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

Court of Appeal (NSW)|2021-04-29|Before: Payne JA, McCallum JA, Harrison J

The first proceeding: Fregnan v Stanizzo

In her statement of claim Ms Fregnan alleged: (i) that, on 19 September 2008, after she had met Mr Stanizzo at his office for the purpose of obtaining legal advice and finalisation of the financial arrangements between them, she was "coerced" by him into accompanying him to his home, where he sexually assaulted her; (ii) that, on 25 May 2009, Mr Stanizzo "coerced" her into his office, where he detained her and sexually assaulted her.

The evidence

Ms Fregnan first conveyed her allegations to police at the Wollongong Police Station on 8 October 2009, almost 13 months after the date of the first alleged assault. Detective Murdock made a detailed record of her allegations, which he entered in the Police Force's Computerised Operational Policing System ("COPS"). On 13 November 2009 Detective Murdock began taking a statement from Ms Fregnan, which she signed on 25 November 2009. On 19 July 2013 Ms Fregnan made a further statement. These statements were used as witness statements in the proceedings before the primary judge.

(i) 19 September 2008: Ms Fregnan's account

In her first statement to police in November 2009, Ms Fregnan said that, on 19 September 2008, Mr Stanizzo called her and asked her to come to his office to collect a cheque in payment of his purchase of the half interest in her property. She said that she attended "late in the afternoon". Mr Stanizzo showed her (but did not give her) a cheque signed by him, in favour of Permanent Custodians, in the sum of $134,518.07. She was surprised and disappointed at the amount of the cheque he wrote, saying that she had expected more. She said that, before he handed her the cheque, he offered "a drink of alcohol" which she declined. He then poured himself a drink from a bottle of spirits. At this point, although Mr Stanizzo had written the cheque, he had not handed it to Ms Fregnan.
Ms Fregnan said that Mr Stanizzo then invited her back to his house to celebrate the business deal, saying that he had some nice wines that he could give her. Ms Fregnan said that she did not want to go to his house but was desperate to receive the cheque and was concerned that Mr Stanizzo would become abusive and not give her the cheque if she declined. She said that they drove in his vehicle to his house and, just before they arrived, he handed her the cheque, observing that it was a lot of money and he hoped that she appreciated it.
Ms Fregnan made some observations about the house, and said that Mr Stanizzo escorted her into a room that looked like a storage room and contained a library of law books, and several boxes of wine. Mr Stanizzo smoked a cigar and offered her a drink, which she again declined; he poured himself a drink and began talking to her about himself.
Ms Fregnan said that, a short time later, Mr Stanizzo invited her to go upstairs, which she did. She made some further observations of the house. Mr Stanizzo made coffee, during which time he complained about his neck and asked Ms Fregnan to massage it. She refused.
Ms Fregnan said that she then asked Mr Stanizzo if she could use the bathroom. He escorted her downstairs to a bedroom with an ensuite. After a few minutes Ms Fregnan opened the door and saw Mr Stanizzo standing directly in front of her, no more than half a metre away, and wearing nothing but a dark coloured T-shirt and no pants.
She said that he grabbed her, put her in a "bear hug" against the wall and said: "Look after me and you will get everything you want." She shouted at him that she was not going to have sex and demanded that he let her go.
She said that Mr Stanizzo then moved her towards the bed; she struggled, but he managed to throw her onto the bed and pinned her down with his right forearm. She told him to stop and demanded that he leave her alone. She said that Mr Stanizzo then reached down under her skirt, moved her underwear aside and penetrated her vagina with the middle finger on his left hand. She continued to shout and struggle. Mr Stanizzo then inserted his "pointer finger" into her vagina as well and told her to shut up. Ms Fregnan said that Mr Stanizzo was "thrusting and trying to get his penis into my vagina", but her struggles prevented it. He ejaculated on her left thigh.
She said that Mr Stanizzo then 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."
Ms Fregnan said that she then got up off the bed, went to the dining room, picked up her handbag and left the house and walked to a nearby shopping centre where she rang a taxi which took her home.
In her subsequent statement (19 July 2013, after Mr Stanizzo had been charged and on the eve of the criminal trial) Ms Fregnan expanded on her account of what had taken place in Mr Stanizzo's office on 19 September, before they drove to his house. She said that, as requested by him, she attended the office (she believed at about 5.00 pm) where Mr Stanizzo was alone. She sat down at his desk and he sat on the other side of the desk. She noticed that he had a diary or book, a cheque book and a piece of paper with writing on it all set out on the desk. He told her that the total (that she would receive) came to $134,518. She questioned why it was that amount, as she was expecting about $200,000. He showed her the piece of paper, listing amounts that he said that he had paid for Ms Fregnan's benefit. He told her that he was keeping a further $10,000 for expenses that may emerge.
She saw Mr Stanizzo sign the cheque, "rip it out of the chequebook" and put it on the desk in front of her. He offered her a drink to celebrate, which she declined; he then picked up the cheque and walked away into the kitchen, returning with a bottle of spirits from which he poured himself a small drink.
In this statement, Ms Fregnan repeated, essentially, what she had said in her previous statement; she gave a more detailed description of Mr Stanizzo's house. She also sought to clarify her evidence about what she had done after leaving Mr Stanizzo's house. She said that she tried to ring a taxi, using one of her mobile phones, but one was out of credit, the other had a flat battery. She then hailed a taxi which took her home.
She also conceded that she must have been mistaken when she said that Mr Stanizzo called her to ask her to collect the cheque, and that she must have initiated the meeting. She did this by reference to telephone records shown to her by Detective Murdock.

(ii) 25 May 2009: Ms Fregnan's account

Ms Fregnan then (in her first statement) gave an account of the second assault that she alleged had been committed on her. She said that following the incident of 19 September 2008 she stayed away from Mr Stanizzo for several months, having contact only by letter or phone.
Ms Fregnan said that on 25 May 2009 she and Mr Badarne attended Shellharbour TAFE for a conference with the manager. They then returned to the office to listen to a tape recording of the conference. She said that while this was happening Mr Stanizzo walked into Mr Badarne's office and demanded that she massage his neck. She refused. She said that Mr Stanizzo told her that if she refused, he wanted the return of $15,000 he said he had paid in fees to Shellharbour TAFE on her behalf. Ms Fregnan said that she did not have that money so felt obliged to massage his neck and followed him into his own office leaving the door open. She massaged him for a short time and walked into the kitchen and washed her hands, and then walked back into Mr Stanizzo's office. He tried to hug her, thanking her for the massage and saying that he appreciated it. Ms Fregnan then said: "I took a step back as I did not want him to hug me. Vince grabbed me and forced me into the bookshelf. I had my back up against the bookshelf and Vince was up against me. He then grabbed my left breast with his right hand, dug his fingers in and squeezed. This hurt and also caused my shirt to become untucked and hang out. As he did this I could feel that he had an erection as it pressing [sic] against my leg through his trousers." Ms Fregnan told Mr Stanizzo to leave her alone and not to touch her.
She then said in her statement: "Vince was smiling and grabbed me in my groin area with his left hand. He did so with such force that one of his fingers went so straight into my vagina very roughly. I was only wearing a G-string under my skirt. Vince then removed his finger, put it to his nose and sniffed it, whilst still holding me against the bookshelf."
Under sustained cross-examination at the trial Ms Fregnan adhered to the accounts she had given of each event. This Court was not directed to any answer given in cross-examination in which she significantly departed from what she had said in her evidentiary statements, with the minor corrections to the first already mentioned.

(iii) 25 May 2009: Mr Badarne's account

On 7 November 2009 Mr Badarne made a statement to police about the encounter in Mr Stanizzo's office on 25 May. Mr Badarne did not give oral evidence at the trial. His statement was tendered, without any reservation as to the use to be made of it (see Evidence Act 1995 (NSW) s 136) by counsel for Mr Stanizzo. It was expressly accepted by senior counsel for Mr Stanizzo on the appeal that the statement was in evidence for all purposes. In his statement, Mr Badarne afforded significant corroboration of Ms Fregnan's account of the incident. Mr Badarne confirmed that he and Ms Fregnan had attended at Shellhabour TAFE for a meeting with the manager, and that they returned to the office to listen to a recording of the meeting. He noted that Ms Fregnan was "dressed immaculately", wearing a short skirt and a top, and that her hair and makeup "was done very nicely".
Mr Badarne said that, after 20 or 30 minutes, Mr Stanizzo arrived, had a conversation with Ms Fregnan about the property, and asked her to "do my neck please". Mr Badarne said that Ms Fregnan agreed; she and Mr Stanizzo walked out of Mr Badarne's office and into Mr Stanizzo's office. Mr Badarne heard the door close. Seconds later, he heard Ms Fregnan saying: "Leave me alone, don't touch me!"
He heard Mr Stanizzo ask what was wrong and Ms Fregnan again tell him to leave her alone. He heard "what sounded like furniture banging and being moved". He continued to hear Ms Fregnan telling Mr Stanizzo to leave her alone; he walked to Mr Stanizzo's office door and turned the handle, which would not open. This part of his statement should be quoted verbatim: "I walked to his office door and turned the door handle however it would not open cause Vince had earlier disabled it. He did that to stop me coming in the office as I have caught him in the office with other woman [sic] on other occasions. I shook the door and made a fair bit of noise before going back to my office."
Mr Badarne said that Ms Fregnan then left the office in a distressed and dishevelled state. He said that Mr Stanizzo gave him a glass of whiskey, which he did not drink. He said that a few days later he was having a telephone conversation with Ms Fregnan, when Mr Stanizzo walked into the office. He ascertained that Mr Badarne was speaking to Ms Fregnan and said: "Don't talk to her she is a liar, don't believe her, don't believe anything she says, she is nothing by [sic] trouble, didn't I tell you not to talk to her. If she wants you to act for her I have to authorise it and she has to see me."
Mr Badarne also gave some evidence corroborative of Ms Fregnan's 19 September 2008 allegation. He said that in early August 2009 Ms Fregnan again called him, and asked him if he remembered the occasion when they were listening to the tape of the interview at the Shellhabour TAFE and then said: "That massage was bullshit, it was nothing to do with massages and his neck, it was an excuse, he grabbed me between the legs and put his finger there. That is not the first time that Vince has done it to me, do you remember when we used to go to lunches, me and Vince? And we never used to come back?" According to Mr Badarne Ms Fregnan then said: "We went to his house to discuss the matter (house), I needed to go to the toilet, he showed me the toilet, I went to the toilet, as soon as I went out of the toilet Vince was naked standing at the toilet door and grabbing me totally naked. He pinned me down to the bed and was on top of me, I struggled and released myself and thanks to God Vince did not lock the door this time and allowed me to go."
Mr Badarne said that, in answer to a question from him about what Mr Stanizzo did to her, Ms Fregnan said: "He was on top of me and I was struggling really hard and he knew that I meant it when I said no and released me and I left."

(iv) Mr Stanizzo's awareness of the allegations

On 16 June 2010 Detective Murdock telephoned Mr Stanizzo to invite him to come to the police station to be interviewed about the allegations. The terms of the conversation that followed are disputed. Detective Murdock said that he told Mr Stanizzo that Ms Fregnan had alleged that she had been, on two occasions, sexually assaulted by Mr Stanizzo, at Mr Stanizzo's home and at his office. Mr Stanizzo denies that he was given any detail about the allegations, and says that it was not until much later that he became aware that Ms Fregnan had accused him of sexual assault. In any event, Mr Stanizzo declined to attend for interview.

(v) 4 November 2010: a conversation between Mr Badarne and Mr Stanizzo

On 28 October 2010 Detective Murdock was granted a warrant under the Surveillance Devices Act 2007 (NSW) that permitted him to equip Mr Badarne with a listening device in order to record conversations with Mr Stanizzo. On 2 and 3 November, Mr Badarne attended at the Corrimal Police Station for the purpose of telephoning Mr Stanizzo and having a conversation with him, which would be recorded. On each occasion the equipment failed to record. On 4 November 2010 Mr Badarne met Mr Stanizzo in his office with the listening device activated. He had a lengthy conversation with Mr Stanizzo which was recorded. Detective Murdock was listening to the conversation from a police car parked nearby. The transcript of the conversation extends over 37 pages. It is recorded in full in the primary judgment (at [240]). We do not propose to reproduce the whole of the conversation. It is however, necessary to extract some of its salient parts.
The conversation opened with Mr Badarne telling Mr Stanizzo that police were asking him for a statement (about Ms Fregnan's 25 May 2009 allegation) and that Ms Fregnan was asking him to "tell the truth". What emerges from the ensuing conversation is that Mr Stanizzo produced a draft statutory declaration that he had prepared in advance, which he invited Mr Badarne to read and sign. (The draft statutory declaration is in evidence). Mr Badarne read through the statutory declaration, aloud, so that its content was recorded. Paragraph 2, as read by Mr Badarne, noted that he (Mr Badarne) had become aware that Ms Fregnan had made certain sexual allegations about Mr Stanizzo, and that he had acted inappropriately towards her while in the office. The paragraph went on to make some disparaging assertions about Ms Fregnan, including that she attended the office uninvited and without forewarning, that she "had an arrogance about her presence and wanted to be attended to immediately", and would often walk into both Mr Badarne's office or Mr Stanizzo's office without knocking. Paragraph 3 of the draft stated that, at the time he (Mr Badarne) was working at Mr Stanizzo's office in the room he occupied next door to that of Mr Stanizzo, and that whenever Ms Fregnan came to the office Mr Stanizzo "would always keep his door open as he did not feel comfortable with her behind closed doors for fear of her making the type of allegation such she has to further her own causes." In paragraph 4 it was stated that Mr Badarne had the opportunity but had never seen inappropriate conduct towards Ms Fregnan by Mr Stanizzo. Paragraph 5, as read by Mr Badarne, was in the following terms: "I observed that if she, if he was busy on the phone, Valvano [Ms Fregnan] 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 [sic]."
Mr Badarne baulked at this paragraph, saying that it put him in a predicament, because (as recorded): "I mean, it's a opposite of what I, I, I saw or heard. I mean, you ask her to give you the massage." Mr Stanizzo denied that and there ensued an argument between the two men about whether the massage of 25 May 2010 was initiated by Ms Fregnan or by Mr Stanizzo. Mr Stanizzo maintained that his recollection was as stated in the draft statutory declaration.
Mr Badarne then referred to paragraph 7, which he read as: "… if Stanizzo had behaved inappropriately, I would have heard it because, as I have said or, our respective rooms are not soundproof." and said: "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."
Mr Stanizzo asked what he heard, to which Mr Badarne replied: "You know, the shoving and she said, 'leave me alone'. And she just storm out. She go, even first, if you remember … 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."
Mr Stanizzo maintained that his recollection was as stated in the draft statutory declaration. He said: "No, no, no, no … mate, come on. That's, you're just, that, I would not allow her to touch me … no way."
Mr Badarne asked Mr Stanizzo why he had brought Ms Fregnan to his home, to which Mr Stanizzo replied that she had come to his home to deliver some documents.
There followed a further discussion, in which Mr Badarne expressed concern about his position as a solicitor if he signed a false statutory declaration. Mr Badarne then referred to his obligations under the Oaths Act 1900 (NSW) and the consequences to him (as a solicitor) of knowingly making a false statutory declaration. Mr Stanizzo then invited him to make a statement, along the lines of the draft, but without the declaration required by the Oaths Act. Mr Badarne asked who would save him if he were "proved to be a liar". Mr Stanizzo replied: "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 … Why would she come here? Why would she come here if she was sexually assaulted? Why, why would she come here?"
Later in the conversation there was an exchange in which Mr Badarne asked, on the assumption that he agreed with Mr Stanizzo, what was in it for him. The discussion that follows is obscure, but is open to the interpretation that Mr Stanizzo offered some financial incentive to do with the fee dispute between them. Mr Badarne asked: "Not the price, but that's a quid pro quo, the deal, isn't it?"
Mr Stanizzo's response was: "Well, … 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, that's the, the way I remember it. That's the way. What happened there is the way I remember it … ."
At least twice during the rest of the conversation Mr Stanizzo said that he had asked Mr Badarne to make a statement; he added that, if Mr Badarne wanted to change the content of the draft "we can discuss it".
There was then an exchange between the two men in which Mr Stanizzo asked what Mr Badarne wanted him to do, saying that he had worked on "this" (meaning the draft) all morning. The transcript then records the following: "[Mr Stanizzo]: What, what do you want me to do … [Mr Badarne]: Amend it properly and I will do it and we'll get over done with it. [Mr Stanizzo]: Yeah, well, what … [Mr Badarne]: I mean … [Mr Stanizzo]: I, I ask you to amend it and you haven't amend it [Mr Badarne]: You don't like the, my amendment. [Mr Stanizzo]: Well because it's nott [sic] true, that's why. [Mr Badarne]: Yeah, everything is like America, again. If you are not with, with me, you are against me. I'm, you know. [Mr Stanizzo]: Muhammad … [Mr Badarne]: Yes. Yes [Mr Stanizzo]: … sign this. [Mr Badarne]: 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? [Mr Stanizzo]: It is true."
There was then some discussion, apparently about the fee dispute between Mr Stanizzo and Mr Badarne, in which Mr Stanizzo said: "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."
The following exchange then took place: "[Mr Stanizzo]: 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, yeah, I 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. I will not accept this thing that I, I … [Mr Badarne]: But that's my statement. But … that is my statement. [Mr Stanizzo]: But that is not true, that is not true. It is not true." Throughout the conversation Mr Stanizzo insisted that he had not behaved inappropriately towards Ms Fregnan.
Immediately after the conversation concluded Detective Murdock, with two other police officers, entered the office and arrested Mr Stanizzo. Detective Murdock told Mr Stanizzo that he would be charged with sexual assault and intimidation offences.
A short time later Detective Murdock sought and was granted a warrant to enter and search Mr Stanizzo's office premises. The warrant was executed and the office searched in the presence of Mr Stanizzo. A number of items, including a computer hard drive and various files and documents, was seized.

(vi) Mr Stanizzo's evidence

In his evidentiary statement dated 22 September 2017 Mr Stanizzo gave a lengthy and detailed account of what he asserted to have been his dealings with Ms Fregnan. The account differs markedly from that of Ms Fregnan. Much of the detail is peripheral to the present issues; however, some aspects of the statement should be noted. Mr Stanizzo said that he first met Ms Fregnan briefly in 2000, when she consulted him about a settlement offer in personal injury litigation in which she was then involved. He was unable to assist and did not see her again until 10 January 2008, when she visited his office, wanting him to act for her in the sale of her house. After a potential sale fell through, Mr Stanizzo agreed to purchase a half interest in the house and drafted the Deed (see [15] above). It is not necessary to recount the events that Mr Stanizzo asserted followed, until 19 September 2008.
Mr Stanizzo responded specifically to Ms Fregnan's allegations of the events of 19 September 2008, which he expressly denied. He said - and repeated a number of times - that Ms Fregnan had never been to his house. That was inconsistent with his answer to Mr Badarne, that Ms Fregnan had come to his house to deliver some documents (see [60] above). He said that the allegations were false and statements attributed to him by Ms Fregnan were "fabrications".
Mr Stanizzo said that Ms Fregnan's allegations concerning the incident of 25 May 2009 were also "fabrications", that the incidents never occurred and that, at no time when Ms Fregnan was in his office, was the door closed. He said that he deliberately left the door open.
Mr Stanizzo gave evidence of other conversations and interactions with Ms Fregnan between 19 September 2008 and 25 May 2009, all concerning the property transaction, and evidencing conflict between them. The conflict ultimately ripened into litigation in the Equity Division of the Supreme Court, the details of which do not emerge in the evidence.
It is, however, appropriate to recount that, on 26 August 2009, Ms Fregnan made a complaint to the Office of the Legal Services Commissioner ("the OLSC") alleging "professional negligence", "sexual harassment", and "professional misconduct" against Mr Stanizzo. On 8 October 2009 (the same day she made her report of sexual assault to police) Ms Fregnan made a second complaint to the OLSC. The motivation for the complaints appears to have been the caveat that Mr Stanizzo had lodged on her property, which meant that Ms Fregnan was unable to sell it. On 17 December 2009 the complaint was dismissed because Ms Fregnan had ceased participation in the OLSC's investigation.

(vii) 19 September 2008: Mr Stanizzo's evidence

Mr Stanizzo produced in evidence a number of documents to which it is necessary to refer. One was a handwritten list headed: "Total Advance - $240,000 Less deductions" This may be taken to be the piece of paper on Mr Stanizzo's desk to which Ms Fregnan referred in her 19 July 2013 statement. Seventeen deductions, with amounts, were itemised. The list showed that, after deductions, $134,518.07 remained to be paid to Permanent Custodians, subject to a further withholding of $10,000 "in reserve". That was consistent with Mr Stanizzo's evidence of what he said occurred in his office on the morning of 19 September 2008. Another document contained a photocopy of a cheque in the amount of $134,518.07 made out to Permanent Custodians, dated 19 September 2008 and signed in the name of Stanizzo. Underneath the depiction of the cheque, was a receipt also dated 19 September 2008, signed (so far as can be deciphered) in the name of Vivian Sgangarella-Valvano; the receipt said, simply: "I received the above cheque".
A third document, also dated 19 September 2008, contained, in handwriting, the following: "To V. Stanizzo I direct you to pay the sum of $134,518.07 to Permanent Custodians Ltd, out of the advance money and keep a further amount of $10,000 of acount [sic] of registration and strata plan and other expenses."
This document appears to have been signed "V Valvano". In oral evidence Ms Fregnan acknowledged that the signature on the receipt was hers. She accepted that the handwriting on the "direction" document was hers but denied that the signature was hers, saying that she always signed using the name Sgangarella-Valvano. There does not appear to be any significance in this; it was not in dispute that a cheque made payable to Permanent Custodians was (at some time) given to Ms Fregnan on 19 September 2008.

(viii) 25 May 2009: Mr Stanizzo's evidence

In that part of his statement that was admissible, Mr Stanizzo said that the words and actions attributed to him by Ms Fregnan were fabricated and that the incident alleged never occurred. He said that at no time when Ms Fregnan was in the office was the door closed and that he deliberately left it open.

(ix) The 4 November 2010 surveillance device tape recording: Mr Stanizzo's evidence

In cross-examination by counsel for the State of NSW, Mr Stanizzo was asked about the conversation with Mr Badarne of 4 November 2010. He said, more than once, that he prepared the statutory declaration at the request of Mr Badarne. (This was directly contrary to what he was recorded as saying to Mr Badarne during the conversation, as recorded).
He said that Mr Badarne did not read the draft statutory declaration aloud, but read it to himself silently. When confronted with the transcript, he accepted that that was incorrect. He maintained that the content of the statutory declaration was truthful, and that Mr Badarne was "playing games here" and that what he (Mr Badarne) said in the conversation was "totally and maliciously false".

(x) David Stanizzo's evidence

Mr Stanizzo's son Vincent David Stanizzo (known as David) gave oral evidence. He said that, when Mr Stanizzo moved into the office, he (David Stanizzo) had assisted with a "renovation" and a "bit of a tidy up". He said that the handle to the door to Mr Stanizzo's office was always defective in that the door could be opened from the inside, but could not be opened from the outside. There was an alternative entry point from the reception area that was used in the event that the door was inadvertently closed from outside. David Stanizzo's evidence contradicted Mr Badarne's assertion that Mr Stanizzo had deliberately disabled the office door in order to preclude disturbance or interruption of assignations with women.

(xi) Bluestone Mortgages: record of telephone calls 19 September 2008

The evidence to which we are now about to refer is of critical importance to the appeal. It was Mr Stanizzo's case that, on three occasions during the afternoon of 19 September, Ms Fregnan telephoned Bluestone Mortgages and spoke to customer service representatives. There were in evidence:

a document described as "electronic loan notes" for 19 September 2008 in relation to Ms Fregnan's loan. That document purports to note three telephone conversations between Ms Fregnan and the Bluestone Mortgages representatives, as follows: "3:19:24 Tenoai Latini: mrs rg advd she wants to make lump sum pmt twds loan of over $100K but wants to redraw every mth to pay loan - I advd mrs we can reamortise loan but mrs didn't want to so trf mrs to VL to discuss redrawn and faxed dd form to 0242753264 as mrs wants to give us new bank dets. 4:09:44 Stringer Narelle: Mrs rang and wanted to find out about putting a chq for about $100k on loan and using to make DD for next 12 mths and have advised mrs to put request in writing with chq.. 4:38:10 Vanhoff Fritz: Spoke to Viviana, she has amount of $130k to deposit into the account. She does not want to make payments for the next 12 months, instead for us to take the money from their [sic]. Mrs not happy to deposit funds into the nominated ANZ account, and advsd her thats the only way to do it. mrs to speak to broker and get back to us." Under the name "Vanhoff Fritz" the word "incorrect" appears in parentheses. There is no explanation for this entry, and no explanation of what was incorrect.
Two compact discs (marked Ex S5 and Ex S6), presented on the basis that they were tape recordings of the conversations summarised in the electronic notes above. In one, Ms Fregnan is recorded as reading to the Bluestone Mortgages operator details of the cheque Mr Stanizzo had given her, including the bank, the branch, the BSB and the account number.

It was Mr Stanizzo's case that these calls took place between 3.19 pm and 4.38 pm on 19 September 2008. That fact, if established, was critical to his case, as mentioned above. If, as was contended on behalf of Mr Stanizzo, the recordings established that Ms Fregnan had the cheque by no later than 3.19 pm on 19 September, her account of having been "coerced", at 5.00 pm or after, could not be true.
In Mr Stanizzo's written submissions, elaborate claims were made to the effect that Ms Fregnan's mobile telephone records showed a call received at 5.01 pm lasting 193 seconds and a call made from Ms Fregnan's phone at 6.07 pm. That period, of over an hour, was submitted to leave insufficient time for the sexual assault described by Ms Fregnan to have taken place. To the extent that this submission was pressed, we reject it. That period, between 5:01pm and 6:07pm, was ample to encompass Ms Fregnan's complaint of sexual assault. Junior counsel for Mr Stanizzo's attempt to contend to the contrary failed by reason of an absence of evidence supporting the times he asserted various steps in Ms Fregnan's account of the afternoon of 19 September 2008 would likely have taken.
The tape recordings were played during the course of Ms Fregnan's cross-examination. She contested their authenticity. She denied that she had rung Bluestone Mortgages on 19 September. She denied that the voice on the recordings was hers. She said that the recordings had been "manipulated" or "tampered with". She said that the recordings and the electronic notes did not "match up" and were "inconsistent". She pointed out that, on one of the recordings, the caller said that she had spoken to the representatives "yesterday", which would mean that, if the recordings were made on 19 September, she had been in possession of the cheque on 18 September - something for which neither party contended.
Later, Ms Fregnan appeared to accept that the voice on the recordings was hers. She appeared to accept that she had made the calls, but said that they were made on a date after 19 September, an assertion that she supported by pointing out that Bluestone Mortgages said that she had sent the cheque on 26 September.

Issues at trial

The fundamental issue in the trial was whether Ms Fregnan had established that, on 19 September 2008 and/or 25 May 2009, Mr Stanizzo had sexually assaulted her. On this question the evidence of the parties is in direct conflict. Resolution of the issues depended on the assessment of the truthfulness of each of the protagonists, and, importantly, any evidence that could point to or against the veracity of their accounts.
Mr Stanizzo placed heavy emphasis on the evidence of the recordings of the telephone conversations between Ms Fregnan and the employees of Bluestone Mortgages. Those recordings, he contended, established conclusively that, by no later than 3.19 pm on 19 September, Ms Fregnan had the cheque in her possession. If that were accepted, he argued, her evidence that her meeting at Mr Stanizzo's office occurred late in the afternoon could not be true, her claim that she had gone to Mr Stanizzo's home under coercion in order to receive the cheque could not be true, and her "house of cards" would collapse.
Mr Stanizzo further contended that, if Ms Fregnan could not be believed with respect to her 19 September 2008 allegations, she also could not (notwithstanding Mr Badarne's corroboration) be believed with respect to her 25 May 2009 allegations. (Neither at trial nor on appeal did Mr Stanizzo address the converse proposition: that, if Ms Fregnan's allegations concerning 25 May 2009 were shown to be true, that fact provided support for her allegations of the events of 19 September, even if she was shown to have been wrong with respect to some surrounding detail).
There were, however, pointers in the other direction. Mr Stanizzo was adamant (he stated it repeatedly in his evidentiary statement) that Ms Fregnan had never been to his house. Yet Ms Fregnan gave a detailed description of the premises that senior counsel, on appeal, conceded was "broadly correct". Only in one minor respect did Mr Stanizzo contradict Ms Fregnan's description of his home: Ms Fregnan had said that there was a "dark brown" piano on the front wall of the house; Mr Stanizzo said that the piano is black (inadvertently, perhaps, confirming the accuracy of Ms Fregnan's description). Mr Stanizzo sought to meet this by propounding (although in an evidentiary vacuum) a theory that Mr Badarne, who had been to Mr Stanizzo's home, had provided Ms Fregnan with information sufficient to enable her to give a "broadly correct" description. The implications of this submission will be considered below.

The primary judgment

The primary judge dealt with the liability aspects of Ms Fregnan's claim against Mr Stanizzo at [178]-[276]. He stated his conclusion (at [275]) that Ms Fregnan was entitled to judgment and that Mr Stanizzo's cross-claim should be dismissed: he then assessed the damages to be awarded.
The primary judge commenced his analysis of the liability issues by outlining, at some length and in some detail, the submissions made on behalf of Mr Stanizzo (at [179]-[222]). He then turned to the evidence of the two protagonists noting (only partly correctly): "228 …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. 229 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."
To interrupt the survey of the primary judgment, we observe that these remarks are only partly correct because the qualification in each passage seems to us to be superfluous. The issue in Ms Fregnan's claim was indeed whether Mr Stanizzo assaulted her on one or other (or both) of the occasions that she alleged, or whether he did not. And resolution of that issue does depend, in our opinion exclusively, on which of the protagonists was telling the truth, although that resolution will be achieved by more than an evaluation of the evidence given by each, and requires close examination of the surrounding circumstances. Although we consider that the qualifications were unnecessary and erroneous, they do not appear to us to have adversely affected the primary judge's approach to the resolution of the true issues.
There is, in this case, no room for an intermediate position. Either Ms Fregnan was telling the truth as to the salient events (even if she is mistaken as to some surrounding detail) or Mr Stanizzo is telling the truth as to those events (also allowing for mistake as to surrounding detail). As we see it, there is no room for mistake in relation to the central events. One or other of the parties gave a false account.
Returning to the primary judgment: his Honour stated (at [236]) that he had found the determination of who of Ms Fregnan and Mr Stanizzo was telling the truth to be very difficult. He said that neither was "an ideal witness" and both were prone to emotional outbursts. He considered that any attempt by him to resolve the issue on the basis of demeanour would "be little more than an exercise in sophistry" (at [236]).
His Honour referred to the Bluestone Mortgages telephone recordings, which he described as "very cogent evidence" (at [232]); he noted one explanation given by Ms Fregnan for that evidence (that the recording had been subject to interference, by or on behalf of Mr Stanizzo). He rejected that explanation: he concluded that Ms Fregnan had not demonstrated that "this very cogent evidence is not genuine" (at [232]). He noted that Ms Fregnan had offered no evidence or other support for her contention, which remained "untested and unproven". He considered that, having regard to the significance of the telephone recordings in the criminal proceedings against Mr Stanizzo, it was improbable that their provenance and authenticity had not already been closely examined.
His Honour then observed: "233 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 10 am on 19 September 2008." Since his Honour in the next paragraph (at [234]) said that it has always been Ms Fregnan's contention that she did not attend Mr Stanizzo's office in the morning of 19 September, and that she was in fact some distance away at Shellharbour, we are satisfied that, in [233], his Honour intended to say that there was other evidence to which Ms Fregnan could have referred in support of her own evidence that she was not at Mr Stanizzo's office at around 10 am on 19 September.
The "other evidence" to which his Honour referred was evidence that Mr Stanizzo's version of events had not been given to his legal team in the criminal proceedings, was not mentioned in his alibi notice (which, we observe, could be expected to have been prepared to meet an allegation concerning Mr Stanizzo's whereabouts at 5 pm and after, and not 10 am, and therefore could not be expected to make reference to his whereabouts at 10 am), and was never mentioned to Detective Murdock. (The correctness of this reasoning is dubious; what Mr Stanizzo could be expected to have told Detective Murdock depends on the detail of what he was told about Ms Fregnan's allegations). Detective Murdock's version of what he told Mr Stanizzo in the 16 July 2010 telephone call did not include specification of the dates or times of the alleged offences, and Mr Stanizzo (on both versions) simply declined the invitation to be interviewed. However, this reasoning is not included in the many complaints made in the grounds of appeal, and certainly did not feature in the oral argument.
Ultimately, the primary judge considered that Ms Fregnan's accounts of what happened to her on each of the days in question were true (at [262]). He reached this conclusion taking into account s 140 of the Evidence Act, which requires that a court deciding civil proceedings (on the balance of probabilities) take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding, and the gravity of the matters alleged. We approach the rehearing under s 75A of the Supreme Court Act on the same basis. His Honour plainly recognised the seriousness of the allegations and the need for proof to a commensurate degree.
By contrast with his conclusion about Ms Fregnan's evidence, the primary judge found himself unable to accept Mr Stanizzo on any disputed issue of fact upon which he was not corroborated by another witness, or by a document of which he was not the author (at [257]). He accordingly rejected Mr Stanizzo's denials of Ms Fregnan's allegations of sexual assault, saying later (at [262]) that he was comfortably satisfied that Ms Fregnan was telling the truth for reasons that he then gave.
The primary judge noted, however, that that conclusion was determinative neither of Ms Fregnan's claim against Mr Stanizzo nor Mr Stanizzo's cross-claim against her; the latter of which could, he said, (at least in theory) be established by evidence other than Mr Stanizzo's own testimony.
The primary judge then referred to a number of items of evidence that influenced his conclusion. He noted that Ms Fregnan gave "a detailed and credible account" of the events of 19 September. He noted (at [263]) Ms Fregnan's detailed description of Mr Stanizzo's house. He considered criticisms of a discrepancy in Ms Fregnan's accounts of the clothing of Mr Stanizzo when she emerged from the bathroom (naked or semi naked, wearing only a T-shirt) to be of little importance. This, presumably, was a reference to Mr Badarne's statement, in which he recounted Ms Fregnan telling him that Mr Stanizzo had been "totally naked" when she came out of the bathroom. Detective Murdock had also noted, in the COPS record, that Ms Fregnan said that Mr Stanizzo was "completely naked". His Honour considered that Ms Fregnan's description of the event was consistent with "truthful understatement rather than malicious falsity" (at [264]). He considered it difficult to see how an account of that nature "replete with unnecessary and collateral details, could easily be invented".
His Honour referred to a submission that had been made on behalf of Mr Stanizzo to explain Ms Fregnan's unchallenged description of his house, to the effect that that description could easily have come from what Ms Fregnan had been told by Mr Badarne; he considered this to be "nothing more than speculation" (at [265]).
The primary judge acknowledged the absence of corroboration of the alleged assault of 19 September which he considered to be "unremarkable" in the circumstances (at [266]).
The primary judge made specific reference to certain aspects of Mr Stanizzo's evidence that he did not accept. His Honour placed a great deal of weight on the recorded conversation between Mr Stanizzo and Mr Badarne on 4 November 2010. He referred to evidence given by Mr Stanizzo that he had prepared the draft statutory declaration based on what Mr Badarne had previously told him, a position he maintained in cross-examination. The primary judge found that "difficult to accept" (at [242]).
At one point in his evidence Mr Stanizzo denied that, at the time of the conversation with Mr Badarne, he was aware of Ms Fregnan's allegations. He described as "false" a suggestion made in cross-examination that he was then aware that the allegations had been made. The primary judge found that answer to be "totally incapable of acceptance" (at [246]). It was belied by the contents of the draft statutory declaration that he (Mr Stanizzo) had himself prepared.
His Honour then dealt with what was, and, on appeal is, the most significant aspect of Mr Stanizzo's defence. That concerns the Bluestone Mortgages telephone records. His Honour made the following finding: "268 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."
This paragraph was the centrepiece of the argument on appeal. Although it is of lesser importance, it is also appropriate to note a submission made on behalf of Mr Stanizzo that the delay in reporting the alleged assaults was of "some particular significance" (at [271]). The primary judge considered the belated reporting to be "a matter of importance" but not necessarily determinative that the complaint was a fabrication. He noted Ms Fregnan's evidence that Mr Stanizzo had threatened to "fit her with concrete legs", and observed that Mr Stanizzo was a "very intimidating personality". He accepted that Ms Fregnan 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. Nor was he moved by Mr Stanizzo's reliance on the absence of any complaint of sexual assault to the OLSC, or in the proceedings in the Supreme Court.

The cross-claim

By his cross-claim Mr Stanizzo asserted that the criminal proceedings brought against him in 2010, on the basis of Ms Fregnan's allegations, were maliciously instigated by her complaints to police, complaints Mr Stanizzo asserts to have been knowingly and deliberately false.
Had the outcome of Ms Fregnan's claim been different, additional issues would have arisen. Rejection of Ms Fregnan's allegations as false would not have necessitated a finding against her of malicious prosecution; as will be seen below, in the consideration of the second and third proceedings, there are some complexities in proving the tort of malicious prosecution.
However, the conclusion that Ms Fregnan's allegations of sexual assault were true precluded, at least in practical terms, any finding in favour of Mr Stanizzo in this respect, notwithstanding that the criminal prosecution did not result in conviction.
On the conclusions set out above, the outcome of both the claim and the cross-claim was inevitable. His Honour found that Ms Fregnan was entitled to judgment and Mr Stanizzo's cross-claim should be dismissed with costs.

Damages

Damages were to be assessed at common law. The Civil Liability Act 2002 (NSW), by reason of s 3B, does not apply to or in respect of civil liability arising out of an intentional act that is done with intent to cause injury or death, or that is sexual assault or other sexual misconduct.
Having regard to the grounds of appeal, it is necessary to touch only lightly on the award of damages. The primary judge noted that Mr Stanizzo had offered no submissions in relation to damages (at [285]). His Honour made extensive reference to a number of psychiatric reports that were in evidence and noted that not all of Ms Fregnan's then present psychiatric condition could be attributed to the sexual assaults by Mr Stanizzo. He assessed general damages at $120,000, and made a further allowance of $15,000 for future treatment and medical expenses.

The appeal

The grounds of appeal (with respect to the first proceeding), as finally formulated in a Further Amended Notice of Appeal ("FANoA") asserted: 1. factual error on the part of the primary judge in accepting Ms Fregnan's accounts of the two alleged sexual assaults; 2. error in failing to find that the criminal prosecution against Mr Stanizzo in 2013 was maliciously instigated by Ms Fregnan; 3. error (in one respect only) in the assessment of damages.
The FANoA identified a number of respects in which it was said that the primary judge's findings, in the case of each alleged assault, were not open on the evidence, and/or were contrary to incontrovertible objective evidence (see Fox v Percy). Particular reference was made to the Bluestone Mortgages telephone call records. Specific error was asserted to be identifiable in [268] of the judgment (set out above at [107]). In relation to Ms Fregnan's allegations of 25 May 2009 the FANoA asserted error in the primary judge's reliance on the evidence of Mr Badarne.
As to the former, it was submitted that the finding at [268] of the judgment was "unsupportable on the basis of principles laid down in the High Court in the cases such as Fox v Percy". The written submissions contended that that was so because a subjective belief based on an assessment of the credit of the witnesses "cannot overcome objective inconsistent evidence" in the way indicated in the primary judge's reasoning in that paragraph. In addition to Fox v Percy, the written submissions cited the decision of the High Court in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12. They also cited the decision in The Queen v Baden-Clay (2018) 258 CLR 308; [2018] HCA 35 to support the submission that "a subjective belief [on the part of the primary judge]…cannot permit a finding of sexual assault at a time and in circumstances not defined and contrary to her evidence".
Contrary to Mr Stanizzo's submission, it is not every fact asserted by a witness, that, if shown objectively to be wrong, will have the effect of destroying the witness's credit with respect to other factual assertions. Much depends upon the significance of the fact in the mosaic of the case as a whole.
In Fox v Percy, the incontrovertible evidence (skid marks on the road) was inconsistent with Ms Fox's evidence as to the very act of negligence alleged (that Ms Percy was driving on the wrong side of the road at the time of the collision). In Pell, the High Court at [118] accepted that the Court of Appeal majority did not err "in holding that A's evidence of the first incident did not contain discrepancies, or display inadequacies, of such a character as to require the jury to have entertained a doubt as to guilt". The reason the convictions were quashed was that there was unchallenged evidence from independent witnesses which satisfied the High Court that there was no realistic opportunity to commit the offences. In Baden-Clay, the decision of the Court of Appeal allowing the offender's conviction appeal was overturned because the Court of Appeal postulated a speculative hypothesis inconsistent with the offender's evidence.
The particular "incontrovertible fact" relied upon here, that Ms Fregnan was in possesion of Mr Stanizzo's cheque by 3.19 pm on 19 September 2008, did not necessarily impugn the central allegation of sexual assault made by Ms Fregnan. It may be accepted that the evidence went to an important issue, namely Ms Fregnan's explanation for attending Mr Stanizzo's house. The evidence did not, however, necessarily contradict the allegation of sexual assault which took place once she was there. The question whether the primary judge's finding concerning the first sexual assault is supportable is essentially a factual question requiring a careful analysis of the evidence relevant to the arguments put, having due regard to the advantage in observing the witnesses at first instance enjoyed by the primary judge.
As presented on the hearing of the appeal, Mr Stanizzo's argument hinged solely on a single item of evidence and a single paragraph (at [268]) of the judgment. The item of evidence was the tape recordings that were, or purported to be, recordings of telephone calls made by Ms Fregnan to Bluestone Mortgages at 3.19 pm, 4.09 pm and 4.38 pm on 19 September 2008. These recordings, it was said, put the lie to Ms Fregnan's account of the 19 September alleged assault because of a combination of two circumstances:

Ms Fregnan insisted that she did not receive the cheque from Mr Stanizzo until after 5 pm and that she accompanied him to his home only because she was "coerced" to do so in order to receive the cheque, which he had, while in the office, shown her, but had not allowed her to retain; and
the telephone call recordings demonstrated conclusively (so it was asserted) that Ms Fregnan was in possession of the cheque by no later than 3.19 pm on that day.

Despite elaborate written submissions, most of which were abandoned, as presented on the hearing of the appeal Mr Stanizzo's argument hinged solely on one piece of evidence. It was asserted (in oral argument) that Ms Fregnan could not be believed with respect to the 19 September 2008 allegation due to what could be heard on the tape recordings. If the accuracy of the tape recordings - specifically as to the date and time of the conversations recorded - could not be proved, this basis for the attack on Ms Fregnan's credit would have failed.
While accepting the cogency of the tape recordings, and therefore that Ms Fregnan had in fact received the cheque at least by 3.19 pm on 19 September, the primary judge did not regard that circumstance as fatal to Ms Fregnan's case that she had, later on that day, been sexually assaulted by Mr Stanizzo. At [268] his Honour considered that it was more likely that she was mistaken about the timing of her receipt of the cheque and that there was nothing in that circumstance "that fundamentally contradicts her description of the assault".
It is this reasoning that is attacked on behalf of Mr Stanizzo, as a failure on the part of his Honour to appreciate the true significance of the "mistake". Ms Fregnan's case was that Mr Stanizzo had "coerced" her to go to his home, using the withholding of the cheque as the instrument of coercion. If that instrument were unavailable because she already had the cheque, there could be no coercion and there was no reason for her to go to Mr Stanizzo's house. The inevitable result, it was submitted, was that her case unravelled.
The argument depends on the underlying proposition that the tape recordings were both genuine and accurate, particularly as to date and times.
We harbour considerable doubt that the tape recordings were sufficiently proved. The transcript records that, in cross-examination of Ms Fregnan on 14 and 15 February 2019, parts of the recordings were played to her. The transcript in fact records six different occasions on which that was done. It was not until 20 February that a "CD of the phone calls played to Ms Fregnan" was marked for identification ("MFI") 10.
The next reference to the recordings was in Mr Stanizzo's evidence in chief. It seems that counsel sought to prove the tape recordings through Mr Stanizzo. Mr Stanizzo said that he first saw the CD during the course of the criminal trial (in 2013) and that a copy of it was, to the best of his recollection, handed to him by his counsel. Asked about its source, Mr Stanizzo said: "Well, I understood that it was given to you [counsel] by Michael Barr, the Crown Prosecutor, who in turn had received it from Detective Murdock, who in turn had received it from a member of the staff of Bluestone." At this point the primary judge intervened and pointed out that, since Ms Fregnan was unrepresented and had challenged the provenance and authenticity of the tape recordings, it was necessary that they be proved strictly.
During a break of some weeks in the proceedings an attempt at authentication was made, although in a somewhat roundabout way. A "Notice to Produce for Inspection" was served on the State of NSW, via the Crown Solicitor. The Notice to Produce called for production of a subpoena for production issued on 30 July 2013 to Bluestone Mortgages in Mr Stanizzo's criminal trial, and "the audio files containing recordings of conversations with Vivian Valvano (also known as Fregnan) …" referred to in an identified "Evidentiary Statement" made by Detective Murdock.

Malicious Prosecution

In each of the second and third proceedings, Mr Stanizzo claimed damages for malicious prosecution. Although there are differences in the bases on which he makes the assertion of malicious prosecution against Mr Badarne, and that on which he makes the assertion against the State of NSW ("the State"), some general applicable principles may be stated, and some factual observations common to both proceedings may be made.
A comprehensive exposition by the High Court of the tort of malicious prosecution is to be found in the judgment of the plurality in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10. Proof of malicious prosecution entails proof of four elements: 1. that the proceedings were initiated against the plaintiff by the defendant; 2. that the proceedings terminated in favour of the plaintiff; 3. that the defendant, in initiating or maintaining the proceedings, acted maliciously; 4. that the defendant acted without reasonable and probable cause.
The discussion, and the principles stated, have been reduced by this Court, in State of New South Wales v Quirk [2012] NSWCA 216 at [70] to a series of fifteen propositions, which (subject to the reformulation of one of the propositions) was endorsed by a later bench of this Court in Clavel v Savage [2015] NSWCA 61 at [50]. Not all of those propositions have a bearing on the present case. Presently relevant propositions are: "(b) … an action for malicious prosecution will not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge … (c) … the inquiry about reasonable and probable cause has two aspects. The first is what did the prosecutor make of the material available to him and the second is what should the prosecutor have made of it. The first is a subjective test the second an objective test … ."
The four elements of the tort are cumulative; proof of each is necessary to establish liability. Each element is capable, in the circumstances of a particular case, of giving rise to controversy. In this case, only the element numbered (ii) is without controversy.
Two separate proceedings were alleged by Mr Stanizzo to have been instituted maliciously: (i) the criminal prosecution, on an indictment dated 8 July 2013 ("the 2013 indictment"), of Mr Stanizzo for sexual offences (and associated offences) against Ms Fregnan. The 2013 indictment contained seven counts. Counts 1 and 2 alleged offences of sexual intercourse without consent (Crimes Act 1900 (NSW), s 61I), and attempted sexual intercourse without consent, committed on 19 September 2008; count 3 alleged an offence of threatening Ms Fregnan as a witness (Crimes Act, s 315A) on the same day; counts 4 and 5 alleged, respectively, indecent assault (Crimes Act, s 61L) and sexual intercourse without consent on 25 May 2009; count 6 alleged intimidation (Crimes (Domestic and Personal Violence) Act 2007 (NSW)) between 1 January 2009 and 18 September 2009; and count 7 alleged an attempt, on 4 November 2010, by Mr Stanizzo to have Mr Badarne make a false statutory declaration with intent to pervert the course of justice (Crimes Act, s 319); (ii) the criminal prosecution of Mr Stanizzo on an indictment dated 29 April 2011 ("the 2011 indictment") that contained four counts, each alleging intimidation of Mr Badarne, on, respectively, 14 November 2009, 20 June 2010 (although the correct date of the allegation was 10 June 2010), 12 September 2010 and 21 October 2010.
In the case of each count the charge was initially laid by Detective Murdock on 4 November 2010 and was taken over by the ODPP on (it seems) the following day. In each case the indictment was presented in the name of the ODPP.
As indicated briefly above, the trial on the 2013 indictment commenced in July 2013, but aborted on 2 August 2013, when the ODPP directed the entry of a nolle prosequi; on 16 January 2014 a nolle prosequi was entered in relation to the 2011 indictment.
It may therefore be accepted that each proceeding terminated in favour of Mr Stanizzo. The second element of the tort was established.
Identification, for the purposes of the first element of the tort, of the proper defendant ("the prosecutor") in a suit for malicious prosecution is not always straightforward. It is necessary that the plaintiff show that the named defendant played "an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion": A v NSW at [34], citing the ninth edition of the well known text on tort law (Fleming, The Law of Torts, Law Book Company Information Services, 1998).
In the second proceeding (Stanizzo v Badarne) a question, which will be dealt with below, arises as to whether Mr Badarne is properly characterised as a prosecutor. The same issue does not arise in the third proceeding (Stanizzo v State of New South Wales). Mr Stanizzo has pleaded, and the State accepts, that the State is vicariously liable for any conduct on the part of Detective Murdock, or officers of the ODPP (who are the individuals identified by Mr Stanizzo as responsible for the prosecution).
In addition to the identification of Mr Badarne as a prosecutor, in each case significant questions arise as to: (i) whether the proceedings were initiated maliciously; and (ii) whether the prosecutor acted without reasonable and probable cause.

Malice

For the purposes of the tort, malice is established where it is proved that the prosecutor instituted the proceedings solely or predominantly for a purpose (or purposes) other than the proper invocation of the criminal law ("an illegitimate or oblique motive": A v NSW at [91], [93]).
In many cases malice may be proved only by inference; care must be taken to ensure that the improper purpose is proved - conjecture or suspicion is insufficient: A v NSW at [93].

Absence of reasonable and probable cause

In Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 at 469, Jordan CJ (speaking for the court) stated five conditions that must exist for the presence of reasonable and probable cause for a prosecution. Those conditions were: 1. the prosecutor must believe that the accused is probably guilty of the offence; 2. this belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise; 3. the information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true; 4. this belief must be based upon reasonable grounds; 5. the information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.
Proof of the absence of reasonable and probable cause involves proof of a negative. Proof that any of the five conditions is absent will suffice to prove the absence of reasonable and probable cause for the prosecution.
Whether a prosecution was brought (or maintained) without reasonable and probable cause depends upon the assessment of the material available to the prosecutor. The inquiry involves both subjective and objective questions. The subjective question is what the prosecutor himself or herself "made of the available material"; the objective question is what the prosecutor "should have made of that material": A v NSW at [70].
In the plurality judgment in A v NSW two categories of prosecution were recognised: (i) those where the prosecutor may be supposed to have personal knowledge of the facts on which the prosecution is based; this will necessarily entail a belief in the prosecutor of the guilt of the accused person (such a case was Mitchell); (ii) those in which the prosecutor (most commonly a police officer or an officer of an official prosecuting agency of the state) acts on information provided by others: A v NSW at [13], [71], [80].
In the second category of cases the question is whether the prosecutor is shown (i) either not to have honestly formed the view that there was a proper case for prosecution or (ii) if such a view was formed, it was formed on an insufficient basis: unless one or the other is established by the plaintiff the element of absence of reasonable and probable cause for prosecution is not proved: A v NSW at [80]. The objective question may be answered by asking whether "the ordinary prudent and cautious man, placed in the position of the [prosecutor]" would have concluded that the material was such as to warrant prosecution (Fleming, at 681); or whether there was "evidence that persons of reasonably sound judgment would regard as sufficient for launching a prosecution", or "whether a reasonable man might draw the inference, from the facts known to him, that the accused person was guilty": A v NSW at [83], citing Crowley v Glissan (1905) 2 CLR 744 at 754; [1905] HCA 31 (italics in original).
The plurality rejected a test of subjective belief in the second category of prosecution, saying that requiring such a belief in (for example) a police officer would be inconsistent with what should desirably be the objective assessment and analysis of material provided by others: A v NSW at [73].

The second proceeding: Stanizzo v Badarne

In his Statement of Claim Mr Stanizzo pleaded that, acting in reliance on six statements made by Mr Badarne to Wollongong police, officers of police arrested him on 4 November 2010 and "laid certain charges", the charges being identified in the 2013 indictment and the 2011 indictment. Mr Stanizzo pleaded that Mr Badarne "instigated and was actively instrumental" in the commencement and continuation of each prosecution and was thereby liable to Mr Stanizzo as prosecutor.
In his final written submissions at first instance, Mr Stanizzo alleged that counts 4 and 5 of the 2013 indictment were maliciously instigated by Mr Badarne. He made no equivalent submission about the other counts on that indictment, including count 7. He maintained that Mr Badarne was responsible as prosecutor for all four counts on the 2011 indictment.

The evidence

Mr Stanizzo relied on six statements made by Mr Badarne to police, on, respectively, 7 November 2009, 21 August 2010, 24 September 2010, 25 October 2010, 15 November 2010, and 1 November 2011. Each statement was tendered on Mr Stanizzo's behalf without restriction as to the use to be made of it, as was a statement made by Mr Badarne's wife, Ms Rown Badarne, dated 26 October 2010. It was Mr Stanizzo's case that, by making the allegations contained in these statements, Mr Badarne "played an active role in the conduct" of his prosecution and "instigated" or "set in motion" the criminal process.
Mr Badarne's statement of 7 November 2009, the content of which has been outlined above in the context of the first proceeding, was corroborative of Ms Fregnan's allegations of the events of 25 May 2009 and also contained an account of representations Mr Badarne said had been made to him by Ms Fregnan concerning the events of 19 September 2008.
The statement of 21 August 2010 contained accounts by Mr Badarne of conversations he said he had had with Mr Stanizzo on 23 December 2009, 8 July 2010, 15 July 2010, 22 July 2010, 25 July 2010 and 30 July 2010. Put briefly, Mr Badarne claimed that Mr Stanizzo had, on a number of occasions, sought to dissuade him from acting for Ms Fregnan and that he had asked Mr Badarne to write a statement saying that Mr Stanizzo had never made sexual advances to Ms Fregnan. Mr Badarne said that he considered this to be "the absolute opposite of the truth" and declined to make such statement. None of the allegations in this statement gave rise to any charge against Mr Stanizzo.

The statement of 24 September 2010

In the statement of 24 September 2010 Mr Badarne said that, in August 2009, he left the Stanizzo practice and moved to another legal practice in Wollongong of which the principal was Mr Danny Lagapodis. He said that, on 14 November 2009, at Mr Stanizzo's request, he attended at Mr Stanizzo's home to discuss a file. He took with him a small USB digital recorder to record their conversation. He said that Mr Stanizzo said to him words to the effect of: "I will bury you."
Much, but not all, of the conversation that followed was recorded and later transcribed by the NSW Police Service. The transcript is in evidence. Mr Badarne said (in a subsequent statement dated 1 November 2011) that, from time to time during the conversation, he deactivated the recorder. The transcript therefore does not purport to be a complete record of the conversation between Mr Badarne and Mr Stanizzo. The conversation is important for the purpose of this proceeding and it is therefore necessary to set out some extended passages thereof. As recorded, the conversation opened with Mr Badarne saying "good morning" and Mr Stanizzo asking what Mr Badarne wanted. Mr Badarne answered that he would like to talk to Mr Stanizzo; Mr Stanizzo said that he did not want to talk to Mr Badarne. Mr Stanizzo is then recorded as saying: "You know what you should do you should grab a pistol and 'phum!' you have no honour, I told you that before, now you think that you people can do what you like, how can you do that to me, I treated you like a brother, I … ."
Mr Badarne is recorded as saying that he came to speak with Mr Stanizzo, and not to fight with him. Thereafter, the following is recorded: "[Mr Badarne]: Listen, Vince, listen, Vince, Vince, Vince, you throw enough shit on me. [Mr Stanizzo]: And you deserved it, you deserved it. [Mr Badarne]: You threw enough shit, you want to continue throwing shit? [Mr Stanizzo]: Yes, you come to it, it come to this you either bury me or I'll bury you, if you bury me you go to gaol, if I bury you I go to gaol that's as simple as it is… I tell you I was born in Calabria, people like you will never, never, never get away with that. … I not only bury you, I'll bury your daughter, your wife, everybody and even I go to Israel and I'll bury your brothers if I need to. … [Mr Stanizzo]: Look, I'm telling you, I'm telling you that I am not a stupid American that believes in the peace process, you know the only peace process I will believe … the same one that the Germans had for the Jews … [Mr Stanizzo]: You know what I will do to you and your people? [Mr Badarne]: No. [Mr Stanizzo]: From Damascus or Palestine all the way to Rome, crucified like the Romans used to. That's why they held an empire for a 1,000 years. [Mr Badarne]: Because they crucified them. [Mr Stanizzo]: Exactly. The only way you go through people is through their fear in their mind, like Stalin did. … [Mr Badarne]: You talking shooting me and burying … [Mr Stanizzo]: Well when it comes, you, you threatened me. [Mr Badarne]: With what? [Mr Stanizzo]: We, I tell you something, I tell you something we in my part of the world we never make a threat unless we tend to carry it out. [Mr Badarne]: We don't, in my part of the world, we don't make a threat and we don't do these things. [Mr Stanizzo]: Well I've told you … Muhammad before … I tell you what I would've done after September 11 … I would have said to my army, air force load up with as many atomic bombs that you can find and carpet bomb the whole of the Middle East. … [Mr Stanizzo]: You, you, I tell you I tell you something if something happens to me, if something, I'm telling you if something happens to me, something happens to me … My relatives they know where your brothers and your family live, I'm telling you … You know what they're going to do they're going to slice them like mortadella bit by bit, bit by bit, bit by bit …" This was the foundation for the first count of intimidation on the 2011 indictment.
In the 24 September 2010 police statement, Mr Badarne then referred to an exchange with Mr Stanizzo on 10 June 2010, when he attended Mr Stanizzo's office in order to return a file. He asked Mr Lagapodis to accompany him and return the file. He said that he remained in the car while Mr Lagapodis returned the file. Mr Stanizzo came out of the office behind Mr Lagapodis and said: "Where is the rest of the file Mr smart arse?" Mr Badarne said that it was all there. Mr Stanizzo walked up to the car and said: "Why don't you come out of the car and let us see you who will bury who? Do you think I'm scared of you? Come on out." Mr Badarne said that Mr Stanizzo then placed his hand on the roof of the car directly above where Mr Badarne was sitting and said again "I will bury you." This was the foundation for the second count of intimidation on the 2011 indictment.
Mr Badarne said that he felt intimidated and was frightened that Mr Stanizzo might hurt him. Mr Badarne said that he then (on 11 June 2010) lodged a complaint with the OLSC. The complaint included references to the exchanges of 14 November and 10 June. Mr Badarne asked that the letter attaching the complaint not be provided to Mr Stanizzo.
On 24 November 2010 Mr Lagapodis made a statement about the events of 10 June. He said that, since Mr Badarne had worked with his firm, he had frequently spoken to Mr Stanizzo for various reasons. He said that, on each occasion, Mr Stanizzo made derogatory and offensive remarks about Mr Badarne. He confirmed Mr Badarne's account of the encounter on 10 June 2010, including the circumstances in which he came to accompany Mr Badarne, that Mr Badarne remained in the vehicle in the carpark while he (Mr Lagapodis) delivered the file, and, importantly, the language used by Mr Stanizzo.
Mr Badarne went on in his statement to recount an incident that he said took place on 12 September 2010, a Sunday. He said that he was in the backyard of his home cutting firewood when Mr Stanizzo arrived. Mr Badarne asked "how can I help you?" to which Mr Stanizzo replied "You will regret it". Mr Badarne asked for an explanation. Mr Stanizzo spoke about a file he had given to Mr Badarne to reassess the bill after an assessment. Mr Stanizzo said: "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." Mr Badarne said that Mr Stanizzo was very close to him and was using his right hand to symbolise a chopping motion. This was the foundation for the third count of intimidation.
The encounter was witnessed, through a kitchen window, by Mr Badarne's wife, Rown Badarne. In a statement dated 26 October 2010 Mrs Badarne described what she had seen. She said that she saw Mr Stanizzo approach Mr Badarne. She could not hear what was said, but could tell from Mr Stanizzo's facial expressions that he was really angry. She saw him using a chopping motion with his right hand moving up and down towards Mr Badarne. She saw Mr Stanizzo move closer to Mr Badarne, and thought he was going to hit Mr Badarne. Mr Stanizzo then took a few steps back, as if to leave, but then turned and walked back, again waving his right hand in a chopping motion. Mr Stanizzo then left. Ms Badarne said that she then walked out to the backyard to tell Mr Badarne what she had seen. She said that Mr Badarne was very distressed and upset.

The statement of 25 October 2010

In the statement of 25 October 2010 Mr Badarne gave an account of a further confrontation with Mr Stanizzo (on 21 October), when the two had a disagreement over the payment of costs. Mr Badarne said that Mr Stanizzo said to him: "Don't ever think that you are dealing with stupid Americans. Unlike the yanks, I will bury you. In the end it will be either me or you. In the matter of [withheld] you were stupid." Mr Badarne said that, during the course of that day, Mr Stanizzo telephoned him twice more. In one call, he shouted at Mr Badarne that he (Mr Stanizzo) was "not as soft as the American army", and, in response to Mr Badarne saying that he was not interested in his threats, said before hanging up: "When I fight you, it will be either me or you. I have not finished with you yet." These telephone calls were the foundation for the fourth and final count of intimidation.

The statement of 15 November 2010

In his statement of 15 November 2010 Mr Badarne wrote of a telephone call with Mr Stanizzo on 2 November 2010 which he made from Corrimal Police Station and which was expected to be (but was not, by reason of equipment malfunction) recorded pursuant to the Surveillance Devices Act warrant to which reference has been made above (at [54]).
Mr Badarne gave his recollection of the conversation. He said that he opened by telling Mr Stanizzo that police and Ms Fregnan were asking him to provide a statement. He told Mr Stanizzo that Ms Fregnan was saying that Mr Stanizzo did "sexual things" to her, more than once. Mr Stanizzo said that Ms Fregnan was a liar, trying to advance her own interests, and "only after money, she wants my skin". Mr Badarne said that he "heard things" and referred to an occasion when Mr Stanizzo had asked Ms Fregnan for a massage and for her to go to his room where he shut the door. (This was clearly a reference to 25 May 2009). Mr Badarne said that Mr Stanizzo acknowledged that he had called Ms Fregnan to give him a massage but said that his door was open. Mr Badarne disputed that, and then Mr Stanizzo urged him not to give a statement. He counselled Mr Badarne to say that he did not know anything; he then said (according to Mr Badarne): "I will pay you your share in the fees in the matter of [withheld]; we have had difference but the fees is different thing [sic], I will pay you. Look, if you want to give statement to police then you will be really my enemy".
Mr Badarne said that the following day on 3 November 2010 another attempt was made to record a telephone conversation with Mr Stanizzo, but that the recording equipment again malfunctioned. He did not give any detail of the conversation.
Mr Badarne then referred to the meeting of 4 November 2010, when Mr Stanizzo had produced for Mr Badarne's signature the draft statutory declaration which gave his (Mr Stanizzo's) version of what had occurred on 25 May 2009, a version that Mr Badarne disputed. An account of the relevant content of that conversation can be found at [55]-[67] above.

The statement of 1 November 2011

Mr Badarne's statement of 1 November 2011 was confined to clarifying the circumstances of the recording of his conversation with Mr Stanizzo at Mr Stanizzo's house on 14 November 2009. Mr Badarne acknowledged that, at times during parts of the conversation that he considered to be unimportant, he had paused the recording and that it was therefore not a complete record of that conversation.

Mr Stanizzo's evidence

Mr Stanizzo's evidentiary statement in support of his claim (5 June 2017) runs to 52 pages. It is largely devoted to a lengthy account of conflict between himself and Mr Badarne, with detail of what he asserted to be misbehaviour by Mr Badarne which culminated in Mr Stanizzo terminating the arrangement between them. There is a great deal of detail about a particular transaction. It is apparent that Mr Stanizzo suspected that Mr Badarne was using fees generated by his work in the practice which ought, according to their arrangement, to have been shared with Mr Stanizzo, for his own private property purchase.
Mr Stanizzo said that on 28 August 2009 he notified the OLSC of a complaint about Mr Badarne's conduct and that Mr Badarne was advised of this complaint. He said that, following that, complaints against Mr Stanizzo were lodged with the OLSC by a number of Mr Badarne's clients. He made it plain that he considered that these complaints had been prompted by Mr Badarne.
Mr Stanizzo said that on 12 May 2009, in the company of Olga Nikolovska (apparently a solicitor who had worked in his office), he drove to Mr Badarne's house, referred to a client of Mr Badarne, and told Mr Badarne that he did not want to see that client in the office again, to which Mr Badarne replied: "I will bury you."
Mr Stanizzo referred, only briefly, to the meeting of 14 November 2009. In contrast to Mr Badarne, he said that Mr Badarne visited his house without prior notice, alighted from his car and said "let us not spill blood between us".
Mr Stanizzo then gave an account of a conversation between the two men that he alleged had occurred on 23 December 2009, when he telephoned Mr Badarne and invited him to his (Mr Stanizzo's) house for a further discussion about the disputed issues. He gave a lengthy account of the conversation he asserted took place that, he said, resolved the issues between them and ended apparently amicably.
Mr Stanizzo referred to the complaint lodged by Mr Badarne with the OLSC on 11 June 2010 of which he said he was unaware until after the criminal charges against him had been laid. He said that the complaint contained a false account of the meeting of 14 November 2009 and of the visit by Mr Badarne and Mr Lagapodis to his office on 10 June 2010.
Mr Stanizzo then said that, on 2 November 2010, Mr Badarne telephoned him and told him that Ms Fregnan and the police had approached him and asked for a statement about the events of 25 May 2009. He said that they had discussions on that and the following day which resulted in Mr Badarne agreeing to make a statement for Mr Stanizzo. He said that Mr Badarne asked Mr Stanizzo to prepare the statement and said that he would come to the office to sign it the next day (4 November).
Mr Stanizzo then addressed each of the police statements made by Mr Badarne.
He denied virtually every fact asserted by Mr Badarne, calling each one "false" or "a fabrication". He took issue with the circumstances in which Mr Badarne said that the meeting of 14 November 2009 at his house took place; he said that, contrary to Mr Badarne's assertion that he (Mr Stanizzo) had requested the meeting, Mr Badarne attended without prior notice and that he (Mr Stanizzo) had no reason to request a meeting or expect Mr Badarne to make contact with him. He said (notwithstanding the evidence of the tape recording) that the conversation alleged by Mr Badarne was a fabrication, and that some words attributed to him had been spoken "on various other occasions".
Mr Stanizzo was cross-examined about that conversation. He said that the recording had been "doctored"; that some parts of the recording represented statements made by him on 23 December 2009, not 14 November 2009. He said that the recording was "a cut and paste job". He did agree that his voice could be heard on the tape recording. He accepted that he had said all of the words that were attributed to him. He accepted that some of his words could be construed as a threat. He said that he did have a tendency, when upset, to: "say stupid things that - that are repeated historically with a flavour of historical events and sometimes I lose track of when something was said at what time".
He maintained that the word "bury" was first used by Mr Badarne (in what he said was the conversation on 12 May).
With respect to the 10 June 2010 allegation, Mr Stanizzo said that the arrangement had been for Mr Lagapodis (without Mr Badarne) to attend his office, where Mr Badarne was "persona non grata", but that Mr Badarne nevertheless accompanied Mr Lagapodis; Mr Badarne did not stay in the car (as Mr Badarne alleged) but stood on the landing of the rear stairs to the office suite where he could hear the conversation. Mr Stanizzo said that the words and actions attributed to him were "fabrications".
Curiously, perhaps, Ms Gael MacPherson was called in Mr Stanizzo's case. Ms MacPherson said that, in June 2010, she was working in Mr Stanizzo's office. She recalled an occasion when Mr Lagapodis came to the office to see Mr Stanizzo. The two men (Mr Stanizzo and Mr Lagapodis) met in what had previously been Mr Badarne's office. They then walked out, and Ms MacPherson saw a car in the carpark. The encounter of which Ms MacPherson then gave evidence took place (as Mr Badarne said) in the carpark of Mr Stanizzo's office. Ms MacPherson said that Mr Stanizzo walked up to the car (where Mr Badarne was). She said that Mr Badarne said to Mr Stanizzo "you're scared to see me" to which Mr Stanizzo replied: "No … why don't you step outside of the car and see who will bury whom?"
With respect to the 12 June 2010 allegation (the alleged visit by Mr Stanizzo to Mr Badarne's home) Mr Stanizzo said that Mr Badarne's assertions were "fabrications" and that no such words were spoken.

Mr Stanizzo's submissions at trial

At the conclusion of the trial counsel for Mr Stanizzo provided 87 pages of written submissions. The opening paragraphs are extracted at the commencement of that part of the primary judgment in which his Honour deals with the second proceeding (Stanizzo v Badarne). The submissions are very largely a floridly expressed attack on the character of Mr Badarne and a catalogue of what were asserted to be his delinquencies and malefactions in relation to Mr Stanizzo. All this was designed, as the primary judge found, to establish a motive in Mr Badarne to harm Mr Stanizzo by making false allegations about him (and therefore prove malice on his part). The submissions went so far as to identify evidence that had been sought to be obtained on Mr Stanizzo's behalf by the issue of subpoenas and notices to produce - unsuccessfully, it may be inferred, because of rulings by the court (which were not identified), and to what use that material might have been put.
It was only in the last 8 pages of the 87-page written submissions that any attention was paid to any of the four elements of the tort of malicious prosecution set out above. There it was submitted: "108. Badarne is liable for malicious prosecution of Stanizzo if, as a matter of substance and not of form he has played an active role in the instigation or maintenance of the prosecution, such as to enable him to be characterised as a prosecutor. An example of such conduct is 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. … 109. In this case, the decision of the official State Prosecutors, being the Police, in particular Det Murdock, and the relevant ODPP officers and Crown Prosecutors, to initiate and maintain the prosecution was materially tainted by Badarne's false allegations, concocted information and dishonest conduct. 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." The reference to an assault on Mr Stanizzo by David Dunn was a reference to evidence of such an assault (which we have intentionally not included on the grounds of lack of relevance), as to which there was an attempt to inculpate Mr Badarne.
A single paragraph of the submissions was then directed to each of the six counts on the indictments for the prosecution of which Mr Stanizzo claimed that Mr Badarne was responsible. In each case the substance of the submissions was that what Mr Badarne had said in his statements to police was false. From that, it may be assumed (because it was not explicit) Mr Stanizzo sought to have drawn an inference that, in instigating the prosecution, Mr Badarne acted both maliciously and without reasonable and probable cause. Mr Stanizzo placed considerable emphasis on the fact that Mr Badarne had not given evidence in the trial. He submitted that "a very strong Jones v Dunkel [(1959) 101 CLR 298; [1959] HCA 8] inference arises against Badarne from his failure to give evidence in his defence of Stanizzo's claim, or to call any witness in his defence, in particular [certain named or identified individuals]".

The primary judgment

The primary judge, while noting the submissions, clearly (and unsurprisingly) found them to be of little assistance. He found (at [171]) that Mr Badarne was not at any time a prosecutor of Mr Stanizzo in relation to any of the six counts on which Mr Stanizzo relied. He gave a number of reasons for that conclusion, the first being that Mr Stanizzo had failed to prove that any of Mr Badarne's allegations was false. That finding, as will be explained below, was relevant to the question of whether Mr Badarne was shown to have been a prosecutor. He found (at [172]) that Mr Stanizzo had failed to establish that Mr Badarne acted maliciously. He expressly declined to embark upon a factual determination of "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" (at [172]).
His Honour noted that, even: "172 …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."
The primary judge rejected Mr Stanizzo's Jones v Dunkel argument, noting that: (i) the onus of proving his case lay on Mr Stanizzo; (ii) all of Mr Badarne's statements to police, containing the whole of his allegations, had been tendered on behalf of Mr Stanizzo himself in his case; and (iii) no inference of any assistance to Mr Stanizzo arose from the failure of Mr Badarne to address the detail of Mr Stanizzo's allegations against him (that were peripheral to the real issues).
Having referred to the four counts of intimidation, his Honour said: "159 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. … 164 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. 165 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. 166 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. 167 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."

The appeal

The grounds of appeal as pleaded in the second proceeding effectively reduce to two. The first is that, in finding that Mr Stanizzo had not established that Mr Badarne's allegations were "false and malicious" (the concatenation of words is not without significance) the primary judge was in error, because he "wrongly dismissed without consideration" Mr Stanizzo's evidence contained in his evidentiary statement and in other documents. The second ground alleges error in the finding (at [159]) by his Honour that Mr Stanizzo had not denied saying what was alleged against him.

Was Mr Badarne a prosecutor?

In oral argument senior counsel for Mr Stanizzo took issue with the primary judge's conclusion that Mr Badarne was not a prosecutor. That proposition must be examined separately in relation to the Fregnan charges (counts 4 and 5 on the 2013 indictment) and the Badarne charges (the 2011 indictment). The argument relied on long-standing authority that recognises that, for the purposes of the tort of malicious prosecution, the term "prosecutor" is not limited to public officers (for example, a police officer "informant" or the DPP) who, in the name, or on behalf, of the State invoke the criminal process, or (more rarely in modern times) to a private individual who does the same thing.
As mentioned above, the identification for the purposes of an action in malicious prosecution, of the appropriate defendant is not always straightforward. Liability will or may be incurred where the defendant: "… play[s] an active role in the conduct of the proceedings, as by 'instigating' or setting them in motion." (A v NSW at [34]) Different results potentially emerge from the application of that test to the Fregnan charges and to the Badarne charges.

(i) The Fregnan charges

It is difficult to see, on the evidence outlined above, that Mr Badarne was a prosecutor of the Fregnan charges. What he did was, on 7 November 2009, to provide to Detective Murdock a statement in which he corroborated Ms Fregnan's account of the events of 25 May 2009. That could hardly be said to be the instigation of the charges, or the setting in motion of the proceedings. That had already been done by Ms Fregnan's report to Detective Murdock on 8 October. Nor could it be said, for the purposes of a claim of malicious prosecution, that providing a witness statement (of itself) is playing an active role in the conduct of the proceedings. Significantly more than that is required.
It may be - there was no evidence to this effect - that Mr Badarne's support for Ms Fregnan's account of that event strengthened any resolve Detective Murdock may have had to lay charges. (There was evidence, referred to below, in the COPS entries that Detective Murdock harboured some doubts about the veracity of Ms Fregnan's complaints, and her motivation in making them). On the other hand, the provision of Mr Badarne's statement did not immediately result in charges being laid - that did not happen until a year later. Giving support for an account of events that constitutes a complaint of criminal conduct does not amount to the instigation of criminal proceedings or the setting in motion of the criminal law. That is sufficient to dispose of the proposition that Mr Badarne should be characterised as a prosecutor of the Fregnan charges.
Senior counsel for Mr Stanizzo, however, had another arrow in his quiver. He argued that Mr Badarne's 7 November 2009 statement contained within it a demonstrably and deliberately false assertion. That was the statement that Mr Stanizzo had disabled the door to his office so that it could not be opened from the outside and had done so in order to prevent Mr Badarne from entering because Mr Badarne had on prior occasions "caught him in the office with other woman (sic)". This, it was argued, was directly contradicted by the evidence of David Stanizzo, that the door had, from Mr Stanizzo's initial occupation of the office, been defective and could not be opened from the outside.
The deliberate and knowing falsity of Mr Badarne's assertion was, on the argument, sufficient to convert Mr Badarne from a mere "potential witness" to a "prosecutor". This argument depended on a single passage from the judgment of Dixon J in Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30 at 379. His Honour said: "The legal standard of liability for a prosecution which is instituted neither by the defendant nor by his servant is open to criticism on the ground of indefiniteness. It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority. But, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible. … The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings. If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him. The expression 'instigate' is not altogether free of ambiguity … ." (internal citations omitted) (emphasis added)
Thus, providing knowingly false information to a prosecuting authority (the police or the ODPP) that has the effect of instigating a prosecution by that authority may constitute the person who provides the knowingly false information as prosecutor, for the purposes of the tort of malicious prosecution. That, senior counsel proposed, was sufficient to render Mr Badarne a prosecutor in relation to counts 4 and 5 in the 2013 indictment.
Three responses, each independently fatal to the submission, may be made. First, Mr Badarne's assertion (that Mr Stanizzo had deliberately disabled the door handle to prevent access to his office from outside) was peripheral to the central point of Mr Badarne's statement, which was directed to the circumstances in which Ms Fregnan was to give Mr Stanizzo a massage, what Mr Badarne heard emanating from the office after Mr Stanizzo and Ms Fregnan entered, and Ms Fregnan's apparent distress and dishevelment when she left. True it is that, if shown to be incorrect, the assertion of the circumstances in which the office door came to be inoperable from the outside could have been damaging to Mr Badarne's credibility. That the office door was inoperable from the outside was common ground. But Mr Badarne's assertion on the circumstances of the inoperability was equally open to interpretation as a statement of his belief or understanding or an assumption. A conclusion (on the assumption that David Stanizzo's evidence was accepted) that Mr Badarne was wrong in his assertion falls far short of a conclusion that the assertion - and, more importantly, the description of events that followed - was a deliberate lie, sufficient to fix Mr Badarne with liability for the institution of the criminal proceeding.
The second flaw in the argument is that it depends entirely on accepting the evidence of David Stanizzo. The primary judge made no finding about David Stanizzo's evidence, no doubt because the issue was of little, if any, significance. The true issue was what happened behind the office door, as to which the only evidence contradicting the evidence of Ms Fregnan and Mr Badarne, was that of Mr Stanizzo himself (evidence on which the primary judge was not prepared to act unless corroborated independently).
The third fatal flaw in the argument is that, even if it were found (which we do not find) that Mr Badarne's explanation for the external dysfunction of the door was a deliberate lie, there was nothing to suggest that it operated on Detective Murdock's mind so as to "procure" the laying of the charges and thus make Mr Badarne responsible for the prosecution.
On no view of Mr Badarne's statement, could he be said to have instigated the criminal proceedings. His statement was no more than a supporting statement as to the events of which Ms Fregnan complained.
Senior counsel submitted that the failure of the primary judge to address the issue of the conflict between David Stanizzo's evidence and Mr Badarne's statement provides the basis for a new trial. We do not agree. In our opinion, either the primary judge did not accept David Stanizzo's evidence, or, more probably, did not consider the conflict to be of sufficient moment to warrant an express finding. As we have concluded above, even if the primary judge had accepted David Stanizzo's evidence, Mr Badarne's contrary account could not have had the effect of misleading Detective Murdock into a decision to lay the charges.
In dealing with this event, the primary judge considered the tape-recorded meeting between Mr Stanizzo and Mr Badarne on 4 November 2010 to be of significance. He found it difficult to characterise what was there recorded other than as an attempt by Mr Stanizzo to have Mr Badarne sign a document that Mr Badarne protested was factually wrong. That lent significant support to Ms Fregnan's evidence that Mr Stanizzo had sexually assaulted her, and also to Mr Badarne's corroborating evidence. Mr Badarne's statement was not, as was contended, shown to have been false.
There was no error in the primary judge's finding that, with respect to the Fregnan charges, Mr Badarne was not a prosecutor.

(ii) The Badarne charges

Nor was there error in the finding that Mr Badarne was not a prosecutor in the Badarne charges, although it may be acknowledged that that position is perhaps less clear.
Again, senior counsel relied on what were said to be deliberately and maliciously false statements made by Mr Badarne. Senior counsel accepted that Mr Badarne could be a prosecutor in relation to those charges: "…only if we establish he gave knowingly false evidence and was motivated by malice."
Mr Badarne gave accounts of four separate incidents of intimidation, as set out in detail above. The primary judge dealt with this simply by finding (at [171]) that Mr Stanizzo "cannot demonstrate the falsity of anything that Mr Badarne told the police". At [164] he said that Mr Stanizzo simply had not proved that the complaints were false to Mr Badarne's knowledge; at [165] he said that Mr Badarne's only contradictor was Mr Stanizzo himself. At [166] he said that Mr Badarne's complaint had not been, and could not be shown to be, false by reference to any evidence or competing version of events coming from a source independently of Mr Stanizzo, and that Mr Stanizzo was unable to refer to or draw upon any credible testimony or objective evidence with the slightest tendency to cast the accuracy or the veracity of Mr Badarne's statements to the police into any doubt at all.
Again invoking David Stanizzo's evidence, senior counsel argued that this was wrong and that there was evidence to support Mr Stanizzo. That is simply incorrect. David Stanizzo's evidence has no bearing on Mr Badarne's statements about the counts of intimidation, of which he was the alleged victim.
Only in two respects was it suggested that the finding of the absence of contradictory evidence in relation to the Badarne charges was wrong. The first was that each was denied by Mr Stanizzo in his evidentiary statement. The second was that Ms Gael MacPherson had given evidence with respect to the offence alleged to have been committed on 10 June 2010 (the incident in the carpark at Mr Stanizzo's office).
Having regard to the adverse credit finding by the primary judge with respect to Mr Stanizzo, the fact that he denied the conversations or statements attributed to him can have little weight. But there is more substantial material to support the approach of the primary judge. The conversation of 14 November 2010 was, in part, recorded on tape. The opening words of the tape recording give support to Mr Stanizzo's position that the meeting had not been initiated by him and, indeed, that Mr Badarne's visit came as a surprise to him. They support his evidence that Mr Badarne's arrival was unexpected and unwelcome. Thereafter, however, the content of the tape recording is inescapably adverse to Mr Stanizzo and supportive of what Mr Badarne said.
In cross-examination Mr Stanizzo acknowledged that the voice on the tape recording was his and that he had spoken the words recorded. He maintained that some of the words had been said on other occasions, a proposition which is highly unlikely. While it might be accepted that the recording was partial only and may not have recorded any provocative words spoken by Mr Badarne, there is no avoiding the reality of the very highly intimidatory language that can be heard and that was used by Mr Stanizzo. Mr Stanizzo did not give any evidence to support his claim to have been provoked.
The tape recording is highly corroborative of Mr Badarne's claims. It is relevant, not only in the count relating to 14 November 2010, but also to the other counts. The conduct attributed to Mr Stanizzo on the other occasions is consistent with what can be heard on the tape recording.
Senior counsel also relied on the evidence of Ms MacPherson in support of the proposition that Mr Badarne's statements were knowingly false. That is difficult to understand: in three very material respects Ms MacPherson contradicted Mr Stanizzo and confirmed Mr Badarne's account of the meeting in the carpark on 10 June. She confirmed that the encounter with Mr Badarne took place in the carpark; she confirmed that Mr Badarne remained in the car; and she confirmed that Mr Stanizzo said the words: "Why don't you step outside of the car and see who will bury whom." Mr Badarne's account was also corroborated by the statement of Mr Lagapodis.
There was also corroboration (in the statement of Mr Badarne's wife) of both the visit by Mr Stanizzo to the Badarne home on 12 September 2010 and his apparently threatening and intimidatory behaviour.
The only foundation for the proposition that the primary judge erred in failing to find that Mr Badarne was a prosecutor was the asserted falsity of Mr Badarne's allegations, such as to make him liable in accordance with the principles stated by Dixon J in Brain. Far from establishing falsity, the evidence supports Mr Badarne's allegations.
The primary judge was correct to find that Mr Badarne was not, by reason of deliberately malicious and false allegations, a prosecutor.
Since the four elements of the tort of malicious prosecution are cumulative, that means that Mr Stanizzo's case had to fail.
It is therefore necessary to deal only briefly with the remaining elements of the tort. The second element is not in issue; the criminal proceedings terminated in Mr Stanizzo's favour.
Proof of the third element, malice, depends on proof that the sole or dominant purpose actuating the prosecutor in bringing the proceedings was a purpose other than the proper invocation of the criminal law - "an illegitimate or oblique motive": A v NSW at [91].
The primary judge, correctly, held that Mr Stanizzo had failed to discharge the onus of proving that element. A conclusion of malice is contradicted by the circumstances we have set out above, in the consideration of whether Mr Badarne's statements to police were deliberately false. Even if Mr Badarne could be held to have been a prosecutor, there was not the slightest basis in the evidence for a conclusion that he reported the four occasions of intimidation, or gave his evidence supporting Ms Fregnan, for any purpose other than the proper invocation of the criminal law. The evidence relied on by Mr Stanizzo establishes, in fact, that Mr Badarne had every reason to involve the criminal law. That there was a history of ill-will between the two men does not establish a misuse of the processes of the law, where there is considerable other evidence of criminal conduct.
Mr Stanizzo addressed no argument to the fourth element, the absence of reasonable and probable cause. That, no doubt, was because there was nothing that could usefully be said. Once it is accepted, as it must be (at least for the purposes of these proceedings) that Mr Badarne was not fabricating his allegations, it must also be accepted that there was a proper case for the prosecution of each of the charges.
The appeal against the order of the primary judge dismissing the second proceeding is dismissed with costs.
It follows that the notice of motion of 29 January 2021 (in which Mr Stanizzo sought restraining orders with respect to property) must also be dismissed.
Two further observations might be made. In written submissions in reply, it was proposed on behalf of Mr Stanizzo, that the various statements tendered in evidence in his case without limitation should not be regarded as evidence of the truth of their contents. That argument was not adopted by senior counsel who appeared on the appeal (who was not the author of the written submissions).
It was also proposed that some evidence that was not admitted in the trial should now be admitted. No application, pursuant to s 75A(7) of the Supreme Court Act, to admit further evidence was made; had any such application been made, it would have been subject to the qualification in sub-s 75A(8), that requires "special grounds" for further evidence, where the appeal in question is from a judgment given after a hearing on the merits. No "special grounds" can be identified.

The third proceeding: Stanizzo v the State of NSW

Before proceeding to deal with this appeal, we note the following. This appeal in both written and oral submisisons was conducted by junior counsel for Mr Stanizzo. After judgment was reserved, the Court received, by email, an application by junior counsel for Mr Stanizzo for leave to provide further written submissions. The Court refused leave and, by email, so advised counsel. Notwithstanding that refusal, junior counsel purported, again by email, on at least three further occasions, to provide further written submissions. The parties were advised that the purported further submissions would not be taken into account. In what follows we have disregarded those purported further submissions.
The Statement of Claim was filed in the Supreme Court on 5 October 2016. It identifies the claim as: "Claim in Torts for: - Wrongful arrest; - Malicious prosecution."
Appended to the statement of claim were three attachments - a 41 page document entitled "Attachment A", and annexures B and C, being respectively, copies of the 2011 and 2013 indictments, containing the Fregnan charges and Badarne charges.
Paragraphs 3 to 19 of Attachment A, under the heading "Wrongful Arrest", constituted a narrative account of the arrest of Mr Stanizzo on 4 November 2010 until his release on bail the following day, and the execution of the search warrant on 4 November. Those paragraphs were then incorporated in the next section of the document, under the heading "Malicious Prosecution", which continued for the remainder of the lengthy document.
Attachment A is a melange of narrative, assertions and arguments. At [21] it was asserted that: "21. The Defendant acting through Police officers and ODPP officers caused the Plaintiff to be prosecuted on indictment on charges, originally as laid on 4 November 2010, as pleaded in paragraph 7."
It was then asserted that: "25. The Defendant, acting through the responsible Police officers and ODPP officers, so instituted and maintained the prosecuted [sic] of the Plaintiff: (a) Without reasonable and probable cause; and (b) Maliciously."
The only police officer identified as responsible for the prosecution was Detective Murdock. The ODPP officers so identified were Crown Prosecutor Michael Barr and instructing solicitor Helen Rallis.
It was then pleaded that: "33. At the time of commencement of the prosecution and during its maintenance the actions of the Police and the ODPP officers were without regard to the improbability of the allegations made by Valvano [Ms Fregnan] and Badarne, which was deliberately or recklessly disregarded."
In its defence, the State admitted that, pursuant to Pt 4 of the Law Reform (Vicarious Liability) Act 1988 (NSW), it bore vicarious liability for any relevant tortious conduct of Detective Murdock, Mr Barr and Ms Rallis. It otherwise pleaded to the specific paragraphs of Attachment A to the Statement of Claim. It expressly admitted that, on or about 5 November 2010, the ODPP, pursuant to s 9 of the Director of Public Prosecutions Act 1986 (NSW) assumed conduct of the criminal proceedings against Mr Stanizzo; that the solicitor with carriage of the prosecution at Mr Stanizzo's trial was Ms Rallis; and that the Crown Prosecutor instructed at the trial was Mr Michael Barr.
The claim for wrongful arrest does not appear to have been pursued. It is not mentioned in the primary judgment. It has not been mentioned in the appeal. It is the tort of malicious prosecution that must be considered.
The first and second elements of the tort were not in issue. The State accepted that the criminal prosecution of Mr Stanizzo had been initiated by it, or by officers for whose wrongdoing (if any) it was vicariously liable. The State also admitted that the proceedings terminated in favour of Mr Stanizzo. That left for debate only the third and fourth elements (malice and the absence of reasonable and probable cause for the prosecutions).
Mr Stanizzo's case at first instance, and on appeal, involved an attack on Detective Murdock's bona fides in instituting his prosecution. It primarily concentrated on Detective Murdock's decision to charge Mr Stanizzo with the counts of sexual offences against Ms Fregnan. Little, if any, attempt was made to differentiate between Detective Murdock's state of mind in instituting the Fregnan charges, and his state of mind in instituting the Badarne charges. Instead, attention was directed to vast swathes of material contained in the appeal books, analysis of which, it was contended, ought to have convinced Detective Murdock that Ms Fregnan's allegations of sexual assault were false, such that Detective Murdock ought to have been found to have known that there was not "a proper case for prosecution": A v NSW at [80]-[81].

The primary judgment

The primary judge noted that Mr Stanizzo's contention was that analysis of the police records (the COPS entries) demonstrates that Detective Murdock knew, or at least ought to have known, that Ms Fregnan and Mr Badarne were conspiring with one another to make false allegations against him. His Honour noted "that the central theme" of Mr Stanizzo's submissions was that Detective Murdock "realised the likelihood that Ms Fregnan was lying out of malicious motives towards Stanizzo" (at [61]).
His Honour then dealt, serially, with the points made on behalf of Mr Stanizzo that, it was contended, had or ought to have led Detective Murdock to the conclusion that there was "not a proper case for prosecution".
These included:

the delay of 13 months in Ms Fregnan's first report of sexual assault (at [55]);
that, on examination of the materials seized pursuant to the search warrant executed on 4 November 2010, Detective Murdock ought to have realised that Ms Fregnan's prospects of success in the civil proceedings in which she was engaged were poor (a submission the primary judge regarded as "frankly extravagant") (at [71]);
Mr Stanizzo's denial that Detective Murdock had informed him prior to his arrest that Ms Fregnan's allegations against him were in relation to sexual assault, which led Mr Stanizzo to refuse the opportunity of a formal interview on 16 June 2010 and limit his response to "rubbishing" the allegations (at [72]);
Mr Stanizzo's assertion that he had told Detective Murdock that Ms Fregnan was "a trouble maker" (at [74]);
conflict in the evidence concerning Ms Fregnan's description of Mr Stanizzo's state of undress in the alleged assault of 19 September 2008 (Ms Fregnan said in her statement of 25 November 2009 that Mr Stanizzo was part naked, wearing only a dark coloured T-shirt; Mr Badarne, in his statement of 7 November 2009, said that Ms Fregnan had described Mr Stanizzo as "totally naked"; Detective Murdock also recorded, in the first COPS entry of 8 October 2009 that Ms Fregnan said that Mr Stanizzo was "completely naked") (at [65]).

It was put, on Mr Stanizzo's behalf, to the primary judge that there was some impropriety in Detective Murdock's arrangement for Mr Badarne to engage in a tape-recorded conversation with Mr Stanizzo on 4 November 2010. This, the primary judge recorded, was said to have amounted to an encouragement to Mr Badarne and Ms Fregnan to continue to collude in making malicious complaints against Mr Stanizzo which he (Detective Murdock) must have known "might well" have been malicious and false.
Reliance was also placed on the Bluestone Mortgages telephone records (see [82] above).
The primary judge considered and systematically rejected each claim and assertion made on behalf of Mr Stanizzo. He noted (at [81]) a catalogue of items of information in Detective Murdock's possession that the State contended "provided ample grounds for his suspicions that Mr Stanizzo had committed the offences with which he was charged".
Almost no submission in relation to the charges of intimidation of Mr Badarne was made. One exception was recorded as a submission that Mr Stanizzo was unfairly deprived of the opportunity to examine the tape recording of the conversation between Mr Badarne and Mr Stanizzo on 14 November 2009. The primary judge noted that, in cross-examination, Mr Stanizzo accepted that he had made the statements there recorded. Any failure of opportunity to examine the recording was, in those circumstances, inconsequential.
A second complaint related to the 2011 indictment (the Badarne charges) was that no evidence was adduced by the State to indicate that Detective Murdock, Ms Rallis or Mr Barr gave any consideration as to the fate of the Badarne charges after the abandonment of the Fregnan charges on 2 August 2013, and while the indictment containing the Badarne charges remained alive.

The appeal

Numerous grounds of appeal were pleaded. The first and principal ground asserted error by the primary judge in failing to find (i) absence of reasonable and probable cause to commence the prosecution; and (ii) that malice on the part of police and officers of the ODPP (presumably Detective Murdock, Mr Barr and Ms Rallis) was proved. By the ground numbered 23 of the FANoA it was asserted: "The judge erred in failing to find that the evidence of Valvano [Ms Fregnan] could at no stage have been reasonably considered as credible and could therefore be capable of warranting a prosecution."

Absence of reasonable and probable cause

The remaining "grounds" are little more than particulars of reasons why it is asserted that Detective Murdock should have disbelieved Ms Fregnan. A number of specific assertions rely on what are blatant misrepresentations of the primary judge's conclusions. Two examples will suffice.
Ground 23.2 was framed as follows: "The judge erred in treating Murdock as entitled to proceed with the prosecution unless he had an actual realisation that Valvano's allegations were deliberately false, or had material that demonstrated that Valvano's allegations were inherently improbable or obviously false, or was certain or confident that she was lying. … The judge should have found that Murdock had no reasonable and probable cause unless the material was sufficiently credible that in the interests of justice a prosecution should proceed … ." A v NSW was cited as authority for the proposition in the last sentence. Paragraphs [61]-[63] of the primary judgment were identified as containing the allegedly erroneous findings. No such finding is to be found in those paragraphs. In [61] the primary judge simply records that "the central theme" of Mr Stanizzo's submissions was that Detective Murdock realised the likelihood that Ms Fregnan was lying out of a malicious motive towards Mr Stanizzo. His Honour said that he was unable to conclude that Detective Murdock had, or even should have had, any such realisation. That was simply a rejection of a factual proposition advanced on behalf of Mr Stanizzo - indeed, it is a rejection that disposed of a good part of the argument advanced on behalf of Mr Stanizzo. But it was not a finding that Detective Murdock was entitled to proceed unless he had an actual realisation that Ms Fregnan's allegations were deliberately false, or had material that demonstrated that her allegations were inherently improbable or obviously false or was certain or confident that she was lying. Moreover, as [73] of A v NSW shows, it is not usually for a police officer to determine the credibility of a complainant or informant, or to embark on findings of fact about alleged offences. An objective analysis is what is required of a prosecutor such as a police officer who has no independent knowledge of the relevant fact but is dependent upon information supplied by a complainant or informant. In other words the reasoning wrongly attributed to the primary judge was not erroneous in any event.
In [63] the primary judge again restated a submission made on behalf of Mr Stanizzo that Detective Murdock had material in his possession that showed or demonstrated to him that Ms Fregnan's allegations were in fact false or concocted for an improper motive. By reference to that submission the primary judge said: "63 … 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, [to form the opinion] that the allegations were true." (italics added) His Honour added that he was satisfied that Detective Murdock had formed that opinion and that the material before him was sufficient for him to have done so; and that Ms Fregnan's allegations were neither inherently improbable nor obviously false. That was a finding that the subjective and objective aspects of the existence of reasonable and probable cause were established - and that Mr Stanizzo had failed to establish the contrary as he was required to do if he were to establish the four elements of the tort.
A second example is to be found in the appeal ground numbered 23.6 in the FANoA, which was framed as follows: "The judge erred in finding that Murdock would have reasonable and probable cause to proceed unless he knew that Valvano had a collateral purpose of advancing her interests in the Civil Case against Stanizzo, and should have found that Murdock should have enquired as to the facts of the Civil Case and not proceeded if it was probable that she had such a purpose, which she did." (bold in original) Para [71] of the primary judgment is identified as the location of the "finding".
The primary judge made no such finding. In [71] he referred to the submission (which he considered to be "frankly extravagant") that Detective Murdock should have known that Ms Fregnan's prospects of success in her civil case were poor. (Quite how Detective Murdock was to make that assessment was unexplained by Mr Stanizzo). In any event, far from finding that Detective Murdock would have reasonable and probable cause to proceed unless he knew that Ms Fregnan had a collateral purpose, the primary judge, having noted the submission, said: "71 … 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." These mischaracterisations make assessment of the grounds of appeal more difficult than it needs to be.
We propose to proceed, by reference to the written and oral submissions, on the basis that Mr Stanizzo asserts that the primary judge ought to have found (and this Court, in the exercise of its powers under s 75A of the Supreme Court Act ought to find) that Mr Stanizzo had proved the absence of reasonable and probable cause to proceed with the prosecution and that Detective Murdock was motivated by malice, and that Mr Barr and Ms Rallis likewise lacked reasonable and probable cause to maintain the prosecution after the ODPP took it over. That approach may be excessively generous to Mr Stanizzo. It reconstitutes the appeal he has formulated.
We now turn to the written submissions. Again, some caution needs to be exercised. The written submissions contain references to documents that were not in evidence in the trial, but have been reproduced in the appeal books. It is impossible, from the index to the appeal books, to know what documents were in evidence, and the transcript of the trial is not always helpful in this respect. In the State's submissions some such documents (including a judgment of the District Court judge in the criminal trial, and some transcript from that trial) were identified as not in evidence in the proceedings before the primary judge. That assertion was not contradicted in Mr Stanizzo's submissions in reply and may be taken to be correct. Indeed, in submissions in reply in the second proceeding, it was submitted that evidence not tendered ought now to be accepted. As mentioned above, no application for leave to adduce further evidence was made.
The submissions on behalf of Mr Stanizzo reduce to the proposition that, taking into account all of the material that was before Detective Murdock, he could not realistically have formed the view that there was "a proper case for prosecution" (A v NSW at [80]).
On behalf of Mr Stanizzo much was made of a conflict in the evidence about the telephone call Detective Murdock made to Mr Stanizzo on 16 July 2010. In his statement dated 2 December 2010 (tendered in Mr Stanizzo's case, without limitation as to its use) Detective Murdock said: "On Friday, 16 July 2010 I contacted the accused by telephone and spoke with him. I said, '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?' The accused said, 'Yes, I know Valvano.' I said, 'She is alleging that you sexually assaulted her on two occasions, at your house and at your office'. The accused said, 'That's complete rubbish, she is just trying to discredit me and a woman called Gael Mcpherson [sic]. We have a civil matter currently before the Supreme Court. That's complete rubbish'. I said, '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?' The accused said, 'No'. The call ended."
Mr Stanizzo's account of this conversation was given in his evidentiary statement made on 2 June 2017. He said: "Before he [Detective Murdock] arrested me I recall that he rang me in mid July 2010 and said words to the following effect: 'I am Senior Detective Murdock from Wollongong Police. I have received a complaint from Vivian Valvano. Are you willing to come to the police station and talk about it?['] He did not give me any particulars about the complaints nor did he say that I would be 'formally interviewed'. I said: 'What for? She is a trouble maker and has made complaints to the Office of Legal Services Commissioner which have been dismissed. She complains about the Caveat that I refused to withdraw because I am entitled to have on the Title pursuant to certain Deeds she signed after she received independent legal advice from a solicitor of her choice. She is trying to put pressure on me and Gail [sic] Macpherson as a Supreme Court hearing is listed in November this year. She has redrawn on the mortgage loan contrary to the Deed and now she has come to you to see how far she can go to force me to withdraw the Caveat'. He [Detective Murdock] said: 'That's what I want to hear.' And the conversation ended. I did not hear or see Murdock again till the day of the arrest on 4 November 2010."
Mr Stanizzo maintained this position in cross-examination. When the topic was introduced, Mr Stanizzo said that the conversation was as set out in his statement. He then said: "…And the way [Detective Murdock] set it out is false and is grossly misleading. And we would like to have the opportunity for Mr Murdock to be here instead of hiding on some sort of medical excuse that he's had a nervous breakdown because of this case. I wonder why … That's what he's done isn't it, he's applied … He makes a statement … ." Mr Stanizzo went on to say that, had Detective Murdock mentioned sexual assault, he would have consulted counsel with criminal experience and gone to the police station to see what sort of allegations were made.
The following submissions, which can only be described as florid, were made: "23. The call is also crucial because it showed both absence of reasonable and probable cause and a bias against Stanizzo indicative of malice, at this point in the investigation. 23.1 Murdock deliberately did not tell Stanizzo what Valvano's allegation actually was, this was concealed so that Stanizzo would not be on guard about future developments. 23.2 He did not mention that Badarne had made a Statement (7 November 2009). Had he done so Stanizzo would not have dealt with or talked to Badarne - contrary to Murdock's intention. 23.3 He thereby deprived Stanizzo of the opportunity to answer the allegations of Valvano and Badarne before investigation proceeded any further. All was part of a deliberate scheme to try to entrap Stanizzo." These submissions, with their accusations as to Detective Murdock's motivation, have not the slightest foundation in the evidence.
The principal difficulty with the reliance placed on Mr Stanizzo's version of the conversation of 16 July is, as was consistently the case, that the primary judge did not accept anything Mr Stanizzo said as true unless it was independently corroborated.
Another circumstance to which reference was made concerned the events of 2 and 3 November 2010, which occurred after the Surveillance Devices Act warrant had been issued. According to Detective Murdock two unsuccessful attempts were made for Mr Badarne to telephone Mr Stanizzo from the police station, with the intention that the conversations would be recorded in accordance with the warrant. Each attempt was unsuccessful because the equipment failed to record the call. The final attempt, on 4 November 2010, was the visit by Mr Badarne, fitted with the surveillance device, to Mr Stanizzo's office.
In his written submissions, junior counsel for Mr Stanizzo said that Mr Stanizzo does not accept as a fact that the recording equipment failed. There was no support in the evidence for the implied submission that Detective Murdock's evidence of the failure of the equipment was false.
The finding by the primary judge at [87] was challenged as erroneous. There the primary judge said that the case against Mr Stanizzo (in the criminal trial) unravelled when it became obvious (from the Bluestone Mortgages tape recordings) that Ms Fregnan had the cheque from Mr Stanizzo shortly after 3.00 pm on 19 September 2008 in contrast to Ms Fregnan's assertion that it was the promise of the cheque that lured her to accompany Mr Stanizzo to his home after 5.00 pm on that day. A seriously misleading submission was made in this respect with which we will deal as briefly as we can. The submission was that, from the execution of the search warrant on 4 November 2010, Detective Murdock was aware of the content of the Bluestone Mortgages tape recordings. (For a more complete account of the Bluestone Mortgages tape recordings see [82] above). That, it was said, was because the documents seized under the search warrant included the affidavit sworn by Ms Bontigao, filed in the civil proceedings brought by Ms MacPherson against Ms Fregnan, to which were annexed the "electronic notes" of the conversations Ms Fregnan was said to have had with Bluestone Mortgages employees on the afternoon of 19 September 2008. It was undoubtedly the discovery of the tape recordings that brought the criminal prosecution of the sexual assault charges to a sudden halt. It was said that Ms Bontigao's affidavit gave the lie to Ms Fregnan's account of the events of 19 September 2008.
As has been pointed out above (at [136]-[140]) there was nothing in the very short form of the electronic notes that demonstrated the falsity of Ms Fregnan's version of the events of that day. It was the production, during the course of the criminal trial, of the tape recordings, that provided the evidence that Ms Fregnan had recited the details of the 19 September cheque at a time before the time at which she claimed to have gone with Mr Stanizzo to his home.
So much is clear from Detective Murdock's notes of the circumstances in which that criminal trial aborted. He recorded in the COPS notes the following: "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. … 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 any records from Bluestone regarding calls made by VALVANO to Bluestone. Police obtained, under subpoena, voice recordings of calls made by VALVANO on the 19 September 2008 (date of first alleged sexual assault). These recordings revealed VALVANO had the cheque from STANIZZO at 3.48 pm that date. In a statement obtained from her at a prior date VALVANO had told police she attended STANIZZO's office approx. 5 pm that date and attended his home as he refused to give her the cheque if she refused. As a result an obvious discrepancy existed. The defence were 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 was made by the Crown to seek permission from the Director of Public Prosecutions to withdraw all charges against STANIZZO relating to VALVANO. …"
It would not be productive to engage with the further argumentative matters put on behalf of Mr Stanizzo. They are directed to the proposition that Detective Murdock ought to have declined to lay charges against Mr Stanizzo. That question can best be resolved by reference to what Detective Murdock did.
Detective Murdock received the first report from Ms Fregnan on 8 October 2009. He recorded in a COPS entry, in some detail, what she had told him, which is also recorded in statement form. Detective Murdock noted that he had questioned Ms Fregnan about why her first report was made 13 months after the first alleged assault, and that she explained that it was because of threats made by Mr Stanizzo. Detective Murdock then recorded: "Whilst talking to her it became apparent that there is still ongoing civil and financial issues between the two with the VIC [victim - Ms Fregnan] 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 [person of interest - Mr Stanizzo] 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." (italics added)
On 9 June 2010 Detective Murdock recorded (in COPS): "About 9 am on Wednesday 9th June 2010, Vivian VALVANO contacted the author. She stated that she had spoken with her barrister who is representing her in her civil case involving the POI, STANIZZO. She stated that she was advised by him that if STANIZZO was charged it would help her civil case and speed it up considerably. The author advised VALVANO that he would not be acting in any way, shape or form simply to support her civil case. She was advised that further investigation was necessary and that investigators would be taking appropriate action (if any) at a time when the investigation has concluded and not when it suited her civil case." (italics added) Detective Murdock went on to note that an appointment had been made for Ms Fregnan to attend at the police station to discuss the matter further.
Detective Murdock's next entry was on Friday 30 October 2009 when he recorded that Ms Fregnan had attended at the police station and provided him with a copy of a ten-page affidavit filed in the civil proceedings commenced against her by Ms MacPherson. Detective Murdock noted that the affidavit contained no information about the sexual assault allegation and simply related to the "ongoing civil dispute" between Ms Fregnan and Mr Stanizzo.
Detective Murdock then made a further note to the effect that the affidavit referred to Ms Fregnan having received a cheque from Mr Stanizzo in the sum of $134,518.07 on 19 September 2008 and "then attending his residence to celebrate". Detective Murdock said: "However, in paragraph 26 she states 'we had coffee at his place and discussed.' It makes no mention whatsoever of the alleged sexual assault."
Detective Murdock went on to record: "It is the authors strong opinion that the VIC is simply using police to try and discredit the POI in the civil dispute. She will be contacted in the following week to organise a time for her to attend WGPS [Wollongong Police Station] to be spoken to at length regarding this matter. Should she still wish to pursue the matter a statement will be obtained from her and the POI and WIT [witness] spoken to. As previously stated, there are no witnesses to the alleged sexual assault, no first complainant [sic-?? complaint], no DNA or physical evidence and no other evidence to support the VIC's allegations." (italics added)
It may be noted that Detective Murdock's comment in the COPS entry that the affidavit filed in the civil proceedings made "no mention whatsoever of the alleged sexual assault" may not have been entirely accurate. The affidavit to which Detective Murdock apparently referred was in evidence. It is correct that in the affidavit Ms Fregnan said that the cheque was handed to her in Mr Stanizzo's office (which was not inconsistent with the account she gave of having been handed the cheque but not permitted to retain it), and Mr Stanizzo invited her to go to his home to celebrate, and that they had coffee and made general conversation. However, the paragraph to which Detective Murdock referred [para 28, not 25 as stated] concludes: "I left in disgust because of Mr Stanizzo's approaches and indecency."
From 7 November 2009 Detective Murdock had Mr Badarne's statement corroborating Ms Fregnan's allegations of 25 May 2009. Even in possession of that important piece of evidence, he did not then lay charges.
Detective Murdock then sought and obtained the warrant under the Surveillance Devices Act to record conversations between Mr Badarne and Mr Stanizzo. As indicated above, two attempts to record a telephone conversation failed because of equipment defects. The final attempt to obtain recorded evidence, on 4 November 2009, was when Mr Badarne visited Mr Stanizzo in his office. An account of the relevant portions of that conversation is given above at [55]-[67]. Detective Murdock listened to the highly incriminating conversation that then took place. It was then that he made the decision to charge Mr Stanizzo. That was more than 12 months after Ms Fregnan's initial report.
This chain of events demonstrates that Detective Murdock approached Ms Fregnan's allegations with considerable scepticism. He was fully aware of the possibility that Ms Fregnan might be using her reports of sexual assault for the purpose of furthering her civil case in which Mr Stanizzo was also involved, and was alive to the need to avoid police being used to further any such attempt. It was only when, through the use of the Surveillance Device Act recording, he came into possession of objective evidence that he decided to charge Mr Stanizzo. Far from proving the absence of reasonable and probable cause, the chain of events established that Detective Murdock waited until he was satisfied that he had reasonable and probable cause to make the arrest and lay the charges.
Detective Murdock was not in control of the prosecution from the time it was taken over by the ODPP on 5 November 2010. He continued, however, to be in charge of the investigation, and he continued to make inquiries, and to assist the ODPP. On 19 September 2011, having made apparently extensive investigations of telephone records, he communicated by email with the ODPP. He referred to evidence of telephone calls made by Ms Fregnan on 19 September 2008. That evidence did not support some of Ms Fregnan's claims. He expressed doubt about an explanation given by Ms Fregnan that she had, at the time, used many different prepaid numbers.
By ground 25 in the FANoA it was asserted that the primary judge disregarded the obligation for the prosecutors "to have reasonable and probable cause to maintain the prosecution at all stages", and nominated five dates on which it was proposed that reasonable and probable cause was absent. The last of these was August 2013, when the criminal trial of the Fregnan charges aborted, in circumstances set out above.
Detective Murdock was advised on 16 January 2014 that the ODPP had decided to enter a nolle prosequi with respect to the Badarne charges. No reason for that decision was disclosed in the evidence. It is difficult to see that those charges were affected by the Bluestone Mortgages tape recordings, the discovery of which precipitated the abandonment of the Fregnan charges. Those recordings were perceived to affect, adversely, Ms Fregnan's credibility. So far as can be seen on the evidence, Ms Fregnan was not to be a witness in the proposed proceedings on the Badarne charges, and those charges were completely independent of Ms Fregnan.
In any event, there is nothing in the evidence that even suggests, let alone establishes, the absence of reasonable and probable cause to maintain that prosecution between August 2013, when the Fregnan charges trial aborted, and January 2014, when the Badarne charges were also abandoned.
We agree with the primary judge that Mr Stanizzo failed to establish that Detective Murdock acted without reasonable and probable cause. That is sufficient to dispose of the appeal.

Malice

We also agree with the primary judge that there was no reason based on the evidence to impute to Detective Murdock any improper motive in his decision to prosecute. Mr Stanizzo failed to establish that essential element of the tort also.
There was simply no evidence to establish any lack of bona fides on the part of either the Crown Prosecutor or Ms Rallis. Indeed, no real argument was addressed to that proposition. It is sufficient to note that, on becoming aware of the content of the Bluestone Mortgages tape recordings, Mr Barr and Ms Rallis acted promptly and decisively and brought the criminal proceedings on the Fregnan charges to a halt.
This appeal is dismissed with costs.
Accordingly, the following orders are made:

Stanizzo v Fregnan:

Appeal dismissed with costs;
Appeal against the order dismissing the cross-claim dismissed with costs.

Stanizzo v Badarne:

Appeal dismissed with costs.
Notice of motion of 29 January 2021 dismissed with costs.

Stanizzo v State of New South Wales:

Appeal dismissed with costs.

Amendments 03 September 2021 - Amendment to order2, Stanizzo v Fregnan 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: 03 September 2021

Law Reform (Vicarious Liability) Act 1988(NSW)

(Crimes Act 1900(NSW)

(Crimes (Domestic and Personal Violence) Act 2007(NSW)

Solicitors: Oliveri Attorneys (Appellant) Self-represented (1st Respondent) Badarne Lawyers (2nd Respondent) NSW Crown Solicitor (3rd Respondent) File Number(s): 2020/151357 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Civil Citation: [2020] NSWSC 402 Date of Decision: 30 April 2020 Before: Harrison J File Number(s): 2012/129649 2014/92425 2016/296293

HEADNOTE [This headnote is not to be read as part of the judgment] On 4 November 2010, the appellant, Mr Vincent Stanizzo, was charged with two counts of sexual assault and related offences alleged to have been committed against Ms Karina Fregnan, the respondent in the first of three concurrently heard appeals brought by the appellant. At the same time, he was charged with four counts of intimidation of Mr Muhammed Badarne, the respondent in the second of the three appeals. Ultimately, in respect of each set of charges, a nolle prosequi was entered. Ms Fregnan brought claims in tort against Mr Stanizzo arising from the same alleged conduct as had founded the sexual assault and related charges. Ms Fregnan alleged that on 19 September 2008 Mr Stanizzo called her to ask that she come to his office so that he could give her a cheque in connection with a property deal into which the two had entered. She alleged that after she arrived at his office in the afternoon, he did not immediately give her the cheque but invited her to his home. She gave detailed evidence of a sexual assault which she said he then committed on her in his bedroom. Ms Fregnan further alleged that on a separate occasion, on 25 May 2009, she attended Mr Stanizzo's office. She alleged that Mr Stanizzo demanded that she perform a neck massage on him and that if she refused he would demand repayment of monies which he had paid on her behalf. She alleged that after she performed the massage he sexually assaulted her in his office. The criminal proceedings having terminated in his favour, Mr Stanizzo cross-claimed against Ms Fregnan for malicious prosecution. The primary judge found that both assaults had been committed, and gave judgment in Ms Fregnan's favour for $135,000. Mr Stanizzo's cross-claim for malicious prosecution was dismissed. Mr Stanizzo also brought claims for malicious prosecution against Mr Badarne and against the State of NSW, the respondent to the third appeal. Both claims were dismissed. The primary judge found that Mr Badarne was not, for the purposes of the tort of malicious prosecution, a prosecutor. He found that the officers of the State responsible for the prosecutions had not been shown to have acted maliciously or without reasonable and probable cause. Mr Stanizzo appealed against each decision. In respect of Ms Fregnan's claim, he contended that tape recordings which were said to be of telephone calls made by Ms Fregnan on the afternoon of the first alleged assault demonstrated that her evidence was untruthful. The recordings, he said, showed that Ms Fregnan was in possession of the cheque by no later than 3.19 pm, contrary to her evidence that it was not until later, having been coerced back to Mr Stanizzo's house by the promise of the cheque, that she eventually received it. In respect of the claims against Mr Badarne and the State, Mr Stanizzo argued that the primary judge erred in finding that Mr Badarne was not a prosecutor and that he did not act with malice, and in finding that the officers of the State responsible for investigating and prosecuting the charges acted with reasonable and probable cause and without malice. The Court held (per Payne JA, McCallum JA and Simpson AJA): Stanizzo v Fregnan Assuming that the tape recordings are accepted as proving that by 3.19 pm on 19 September 2008, Ms Fregnan was in possession of the cheque, this does not significantly weaken her case, which was substantiated by other features in the evidence: at [141]. Ms Fregnan gave a detailed and broadly accurate description of Mr Stanizzo's house: at [144]; and committed herself to a description of his anatomy: at [148]. In a recorded conversation between Mr Badarne and Mr Stanizzo, the latter indicated that Ms Fregnan had been to his house on the relevant occasion: at [145]. Apart from Mr Stanizzo's evidence (which the primary judge did not believe), there was nothing to contradict Ms Fregnan's account of the second sexual assault, which makes it more likely that the first incident also occurred: at [155]. Mr Stanizzo's cross-examination supports Ms Fregnan's assessment of his overbearing character, which explains her delay in reporting and her confusion about the instrument of coercion and the timing of her receipt of the cheque: at [156]-[157]. Stanizzo v Badarne Mr Badarne was not a prosecutor. In respect of the sexual assault charges, on no view of Mr Badarne's statement, could he be said to have instigated the criminal proceedings. His statement was no more than a supporting statement as to the events of which Ms Fregnan complained: at [232]. In respect of the intimidation charges, the evidence supported Mr Badarne's allegations, such that he was not, by reason of deliberately malicious and false allegations, a prosecutor: at [247]. Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30 at 379, applied. Stanizzo v The State of NSW The investigating detective, Detective Murdock, approached Ms Fregnan's allegations with considerable scepticism, and decided to lay charges only when he came into possession of objective evidence. Mr Stanizzo failed to show that Detective Murdock acted without reasonable and probable cause: at [305], [310]. Mr Stanizzo also failed to show malice, as it was not proved that Detective Murdock, the Crown Prosecutor Barr or the Crown's instructing solicitor was actuated by any improper motive in, respectively, instigating and maintaining the prosecution: at [312].

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