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

Background

1. The following facts we understand to be uncontroversial (unless otherwise stated). In recounting these facts, we have attempted to limit ourselves to what is truly material to the issues raised in the three appeals and to bypass the mass of irrelevancies that appear in the appeal books.
2. At all relevant times Mr Stanizzo was a solicitor practising on his own account in Wollongong under the name "V F Stanizzo Lawyer". Mr Badarne was also a practising solicitor, who worked out of Mr Stanizzo's office pursuant to a fee sharing arrangement. The precise terms of that arrangement between them are not clear on the evidence and it is not necessary to understand them to resolve the issues on the appeal. What is clear is that the arrangement gave rise to significant and ongoing conflict between the two men. In one statement Mr Badarne said that, while he was working in Mr Stanizzo's office, he had his own clients but acted for them under the umbrella of V F Stanizzo Lawyers. In December 2008, conflict between the two men emerged, over a particular transaction. There appear to have been recurrences of the conflict, and, on 14 May 2009, Mr Stanizzo terminated their arrangement. Mr Badarne was briefly reinstated, but the arrangement was again terminated by Mr Stanizzo orally on 24 August 2009. A dispute over their respective entitlements to fees developed and there is evidence of ongoing animosity between them.
3. The relationship between Ms Fregnan and Mr Stanizzo is more opaque. Again, the issues on the appeal can be resolved without exploring the many complications that can be discerned in the evidence. It is sufficient at this point to say that, in early 2008, Ms Fregnan was in financial difficulty. She owned a residential property in Wollongong that was subject to a mortgage in favour of Permanent Custodians Limited ("Permanent Custodians"). She decided to sell the property. She was referred by a real estate agent to Mr Stanizzo.
4. Ultimately, Mr Stanizzo offered to purchase a half interest in Ms Fregnan's property. On 4 July 2008 a Deed of Property Co-ownership and Trust ("the Deed") was executed by Mr Stanizzo and Ms Fregnan. The Deed recited that Ms Fregnan was the registered proprietor of the property, which was subject to a mortgage in favour of Permanent Custodians, and on which about $490,000 was, at that date, owing. Mr Stanizzo agreed to make available to Ms Fregnan the sum of $240,000 to meet certain outstanding debts and to apply the balance to reduction of the current mortgage. A "fundamental condition" of the Deed required Ms Fregnan to declare that the property would henceforth be held in trust for herself and Mr Stanizzo. Ms Fregnan, for her part, agreed that she would continue to service the loan secured by the mortgage. On the same day the Deed was executed, Mr Stanizzo lodged a caveat on Ms Fregnan's property.
5. On 19 September 2008 Mr Stanizzo provided Ms Fregnan with a cheque made in favour of Permanent Custodians in the sum of $134,518.07 in settlement of the purchase. The time, and the circumstances in which, this took place are the subject of dispute and are central to the issues on appeal in relation to the first proceeding. Ms Fregnan alleges that, in the late afternoon of that day, she met Mr Stanizzo at his office in order to collect the cheque, but that Mr Stanizzo "coerced" her into going with him to his home, where he sexually assaulted her. Mr Stanizzo asserts that the meeting at his office took place during the morning of 19 September, when he gave Ms Fregnan the cheque; he denies that Ms Fregnan accompanied him to his home, and denies that he sexually assaulted her.
6. On 24 September 2008, Ms Fregnan provided the cheque to Bluestone Mortgages Pty Ltd (the mortgage manager for Permanent Custodians) ("Bluestone Mortgages"). On 25 September 2008, following a breach by Ms Fregnan of a term of the Deed requiring her to service the loan, the parties executed a Deed of Variation. The variation entitled Mr Stanizzo to have the property transferred to him immediately or at any time before 1 September 2009, a date which, in his discretion, he could extend. On 26 September 2008, Mr Stanizzo stopped payment of the cheque he had given to Ms Fregnan on 19 September. The cheque was dishonoured and the transaction reversed on 1 October 2008.
7. Between April 2009 and August 2009, Ms Fregnan requested that Mr Stanizzo withdraw his caveat on her property so that she could sell that property. On 21 September 2009 Ms Fregnan served Mr Stanizzo with a notice of proposed lapsing of caveat.
8. Subsequently, on 1 October 2009, Mr Stanizzo assigned his rights in the property and under the Deed and the Deed of Variation to Ms Gael MacPherson. On 7 October, Ms MacPherson issued, out of the Equity Division of the Supreme Court, a summons claiming, against Ms Fregnan, Permanent Custodians and Bluestone Mortgages, an injunction restraining any dealing with the property. It appears that on 16 October 2009 Ms MacPherson also lodged a caveat on Ms Fregnan's property. That engendered further Supreme Court litigation between Ms Fregnan and Ms MacPherson. Ms MacPherson then lodged a further caveat on Ms Fregnan's property on 11 November 2009.
9. Meanwhile, from April 2009 Ms Fregnan engaged the services of Mr Badarne in connection with an unrelated dispute with Shellharbour TAFE. On 25 May 2009 Ms Fregnan was present at Mr Stanizzo's office in consultation with Mr Badarne on that matter. An encounter took place between Mr Stanizzo and Ms Fregnan. This encounter is the subject of Ms Fregnan's second allegation of sexual assault; the circumstances of the encounter are highly controversial and are, like the events of 19 September 2008, the subject of the first of the appeals.
10. On 8 October 2009 Ms Fregnan attended the Wollongong Police Station and reported that Mr Stanizzo had, on the two occasions mentioned above, sexually assaulted her. On 7 November 2009 Detective Senior Constable Murdock took from Mr Badarne a statement in which he corroborated Ms Fregnan's allegations of the events of 25 May 2009.
11. On 21 August 2010, 24 September 2010 and 25 October 2010, Mr Badarne made further statements to police, in which he reported several instances of intimidatory behaviour towards him by Mr Stanizzo.
12. After investigation, on 4 November 2010 (in circumstances to be described below) Mr Stanizzo was arrested and charged by Detective Murdock with two counts of sexual assault of Ms Fregnan and associated charges ("the Fregnan charges") and four counts of intimidation of Mr Badarne ("the Badarne charges"). Mr Stanizzo was released on bail the following day, 5 November. On or about the same day, pursuant to s 9 of the Director of Public Prosecutions Act 1986 (NSW) the Office of the Director of Public Prosecutions ("the ODPP") took over the prosecution.
13. After some negotiation with the ODPP, on 15 November 2011 Mr Stanizzo entered pleas of guilty to a number of charges (it is not entirely clear what the charges were after negotiation). On 29 May 2012 Mr Stanizzo was granted leave to withdraw his pleas of guilty; Berman DCJ was satisfied that the pleas of guilty were entered when Mr Stanizzo was in a vulnerable emotional condition, and were not truly attributable to consciousness of guilt.
14. An order was made that the Fregnan charges be heard separately from the Badarne charges. A trial of the Fregnan charges commenced in the District Court in Wollongong in July 2013.
15. On 2 August 2013, during the course of that trial, the ODPP entered a nolle prosequi. That occurred because some tape recordings said to be of conversations between Ms Fregnan and employees of Bluestone Mortgages were discovered which, it was perceived, adversely affected Ms Fregnan's credibility on a critical factual issue in the trial. The trial aborted and the jury was discharged. On 16 January 2014 the ODPP entered a nolle prosequi in relation to the Badarne charges.
16. With that statement of mostly uncontroversial facts, we turn to the three individual proceedings the subject of the appeals.

The first proceeding: Fregnan v Stanizzo

1. 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

1. 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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

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

1. 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.
2. 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.
3. 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."
4. 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

1. 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".
2. 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!"
3. 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."
4. 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."

(iv) Mr Stanizzo's awareness of the allegations

1. 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

1. 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.
2. 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]."

(vi) Mr Stanizzo's evidence

1. 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.
2. 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".
3. 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.
4. 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.
5. 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

1. 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".
2. 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."
3. 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

1. 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

1. 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).
2. 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

1. 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

1. 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.

1. 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.

Issues at trial

1. 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.
2. 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.
3. 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).
4. 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

1. 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.
2. 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."
3. 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.
4. 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.

The cross-claim

1. 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.
2. 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.
3. 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.
4. 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

1. 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.
2. 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

1. 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.
2. 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.
3. 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".
4. 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.
5. 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.

Malicious Prosecution

1. 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.
2. 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.
3. 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 … ."
4. 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.
5. 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.

Malice

1. 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]).
2. 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

1. 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.
2. 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.
3. 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].
4. 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].
5. 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 second proceeding: Stanizzo v Badarne

1. 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.
2. 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

1. 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.
2. 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.
3. 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

1. 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."
2. 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 … ."
3. 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.

The statement of 25 October 2010

1. 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

1. 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]).
2. 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".
3. 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.
4. 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

1. 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

1. 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.
2. 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.
3. 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."
4. 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".
5. 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.
6. 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.
7. 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's submissions at trial

1. 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.
2. 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.

The primary judgment

1. 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]).
2. 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."
3. 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).
4. 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

1. 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?

1. 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.
2. 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

1. 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.
2. 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.
3. 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.
4. 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)

(ii) The Badarne charges

1. 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.
2. 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."
3. 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.
4. 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.
5. 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).
6. 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.

The third proceeding: Stanizzo v the State of NSW

1. 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.
2. 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."
3. 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.
4. 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.
5. 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."
6. 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."
7. 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.

The primary judgment

1. 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]).
2. 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".
3. 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]).

1. 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.

The appeal

1. 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

1. 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.
2. 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.

Malice

1. 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.
2. 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.
3. This appeal is dismissed with costs.
4. Accordingly, the following orders are made:

Stanizzo v Fregnan:

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

Stanizzo v Badarne:

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

Stanizzo v State of New South Wales:

1. 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