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

1. [1]

   HIS HONOUR: On 4 November 2010, Vincent Stanizzo was arrested and charged with six counts arising from the alleged sexual assault of Vivian Sgangarella-Valvano (also known as Karina Vivianna Fregnan) on 19 September 2008 and 25 May 2009. Mr Stanizzo was a solicitor. Ms Fregnan was his client.

2. [2]

   An indictment originally dated 29 April 2011, but later as presented dated 8 July 2013, contained six counts as follows:

   1. (1)

      On 19 September 2008, Mr Stanizzo had sexual intercourse with Ms Valvano without consent: s 61I of the Crimes Act 1900.

   2. (2)

      On 19 September 2008, Mr Stanizzo attempted to have sexual intercourse with Ms Valvano without consent: s 61I and s 61P of the Crimes Act 1900.

   3. (3)

      On 19 September 2008, Mr Stanizzo threatened Ms Valvano with physical injury and financial detriment with intent that Ms Valvano not report the sexual assaults to police: s 315A of the Crimes Act 1900.

   4. (4)

      On 25 May 2009, Mr Stanizzo had sexual intercourse with Ms Valvano without consent or alternatively indecently assaulted her: s 61L of the Crimes Act 1900.

   5. (5)

      Between 1 January 2009 and 18 September 2009, Mr Stanizzo intimidated Ms Valvano with the intention of causing her to fear physical or mental harm: s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.

   6. (6)

      On or about 4 November 2010, Mr Stanizzo attempted to have Mr Badarne knowingly make a false statutory declaration with the intent to pervert the course of justice: s 319 of the Crimes Act 1900.

3. [3]

   Mr Stanizzo was also charged upon a second indictment dated 29 April 2011 relating to his former employee Muhammad Badarne. It was alleged that Mr Stanizzo intimidated Mr Badarne on 14 November 2009, 10 June 2010, 12 September 2010 and 21 October 2010, with the intention of causing him to fear physical or mental harm: s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.

4. [4]

   On 15 November 2011, Mr Stanizzo entered pleas of guilty in respect of:

   1. (1)

      Charges of indecent assault on Ms Valvano on 19 September 2008 and 25 May 2009: s 61L of the Crimes Act 1900.

   2. (2)

      Intimidation of Ms Valvano between 19 September 2008 and 31 March 2009: s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.

   3. (3)

      Intimidation of Mr Badarne between 13 November 2009 and 30 October 2010: s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.

5. [5]

   Mr Stanizzo later applied for, and was granted, leave to withdraw his pleas. He was thereafter tried on these charges in the District Court commencing in July 2013. However, in circumstances to which detailed reference is made later in these reasons, all of those charges were subsequently withdrawn. By then, in 2012, Ms Valvano had commenced proceedings against Mr Stanizzo claiming damages arising out of the assaults that she alleges he committed upon her, and which formed the basis of the charges in the first indictment. Mr Stanizzo cross-claimed against Ms Valvano in those proceedings seeking damages alleging that she maliciously prosecuted him by complaining to the police and maintaining the sexual assault allegations against him. Mr Stanizzo commenced separate proceedings against Mr Badarne in 2014 and against the State of New South Wales in 2016 claiming damages in each case for malicious prosecution by them.

6. [6]

   That somewhat brief and anodyne summary unfortunately belies the considerable depth and width of the relatively complex facts and circumstances out of which these three proceedings have emerged, as well as the frankly poisonous state of the relationship among Mr Stanizzo, Mr Badarne and Ms Valvano on one side as well as Mr Stanizzo’s unconcealed contempt for the machinery of the State that prosecuted him on the other side. I have referred to this state of affairs at an early stage of these reasons in order to indicate that it will not be possible for me to produce any decision with which at least one party is not disappointed or possibly with which any party is satisfied. So deeply do these enmities appear to extend that I am even cautious about adopting, if only and obviously for the sake of efficiency, any summary of the facts contained in any one party’s written submissions. Accordingly, to the extent that I reproduce such material in the course of these reasons for judgment, I should indicate that I am doing so, recognising and accepting that there is no universally agreed position on almost any allegedly important matter of fact and that these differences will ultimately, with varying degrees of urgency and significance, have to be resolved.

Background facts

1. [7]

   The starting point for a consideration of the relevant events is when Ms Valvano reported to Detective Senior Constable Murdock at Wollongong Police Station on 8 October 2009 that Mr Stanizzo had sexually assaulted her. She provided details of what she said happened to her on 19 September 2008, including that Mr Stanizzo had sexually assaulted her at his home on that day and that he had threatened “to take her out in the ocean and throw her overboard with concrete legs”. She also said that she had been assaulted at Mr Stanizzo’s office and that Mr Badarne had seen what had happened.

2. [8]

   Detective Murdock made a COPS entry record of his meeting with Ms Valvano in the following terms:

3. [9]

   Detective Murdock spoke with Ms Valvano again a little later on 16 October 2009 by phone and then in person on 30 October 2009.

4. [10]

   Ms Valvano went to the Wollongong Police Station on 13 November 2009 and commenced giving her statement to Detective Murdock. That statement was completed and signed on 25 November 2009. Mr Stanizzo tendered that statement in these proceedings. Part of what Ms Valvano told the police is as follows.

5. [11]

   She first met Mr Stanizzo in 1982 when she was 21. In January 2008, she wanted to sell her house. She was referred to Mr Stanizzo by a real estate agent. Mr Stanizzo asked her if she was married. She said she was not. He said he was infatuated with her, and made a number of comments about his former wife. They later went to the Portuguese Club for lunch.

6. [12]

   Ms Valvano said that Mr Stanizzo was constantly touching her in different ways.

7. [13]

   On 4 July 2008, Ms Valvano signed a deed in Mr Stanizzo’s office which provided for the sale of half her property to him and him paying $240,000 for half the mortgage. On 7 July 2008, Mr Stanizzo paid $21,282 in arrears owing on the mortgage as well as other bills.

8. [14]

   Ms Valvano’s statement to the police then contained details of the matters which formed the basis of the charges of sexual assault on 19 September 2008. Ms Valvano said that Mr Stanizzo called her that morning asking her to collect a cheque for the proceeds of the sale of her house which she expected would be in the order of $200,000. She went to his office late in the afternoon and Mr Stanizzo wrote out a cheque for $134,518. Mr Stanizzo wrote out a list of amounts he had paid either to her or on her behalf. Ms Valvano questioned the amount of the cheque and was told it was all that she was owed. This made her “angry inside”. However, Ms Valvano was desperate for money so she had no choice but to take it.

9. [15]

   Ms Valvano said that before Mr Stanizzo gave her the cheque, he asked her to go back to his house. Once again she said she was desperate for the money so she did so. Mr Stanizzo drove her in his silver/grey Alfa Romeo. He handed her the cheque shortly before they arrived.

10. [16]

    Ms Valvano described Mr Stanizzo’s house and driving into his garage. Once inside, Mr Stanizzo poured himself a drink and lit a cigar. After smoking some of the cigar, they went upstairs into an open plan kitchen/dining/living room, with a piano against one of the walls. Mr Stanizzo made her a coffee and she played the piano. They spoke at the dining room table for about 15 minutes.

11. [17]

    Ms Valvano then asked to go to the bathroom. Mr Stanizzo took her downstairs to a bedroom with an ensuite. She described the bedroom and the bathroom. When she came out of the bathroom, Ms Valvano said that Mr Stanizzo was “half naked, only wearing a dark coloured T-shirt and no pants at all”. She said to him that she was not having sex with him. However, he moved her against her will to the bed. She asked him to stop. He placed his fingers under her skirt and in her vagina all the time while she was telling him to stop. Mr Stanizzo was then thrusting and trying to get his penis into her vagina. His erection was rubbing on her left thigh. She struggled with him and he ejaculated on her thigh. Ms Valvano said she felt humiliated and disgusted.

12. [18]

    Ms Valvano said that Mr Stanizzo said “if you tell anyone I will put you in the ocean with concrete legs and withdraw the cheque just like I did with the other cheque a week ago”. She then left, walking to Balgownie shopping centre, where she rang a taxi and went home. She was shaken and shocked by what had occurred but was too scared and embarrassed to call the police.

13. [19]

    Ms Valvano said that she stayed away from Mr Stanizzo thereafter for several months, only contacting him by letter or phone concerning the property. He never mentioned what happened. He did ring her and ask her out to the Portuguese Club and other restaurants. He even asked her to go with him to Italy. She declined all of these offers. Mr Stanizzo told her not to say anything about their relationship, saying “you know what happens to people who open their mouths”. Ms Valvano did not see Mr Stanizzo again until Mr Badarne contacted her in late February or early March 2009 on behalf of Mr Stanizzo, asking about her mortgage payments. She went to their office to see Mr Badarne and Mr Stanizzo walked in. He asked her to pay him $80,000 saying that he would release her from her contracts. They argued and she left.

14. [20]

    Ms Valvano also gave details of another alleged sexual assault on 25 May 2009. She said that she went to the Shellharbour TAFE with Mr Badarne for a conference with the manager, John Boss. The conference was recorded and she was given a copy of the recording. Mr Badarne and Ms Valvano then went back to Mr Stanizzo’s office to listen to the recording. When Mr Stanizzo returned, he started complaining about paying for Ms Valvano’s nursing fees and asked her for a massage saying that if she did not give him a massage he wanted his $15,000 back. Ms Valvano agreed to give him a massage.

15. [21]

    They went into his office. There was a bottle of massage oil sitting on his desk. Mr Stanizzo shut the door, took off his tie and undid his shirt. Ms Valvano massaged his neck before he told her to stop. She walked to the kitchen, next to his office, and washed her hands. When she returned, Mr Stanizzo tried to hug her, grabbing her and forcing her against a bookshelf. He grabbed her left breast and her shirt came undone. She could feel his erection pressing against her leg. She asked him to stop. He grabbed her groin with his left hand, forcing his fingers into her vagina. Mr Stanizzo then “sniffed his finger” and kept holding her against the bookshelf. Ms Valvano heard the door handle shake. Mr Stanizzo appeared startled and let her go. She opened the door and left the office. She walked past Mr Badarne without speaking.

16. [22]

    Ms Valvano later spoke to Mr Badarne by phone and could hear Mr Stanizzo yelling in the background saying he could not act for her. Over the next few months she received several letters from him asking her to attend the office to sign documents.

17. [23]

    In August 2009, Ms Valvano contacted Mr Badarne because she needed further legal advice concerning the Shellharbour TAFE. She told Mr Badarne over the phone what Mr Stanizzo had done to her on 19 September 2008 and 25 May 2009. Mr Badarne told her to go to the police. She ultimately did so on 8 October 2009.

18. [24]

    On 7 November 2009, Mr Badarne attended the Wollongong Police Station and gave a statement to Detective Murdock. Mr Badarne indicated that he first met Ms Valvano in about March or April 2008 when she came into the office where he was working for Mr Stanizzo. He said that he had seen Mr Stanizzo act in various inappropriate ways towards Ms Valvano, including holding and touching her and that Ms Valvano had appeared uncomfortable. Mr Badarne said that on one occasion Ms Valvano went into Mr Stanizzo’s office and that he could clearly hear Ms Valvano saying “leave me alone”. Mr Badarne said that on one occasion he heard Ms Valvano say to Mr Stanizzo, “since when has a business transaction become a sexual transaction?”.

19. [25]

    Mr Badarne also told Detective Murdock about the incident on 25 May 2009 after he and Ms Valvano had attended Shellharbour TAFE. He said Ms Valvano was dressed immaculately and that they returned to his office to discuss the meeting. After about 20 or 30 minutes, Mr Stanizzo arrived and asked Ms Valvano for a neck massage. They went into Mr Stanizzo’s office and closed the door. Mr Badarne heard Ms Valvano saying, “leave me alone; don’t touch me”. Mr Badarne gave other details of this incident to the police.

20. [26]

    On 25 November 2009, Detective Murdock took Ms Valvano to the Balgownie shops from where she directed him to Peace Crescent and then to a particular house in that street. She told Detective Murdock that it was the house to which Mr Stanizzo had taken her on 19 September 2008.

21. [27]

    In December 2009 and January 2010, Detective Murdock made several unsuccessful attempts to speak with Ms Valvano. On 18 February 2010, Detective Murdock spoke to Mr Badarne and asked him if he would be willing to participate in a telephone interface with Mr Stanizzo. Mr Badarne told police that he was confident that Mr Stanizzo would discuss the alleged offences with him. On 31 May 2010, upon his return from leave, Detective Murdock decided to recommence the investigation by applying for a telephone intercept. On 1 June 2010, he spoke again to Mr Badarne about this.

22. [28]

    On 8 June 2010, Ms Valvano called Detective Murdock in an agitated state. She told him she had been advised by her lawyer that she might lose her house. Detective Murdock asked her to come to the police station but she declined, saying that she was too shaken and upset. However, the next day Ms Valvano phoned Detective Murdock and told him that she had spoken to a barrister in her civil matter who had advised her that it would help her civil case and speed it up considerably if Mr Stanizzo were charged. Detective Murdock advised Ms Valvano that he would not be acting in any way simply to assist her with her own civil litigation.

23. [29]

    Mr Badarne attended the Wollongong Police Station on 10 June 2010 and spoke to Detective Murdock, alleging that Mr Stanizzo had made threats to him in March that year (actually in November 2009) when Mr Badarne had visited Mr Stanizzo’s house, as well as earlier that day when he and Danny Lagapodis, the principal of the firm for whom Mr Badarne by now was working, had gone to Mr Stanizzo’s office. Mr Badarne told Detective Murdock that he was still willing to participate in a telephone interface but that he was certain that Mr Stanizzo would not talk to him about “the Valvano matter”, let alone make any admissions. Detective Murdock decided not to pursue that technique any further.

24. [30]

    On 16 July 2010, Detective Murdock phoned Mr Stanizzo and spoke to him. Mr Stanizzo disputes Detective Murdock’s version of this conversation, which Detective Murdock says was in these terms:

25. [31]

    On 16 July 2010, Detective Murdock made a record in the COPS database of his conversation with Ms Valvano, at which time she was advised of the following:

26. [32]

    On 5 August 2010, Detective Murdock again spoke with Mr Badarne at Wollongong Police Station. He made a note of that conversation as follows:

27. [33]

    On 25 July 2010, Mr Badarne had gone to Mr Stanizzo’s house to deliver a deed of assignment of clients. Mr Badarne said that Mr Stanizzo asked, “Can you make a statement saying that I made no sexual advances to Vivian and that the door was always open when I met her?” Mr Badarne refused. On 30 July 2010, Mr Badarne went to Mr Stanizzo’s office in relation to the deed, when he was asked by Mr Stanizzo to provide an affidavit in the civil matter. Mr Stanizzo produced a draft affidavit, which Mr Badarne read but refused to sign as he said it included statements of fact that were untrue.

28. [34]

    On 21 August 2010, Mr Badarne gave a statement to the Wollongong police concerning his interactions with Mr Stanizzo. He said that he went to Mr Stanizzo’s house on 23 December 2008 where he saw a piano in the lounge room, when Mr Stanizzo asked him not to act for Ms Valvano on the TAFE matter. Mr Badarne said that Mr Stanizzo phoned him on 8 July 2010 saying, “I want you to write a statement that I have never made sexual advances to her [Ms Valvano] and I always kept my door open when she was in my office.” Mr Badarne said that Mr Stanizzo rang him again on 15 July 2010 asking him not to act for Ms Valvano, saying she was nothing but trouble. Mr Stanizzo again phoned him on 22 July 2010 asking him for a statement. Mr Badarne said he could not become involved

29. [35]

    Mr Badarne again attended Wollongong Police Station on 24 September 2010 and gave another statement to Detective Murdock. He said he had been intimidated on four occasions. Among other things, Mr Badarne told police that on 15 November 2009, he had gone to Mr Stanizzo’s house when Mr Stanizzo told him he would “bury him”. Mr Badarne said the following conversation ensued:

30. [36]

    Mr Badarne said that as he said this Mr Stanizzo was using his hands to symbolise slicing. He said he felt very intimidated.

31. [37]

    Mr Badarne said he had gone to Mr Stanizzo’s office on 10 June 2010 to return a file with Mr Lagapodis. Mr Lagapodis took the file in to Mr Stanizzo who then came running out saying, “where is the rest of the file, smart arse?” Mr Stanizzo then came up to the car and said, “Why don’t you come out of the car and let us see who will bury who?” Mr Stanizzo kept saying, “I will bury you.”

32. [38]

    On 11 June 2010, Mr Badarne complained about Mr Stanizzo to the Law Society. Mr Badarne said that Mr Stanizzo called him regularly after that, saying “I will make sure you lose your licence, I will find something to go to the Law Society with.”

33. [39]

    The following day, Mr Stanizzo came to Mr Badarne’s house and spoke to him in the backyard where he was chopping wood. They had a conversation about a costs file. Mr Stanizzo said, “You will regret it; it will be either me or you in gaol but I tell you I will go to gaol because I am going to slice you with an axe. I will do you, I will chop you.” Following this, Mr Badarne called the police.

34. [40]

    On 13 September 2010, Mr Stanizzo rang Mr Badarne while he was travelling on a train to Sydney. Mr Stanizzo said, “I will teach you a lesson, even if I go to gaol.”

35. [41]

    Mr Badarne went to the Wollongong Police Station on 25 October 2010 and gave Detective Murdock another statement. In that statement he provided details of four abusive telephone conversations between 10.55am and 12.16pm, in which Mr Stanizzo referred to him as “disgusting human flesh”, said “I have not finished with you yet” and said “You think I’m finished with you…you will regret the day you were born.” Mr Badarne also said Mr Stanizzo said, “When I teach you how to fight you will be walking with a stick if you stay alive.”

36. [42]

    Accordingly, although it involves some repetition, it is apparent from the expanded COPS entry made by Detective Murdock that by 31 October 2010, he had assembled the following facts:

37. [43]

    On 4 November 2010, Mr Badarne had a conversation with Mr Stanizzo while wearing a lawfully authorised listening device. The conversation was recorded. On this occasion, Mr Badarne was given a statutory declaration to sign by Mr Stanizzo. Mr Badarne read the statutory declaration aloud, before saying that it put him in a predicament. The transcript of some of that conversation included the following:

38. [44]

    Mr Stanizzo was arrested later the same day.

39. [45]

    Mr Stanizzo pleaded guilty on 15 November 2011 to charges of indecent assault on 19 September 2008 and 25 May 2009, the intimidation of Ms Valvano between 18 September 2008 and 31 March 2009 and the intimidation of Mr Badarne between 13 November 2009 and 30 October 2010. Mr Stanizzo was then represented by senior counsel and a solicitor. Mr Stanizzo also signed a document at that time headed “Facts on Sentence”. The facts on sentence effectively summarised the allegations contained in the material to which reference has already been made. They did not, however include any reference to, or suggestion that, Mr Stanizzo penetrated Ms Valvano as she alleged.

40. [46]

    The charges were all originally listed for sentence hearing on 2 March 2012. However, on 28 and 29 May 2012, Berman DCJ heard Mr Stanizzo’s motion to withdraw his guilty pleas. His Honour published reasons for his decision to permit Mr Stanizzo to do so on 29 May 2012. The basis of the decision was his Honour’s conclusion that, even though in his opinion the Crown case against him was strong, Mr Stanizzo’s pleas were not entered freely or voluntarily and that his confession was made and his pleas were entered for reasons other than being attributable to a genuine consciousness of guilt.

41. [47]

    Mr Stanizzo’s trial commenced on 1 July 2013. Detective Murdock produced a summary of what occurred concerning the circumstances in which the Valvano charges against him were withdrawn:

42. [48]

    On 2 August 2013, the DPP directed that the Valvano charges be withdrawn.

43. [49]

    It had earlier been determined that the Badarne charges should be heard separately. As at 2 August 2013, those charges had not also been withdrawn. However, on 16 January 2014, Detective Murdock was advised by the DPP that the charges against Mr Stanizzo relating to Mr Badarne had been withdrawn and that the hearing of those charges due to commence the following day had been “aborted”.

44. [50]

    I repeat for the sake of emphasis that the above summary is not intended to represent findings by me following a decision about contested issues of fact. It is intended only as a convenient, albeit possibly controversial, precis of the circumstances that generated this litigation. As will become apparent, several other factual matters of significance remain to be referred to and discussed.

Oral evidence

1. [51]

   Despite the length of the hearing before me, only four lay witnesses gave evidence. The first was Ms Valvano, who, as the plaintiff in the first case, necessarily commenced. Her evidence starts at transcript page 102 and proceeds as far as transcript page 429. That evidence consists almost exclusively of Ms Valvano being cross-examined by Mr Waterstreet of counsel for Mr Stanizzo over nearly four whole days. Ms Valvano was not asked any questions by counsel appearing for either the State or Mr Badarne.

2. [52]

   Mr Stanizzo was the next witness to give evidence. His cross-examination commences at transcript page 465 and his evidence concludes with his re-examination at transcript page 936. Mr Stanizzo was cross-examined by counsel for Mr Badarne and the State and by Ms Valvano.

3. [53]

   David Stanizzo, who is Mr Stanizzo’s son, and Gael McPherson, also gave evidence.

4. [54]

   Neither Detective Murdock nor any other witness was called by the State. Mr Badarne also did not give evidence. The fact that Detective Murdock and Mr Badarne chose not to give evidence in response to Mr Stanizzo’s case against them is unremarkable both in the circumstances of these cases in particular as well as in cases of malicious prosecution in general, when one has regard to the considerable burden resting upon Mr Stanizzo of establishing the elements of the tort.

5. [55]

   It is convenient to deal with this case first.

6. [56]

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

Absence of reasonable and probable cause

1. [57]

   The absence of reasonable and probable cause will have been established if the prosecutors either did not in fact form the opinion that the material before them was sufficient to warrant the commencement or maintenance of the prosecution or, if they did form that opinion, they did so on insufficient grounds.

2. [58]

   Mr Stanizzo submitted that this element was established by tracing the police records exhibited to the statement of Detective Murdock. Mr Stanizzo’s detailed analysis of these records and COPS entries proceeds on the conspicuously undisguised thesis that Ms Valvano and Mr Badarne were conspiring between themselves to make false allegations against him and that Detective Murdock either knew it or should have.

3. [59]

   For example, Mr Stanizzo refers to Detective Murdock’s first meeting with Ms Valvano at the Wollongong Police Station at 1.51pm on 8 October 2009. Ms Valvano complained of a sexual assault by Mr Stanizzo on 19 September 2008, 13 months beforehand, and of “violence” towards her on other occasions. Mr Stanizzo contended that Detective Murdock noted Ms Valvano’s ongoing civil disputes with Mr Stanizzo may be her motive for making the complaint, that the complaint may have been made solely to gain leverage in the civil case, that Ms Valvano had prior intelligence on the COPS system for prostitution and that there were no corroborating witnesses and no physical evidence. Mr Stanizzo then made this submission:

4. [60]

   The State submitted that this submission should be rejected as it is not supported by, or established on, the evidence. The State contended that it is not appropriate to conflate Detective Murdock’s initial doubts with the absence of a genuine belief, following a full investigation, that the offences had been committed. Part of the material that Detective Murdock was entitled to take into account was the recorded conversation between Mr Stanizzo and Mr Badarne, from which it is reasonably apparent that Mr Stanizzo was attempting on one view to encourage Mr Badarne to give a false account of what happened between Ms Valvano and Mr Stanizzo.

5. [61]

   Mr Stanizzo’s submission that Detective Murdock realised the likelihood that Ms Valvano was lying out of malicious motives towards him is the central theme of Mr Stanizzo’s submissions and one that I take to cover the whole of the evidence that had been assembled by Detective Murdock by the time Mr Stanizzo was charged. I am, however, unable to conclude that Detective Murdock had, or even that he should have had, any such realisation.

6. [62]

   I will in due course deal with the rest of Mr Stanizzo’s primary contentions about what he says Detective Murdock should have realised having regard to the material that he had assembled. However, it is critical at an early stage in cases such as this, and in this case in particular, to distinguish between the healthy scepticism of an investigating detective about what he or she was being told by a complainant in a sexual assault matter on the one hand and actual knowledge (“realisation”) that the story was false and that the complainant was lying or was motivated by malice towards the alleged assailant on the other hand. There is an important difference between the question of whether or not a complainant had, or may have had, such a motive and the question of whether or not the investigating detective suspected it or should have. It would be surprising if in this case Detective Murdock did not have some initial doubts about Ms Valvano’s account. It seems apparent that he approached the complaint with an open mind and took the complaint seriously. He undertook further investigations and patently formed the view, despite his initial doubts, that the complaints were credible. On 19 October 2010, Detective Murdock swore an affidavit in support of the application for a surveillance device warrant in which he said that he believed the offences had been committed. The affidavit recited the same facts as those extensively recorded earlier in these reasons as extracts from Detective Murdock’s COPS entries.

7. [63]

   The inevitable burden of Mr Stanizzo’s submission is that Detective Murdock had material in his possession that showed or demonstrated to him that Ms Valvano’s allegations were in fact false or concocted for an improper motive. This submission effectively asserts that Detective Murdock had sufficient material with the benefit of which he should have determined to take her allegations no further. However, reasonable and probable belief does not equate to certainty. Detective Murdock could not in my view have been certain or even confident that Ms Valvano’s allegations were false. He was entitled in the particular circumstances of this case, in the absence of material from which to conclude otherwise, that the allegations were true. I am satisfied that he formed that opinion. The material before him was sufficient for him to have done so. Ms Valvano’s allegations were neither inherently improbable nor obviously false.

8. [64]

   I remain of that view after having closely considered all of Mr Stanizzo’s further submissions, which are referred to in what follows.

9. [65]

   Mr Stanizzo has drawn attention to numerous examples taken from the COPS entries of Detective Murdock’s dealings with both Ms Valvano and Mr Badarne suggesting that he too readily accepted what they told him. For example, Mr Stanizzo suggests that Detective Murdock should have questioned Ms Valvano closely as to why she waited so long to report the assaults or permitted her civil litigation to take precedence. Detective Murdock is criticised because he did not question Ms Valvano about having told Mr Badarne that she saw Mr Stanizzo emerging from the ensuite “totally naked” whereas in her statement she says that he was “half naked, wearing only dark coloured a T shirt”. Mr Stanizzo says that Detective Murdock should in effect have sought an explanation from Mr Badarne why he, a solicitor having witnessed what he claimed to have witnessed on 25 May 2009, did not report it to the police and that he should also have questioned Mr Badarne about why he ceased to work for Mr Stanizzo’s firm, lest a motive to harm Mr Stanizzo by making false claims might have been revealed.

10. [66]

    In this same vein, Mr Stanizzo questions Detective Murdock’s decision to have Mr Badarne engage Mr Stanizzo in a secretly intercepted telephone conversation and that he also ignored “the obvious possibility” that Mr Badarne might have given his statement to the police motivated by malice towards Mr Stanizzo “on undisclosed grounds, perhaps related to the undisclosed reasons why he had left Stanizzo’s firm after 3½ years” [Emphasis added]. Mr Stanizzo goes as far as to suggest that adopting this procedure “at this early stage” shows that Detective Murdock was proceeding on the assumption that Mr Stanizzo was guilty and that the only obstacle to arresting and charging him was the lack of Mr Stanizzo’s admissions. It is sufficient to observe that in my experience such an approach was then and is now both common practice and otherwise unexceptionable. It tells me nothing about whether Detective Murdock lacked a reasonable or probable cause to warrant the actions that he took.

11. [67]

    Mr Stanizzo then submits that Detective Murdock’s decision to inform Ms Valvano that he intended to ask Mr Badarne to speak to Mr Stanizzo in a secretly recorded conversation

12. [68]

    Mr Stanizzo submits further that proper procedure would have been to ensure that they did not know of the strategy “to prevent them from colluding”. Mr Stanizzo’s submission then follows in these terms:

13. [69]

    It is probably uncontroversial that Detective Murdock desired to make a case against Mr Stanizzo. However, the suggestion that he did so for an improper purpose is no more than an unsubstantiated allegation. Any such inference does not arise upon the material before me. I have considerable difficulty with the contention that Detective Murdock knew that Mr Badarne and Ms Valvano would collude in some way to assist him.

14. [70]

    Mr Stanizzo also draws attention to the fact that Detective Murdock told Ms Valvano that he would not be acting in any way simply to support her civil case. As is earlier recorded, Detective Murdock noted the following:

15. [71]

    Mr Stanizzo makes the frankly extravagant submission in this context that Detective Murdock should have been aware that Ms Valvano’s “prospects of success in [her] civil case (about which Murdock had virtually no information, because he had not enquired) were poor” inasmuch as she had been advised by her lawyers that she might lose her case, and that her lawyers were urging that Mr Stanizzo be charged in order to improve her prospects. Quite to the contrary, the extracted portion from the longer COPS entry indicates clearly that Detective Murdock was aware of the possibility that Ms Valvano may have had a collateral purpose in seeking to have Mr Stanizzo charged. That is an entirely different proposition to the suggestion that the allegations were false and that Detective Murdock must have known it.

16. [72]

    Mr Stanizzo next complains that the probabilities “strongly favour” his denial of Detective Murdock telling him that Ms Valvano alleged that he had sexually assaulted her on separate occasions at his house and at his office. Mr Stanizzo argues that if Detective Murdock had told him that Ms Valvano was alleging sexual assaults and had invited him to attend for a formal interview, Mr Stanizzo “would not, acting rationally, have simply retorted that the allegations were complete rubbish and declined the opportunity of an interview, without having taken advice from a criminal lawyer”. Mr Stanizzo then makes the curiously unconnected submission that Detective Murdock “therefore, did not afford Stanizzo the opportunity to respond to [Ms Valvano’s] sexual assault allegations” and “did not tell Stanizzo before the occasion of his arrest that [Ms Valvano] had made any such allegation”.

17. [73]

    I am once again unable to relate these complaints to the issue of reasonable and probable cause. The State has responded to these submissions suggesting that Mr Stanizzo’s version of what passed between him and Detective Murdock is inherently probable as Detective Murdock’s version was contemporaneously recorded in his Case Report, among other things, and Mr Stanizzo tendered it without limitation on its use in any event. But whatever be the resolution of this dispute, the fact that Detective Murdock turned up unannounced with no forewarning to arrest Mr Stanizzo may say something about his policing technique or lack of respect for Mr Stanizzo’s position as a respected member of the community, but to my mind it says absolutely nothing about whether Detective Murdock had any reasonable or proper basis to believe that Ms Valvano’s allegation were true.

18. [74]

    Mr Stanizzo next somewhat boldly contends that he had told Detective Murdock a number of things about Ms Valvano from which Detective Murdock should have concluded she was fabricating the assault allegations. For example, Mr Stanizzo told Detective Murdock that Ms Valvano was a troublemaker who had made claims to the Office of the Legal Services Commissioner that had been dismissed, that she was complaining about a caveat Mr Stanizzo refused to withdraw, that he was entitled to maintain the caveat, that Ms Valvano had “signed the deeds after obtaining legal advice”, that she was trying to put pressure on Mr Stanizzo and Gael Macpherson in relation to an approaching Supreme Court hearing and so on. Mr Stanizzo submitted in these circumstances that these “facts”, related by him to Detective Murdock, somehow put Detective Murdock “on enquiry as to whether what [Ms Valvano] had told him of her dealings with Stanizzo was true, and what her real motives were in complaining to police about [him]”. However, in my opinion, these are simply bald assertions by Mr Stanizzo, encouraged by a belief in his own assessment of the motives of Ms Valvano and Mr Badarne. They are no more than a recitation of several matters that Mr Stanizzo now promotes as his case theory of a conspiracy to harm him.

19. [75]

    It is convenient at this point to recall what the High Court has said with respect to the elements of the tort of malicious prosecution. The principles appear to be well settled. They were authoritatively discussed by the High Court in A v New South Wales (2007) 230 CLR 500; [2007] HCA 10. The following passages are of importance:

20. [76]

    It is clear from the material tendered by Mr Stanizzo that Detective Murdock thought that he had sufficient material to put Mr Stanizzo on his trial. That was his view. He swore an affidavit saying so.

21. [77]

    What should Detective Murdock have made of the material in his possession? Mr Stanizzo would have it that Detective Murdock should have somehow divined that Ms Valvano was lying and that her allegations were false because she had a motive to cause harm to Mr Stanizzo. The difficulty with that submission is that it elevates Detective Murdock’s obligation to the level of being required to consider and assess all of the material about a possible motive, both for and against, in order to determine whether the allegations were in fact true, not simply whether assessed objectively they warranted the commencement of criminal proceedings. Acceptance of the correctness of that approach would place a clearly onerous and unacceptable burden on Detective Murdock, or anyone in his position. It would elevate Detective Murdock to the trier of fact. In my view, Detective Murdock was not required to examine or explore Ms Valvano’s possible motives for alleging that Mr Stanizzo had assaulted her unless there was material demonstrating either that her claims were in fact false or suggesting that they were inherently implausible, so that in either case, no reasonable prosecutor could have formed the view that commencement of the prosecution was warranted.

22. [78]

    An example of the former would be if Detective Murdock knew or ought to have known that Ms Valvano was overseas when she claimed to have been assaulted. There is no suggestion that Detective Murdock was confronted with any evidence of that kind in this case.

23. [79]

    An analogue of the latter is to be found in the facts in Beckett v State of New South Wales [2015] NSWSC 1017 to which Mr Stanizzo drew my attention. At [408]-[409] in that case, I had cause to consider whether Detective Thomas had a reasonable belief that Ms Beckett had solicited someone she met in a club to murder her husband. I said this:

24. [80]

    Although I was there dealing with Detective Thomas’ subjective belief, the circumstances being considered were also an example of a situation in which no reasonable prosecutor could reasonably have formed a view that Ms Beckett was guilty of the offence in question.

25. [81]

    When Mr Stanizzo was arrested, Detective Murdock had assembled what the State submits was “a substantial body of evidence” that “provided ample grounds for his suspicions that Mr Stanizzo had committed the offences with which he was charged”. That evidence included, but was not limited to, the following:

    1. (1)

       A statement of Ms Valvano dated 25 November 2009 in which she made allegations, among other matters, concerning the 19 September 2008 sexual assault, Mr Stanizzo threatening her following the 19 September 2008 sexual assault and the 25 May 2009 sexual assault. That statement, if accepted by a jury, was capable of proving the offences in question.

    2. (2)

       A statement from Mr Badarne dated 7 November 2009 in which he provided further evidence concerning the 25 May 2009 sexual assault, evidence of Mr Stanizzo acting inappropriately towards Ms Valvano in his office and details of Ms Valvano’s complaint to him that Mr Stanizzo had sexually assaulted her on two occasions. That statement corroborated aspects of Ms Valvano’s account.

    3. (3)

       A statement from Mr Badarne dated 21 August 2010 in which he alleged Mr Stanizzo had asked him on a number of occasions to provide a false statement concerning Mr Stanizzo’s conduct towards Ms Valvano, which arguably demonstrated Mr Stanizzo’s consciousness of guilt in relation to the sexual assault offences.

    4. (4)

       Statements from Mr Badarne dated 24 September 2010 and 25 October 2010 which provided evidence concerning four separate occasions where Mr Stanizzo threatened Mr Badarne.

    5. (5)

       A statement by Danny Lagopodis, which corroborated Mr Badarne’s account of the 10 June 2010 incident. Mr Lagopodis’ statement had originally been prepared and provided to the Office of the Legal Services Commissioner.

    6. (6)

       A statement by Rown Badarne, Mr Badarne’s wife, dated 26 October 2010 which corroborated Mr Badarne’s account of the 12 September 2010 incident.

    7. (7)

       Mr Stanizzo’s telephone records for 21 October 2010 which were consistent with Mr Badarne’s account of the 21 October 2010 incident.

    8. (8)

       Notes prepared by Amy Lagapodis of Mr Stanizzo’s conversations with Mr Badarne on 21 October 2010 which were consistent with Mr Badarne’s account of those conversations. Ms Lagopodis was a receptionist at Good Legal, and she had listened to the conversations over a loudspeaker.

    9. (9)

       A recording (obtained pursuant to a warrant) of the conversation between Mr Badarne and Mr Stanizzo on 4 November 2010, which Detective Murdock had listened to as the conversation was taking place. The recording and transcript of that conversation was clear evidence that Mr Stanizzo had typed a statutory declaration without Mr Badarne’s input, and was designed to discredit Ms Valvano and her allegations of sexual assault. During the course of the conversation, among other matters, Mr Stanizzo persistently asked Mr Badarne to sign the statutory declaration despite Mr Badarne indicating clearly that he was unwilling to do so as it was not true.

26. [82]

    In support of the competing proposition, that Detective Murdock was either selective in his choice of matters to consider, or that he overlooked matters of importance, Mr Stanizzo made the following submissions.

27. [83]

    Following the execution of a search warrant at Mr Stanizzo’s office, Detective Murdock came into possession of a large number of files, binders, computers, letters and other office records. Mr Stanizzo has submitted that for the three years following his arrest, Detective Murdock had access to the whole of these materials comprising over 1,500 pages of data stored in two computers used in Mr Stanizzo’s practice. Mr Stanizzo contends that the only examination by Detective Murdock of which there is evidence indicates that he looked at “less than 1% of the materials that had been seized”, or presumably no more than 15 documents in total.

28. [84]

    Mr Stanizzo then made the following submission:

29. [85]

    The audacious breadth of that submission is difficult to process. First, it necessarily proceeds upon the unproven assumption that not only did Detective Murdock recommend the prosecution based on insufficient material, but that he actively overlooked or ignored material that would have exculpated Mr Stanizzo. Putting aside for the moment the fact that none of this “99%” of material is in evidence before me, Mr Stanizzo produces no evidence, such as the documents in question, upon which I could conclude that it would have had this effect. Secondly, the submission appears to assert that Detective Murdock not only overlooked this material in breach of his prosecutorial obligation, when there is absolutely no evidence to support it, but that he actively and hence wrongfully suppressed it. That submission is as scandalous as it is baseless. Thirdly, and in apparent contradiction of the submission, Mr Stanizzo lists at [54] of his submissions the very documents that he says Detective Murdock did examine, together with his arguments as to why they should have caused him to pause.

30. [86]

    It is clear that Detective Murdock was aware of the commercial dispute between Mr Stanizzo and Ms Valvano arising out of the transaction pursuant to which Mr Stanizzo took an interest in Ms Valvano’s property and that her unauthorised use of the funds, provided by him to her in accordance with the terms of their agreement to be used for the reduction of her mortgage to Bluestone, had led to even greater disharmony between them. It is in my view neither an inescapable conclusion nor a very strong inference that Detective Murdock’s treatment of this material should have led him to doubt that her allegations were true, in the sense that the only reasonable assessment was that Ms Valvano concocted the allegations because her business dealings with him had gone sour.

31. [87]

    I acknowledge that the case against Mr Stanizzo unravelled at trial when it became obvious that the terms of the phone conversation that Ms Valvano had with the Bluestone representative demonstrate that she already had Mr Stanizzo’s cheque for $134,518.07 payable to Permanent Custodians Limited since shortly after 3.00pm on 19 September 2008, in contrast to her allegation that she was assaulted at about 5.00pm the same day at his home when she was induced to go there on a promise of then receiving the cheque. Ms Valvano’s earlier possession of the cheque is also apparently supported by the existence of a receipt for it dated 19 September 2008 signed by her, although she denies that.

32. [88]

    However, two things about that should be noted. First, the significance of the Bluestone call was never conceded by Ms Valvano either at the criminal trial or in these proceedings. It remained in the realm of controversy before me, even to the extent that Ms Valvano somewhat hopefully wished to contend that the transcript of the phone call had been fabricated or doctored. The prospect that Ms Valvano’s credibility might be attacked upon the basis of this material ought not to be confused with the proposition that Detective Murdock should have been required or able successfully to foretell the outcome of any such challenge. Secondly, the Bluestone transcript only related to the 19 September 2008 allegations and not to the remaining charges.

33. [89]

    The preferred approach to this issue is in my opinion appropriately summarised in the State’s written submissions at [131] as follows:

34. [90]

    However, Mr Stanizzo made a series of further detailed submissions in aid of the contention that Detective Murdock lacked any reasonable or probable cause to commence the prosecution. In my view, none of these contentions has merit. They are forcefully dealt with in the State’s submissions, to the following effect.

35. [91]

    Mr Stanizzo submitted that the material seized by Detective Murdock included “the entire file in relation to the Civil Litigation Case, Macpherson v Valvano…”. There is no evidence to support this assertion. Detective Murdock listed the material he seized and it did not contain a reference to this or anything similar.

36. [92]

    There is also no evidence that the material seized by Detective Murdock or any other officer included an affidavit of Ms Kimberley Bontigao, an employee of Bluestone Mortgages, dated 27 May 2019. Mr Stanizzo maintained that this was important because the affidavit referred to Bluestone file notes concerning telephone contact with Ms Valvano on 19 September 2008. However, there is no evidence that the Bontigao affidavit or the file notes were ever in Detective Murdock’s possession. The affidavit is not referred to in his 13 December 2010 statement in which he outlined the exhibits that he had retained following his search of Mr Stanizzo’s premises or in any other statement or affidavit he prepared. It is not mentioned in the COPS entries or in Detective Murdock’s Case Report.

37. [93]

    The State also emphasised, in the context of putting Detective Murdock’s obligations as a reasonable prosecutor in proper perspective, that neither Mr Stanizzo nor his representatives thought that the affidavit was significant: it is not mentioned by Mr Stanizzo at any stage, whether in his chronology provided to his lawyers, his alibi notice, in any evidence at the withdrawal of his plea, or even in representations made by his counsel Mr Waterstreet to the DPP on 15 July 2013.

38. [94]

    On the contrary, the Bluestone transcripts and recordings (but not the affidavit) only became available in late July 2013 during the cross-examination of Ms Valvano when the Bluestone transcripts were served upon the DPP by the defence and the DPP subsequently subpoenaed the tapes. The prosecution in relation to the Valvano charges was withdrawn almost immediately after this. Mr Stanizzo cannot establish that Mr Barr, Ms Rallis or Detective Murdock were aware of the Bluestone transcripts or recording any earlier.

39. [95]

    Mr Stanizzo next asserts that Detective Murdock provided documents to Ms Valvano to assist her civil case. As the State points out, that assertion is completely inconsistent with Detective Murdock’s note and is entirely unsupported by evidence.

40. [96]

    Mr Stanizzo’s submission implicitly suggests that Detective Murdock ought to have reviewed all of the documents provided to him by the Law Society and reached a conclusion in favour of Mr Stanizzo on the multitude of issues that have now been identified. The State characterised that submission as “utterly unrealistic”. As the State points out, there were a number of allegations and counter allegations contained in those documents that were quite unrelated to the specific charges against Mr Stanizzo and which Detective Murdock was in no position to resolve. The resolution of where the truth might lie, in a contest between Mr Stanizzo and Mr Badarne arising out of differences between them in respect of their professional dealings, was not a matter for Detective Murdock to determine. If they became relevant at all, those matters were properly questions for a jury to consider: they neither proved nor disproved the allegations against Mr Stanizzo.

41. [97]

    The State also characterised Mr Stanizzo’s submission that Detective Murdock should have questioned Mr Stanizzo’s lawyers to obtain further information about his alibi as “utterly unrealistic”. It was neither his place nor his function to do so. The prospect that Mr Stanizzo’s lawyers would at that stage have been prepared argumentatively to engage any further with the prosecution about the details of his alibi must be extremely doubtful. Significantly, Mr Stanizzo did not then contend, as he does now, that he saw Ms Valvano at 10.30am on 19 September 2008, or that he saw his doctor in the afternoon. The State submitted that, given that information was not contained in Mr Stanizzo’s detailed instructions to his lawyers, it is highly unlikely that inquiries would have revealed it in 2010. At that time, Mr Stanizzo’s instructions to Mr Henniker were that he had backdated the cheque, so presumably Mr Stanizzo was then asserting that he had given Ms Valvano the cheque before 19 September 2008 in any event.

42. [98]

    Mr Stanizzo’s submissions continue to press the issue of the authenticity of Mr Badarne’s 14 November 2009 recording of their conversation. He maintains that the defence was deprived of the opportunity forensically to test Mr Badarne’s assertion that the recording he gave to the police in September 2010 was authentic. However, Mr Stanizzo conceded in cross-examination that he in fact said what he is allegedly recorded as having said. His submission to the contrary is difficult to understand or accept having regard to his evidence about it. For example:

43. [99]

    Mr Stanizzo next submitted in some detail that Detective Murdock’s email to Sharon Fleming at the DPP was evidence of the absence of reasonable and probable cause. The burden of the submission is that the matters to which he referred demonstrated knowledge on his part of matters that should have caused him to doubt the reliability of Ms Valvano’s allegations.

44. [100]

    The State submitted in response that such a contention distorts the true significance of the email: it does not prove an absence of reasonable and probable cause at that time, or any time, by Detective Murdock, or at a much later time by Ms Rallis or Mr Barr. Furthermore, it is said to be powerful evidence of Detective Murdock’s bona fides, not as a prosecutor, but as a police officer assisting the DPP. The State emphasised the following matters.

45. [101]

    In the email, Detective Murdock quite properly brought Ms Fleming’s attention to matters he considered arose from his investigations. He subsequently obtained statements from various people which were served upon Mr Stanizzo. Detective Murdock was conscientiously doing his job to assist the DPP. Nowhere in the email did Detective Murdock express an opinion that he did not believe the offences had occurred, or that the records demonstrated it was not possible that the offences had occurred.

46. [102]

    The email identified a number of records that tended to support Ms Valvano’s account and also undermined Mr Stanizzo’s current version (unknown to Detective Murdock at the time) that he had met Ms Valvano at 10.30am on the morning of 19 September 2008. First, Ms Valvano was clearly in contact with Mr Stanizzo on several occasions after 10.30am, consistent with her arranging to meet him in the afternoon. Secondly, Ms Valvano appears to have been travelling south towards Berry at about the time Mr Stanizzo now alleges he met Ms Valvano. Finally, the email identified a period from 4.57pm to 6.07pm, during which period Ms Valvano made no calls, which allowed time for her to be sexually assaulted in the manner she alleges. On the withdrawal of plea application, the evidence of Mr Stanizzo’s solicitor, Mr Henniker, was that he considered that period was consistent with Ms Valvano’s allegations.

47. [103]

    Detective Murdock’s observations about cabs and the absence of a record of phone calls at Mr Stanizzo’s office do not disprove Ms Valvano’s allegations. Although Detective Murdock expressed doubt about Ms Valvano having access to other phones, the issue of the cab could equally be explained by her recollection being wrong on a peripheral detail, given that cabs are readily caught without having to make a call. Further, if the Bluestone recordings that surfaced in July 2013 are accurate (contrary to Ms Valvano’s denials), they establish that Ms Valvano did have access to other phones on that day.

48. [104]

    Detective Murdock’s observations about where he considered the calls originated were lay opinions about what was written on a phone record. He did not say, and they did not prove, that Ms Valvano was in fact at those locations at the time a particular call was made, which would have been a matter for expert evidence about how phone networks operate. One of the afternoon locations was Balgownie, which was very near Mr Stanizzo’s office in Warrawong. Despite him not calling expert evidence, there was some evidence to explain the records. As Mr Stanizzo’s barrister, Ms Davenport SC advised Mr Stanizzo, the tower records did not disprove Ms Valvano’s allegations. Rather, “mobile phone networks give you the general area within 20 kilometres from tower to tower” and “…if the tower is busy it can then be picked up by a tower elsewhere”.

49. [105]

    After the telephone records were served on Mr Stanizzo, he pleaded guilty and signed a fact sheet in which in substance he admitted the events alleged by Ms Valvano to have occurred on 19 September 2008. The overwhelming inference from Mr Stanizzo’s plea of guilty is that Mr Stanizzo and his legal advisers did not consider the phone records were as conclusive as Mr Stanizzo now alleges. It is not appropriate now to contend that Detective Murdock should have been prescient when they were not.

50. [106]

    Mr Stanizzo submitted that if Ms Valvano’s allegations about what happened to her on 19 September 2008 were false, then her allegations about what occurred on 25 May 2009 must also have been false. He submitted that it was no answer to say that Ms Valvano’s account in respect of the 25 May 2009 assault was corroborated by Mr Badarne. I do not understand that submission. Mr Badarne’s account was capable of being accepted, even if Ms Valvano’s evidence about the 19 September 2009 sexual assault was not. Mr Stanizzo’s submissions proceed on an assumption that the Bluestone recordings proved Ms Valvano was lying about the 19 September 2008 incident. An alternative explanation might have been that she had become muddled about her timing, but was attempting to tell the truth. As the State correctly notes, even in her evidence in this Court, Ms Valvano did not back away from her allegations, which clearly continue to cause her a great deal of distress. It was not Detective Murdock’s role in fact, and it was not the role of an objective hypothetical prosecutor, confronted with arguably competing or inconsistent versions of a particular event, to decide where the truth lay.

51. [107]

    Mr Stanizzo’s submissions also assert that the State is estopped from relying on his pleas of guilty, because of the finding that the pleas did not represent a genuine admission of guilt. However, in my view, the State would be entitled to rely upon those pleas, in defence of the allegation that the prosecution was maintained when it should not have been, at least up until the point when the pleas were withdrawn. In addition, the State does not rely upon the plea of guilty to submit that Mr Stanizzo was in fact guilty, but only that it was a matter that Detective Murdock was aware of and must have been entitled to take into account: Thomas v State of New South Wales (2008) 74 NSWLR 34; [2008] NSWCA 316 at [105].

52. [108]

    It was also relevant because it undoubtedly formed part of the information that Mr Barr was aware of when he was briefed as Crown prosecutor in early 2013.

53. [109]

    Mr Stanizzo’s submissions extract an entry created by Detective Murdock on 9 February 2012 as follows:

54. [110]

    Mr Stanizzo submitted that this entry established that Detective Murdock continued to doubt Ms Valvano’s account. However, that entry was created after Mr Stanizzo had pleaded guilty and before he was given leave to withdraw his plea. The implied acceptance by Mr Stanizzo of the truth of Ms Valvano’s allegations was something that must be taken in context with this entry. Ms Valvano’s victim’s compensation claim was not discordant with Mr Stanizzo’s plea but was on the contrary entirely consistent with it. I do not consider that Detective Murdock’s reference to Ms Valvano’s “number one priority” in the context of the note suggests that she was fabricating her allegations of sexual assault.

Continuance of prosecution after August 2013

1. [111]

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

Consideration – absence of reasonable and probable cause

1. [112]

   In Thomas v State of New South Wales at [105], Gyles JA said this:

2. [113]

   In this case, Detective Murdock had no personal knowledge of the facts or circumstances underlying the charge of sexual assault upon Ms Valvano. That fact is so uncontroversial as to require no comment. Significantly, it was a state of affairs that exists almost without exception in every case of the prosecution of charges of sexual assault or similar. Such offences occur beyond the gaze of the public, often without any witnesses apart from the victim, in circumstances where any investigating officer or prosecutor is required, for better or worse, to take and assess the allegations at face value. See, for example, Gillies v State of New South Wales (No 2) [2014] NSWSC 1598 at [51]. It would have been entirely inappropriate for Detective Murdock to have refused or to have neglected to charge Mr Stanizzo upon the basis that he did not believe Ms Valvano’s account unless there had been some credible material, not being merely speculative or argumentative. The thrust of Mr Stanizzo’s submission is that Detective Murdock should (controversially and inappropriately) have embarked upon a (questionable) consideration of competing forensic possibilities that supported his belief.

3. [114]

   As was observed in A v New South Wales at [118]:

4. [115]

   Mr Stanizzo argues that there was simply not “a proper case for prosecution”. He contends in effect that Ms Valvano and Mr Badarne, in their separate ways, gave stories to Detective Murdock that were not credible because they were the product of people who had a reason to make false claims against him. The existence and detection of such motives was, according to this analysis, something that Detective Murdock should have both appreciated and pursued.

5. [116]

   The expression “proper case for prosecution” will vary in its scope and content depending upon the circumstances of each individual case. In Wood v State of New South Wales [2018] NSWSC 1247 at [240], Fullerton J said this:

6. [117]

   The State contended in light of these principles that Detective Murdock had material before him that constituted a proper case for prosecution. The State emphasised the following matters.

7. [118]

   On 9 June 2010, Detective Murdock told Ms Valvano that he would be taking appropriate action (if any) when the investigation had concluded and not when it suited her civil case. On 16 July 2010, he told Ms Valvano that he considered there was sufficient evidence to put Mr Stanizzo before the Court, even though at that time he thought the prospect of a conviction was low. Detective Murdock then obtained further statements from Mr Badarne and listened to the surveillance evidence. As earlier noted, Detective Murdock swore that he believed the sexual assault offences had occurred. When Detective Murdock arrested and charged Mr Stanizzo on 4 November 2010, he served a detailed facts sheet setting out the charges that he had laid, his beliefs as to the factual matters alleged against Mr Stanizzo and the evidence available to him to prove those allegations. These matters confirm the existence of the view held by Detective Murdock at the time.

8. [119]

   Quite apart from Detective Murdock’s subjective view, the evidence before a hypothetical prosecutor included the following material.

9. [120]

   Ms Valvano’s statement contained details of the offences that she alleged occurred on 19 September 2008 and 25 May 2009. This evidence, if accepted by a jury, was capable of proving the offences of sexual intercourse without consent with Ms Valvano on those dates. Mr Badarne’s statement corroborated aspects of Ms Valvano’s account concerning the 25 May 2009 sexual assault.

10. [121]

    Mr Badarne had also given a statement on 21 August 2010 in which he alleged that Mr Stanizzo had asked him to provide a false affidavit concerning the 25 May 2009 sexual assault on a number of occasions. That evidence, if accepted, was capable of demonstrating that Mr Stanizzo had a consciousness of guilt in relation to that offence.

11. [122]

    On 4 November 2010, Detective Murdock had listened to a conversation between Mr Badarne and Mr Stanizzo, during which Mr Stanizzo indicated that he knew the allegations against him involved the complaint of a sexual assault at his house and an allegation involving a massage at his office. Mr Stanizzo admitted that Ms Valvano had been to his house, that the door to his office did not work, consistently with the accounts given by Ms Valvano and Mr Badarne concerning the 25 May 2009 sexual assault, and that he had typed a statement that he persistently asked Mr Badarne to sign even though it contained a version that Mr Badarne protested was not true and which he refused to sign. This evidence was also arguably demonstrative of a consciousness of guilt.

12. [123]

    There was also considerable evidence to justify charging Mr Stanizzo with the intimidation offences against Mr Badarne pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act. His statements were arguably corroborated by Mr Lagapodis and Mr Badarne’s wife.

13. [124]

    The substance of Mr Stanizzo’s case then is not that there was no evidence capable of proving the offences, but rather that the prosecutors should not have believed Ms Valvano and Mr Badarne due to other matters, which Mr Stanizzo alleges damaged their credibility. However, a prosecutor does not necessarily act without reasonable and probable cause in instituting or maintaining a prosecution based only on the uncorroborated statement of the victim. As I have already observed, sexual assault cases are almost always in this category.

14. [125]

    Nor is the absence of reasonable and probable cause demonstrated by showing only that there were further inquiries that could have been made before a charge was laid. When a prosecutor acts on information given by others it will very often be the case that some further inquiry could be made: A v State of New South Wales at [86]. As was said in Herniman v Smith [1938] AC 305 at 319:

15. [126]

    The State also emphasised that a third-party prosecutor may have serious doubts about the ultimate success of the prosecution, but may consider, even before there was independent corroboration or evidence in support of the allegation, that the objective sufficiency of the material, in light of all the facts of the case, warranted a charge and a determination by jury. As was said in Clavel v Savage [2013] NSWSC 775 at [69], “the test of ‘objective sufficiency’ may require a consideration of the public policy that a contest as to credit worthiness should be determined by the fact finder (either a jury or a judicial officer) and not be pre-judged by the police”.

16. [127]

    In the present case, corroborative evidence was also obtained. In the case of the Badarne charges, the material on one view spoke for itself. Mr Stanizzo does not deny that he used the words in question.

17. [128]

    There was therefore a substantial body of evidence that Mr Stanizzo had committed the offences alleged against him, and that his prosecution was a matter properly to be left to a jury.

18. [129]

    As earlier indicated, the inquiry into the question of reasonable and probable cause directs attention to the state of affairs that obtained when the prosecution was commenced or when it is alleged it was maintained. The inquiry necessarily focusses on the material available for consideration by the prosecutor when deciding whether to commence or maintain the prosecution, not material later coming to light. In the present case, doing the best I can, it seems that Mr Stanizzo’s contentions are based significantly, if not exclusively, upon the need, somewhat onerously, to characterise Detective Murdock’s obligation concerning the material he had at his disposal in a way that assumes a knowledge or understanding of matters that he either did not have at the time or that assumes the existence of an obligation upon him to perform a forensic analysis of that material that went well beyond the scope of his role. Speaking bluntly, there was no material available to Detective Murdock that unambiguously or undoubtedly put the lie to the allegations that had been made to him. In the absence of such material, Detective Murdock was not obliged or required to perform the role of a magistrate or a judge. The unchallenged material demonstrates that Detective Murdock believed that there was a case fit to go to a jury. Any information that he may have had about the now clearly evident disharmony between Mr Stanizzo and his accusers was not sufficient to cast the veracity of their allegations into doubt or to require Detective Murdock to embark on some speculative or unfounded forensic adventure. In the case of Ms Valvano, it is as unremarkable that she might allege that she was sexually assaulted by Mr Stanizzo as a person with whom she had no history of commercial discord as it is in the circumstances that are known to have existed between them. In the case of Mr Badarne, the words used by Mr Stanizzo to threaten him probably did stem from their deteriorating professional relationship, but the unambiguousness of the threats was such that what prompted them appears to recede in importance: Mr Badarne’s motives for reporting his complaints did not cast the facts supporting the complaints into doubt.

19. [130]

    Nor am I satisfied that any prosecutor in Detective Murdock’s position would or should have taken a different view.

20. [131]

    I am not satisfied either that Detective Murdock did not believe the material he had was such as to warrant setting the processes of the criminal law in motion or that his belief that it was appropriate to do so was based on insufficient grounds.

Malice

1. [132]

   In order to establish that the prosecution was commenced or maintained maliciously, Mr Stanizzo has to prove that it was motivated by some purpose other than the proper invocation of the criminal law. The law does not prescribe what such purpose must be, only what it must not be.

2. [133]

   Detective Murdock’s state of mind can only be established by inference from conduct. In the present case, Mr Stanizzo relies upon either Detective Murdock having no genuine belief in the truth of the allegations that were made to him, or the alternative possibility that he unreasonably believed they were true, as giving rise to the inference that he commenced and maintained the prosecution for other than a proper purpose. Mr Stanizzo maintains that Detective Murdock turned a blind eye at an early stage in the investigation to deficiencies in the material before him and what Mr Stanizzo characterises as “the obvious defects” in the credibility of the Valvano and Badarne complaints.

3. [134]

   In particular, Mr Stanizzo alleges that Detective Murdock misled him in the course of a telephone conversation between them on 16 July 2010 when Detective Murdock deliberately withheld from Mr Stanizzo the fact that Ms Valvano had alleged that she had been sexually assaulted and that he was satisfied with Mr Stanizzo’s explanation that Ms Valvano was merely making trouble to gain an advantage in her civil litigation. Mr Stanizzo contends that Detective Murdock endorsed Mr Stanizzo’s response by saying “that’s what I want to hear”, thereby apparently giving Mr Stanizzo the false impression that Detective Murdock was satisfied with his explanation.

4. [135]

   Mr Stanizzo then submitted as follows:

5. [136]

   The obvious difficulty with this submission, relying as it does upon the force of the case propounded by Mr Stanizzo based on the absence of reasonable and probable cause, is that I have already rejected that case. No inference of any sort helpful to Mr Stanizzo arises from anything done or not done by Detective Murdock. In particular, by way of the example upon which Mr Stanizzo has placed particular reliance, nothing sinister flows from the fact that Detective Murdock embarked upon a course designed, if possible, to obtain further evidence by using a lawfully authorised listening device with which secretly to record his conversation with Mr Badarne. Such a strategy is in regular use by police in this State. It does not generally, and it did not here, bespeak the existence of an oblique motive, even if Mr Stanizzo had let down his guard or taken comfort in the assumption that his earlier exculpatory explanation had been accepted by Detective Murdock.

6. [137]

   Mr Stanizzo does not contest that in order to prove malice he must prove that the dominant purpose of the prosecutor was a purpose other than the proper invocation of the criminal law: A v State of New South Wales at [92]; State of New South Wales v Abed [2014] NSWCA 419. In a case of a public prosecution initiated by a police officer and subsequently taken over by the DPP, it may be more difficult for a plaintiff to prove that the prosecutor was acting for an improper purpose. This was emphasised by the High Court in A v State of New South Wales:

7. [138]

   However, as the State submits, even if Mr Stanizzo had established that there were further investigations which could have been made, this is not sufficient to prove malice by inference. While proof of malice will often be a matter of inference, “it is proof that is required, not conjecture or suspicion”: A v State of New South Wales at [93]; State of New South Wales v Abed at [152]. Even if a prosecutor acts carelessly, or with inadvertence or with a misapprehension of his legal obligations as a prosecutor, that would not be sufficient alone, or in combination, to constitute malice: Wood v State of New South Wales at [1154].

8. [139]

   As I have already considered, Mr Stanizzo seeks to establish malice by inference by pointing to Detective Murdock’s reliance upon the evidence of Ms Valvano and Mr Badarne in the face of what he alleges is material that demonstrates their lack of credit. However, that does not prove he was motivated by malice. As was said in Fred Saad & Ors v State of New South Wales; Ashley Saad v State of New South Wales [2016] NSWSC 1247 at [392]-[393]:

9. [140]

   In my opinion, the matters relied upon by Mr Stanizzo are not sufficient for him to establish malice by inference. It is also wrong to say that Detective Murdock acted recklessly. He carefully investigated the allegations against Mr Stanizzo over the course of a year, telling Ms Valvano that he would act if and when he considered it appropriate, and he only charged Mr Stanizzo when he believed the offences had occurred and after he was satisfied there was sufficient evidence to put the matter before a jury.

10. [141]

    Mr Stanizzo has not established that Detective Murdock maliciously instituted the proceedings against him.

Conclusion

1. [142]

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

2. [143]

   Mr Stanizzo’s guiding inspiration for his claims in this litigation is his belief that he is the victim of a conspiracy to cause him harm. I am not critical of Mr Stanizzo for having that belief which I consider is probably genuinely held by him. The existence of the belief is hardly controversial, as Mr Stanizzo’s opening paragraphs of his written submissions in his case against Mr Badarne clearly attest:

3. [144]

   Mr Stanizzo’s written submissions proceed in considerable detail thereafter to describe and analyse the somewhat tortured history of his relationship with Mr Badarne. This extensive historical journey, with specific references to a large number of incidents and accidents that were germinated in distrust and suspicion and ultimately matured into unalloyed enmity between the men, is relied upon by Mr Stanizzo to support the proposition that Mr Badarne had a strong and obvious motive to make false allegations about him and against him, even to the extent of being prepared to cooperate with prosecuting authorities to lay and maintain criminal charges.

4. [145]

   The significant incidents to which these detailed submissions refer are as follows:

   1. (1)

      The alleged misappropriation of monies from Mr Stanizzo’s practice by Mr Badarne.

   2. (2)

      The alleged misappropriation of $200,000 deposited by Mr Habib.

   3. (3)

      The alleged misappropriation of $20,000 deposited by Enviro Energy.

   4. (4)

      Complaints to the Law Society and the Office of the Legal Services Commissioner.

5. [146]

   These matters and topics were revealed in evidence before me in excruciating detail over many days. Their relevance was not always immediately apparent. However, I am now prepared to accept, without repeating or referring to all of the matters that Mr Stanizzo says are capable of demonstrating that Mr Badarne had a motive to harm him, that the material is at least capable of showing that the relationship between the two men had broken down. Although Mr Stanizzo’s submissions do not say so in terms, I take his reference to, and significant emphasis upon, all of this material to be relied upon to support the proposition that whatever Mr Badarne did, in either corroborating Mr Valvano’s 25 May 2009 sexual assault allegation, or in complaining of intimidation directly to him, Mr Badarne must have borne him considerable malice. I accept that the history upon which Mr Stanizzo relies, when viewed in the detail to which his submissions have descended, is capable of supporting a submission to that effect. Whether it is material that is capable of supporting a finding that Mr Badarne in fact acted out of malice is a different matter to which later reference is made.

6. [147]

   In either event, having regard to this material, Mr Stanizzo purported to outline the legal principles that he maintained informed Mr Badarne’s liability.

7. [148]

   Mr Stanizzo submitted, at [108]-[109], that Mr Badarne is liable for malicious prosecution of him if, as a matter of substance and not of form, he played an active role in the instigation and maintenance of the prosecution, such as to enable him to be characterised as a prosecutor. An example of such conduct is said by Mr Stanizzo to be “the supply of false complaints and concocted information to the authority that officially institutes the prosecution (here the police and later the DPP) and thereby procuring the institution and maintenance of an unjust prosecution.”

8. [149]

   Mr Stanizzo’s submissions in this respect appear to draw upon passages from the following authorities: Commonwealth Life Assurance Society v Brain (1953) 53 CLR 343 at 379; A v State of New South Wales (2007) 230 CLR 500 at [34]-[36]; Johnston v ANZ Banking Group [2006] NSWCA 218 at [35]-[43]; Wood v State of New South Wales [2018] NSWSC 1247 at [144]-[147]; [220]-[242], [278]-[298].

9. [150]

   Mr Stanizzo submitted that the decision of the official State prosecutors, being the police, in particular Detective Murdock, and the relevant ODPP officers and Crown prosecutor, to initiate and maintain the prosecution, was materially tainted by Mr Badarne’s false allegations, concocted information and dishonest conduct. He submitted that “such allegations and dishonest conduct were without reasonable and probable cause, as the allegations were false to his knowledge, and were malicious, as must follow from the fact that they are false, and as he was acting on a powerful motive to harm Stanizzo arising from the events that led to his being sacked, and Stanizzo’s complaints to OLSC, the Law Society and Warilla Police (re: the assault on him by David Dunn and Badarne’s likely involvement) against him”.

10. [151]

    Mr Stanizzo’s submissions helpfully direct attention in this context to the indictments that are described as “materially relevant to Badarne”. I take that to be a reference to the indictments presented against Mr Stanizzo in respect of the proof of which the Crown relied on evidence from Mr Badarne.

11. [152]

    Counts 4 and 5 related to allegations of an act of indecency on 25 May 2009. The only witnesses to these events were Ms Valvano and Mr Badarne. Mr Stanizzo submitted that their accounts to police, to which they adhered, “were false, and deliberately so” and “they colluded in putting forward such false accounts”. Mr Stanizzo submitted that it was their word against his and that there was no independent corroborating evidence. Mr Stanizzo therefore contended that the “State prosecutor’s decision [to prosecute] is thus materially tainted by their false statements and conduct”.

12. [153]

    The flaw in this submission will be immediately apparent. It is clear that Mr Stanizzo denies the allegations against him and says that they are based on false accounts given by Ms Valvano and Mr Badarne. However, an arguably uncorroborated statement is not for that reason a lie. As Mr Stanizzo accepts, it comes down to his word against theirs. It is not sufficient to demonstrate that something is a lie just by saying so. There is no evidence before me of collusion between Ms Valvano and Mr Badarne: co-operation and collusion is not necessarily the same thing.

13. [154]

    Mr Stanizzo next referred to the four counts of intimidation in date order. First, the allegation of intimidation of Mr Badarne on 14 November 2009. He submitted that the sole witness to this alleged offence was Mr Badarne, and the evidence was restricted to his police statements and the recording that he supplied. Mr Stanizzo contended that “such evidence and such recording was not only illegal but also false and fabricated, and the circumstances and timing of Badarne’s complaint and supply of the recording were engineered to hamper any attempt by police or by the defence to test their authenticity”.

14. [155]

    Mr Stanizzo therefore contended that “the proper inference” is that Mr Badarne “well knew” that Mr Stanizzo had not intimidated him on 14 November 2009 but that on the contrary Mr Badarne had visited Mr Stanizzo’s house uninvited “in order to provoke words that he could falsely represent as intimidating”. Mr Stanizzo maintained that subjectively Mr Badarne “was not fearful and intimidated by anything that Stanizzo had said” and “objectively Stanizzo did not speak to Badarne in a manner that was intimidating”. Mr Stanizzo also submitted that Mr Badarne “combined words said on different accounts [sic] in different contexts to create the false impression of an intimidating outburst by Stanizzo”.

15. [156]

    With respect to the intimidation allegation by Mr Stanizzo on 10 June 2010, Mr Stanizzo characterised this as “a complete fabrication”. He made the following submission:

16. [157]

    With respect to Mr Badarne’s complaint that Mr Stanizzo had threatened him on 12 September 2010, Mr Stanizzo submitted that the threat was “entirely uncorroborated and its falsity as an instance of intimidation is shown by Badarne’s initially having told police that he wanted nothing done; only later to complain of it to Det Murdock in order to taint his judgment and help lay the ground for the arrest that he wanted to be made”.

17. [158]

    Concerning the 21 October 2010 allegation of intimidation, Mr Stanizzo again submitted that Mr Badarne provoked him into calling him and that Mr Badarne misrepresented the content of the telephone conversation between them to the police “in order to create a false impression of intimidation, and lay the ground for the police to make an arrest”.

18. [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.

19. [160]

    Finally, Mr Stanizzo dealt with what his submissions characterise as an attempt on 4 November 2010 “to have Mr Badarne make a false statutory declaration and thereby pervert the course of justice”. Mr Stanizzo submitted in writing as follows:

20. [161]

    It is convenient at this point briefly to record three paragraphs of the submissions made by Mr Badarne in response to the case against him:

Consideration

1. [162]

   Mr Badarne’s first response to the proceedings is to maintain that he was never the prosecutor. Apart from the unexplored reference to some cases, Mr Stanizzo’s submissions are completely silent on this interesting and difficult issue. It is also quite obviously an issue that is fundamental to Mr Stanizzo’s claim against Mr Badarne.

2. [163]

   Mr Badarne understandably made detailed submissions on this topic. He also referred to Johnston which in part said this:

3. [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.

4. [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.

5. [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.

6. [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.

7. [168]

   For example, the complaint about the 25 May 2009 incident at Mr Stanizzo’s office in which Ms Valvano alleged that she was sexually assaulted is based principally upon what she told the police. She was the primary witness. The relevant charges could not have been brought without Ms Valvano’s evidence: without her evidence the matter could have gone nowhere.

8. [169]

   However, the 4 November 2010 conversation between Mr Stanizzo and Mr Badarne is difficult, if not very difficult, to characterise in any way other than an attempt by Mr Stanizzo to have Mr Badarne sign a document for later use in defending Ms Valvano’s allegations that was prepared by Mr Stanizzo and which contained matters that Mr Badarne protested were wrong. It is clear from that transcript, to the point of demonstration, that Mr Stanizzo was very concerned about Ms Valvano’s allegation. On one view at least, that concern was consistent with the allegations being true. It is not for me to determine in Mr Stanizzo’s suit against Mr Badarne where that truth lies: it is sufficient to observe that it is evidence at the disposal of the police that was neither solely within Mr Badarne’s knowledge nor demonstrably not believed by him to be true. The fact that Mr Stanizzo’s senior counsel at the time of the criminal proceedings referred to the transcript of the conversation as “dynamite” conveniently encapsulates the use that the police might have made of it without reference or resort to Mr Badarne or his opinion about it.

9. [170]

   In any event, Mr Stanizzo accepted that he said many of the things that formed the basis of the charges of intimidation. Mr Stanizzo can hardly complain about Mr Badarne’s report to police about things Mr Stanizzo now agrees that he said. For present purposes it is entirely beside the point that Mr Stanizzo asserts without evidence that Mr Badarne was not intimidated in fact, that Mr Stanizzo did not intend to intimidate him in any event, or that the words used by him were not capable of intimidating anyone. Quite apart from the fact that these submissions misunderstand the issues that arise for determination on a charge pursuant to s 13(1) of the Crimes (Domestic and Personal Violence) Act, the fact is that the words were spoken by Mr Stanizzo and were truthfully reported by Mr Badarne to the police. Mr Stanizzo’s dislike for the way that some of his conversations with Mr Badarne were recorded without his knowledge is also entirely beside the point.

10. [171]

    In my opinion, Mr Badarne was not at any time a prosecutor for the purposes of Mr Stanizzo’s claim that he was maliciously prosecuted. That is so for a number of reasons, not the least of which is that Mr Stanizzo cannot demonstrate the falsity of anything that Mr Badarne told the police. None of Mr Stanizzo’s allegations that Mr Badarne concocted his complaints withstands scrutiny.

11. [172]

    For similar reasons, Mr Stanizzo has failed to establish that Mr Badarne acted maliciously. Mr Badarne submitted, and I accept, that the fact that Mr Stanizzo has not demonstrated the falsity of any of the matters or information that Mr Badarne reported or supplied to the police means that all of the wealth of other anterior facts and circumstances that he relies upon to prove malice are little more than an irrelevant distraction. That is even before one descends, which I have deliberately declined to do, into the myriad web of claims and counter claims about the fact and timing of things that Mr Badarne is alleged fraudulently and dishonestly and illegally to have done and to whom. As I have earlier attempted to make plain, accepting all of Mr Stanizzo’s entrenched suspicions and theories about Mr Badarne at their highest, even someone with an axe to grind, to adopt Mr Stanizzo’s metaphor, is able to make a legitimate complaint of criminal conduct. As Johnston emphasised, “in actions for malicious prosecution the onus lies on the plaintiff to prove malice and want of reasonable cause” which “would not be possible in the case of genuine complaints”.

12. [173]

    Finally I note that Mr Stanizzo places considerable emphasis upon the fact that Mr Badarne neither gave nor called any oral evidence in response to the claims made against him. Mr Badarne has provided me with comprehensive submissions in response to Mr Stanizzo’s contention to the effect that some significance should attach to that decision.

13. [174]

    It is necessary only to make three points to dispose of Mr Stanizzo’s argument. First, Mr Stanizzo bears the onus of establishing his case on the balance of probabilities. The issue of whether, in this case, Detective Murdock subjectively believed that the material in his possession warranted prosecution of the offences is a significant issue that Mr Stanizzo had to establish. It was never incumbent upon his opponents, in adversary litigation such as this, to call Detective Murdock in order to assist Mr Stanizzo in that task.

14. [175]

    Secondly, but possibly more acutely for present purposes, Mr Stanizzo has chosen, as part of the evidence upon which he relied, to tender all of the statements that Mr Badarne gave to the police. In that fashion, for better or worse, Mr Stanizzo has placed before the Court all of Mr Badarne’s evidence about what occurred and what he saw and heard with respect to all of the charges. As Mr Badarne emphasises, there was nothing more for him to say. By reason of Mr Stanizzo’s forensic choice, there can be no question that no adverse inference arises from Mr Badarne’s decision.

15. [176]

    Thirdly, no inference of any assistance to Mr Stanizzo arises from Mr Badarne’s decision to ignore the material upon which Mr Stanizzo relies to suggest Mr Badarne had dishonestly dealt with clients’ money or otherwise engaged in fraudulent activity. Mr Stanizzo’s case in that respect depends entirely on his own characterisation of Mr Badarne as someone with a motive to lie and hence someone who could be shown to bear malice towards him. Mr Badarne could hardly be expected to join in any argument about that evidence when it all depended upon Mr Stanizzo’s opinion that Mr Badarne engaged in wrongdoing, not upon credible evidence that he had done so. Moreover, Mr Badarne might well have chosen to conduct his case upon the basis that malice would not become an issue of significance because he considered, accurately as it has turned out, that I would form the view that he was never relevantly a prosecutor for the purposes of the tort.

16. [177]

    Mr Stanizzo’s case against Mr Badarne should be dismissed with costs.

17. [178]

    Although not in accordance with the sequence in which Ms Valvano’s case was commenced, it is convenient, following the previous cases that I have considered, to deal with Mr Stanizzo’s cross-claim first.

18. [179]

    Mr Stanizzo’s written submissions in response to Ms Valvano’s claim against him, and in support of his cross-claim against her, commence with the following:

19. [180]

    The ability to understand this somewhat curious, unstructured and discursive material assumes an extensive background and knowledge of matters that are otherwise unexplained. It is in my experience a most unusual way to commence a written response to a claim for damages alleging sexual assault or as an opening submission in aid of a cross-claim for damages for malicious prosecution. It will be recalled that the withdrawal of the indecent assault charges against Mr Stanizzo was inspired by a perception that Ms Valvano’s claim, and her evidence, that she was assaulted by Mr Stanizzo at his home when they went there at about 5.00 pm on 19 September 2008 to receive the Permanent Custodians cheque, could not stand with evidence that she had spoken on the phone to employees of Bluestone Mortgages at about 3.15 pm on the same day, at which time she referred to having already received the cheque in question. Mr Stanizzo maintains that the cheque was handed to Ms Valvano in his office at about 10.20 am that day. It is perhaps in that context unsurprising that Mr Stanizzo wishes to emphasise his fractured commercial relationship with Ms Valvano and the discord and frustrations that he says it produced.

20. [181]

    Mr Stanizzo’s primary and overarching submission both on his cross-claim and in defence of Ms Valvano’s claim is that her allegations are false. His general submissions in support of that contention are as follows.

21. [182]

    Mr Stanizzo contended that each of Ms Valvano's allegations of assault suffers from fatal flaws. There is no physical evidence to support them. Ms Valvano delayed for 13 months before reporting the first assault and almost five months before reporting the second assault. When Ms Valvano made that first complaint on 8 October 2009, she had strong motives to fabricate the allegations against Mr Stanizzo, stemming from their dispute over her breaches of the deeds entered into between them that related to her property in Auburn Street, Wollongong.

22. [183]

    Despite her allegations that she had been assaulted by Mr Stanizzo on 19 September 2008, Ms Valvano chose to return to his office unaccompanied on 23 September and again on 25 September 2008, after she had attended on Mr Peter Bahlmann, a solicitor, in order to obtain advice and witness her signature. On that date, Ms Valvano executed the Deed of Variation and a Transfer of the property in performance of her obligations. Mr Badarne witnessed her signature on the Transfer. However, Mr Stanizzo submitted that if her allegations about 19 September 2008 were true, her later visits would have been an obvious and perfect opportunity for her to complain to him or them at that time, but she said nothing.

23. [184]

    At that time, the only thing left for Ms Valvano to attend to was to arrange for Bluestone Mortgages to discharge the mortgage so that her arrangement with Mr Stanizzo could proceed to settlement. Instead, Ms Valvano became uncontactable from late September 2008 to late February 2009, during which time, without notice to Mr Stanizzo, she was drawing down on her loan facility at the rate of $10,000.00 per week until the whole $134,500.00 was exhausted.

24. [185]

    On 27 February 2009, Ms Valvano rang Mr Stanizzo's office and spoke to Mr Badarne. Instead of arranging for the mortgage to be discharged, she offered Mr Stanizzo $80,000 in consideration for the removal of his caveat. She attended Mr Stanizzo's office on 3 and 10 March 2009 and made the same offer. In April 2009, Ms Valvano, through her then solicitors Dribbus Kovacevic, reconfirmed her offer which Mr Stanizzo finally accepted. However, Ms Valvano failed to pay the money.

25. [186]

    The matter remained in limbo until early June 2009 when, on discovering that Mr Stanizzo's cheque had not been paid on presentation, Bluestone demanded a refund of the $135,000.00 that it had inadvertently permitted Ms Valvano to draw down from her loan facility. Despite what Mr Stanizzo characterises as “Ms Valvano's allegations and insinuations that she did not understand the documents she was signing and her obligations under them”, he submitted that “it is beyond doubt” that he had required her to take independent legal advice before she signed the documents that made up their arrangement. Ms Valvano took such advice from Mr Bahlmann and signed the Deed of Variation and Transfer contrary to his advice. Having done so, Ms Valvano then ignored a long series of letters from Mr Stanizzo calling on her to perform her obligations under the Deeds.

26. [187]

    Although Dribbus Kovacevic had been acting for Ms Valvano in the dispute with Mr Stanizzo, had corresponded on her behalf during April 2009, had acted on her behalf during April 2009 and had acted on her behalf in her dispute with Shellharbour TAFE contemporaneously, no allegations of sexual assault were ever made to them or mentioned by them.

27. [188]

    Despite having allegedly been assaulted a second time on 25 May 2009, Ms Valvano telephoned Mr Stanizzo on 2 June 2009 and sought his advice on how to deal with her default under the mortgage to Permanent Custodians, caused by her surreptitious redraws on the account.

28. [189]

    When Mr Stanizzo made it clear to Ms Valvano that he relied on his rights under their agreement, she issued a Notice of Lapsing of the caveat lodged by him in accordance with their agreement. Indeed, she chose to visit his office on 21 September 2009 to serve the notice personally. Mr Stanizzo submitted that, having “pocketed or received” the benefit of the $73,000.00 and the $135,000.00, Ms Valvano unreasonably expected to have his caveat withdrawn so that she could sell the property and avoid repaying him the moneys he had paid to her or on her behalf.

29. [190]

    On 22 September 2009, Ms Valvano personally delivered a further letter to Mr Stanizzo's office. Four days later, Ms Valvano lodged a complaint against Mr Stanizzo with the Legal Services Commissioner. That complaint made no mention of sexual assault. According to Mr Badarne’s 7 November 2009 statement to the police, Ms Valvano first made allegations of sexual assault to him in “early August”. Ms Valvano also says this was in "early August" in her statement. Ms Valvano lodged a further complaint with the Legal Services Commissioner dated 8 October 2009, which again made no mention of her having been sexually assaulted.

30. [191]

    Ms Valvano made her first complaint to the police on 8 October 2009, having been served the previous evening with Gael Macpherson’s summons and interim orders made by Slattery J that day. Ms Macpherson had taken an assignment from Mr Stanizzo of his interest under the arrangement he had with Ms Valvano. By the summons, first returnable on 9 October 2009, Ms Macpherson brought proceedings against Ms Valvano to enforce her rights under the assignment.

31. [192]

    Mr Stanizzo submitted that, from this sequence of events, the following can be inferred.

32. [193]

    Ms Valvano's decision to make a second complaint to the Legal Services Commissioner on 8 October 2009 was made before her decision to complain to the police, “more likely than not encouraged by [Mr] Badarne to do so and to assist him with his own issues with Stanizzo who had reported him to the Law Society (via OLSC) on 28 August 2009”. Having lodged the complaint with the Legal Services Commissioner, which was silent as to sexual assault, Ms Valvano “consulted and colluded” with Mr Badarne who advised her how to go about it. Her very regular attendances at his new place of employment “are self-explanatory/evident”. Mr Stanizzo submitted that it “can be inferred at this point Valvano and Badarne had begun their collusion as to what each would say to Police”.

33. [194]

    Mr Stanizzo submitted that, “on Mr Badarne's advice”, Ms Valvano did not make a written statement to the police on 8 October 2009 and deliberately delayed her attendance on Detective Murdock in order to do so until 13 November 2009, after Mr Badarne had made his own statement on 7 November 2009. Mr Stanizzo submitted that the “similar content and language of the two statements shows that they were colluding with each other in the making of each”.

34. [195]

    Mr Stanizzo re-emphasised that Ms Valvano made no mention to Slattery J in the Macpherson proceedings of the sexual assault allegations at any time in the 13 months between their commencement and Mr Stanizzo's arrest on 4 November 2010. Ms Valvano’s affidavits of 5 November 2009 and 27 November 2009 are silent on the matter. Ms Valvano attended a court ordered mediation with Mr Eardley of counsel before Registrar Flaskas on 19 July 2010. Mr Stanizzo also attended. Ms Valvano made no mention of having been sexually assaulted by him.

35. [196]

    During this same period that Ms Valvano was pressing Detective Murdock to charge Mr Stanizzo, saying that it would assist her in the civil case, Detective Murdock recorded that her priority appeared to be financial gain.

36. [197]

    Mr Stanizzo's arrest on 4 November 2010 enabled Ms Valvano to apply for the hearing of the civil case, which had been fixed to begin on 30 November 2010, to be vacated pending conclusion of the criminal proceedings. He contended that Ms Valvano stood to gain nothing from that case, so the vacation worked to her advantage.

37. [198]

    In addition to the $73,000.00 paid by Mr Stanizzo, he submitted that Ms Valvano has received the following extra moneys:

    1. (1)

       $135,000.00 of redraws;

    2. (2)

       $50,000.00 from the civil case settled by LawCover on behalf of Mr Stanizzo contrary to his express instructions;

    3. (3)

       $15,000.00 value of a car transferred to her by Mr Stanizzo;

    4. (4)

       $15,000.00 TAFE fees, later the subject of a claim by Ms Valvano receiving a further lump sum settlement of about $30,000.00;

    5. (5)

       Criminal injuries compensation of about $50,000.00;

    6. (6)

       Free occupation of the subject property for four years at the rate of $30,000.00 per annum ($120,000.00).

38. [199]

    Mr Stanizzo then proceeded to make submissions specifically directed to each separate incident of alleged sexual assault.

39. [200]

    Mr Stanizzo somewhat boldly asserted that Ms Valvano's allegations of this first assault “are demolished by the following further matters”.

40. [201]

    There is no corroborating witness.

41. [202]

    Ms Valvano told the police that Mr Stanizzo visited her house on 18 September 2008 and asked for her help in posting a photograph to the "RSVP" website. According to Mr Stanizzo, this was “a complete fabrication”: he did not register for the RSVP website until April/May the following year.

42. [203]

    Ms Valvano claims to have attended Mr Stanizzo's office late in the afternoon on Friday 19 September 2008, to collect the cheque for $134,518.07 to be used in the reduction of her mortgage debt on her house, but that she did not receive it until well afterwards on arrival at his house. Mr Stanizzo emphasised that Ms Valvano signed a receipt for this cheque at his office at about 10am that morning, together with a direction to pay that sum to Permanent Custodians. Both documents are in her handwriting and bear that date.

43. [204]

    However, Bluestone's electronic loan notes record telephone calls to Bluestone on 19 September 2008, in which Ms Valvano tells Lanoai Latini at 3.19pm, Narelle Stringer at 4.09pm and Fritz Vanhoff at 4.38pm that she has a cheque of "over $100k", or "about $100k", or "$130k", to deposit into her loan account. Mr Stanizzo submitted that this can only be the cheque that he had already given her that morning. The electronic recording of Ms Valvano's calls to Bluestone on 19 September 2008 includes Ms Valvano telling Bluestone at 3.19pm on 19 September 2008 that she has Mr Stanizzo's $134,518 cheque.

44. [205]

    Ms Valvano does not deny giving Mr Stanizzo the receipt or the direction to pay, each dated 19 September 2008. According to Mr Stanizzo, her evidence does not explain how they can exist if her version of when and where she received the cheque is true.

45. [206]

    Ms Valvano's police statement and the mobile telephone records annexed to it show that between 2.56pm and 4.57pm on 19 September 2008 she made 8 calls from the Wollongong CBD up to 4.41pm, then one from Berkeley at 4.52pm, then another from Wollongong CBD at 4.57pm. These calls have a total duration of about 35 minutes.

46. [207]

    Ms Valvano then makes no calls until 6.07pm, when she makes a call from the Crown Street Mall. The visit to Mr Stanizzo's office at Warrawong and the subsequent events that Ms Valvano alleges can only have happened in this period of no more than 1 hour and 10 minutes. Accordingly, Mr Stanizzo submitted that in order to be truthful, Ms Valvano's evidence requires that all the following events have happened in this period of 1 hour and 10 minutes.

47. [208]

    Ms Valvano drives from the Wollongong CBD to Warrawong, attends Mr Stanizzo's office, sees him write out a cheque and has the conversation that she describes. They leave the office and drive to Mr Stanizzo's house. She is handed the cheque on arrival. She is shown to a downstairs room where Mr Stanizzo has a glass of wine and partly smokes a cigar. In contrast, in Ms Valvano's civil case affidavit dated 5 November 2009, she says only that she shared coffee with Mr Stanizzo, and makes no mention of sexual assault.

48. [209]

    Ms Valvano and Mr Stanizzo then leave the downstairs room and go upstairs into a large combined kitchen/dining/lounge room. Mr Stanizzo makes coffee. Ms Valvano plays the piano. They converse at the table over coffee for about 15 minutes. Ms Valvano asks to use the bathroom. She is escorted downstairs to an ensuite, where she stays for a few minutes. On leaving the bathroom, Ms Valvano alleges that she is assaulted as she describes.

49. [210]

    Ms Valvano then goes upstairs to the dining room, picks up her handbag, goes downstairs again and leaves the house. She walks to Balgownie Shopping Centre and phones for a taxi. She eventually hails a taxi passing by. She is driven home to Auburn Street, Wollongong. Ms Valvano then makes calls from the Wollongong CBD at 6.07pm and 6.32pm to her then boyfriend Paul Martin. Mr Stanizzo submitted that if, as she claims, her mobile telephone battery was out of charge when she earlier entered the taxi at Balgownie, a substantial time must have been occupied, after she arrived home but before 6.07pm, in recharging it to enable her to make these calls.

50. [211]

    Mr Stanizzo submitted that it would have been impossible for all of these things to have occurred in the time suggested. Detective Murdock's analysis of relevant telephone records is said to support this.

51. [212]

    Mr Stanizzo submitted that “the undoubted evidence is that Ms Valvano had received the cheque on 19 September 2008”. Her telephone records show that she repeatedly telephoned Mr Stanizzo's office on that morning, at 9.12am, 9.19am and 9.21am. These calls were not answered. However, Mr Stanizzo contends that the calls were consistent with Ms Valvano urgently wishing to collect the cheque before travelling to meet Mr Latta in Berry for advice. This matches up with Mr Stanizzo's evidence that she collected the cheque from him at the office in the morning.

52. [213]

    Moreover, Mr Stanizzo telephoned Ms Nikolovska from his home at 6.22pm for 23 seconds and Mr Badarne at 6.25pm for 23 minutes and 52 seconds. Such calls are consistent with his having gone home after visiting Dr Horan and inconsistent with Ms Valvano having just been at his house and the events she alleges having just occurred.

53. [214]

    Additionally, Mr Stanizzo submitted that Ms Valvano's version of the assault on 19 September 2008 in her police statement is radically different from what Mr Badarne says she told him in his first statement to police on 7 November 2009. Her version given directly to the police is of events beginning "late in the afternoon" at Mr Stanizzo's office. At paragraph 28 of her statement she says "I opened the door [and] saw Vince standing directly in front of me … half-naked, only wearing a dark coloured T- shirt and no pants at all". That is to be compared to what Mr Badarne records her having told him, that "as soon as I went out of the toilet Vince was there standing at the toilet door and grabbing me totally naked…"

54. [215]

    Mr Stanizzo's evidence is that Ms Valvano had never been inside his house. He disputes the accuracy of her descriptions to police of the interior layout. For example, downstairs, where she claims to have been taken, there is no bedroom and no ensuite as she claims. Mr Stanizzo suggests that what Ms Valvano said to the police about the premises could easily have come from Mr Badarne, who had visited Mr Stanizzo's house several times.

55. [216]

    Once again, Mr Stanizzo submitted that Ms Valvano's account of this alleged assault was “demolished” by the following further matters.

56. [217]

    It is completely uncorroborated. On her case, Mr Badarne witnessed the assault. He was available to be called by her but was not. He was able to give evidence in his own case that supported her, but did not. A very strong Jones v Dunkel inference is said to arise.

57. [218]

    The evidence of Mr Stanizzo is that his relationship with Ms Valvano as at 25 May 2009 had broken down. They were locked in a dispute as to her failure to perform her obligations under their property deal and she had engaged Dribbus Kovacevic to act for her. Mr Stanizzo contended that it was “inconceivable that she would have visited [his] office and interacted with him as she claims” in those circumstances.

58. [219]

    Mr Stanizzo's evidence is that on that day he merely saw Ms Valvano and Mr Badarne together at the office briefly at around the middle of the day, and had no conversation with them, after which they left and he did not see them again. Mr Stanizzo said that Mr Badarne was not acting for Ms Valvano in relation to her TAFE dispute with his permission or knowledge, and that he had nothing to do with the matter.

59. [220]

    Mr Stanizzo's business with Mr Badarne that morning was dealing with a letter received from Henry Davis York dated 25 May 2009 in the matter of Boumelhem. After discussions and negotiations, the letter was faxed back to that firm bearing the written agreement and signature of them both.

60. [221]

    Mr Badarne had been sacked from Mr Stanizzo's firm on 14 May 2009 by letter, and only allowed to return to complete work on his outstanding and very urgent court matters. Mr Stanizzo submitted that “they were enemies at this time”. Mr Stanizzo contended that it “is ludicrous to suppose that [he] would have acted towards Ms Valvano at the office in Mr Badarne's presence” as she and Mr Badarne have alleged. Given the falling out between Mr Stanizzo and Mr Badarne, it is “unthinkable” that Mr Stanizzo would commit such an act in the presence of Mr Badarne, a person who had threatened to "bury" him less than two weeks before, “and thus present Mr Badarne with grounds to blackmail him” in connection to Mr Stanizzo's intention to report Mr Badarne to the Law Society in relation to Mr Stanizzo’s belief that Mr Badarne had misappropriated $220,000.

61. [222]

    Mr Badarne's claim to police that Mr Stanizzo had interfered with the lock on his office door so that it could not be opened from outside is said to be rebutted by the unchallenged evidence of Mr Stanizzo and David Stanizzo. Mr Stanizzo submitted that if Mr Badarne had truly witnessed what he claims on 25 May 2009, he would surely have reported it to police immediately.

62. [223]

    I have included these submissions in some more detail than might ordinarily have been expected in a case such as this. Mr Stanizzo made it clear on a number of occasions during his evidence what he thought of the events that have generated this litigation. In fairness to him, the following excerpt from the transcript is one example of his desire to give voice to his views and his feelings:

63. [224]

    Ms Valvano is no less emotionally affected by these things. My observation of her in the course of the proceedings was that she was not managing well and found the task of simply turning up to court each day to be almost beyond her physical capacity and mental abilities. I will not include examples of events in court that possibly support my view. It is sufficient to note that a close reading of the transcript of the proceedings will make this clear to any reasonable observer.

64. [225]

    Accordingly, on the sixth day of the proceedings, after Ms Valvano had been in the witness box for some time and extensively cross-examined, I said this:

65. [226]

    These concerns also led me on occasion to attempt to assist Ms Valvano to focus her attention on the matters in issue. For example:

66. [227]

    Another matter of concern was the way in which the cross-examination of some witnesses in this case centred on matters of no or only marginal significance. By way of example, the following extracts from the transcript with respect to the 19 September 2008 events should be noted:

The evidence of Ms Valvano and Mr Stanizzo

1. [228]

   I have attempted to afford Ms Valvano and Mr Stanizzo considerable licence with respect to the matters that they wish respectively to contend are relevant to the resolution of the central dispute. Although one could be excused for losing sight of the relatively narrow critical matters that are important to that dispute, having regard to the wide-ranging cross-examination of each of them and the mountain of (often scarcely helpful) documents in the court book, the case effectively distils, but is not limited, to the determination of whether Mr Stanizzo assaulted Ms Valvano on one or other of the two occasions as she alleged or whether he did not.

2. [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. [230]

   Ms Valvano appears to me to be a very vulnerable individual whose life has undoubtedly been very difficult for many years and for many reasons. This is described in detail in Dr Jonathan Phillips’ 7 November 2014 report, which is referred to in considerable detail later in these reasons. Based simply upon my own observations, and with apologies to William Shakespeare, it does not seem to me that Ms Valvano could actually be described as the feather in Fortune’s cap. She started out in the litigation before me with a barrister who, I regret to say, had no idea what he was doing. At one point he informed me that Ms Valvano’s damages case was to be “discontinued”. That did not appear to me then to have been a terribly well thought out position to adopt, if only for strategic reasons. It was unsurprisingly not pursued. Shortly after that, that barrister’s retainer was terminated. Ms Valvano has been without legal assistance since then.

4. [231]

   Without intending to be critical of Ms Valvano, the task of running her case and defending Mr Stanizzo’s claim has clearly been beyond her. Ms Valvano had no concept of how to present her case or construct her defence, no idea about the relevance of evidence or the need to focus on what issues had to be proved and what allegations had to be rebutted. Ms Valvano made no submissions in response to Mr Stanizzo’s allegations that she was a prosecutor in the relevant sense or that she commenced and maintained her allegations of criminal conduct against him without reasonable or probable cause or maliciously. She led little evidence of much assistance to her claim for damages and offered no assistance on the question of how I should distinguish between the psychological damage that she says was caused by being assaulted by Mr Stanizzo and any like condition that may have been the result of other life events.

5. [232]

   An example of her confusion can be seen in her response to the recording of her conversations with the Bluestone Mortgage representatives, from which it appears, if accepted, that she was in possession of Mr Stanizzo’s cheque well before she said that she went to his house that afternoon. Ms Valvano’s response was to contend that the recording was “doctored” and that Mr Stanizzo was responsible for doing it. She offered no evidence or other support for the contention which presently remains untested and unproven. Having regard to the significance that this material received in the criminal proceedings, it is improbable that its provenance and authenticity have not already been closely examined. It is sufficient for present purposes to note that Ms Valvano has not demonstrated that this very cogent evidence is not genuine. She failed to address the ramifications of it being authentic.

6. [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 10am on 19 September 2008. Mr Newton cross-examined Mr Stanizzo about this. Mr Stanizzo said in his evidentiary statement prepared in September 2017 that Ms Valvano attended his office for the purpose of settlement of the purchase of a share of her house. However, that version of what occurred was never given by Mr Stanizzo to his legal team in the criminal proceedings, was not referred to in his alibi notice, was never mentioned to Detective Murdock and only came to light some nine years after the event. The following transcript refers:

7. [234]

   It has always been Ms Valvano’s contention that she did not attend Mr Stanizzo’s office to receive the cheque on that morning, but that she was in fact some distance away in Shellharbour. Mr Stanizzo was cross-examined about that:

8. [235]

   The resolution of this dispute obviously plays into the question of whether or not Ms Valvano had the cheque when she spoke to the Bluestone representative and raises the associated issue of whether or not Mr Stanizzo is now untruthfully asserting in his 2017 statement for the purposes of these proceedings that Ms Valvano was at his office to receive it that morning whereas there was no contemporaneous reference to it at all in the criminal proceedings.

9. [236]

   I have found the determination of who between Ms Valvano and Mr Stanizzo is telling the truth about 19 September 2008 and 25 May 2009 to be very difficult. Neither was an ideal witness. Both were prone to emotional outbursts, Mr Stanizzo protesting regularly that he has been the victim of a terrible conspiracy that has ruined his life, and Ms Valvano dissolving into episodes of emotional collapse and unintelligibility. Any attempt by me to resolve the issue with only the fragile assistance of demeanour would therefore be little more than an exercise in sophistry.

10. [237]

    There is, however, a significant piece of evidence with the benefit of which I consider it is possible to solve the conundrum. In my opinion, the 4 November 2010 conversation between Mr Stanizzo and Mr Badarne, and the cross-examination of Mr Stanizzo with respect to it, permits me to conclude who is telling the truth about what happened to Ms Valvano on both days.

11. [238]

    It is not in doubt that shortly before he was arrested, Mr Stanizzo had a conversation with Mr Badarne on 4 November 2010. That conversation was secretly (and legally) recorded, and it included references to the content of a document, in the form of a statutory declaration, prepared by Mr Stanizzo for execution by Mr Badarne. Mr Stanizzo said this about its preparation:

12. [239]

    Mr Stanizzo was also cross-examined about it in the following extract:

13. [240]

    It is therefore plain that the transcript of the recorded conversation between Mr Badarne and Mr Stanizzo includes in practical terms the complete text of the document drafted by Mr Stanizzo for him to consider. The transcript of the recorded conversation is very long, but having regard to the significance that I consider it should be given, it is included in full in what follows:

14. [241]

    Mr Stanizzo was asked to compare his evidence given in his statement for these proceedings about what Mr Badarne had told him, with how he came to formulate what he put in the statutory declaration given to Mr Badarne to sign:

15. [242]

    That answer is difficult to accept. The whole tenor of the conversation is that Mr Badarne was insisting that the statutory declaration did not accord with anything seen or heard by him.

16. [243]

    Mr Stanizzo insisted that he had no idea when he had the conversation with Mr Badarne that Ms Valvano had complained to the police about him in October the previous year. He gave this evidence:

17. [244]

    In the context of the content of the recorded conversation, Mr Stanizzo was asked whether Ms Valvano had ever come to his house. His evidence in these proceedings suggested that he insisted that she had not. He was then cross-examined about this:

18. [245]

    Mr Newton then suggested to Mr Stanizzo that he was well aware by the time of his conversation with Mr Badarne on 4 November 2010 that Ms Valvano had made the complaints against him:

19. [246]

    In my view, that answer is totally incapable of acceptance. Mr Stanizzo said that the only time he found out about complaints to the police was on either 2 or 3 November 2010. I sought to clarify that as follows:

20. [247]

    No-one dissented.

21. [248]

    Mr Stanizzo was asked about the statutory declaration that he had prepared for Mr Badarne to sign:

22. [249]

    At about this point in the proceedings, Mr Waterstreet objected upon the basis that the transcript of the recorded conversation suffered from the defect that it appeared that Mr Badarne was in effect directing the conversation to suit an ulterior purpose. The following exchange should be noted:

23. [250]

    Mr Stanizzo then insisted in his evidence that the draft statutory declaration he was presenting to Mr Badarne was in fact the truth:

24. [251]

    In this context, I felt that it was necessary to make sure that Mr Stanizzo understood and appreciated the thrust of what was being, or what ultimately might be, suggested to him about this material:

25. [252]

    Mr Stanizzo also came to clarify the question of when he knew of Ms Valvano’s complaints to the police:

26. [253]

    Shortly following this exchange, I raised the issue of whether Mr Stanizzo was attempting to solicit Mr Badarne’s assistance with a promise of paying him money:

27. [254]

    However, the terms of the document presented to Mr Badarne included the following:

28. [255]

    The suggestion that Mr Badarne was somehow effecting a ploy to extract money from Mr Stanizzo, or that the recorded conversation indicates that, is nothing short of completely ludicrous. Mr Stanizzo wanted Mr Badarne to provide a statement for use by him in repelling Ms Valvano’s claim that she was assaulted in his office. The document is full of self-serving material in the nature of a submission or pleading, not the recollections of a disinterested witness. It is unsurprising that Mr Stanizzo’s barrister described it as “dynamite” or that Judge Berman felt the need to repeat that description in his judgment on Mr Stanizzo’s application to withdraw his pleas.

29. [256]

    Mr Stanizzo’s evidence in cross-examination on the recorded conversation with Mr Badarne on 4 November 2010 and the closely related issue of how the document that he wanted Mr Badarne to sign came into existence is both unbelievable and I do not believe it. Mr Stanizzo regularly feigned an inability to understand questions he was being asked. He constantly refused to direct his attention to the questions that he perceived would create difficulties for him if answered responsively. He even disagreed with many propositions that were put to him in circumstances where it was obvious that the cross-examiner was relying upon material in a document of which Mr Stanizzo was the author.

30. [257]

    I regret to say that I am simply unable to believe Mr Stanizzo on any disputed issue of fact upon which he is neither corroborated by another witness nor a document of which he is not the author. The significance of this is that I reject entirely Mr Stanizzo’s denials of Ms Valvano’s allegations of sexual assault. Only a short time before and on the day he was arrested, Mr Stanizzo was attempting improperly to influence or induce Mr Badarne to sign up to a false account of what happened on 25 May 2009. He brushed aside Mr Badarne’s protestations that he could not permit himself to agree to such a course. Mr Stanizzo even appears to go as far as to imply that Mr Badarne’s recovery of his entitlement to shared legal costs will be dependent upon him doing so. Nowhere in his evidence or his submissions has Mr Stanizzo been able to offer any benign interpretation of his recorded conversation with Mr Badarne shortly before his arrest.

31. [258]

    However, my rejection of Mr Stanizzo’s evidence concerning Ms Valvano’s allegations of sexual assault by him needs to be properly understood. That rejection, standing alone, is neither determinative of his claim for damages for malicious prosecution against Ms Valvano nor of her claim for damages against him for assault. For example, in the curious procedural way in which this particular case evolved, Mr Stanizzo has to establish that Ms Valvano’s allegations are false, but rejection of his evidence about the allegations does not mean that his claim for malicious prosecution fails at the threshold. Mr Stanizzo could establish, as a matter of theory, that Ms Valvano’s allegations were false even absent his testimony to support that contention. Clearly enough, Mr Stanizzo bears the onus of proving that Ms Valvano made allegations of criminal conduct when she knew them to be untrue.

32. [259]

    In the normal or expected course of events, a pursuer in the position of Mr Stanizzo would not have the benefit of an opportunity to cross-examine the putative prosecutor as part of the evidence in his case. That is what occurred in his claims against both the State and Mr Badarne. In his claim against Ms Valvano, however, she is the plaintiff and was exposed to cross-examination on issues going both to her claim for damages and her defence of Mr Stanizzo’s cross-claim. Accordingly, Mr Stanizzo is able to draw upon Ms Valvano’s evidence in support of his cross-claim. In the events that have occurred, having regard to my view of Mr Stanizzo’s evidence, Ms Valvano’s account of the alleged sexual assault is both critical to her claim for damages, as it would always have been, and now critical also to the determination of his cross-claim.

33. [260]

    It seems to me that three possibilities exist. First, if Ms Valvano is believed by me, or she otherwise establishes that she was sexually assaulted by Mr Stanizzo, she would succeed in her claim for damages, subject to the proof of loss, and Mr Stanizzo would fail on his cross-claim: a finding that Ms Valvano was telling the truth would be inconsistent with Mr Stanizzo’s claim that she instituted or maintained proceedings against him that she knew to be not based on fact. Secondly, if it were not possible to say that Ms Valvano had satisfied me that she had been sexually assaulted, in the sense that she failed to discharge her onus of proof, her claim for damages would fail but Mr Stanizzo’s case would not be assisted by that result: his cross-claim would not be advanced by my inability to say positively that Ms Valvano was lying. Thirdly, if Ms Valvano were disbelieved by me and I found that her allegations were false, her claim for damages would fail but Mr Stanizzo would be entitled to rely upon that finding in his cross-claim in aid of a submission that she was indeed a prosecutor in the sense that he alleges.

34. [261]

    In my opinion, Ms Valvano’s accounts of what happened to her on 19 September 2008 and 25 May 2009 are true. In forming that view I consider that I must be satisfied to the standard required by s 140 of the Evidence Act 1995. That section provides as follows:

35. [262]

    The matters alleged by Ms Valvano are criminal acts. The fact that Mr Stanizzo is not responding to criminal charges does not detract from the fact that the allegations against him are of a most serious kind. I am comfortably satisfied that Ms Valvano is telling the truth for the following reasons.

36. [263]

    Significantly in my opinion, Ms Valvano gives a detailed and credible account of what she says occurred on 19 September 2008. She describes Mr Stanizzo’s house in detail, including the garage when she arrived, the fact that there is more than one level, the piano she played, the furniture and the general layout, including a colourful description to his legal books and the remarkable and somewhat extraordinary and enigmatic reference to a cement mixer.

37. [264]

    She then describes what she says happened to her. Criticisms directed to whether she said Mr Stanizzo was naked or half-naked seem to me to be of very little significance. She provided intimate details of his anatomy, a matter that, if incorrect, would have been fatal to her account without more. Her description of the whole sexual assault, and what could be described as the awkward clumsiness of what happened, is consistent with truthful understatement rather than malicious falsity. Without descending into the vernacular, it is difficult to see how an account of this nature, replete with unnecessary and collateral details, could easily be invented. Nothing arising from Ms Valvano’s cross-examination exposed any obvious flaw in her recollections or descriptions. She was not confronted with diagrams or photographs that made her account suspect or doubtful.

38. [265]

    Moreover, Mr Stanizzo’s submission that Ms Valvano’s descriptions of the layout of Mr Stanizzo’s house “could easily have come from” what she had been told about it by Mr Badarne, is nothing more than speculation. I am satisfied that any such source of information would not have revealed the presence of a cement mixer and that Ms Valvano’s description of that item being present is based upon her own observation.

39. [266]

    It is true there was no witness to corroborate her account on 19 September 2008. That is unremarkable in the circumstances. A corroborative witness would have supported Ms Valvano’s account but the absence of such a witness does not make it less believable.

40. [267]

    Mr Stanizzo’s general submissions proceed on an assumption that the Bluestone recordings prove that Ms Valvano was lying. That is based upon the proposition that her evidence about the receipt of the cheque is so inexorably tied to the events at Mr Stanizzo’s house that rejection of one part of the evidence necessarily leads to rejection of the rest.

41. [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.

42. [269]

    I do not accept that Ms Valvano has given competing versions of the 19 September 2008 incident that are “radically different”. There are some matters of detail that vary from time to time in the accounts that she has given. I do not accept that the difference between naked and half-naked is significant in the context of the event that Ms Valvano describes.

43. [270]

    Mr Stanizzo maintains that the 25 May 2009 incident is also wholly uncorroborated. That is not entirely accurate. It is true that the actual sexual assault alleged was not observed by anyone. However, Mr Badarne’s statements indicate that he could hear what was occurring in Mr Stanizzo’s office and also observed Ms Valvano when she emerged from it.

44. [271]

    Mr Stanizzo relies upon the fact that neither Ms Valvano nor Mr Badarne reported these incidents to the police for some time as being of some particular significance. With respect to Ms Valvano, belated reporting of sexual assault is a matter of importance, but is not necessarily decisive of the issue of whether a late complaint is a fabrication. It is something to take into account in all of the circumstances. Moreover, Ms Valvano has repeatedly asserted that Mr Stanizzo threatened her that if she said anything he would fit her with concrete legs. Having regard to my observation of Mr Stanizzo in the witness box, I consider that he is a very intimidating personality. He refused to be silent on a number of occasions and spoke over me and counsel when it suited him. He showed no apparent respect for a contrary or alternative point of view. He often spoke loudly. I accept that Ms Valvano was disinclined to do anything to upset Mr Stanizzo, including reporting her complaints of sexual assault, for fear of the reaction that it might provoke.

45. [272]

    Ms Valvano and Mr Stanizzo were tied together in their commercial dealings and ultimately their commercial dispute. It does not seem to me to be at all remarkable that Ms Valvano did not mention sexual assault in her complaints to the Legal Services Commissioner about Mr Stanizzo’s conduct as a solicitor, far less that she failed to refer to it in the proceedings before Slattery J. If anything, the opposite would have been remarkable.

46. [273]

    Nor does Mr Badarne’s failure to report the matter to the police himself appear to me to be surprising. Mr Badarne was not an eye witness to what occurred in Mr Stanizzo’s office. His evidence was contextual, and he was not in any position to make a report of something that he did not actually see for himself. His later evidence to the police is consistent with that limitation.

47. [274]

    Mr Stanizzo has also made submissions in these proceedings that it would be “unthinkable” that Mr Stanizzo would do anything improper in Mr Badarne’s presence as they were “enemies” and Mr Stanizzo would not wish to give Mr Badarne the opportunity to blackmail him. The text of their 4 November 2010 meeting, however, clearly reveals that Mr Stanizzo was seeking Mr Badarne’s assistance to defend Ms Valvano’s allegations about what happened in the office on 25 May 2009. It seems far less likely that Mr Stanizzo would have asked Mr Badarne for a statement to assist him with the police investigation if their relationship had descended into enmity as he suggests.

Conclusion

1. [275]

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

2. [276]

   Ms Valvano is entitled to judgment against Mr Stanizzo on her claim. Mr Stanizzo’s cross-claim for malicious prosecution should be dismissed with costs.

Ms Valvano’s damages

1. [277]

   On 4 June 2019, I permitted Ms Valvano to rely upon four medical reports obtained by her from Dr Jonathan Phillips. They were marked as exhibits 55 to 58 respectively, and are to be found in volume three of the joint court book.

2. [278]

   It is important to observe at this point that Ms Valvano did not give clear or detailed evidence of the matters that are dealt with in Dr Phillips’ reports. But for the history contained in them, there is no evidence relating Ms Valvano’s psychiatric or psychological condition to the events that she complains of on 19 September 2008 or 25 May 2009. In that context I said the following things in my brief reasons for judgment on 4 June 2019:

3. [279]

   Subject to questions of Ms Valvano’s credit or credibility, however, Dr Phillips’ reports are in for all purposes. Ms Valvano’s recitation of her history to Dr Phillips in effect becomes evidence from her without limitation: s 66A of the Evidence Act 1995. That section provides as follows:

4. [280]

   Quite apart from s 66A, as a matter of procedural reality, the things that Ms Valvano told Dr Phillips were always in play in these proceedings. Dr Phillips became available to be cross-examined about his consultations with Ms Valvano and the history that he took from her. Ms Valvano had no training that assisted her to recognise the matters that she had to establish in order to prove that she suffered a loss arguably caused by Mr Stanizzo. It also seems entirely apparent that she anticipated that Dr Phillips’ reports would be admitted into evidence and that all that she needed to say about her condition had been related to and recorded by him. Mr Stanizzo suffers no procedural prejudice if Ms Valvano’s complaints to Dr Phillips are treated as evidence given in court by her.

5. [281]

   Dr Phillips’ first report is dated 7 November 2014. Despite Dr Phillips’ concern, expressed in that report, that Ms Valvano was not a good historian, he managed to extract details of some complexity and length that are relevant to the assessment of the degree of Ms Valvano’s psychiatric and psychological condition and the extent to which, if at all, it is related to or caused by the sexual assaults of which she complains. Once again, at the risk of over-burdening these reasons with too much material, it is essential, for the reasons I have just explained, to include a significant portion of that report as follows:

6. [282]

   Dr Phillips also gave the following evidence:

7. [283]

   The cross-examination continued:

8. [284]

   Ms Valvano made the following submissions concerning her loss and damage:

9. [285]

   Mr Stanizzo offered no submissions either in response to these submissions or at all concerning Ms Valvano’s loss and damage. It is not clear to me whether that was an oversight or an intentional but incautious expression of confidence about the outcome of Ms Valvano’s claim. Nor did Mr Stanizzo offer any assistance upon the question of whether s 3B of the Civil Liability Act 2002 applied to Ms Valvano’s claim. That section is relevantly as follows:

10. [286]

    In my view, the assaults alleged by Ms Valvano were both intentional acts and sexual assaults. Ms Valvano’s damages are therefore to be assessed at common law.

11. [287]

    Ms Valvano particularised her loss and damage in her statement of claim filed on 24 April 2012 as follows:

12. [288]

    It is important to observe that the matters that I am entitled to take into account from Dr Phillip’s report as if they had been given in evidence by Ms Valvano are limited to her description of her health, feelings, sensations, intention, knowledge or state of mind. I have included matters arguably extending beyond that description only for the sake of completeness.

13. [289]

    It is evident that Ms Valvano’s psychological problems cannot all or exclusively be attributed to the assaults committed by Mr Stanizzo. Dr Phillips’ analysis makes this clear. As he has indicated, “other stressors are likely to be adding to her current mental burden, these including issues within the family, ongoing financial pressure, and her deteriorating physical health status”. Moreover, many of the things that Ms Valvano complains of are not the subject of her pleaded case. For example, the fact that Ms Valvano feels that Mr Stanizzo has treated her improperly or unfairly in the course of their financial transaction when he took a proprietary interest in her house, and that this has caused problems for her, is not compensable in an action for damages for sexual assault. Indeed, the superadded problems that this, and other events in her life, have created for Ms Valvano makes dissection and identification of the permissible causative influences upon her a matter of no little difficulty. As Dr Phillips has also noted, apportioning diagnostic weight is always difficult. My task is no easier.

14. [290]

    Ms Valvano is entitled to be compensated for the assaults and for those conditions that currently afflict her that were caused or exacerbated by the assaults. Those conditions include her depression and anxiety, hypervigilance, anhedonia, loss of psychological well-being and feelings of fear and helplessness. I consider that Ms Valvano would have suffered, or would have been susceptible to suffer, from these conditions even without the assaults upon her, but to a lesser extent. In my opinion, Ms Valvano’s already existing conditions have been made worse by the assaults. Her current complaints are, as Dr Phillips has indicated, very much secondary to adverse factors during her formative years. I intend to compensate her only for the extent to which she is worse now than she would have been but for the tortious conduct of which she complains. Doing the best I can, I consider that Ms Valvano is entitled to general damages in the amount of $120,000.

15. [291]

    There is no evidence that Ms Valvano has incurred any medical or related costs or out-of-pocket expenses. There is no evidence that the medications and therapeutic treatment that Dr Phillips has identified as likely to ameliorate Ms Valvano’s condition have been purchased or utilised by her. However, adopting Dr Phillips’ opinion to the effect that her condition will improve with treatment and medication, for which Mr Stanizzo is entitled to receive the benefit in terms of a reduction in general damages, I have allowed a further sum of $15,000 for future treatment and medical expenses.

Orders

1. [292]

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