that, this morning before you came here, you said, you know, I'll sign anything that you prepared … V.1 Not, not anything. You … V.2 But that's what you said, Muhammad. This is what you - - - V.1 I mean, I mean, you, you wouldn't expect - - - V.2 - - - this is what you said. V.1 - - - you wouldn't expect if you sign, if you write, I am a donkey, I would not sign anything that you, you - - - V.2 Then what are you doing here? V.1 Anything that, something, the truth. V.2 Yeah, the truth, yeah. The truth as you want to see it. V.1 Maybe the truth - - - V.2 Yeah. V.1 - - - that you want to see it. V.2 Well, the truth that you want to see it, which is not the truth, truth anyway. And we, we know about it, about the truth all, all these things that you've been saying, you even told me, when we were work for other … that you were not working there … V.1 … V.2 - - - that you … work … V.1 Why do I have to disclose to you where I am working? V.2 You don't have to do, but you don't have to tell me - - - V.1 No, no, for privacy. I, if I work somewhere I don't have to tell people where I am working. V.2 … after all, you … your life … V.1 Yeah, yeah. V.2 Whoever you working together for three and a half or four years so who am I at the end of the day. V.1 Yeah, because you hit the roof. I know your mentality. V.2 Yeah … V.1 And besides, I wasn't there. I was just on a, on a, on a little bit basis like, taking just, you know, sussing it out I was. So you want me even to prepare one. You want me to prepare one and send it to you? Email it to you or what? Or, and, but Vince, Vince. Honestly. I am working and I have things to do, like you. Now (BREAK IN RECORDING) I come here because you should pay me regardless. It has nothing to do with the police. It has nothing to do. Even I if I want to go overseas now. Even if I want to die now, you should pay me what I am entitled to. V.2 Why don't you pay me the money that you got from Michael Ayoub. V.1 … which? Which? You put - - - V.2 All of the money, all of the money I - - - V.1 - - - hold on, hang on, hang, hang … V.2 - - - … V.1 …We still to investigate that thing. Still. You have him here to sign false Stat Dec. Actually, you are doing to me exactly what you're doing to him. You bring someone here - - - V.2 … V.1 - - - you make a Stat Dec, and you sign, you tell him, sign here, like me now. V.2 Gail McPherson - - - V.1 And he sign. V.2 - - - was here. V.1 Yeah. V.2 And he signed of his own free will. V.1 Yeah, and he has other agenda. And, look - - - V.2 And it will, but he can say that. V.1 Yeah, yeah. V.2 He can, he can say, he can say that … V.1 Yeah. And you put it to him. And you know what? You know - - - V.2 No He gave me the details. I, I don't know these … details. V.1 But I have news. I have news to you. V.2 Mmm. V.1 I have news. V.2 Yeah, I know, he's changed his story. I mean, yeah. I know he's changed his story. He's changed his story. Of course he changed his story. Of course. Of course he's changed the story … V.1 … V.2 It does, it doesn't surprise me that he changed his story. V.1 Yeah. Yeah. Because, because if the story is wrong, is, is lying - - - V.2 Look, he, look, he's changed his story because God knows what you've got on him or Michael Ayoub has got on him V.1 But no one got on anyone. You get, look - - - V.2 But why say - - - V.1 - - - in the spur of the moment you ask someone to sign a Stat Dec. V.2 … he, he's not a … the moment because he took, he took a, a good hour and a half - - - V.1 You know he's illiterate. V.2 But he could say, I - - - V.1 He's illiterate. You - - - V.2 - - - … V.1 - - - you know he doesn't read and write. V.2 Look, no, but it, it was read, read out to him loudly. V.1 You, you can read the bible to him and you say, I read Elvis Presley. V.2 He could say, he could say, I'll take this to my solicitor. And after all, he gave the details of that, the … V.1 But I have other news. V.2 … V.1 I have other news to you. V.2 Yeah. V.1 These things are false and I cannot approve them. This, that Stat Dec is false, man, because when people lie - - - V.2 But it's false - - - V.1 - - - when people lie they are bound to make mistakes. V.2 But if they are false - - - V.1 Yes. V.2 - - - you've got to blame the … about that. V.1 I, I didn't - - - V.2 … the one that didn't - - - V.1 - - - I, I can, black and white, man, I thought you are smarter than that. V.2 … V.1 I thought you are more intelligent. I will not say why. But when people lie they are bound to make mistake. You know that. V.2 What, what about … V.1 If it is not the truth, first of all, you forget it. Secondly, you get confused about it. Thirdly, it will be inconsistent with something previously. It will be inconsistent for something currently and it will be inconsistent with something, something in the future, if you lie. And that Stat Dec is lie. Like this one. How can I sign when I believe it's wrong? Just because I need, and he came to take his files. You told him, 'Sign here, I'll give you his file'. Same thing with me. 'Sign here, I give you your money'. Is that what you should do? Is that what you should do? V.2 I won't need the files anyway. V.1 No. V.2 … V.1 No. Without him signing that you would not get the file. And me, without me signing and stamping and, everywhere, you will not give me my money. That's not fair, Vince. I shouldn't be begging, begging you for my money. V.2 No. V.1 I shouldn't be, I shouldn't be asking you and, and when you, when you, when you agreed to act for me and collect the money, I, I should have gone and collected the money. You went and collected the money on the basis, I, I told you, Vince, it doesn't matter if you collect it. Like my agent, it's, you are a solicitor. Go and collect it. V.2 I'm not denying you the money. Look - - - V.1 If you're not denying the money what holds you from, from giving me the money until I sign this? V.2 First of all, when, when, when you collect the other money then we make an adjustment. V.1 When? In 10 years, 50 years. V.2 Well, it's up to you, isn't it? V.1 Well, what if I cannot collect from anyone? If, what somebody, if somebody abscond? V.2 Well, have, have you done, have you done - - - V.1 Yes, yes. You want to exhaust everything, you want me to exhaust every possible avenue. Some of them are, are, are bottomless. V.2 Well, well, Michael Ayoub is not … V.1 It, it, everybody is bottomless in that regard. V.2 Well Michael Ayoub is not - - - V.1 I, I, I tell you, it's bottomless. V.2 Yeah … V.1 Go, collect it from him and, and give me 10 per cent, even, not, not 50 per cent. V.2 Well, why did you agree to sign the thing then? V.1 But, but, by the way, I don't want to argue about that thing. That thing has nothing to do, is not conditional upon me collecting everything. You read it and you get advice about it. I, I don't like to make noise about the money. Because I know you are not planning to kick to bucket very soon, you know. V.2 Mmm. V.1 So I'll get it. You are here, I'm there. And you are not bankrupt, man. I wait. But it's not fair for you to tell, to delay and delay and delay. V.2 Listen to this. You know, we've been friends for a long time and we work, work every day, so what exactly is it that you want to change and I'll, I'll give you the money and forget about it O.K. I'll give you the money to, you, you know. I'll give you the money, I'm telling you, otherwise you wouldn't be here. V.1 And you, why you think I came here? V.2 Well, that's right. Then, then, as men, let's, let's try to work this out. Tell me what you want changed and we change it and, yea, I give you the money. Come on. V.1 If you accept my changes you'll give me the money? V.2 Well, depends what they are. I will not accept this thing that I, I - - - V.1 But that's my statement. But - - - V.2 - - - I'm … V.1 - - - that is my statement. V.2 But that is not, that is not true. It is not true. V.1 Oh. V.2 It's not true. V.1 You know, what type of statement, what type of this, you ask me to give - - - V.2 Because, because … you know, you, you want to put a rope around my neck. V.1 So don't use the statement then. Put it in the bin. If I give you a statement which it, which does not advance your interest, just discard it in the bin. Has to be a statement, has to be suitable to me, has to advance my interest and has to be, you know. V.2 Never mind about, never mind about my interest. V.1 Then, then leave … V.2 And the fact that I'm telling the truth. V.1 Then if I were you, I say, Here is your money, don't sign anything. V.2 She, well, she is, she is the one, she is the one who is looking for trouble. She is the one to try to embarrass me. She is the one that really. And all this thing has come out after, after Gail McPherson has started this action against her. There was nothing mentioned before. Nothing. V.1 The same thing applies to you and everybody. People, when the - - - V.2 Yeah, when, when, then, you know, after 6 months after the event she complains about sexual harassment. V.1 Well, look, people are entitled to, to soldier on, I, I'm not - - - V.2 Yeah, particularly somebody like her. She would be, she would be at the police in, in no time at all, particularly in a matter like that. And she continues to come here even after, after these, this, so called alleged events. Why would she come here if that's the, if that's the case? You know. She, she's come here when, when Gail McPherson was here. And even, she, she didn't even know that Gail McPherson was here. She used to come and, to come here to, to deliver papers and so forth. V.1 Yeah, to serve you with documents because she doesn't have money - - - V.2 No, that was - - - V.2 - - - even before, you know, in, in, in August and then, whatever. And then she's got this idea of come, come here with her companion or something. I know, I know her game, I know her game, I know her game. I know her game. I know her game. She's after money. That's all she's after. V.1 That applies to everybody. That applies to everybody, but not at any cost, at any expense, at any lying or at anything. We are all working for money, you know. But that doesn't mean that, you know, like me. When I work for those clients I was expecting money. But I, no, I have to be … V.2 Well, yeah … Muhammad, you know, all this time that you acted for you know. You use the resources of the, of the business here, you know. And I, I'm not even recovering the money for - - - V.1 Vince … V.2 - - - for the photocopying of papers. V.1 All right. All right. Well. You mean, it was bad business decision or, I mean - - - V.2 Well, I - - - V.1 - - - look, look that - - - V.2 - - - I haven't seen any money except … V.1 No, no. That's the nature - - - V.2 Only … V.1 Look, trouble. Valvano was not my client. You wanted to make big money from her. And you even want me to make money. V.2 Look, at the time I thought it was a good idea. Right. It turned out to be a very bad investment. V.1 That is life. When you act for a client - - - V.2 Now the thing is, it's not as if the buyers were knocking down her door. Well, I said to her, Go and sell, sell it to somebody else. I, I don't want to buy this. And even, even, even 2 weeks after she signed I said, it will be, if you give me the money back it will, you know, I can withdraw out of it. And later, you know, I, I offered it to her. If you give me the money that I, I gave you, you can have it all. And even now, if she gives me, me the money, you, you know, you can have it all. I don't want the property. I, I put it to her several times. You give me the money that I put into it and then you, you know - - - V.1 Yeah, all right, what … V.2 - - - I don't want to have a bar of it … V.1 And you think when you were paying her money, every bits and pieces, dribs and drabs and you think you were paying the Commonwealth Bank. She would have spent it the next day or something. How on earth would she give you the money back? You knew it was - - - V.2 But because I was hoping that the property would pick up in value eventually when it was sold I would get the money back. Then there was the idea of signing a, a document in 2008, so that, then she would have 5 years. I could not exercise the option for 5 years. And in the hoping in the, the meantime the property will pick up in value. And this thing about paying this debts of her that she would bring from time to time, that came later, when I was already, already committed myself in paying a, a mortgage arrears and so forth. I couldn't pull out by that time. It was either go and, and try to salvage. And then the bigger problem came when the, she, she was allowed to redraw. And you know that. And then the equity, there was no equity left. Come on, please. I, you know what the story is. I'm a victim, I'm a victim, I'm a victim (crying) … V.1 … Oh, my God, oh, my God, oh, my God. V.2 Anyway, you don't want to sign that today, just think about it and we'll see each other maybe - - - V.1 O.K. O.K., then. V.2 Sorry? V.1 O.K. I have, I got the idea. I got the idea. O.K. See you. I am going. V.2 Muhammad, before you go - - - V.1 Yes. Yes. I'm, before I go what? V.2 You prepare a statement, all right. But you know it can, it looks very bad for me, you know. V.1 Yeah. V.2 And I'm telling you, I'm a victim here. It looks very bad. V.1 What is it that looks very bad? V.2 But I, I, I, I risk going to gaol. I, I risk being struck off. Look, that's the, the risk there. V.1 And that puts more pressure on my mind. On me. V.2 I haven't done anything wrong. Honestly. This is not a game anymore. This, this is just not a game anymore. Juries can get things wrong, you know. V.1 What, what does that even mean? V.2 Well, innocent people end up in gaol. That's, that's what it means. V.1 So, what, think about it or what? Me thinking about it or not to, what to - - - V.2 … V.1 - - - to, to tell the police, to tell the police, Go away, or what? V.2 Well, yeah, I would appreciate that, yeah. V.1 What if, if they call me what should I say? Let's assume they call me tonight, tomorrow, I, what should I say? I'm overseas or what? V.2 That's why I want you to sign this. V.1 I tell, I tell them leave me alone or - - - V.2 Yeah. V.1 But they will not leave me alone. V.2 Well, they will leave you alone if you sign this. V.1 If I sign this you think you think they leave me alone. V.2 Of course. Of course they will. V.1 I, I just cannot, I just find it difficult. Not about the untruthness in it. But after you, you, you know, you threaten and you do and you want to slice us and you, and then I, I - - - V.2 You'll not have any problem with me anymore … V.1 If, you not, you mean - - - V.2 You'll not have any problem at all. V.1 - - - you will not slice me … V.2 Not at all. I will not, I will not slice you anyway. No, no problem. It's O.K. you say things in anger, you know, it's, you say things in anger, that's all. Like, you say to your son, you know, I'm going to kill you … kill your son because you say you're going to kill your son. Just things are said at the spur of the moment. V.1 Mmm. V.2 When you cool down then you, you don't, even forget about it … sign this. V.1 What do you mean sign it man? V.2 Sign this … sign this … sign this, I'll give you, I'll give you some money and sign this, we'll forget about all our differences. Or I'll take it home and - - - V.1 You want to take it home. V.2 Yeah. V.1 Take it home, I know what is in it anyway. Take it home. V.2 … V.1 I will see. O.K. See you. V.2 See you. V.1 See you. I am out, see you Vince. (TRAFFIC NOISES) V. Pull into the Shell Service station, O.K. … shut the door … V.1 I hope, I hope … will help you. V. That, that device may still be recording so - - - V.1 … V. - - - what we'll do is we'll just go and - - - V.1 … V. - - - take you back to where I can see the, the … (BEEPING NOISE) This isn't on, you can tell by … (TRAFFIC NOISES, RADIO) V. … LISTENING DEVICE CONCLUDED"
14. Mr Stanizzo was asked to compare his evidence given in his statement for these proceedings about what Mr Badarne had told him, with how he came to formulate what he put in the statutory declaration given to Mr Badarne to sign: "Q. Mr Stanizzo, you gave some evidence earlier today prior to the short adjournment that the statutory declaration that you prepared was based upon material that Mr Badarne had told you, do you recall that? A. Yes. Q. And I am suggesting to you that that was not the truth, what do you say about that? A. The truth about what? Q. Your statement earlier today that the statutory declaration was prepared on material that Mr Badarne had told you was not the truth? A. Yes. Q. Do you agree with that or do you disagree with that? A. Sorry, I don't understand the question. WATERSTREET: Yes, I think it was ambiguous, in fairness. WITNESS: Yes. NEWTON Q. This morning you gave evidence? A. Yes. Q. That you had prepared the statutory declaration? A. Yes. Q. Based on things that Mr Badarne had told you in conversations in the days preceding when you prepared the statutory declaration? A. Yes. Q. Do you recall that evidence? A. Yes. Q. Now I am suggesting to you that that evidence was false, what do you say to that? A. What evidence was false? My evidence? Q. Yes? A. No, absolutely not. Q. Badarne did not tell you Mr Badarne did not tell you anything I withdraw that. Mr Badarne did not say to you anything which reflected what you put into the statutory declaration? A. I disagree."
15. That answer is difficult to accept. The whole tenor of the conversation is that Mr Badarne was insisting that the statutory declaration did not accord with anything seen or heard by him.
16. Mr Stanizzo insisted that he had no idea when he had the conversation with Mr Badarne that Ms Valvano had complained to the police about him in October the previous year. He gave this evidence: "Q. Let's just analyse that last statement. You had no idea that someone had complained to the police, is that your evidence? At the time of this conversation you had no idea that someone had complained to the police? A. From memory I received a telephone conversation form Mr Murdock in July, but he said that he received a complaint. He didn't give any specifics at all because when I cut him, when I cut into the conversation and said, 'I received a complaint from Ms Valvano and do you want to come to Wollongong Police Station' and he said, you know, 'What for?' And I said, 'Look, she's trying to make waves because there's litigation in the Supreme Court which is listed for hearing at the end of November, about my refusal to withdraw a caveat and she is trying to exercise some pressure both on me and Ms Macpherson to withdraw the caveat.' And Murdock said, 'That's what I want to hear,' and the phone call terminated. Q. Mr Stanizzo, the whole conversation you had with Mr Badarne on 4 November 2010 was about the fact that the police had asked him to make a statement, do you agree with that? A. Yes. But this Q. And so you knew that the police were investigating allegations of sexual assault against that Ms Valvano had made to them at the time of this conversation, didn't you? A. Well, I I only became aware on 2 and 3 November, not in October. Q. You knew that at the time of this conversation you knew that she had made a complaint to police in October 2009? A. False."
17. In the context of the content of the recorded conversation, Mr Stanizzo was asked whether Ms Valvano had ever come to his house. His evidence in these proceedings suggested that he insisted that she had not. He was then cross-examined about this: "Q. Mr Stanizzo, just dealing with the same page of the Court book and court book 1779, go to the bottom of it and Mr Badarne, voice 1, seemed to ask, 'Why allow her why bring her to your home?' And then you say, 'She came to my home to bring some documents for me.' And Mr Badarne said, 'Bloody hell, what? How would she know your address?' And you said, 'Well I don't know how she knows my address.' Then Mr Badarne said, 'And you are even you are not listed on the thing, on the phone number, well how could she know your,' 'Well I don't know how she found out my address, you know.' Mr Badarne says. And you say, 'She's got girlfriends or she lives in the area for a long time. It was listed years before.' Do you see that? A. Mm. Q. Now you accept in that statement you are acknowledging that Ms Valvano had been to your house, weren't you? A. Well, I you know, I said something. Sometimes you say make admissions without actually reflecting on what you are saying, but vaguely I remember that there was a strata plan discussed before we entered into this deed that the property was about to be strataed and so forth, which sort of attracted me to, you know, going ahead in it. And I asked her whether she had any documents and she dropped it in at my address. This would have been around about early June 2008, but I got only very vague recollections about that. But I remember that I got some strata plan documents about the house otherwise I would never have entered into the Q. No, but you agree that she came to your house? A. Well, she she came there and handed me the documents, from my recollections, outside. She knocked on the door, gave me the documents and left. Q. If you said somewhere else that she hadn't come to your house, the that wouldn't be true, would it? A. Well sometimes you have recollections of things, you know, sometimes you don't have recollections of things. HIS HONOUR Q. I am not quite following. Did she come to you house or not? A. Well, I've got very vague recollection that I was asking for some documents about the strata plan and before we entered into these deeds of co ownership. And she might have come and delivered this documents from my place sometime in June. May or June of that year, but very vaguely. Very vague, because otherwise I would not have entered into the transaction because there was no potential. I saw the potential if the property would be strataed into two separate properties. Q. I don't think we're so much concerned about the substance of the agreement that you were contemplating entering so much as the question about whether or not for whatever reason she had come to your premises? And Mr Newton is exploring the question of whether or not you might have said something inconsistent with that possibility on a different occasion, do you understand? A. Yes. … NEWTON Q. If you've said in some other document that she never came to your home that wouldn't be true, would it? A. Well, as I said, I have different recollections sometimes of different things. What I remember one day may not be what I remember on another day. I mean HIS HONOUR Q. I don't think you were so much asked about whether you have different recollections of different things so much as whether you have different recollections of the same thing? A. Well, after Q. In fairness, that's what's being put to you? A. After I read these police statements from the police brief, you know obviously it's whether she had come into the house, not delivering something to my place. And I don't even remember whether they were delivered to me personally or whether they were put in the mail box."
18. Mr Newton then suggested to Mr Stanizzo that he was well aware by the time of his conversation with Mr Badarne on 4 November 2010 that Ms Valvano had made the complaints against him: "NEWTON: You knew at the time you were having this conversation with Mr Badarne that there was an allegation that you had sexually assaulted Ms Fregnan at your house, you knew that didn't you? A. No, where would I get that from? Q. Because you'd been told it? A. By whom? Q. You discussed that you'd been told it by Mr Badarne? A. Yes. I mean where is that? Q. I am asking you. You have got a memory, do you not? A. Yes, I have a memory but I don't remember that he gave particulars about any particular details about the allegations. Q. What I am suggesting to you is that you knew at the time that there were allegations that you had sexually assaulted Ms Valvano. One in your office, you agree with that? A. Well, he said that certain things happens. That's what he was saying to me the day before, and on the second. There's the second and the third. He didn't give any particulars. Q. Can I suggest this, at the time of this conversation, you knew that Ms Valvano had made certain sexual allegations to the police and other authorities? A. On this day, the 4th? Q. Yes. Had made certain sexual allegations to the police and other authorities both in relation to alleged events that had taken place in your office and outside the office. A. False."
19. In my view, that answer is totally incapable of acceptance. Mr Stanizzo said that the only time he found out about complaints to the police was on either 2 or 3 November 2010. I sought to clarify that as follows: "HIS HONOUR: Let me just be clear about this. And someone will tell me I'm wrong. I rather understood Mr Stanizzo's last answer to me that either on the 2nd or 3rd or one or both he learned about the police complaint by Ms Valvano. Did I misunderstand that? NEWTON: That's as I understood his answer."
20. No-one dissented.
21. Mr Stanizzo was asked about the statutory declaration that he had prepared for Mr Badarne to sign: "Q. I will put it another way then. That is a statutory declaration that you prepared? A. Yes, I never said that I did not. Q. If you go to paragraph 2, you prepared a document in which you were expecting Mr Badarne to sign that, 'Since these proceedings commenced in October 2009, I have become aware that Valvano has made certain sexual allegations to the police and other authorities against Stanizzo, both in relation to alleged events that have allegedly taken place in his office and outside'? A. Yes, I can see that. I can see that there, yes. Q. So you knew, did you not, at the time of the conversation, firstly, that Ms Valvano had made allegations to the police, do you agree with that? A. Yes. Q. You knew that she'd made allegations to other authorities? A. The Legal Service Commissioner, yes. Q. You knew that the allegations related to sexual assault in your office? A. Not sexual assault, I Q. Sexual allegations then? A. Well, sexual allegations, yeah. Q. In your office? A. Allegedly happened in my office and outside, yes."
22. At about this point in the proceedings, Mr Waterstreet objected upon the basis that the transcript of the recorded conversation suffered from the defect that it appeared that Mr Badarne was in effect directing the conversation to suit an ulterior purpose. The following exchange should be noted: "WATERSTREET: Well, no, it's an objection that has no probative values. HIS HONOUR: No, no, it doesn't have no probative value, it's a submission you will make in due course that some or all parts of this conversation have to [be] viewed in the knowledge and the context that Mr Badarne knew it was being recorded and Mr Stanizzo didn't. I accept that. That doesn't make the question unfair. It may have an effect upon its force in the proceedings, but it doesn't make it unfair and it certainly doesn't make it objectionable."
23. Mr Stanizzo then insisted in his evidence that the draft statutory declaration he was presenting to Mr Badarne was in fact the truth: "WITNESS: And what was in that document I prepared was the truth. Mr Badarne was trying to convince you and this Court otherwise and I reject his attempts, but all this will come out in the final wash."
24. In this context, I felt that it was necessary to make sure that Mr Stanizzo understood and appreciated the thrust of what was being, or what ultimately might be, suggested to him about this material: "HIS HONOUR: No, no, I understand that. But if it was being suggested to you at some… say again. If someone were later in these proceedings to submit that what you were effectively saying in response to Mr Badarne is, 'It's all right if you tell a lie, nobody is going to know except you and me,' what would be your response to a submission like that? A. Well, that he was trying to well what he says to me is actually a lie in itself, because he knows that it's a lie. He is actually trying to trap me into something. He knows that he's got a recorder on him and when he says about who's going to save me, save him from what? Q. Well presumably from A. Making false statements. Q. Yes? A. Well the thing is if he would make the statement, this statement was the truth. Q. Anyway, I just thought A. I mean, it's just his devious way of talking. What I was putting to him, your Honour, and I swear to it on the soul of my children, and my father unfortunately, that what I was putting to him was the solemn truth of what I believed was the truth and it was the truth. What Mr Badarne was saying to me was convoluted conversation about whether he was concerned about who was going to save him. Just an act. Just an act on his part. I am sorry, but that's the way it was. It was just an act. And that will come out in the final wash of these proceedings, that will come out. Q. I just wanted to be clear that you'd had an opportunity to give your version of a possible proposition that might be put against you that you were actually saying it doesn't matter if you lie A. No, I don't accept Q. nobody is going to know? A. No, I don't accept that, your Honour. Q. You've explained that? A. Well, I I I say it is that what was there was the truth and it was the truth. I was not I would never get anybody to sign anything that was other than the truth. Now I would have preferred that he would have signed the statements being the truth because I did not want myself to be found in the situation in which I eventually did find myself."
25. Mr Stanizzo also came to clarify the question of when he knew of Ms Valvano's complaints to the police: "Q. But we must be at cross purposes, or you must be. I understand you to say you knew about the complaint to the police by 2 or 3 November? A. Yeah. Q. This conversation is on the 4th, so you must have known on the 4th as well, is that right? A. Badarne rang me on 2 November, 3 November, yes. Q. And mentioned the complaint to the police? A. Mentioned the complaint, Badarne did, yes, yes. Q. So that when you were talking on the 4th in this recorded conversation, you were aware that Ms Valvano had made a complaint to the police? A. Yes. Q. Okay? A. Of course, otherwise what was the purpose of that document, the statutory declaration?" [Emphasis added]
26. Shortly following this exchange, I raised the issue of whether Mr Stanizzo was attempting to solicit Mr Badarne's assistance with a promise of paying him money: "Q. Mr Stanizzo, if it is suggested to you that a fair reading of the transcript at the bottom of [court book] 1808 was that you were offering Mr Badarne money and the prospect that you'd forget about all of your differences with him if he signed the stat dec that you prepared, what is your response to that? A. No, I was not offering him moneys. He I thought he was that he was doing all this because of that he wanted is a ploy for me to give him some money that he was being pestering me for months before then in the matter of Williams."
27. However, the terms of the document presented to Mr Badarne included the following: "If Stanizzo had behaved inappropriately, I would have heard it, because as I have said, our respective rooms are not sound proof and every word is audible. Moreover, she did not make any complaints to me or anyone else, for that matter, until October 2009. If Stanizzo had acted inappropriately, she could have protested then and there to me and the police. She did not."
28. The suggestion that Mr Badarne was somehow effecting a ploy to extract money from Mr Stanizzo, or that the recorded conversation indicates that, is nothing short of completely ludicrous. Mr Stanizzo wanted Mr Badarne to provide a statement for use by him in repelling Ms Valvano's claim that she was assaulted in his office. The document is full of self-serving material in the nature of a submission or pleading, not the recollections of a disinterested witness. It is unsurprising that Mr Stanizzo's barrister described it as "dynamite" or that Judge Berman felt the need to repeat that description in his judgment on Mr Stanizzo's application to withdraw his pleas.
29. Mr Stanizzo's evidence in cross-examination on the recorded conversation with Mr Badarne on 4 November 2010 and the closely related issue of how the document that he wanted Mr Badarne to sign came into existence is both unbelievable and I do not believe it. Mr Stanizzo regularly feigned an inability to understand questions he was being asked. He constantly refused to direct his attention to the questions that he perceived would create difficulties for him if answered responsively. He even disagreed with many propositions that were put to him in circumstances where it was obvious that the cross-examiner was relying upon material in a document of which Mr Stanizzo was the author.
30. I regret to say that I am simply unable to believe Mr Stanizzo on any disputed issue of fact upon which he is neither corroborated by another witness nor a document of which he is not the author. The significance of this is that I reject entirely Mr Stanizzo's denials of Ms Valvano's allegations of sexual assault. Only a short time before and on the day he was arrested, Mr Stanizzo was attempting improperly to influence or induce Mr Badarne to sign up to a false account of what happened on 25 May 2009. He brushed aside Mr Badarne's protestations that he could not permit himself to agree to such a course. Mr Stanizzo even appears to go as far as to imply that Mr Badarne's recovery of his entitlement to shared legal costs will be dependent upon him doing so. Nowhere in his evidence or his submissions has Mr Stanizzo been able to offer any benign interpretation of his recorded conversation with Mr Badarne shortly before his arrest.
31. However, my rejection of Mr Stanizzo's evidence concerning Ms Valvano's allegations of sexual assault by him needs to be properly understood. That rejection, standing alone, is neither determinative of his claim for damages for malicious prosecution against Ms Valvano nor of her claim for damages against him for assault. For example, in the curious procedural way in which this particular case evolved, Mr Stanizzo has to establish that Ms Valvano's allegations are false, but rejection of his evidence about the allegations does not mean that his claim for malicious prosecution fails at the threshold. Mr Stanizzo could establish, as a matter of theory, that Ms Valvano's allegations were false even absent his testimony to support that contention. Clearly enough, Mr Stanizzo bears the onus of proving that Ms Valvano made allegations of criminal conduct when she knew them to be untrue.
32. In the normal or expected course of events, a pursuer in the position of Mr Stanizzo would not have the benefit of an opportunity to cross-examine the putative prosecutor as part of the evidence in his case. That is what occurred in his claims against both the State and Mr Badarne. In his claim against Ms Valvano, however, she is the plaintiff and was exposed to cross-examination on issues going both to her claim for damages and her defence of Mr Stanizzo's cross-claim. Accordingly, Mr Stanizzo is able to draw upon Ms Valvano's evidence in support of his cross-claim. In the events that have occurred, having regard to my view of Mr Stanizzo's evidence, Ms Valvano's account of the alleged sexual assault is both critical to her claim for damages, as it would always have been, and now critical also to the determination of his cross-claim.
33. It seems to me that three possibilities exist. First, if Ms Valvano is believed by me, or she otherwise establishes that she was sexually assaulted by Mr Stanizzo, she would succeed in her claim for damages, subject to the proof of loss, and Mr Stanizzo would fail on his cross-claim: a finding that Ms Valvano was telling the truth would be inconsistent with Mr Stanizzo's claim that she instituted or maintained proceedings against him that she knew to be not based on fact. Secondly, if it were not possible to say that Ms Valvano had satisfied me that she had been sexually assaulted, in the sense that she failed to discharge her onus of proof, her claim for damages would fail but Mr Stanizzo's case would not be assisted by that result: his cross-claim would not be advanced by my inability to say positively that Ms Valvano was lying. Thirdly, if Ms Valvano were disbelieved by me and I found that her allegations were false, her claim for damages would fail but Mr Stanizzo would be entitled to rely upon that finding in his cross-claim in aid of a submission that she was indeed a prosecutor in the sense that he alleges.
34. In my opinion, Ms Valvano's accounts of what happened to her on 19 September 2008 and 25 May 2009 are true. In forming that view I consider that I must be satisfied to the standard required by s 140 of the Evidence Act 1995. That section provides as follows: Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged.
35. The matters alleged by Ms Valvano are criminal acts. The fact that Mr Stanizzo is not responding to criminal charges does not detract from the fact that the allegations against him are of a most serious kind. I am comfortably satisfied that Ms Valvano is telling the truth for the following reasons.
36. Significantly in my opinion, Ms Valvano gives a detailed and credible account of what she says occurred on 19 September 2008. She describes Mr Stanizzo's house in detail, including the garage when she arrived, the fact that there is more than one level, the piano she played, the furniture and the general layout, including a colourful description to his legal books and the remarkable and somewhat extraordinary and enigmatic reference to a cement mixer.
37. She then describes what she says happened to her. Criticisms directed to whether she said Mr Stanizzo was naked or half-naked seem to me to be of very little significance. She provided intimate details of his anatomy, a matter that, if incorrect, would have been fatal to her account without more. Her description of the whole sexual assault, and what could be described as the awkward clumsiness of what happened, is consistent with truthful understatement rather than malicious falsity. Without descending into the vernacular, it is difficult to see how an account of this nature, replete with unnecessary and collateral details, could easily be invented. Nothing arising from Ms Valvano's cross-examination exposed any obvious flaw in her recollections or descriptions. She was not confronted with diagrams or photographs that made her account suspect or doubtful.
38. Moreover, Mr Stanizzo's submission that Ms Valvano's descriptions of the layout of Mr Stanizzo's house "could easily have come from" what she had been told about it by Mr Badarne, is nothing more than speculation. I am satisfied that any such source of information would not have revealed the presence of a cement mixer and that Ms Valvano's description of that item being present is based upon her own observation.
39. It is true there was no witness to corroborate her account on 19 September 2008. That is unremarkable in the circumstances. A corroborative witness would have supported Ms Valvano's account but the absence of such a witness does not make it less believable.
40. Mr Stanizzo's general submissions proceed on an assumption that the Bluestone recordings prove that Ms Valvano was lying. That is based upon the proposition that her evidence about the receipt of the cheque is so inexorably tied to the events at Mr Stanizzo's house that rejection of one part of the evidence necessarily leads to rejection of the rest.
41. Having had the benefit of observing Ms Valvano both in court generally and whilst giving evidence in particular, I think that it is more likely that she is mistaken about when she received the cheque. Apart from the possibility that she is mistaken, there is nothing arising from the fact that she did not receive the cheque at the house that fundamentally contradicts her description of the assault taking place there as she describes. I consider that it is likely that Ms Valvano has become confused about her timing, but is telling the truth about the substance of the allegations. Even in evidence in this Court, Ms Valvano has never backed away from her allegations, which clearly continue to cause her a great deal of emotion.
42. I do not accept that Ms Valvano has given competing versions of the 19 September 2008 incident that are "radically different". There are some matters of detail that vary from time to time in the accounts that she has given. I do not accept that the difference between naked and half-naked is significant in the context of the event that Ms Valvano describes.
43. Mr Stanizzo maintains that the 25 May 2009 incident is also wholly uncorroborated. That is not entirely accurate. It is true that the actual sexual assault alleged was not observed by anyone. However, Mr Badarne's statements indicate that he could hear what was occurring in Mr Stanizzo's office and also observed Ms Valvano when she emerged from it.
44. Mr Stanizzo relies upon the fact that neither Ms Valvano nor Mr Badarne reported these incidents to the police for some time as being of some particular significance. With respect to Ms Valvano, belated reporting of sexual assault is a matter of importance, but is not necessarily decisive of the issue of whether a late complaint is a fabrication. It is something to take into account in all of the circumstances. Moreover, Ms Valvano has repeatedly asserted that Mr Stanizzo threatened her that if she said anything he would fit her with concrete legs. Having regard to my observation of Mr Stanizzo in the witness box, I consider that he is a very intimidating personality. He refused to be silent on a number of occasions and spoke over me and counsel when it suited him. He showed no apparent respect for a contrary or alternative point of view. He often spoke loudly. I accept that Ms Valvano was disinclined to do anything to upset Mr Stanizzo, including reporting her complaints of sexual assault, for fear of the reaction that it might provoke.
45. Ms Valvano and Mr Stanizzo were tied together in their commercial dealings and ultimately their commercial dispute. It does not seem to me to be at all remarkable that Ms Valvano did not mention sexual assault in her complaints to the Legal Services Commissioner about Mr Stanizzo's conduct as a solicitor, far less that she failed to refer to it in the proceedings before Slattery J. If anything, the opposite would have been remarkable.
46. Nor does Mr Badarne's failure to report the matter to the police himself appear to me to be surprising. Mr Badarne was not an eye witness to what occurred in Mr Stanizzo's office. His evidence was contextual, and he was not in any position to make a report of something that he did not actually see for himself. His later evidence to the police is consistent with that limitation.
47. Mr Stanizzo has also made submissions in these proceedings that it would be "unthinkable" that Mr Stanizzo would do anything improper in Mr Badarne's presence as they were "enemies" and Mr Stanizzo would not wish to give Mr Badarne the opportunity to blackmail him. The text of their 4 November 2010 meeting, however, clearly reveals that Mr Stanizzo was seeking Mr Badarne's assistance to defend Ms Valvano's allegations about what happened in the office on 25 May 2009. It seems far less likely that Mr Stanizzo would have asked Mr Badarne for a statement to assist him with the police investigation if their relationship had descended into enmity as he suggests.

Conclusion

1. In my opinion, Ms Valvano was assaulted by Mr Stanizzo on the two occasions alleged by her. She made complaints to the police about these incidents. She was entitled to do so. She did not in these circumstances become a prosecutor in the sense of a complainant furnishing a false account to the police which could not otherwise be verified that resulted in Mr Stanizzo's criminal prosecution. She did not therefore institute or maintain the proceedings in any relevant sense. I reject Mr Stanizzo's submission that malice should be inferred from the fact that the allegations were false.
2. Ms Valvano is entitled to judgment against Mr Stanizzo on her claim. Mr Stanizzo's cross-claim for malicious prosecution should be dismissed with costs.

Ms Valvano's damages

1. On 4 June 2019, I permitted Ms Valvano to rely upon four medical reports obtained by her from Dr Jonathan Phillips. They were marked as exhibits 55 to 58 respectively, and are to be found in volume three of the joint court book.
2. It is important to observe at this point that Ms Valvano did not give clear or detailed evidence of the matters that are dealt with in Dr Phillips' reports. But for the history contained in them, there is no evidence relating Ms Valvano's psychiatric or psychological condition to the events that she complains of on 19 September 2008 or 25 May 2009. In that context I said the following things in my brief reasons for judgment on 4 June 2019: "By way of general analysis, [all of the reports] deal with what I will compendiously describe as Dr Phillips' opinions about Ms Fregnan's psychological or psychiatric condition. It is inappropriate for present purposes to express any opinion about the extent to which, if at all, they directly relate any opinion about that condition to the matters that give rise to the proceedings in which they are tendered. Accordingly, to the extent that there may be some evidentiary deficiencies, those are matters upon which submissions can in due course be made. Counsel for Mr Stanizzo also objects to the tender of these reports upon the basis that they weren't served in accordance with the rules or in a cognate sense particularised in a document required to be filed indicating the type of documents upon which a plaintiff such as Ms Fregnan intended or proposed to rely. It seems to me in the circumstances of the present case that Ms Fregnan should be given some concessions in relation to the presentation of her case having regard to the fact that she is now and has effectively for the whole of these proceedings before me been unrepresented. Moreover, these reports, unlike many documents that have been tendered by parties in these proceedings, managed to find their way at an early stage into the joint court book. It seems to me to be a fair inference, if not something rising to the level of comfortable satisfaction, that Ms Fregnan proposed to rely upon these reports and that anybody against whom they were expected to be tendered might have anticipated that fact."
3. Subject to questions of Ms Valvano's credit or credibility, however, Dr Phillips' reports are in for all purposes. Ms Valvano's recitation of her history to Dr Phillips in effect becomes evidence from her without limitation: s 66A of the Evidence Act 1995. That section provides as follows: 66A Exception: contemporaneous statements about a person's health etc The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.
4. Quite apart from s 66A, as a matter of procedural reality, the things that Ms Valvano told Dr Phillips were always in play in these proceedings. Dr Phillips became available to be cross-examined about his consultations with Ms Valvano and the history that he took from her. Ms Valvano had no training that assisted her to recognise the matters that she had to establish in order to prove that she suffered a loss arguably caused by Mr Stanizzo. It also seems entirely apparent that she anticipated that Dr Phillips' reports would be admitted into evidence and that all that she needed to say about her condition had been related to and recorded by him. Mr Stanizzo suffers no procedural prejudice if Ms Valvano's complaints to Dr Phillips are treated as evidence given in court by her.
5. Dr Phillips' first report is dated 7 November 2014. Despite Dr Phillips' concern, expressed in that report, that Ms Valvano was not a good historian, he managed to extract details of some complexity and length that are relevant to the assessment of the degree of Ms Valvano's psychiatric and psychological condition and the extent to which, if at all, it is related to or caused by the sexual assaults of which she complains. Once again, at the risk of over-burdening these reasons with too much material, it is essential, for the reasons I have just explained, to include a significant portion of that report as follows: "Special Comment. 5. Ms Fregnan proved not to be a good historian, despite being of probable high average intelligence. She became grossly over inclusive and found it hard to marshal information and convey matters of importance, particularly when she was anxious. The plaintiff brought copious documents with her, but had difficulties with their organisation. History provided by Ms Fregnan. 6. Ms Fregnan is a fifty three year old single woman who receives a Disability Support Pension. She has one son (thirty years), and three daughters (twenty eight, twenty four, eleven years). The first three children were from her first marriage, and her youngest child from another relationship. She left her second partner during the course of her last pregnancy. Her eleven year old child lives with her at Towradgi in the Illawarra. 7. The plaintiff said that she first received a sole parent pension and then a disability support pension in 2011. She had worked previously as a hairdresser, and had owned two salons in the course of her marriage. She has been studying real estate more recently. 8. Ms Fregnan wished to speak principally about a series of incidents involving her ex-solicitor (Vincent Stanizzo). Specifically: • She has taken legal action against Mr Stanizzo. • She was introduced to Mr Stanizzo by a real estate agent. She had been in a financially difficult position at the time. • She did not realise initially that she had met Mr Stanizzo at an earlier time. She later came to realise that she had met that person through her ex-husband when she was twenty one years old. 9. Ms Fregnan went on to provide additional information. Specifically • She was likely to lose her home at the time because of financial difficulties. She intended to sell the property. • She spoke with a real estate agent, and he recommended Mr Stanizzo to her. The real estate agent drove her to the office of Mr Stanizzo. • She said that Mr Stanizzo recognised her at their first meeting. He asked inter alia whether she was married. He told her that he was divorced. He impressed on her that he was single and unaccompanied. He suggested that they should go to lunch at the Portuguese club. • She agreed to join him for lunch. She said that Mr Stanizzo touched her repeatedly whilst at the club, and made it look as if she was his girlfriend. He talked about women throughout the lunch. She came to the conclusion that he was searching for a partner. She doubts that she realised at the time that he was 'hitting' on her. • She later returned to the office of the real estate agent. She signed a sales contract for her home, with a price of $899,000. She felt at the time that the price was too high. • She was concerned also about the connection with Mr Stanizzo. As she put it she was 'extremely uncomfortable'. • She recalled being told that she would not need to pay anything until the property was sold. 10. Ms Fregnan provided further information: • She said there was no interest in the property, presumably because of the high price. • She decided to seek another real estate group (First National Real Estate Domain). That organisation offered to buy the property for $550,000. She agreed to this arrangement, noting that she was 'desperate' for money. She recalled that the real estate agent wrote a cheque for $27,000, which she handed to Mr Stanizzo. • She noted also that Mr Stanizzo appeared uninterested in which real estate agent handled the sale. • The real estate agent was prepared to rent her home back to her. • There were further negotiations with the real estate agent regarding the sale. She noted that Mr Stanizzo, acting for her, made it difficult for that person to proceed with the purchase of the property. He decided not to proceed. • Mr Stanizzo did not want to return the deposit. The real estate agent made a complaint to the Law Society of New South Wales, seeking to have the deposit returned. The money was refunded eventually. • She then sought assistance from a third real estate agent (Bevans), with her home being put on the market at $699,000. An agreement was reached for a person to lease the property at $1,000/week. • She was advised by Mr Stanizzo not to proceed. It was then when Mr Stanizzo made an offer to buy the property for $480,000. He positioned the sale as being a 'business venture' on behalf of both of them. • It was a little later when Mr Stanizzo came back to her and told her that he could pay only '$240,000, for half of the property'. • She said she was virtually forced by Mr Stanizzo, at that time, to sign a number of documents. She did not know what she was doing, and only learnt subsequently that the documents included a deed, and an arrangement that if she failed mortgage repayments, he (Stanizzo) would take over the property. • She reiterated that she was 'desperate' at the time. She thought that she would be out on the street if she did not proceed with the sale. • It was a little later when Mr Stanizzo said that he could no longer meet the payment of $240,000. She recalled being given a cheque for $4,995 (for one month of repayment, or perhaps a second month as well). This was in order that she could meet the mortgage. She signed documents at the time. • She told Mr Stanizzo subsequently that she could not even pay bills linked with the property. He made the offer to pay the bills. She believes he got a 'stronghold' at the time. • She said that Mr Stanizzo put pressure on her to go on dates with him. She added that he would touch her on the shoulders when she attended his office. He asked her to massage his neck. He offered her alcohol. She felt increasingly 'helpless' in the situation. • Ms Fregnan said that Mr Stanizzo paid five monthly instalments, and he also paid home rates, electricity and the water bill. He made an offer to pay for her to study nursing. He wrote a cheque for $15,000 to support this. He also wrote a cheque for between $3,000 and $6,000 to a surveyor for division of the property. • She subsequently spoke with Mr Stanizzo about her large MasterCard bill. This was in the order of $16,700. He agreed to pay this, but his cheque was not honoured twice. • She added that she had signed multiple documents in relation to these matters. • She said that Mr Stanizzo forced her to take over his car (a Mitsubishi Lancer). She recalled him saying to her, you must take it. He claimed the car was worth $15,000. 11. Ms Fregnan said that she came to realise that she was being 'ripped off' by Mr Stanizzo at the time when he wrote her a cheque for $134,000. He deducted everything else from the original sum of $240,000. She provided additional information: • On 4 June 2009 she received a phone call from the mortgage lender. She was told that her mortgage then exceeded $600,000. • She felt unable to do anything about the situation. • She approached a fourth real estate agent (ParkTrent Pty Limited) and put the property back on the market. A person offered to purchase the property but did not do so because Mr Stanizzo had put a caveat on the property which prevented her from selling. • The potential buyer returned after the earlier agreement expired and said that he was still interested in the purchase of the front house on the property. Following discussion, Mr Stanizzo said he would remove the caveat but in specific conditions. • She went subsequently with the potential purchaser to her then new solicitors (Good Legal Lawyers). She was instructed that she was unable to sell because of the caveat. • She contacted Mr Stanizzo subsequently. He said that he sold his rights in the property to a person named as Ms G McPherson, and that Ms McPherson was going to take her to court. • She went to court unrepresented. She was questioned how Mr Stanizzo managed to sign his rights away. She thought the action had been to avoid legal fees. The Judge said that she needed the assistance of a barrister. This was obtained. • She also applied to the Supreme Court to have the caveat lifted. This was done. However, Ms McPherson applied for a second caveat at 5.00pm on that day. She was unable to proceed with the sale of the property. • She noted that by then the mortgage was in excess of $800,000. She could not manage to meet any form of repayment. She walked away from the property, literally with her clothes and the car which had been given to her. • She subsequently lived in a caravan park. 12. Ms Fregnan said that she was deeply traumatised by the complex proceedings described above. She noted that she was 'anxious … depressed'. She was awarded a Disability Support Pension at the time. Accusations against Mr Stanizzo. 13. Ms Fregnan said that she had faced threats at various times by Mr Stanizzo. She claimed that he said on at least two occasions, 'I will put you in the ocean with concrete legs'. He tried to have sex with her on numerous occasions. She said that he forced digital penetration on her whilst at his home on 19 September 2008. She added that there was a second assault in his office on 25 May 2009, again with digital penetration. 14. Ms Fregnan only reported these matters of sexual assault to police in either October or November 2009 because there were no witnesses. The matter was subsequently heard and Stanizzo agreed to two counts of indecent assault. He was later to appeal. She said there was a trial in July 2013. She noted that police dropped the case well into the hearing and failed to inform her of their action. She by then faced a very difficult and extended cross examination (Waterstreet). On recollection, she could not cope at the time, particularly she was not able to think with any clarity. 15. More specifically, Ms Fregnan said she was in 'zombie land' at the time. She recalled she suffered chest pain in the final days of the cross examination, and also a sense of 'electric shocks' passing through her brain. She was also troubled by severe flashbacks to matters linked with Mr Stanizzo. 16. The plaintiff said that she intends to sue Mr Stanizzo for personal damages. She said there is a court date organised for 16 March 2015. She noted also that there is a countersuit against her, to be heard at the same time. History of psychological symptoms. 17. Ms Fregnan said that she developed psychological symptoms from the time of her contact with Mr Stanizzo and particularly following the two episodes of sexual assault. Specifically: • She became depressed in situations where Mr Stanizzo bullied her, beginning in approximately 2008. She added to this by noting that he pushed her to undertake tasks which she did not wish (eg the signing of documents), and he threatened not to make payment of monies owed to her. She said Mr Stanizzo forced her to write various matters down prior signing various documents. On questioning Mr Stanizzo, he acted in an abusive manner. • She experienced an increasing sense of confusion, with a belief that she no longer could focus her mind. She came to the conclusion that Mr Stanizzo was trying to induce this state. • She suffered increasing feelings of tension, and noted that she intended to 'shut down' when she felt herself to be overloaded. • She also was aware of a constant sense of fear, believing that Mr Stanizzo was trying to get at her. She noted also that he had 'soldiers' working for him and she feared that she could be disabled. • She no longer saw herself as an attractive person. She thought she had become 'haggard … old'. • She lacked sex drive, and developed a fear of intimacy. • She had recurrent nightmares in which Stanizzo would threaten to stab her, or would lunge at her with a knife. • She slept poorly, noting that she experienced 'electric shocks' passing through her brain in the course of the night. • She came to believe that she was not able to mother her daughter in an adequate manner. She felt that the actions of Mr Stanizzo had taken away the 'tender years' with her daughter. • She became increasingly avoidant, preferring not to leave the relative shelter of her home. She lost friends as a consequence of this. • She became excessively vigilant, and began to jump at the sound of any unusual noise. • She became increasingly fearful for her own safety, and the safety of her children. • She lost trust in her world generally. • She had cognitive difficulties, including the loss of mental focus, problems with memory (particularly finding technical words), reduced attention span, difficulties thinking generally, but particularly when under stress. • She became slower at various tasks (including cognitive and physical tasks). • She was troubled by a fear that her body was breaking down. In relation to this she experienced high level fatigue. • She noted also that she developed black circles under her eyes, pain in her chest and she held also that pre-existing arthritis began to worsen. 18. Overall, the plaintiff felt that there had been a serious downturn in her health status in the period after she met Mr Stanizzo. 19. Ms Fregnan said that all above mentioned symptoms have worsened slowly with the passage of time. She does not believe that she will be able to again enjoy a satisfactory mental or physical health. Everyday life. 20. Ms Fregnan said that her life has now become disorganised. She added that she is unable to manage her housework in a satisfactory manner, and she fails to see that the house is dirty. She finds everything in her everyday life to be difficult. She finds also that social activities have become a problem. She noted that she struggles to even go on a dinner date. Other matters. 21. Ms Fregnan noted a number of medical problems over the years. She developed an ovarian cyst when twenty one years old, and this had to be removed. She has a relatively recent history of back pain with L4/5 pathology (thought associated with an old injury and with subsequent arthritis). There is involvement of her sciatic nerve as well. She has arthritis involving her fingers. She noted problems affecting other areas of her body (neck and upper back, hands, feet). 22. Additionally, Ms Fregnan noted that in 2007 she underwent a scar revision involving her neck. There were problems involving the surgeon (Zacharia) and she received monetary compensation. She was subsequently assessed by a second surgeon. Whilst undergoing an anaesthetic, she suffered a cardiac arrest, and numerous bursts of adrenaline were needed in her resuscitation. She said that following the incident she had been left with palpitations, and she lacked emotional reactivity. She added that she met Mr Stanizzo some months after the incident. 23. On the other hand, Ms Fregnan denied psychological problems at any time prior to meeting Mr Stanizzo. However, she reported two episodes of attempted sexual abuse during her formative years. The first occurred when she was approximately three years old. A neighbour lured her to his house with a lolly. He took her to a bedroom and touched her on the vagina. There was a second similar episode. She did not mention the matter to anyone until her mid-adult years. A further episode occurred when she was in Year 10 at high school. A boy (Wilcox) exposed himself and pushed the back of her head into his penis. She recalled washing herself in a compulsive manner after going home. She did not think that either episode had caused her longstanding problems. 24. The plaintiff thought of herself as previously having been a strong willed, determined but rather happy-go-lucky person. She was outward focused, and enjoyed the company of others. 25. Born in Wollongong, Ms Fregnan has two brothers and one sister (all younger than herself). She grew up in the parental household, her father working as a builder until he suffered a major work accident leading to fracture of his spine. She thought overall that her childhood had been somewhat lonely, adding that her parents seemed to be focused on themselves rather than the children. She noted also that she had to take considerable responsibility for the younger siblings. The family lived in relative poverty, and she remembers times when she was hungry. 26. Ms Fregnan attended three primary schools and Bulli High School until Year 10. She was taken out of school by her parents at that time. She noted that she had difficulties making connection with fellow pupils, and felt at times that she did not belong anywhere. She felt like her education was not up to standard. 27. After leaving high school in Year 10, she attended Wollongong College with the aim of completing her HSC. This did not occur. She then studied electronics prior to obtaining a job with Telecom. 28. Ms Fregnan has been involved in a number of unsatisfactory relationships. She grew up in a morally strict household and she remained a virgin until she was nineteen years old. Additionally, her father would not allow her to mix with young men unless they were of Italian background. 29. The first relationship had been with Guiseppe Sangarella-Valvano. She met him when nineteen years old, and remained with him over the next twenty years. He is the father of her three older children. He became abusive and violent in the course of the relationship. He made attempts to strangle her and made threats to kill her additionally. She made the decision to leave. 30. Ms Fregnan said her second relationship was with Tony Moschella. She spent one year with him. He is the father of her younger daughter. He tried to have her pregnancy aborted, but she ran away from the termination clinic. She contacted police, and an Apprehended Violence Order (AVO) was organised. She separated from her partner, but nevertheless allowed him access to her household at a later time in order that her daughter would have a male figure in her life. 31. There was a third relationship. This lasted six months. He was an alcoholic and the liaison broke down because of this. 32. Ms Fregnan entered a fourth relationship with Tony Stephenson, and spent three years with him. She said that he was bisexual and she caught him having sex with his closest male friend. The liaison did not continue. 33. The fifth relationship has been with a married man. She sees that person generally twice each fortnight. She has a sexual relationship with him, but this brings her no joy. 34. As mentioned already, Ms Fregnan holds that Mr Stanizzo tried to establish a relationship with her. This had never been her desire. 35. Currently, her youngest daughter lives with her. They enjoy a good relationship. She has regular contact with her older children who hold good jobs in the open workforce. 36. Ms Fregnan attends her general practitioner (Sen) on a needs basis. She has attended orthopaedic specialists in recent years as well. 37. She had attended a clinical psychologist (Widdup) in the past. One of her daughter's claimed that the grandfather was trying to molest her. She was upset by this and required several sessions of counselling. She attended a second psychologist (Griffin) at a later time. She noted also that she may have attended a psychologist more recently for medicolegal purposes. 38. Currently, Ms Fregnan is not taking psychotropic medication of any type, but self-medicates with herbal preparations, in the hope of reducing symptoms of depression and anxiety. Mental State Examination. 39. Ms Fregnan was not a good historian (as mentioned). She was generally disorganised, and she had particular difficulty in providing a history in its proper chronology. She tended to become over inclusive about matters of little relevance. Her intelligence is estimated to be above average, but she is not psychologically oriented in her manner of thinking. She understood the purpose of the consultation and was cooperative. The following points can be made: • She was moderately depressed, somewhat anxious, but not overly irritable at the time of interview. • Her affect was a little distant initially, but she warmed as time went on. Her affect was never incongruent. • She was focused in thought on the problems detailed above, rather to the exclusion of more general matters of life. She had no disorder of the rate or form of her thought processes. • She was not paranoid in attitude. She was not suffering delusions, hallucinations or other symptoms to suggest a psychotic disorder of mind. • Her cognition was adequate for the purposes of interview. … Opinion 47. The case of Ms Fregnan (now fifty three years old) is unusually complex. Whilst the plaintiff undoubtedly suffers currently from a major depressive disorder (single episode, chronic, moderate intensity, non-psychotic) DSM-5 296.223, the disorder is complicated significantly by the co-existence of anxiety spectrum symptoms and trauma based symptoms (a matter to which I will return). Additionally, the plaintiff's symptomatology which developed over a number of years will be demonstrated to be multi causal in origin, but with one specific and abiding stressor of particular note (to be addressed below). 48. It may be useful to consider Ms Fregnan's developmental pathway, this being the background to her current psychological problems. 49. Ms Fregnan grew up in less than ideal circumstances. She had been a child when her father suffered a severe work injury which left him unemployed. The family lived in relative poverty. On recollection, her father was a strict person and quite restrictive in relation to the plaintiff's social life. She twice suffered sexual abuse during her formative years (sexualised touching on two occasions by an elderly neighbour when she was approximately three years old, and attempts by a boy to involve her in oral sex during her mid-teenage years). On the other hand, the plaintiff did not give any history of any significant violence directed at her during her formative years, sexual abuse by her father, or abuse of alcohol and/or drugs within the family system. 50. On the information available to me, there is no clinical evidence of Ms Fregnan's developing any recognisable psychiatric disorder during her formative years. I believe it can be accepted that she had sufficient emotional fortitude to overcome the negative aspects of her early life. However, the plaintiff's innate psychological resilience would have been eroded to some extent, leaving her more vulnerable to stressors later in life. 51. Ms Fregnan had a number of unsatisfactory relationships, but her first relationship lasted for many years. There is no clinical evidence which suggests that the plaintiff was the prime reason for the break-up of the relationships. It appears more likely that the plaintiff's partners were cruel, unsupportive, lacked loyalty and at least one of them had a significant problem with alcohol. 52. Despite the various relationship problems, Ms Fregnan appears to have been an adequate mother, and to have successfully maintained a home and where possible to have been involved in a working life. Assuming this to be the case, the plaintiff again had sufficient emotional fortitude to cope with the ongoing stressors which occurred in her life. 53. Ms Fregnan's psychological decompensation only began at/around the time she became unwillingly involved with Mr Stanizzo, this being at a time when she was under intense financial pressure and unable to meet mortgage payments on her home. 54. I am relying solely on the history given by Ms Fregnan about the unusual pressures put upon her by Mr Stanizzo. This is not an entirely satisfactory situation, and I will be happy to consider information from other sources. However, the plaintiff advised that, from shortly after the initial meeting, Mr Stanizzo put her under intense pressure in a number of areas of her life, and with this pressure being a trigger which led to psychological decompensation with the development of her now chronic and pervasive mental health problems. However, it is to be underscored that there had been other stressors which added to and exacerbated her psychological problems (a matter to which I will return). 55. I have detailed Ms Fregnan's contact with Mr Stanizzo in the body of this report. On this history given to me, Mr Stanizzo moved very rapidly to try to build an intimate rather than professional relationship with the plaintiff. My understanding is that Mr Stanizzo was a solicitor and the usual professional ethics should have applied. 56. Ms Fregnan said that Mr Stanizzo determined at their first meeting her then single status. He began to touch her (without permission) and he invited her to lunch (where he treated her as if she was his intimate partner). In the period which followed, Mr Stanizzo advised a number of financial matters which she failed to understand, and which turned out to be disastrous from her point of view (leading ultimately to the loss of her home). The plaintiff said that she did not understand the recommendations made by Mr Stanizzo, but nevertheless went ahead with his directions, including the signing of various legal documents. 57. The plaintiff noted that concurrent with the various transactions, Mr Stanizzo pressed her to go on a date with him. He is said to have touched her in his office (without permission) and he asked her to massage his neck. Mr Stanizzo pushed her to begin a sexual relationship with him. She refused his sexual advances on numerous occasions. The plaintiff went on to note that Mr Stanizzo assaulted her sexually at his home on 19 September 2008, forcing digital penetration of her vagina at the time. The plaintiff noted a second sexual assault on 25 May 2009 which occurred at his office. On that occasion he again forced digital penetration. The plaintiff found the actions of Mr Stanizzo to have been highly traumatic from a psychological point of view. 58. Ms Fregnan advised that towards the end of the period of contact with Mr Stanizzo, and when she went to Police (October/November 2010), Mr Stanizzo made serious threats on her life, particularly threats that she would be drowned in unusual circumstances. 59. As stated already, Ms Fregnan began to develop substantive psychological symptoms during the period of her contact with Mr Stanizzo and with the onset of symptoms probably during 2008, but with worsening symptoms at about the time of the District Court hearing which involved Mr Stanizzo. I believe the hearing was in the early months of 2013. The plaintiff faced a protracted cross examination at the time. She found herself no longer to be able to think or reason with any degree of clarity and felt herself to be 'zombie like' at the time. The plaintiff is aware that she did not have sufficient memory function at the time on which to base reliable answers to questions. 60. Ms Fregnan developed a broad group of depression spectrum symptoms (with co-existing anxiety spectrum and post trauma symptoms) from approximately 2008. The plaintiff suffered an increasingly anhedonic mood state (reactive largely to the actions/threats of Mr Stanizzo), she had a constant sense of fear, she lost her former capacity to articulate, she was without sex drive and had a fear of intimacy. Additionally, the plaintiff no longer felt attractive and thought she had aged prematurely, she had difficulties with sleep (with shock like experiences in the course of the night, and recurrent nightmares (linked to Mr Stanizzo), she lost trust in her capacity to be a mother, she was increasingly avoidant in her behaviour (preferring to remain at home) and she became excessively vigilant (with a tendency to overreact to unexpected sounds). The plaintiff said also that she was increasingly worried by financial matters, and she was troubled by impaired cognition (confusion, memory difficulties, loss of mental focus, reduced attention span, a sense that all mental tasks had become difficult). She also had developed physical problems (including dark bags beneath her eyes, chronic fatigue, pain within her chest, worsening arthritis). 61. On the history there has been no change in Ms Fregnan's pattern of symptoms. The plaintiff became nihilistic in 2011 and had passing suicidal thoughts. She was admitted as an involuntary patient, to the Mental Health Unit at Shellharbour Hospital where a complex diagnosis of post-traumatic stress disorder/depression/cluster B personality disturbance was made. 62. For purposes of verification, Ms Fregnan has over a long period of time met criterion A(1) for major depressive disorder (depressed mood most of the day, nearly every day); criterion A(2) (diminished pleasure/interest in life activities); criterion A(4) (impaired pattern of sleep); criterion A(6) (unusual fatigue); criterion A(7) (feelings of worthlessness); criterion A(8) (subjective cognitive impairment); criterion (9) (nihilistic and occasional suicidal thinking); criterion B (symptoms cause clinically significant distress/impairment across numerous domains of life); criterion C (symptoms are not due to the physiological effects of a substance, or secondary to another medical condition); criterion D (exclusion of primary psychotic disorder); criterion E (exclusion of manic/hypomanic disorder). 63. Additionally, Ms Fregnan has co-existing anxiety spectrum symptoms (particularly fear of being hurt by way of retaliation, a fear that she is not a good enough mother, and fear relating to her financial status). Also to be noted are the plaintiff's trauma related symptoms (heightened vigilance, overreaction to unexpected sounds, nightmares, daytime flashbacks, ruminations). I do not believe the plaintiff has the full spectrum of symptoms required to reach threshold for a diagnosis of either generalised anxiety disorder or post-traumatic stress disorder. 64. The causal pathway leading to Ms Fregnan's mental health problems is clear. The plaintiff probably suffered erosion of her psychological resilience secondary to adverse factors during her formative years. The plaintiff first became symptomatic during the period of her interaction with Mr Stanizzo, both as a consequence of the pressures he placed on her in relation to financial matters, but also importantly as a consequence of the two sexual assaults as described by her. The plaintiff has remained symptomatic since then. I accept that other stressors are likely to be adding to her current mental burden, these including issues within the family, ongoing financial pressure, and her deteriorating physical health status. Proportioning diagnostic weight is always difficult. On my analysis of the plaintiff's case, the two sexual assaults perpetrated by Mr Stanizzo appear to be of greatest importance, particularly noting that she did not consent in any manner to his advances, and that she was already under significant pressure from him. 65. Personnel making entries in Ms Fregnan's clinical notes at Shellharbour Hospital in 2011 have raised the possibility that the plaintiff suffers either from a cluster B personality disturbance or a borderline personality disorder. I am unable to state, on the basis of two consultations with the plaintiff, and in the context of her current psychiatric disorder, whether or not she has any longstanding disturbance of personality dysfunction. There was nothing in her history or presentation which could lead me currently to state that she has either a disturbance of personality trait function, or a diagnosable personality disorder. 66. Ms Fregnan has significant unmet treatment needs. The plaintiff has the intelligence and verbal capacity to cope with a psychotherapy (this being the preferred method of treatment). However it is late in the cycle of illness and this will militate against change. In my opinion the plaintiff should embark on a psychotherapy of approximately fifty consultations to be delivered over a period not exceeding eighteen months, and based on psychodynamic and cognitive/behavioural principles. Treatment should be delivered by a psychiatrist or clinical psychologist. It would encompass a controlled catharsis, psychoeducation, grief work (relating to her losses in recent years), and the optimising of her coping mechanisms. Additionally, the plaintiff will require monthly follow up in the year after conclusion of formal therapy, and second monthly follow up thereafter until the symptoms are significantly reduced (if this is possible). 67. Additionally, Ms Fregnan should be medicated with a modern antidepressant agent, minimally for one year and probably on an indefinite basis. 68. The current Government recommended fee for a consultation with a psychiatrist of 45 minutes duration or longer is $183.65. The current Australian Medical Association (AMA) recommended fee for the same service is $335.00. A clinical psychologist may charge minimally less. 69. A reasonable monthly costing for medication with a modern antidepressant agent will be in the range of $50.00 - 100.00, accepting Pharmaceutical Benefits Scheme (PBS) pricing and allowing for the drug chosen and the treatment regime. 70. In the absence of treatment, Ms Fregnan will remain much as she is now. She will effectively be dysfunction in most areas of her life. Her prognosis will be poor. However with treatment the plaintiff should make slow but useful gains. Her prognosis will be for improvement, but it will remain uncertain. 71. There is one additional matter which I think needs to be raised. Ms Fregnan has suffered significant cognitive impairment over a long period of time, in keeping with the diagnosis of major depressive disorder. It is highly likely that the plaintiff was in this state at the time of the court hearing. With respect, I doubt that she would, at the time, have had the capacity to cope with a long cross examination. More particularly, the plaintiff would have experienced difficulties in holding questions in her mind, marshalling relevant thoughts, calling on memory, and providing relevant and proper answers. I am not sure also whether the plaintiff would have retained capacity to instruct her legal advisors at the time, given her chronic and pervasive depression spectrum symptoms with co-existing anxiety spectrum symptoms and trauma related symptoms. 72. Finally, it is always wise in the medico-legal setting to try and determine whether the plaintiff has given a self-serving history or has feigned (malingered) symptoms. Whilst I note that Ms Fregnan was highly focused on events in the recent past, there was no indication of either of the above processes."
6. Dr Phillips also gave the following evidence: "Q. Your information from Ms Fregnan was, as at your consultation with her, that since the dates of the alleged incidents involving Mr Stanizzo, namely 2008 and 2009, she had been, for a period of three years, involved in a relationship with Mr Stevenson, which had broken up and involved discord and violence. Correct? A. I believe that is correct. Q. Do you not consider that that matter must have been a very powerful stressor and origin of any psychiatric or psychological condition that she was presenting with when she saw you in 2014? HIS HONOUR: When you say, 'Do you believe that it must have been', I think, are you not only able to ask him on the balance of…I'll ask it. Q. Doing the best you can, on the balance of probabilities, would you think that there was a relationship between those events as described, and the condition with which she presented at about that time? A. Your Honour, I think we have to look at this is proper chronology. If I could step back a little, I had noted in that first report and subsequent reports, that there was a steady worsening in Ms Fregnan's mental state, beginning 2008. And she already had, in my view, an established group of symptoms which reflected three; one diagnosis and two sub diagnoses. The primary diagnosis being major depressive disorder, and there was coexisting anxiety spectrum symptoms and trauma induced symptoms. I accept what you've stated, that it is likely that there were additional stressors circa 2011, involving Mr Stevenson, and perhaps other matters as well. And they would have added in some measure to the process which was already established. But it's critical from my point of view to make the point that there were earlier symptoms which in my view, are sufficient to make the diagnostic formulation which I have. … ROLLINSON: Did Ms Fregnan tell you that she had been assaulted by her partner? A. I don't recall so, but again I make the point, it was 2014; and I make a second point, that if she did, it would have been a matter of significance to me, and it would have been in my primary notes, and transposed into my report."
7. The cross-examination continued: "Q. All right. You note that history in formative years as related to you and then at paragraph 51 you state that she has had a number of unsatisfactory relationships but the first one, and that's a reference to the marriage I take, it had lasted for many years? A. Yes. Q. And made some remarks as to the nature of the partners in question, that they were cruel and unsupportive et cetera? A. Yes. Q. Then you proceed to conclude at paragraph 52 'that she', Ms Fregnan, 'had sufficient emotional fortitude to cope with the ongoing stressors which occurred in her life,' it's the case though isn't it doctor that you had not been given in any detail by Ms Fregnan the details of her interactions with each of these persons with whom she had had relationships? A. No we're talking about two different things here if I could try and disentangle it. Firstly the formative years and I'm quite happy to use the cut‑off point of 19 years, there is no evidence available to me that Ms Fregnan despite the problems of her childhood and early life developed any diagnosable psychiatric disorder at the time, but, very importantly, there would have been erosion of her psychological resilience. No person can resist these matters over a period of years. The difference is there was no overt psychological disturbance. The psychological disturbance came later and that's where in my view the issue of multiple factors needs to be taken into consideration and I'm not I would not move away from that. The most important in my view being what appears to be a history of sexual abuse by Mr Stanizzo. Q. But have you not leapt to a conclusion here that the what you describe as the de‑compensation only has its origin subsequent to the alleged events involving Mr Stanizzo? A. I think it's right, it refers to that at about that time yes. Q. Yes but that is based isn't it entirely upon a conclusion that Ms Fregnan has more or less a clean bill of psychiatric health prior to the dates of these incidents doesn't it? … Q. Are you able to answer it doctor? A. I think if you read, if you read my words carefully I'm referring to there was no evidence of overt psychiatric disorder during her formative years. My, on the history which I had available to me I believed that her psychological decompensation, the slippery slope if you like, began circa 2008 and continued thereafter. The exact sequence following 2008 as I understand it has been documented in that first report."
8. Ms Valvano made the following submissions concerning her loss and damage: "In consequence of the two sexual assaults perpetrated by Stanizzo on me, I suffered loss and damage, on the following basis. Psychological Harm I have suffered extensive long-term psychological harm. Vincent Stanizzo destroyed my psychological well-being and created continual intense fear and helplessness. Stanizzo forced unwanted sexual attention causing me deep depression, and panic attacks followed by post-traumatic stress disorder. This also created loss of sexual desire. Due to Stanizzo's abuse I live my life with chronic hyperarousal state and difficulty sleeping. Stanizzo caused humiliation and embarrassment and punished me. He always tried to control every situation. I was suffering in silence and very scared. I felt that I had no choice and I was walking on eggshells. Stanizzo made my life a living hell. Each day was filled with crippling fear that Stanizzo will find me for exposing him to the police. It all started in his office requesting me to sign many documents under duress. I always felt that I had to tread lightly around him, and I never knew what to expect from one day to another. Stanizzo had created a situation of extreme fear that I would be losing my house. The onset of PTSD took over my life, interfering with my nursing studies and home duties. I became withdrawn and disinterested in life and had even contemplated suicide. Stanizzo turned my life upside down. I was living in fear because Stanizzo threatened to put me in the ocean with concrete legs. Stanizzo created so much fear that I began having nightmares and flash backs and dreams of Stanizzo coming at me with a knife and then awaking with a panic attack. Stanizzo instigated numerous court proceedings and dragged me through unnecessary court appearances. He is known as a serial litigator. The distress took over my life. I feel that I have been violated … physically, mentally and emotionally. My children lost a mum because of all my court matters. My youngest child missed out on a mum. She was only four years old when this all started. The mental distress was so overwhelming that I can no longer process information as I once did, and my youngest daughter has even stated that her mother comes across 'as [disabled]'. The extreme pressure and stress that Stanizzo was continually putting on to me, also caused me to be unable to devote all of the time that I would have needed to study effectively, also caused me to be unable to concentrate in the manner that I needed to, to be able to pass my Nursing Course at TAFE. The additional effect of Stanizzo's ongoing manipulative operations of my personal affairs and myself was that I could no longer adequately cope psychologically with everyday life, nor always deal appropriately with other people, especially when things got heated or confrontational. In fact, the mental and emotional pressure got so much, that I was unable to finish my Practical Placement required in the Nursing Course at TAFE. This module was mandatory for being allowed to pass the Nursing Course at TAFE. Since I could not finish this module, I was disqualified from passing the entire Course. Because of this entire affair, I now also suffer Post-Traumatic Stress Disorder (PTSD). I have difficulty concentrating, hypervigilance, processing information and impairment in social and occupational situations."
9. Mr Stanizzo offered no submissions either in response to these submissions or at all concerning Ms Valvano's loss and damage. It is not clear to me whether that was an oversight or an intentional but incautious expression of confidence about the outcome of Ms Valvano's claim. Nor did Mr Stanizzo offer any assistance upon the question of whether s 3B of the Civil Liability Act 2002 applied to Ms Valvano's claim. That section is relevantly as follows: 3B Civil liability excluded from Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows-- (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person…
10. In my view, the assaults alleged by Ms Valvano were both intentional acts and sexual assaults. Ms Valvano's damages are therefore to be assessed at common law.
11. Ms Valvano particularised her loss and damage in her statement of claim filed on 24 April 2012 as follows: 1. Humiliation. 2. Physical injuries to her bodies [sic] in consequence of the assaults perpetrated on her. 3. Psychological and emotional damage as a result of the assaults made by the defendant on her whilst he was in a position of trust as her solicitor. 4. Costs involved in the preparation of her case but not limited to expert medical reports.
12. It is important to observe that the matters that I am entitled to take into account from Dr Phillip's report as if they had been given in evidence by Ms Valvano are limited to her description of her health, feelings, sensations, intention, knowledge or state of mind. I have included matters arguably extending beyond that description only for the sake of completeness.
13. It is evident that Ms Valvano's psychological problems cannot all or exclusively be attributed to the assaults committed by Mr Stanizzo. Dr Phillips' analysis makes this clear. As he has indicated, "other stressors are likely to be adding to her current mental burden, these including issues within the family, ongoing financial pressure, and her deteriorating physical health status". Moreover, many of the things that Ms Valvano complains of are not the subject of her pleaded case. For example, the fact that Ms Valvano feels that Mr Stanizzo has treated her improperly or unfairly in the course of their financial transaction when he took a proprietary interest in her house, and that this has caused problems for her, is not compensable in an action for damages for sexual assault. Indeed, the superadded problems that this, and other events in her life, have created for Ms Valvano makes dissection and identification of the permissible causative influences upon her a matter of no little difficulty. As Dr Phillips has also noted, apportioning diagnostic weight is always difficult. My task is no easier.
14. Ms Valvano is entitled to be compensated for the assaults and for those conditions that currently afflict her that were caused or exacerbated by the assaults. Those conditions include her depression and anxiety, hypervigilance, anhedonia, loss of psychological well-being and feelings of fear and helplessness. I consider that Ms Valvano would have suffered, or would have been susceptible to suffer, from these conditions even without the assaults upon her, but to a lesser extent. In my opinion, Ms Valvano's already existing conditions have been made worse by the assaults. Her current complaints are, as Dr Phillips has indicated, very much secondary to adverse factors during her formative years. I intend to compensate her only for the extent to which she is worse now than she would have been but for the tortious conduct of which she complains. Doing the best I can, I consider that Ms Valvano is entitled to general damages in the amount of $120,000.
15. There is no evidence that Ms Valvano has incurred any medical or related costs or out-of-pocket expenses. There is no evidence that the medications and therapeutic treatment that Dr Phillips has identified as likely to ameliorate Ms Valvano's condition have been purchased or utilised by her. However, adopting Dr Phillips' opinion to the effect that her condition will improve with treatment and medication, for which Mr Stanizzo is entitled to receive the benefit in terms of a reduction in general damages, I have allowed a further sum of $15,000 for future treatment and medical expenses.

Orders

1. In the circumstances, Ms Valvano is entitled to judgment against Mr Stanizzo on her claim for $135,000. There should be judgment for Ms Valvano on Mr Stanizzo's cross-claim. Mr Stanizzo should be ordered to pay Ms Valvano's costs of her claim and his cross-claim.

Amendments 30 April 2020 - Missing word in paragraph 6 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 30 April 2020