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

1. [1]

   THE COURT: Over 24 non-consecutive days in February, May, and June 2019, and 28 February 2020 three separate proceedings involving the appellant, Vincent Stanizzo (as defendant, cross-claimant and plaintiff) were heard in the Common Law Division of the Supreme Court. The outcome of each was unfavourable to Mr Stanizzo: Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales [2020] NSWSC 402. By a single Notice of Appeal Mr Stanizzo appeals against the orders made in each case. There are, in fact, three discrete appeals. Each is governed by s 75A of the Supreme Court Act 1970 (NSW) by which the appeal is to be way of rehearing, and this Court has the powers and duties of the court of first instance, and is empowered to make findings of fact and draw inferences from the evidence. The exercise of the power to make findings of fact contrary to those made by the court of first instance is constrained by the principles stated by the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; Lee v Lee; HSU v RACQ Insurance Ltd; Lee v RACQ Insurance Ltd (2019) 266 CLR 129; [2019] HCA 28.

2. [2]

   Also before the Court, on a contingent basis, was a notice of motion filed on behalf of Mr Stanizzo on 29 January 2021, pursuant to which orders were sought restraining Muhammed Badarne and his wife, Rown Badarne, from disposing or otherwise dealing with certain nominated real estate until further order of the Court. It was agreed that, in the event that the appeal in Stanizzo v Badarne was dismissed, the motion also would be dismissed.

The proceedings

1. [3]

   The first proceeding was commenced in the name of Ms Karina Vivianna Fregnan (the first respondent) in the District Court on 24 April 2012. Ms Fregnan has previously been known by the name Vivian Sgangarella-Valvano. For convenience we will refer to her consistently as Ms Fregnan, although both names appear in different places in the evidence, and she was, in the proceedings in the Common Law Division, referred to as “Ms Valvano”. Ms Fregnan claimed damages against Mr Stanizzo for two separate sexual assaults that she alleged Mr Stanizzo had committed upon her, on, respectively, 19 September 2008 and 25 May 2009. She also alleged the tort of false imprisonment. On 16 October 2013, Mr Stanizzo filed a cross-claim in which he claimed, against Ms Fregnan, damages for malicious prosecution.

2. [4]

   On 28 August 2014, also in the District Court, Mr Stanizzo commenced proceedings against Muhammed Badarne (the second respondent), also claiming damages for malicious prosecution (the second proceeding).

3. [5]

   On 5 October 2016 Mr Stanizzo filed in the Supreme Court a Statement of Claim naming as defendant the State of NSW (the third respondent), and again claiming damages for malicious prosecution (the third proceeding).

4. [6]

   The two District Court proceedings (the first and second proceedings) were transferred to the Supreme Court and were heard, together with the third proceeding, by the primary judge (Harrison J) over the dates mentioned above. A vast amount of documentary material was put before the primary judge. The material was contained in a “Court Book” that extended to ten volumes and 2,500 pages. Not all of that material was reproduced in the appeal books for this Court and it seems that not all of it found its way into evidence. Much of the material that is contained in the appeal books was plainly extraneous, or of no more than peripheral relevance, to any issue in any of the three proceedings. Some of the material included in the appeal books was not in evidence, but the construction of the appeal books is such that it is not possible to know with any degree of certainty what was in evidence and what was not. It has been necessary to proceed on the assumption that, unless the contrary was drawn to the attention of the Court (as has happened in some instances) the documentation in the appeal books was in evidence in the trial.

5. [7]

   Ms Fregnan was, on the first and second days of the hearing before the primary judge, represented by counsel. On the third day counsel appeared only to announce that his instructions had been withdrawn. Thereafter Ms Fregnan appeared unrepresented, as she has done in this Court.

6. [8]

   Ms Fregnan relied on an affidavit sworn on 1 June 2017 to which she annexed a number of documents, including statements made by her to police on, respectively, 13 November 2009 (actually completed and signed on 25 November 2009) and 19 July 2013. As recorded in the transcript of the trial Ms Fregnan also relied on an evidentiary statement dated 8 August 2018. This statement was not included in the appeal books. Ms Fregnan was cross-examined on behalf of Mr Stanizzo over four days, yielding 335 pages of transcript.

7. [9]

   Mr Stanizzo responded to Ms Fregnan’s allegations in the first proceeding in an evidentiary statement dated 22 September 2017. The statement also served as his evidence in chief on his cross-claim. In support of his claim against Mr Badarne (the second proceeding) Mr Stanizzo relied on an evidentiary statement dated 5 June 2017; in support of his claim against the State of NSW, he relied on an evidentiary statement dated 2 June 2017. As we understand it, all evidence was treated as admitted in all proceedings. Mr Stanizzo, also, was cross-examined at length.

8. [10]

   On 30 April 2020, the primary judge delivered judgment. He upheld Ms Fregnan’s claim for damages for sexual assault (the first proceeding) and entered judgment against Mr Stanizzo in the sum of $135,000. He dismissed Mr Stanizzo’s cross-claim. He ordered Mr Stanizzo to pay the costs of the first proceeding. He dismissed with costs the second and third proceedings, in each of which Mr Stanizzo was the plaintiff.

9. [11]

   The three proceedings (including the cross-claim) are related. They arise out of relationships between Mr Stanizzo, Ms Fregnan and Mr Badarne, in circumstances that we will now briefly describe, but which will need to be explored in greater depth below.

Background

1. [12]

   The following facts we understand to be uncontroversial (unless otherwise stated). In recounting these facts, we have attempted to limit ourselves to what is truly material to the issues raised in the three appeals and to bypass the mass of irrelevancies that appear in the appeal books.

2. [13]

   At all relevant times Mr Stanizzo was a solicitor practising on his own account in Wollongong under the name “V F Stanizzo Lawyer”. Mr Badarne was also a practising solicitor, who worked out of Mr Stanizzo’s office pursuant to a fee sharing arrangement. The precise terms of that arrangement between them are not clear on the evidence and it is not necessary to understand them to resolve the issues on the appeal. What is clear is that the arrangement gave rise to significant and ongoing conflict between the two men. In one statement Mr Badarne said that, while he was working in Mr Stanizzo’s office, he had his own clients but acted for them under the umbrella of V F Stanizzo Lawyers. In December 2008, conflict between the two men emerged, over a particular transaction. There appear to have been recurrences of the conflict, and, on 14 May 2009, Mr Stanizzo terminated their arrangement. Mr Badarne was briefly reinstated, but the arrangement was again terminated by Mr Stanizzo orally on 24 August 2009. A dispute over their respective entitlements to fees developed and there is evidence of ongoing animosity between them.

3. [14]

   The relationship between Ms Fregnan and Mr Stanizzo is more opaque. Again, the issues on the appeal can be resolved without exploring the many complications that can be discerned in the evidence. It is sufficient at this point to say that, in early 2008, Ms Fregnan was in financial difficulty. She owned a residential property in Wollongong that was subject to a mortgage in favour of Permanent Custodians Limited (“Permanent Custodians”). She decided to sell the property. She was referred by a real estate agent to Mr Stanizzo.

4. [15]

   Ultimately, Mr Stanizzo offered to purchase a half interest in Ms Fregnan’s property. On 4 July 2008 a Deed of Property Co-ownership and Trust (“the Deed”) was executed by Mr Stanizzo and Ms Fregnan. The Deed recited that Ms Fregnan was the registered proprietor of the property, which was subject to a mortgage in favour of Permanent Custodians, and on which about $490,000 was, at that date, owing. Mr Stanizzo agreed to make available to Ms Fregnan the sum of $240,000 to meet certain outstanding debts and to apply the balance to reduction of the current mortgage. A “fundamental condition” of the Deed required Ms Fregnan to declare that the property would henceforth be held in trust for herself and Mr Stanizzo. Ms Fregnan, for her part, agreed that she would continue to service the loan secured by the mortgage. On the same day the Deed was executed, Mr Stanizzo lodged a caveat on Ms Fregnan’s property.

5. [16]

   On 19 September 2008 Mr Stanizzo provided Ms Fregnan with a cheque made in favour of Permanent Custodians in the sum of $134,518.07 in settlement of the purchase. The time, and the circumstances in which, this took place are the subject of dispute and are central to the issues on appeal in relation to the first proceeding. Ms Fregnan alleges that, in the late afternoon of that day, she met Mr Stanizzo at his office in order to collect the cheque, but that Mr Stanizzo “coerced” her into going with him to his home, where he sexually assaulted her. Mr Stanizzo asserts that the meeting at his office took place during the morning of 19 September, when he gave Ms Fregnan the cheque; he denies that Ms Fregnan accompanied him to his home, and denies that he sexually assaulted her.

6. [17]

   On 24 September 2008, Ms Fregnan provided the cheque to Bluestone Mortgages Pty Ltd (the mortgage manager for Permanent Custodians) (“Bluestone Mortgages”). On 25 September 2008, following a breach by Ms Fregnan of a term of the Deed requiring her to service the loan, the parties executed a Deed of Variation. The variation entitled Mr Stanizzo to have the property transferred to him immediately or at any time before 1 September 2009, a date which, in his discretion, he could extend. On 26 September 2008, Mr Stanizzo stopped payment of the cheque he had given to Ms Fregnan on 19 September. The cheque was dishonoured and the transaction reversed on 1 October 2008.

7. [18]

   Between April 2009 and August 2009, Ms Fregnan requested that Mr Stanizzo withdraw his caveat on her property so that she could sell that property. On 21 September 2009 Ms Fregnan served Mr Stanizzo with a notice of proposed lapsing of caveat.

8. [19]

   Subsequently, on 1 October 2009, Mr Stanizzo assigned his rights in the property and under the Deed and the Deed of Variation to Ms Gael MacPherson. On 7 October, Ms MacPherson issued, out of the Equity Division of the Supreme Court, a summons claiming, against Ms Fregnan, Permanent Custodians and Bluestone Mortgages, an injunction restraining any dealing with the property. It appears that on 16 October 2009 Ms MacPherson also lodged a caveat on Ms Fregnan’s property. That engendered further Supreme Court litigation between Ms Fregnan and Ms MacPherson. Ms MacPherson then lodged a further caveat on Ms Fregnan’s property on 11 November 2009.

9. [20]

   Meanwhile, from April 2009 Ms Fregnan engaged the services of Mr Badarne in connection with an unrelated dispute with Shellharbour TAFE. On 25 May 2009 Ms Fregnan was present at Mr Stanizzo’s office in consultation with Mr Badarne on that matter. An encounter took place between Mr Stanizzo and Ms Fregnan. This encounter is the subject of Ms Fregnan’s second allegation of sexual assault; the circumstances of the encounter are highly controversial and are, like the events of 19 September 2008, the subject of the first of the appeals.

10. [21]

    On 8 October 2009 Ms Fregnan attended the Wollongong Police Station and reported that Mr Stanizzo had, on the two occasions mentioned above, sexually assaulted her. On 7 November 2009 Detective Senior Constable Murdock took from Mr Badarne a statement in which he corroborated Ms Fregnan’s allegations of the events of 25 May 2009.

11. [22]

    On 21 August 2010, 24 September 2010 and 25 October 2010, Mr Badarne made further statements to police, in which he reported several instances of intimidatory behaviour towards him by Mr Stanizzo.

12. [23]

    After investigation, on 4 November 2010 (in circumstances to be described below) Mr Stanizzo was arrested and charged by Detective Murdock with two counts of sexual assault of Ms Fregnan and associated charges (“the Fregnan charges”) and four counts of intimidation of Mr Badarne (“the Badarne charges”). Mr Stanizzo was released on bail the following day, 5 November. On or about the same day, pursuant to s 9 of the Director of Public Prosecutions Act 1986 (NSW) the Office of the Director of Public Prosecutions (“the ODPP”) took over the prosecution.

13. [24]

    After some negotiation with the ODPP, on 15 November 2011 Mr Stanizzo entered pleas of guilty to a number of charges (it is not entirely clear what the charges were after negotiation). On 29 May 2012 Mr Stanizzo was granted leave to withdraw his pleas of guilty; Berman DCJ was satisfied that the pleas of guilty were entered when Mr Stanizzo was in a vulnerable emotional condition, and were not truly attributable to consciousness of guilt.

14. [25]

    An order was made that the Fregnan charges be heard separately from the Badarne charges. A trial of the Fregnan charges commenced in the District Court in Wollongong in July 2013.

15. [26]

    On 2 August 2013, during the course of that trial, the ODPP entered a nolle prosequi. That occurred because some tape recordings said to be of conversations between Ms Fregnan and employees of Bluestone Mortgages were discovered which, it was perceived, adversely affected Ms Fregnan’s credibility on a critical factual issue in the trial. The trial aborted and the jury was discharged. On 16 January 2014 the ODPP entered a nolle prosequi in relation to the Badarne charges.

16. [27]

    With that statement of mostly uncontroversial facts, we turn to the three individual proceedings the subject of the appeals.

The first proceeding: Fregnan v Stanizzo

1. [28]

   In her statement of claim Ms Fregnan alleged:

2. [29]

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

3. [30]

   In her first statement to police in November 2009, Ms Fregnan said that, on 19 September 2008, Mr Stanizzo called her and asked her to come to his office to collect a cheque in payment of his purchase of the half interest in her property. She said that she attended “late in the afternoon”. Mr Stanizzo showed her (but did not give her) a cheque signed by him, in favour of Permanent Custodians, in the sum of $134,518.07. She was surprised and disappointed at the amount of the cheque he wrote, saying that she had expected more. She said that, before he handed her the cheque, he offered “a drink of alcohol” which she declined. He then poured himself a drink from a bottle of spirits. At this point, although Mr Stanizzo had written the cheque, he had not handed it to Ms Fregnan.

4. [31]

   Ms Fregnan said that Mr Stanizzo then invited her back to his house to celebrate the business deal, saying that he had some nice wines that he could give her. Ms Fregnan said that she did not want to go to his house but was desperate to receive the cheque and was concerned that Mr Stanizzo would become abusive and not give her the cheque if she declined. She said that they drove in his vehicle to his house and, just before they arrived, he handed her the cheque, observing that it was a lot of money and he hoped that she appreciated it.

5. [32]

   Ms Fregnan made some observations about the house, and said that Mr Stanizzo escorted her into a room that looked like a storage room and contained a library of law books, and several boxes of wine. Mr Stanizzo smoked a cigar and offered her a drink, which she again declined; he poured himself a drink and began talking to her about himself.

6. [33]

   Ms Fregnan said that, a short time later, Mr Stanizzo invited her to go upstairs, which she did. She made some further observations of the house. Mr Stanizzo made coffee, during which time he complained about his neck and asked Ms Fregnan to massage it. She refused.

7. [34]

   Ms Fregnan said that she then asked Mr Stanizzo if she could use the bathroom. He escorted her downstairs to a bedroom with an ensuite. After a few minutes Ms Fregnan opened the door and saw Mr Stanizzo standing directly in front of her, no more than half a metre away, and wearing nothing but a dark coloured T-shirt and no pants.

8. [35]

   She said that he grabbed her, put her in a “bear hug” against the wall and said:

9. [36]

   She said that Mr Stanizzo then moved her towards the bed; she struggled, but he managed to throw her onto the bed and pinned her down with his right forearm. She told him to stop and demanded that he leave her alone. She said that Mr Stanizzo then reached down under her skirt, moved her underwear aside and penetrated her vagina with the middle finger on his left hand. She continued to shout and struggle. Mr Stanizzo then inserted his “pointer finger” into her vagina as well and told her to shut up. Ms Fregnan said that Mr Stanizzo was “thrusting and trying to get his penis into my vagina”, but her struggles prevented it. He ejaculated on her left thigh.

10. [37]

    She said that Mr Stanizzo then said:

11. [38]

    Ms Fregnan said that she then got up off the bed, went to the dining room, picked up her handbag and left the house and walked to a nearby shopping centre where she rang a taxi which took her home.

12. [39]

    In her subsequent statement (19 July 2013, after Mr Stanizzo had been charged and on the eve of the criminal trial) Ms Fregnan expanded on her account of what had taken place in Mr Stanizzo’s office on 19 September, before they drove to his house. She said that, as requested by him, she attended the office (she believed at about 5.00 pm) where Mr Stanizzo was alone. She sat down at his desk and he sat on the other side of the desk. She noticed that he had a diary or book, a cheque book and a piece of paper with writing on it all set out on the desk. He told her that the total (that she would receive) came to $134,518. She questioned why it was that amount, as she was expecting about $200,000. He showed her the piece of paper, listing amounts that he said that he had paid for Ms Fregnan’s benefit. He told her that he was keeping a further $10,000 for expenses that may emerge.

13. [40]

    She saw Mr Stanizzo sign the cheque, “rip it out of the chequebook” and put it on the desk in front of her. He offered her a drink to celebrate, which she declined; he then picked up the cheque and walked away into the kitchen, returning with a bottle of spirits from which he poured himself a small drink.

14. [41]

    In this statement, Ms Fregnan repeated, essentially, what she had said in her previous statement; she gave a more detailed description of Mr Stanizzo’s house. She also sought to clarify her evidence about what she had done after leaving Mr Stanizzo’s house. She said that she tried to ring a taxi, using one of her mobile phones, but one was out of credit, the other had a flat battery. She then hailed a taxi which took her home.

15. [42]

    She also conceded that she must have been mistaken when she said that Mr Stanizzo called her to ask her to collect the cheque, and that she must have initiated the meeting. She did this by reference to telephone records shown to her by Detective Murdock.

16. [43]

    Ms Fregnan then (in her first statement) gave an account of the second assault that she alleged had been committed on her. She said that following the incident of 19 September 2008 she stayed away from Mr Stanizzo for several months, having contact only by letter or phone.

17. [44]

    Ms Fregnan said that on 25 May 2009 she and Mr Badarne attended Shellharbour TAFE for a conference with the manager. They then returned to the office to listen to a tape recording of the conference. She said that while this was happening Mr Stanizzo walked into Mr Badarne’s office and demanded that she massage his neck. She refused. She said that Mr Stanizzo told her that if she refused, he wanted the return of $15,000 he said he had paid in fees to Shellharbour TAFE on her behalf. Ms Fregnan said that she did not have that money so felt obliged to massage his neck and followed him into his own office leaving the door open. She massaged him for a short time and walked into the kitchen and washed her hands, and then walked back into Mr Stanizzo’s office. He tried to hug her, thanking her for the massage and saying that he appreciated it. Ms Fregnan then said:

18. [45]

    She then said in her statement:

19. [46]

    Under sustained cross-examination at the trial Ms Fregnan adhered to the accounts she had given of each event. This Court was not directed to any answer given in cross-examination in which she significantly departed from what she had said in her evidentiary statements, with the minor corrections to the first already mentioned.

20. [47]

    On 7 November 2009 Mr Badarne made a statement to police about the encounter in Mr Stanizzo’s office on 25 May. Mr Badarne did not give oral evidence at the trial. His statement was tendered, without any reservation as to the use to be made of it (see Evidence Act 1995 (NSW) s 136) by counsel for Mr Stanizzo. It was expressly accepted by senior counsel for Mr Stanizzo on the appeal that the statement was in evidence for all purposes. In his statement, Mr Badarne afforded significant corroboration of Ms Fregnan’s account of the incident. Mr Badarne confirmed that he and Ms Fregnan had attended at Shellhabour TAFE for a meeting with the manager, and that they returned to the office to listen to a recording of the meeting. He noted that Ms Fregnan was “dressed immaculately”, wearing a short skirt and a top, and that her hair and makeup “was done very nicely”.

21. [48]

    Mr Badarne said that, after 20 or 30 minutes, Mr Stanizzo arrived, had a conversation with Ms Fregnan about the property, and asked her to “do my neck please”. Mr Badarne said that Ms Fregnan agreed; she and Mr Stanizzo walked out of Mr Badarne’s office and into Mr Stanizzo’s office. Mr Badarne heard the door close. Seconds later, he heard Ms Fregnan saying:

22. [49]

    He heard Mr Stanizzo ask what was wrong and Ms Fregnan again tell him to leave her alone. He heard “what sounded like furniture banging and being moved”. He continued to hear Ms Fregnan telling Mr Stanizzo to leave her alone; he walked to Mr Stanizzo’s office door and turned the handle, which would not open. This part of his statement should be quoted verbatim:

23. [50]

    Mr Badarne said that Ms Fregnan then left the office in a distressed and dishevelled state. He said that Mr Stanizzo gave him a glass of whiskey, which he did not drink. He said that a few days later he was having a telephone conversation with Ms Fregnan, when Mr Stanizzo walked into the office. He ascertained that Mr Badarne was speaking to Ms Fregnan and said:

24. [51]

    Mr Badarne also gave some evidence corroborative of Ms Fregnan’s 19 September 2008 allegation. He said that in early August 2009 Ms Fregnan again called him, and asked him if he remembered the occasion when they were listening to the tape of the interview at the Shellhabour TAFE and then said:

25. [52]

    Mr Badarne said that, in answer to a question from him about what Mr Stanizzo did to her, Ms Fregnan said:

26. [53]

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

27. [54]

    On 28 October 2010 Detective Murdock was granted a warrant under the Surveillance Devices Act 2007 (NSW) that permitted him to equip Mr Badarne with a listening device in order to record conversations with Mr Stanizzo. On 2 and 3 November, Mr Badarne attended at the Corrimal Police Station for the purpose of telephoning Mr Stanizzo and having a conversation with him, which would be recorded. On each occasion the equipment failed to record. On 4 November 2010 Mr Badarne met Mr Stanizzo in his office with the listening device activated. He had a lengthy conversation with Mr Stanizzo which was recorded. Detective Murdock was listening to the conversation from a police car parked nearby. The transcript of the conversation extends over 37 pages. It is recorded in full in the primary judgment (at [240]). We do not propose to reproduce the whole of the conversation. It is however, necessary to extract some of its salient parts.

28. [55]

    The conversation opened with Mr Badarne telling Mr Stanizzo that police were asking him for a statement (about Ms Fregnan’s 25 May 2009 allegation) and that Ms Fregnan was asking him to “tell the truth”. What emerges from the ensuing conversation is that Mr Stanizzo produced a draft statutory declaration that he had prepared in advance, which he invited Mr Badarne to read and sign. (The draft statutory declaration is in evidence). Mr Badarne read through the statutory declaration, aloud, so that its content was recorded. Paragraph 2, as read by Mr Badarne, noted that he (Mr Badarne) had become aware that Ms Fregnan had made certain sexual allegations about Mr Stanizzo, and that he had acted inappropriately towards her while in the office. The paragraph went on to make some disparaging assertions about Ms Fregnan, including that she attended the office uninvited and without forewarning, that she “had an arrogance about her presence and wanted to be attended to immediately”, and would often walk into both Mr Badarne’s office or Mr Stanizzo’s office without knocking. Paragraph 3 of the draft stated that, at the time he (Mr Badarne) was working at Mr Stanizzo’s office in the room he occupied next door to that of Mr Stanizzo, and that whenever Ms Fregnan came to the office Mr Stanizzo “would always keep his door open as he did not feel comfortable with her behind closed doors for fear of her making the type of allegation such she has to further her own causes.” In paragraph 4 it was stated that Mr Badarne had the opportunity but had never seen inappropriate conduct towards Ms Fregnan by Mr Stanizzo. Paragraph 5, as read by Mr Badarne, was in the following terms:

29. [56]

    Mr Badarne baulked at this paragraph, saying that it put him in a predicament, because (as recorded):

30. [57]

    Mr Badarne then referred to paragraph 7, which he read as:

31. [58]

    Mr Stanizzo asked what he heard, to which Mr Badarne replied:

32. [59]

    Mr Stanizzo maintained that his recollection was as stated in the draft statutory declaration. He said:

33. [60]

    Mr Badarne asked Mr Stanizzo why he had brought Ms Fregnan to his home, to which Mr Stanizzo replied that she had come to his home to deliver some documents.

34. [61]

    There followed a further discussion, in which Mr Badarne expressed concern about his position as a solicitor if he signed a false statutory declaration. Mr Badarne then referred to his obligations under the Oaths Act 1900 (NSW) and the consequences to him (as a solicitor) of knowingly making a false statutory declaration. Mr Stanizzo then invited him to make a statement, along the lines of the draft, but without the declaration required by the Oaths Act. Mr Badarne asked who would save him if he were “proved to be a liar”. Mr Stanizzo replied:

35. [62]

    Later in the conversation there was an exchange in which Mr Badarne asked, on the assumption that he agreed with Mr Stanizzo, what was in it for him. The discussion that follows is obscure, but is open to the interpretation that Mr Stanizzo offered some financial incentive to do with the fee dispute between them. Mr Badarne asked:

36. [63]

    Mr Stanizzo’s response was:

37. [64]

    At least twice during the rest of the conversation Mr Stanizzo said that he had asked Mr Badarne to make a statement; he added that, if Mr Badarne wanted to change the content of the draft “we can discuss it”.

38. [65]

    There was then an exchange between the two men in which Mr Stanizzo asked what Mr Badarne wanted him to do, saying that he had worked on “this” (meaning the draft) all morning. The transcript then records the following:

39. [66]

    There was then some discussion, apparently about the fee dispute between Mr Stanizzo and Mr Badarne, in which Mr Stanizzo said:

40. [67]

    The following exchange then took place:

41. [68]

    Immediately after the conversation concluded Detective Murdock, with two other police officers, entered the office and arrested Mr Stanizzo. Detective Murdock told Mr Stanizzo that he would be charged with sexual assault and intimidation offences.

42. [69]

    A short time later Detective Murdock sought and was granted a warrant to enter and search Mr Stanizzo’s office premises. The warrant was executed and the office searched in the presence of Mr Stanizzo. A number of items, including a computer hard drive and various files and documents, was seized.

43. [70]

    In his evidentiary statement dated 22 September 2017 Mr Stanizzo gave a lengthy and detailed account of what he asserted to have been his dealings with Ms Fregnan. The account differs markedly from that of Ms Fregnan. Much of the detail is peripheral to the present issues; however, some aspects of the statement should be noted. Mr Stanizzo said that he first met Ms Fregnan briefly in 2000, when she consulted him about a settlement offer in personal injury litigation in which she was then involved. He was unable to assist and did not see her again until 10 January 2008, when she visited his office, wanting him to act for her in the sale of her house. After a potential sale fell through, Mr Stanizzo agreed to purchase a half interest in the house and drafted the Deed (see [15] above). It is not necessary to recount the events that Mr Stanizzo asserted followed, until 19 September 2008.

44. [71]

    Mr Stanizzo responded specifically to Ms Fregnan’s allegations of the events of 19 September 2008, which he expressly denied. He said – and repeated a number of times – that Ms Fregnan had never been to his house. That was inconsistent with his answer to Mr Badarne, that Ms Fregnan had come to his house to deliver some documents (see [60] above). He said that the allegations were false and statements attributed to him by Ms Fregnan were “fabrications”.

45. [72]

    Mr Stanizzo said that Ms Fregnan’s allegations concerning the incident of 25 May 2009 were also “fabrications”, that the incidents never occurred and that, at no time when Ms Fregnan was in his office, was the door closed. He said that he deliberately left the door open.

46. [73]

    Mr Stanizzo gave evidence of other conversations and interactions with Ms Fregnan between 19 September 2008 and 25 May 2009, all concerning the property transaction, and evidencing conflict between them. The conflict ultimately ripened into litigation in the Equity Division of the Supreme Court, the details of which do not emerge in the evidence.

47. [74]

    It is, however, appropriate to recount that, on 26 August 2009, Ms Fregnan made a complaint to the Office of the Legal Services Commissioner (“the OLSC”) alleging “professional negligence”, “sexual harassment”, and “professional misconduct” against Mr Stanizzo. On 8 October 2009 (the same day she made her report of sexual assault to police) Ms Fregnan made a second complaint to the OLSC. The motivation for the complaints appears to have been the caveat that Mr Stanizzo had lodged on her property, which meant that Ms Fregnan was unable to sell it. On 17 December 2009 the complaint was dismissed because Ms Fregnan had ceased participation in the OLSC’s investigation.

48. [75]

    Mr Stanizzo produced in evidence a number of documents to which it is necessary to refer. One was a handwritten list headed:

49. [76]

    A third document, also dated 19 September 2008, contained, in handwriting, the following:

50. [77]

    This document appears to have been signed “V Valvano”. In oral evidence Ms Fregnan acknowledged that the signature on the receipt was hers. She accepted that the handwriting on the “direction” document was hers but denied that the signature was hers, saying that she always signed using the name Sgangarella-Valvano. There does not appear to be any significance in this; it was not in dispute that a cheque made payable to Permanent Custodians was (at some time) given to Ms Fregnan on 19 September 2008.

51. [78]

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

52. [79]

    In cross-examination by counsel for the State of NSW, Mr Stanizzo was asked about the conversation with Mr Badarne of 4 November 2010. He said, more than once, that he prepared the statutory declaration at the request of Mr Badarne. (This was directly contrary to what he was recorded as saying to Mr Badarne during the conversation, as recorded).

53. [80]

    He said that Mr Badarne did not read the draft statutory declaration aloud, but read it to himself silently. When confronted with the transcript, he accepted that that was incorrect. He maintained that the content of the statutory declaration was truthful, and that Mr Badarne was “playing games here” and that what he (Mr Badarne) said in the conversation was “totally and maliciously false”.

54. [81]

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

55. [82]

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

56. [83]

    It was Mr Stanizzo’s case that these calls took place between 3.19 pm and 4.38 pm on 19 September 2008. That fact, if established, was critical to his case, as mentioned above. If, as was contended on behalf of Mr Stanizzo, the recordings established that Ms Fregnan had the cheque by no later than 3.19 pm on 19 September, her account of having been “coerced”, at 5.00 pm or after, could not be true.

57. [84]

    In Mr Stanizzo’s written submissions, elaborate claims were made to the effect that Ms Fregnan’s mobile telephone records showed a call received at 5.01 pm lasting 193 seconds and a call made from Ms Fregnan’s phone at 6.07 pm. That period, of over an hour, was submitted to leave insufficient time for the sexual assault described by Ms Fregnan to have taken place. To the extent that this submission was pressed, we reject it. That period, between 5:01pm and 6:07pm, was ample to encompass Ms Fregnan’s complaint of sexual assault. Junior counsel for Mr Stanizzo’s attempt to contend to the contrary failed by reason of an absence of evidence supporting the times he asserted various steps in Ms Fregnan’s account of the afternoon of 19 September 2008 would likely have taken.

58. [85]

    The tape recordings were played during the course of Ms Fregnan’s cross-examination. She contested their authenticity. She denied that she had rung Bluestone Mortgages on 19 September. She denied that the voice on the recordings was hers. She said that the recordings had been “manipulated” or “tampered with”. She said that the recordings and the electronic notes did not “match up” and were “inconsistent”. She pointed out that, on one of the recordings, the caller said that she had spoken to the representatives “yesterday”, which would mean that, if the recordings were made on 19 September, she had been in possession of the cheque on 18 September – something for which neither party contended.

59. [86]

    Later, Ms Fregnan appeared to accept that the voice on the recordings was hers. She appeared to accept that she had made the calls, but said that they were made on a date after 19 September, an assertion that she supported by pointing out that Bluestone Mortgages said that she had sent the cheque on 26 September.

60. [87]

    The fundamental issue in the trial was whether Ms Fregnan had established that, on 19 September 2008 and/or 25 May 2009, Mr Stanizzo had sexually assaulted her. On this question the evidence of the parties is in direct conflict. Resolution of the issues depended on the assessment of the truthfulness of each of the protagonists, and, importantly, any evidence that could point to or against the veracity of their accounts.

61. [88]

    Mr Stanizzo placed heavy emphasis on the evidence of the recordings of the telephone conversations between Ms Fregnan and the employees of Bluestone Mortgages. Those recordings, he contended, established conclusively that, by no later than 3.19 pm on 19 September, Ms Fregnan had the cheque in her possession. If that were accepted, he argued, her evidence that her meeting at Mr Stanizzo’s office occurred late in the afternoon could not be true, her claim that she had gone to Mr Stanizzo’s home under coercion in order to receive the cheque could not be true, and her “house of cards” would collapse.

62. [89]

    Mr Stanizzo further contended that, if Ms Fregnan could not be believed with respect to her 19 September 2008 allegations, she also could not (notwithstanding Mr Badarne’s corroboration) be believed with respect to her 25 May 2009 allegations. (Neither at trial nor on appeal did Mr Stanizzo address the converse proposition: that, if Ms Fregnan’s allegations concerning 25 May 2009 were shown to be true, that fact provided support for her allegations of the events of 19 September, even if she was shown to have been wrong with respect to some surrounding detail).

63. [90]

    There were, however, pointers in the other direction. Mr Stanizzo was adamant (he stated it repeatedly in his evidentiary statement) that Ms Fregnan had never been to his house. Yet Ms Fregnan gave a detailed description of the premises that senior counsel, on appeal, conceded was “broadly correct”. Only in one minor respect did Mr Stanizzo contradict Ms Fregnan’s description of his home: Ms Fregnan had said that there was a “dark brown” piano on the front wall of the house; Mr Stanizzo said that the piano is black (inadvertently, perhaps, confirming the accuracy of Ms Fregnan’s description). Mr Stanizzo sought to meet this by propounding (although in an evidentiary vacuum) a theory that Mr Badarne, who had been to Mr Stanizzo’s home, had provided Ms Fregnan with information sufficient to enable her to give a “broadly correct” description. The implications of this submission will be considered below.

The primary judgment

1. [91]

   The primary judge dealt with the liability aspects of Ms Fregnan’s claim against Mr Stanizzo at [178]-[276]. He stated his conclusion (at [275]) that Ms Fregnan was entitled to judgment and that Mr Stanizzo’s cross-claim should be dismissed: he then assessed the damages to be awarded.

2. [92]

   The primary judge commenced his analysis of the liability issues by outlining, at some length and in some detail, the submissions made on behalf of Mr Stanizzo (at [179]-[222]). He then turned to the evidence of the two protagonists noting (only partly correctly):

3. [93]

   To interrupt the survey of the primary judgment, we observe that these remarks are only partly correct because the qualification in each passage seems to us to be superfluous. The issue in Ms Fregnan’s claim was indeed whether Mr Stanizzo assaulted her on one or other (or both) of the occasions that she alleged, or whether he did not. And resolution of that issue does depend, in our opinion exclusively, on which of the protagonists was telling the truth, although that resolution will be achieved by more than an evaluation of the evidence given by each, and requires close examination of the surrounding circumstances. Although we consider that the qualifications were unnecessary and erroneous, they do not appear to us to have adversely affected the primary judge’s approach to the resolution of the true issues.

4. [94]

   There is, in this case, no room for an intermediate position. Either Ms Fregnan was telling the truth as to the salient events (even if she is mistaken as to some surrounding detail) or Mr Stanizzo is telling the truth as to those events (also allowing for mistake as to surrounding detail). As we see it, there is no room for mistake in relation to the central events. One or other of the parties gave a false account.

5. [95]

   Returning to the primary judgment: his Honour stated (at [236]) that he had found the determination of who of Ms Fregnan and Mr Stanizzo was telling the truth to be very difficult. He said that neither was “an ideal witness” and both were prone to emotional outbursts. He considered that any attempt by him to resolve the issue on the basis of demeanour would “be little more than an exercise in sophistry” (at [236]).

6. [96]

   His Honour referred to the Bluestone Mortgages telephone recordings, which he described as “very cogent evidence” (at [232]); he noted one explanation given by Ms Fregnan for that evidence (that the recording had been subject to interference, by or on behalf of Mr Stanizzo). He rejected that explanation: he concluded that Ms Fregnan had not demonstrated that “this very cogent evidence is not genuine” (at [232]). He noted that Ms Fregnan had offered no evidence or other support for her contention, which remained “untested and unproven”. He considered that, having regard to the significance of the telephone recordings in the criminal proceedings against Mr Stanizzo, it was improbable that their provenance and authenticity had not already been closely examined.

7. [97]

   His Honour then observed:

8. [98]

   The “other evidence” to which his Honour referred was evidence that Mr Stanizzo’s version of events had not been given to his legal team in the criminal proceedings, was not mentioned in his alibi notice (which, we observe, could be expected to have been prepared to meet an allegation concerning Mr Stanizzo’s whereabouts at 5 pm and after, and not 10 am, and therefore could not be expected to make reference to his whereabouts at 10 am), and was never mentioned to Detective Murdock. (The correctness of this reasoning is dubious; what Mr Stanizzo could be expected to have told Detective Murdock depends on the detail of what he was told about Ms Fregnan’s allegations). Detective Murdock’s version of what he told Mr Stanizzo in the 16 July 2010 telephone call did not include specification of the dates or times of the alleged offences, and Mr Stanizzo (on both versions) simply declined the invitation to be interviewed. However, this reasoning is not included in the many complaints made in the grounds of appeal, and certainly did not feature in the oral argument.

9. [99]

   Ultimately, the primary judge considered that Ms Fregnan’s accounts of what happened to her on each of the days in question were true (at [262]). He reached this conclusion taking into account s 140 of the Evidence Act, which requires that a court deciding civil proceedings (on the balance of probabilities) take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding, and the gravity of the matters alleged. We approach the rehearing under s 75A of the Supreme Court Act on the same basis. His Honour plainly recognised the seriousness of the allegations and the need for proof to a commensurate degree.

10. [100]

    By contrast with his conclusion about Ms Fregnan’s evidence, the primary judge found himself unable to accept Mr Stanizzo on any disputed issue of fact upon which he was not corroborated by another witness, or by a document of which he was not the author (at [257]). He accordingly rejected Mr Stanizzo’s denials of Ms Fregnan’s allegations of sexual assault, saying later (at [262]) that he was comfortably satisfied that Ms Fregnan was telling the truth for reasons that he then gave.

11. [101]

    The primary judge noted, however, that that conclusion was determinative neither of Ms Fregnan’s claim against Mr Stanizzo nor Mr Stanizzo’s cross-claim against her; the latter of which could, he said, (at least in theory) be established by evidence other than Mr Stanizzo’s own testimony.

12. [102]

    The primary judge then referred to a number of items of evidence that influenced his conclusion. He noted that Ms Fregnan gave “a detailed and credible account” of the events of 19 September. He noted (at [263]) Ms Fregnan’s detailed description of Mr Stanizzo’s house. He considered criticisms of a discrepancy in Ms Fregnan’s accounts of the clothing of Mr Stanizzo when she emerged from the bathroom (naked or semi naked, wearing only a T-shirt) to be of little importance. This, presumably, was a reference to Mr Badarne’s statement, in which he recounted Ms Fregnan telling him that Mr Stanizzo had been “totally naked” when she came out of the bathroom. Detective Murdock had also noted, in the COPS record, that Ms Fregnan said that Mr Stanizzo was “completely naked”. His Honour considered that Ms Fregnan’s description of the event was consistent with “truthful understatement rather than malicious falsity” (at [264]). He considered it difficult to see how an account of that nature “replete with unnecessary and collateral details, could easily be invented”.

13. [103]

    His Honour referred to a submission that had been made on behalf of Mr Stanizzo to explain Ms Fregnan’s unchallenged description of his house, to the effect that that description could easily have come from what Ms Fregnan had been told by Mr Badarne; he considered this to be “nothing more than speculation” (at [265]).

14. [104]

    The primary judge acknowledged the absence of corroboration of the alleged assault of 19 September which he considered to be “unremarkable” in the circumstances (at [266]).

15. [105]

    The primary judge made specific reference to certain aspects of Mr Stanizzo’s evidence that he did not accept. His Honour placed a great deal of weight on the recorded conversation between Mr Stanizzo and Mr Badarne on 4 November 2010. He referred to evidence given by Mr Stanizzo that he had prepared the draft statutory declaration based on what Mr Badarne had previously told him, a position he maintained in cross-examination. The primary judge found that “difficult to accept” (at [242]).

16. [106]

    At one point in his evidence Mr Stanizzo denied that, at the time of the conversation with Mr Badarne, he was aware of Ms Fregnan’s allegations. He described as “false” a suggestion made in cross-examination that he was then aware that the allegations had been made. The primary judge found that answer to be “totally incapable of acceptance” (at [246]). It was belied by the contents of the draft statutory declaration that he (Mr Stanizzo) had himself prepared.

17. [107]

    His Honour then dealt with what was, and, on appeal is, the most significant aspect of Mr Stanizzo’s defence. That concerns the Bluestone Mortgages telephone records. His Honour made the following finding:

18. [108]

    This paragraph was the centrepiece of the argument on appeal. Although it is of lesser importance, it is also appropriate to note a submission made on behalf of Mr Stanizzo that the delay in reporting the alleged assaults was of “some particular significance” (at [271]). The primary judge considered the belated reporting to be “a matter of importance” but not necessarily determinative that the complaint was a fabrication. He noted Ms Fregnan’s evidence that Mr Stanizzo had threatened to “fit her with concrete legs”, and observed that Mr Stanizzo was a “very intimidating personality”. He accepted that Ms Fregnan was disinclined to do anything to upset Mr Stanizzo, including reporting her complaints of sexual assault for fear of the reaction that it might provoke. Nor was he moved by Mr Stanizzo’s reliance on the absence of any complaint of sexual assault to the OLSC, or in the proceedings in the Supreme Court.

19. [109]

    By his cross-claim Mr Stanizzo asserted that the criminal proceedings brought against him in 2010, on the basis of Ms Fregnan’s allegations, were maliciously instigated by her complaints to police, complaints Mr Stanizzo asserts to have been knowingly and deliberately false.

20. [110]

    Had the outcome of Ms Fregnan’s claim been different, additional issues would have arisen. Rejection of Ms Fregnan’s allegations as false would not have necessitated a finding against her of malicious prosecution; as will be seen below, in the consideration of the second and third proceedings, there are some complexities in proving the tort of malicious prosecution.

21. [111]

    However, the conclusion that Ms Fregnan’s allegations of sexual assault were true precluded, at least in practical terms, any finding in favour of Mr Stanizzo in this respect, notwithstanding that the criminal prosecution did not result in conviction.

22. [112]

    On the conclusions set out above, the outcome of both the claim and the cross-claim was inevitable. His Honour found that Ms Fregnan was entitled to judgment and Mr Stanizzo’s cross-claim should be dismissed with costs.

23. [113]

    Damages were to be assessed at common law. The Civil Liability Act 2002 (NSW), by reason of s 3B, does not apply to or in respect of civil liability arising out of an intentional act that is done with intent to cause injury or death, or that is sexual assault or other sexual misconduct.

24. [114]

    Having regard to the grounds of appeal, it is necessary to touch only lightly on the award of damages. The primary judge noted that Mr Stanizzo had offered no submissions in relation to damages (at [285]). His Honour made extensive reference to a number of psychiatric reports that were in evidence and noted that not all of Ms Fregnan’s then present psychiatric condition could be attributed to the sexual assaults by Mr Stanizzo. He assessed general damages at $120,000, and made a further allowance of $15,000 for future treatment and medical expenses.

The appeal

1. [115]

   The grounds of appeal (with respect to the first proceeding), as finally formulated in a Further Amended Notice of Appeal (“FANoA”) asserted:

2. [116]

   The FANoA identified a number of respects in which it was said that the primary judge’s findings, in the case of each alleged assault, were not open on the evidence, and/or were contrary to incontrovertible objective evidence (see Fox v Percy). Particular reference was made to the Bluestone Mortgages telephone call records. Specific error was asserted to be identifiable in [268] of the judgment (set out above at [107]). In relation to Ms Fregnan’s allegations of 25 May 2009 the FANoA asserted error in the primary judge’s reliance on the evidence of Mr Badarne.

3. [117]

   As to the former, it was submitted that the finding at [268] of the judgment was “unsupportable on the basis of principles laid down in the High Court in the cases such as Fox v Percy”. The written submissions contended that that was so because a subjective belief based on an assessment of the credit of the witnesses “cannot overcome objective inconsistent evidence” in the way indicated in the primary judge’s reasoning in that paragraph. In addition to Fox v Percy, the written submissions cited the decision of the High Court in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12. They also cited the decision in The Queen v Baden-Clay (2018) 258 CLR 308; [2018] HCA 35 to support the submission that “a subjective belief [on the part of the primary judge]…cannot permit a finding of sexual assault at a time and in circumstances not defined and contrary to her evidence”.

4. [118]

   Contrary to Mr Stanizzo’s submission, it is not every fact asserted by a witness, that, if shown objectively to be wrong, will have the effect of destroying the witness’s credit with respect to other factual assertions. Much depends upon the significance of the fact in the mosaic of the case as a whole.

5. [119]

   In Fox v Percy, the incontrovertible evidence (skid marks on the road) was inconsistent with Ms Fox’s evidence as to the very act of negligence alleged (that Ms Percy was driving on the wrong side of the road at the time of the collision). In Pell, the High Court at [118] accepted that the Court of Appeal majority did not err “in holding that A's evidence of the first incident did not contain discrepancies, or display inadequacies, of such a character as to require the jury to have entertained a doubt as to guilt”. The reason the convictions were quashed was that there was unchallenged evidence from independent witnesses which satisfied the High Court that there was no realistic opportunity to commit the offences. In Baden-Clay, the decision of the Court of Appeal allowing the offender’s conviction appeal was overturned because the Court of Appeal postulated a speculative hypothesis inconsistent with the offender’s evidence.

6. [120]

   The particular “incontrovertible fact” relied upon here, that Ms Fregnan was in possesion of Mr Stanizzo’s cheque by 3.19 pm on 19 September 2008, did not necessarily impugn the central allegation of sexual assault made by Ms Fregnan. It may be accepted that the evidence went to an important issue, namely Ms Fregnan’s explanation for attending Mr Stanizzo’s house. The evidence did not, however, necessarily contradict the allegation of sexual assault which took place once she was there. The question whether the primary judge’s finding concerning the first sexual assault is supportable is essentially a factual question requiring a careful analysis of the evidence relevant to the arguments put, having due regard to the advantage in observing the witnesses at first instance enjoyed by the primary judge.

7. [121]

   As presented on the hearing of the appeal, Mr Stanizzo’s argument hinged solely on a single item of evidence and a single paragraph (at [268]) of the judgment. The item of evidence was the tape recordings that were, or purported to be, recordings of telephone calls made by Ms Fregnan to Bluestone Mortgages at 3.19 pm, 4.09 pm and 4.38 pm on 19 September 2008. These recordings, it was said, put the lie to Ms Fregnan’s account of the 19 September alleged assault because of a combination of two circumstances:

8. [122]

   Despite elaborate written submissions, most of which were abandoned, as presented on the hearing of the appeal Mr Stanizzo’s argument hinged solely on one piece of evidence. It was asserted (in oral argument) that Ms Fregnan could not be believed with respect to the 19 September 2008 allegation due to what could be heard on the tape recordings. If the accuracy of the tape recordings – specifically as to the date and time of the conversations recorded – could not be proved, this basis for the attack on Ms Fregnan’s credit would have failed.

9. [123]

   While accepting the cogency of the tape recordings, and therefore that Ms Fregnan had in fact received the cheque at least by 3.19 pm on 19 September, the primary judge did not regard that circumstance as fatal to Ms Fregnan’s case that she had, later on that day, been sexually assaulted by Mr Stanizzo. At [268] his Honour considered that it was more likely that she was mistaken about the timing of her receipt of the cheque and that there was nothing in that circumstance “that fundamentally contradicts her description of the assault”.

10. [124]

    It is this reasoning that is attacked on behalf of Mr Stanizzo, as a failure on the part of his Honour to appreciate the true significance of the “mistake”. Ms Fregnan’s case was that Mr Stanizzo had “coerced” her to go to his home, using the withholding of the cheque as the instrument of coercion. If that instrument were unavailable because she already had the cheque, there could be no coercion and there was no reason for her to go to Mr Stanizzo’s house. The inevitable result, it was submitted, was that her case unravelled.

11. [125]

    The argument depends on the underlying proposition that the tape recordings were both genuine and accurate, particularly as to date and times.

12. [126]

    We harbour considerable doubt that the tape recordings were sufficiently proved. The transcript records that, in cross-examination of Ms Fregnan on 14 and 15 February 2019, parts of the recordings were played to her. The transcript in fact records six different occasions on which that was done. It was not until 20 February that a “CD of the phone calls played to Ms Fregnan” was marked for identification (“MFI”) 10.

13. [127]

    The next reference to the recordings was in Mr Stanizzo’s evidence in chief. It seems that counsel sought to prove the tape recordings through Mr Stanizzo. Mr Stanizzo said that he first saw the CD during the course of the criminal trial (in 2013) and that a copy of it was, to the best of his recollection, handed to him by his counsel. Asked about its source, Mr Stanizzo said:

14. [128]

    During a break of some weeks in the proceedings an attempt at authentication was made, although in a somewhat roundabout way. A “Notice to Produce for Inspection” was served on the State of NSW, via the Crown Solicitor. The Notice to Produce called for production of a subpoena for production issued on 30 July 2013 to Bluestone Mortgages in Mr Stanizzo’s criminal trial, and “the audio files containing recordings of conversations with Vivian Valvano (also known as Fregnan) …” referred to in an identified “Evidentiary Statement” made by Detective Murdock.

15. [129]

    The subpoena to which reference was made called for production by Bluestone Mortgages of:

16. [130]

    In response the Crown Solicitor produced (as stated in a letter of 4 April 2019):

17. [131]

    On 22 May 2019 junior counsel for Mr Stanizzo stated that he sought to prove that the CD produced by the Crown Solicitor was identical to MFI 10, although he recognised that might have to be proved “by some means”. Ms Fregnan maintained her position that the tape recordings were not the original recordings from Bluestone Mortgages and had somehow been manipulated.

18. [132]

    Counsel for the State of NSW then said that what had been produced was the ODPP’s copy of the tape recordings (produced in the criminal trial), and was “not necessarily and in fact probably is not what Bluestone produced to the … District Court … during the course of the trial in answer to a subpoena”. He said that a number of copies of the CD had been made and provided to the parties.

19. [133]

    Ms Fregnan objected to the tender of the tape recordings. That objection was overruled and the tape recording produced by the Crown Solicitor was marked as Ex S5, and MFI 10 was marked as Ex S6.

20. [134]

    What that exchange established was that Ex S5 was a tape recording produced by the Crown Solicitor in response to the Notice to Produce; nothing else was proved. Notably, there was no evidence from Bluestone Mortgages to authenticate the recordings nor to explain how the recordings were made and maintained. Most importantly, there was nothing identified on the tape recording that specified the date or time at which it was made. That connection had to be made by reference to the electronic notes.

21. [135]

    There was some evidence, in the form of an affidavit sworn on 27 May 2010 by Ms Kimberley Bontigao in the proceedings in the Equity Division of the Supreme Court initiated by Ms MacPherson against Ms Fregnan in 2009, that the electronic notes set out above (at [82]) were those from Bluestone Mortgages’ records. There was no direct evidence that established that the tape recordings were recordings of the conversations the subject of the electronic notes. It is important to note here that the electronic notes do not establish what, it is contended on Mr Stanizzo’s behalf, the tape recordings establish: that, at the time of the conversations Ms Fregnan was in possession of the cheque. That fact was sought to be established by the recordings, in which Ms Fregnan can be heard to read details of the cheque (BSB and account number).

22. [136]

    We have listened carefully to the tape recordings contained in Ex S5. Exhibit S5 is a single disc, in four segments; the first records a conversation with “Narelle”; the second a conversation with “Latini” and the third a conversation with “Fritz”. Those are consistent with the electronic notes and provide a sufficient basis for an inference that the tape recordings and the electronic notes are records of the same conversations. What is missing from the tape recordings is evidence of a critical fact: the date and time of the conversations. The conversations are identifiable as those summarised in the electronic notes although they are far more expansive.

23. [137]

    The primary judge was satisfied that the tape recordings were “very cogent evidence”, saying that Ms Fregnan had offered no evidence or support for her contention that the tape recordings had been manipulated and that her assertion remained untested and unproven. With respect, this reasoning cannot be supported; Ms Fregnan bore no onus to disprove the authenticity of the tape recordings; the onus of proving their authenticity lay on Mr Stanizzo, on whose behalf they were tendered. Given the significance of the tape recordings to Mr Stanizzo’s defence that onus was not discharged by the tender of tape recordings that had been produced in response to a Notice to Produce a tape recording that had earlier been produced in response to a subpoena issued six years previously, as to which it was conceded that what was produced in answer to the Notice to Produce was probably not what had been produced in answer to the subpoena, and as to the custody of which in the intervening years there was no evidence.

24. [138]

    Although it might be thought unlikely that the tape recordings had been tampered with, this is an issue of the standard of proof required in civil proceedings, on a critical fact raised by way of defence, in circumstances where the plaintiff is an unrepresented litigant. While Ms Fregnan could, and perhaps should, have filed a Notice of Contention, and did not do so, the issue was sufficiently raised by her in her written submissions, in which, under the heading “Electronic loan notes and recordings”, she wrote:

25. [139]

    Recognising that some might consider this to be an unduly pedantic, or possibly old fashioned, approach to proof of a critical feature of the defence case, we will now proceed on the assumption that the tape recordings prove what Mr Stanizzo contends that they prove: that, by 3.19 pm on 19 September 2008, Ms Fregnan was in possession of the cheque. The primary judge considered that this established no more than that Ms Fregnan was mistaken as to when she received the cheque.

26. [140]

    We are not persuaded, (as was suggested on appeal) that the primary judge failed to appreciate the significance of the recordings of the telephone calls. His Honour said:

27. [141]

    Nor are we persuaded that, even if it were accepted that the telephone recordings establish that Ms Fregnan was in possession of the cheque by 3.19 pm on 19 September, that fact destroys or significantly weakens her case. There are other significant features in the evidence, to which we have referred above, that offer considerable substantiation of her claim. Not least of these is her “broadly accurate” description of Mr Stanizzo’s house. Mr Stanizzo was adamant that Ms Fregnan had never been to his house.

28. [142]

    Mr Stanizzo’s fundamental proposition, that if Ms Fregnan had the cheque at 3.19pm there could be no “coercion” and there was “no reason” for her to go to Mr Stanizzo’s house, was not logically sound. The evidence about the relationship between Ms Fregan and Mr Stanizzo is one characterised by Mr Stanizzo making requests of Ms Fregnan that she was reluctant to carry out. The evidence of massages sought by Mr Stanizzo is one such example where Ms Fregnan can properly be understood to have been “coerced” by Mr Stanizzo to act in a way she was reluctant to by reason of her financial vulnerability to Mr Stanizzo. Whether or not the cheque was actually handed to Ms Fregnan at 3.19 pm, rather than shown to her, it does not follow that Mr Stanizzo was not in a position to “coerce” her to attend his house later that day. As did in fact ultimately happen, Mr Stanizzo could always stop payment of the cheque upon presentation. More fundamentally, as we will explain, the evidence was clear that Ms Fregnan did visit Mr Stanizzo’s house that afternoon. The asserted “unravelling” of Ms Fregnan’s account of the sexual assault that afternoon did not deal with this fundamental issue. The primary judge was correct to conclude that Ms Fregnan’s evidence about the receipt of the cheque was not so inexorably tied to the events at Mr Stanizzo’s house that rejection of one part of her evidence necessarily leads to rejection of the rest.

29. [143]

    Both at first instance, and on appeal, it was suggested that the source of Ms Fregnan’s knowledge about Mr Stanizzo’s house might have been Mr Badarne. The implications of the submission should not be overlooked. Although senior counsel on appeal expressly disclaimed any such theory, the submission, at its highest, amounts to an allegation of conspiracy between Ms Fregnan and Mr Badarne to pervert the course of justice (reference was made to Mr Badarne’s possible motive to harm Mr Stanizzo).

30. [144]

    In this there is no middle ground. Given the detail contained in Ms Fregnan’s description of the house, it is not credible that, in the course of casual conversation with Mr Badarne, she gleaned enough about the house to give the detailed and “broadly accurate” description that she did. The only alternative is that Mr Badarne deliberately gave her information in order to support what was said to be her false allegation against Mr Stanizzo. That would be a serious criminal offence. Such a proposition was put to Ms Fregnan only glancingly, in the four days of cross-examination. It should now be rejected.

31. [145]

    There is also a somewhat obscure, but important, passage in the recorded conversation of 4 November 2010 between Mr Badarne and Mr Stanizzo. Mr Badarne asked Mr Stanizzo why he had brought Ms Fregnan to his home, to which Mr Stanizzo replied that she had come to deliver some documents. On appeal, senior counsel characterised this as Mr Stanizzo saying that Ms Fregnan may have once visited the home to deliver documents – that is on some other occasion. That is not, in our view, an available interpretation of the passage in the transcript, when it is read in context. It is, in our opinion, clear that Mr Badarne was referring to 19 September, the occasion the two were discussing. No doubt it was a question Mr Stanizzo was not expecting. We do not accept the benign characterisation put on that answer by senior counsel. It was an acceptance by Mr Stanizzo that, at the time in question, Ms Fregnan had been to his house.

32. [146]

    Moreoever, in his oral evidence, Mr Stanizzo said that he vaguely remembered a strata plan being discussed (presumably between himself and Ms Fregnan) at about the time they entered into the Deed (see [76] above). He thought it would have been “about early June 2008” but said he had only very vague recollections of it. When asked if he agreed that Ms Fregnan had come to his home he said:

33. [147]

    In the face of Mr Stanizzo’s denials that Ms Fregnan had ever been to his home, Ms Fregnan’s detailed description is compelling evidence that supports her claim.

34. [148]

    A further compelling aspect of Ms Fregnan’s account was that she committed herself to a description of Mr Stanizzo’s penis (“short, fat and circumcised”). If that was a fabrication, it was a dangerous one. As noted by the primary judge:

35. [149]

    Ms Fregnan emphasised the strength of that point in the appeal, repeating her description and noting “Mr Stanizzo to this day has never ever opposed it. He's never ever opposed it. Instead he shrunk behind his hands when I said it”.

36. [150]

    Another important aspect of the evidence is the draft statutory declaration Mr Stanizzo prepared with the intention that Mr Badarne would sign it. It is clear that Mr Badarne considered the content of the document to be false in material particulars. Moreover, the primary judge was satisfied that Mr Stanizzo’s evidence about the document was, in some respects, false. In his evidence Mr Stanizzo denied that, at the time of the conversation, he knew of Ms Fregnan’s allegation that he had sexually assaulted her. That was plainly incorrect – the whole purpose of the statutory declaration which was the subject of the discussion was for him to head off Ms Fregnan’s allegations. The statutory declaration even refers to the allegations levelled against Mr Stanizzo by Ms Fregnan, as recorded in the transcript of Mr Badarne’s conversation with Mr Stanizzo on 4 November where Mr Badarne reads “Paragraph 6. I have read the allegation levelled at Stanizzo by Valvano with horror and disbelief”. Mr Stanizzo later acknowledged that there was no other purpose for the statutory declaration, and therefore that he was aware as at that date of Ms Fregnan’s allegations.

37. [151]

    It may be accepted that it is commonplace (and required), in criminal trials where lies or other conduct are relied upon by the Crown to prove consciousness of guilt, for a jury to be directed that such conduct may be engaged in for a variety of innocent reasons, such as fear of being falsely accused, as well as for guilty reasons: Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63. Mr Stanizzo is entitled to have evidence that may demonstrate a consciousness of guilt on his part considered having regard to that precautionary principle.

38. [152]

    Even proceeding on this basis, what is revealed on the tape recording is significant. It may be noted that, in the draft statutory declaration, and in the conversation with Mr Badarne, Mr Stanizzo expressly accepted that Ms Fregnan had, on 25 May 2009, in his office, given him a massage. He made no such acknowledgment in his evidentiary statement in which he limited himself to calling Ms Fregnan’s allegations “fabrications”.

39. [153]

    Also not to be overlooked in this context is the evidence of what took place in Mr Stanizzo’s office on 25 May 2009. Senior counsel argued that, if Ms Fregnan could not be believed as to the events of 19 September 2008, she also could not be believed as to the events of 25 May 2009. When asked if that reasoning worked the other way – that is, if Ms Fregnan were found to have been telling the truth about 25 May 2009, that finding reinforced her credibility with respect to 19 September 2008 – senior counsel simply referred to the evidence he relied on to establish the falsity of the 19 September 2008 allegations. That was no answer.

40. [154]

    Apart from Mr Stanizzo’s evidence (which the primary judge did not believe), there was nothing to contradict Ms Fregnan’s account of the sexual assault on 25 May 2009; and there was significant corroboration from Mr Badarne. In saying this, we have not overlooked the evidence of David Stanizzo, which contradicted the evidence of Mr Badarne in a tangential respect (the circumstances in which the office door was not able to be opened from outside). As to the actual events, Mr Badarne gave significant support to Ms Fregnan.

41. [155]

    Like the primary judge, we accept that the incident of 25 May 2009 occurred as described by both Ms Fregnan and Mr Badarne. That makes it more likely that the incident of 19 September 2008 also occurred, also substantially as described by Ms Fregnan, even if her evidence is accepted to be vulnerable aboutthe precise time at which and circumstances in which she came to be at Mr Stanizzo’s house.

42. [156]

    Mr Stanizzo’s reasoning, and his reliance on the Bluestone Mortgages tape recordings, has a superficial logic. But it overlooks a great deal of evidence about the course of dealings between Ms Fregnan and Mr Stanizzo. Ms Fregnan consistently referred to Mr Stanizzo in terms that suggested that he was overbearing, used bullying tactics, and intimidated her. That, indeed, was her explanation for the delay in reporting the assault. The evidence is clear that Ms Fregnan was in a position of financial vulnerability to Mr Stanizzo, such that she felt compelled to act at times in accordance with his wishes although she did not wish to do so. It is not difficult to conceive that Ms Fregnan (making her first report to Detective Murdock thirteen months later) confused the instrument of coercion, and the timing of her receipt of the cheque.

43. [157]

    There is a great deal in the transcript of Mr Stanizzo’s cross-examination that supports Ms Fregnan’s assessment of his character. There are numerous examples to be found in the transcript of his volatile and controlling behaviour. A psychiatric report prepared for the State gives a graphic description to the same effect. Even when giving evidence in these proceedings, Mr Stanizzo engaged in volatile and controlling behaviour. He said at one point during re-examination, directing himself to Mr Badarne, that he should not laugh but rather:

44. [158]

    We are not persuaded that the assessment of the primary judge, that Ms Fregnan’s allegations were true, was “contrary to incontrovertible facts”, or was incorrect. It follows that Mr Stanizzo’s appeal against the orders upholding Ms Fregnan’s claim must be dismissed, as must his cross-claim.

45. [159]

    As indicated at the outset of these reasons, the primary judge awarded Ms Fregnan damages in the amount of $135,000, of which $120,000 was referable to general damages and $15,000 to costs of future treatment and medical expenses. The challenge to the award of damages is limited to the amount allowed for future expenses. No argument, written or oral, was addressed to this ground and we accordingly reject it.

46. [160]

    Similarly, by ground 14 of the FANoA Mr Stanizzo challenged the dismissal of his cross-claim. No argument, beyond bare assertion in a few lines in the written submissions, addressed this claim. We reject it.

47. [161]

    In Fregnan v Stanizzo:

Malicious Prosecution

1. [162]

   In each of the second and third proceedings, Mr Stanizzo claimed damages for malicious prosecution. Although there are differences in the bases on which he makes the assertion of malicious prosecution against Mr Badarne, and that on which he makes the assertion against the State of NSW (“the State”), some general applicable principles may be stated, and some factual observations common to both proceedings may be made.

2. [163]

   A comprehensive exposition by the High Court of the tort of malicious prosecution is to be found in the judgment of the plurality in A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10. Proof of malicious prosecution entails proof of four elements:

3. [164]

   The discussion, and the principles stated, have been reduced by this Court, in State of New South Wales v Quirk [2012] NSWCA 216 at [70] to a series of fifteen propositions, which (subject to the reformulation of one of the propositions) was endorsed by a later bench of this Court in Clavel v Savage [2015] NSWCA 61 at [50]. Not all of those propositions have a bearing on the present case. Presently relevant propositions are:

4. [165]

   The four elements of the tort are cumulative; proof of each is necessary to establish liability. Each element is capable, in the circumstances of a particular case, of giving rise to controversy. In this case, only the element numbered (ii) is without controversy.

5. [166]

   Two separate proceedings were alleged by Mr Stanizzo to have been instituted maliciously:

6. [167]

   In the case of each count the charge was initially laid by Detective Murdock on 4 November 2010 and was taken over by the ODPP on (it seems) the following day. In each case the indictment was presented in the name of the ODPP.

7. [168]

   As indicated briefly above, the trial on the 2013 indictment commenced in July 2013, but aborted on 2 August 2013, when the ODPP directed the entry of a nolle prosequi; on 16 January 2014 a nolle prosequi was entered in relation to the 2011 indictment.

8. [169]

   It may therefore be accepted that each proceeding terminated in favour of Mr Stanizzo. The second element of the tort was established.

9. [170]

   Identification, for the purposes of the first element of the tort, of the proper defendant (“the prosecutor”) in a suit for malicious prosecution is not always straightforward. It is necessary that the plaintiff show that the named defendant played “an active role in the conduct of the proceedings, as by ‘instigating’ or setting them in motion”: A v NSW at [34], citing the ninth edition of the well known text on tort law (Fleming, The Law of Torts, Law Book Company Information Services, 1998).

10. [171]

    In the second proceeding (Stanizzo v Badarne) a question, which will be dealt with below, arises as to whether Mr Badarne is properly characterised as a prosecutor. The same issue does not arise in the third proceeding (Stanizzo v State of New South Wales). Mr Stanizzo has pleaded, and the State accepts, that the State is vicariously liable for any conduct on the part of Detective Murdock, or officers of the ODPP (who are the individuals identified by Mr Stanizzo as responsible for the prosecution).

11. [172]

    In addition to the identification of Mr Badarne as a prosecutor, in each case significant questions arise as to:

12. [173]

    For the purposes of the tort, malice is established where it is proved that the prosecutor instituted the proceedings solely or predominantly for a purpose (or purposes) other than the proper invocation of the criminal law (“an illegitimate or oblique motive”: A v NSW at [91], [93]).

13. [174]

    In many cases malice may be proved only by inference; care must be taken to ensure that the improper purpose is proved – conjecture or suspicion is insufficient: A v NSW at [93].

14. [175]

    In Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 at 469, Jordan CJ (speaking for the court) stated five conditions that must exist for the presence of reasonable and probable cause for a prosecution. Those conditions were:

    1. (1)

       the prosecutor must believe that the accused is probably guilty of the offence;

    2. (2)

       this belief must be founded upon information in the possession of the prosecutor pointing to such guilt, not upon mere imagination or surmise;

    3. (3)

       the information, whether it consists of things observed by the prosecutor himself, or things told to him by others, must be believed by him to be true;

    4. (4)

       this belief must be based upon reasonable grounds;

    5. (5)

       the information possessed by the prosecutor and reasonably believed by him to be true, must be such as would justify a man of ordinary prudence and caution in believing that the accused is probably guilty.

15. [176]

    Proof of the absence of reasonable and probable cause involves proof of a negative. Proof that any of the five conditions is absent will suffice to prove the absence of reasonable and probable cause for the prosecution.

16. [177]

    Whether a prosecution was brought (or maintained) without reasonable and probable cause depends upon the assessment of the material available to the prosecutor. The inquiry involves both subjective and objective questions. The subjective question is what the prosecutor himself or herself “made of the available material”; the objective question is what the prosecutor “should have made of that material”: A v NSW at [70].

17. [178]

    In the plurality judgment in A v NSW two categories of prosecution were recognised:

18. [179]

    In the second category of cases the question is whether the prosecutor is shown (i) either not to have honestly formed the view that there was a proper case for prosecution or (ii) if such a view was formed, it was formed on an insufficient basis: unless one or the other is established by the plaintiff the element of absence of reasonable and probable cause for prosecution is not proved: A v NSW at [80]. The objective question may be answered by asking whether “the ordinary prudent and cautious man, placed in the position of the [prosecutor]” would have concluded that the material was such as to warrant prosecution (Fleming, at 681); or whether there was “evidence that persons of reasonably sound judgment would regard as sufficient for launching a prosecution”, or “whether a reasonable man might draw the inference, from the facts known to him, that the accused person was guilty”: A v NSW at [83], citing Crowley v Glissan (1905) 2 CLR 744 at 754; [1905] HCA 31 (italics in original).

19. [180]

    The plurality rejected a test of subjective belief in the second category of prosecution, saying that requiring such a belief in (for example) a police officer would be inconsistent with what should desirably be the objective assessment and analysis of material provided by others: A v NSW at [73].

The second proceeding: Stanizzo v Badarne

1. [181]

   In his Statement of Claim Mr Stanizzo pleaded that, acting in reliance on six statements made by Mr Badarne to Wollongong police, officers of police arrested him on 4 November 2010 and “laid certain charges”, the charges being identified in the 2013 indictment and the 2011 indictment. Mr Stanizzo pleaded that Mr Badarne “instigated and was actively instrumental” in the commencement and continuation of each prosecution and was thereby liable to Mr Stanizzo as prosecutor.

2. [182]

   In his final written submissions at first instance, Mr Stanizzo alleged that counts 4 and 5 of the 2013 indictment were maliciously instigated by Mr Badarne. He made no equivalent submission about the other counts on that indictment, including count 7. He maintained that Mr Badarne was responsible as prosecutor for all four counts on the 2011 indictment.

3. [183]

   Mr Stanizzo relied on six statements made by Mr Badarne to police, on, respectively, 7 November 2009, 21 August 2010, 24 September 2010, 25 October 2010, 15 November 2010, and 1 November 2011. Each statement was tendered on Mr Stanizzo’s behalf without restriction as to the use to be made of it, as was a statement made by Mr Badarne’s wife, Ms Rown Badarne, dated 26 October 2010. It was Mr Stanizzo’s case that, by making the allegations contained in these statements, Mr Badarne “played an active role in the conduct” of his prosecution and “instigated” or “set in motion” the criminal process.

4. [184]

   Mr Badarne’s statement of 7 November 2009, the content of which has been outlined above in the context of the first proceeding, was corroborative of Ms Fregnan’s allegations of the events of 25 May 2009 and also contained an account of representations Mr Badarne said had been made to him by Ms Fregnan concerning the events of 19 September 2008.

5. [185]

   The statement of 21 August 2010 contained accounts by Mr Badarne of conversations he said he had had with Mr Stanizzo on 23 December 2009, 8 July 2010, 15 July 2010, 22 July 2010, 25 July 2010 and 30 July 2010. Put briefly, Mr Badarne claimed that Mr Stanizzo had, on a number of occasions, sought to dissuade him from acting for Ms Fregnan and that he had asked Mr Badarne to write a statement saying that Mr Stanizzo had never made sexual advances to Ms Fregnan. Mr Badarne said that he considered this to be “the absolute opposite of the truth” and declined to make such statement. None of the allegations in this statement gave rise to any charge against Mr Stanizzo.

6. [186]

   In the statement of 24 September 2010 Mr Badarne said that, in August 2009, he left the Stanizzo practice and moved to another legal practice in Wollongong of which the principal was Mr Danny Lagapodis. He said that, on 14 November 2009, at Mr Stanizzo’s request, he attended at Mr Stanizzo’s home to discuss a file. He took with him a small USB digital recorder to record their conversation. He said that Mr Stanizzo said to him words to the effect of:

7. [187]

   Much, but not all, of the conversation that followed was recorded and later transcribed by the NSW Police Service. The transcript is in evidence. Mr Badarne said (in a subsequent statement dated 1 November 2011) that, from time to time during the conversation, he deactivated the recorder. The transcript therefore does not purport to be a complete record of the conversation between Mr Badarne and Mr Stanizzo. The conversation is important for the purpose of this proceeding and it is therefore necessary to set out some extended passages thereof. As recorded, the conversation opened with Mr Badarne saying “good morning” and Mr Stanizzo asking what Mr Badarne wanted. Mr Badarne answered that he would like to talk to Mr Stanizzo; Mr Stanizzo said that he did not want to talk to Mr Badarne. Mr Stanizzo is then recorded as saying:

8. [188]

   Mr Badarne is recorded as saying that he came to speak with Mr Stanizzo, and not to fight with him. Thereafter, the following is recorded:

9. [189]

   In the 24 September 2010 police statement, Mr Badarne then referred to an exchange with Mr Stanizzo on 10 June 2010, when he attended Mr Stanizzo’s office in order to return a file. He asked Mr Lagapodis to accompany him and return the file. He said that he remained in the car while Mr Lagapodis returned the file. Mr Stanizzo came out of the office behind Mr Lagapodis and said:

10. [190]

    Mr Badarne said that he felt intimidated and was frightened that Mr Stanizzo might hurt him. Mr Badarne said that he then (on 11 June 2010) lodged a complaint with the OLSC. The complaint included references to the exchanges of 14 November and 10 June. Mr Badarne asked that the letter attaching the complaint not be provided to Mr Stanizzo.

11. [191]

    On 24 November 2010 Mr Lagapodis made a statement about the events of 10 June. He said that, since Mr Badarne had worked with his firm, he had frequently spoken to Mr Stanizzo for various reasons. He said that, on each occasion, Mr Stanizzo made derogatory and offensive remarks about Mr Badarne. He confirmed Mr Badarne’s account of the encounter on 10 June 2010, including the circumstances in which he came to accompany Mr Badarne, that Mr Badarne remained in the vehicle in the carpark while he (Mr Lagapodis) delivered the file, and, importantly, the language used by Mr Stanizzo.

12. [192]

    Mr Badarne went on in his statement to recount an incident that he said took place on 12 September 2010, a Sunday. He said that he was in the backyard of his home cutting firewood when Mr Stanizzo arrived. Mr Badarne asked “how can I help you?” to which Mr Stanizzo replied “You will regret it”. Mr Badarne asked for an explanation. Mr Stanizzo spoke about a file he had given to Mr Badarne to reassess the bill after an assessment. Mr Stanizzo said:

13. [193]

    The encounter was witnessed, through a kitchen window, by Mr Badarne’s wife, Rown Badarne. In a statement dated 26 October 2010 Mrs Badarne described what she had seen. She said that she saw Mr Stanizzo approach Mr Badarne. She could not hear what was said, but could tell from Mr Stanizzo’s facial expressions that he was really angry. She saw him using a chopping motion with his right hand moving up and down towards Mr Badarne. She saw Mr Stanizzo move closer to Mr Badarne, and thought he was going to hit Mr Badarne. Mr Stanizzo then took a few steps back, as if to leave, but then turned and walked back, again waving his right hand in a chopping motion. Mr Stanizzo then left. Ms Badarne said that she then walked out to the backyard to tell Mr Badarne what she had seen. She said that Mr Badarne was very distressed and upset.

14. [194]

    In the statement of 25 October 2010 Mr Badarne gave an account of a further confrontation with Mr Stanizzo (on 21 October), when the two had a disagreement over the payment of costs. Mr Badarne said that Mr Stanizzo said to him:

15. [195]

    In his statement of 15 November 2010 Mr Badarne wrote of a telephone call with Mr Stanizzo on 2 November 2010 which he made from Corrimal Police Station and which was expected to be (but was not, by reason of equipment malfunction) recorded pursuant to the Surveillance Devices Act warrant to which reference has been made above (at [54]).

16. [196]

    Mr Badarne gave his recollection of the conversation. He said that he opened by telling Mr Stanizzo that police and Ms Fregnan were asking him to provide a statement. He told Mr Stanizzo that Ms Fregnan was saying that Mr Stanizzo did “sexual things” to her, more than once. Mr Stanizzo said that Ms Fregnan was a liar, trying to advance her own interests, and “only after money, she wants my skin”. Mr Badarne said that he “heard things” and referred to an occasion when Mr Stanizzo had asked Ms Fregnan for a massage and for her to go to his room where he shut the door. (This was clearly a reference to 25 May 2009). Mr Badarne said that Mr Stanizzo acknowledged that he had called Ms Fregnan to give him a massage but said that his door was open. Mr Badarne disputed that, and then Mr Stanizzo urged him not to give a statement. He counselled Mr Badarne to say that he did not know anything; he then said (according to Mr Badarne):

17. [197]

    Mr Badarne said that the following day on 3 November 2010 another attempt was made to record a telephone conversation with Mr Stanizzo, but that the recording equipment again malfunctioned. He did not give any detail of the conversation.

18. [198]

    Mr Badarne then referred to the meeting of 4 November 2010, when Mr Stanizzo had produced for Mr Badarne’s signature the draft statutory declaration which gave his (Mr Stanizzo’s) version of what had occurred on 25 May 2009, a version that Mr Badarne disputed. An account of the relevant content of that conversation can be found at [55]-[67] above.

19. [199]

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

20. [200]

    Mr Stanizzo’s evidentiary statement in support of his claim (5 June 2017) runs to 52 pages. It is largely devoted to a lengthy account of conflict between himself and Mr Badarne, with detail of what he asserted to be misbehaviour by Mr Badarne which culminated in Mr Stanizzo terminating the arrangement between them. There is a great deal of detail about a particular transaction. It is apparent that Mr Stanizzo suspected that Mr Badarne was using fees generated by his work in the practice which ought, according to their arrangement, to have been shared with Mr Stanizzo, for his own private property purchase.

21. [201]

    Mr Stanizzo said that on 28 August 2009 he notified the OLSC of a complaint about Mr Badarne’s conduct and that Mr Badarne was advised of this complaint. He said that, following that, complaints against Mr Stanizzo were lodged with the OLSC by a number of Mr Badarne’s clients. He made it plain that he considered that these complaints had been prompted by Mr Badarne.

22. [202]

    Mr Stanizzo said that on 12 May 2009, in the company of Olga Nikolovska (apparently a solicitor who had worked in his office), he drove to Mr Badarne’s house, referred to a client of Mr Badarne, and told Mr Badarne that he did not want to see that client in the office again, to which Mr Badarne replied:

23. [203]

    Mr Stanizzo referred, only briefly, to the meeting of 14 November 2009. In contrast to Mr Badarne, he said that Mr Badarne visited his house without prior notice, alighted from his car and said “let us not spill blood between us”.

24. [204]

    Mr Stanizzo then gave an account of a conversation between the two men that he alleged had occurred on 23 December 2009, when he telephoned Mr Badarne and invited him to his (Mr Stanizzo’s) house for a further discussion about the disputed issues. He gave a lengthy account of the conversation he asserted took place that, he said, resolved the issues between them and ended apparently amicably.

25. [205]

    Mr Stanizzo referred to the complaint lodged by Mr Badarne with the OLSC on 11 June 2010 of which he said he was unaware until after the criminal charges against him had been laid. He said that the complaint contained a false account of the meeting of 14 November 2009 and of the visit by Mr Badarne and Mr Lagapodis to his office on 10 June 2010.

26. [206]

    Mr Stanizzo then said that, on 2 November 2010, Mr Badarne telephoned him and told him that Ms Fregnan and the police had approached him and asked for a statement about the events of 25 May 2009. He said that they had discussions on that and the following day which resulted in Mr Badarne agreeing to make a statement for Mr Stanizzo. He said that Mr Badarne asked Mr Stanizzo to prepare the statement and said that he would come to the office to sign it the next day (4 November).

27. [207]

    Mr Stanizzo then addressed each of the police statements made by Mr Badarne.

28. [208]

    He denied virtually every fact asserted by Mr Badarne, calling each one “false” or “a fabrication”. He took issue with the circumstances in which Mr Badarne said that the meeting of 14 November 2009 at his house took place; he said that, contrary to Mr Badarne’s assertion that he (Mr Stanizzo) had requested the meeting, Mr Badarne attended without prior notice and that he (Mr Stanizzo) had no reason to request a meeting or expect Mr Badarne to make contact with him. He said (notwithstanding the evidence of the tape recording) that the conversation alleged by Mr Badarne was a fabrication, and that some words attributed to him had been spoken “on various other occasions”.

29. [209]

    Mr Stanizzo was cross-examined about that conversation. He said that the recording had been “doctored”; that some parts of the recording represented statements made by him on 23 December 2009, not 14 November 2009. He said that the recording was “a cut and paste job”. He did agree that his voice could be heard on the tape recording. He accepted that he had said all of the words that were attributed to him. He accepted that some of his words could be construed as a threat. He said that he did have a tendency, when upset, to:

30. [210]

    He maintained that the word “bury” was first used by Mr Badarne (in what he said was the conversation on 12 May).

31. [211]

    With respect to the 10 June 2010 allegation, Mr Stanizzo said that the arrangement had been for Mr Lagapodis (without Mr Badarne) to attend his office, where Mr Badarne was “persona non grata”, but that Mr Badarne nevertheless accompanied Mr Lagapodis; Mr Badarne did not stay in the car (as Mr Badarne alleged) but stood on the landing of the rear stairs to the office suite where he could hear the conversation. Mr Stanizzo said that the words and actions attributed to him were “fabrications”.

32. [212]

    Curiously, perhaps, Ms Gael MacPherson was called in Mr Stanizzo’s case. Ms MacPherson said that, in June 2010, she was working in Mr Stanizzo’s office. She recalled an occasion when Mr Lagapodis came to the office to see Mr Stanizzo. The two men (Mr Stanizzo and Mr Lagapodis) met in what had previously been Mr Badarne’s office. They then walked out, and Ms MacPherson saw a car in the carpark. The encounter of which Ms MacPherson then gave evidence took place (as Mr Badarne said) in the carpark of Mr Stanizzo’s office. Ms MacPherson said that Mr Stanizzo walked up to the car (where Mr Badarne was). She said that Mr Badarne said to Mr Stanizzo “you’re scared to see me” to which Mr Stanizzo replied:

33. [213]

    With respect to the 12 June 2010 allegation (the alleged visit by Mr Stanizzo to Mr Badarne’s home) Mr Stanizzo said that Mr Badarne’s assertions were “fabrications” and that no such words were spoken.

34. [214]

    At the conclusion of the trial counsel for Mr Stanizzo provided 87 pages of written submissions. The opening paragraphs are extracted at the commencement of that part of the primary judgment in which his Honour deals with the second proceeding (Stanizzo v Badarne). The submissions are very largely a floridly expressed attack on the character of Mr Badarne and a catalogue of what were asserted to be his delinquencies and malefactions in relation to Mr Stanizzo. All this was designed, as the primary judge found, to establish a motive in Mr Badarne to harm Mr Stanizzo by making false allegations about him (and therefore prove malice on his part). The submissions went so far as to identify evidence that had been sought to be obtained on Mr Stanizzo’s behalf by the issue of subpoenas and notices to produce – unsuccessfully, it may be inferred, because of rulings by the court (which were not identified), and to what use that material might have been put.

35. [215]

    It was only in the last 8 pages of the 87-page written submissions that any attention was paid to any of the four elements of the tort of malicious prosecution set out above. There it was submitted:

36. [216]

    A single paragraph of the submissions was then directed to each of the six counts on the indictments for the prosecution of which Mr Stanizzo claimed that Mr Badarne was responsible. In each case the substance of the submissions was that what Mr Badarne had said in his statements to police was false. From that, it may be assumed (because it was not explicit) Mr Stanizzo sought to have drawn an inference that, in instigating the prosecution, Mr Badarne acted both maliciously and without reasonable and probable cause. Mr Stanizzo placed considerable emphasis on the fact that Mr Badarne had not given evidence in the trial. He submitted that “a very strong Jones v Dunkel [(1959) 101 CLR 298; [1959] HCA 8] inference arises against Badarne from his failure to give evidence in his defence of Stanizzo’s claim, or to call any witness in his defence, in particular [certain named or identified individuals]”.

The primary judgment

1. [217]

   The primary judge, while noting the submissions, clearly (and unsurprisingly) found them to be of little assistance. He found (at [171]) that Mr Badarne was not at any time a prosecutor of Mr Stanizzo in relation to any of the six counts on which Mr Stanizzo relied. He gave a number of reasons for that conclusion, the first being that Mr Stanizzo had failed to prove that any of Mr Badarne’s allegations was false. That finding, as will be explained below, was relevant to the question of whether Mr Badarne was shown to have been a prosecutor. He found (at [172]) that Mr Stanizzo had failed to establish that Mr Badarne acted maliciously. He expressly declined to embark upon a factual determination of “the myriad web of claims and counter claims about the fact and timing of things that Mr Badarne is alleged fraudulently and dishonestly and illegally to have done and to whom” (at [172]).

2. [218]

   His Honour noted that, even:

3. [219]

   The primary judge rejected Mr Stanizzo’s Jones v Dunkel argument, noting that:

4. [220]

   Having referred to the four counts of intimidation, his Honour said:

The appeal

1. [221]

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

2. [222]

   In oral argument senior counsel for Mr Stanizzo took issue with the primary judge’s conclusion that Mr Badarne was not a prosecutor. That proposition must be examined separately in relation to the Fregnan charges (counts 4 and 5 on the 2013 indictment) and the Badarne charges (the 2011 indictment). The argument relied on long-standing authority that recognises that, for the purposes of the tort of malicious prosecution, the term “prosecutor” is not limited to public officers (for example, a police officer “informant” or the DPP) who, in the name, or on behalf, of the State invoke the criminal process, or (more rarely in modern times) to a private individual who does the same thing.

3. [223]

   As mentioned above, the identification for the purposes of an action in malicious prosecution, of the appropriate defendant is not always straightforward. Liability will or may be incurred where the defendant:

4. [224]

   It is difficult to see, on the evidence outlined above, that Mr Badarne was a prosecutor of the Fregnan charges. What he did was, on 7 November 2009, to provide to Detective Murdock a statement in which he corroborated Ms Fregnan’s account of the events of 25 May 2009. That could hardly be said to be the instigation of the charges, or the setting in motion of the proceedings. That had already been done by Ms Fregnan’s report to Detective Murdock on 8 October. Nor could it be said, for the purposes of a claim of malicious prosecution, that providing a witness statement (of itself) is playing an active role in the conduct of the proceedings. Significantly more than that is required.

5. [225]

   It may be – there was no evidence to this effect – that Mr Badarne’s support for Ms Fregnan’s account of that event strengthened any resolve Detective Murdock may have had to lay charges. (There was evidence, referred to below, in the COPS entries that Detective Murdock harboured some doubts about the veracity of Ms Fregnan’s complaints, and her motivation in making them). On the other hand, the provision of Mr Badarne’s statement did not immediately result in charges being laid – that did not happen until a year later. Giving support for an account of events that constitutes a complaint of criminal conduct does not amount to the instigation of criminal proceedings or the setting in motion of the criminal law. That is sufficient to dispose of the proposition that Mr Badarne should be characterised as a prosecutor of the Fregnan charges.

6. [226]

   Senior counsel for Mr Stanizzo, however, had another arrow in his quiver. He argued that Mr Badarne’s 7 November 2009 statement contained within it a demonstrably and deliberately false assertion. That was the statement that Mr Stanizzo had disabled the door to his office so that it could not be opened from the outside and had done so in order to prevent Mr Badarne from entering because Mr Badarne had on prior occasions “caught him in the office with other woman (sic)”. This, it was argued, was directly contradicted by the evidence of David Stanizzo, that the door had, from Mr Stanizzo’s initial occupation of the office, been defective and could not be opened from the outside.

7. [227]

   The deliberate and knowing falsity of Mr Badarne’s assertion was, on the argument, sufficient to convert Mr Badarne from a mere “potential witness” to a “prosecutor”. This argument depended on a single passage from the judgment of Dixon J in Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30 at 379. His Honour said:

8. [228]

   Thus, providing knowingly false information to a prosecuting authority (the police or the ODPP) that has the effect of instigating a prosecution by that authority may constitute the person who provides the knowingly false information as prosecutor, for the purposes of the tort of malicious prosecution. That, senior counsel proposed, was sufficient to render Mr Badarne a prosecutor in relation to counts 4 and 5 in the 2013 indictment.

9. [229]

   Three responses, each independently fatal to the submission, may be made. First, Mr Badarne’s assertion (that Mr Stanizzo had deliberately disabled the door handle to prevent access to his office from outside) was peripheral to the central point of Mr Badarne’s statement, which was directed to the circumstances in which Ms Fregnan was to give Mr Stanizzo a massage, what Mr Badarne heard emanating from the office after Mr Stanizzo and Ms Fregnan entered, and Ms Fregnan’s apparent distress and dishevelment when she left. True it is that, if shown to be incorrect, the assertion of the circumstances in which the office door came to be inoperable from the outside could have been damaging to Mr Badarne’s credibility. That the office door was inoperable from the outside was common ground. But Mr Badarne’s assertion on the circumstances of the inoperability was equally open to interpretation as a statement of his belief or understanding or an assumption. A conclusion (on the assumption that David Stanizzo’s evidence was accepted) that Mr Badarne was wrong in his assertion falls far short of a conclusion that the assertion – and, more importantly, the description of events that followed – was a deliberate lie, sufficient to fix Mr Badarne with liability for the institution of the criminal proceeding.

10. [230]

    The second flaw in the argument is that it depends entirely on accepting the evidence of David Stanizzo. The primary judge made no finding about David Stanizzo’s evidence, no doubt because the issue was of little, if any, significance. The true issue was what happened behind the office door, as to which the only evidence contradicting the evidence of Ms Fregnan and Mr Badarne, was that of Mr Stanizzo himself (evidence on which the primary judge was not prepared to act unless corroborated independently).

11. [231]

    The third fatal flaw in the argument is that, even if it were found (which we do not find) that Mr Badarne’s explanation for the external dysfunction of the door was a deliberate lie, there was nothing to suggest that it operated on Detective Murdock’s mind so as to “procure” the laying of the charges and thus make Mr Badarne responsible for the prosecution.

12. [232]

    On no view of Mr Badarne’s statement, could he be said to have instigated the criminal proceedings. His statement was no more than a supporting statement as to the events of which Ms Fregnan complained.

13. [233]

    Senior counsel submitted that the failure of the primary judge to address the issue of the conflict between David Stanizzo’s evidence and Mr Badarne’s statement provides the basis for a new trial. We do not agree. In our opinion, either the primary judge did not accept David Stanizzo’s evidence, or, more probably, did not consider the conflict to be of sufficient moment to warrant an express finding. As we have concluded above, even if the primary judge had accepted David Stanizzo’s evidence, Mr Badarne’s contrary account could not have had the effect of misleading Detective Murdock into a decision to lay the charges.

14. [234]

    In dealing with this event, the primary judge considered the tape-recorded meeting between Mr Stanizzo and Mr Badarne on 4 November 2010 to be of significance. He found it difficult to characterise what was there recorded other than as an attempt by Mr Stanizzo to have Mr Badarne sign a document that Mr Badarne protested was factually wrong. That lent significant support to Ms Fregnan’s evidence that Mr Stanizzo had sexually assaulted her, and also to Mr Badarne’s corroborating evidence. Mr Badarne’s statement was not, as was contended, shown to have been false.

15. [235]

    There was no error in the primary judge’s finding that, with respect to the Fregnan charges, Mr Badarne was not a prosecutor.

16. [236]

    Nor was there error in the finding that Mr Badarne was not a prosecutor in the Badarne charges, although it may be acknowledged that that position is perhaps less clear.

17. [237]

    Again, senior counsel relied on what were said to be deliberately and maliciously false statements made by Mr Badarne. Senior counsel accepted that Mr Badarne could be a prosecutor in relation to those charges:

18. [238]

    Mr Badarne gave accounts of four separate incidents of intimidation, as set out in detail above. The primary judge dealt with this simply by finding (at [171]) that Mr Stanizzo “cannot demonstrate the falsity of anything that Mr Badarne told the police”. At [164] he said that Mr Stanizzo simply had not proved that the complaints were false to Mr Badarne’s knowledge; at [165] he said that Mr Badarne’s only contradictor was Mr Stanizzo himself. At [166] he said that Mr Badarne’s complaint had not been, and could not be shown to be, false by reference to any evidence or competing version of events coming from a source independently of Mr Stanizzo, and that Mr Stanizzo was unable to refer to or draw upon any credible testimony or objective evidence with the slightest tendency to cast the accuracy or the veracity of Mr Badarne’s statements to the police into any doubt at all.

19. [239]

    Again invoking David Stanizzo’s evidence, senior counsel argued that this was wrong and that there was evidence to support Mr Stanizzo. That is simply incorrect. David Stanizzo’s evidence has no bearing on Mr Badarne’s statements about the counts of intimidation, of which he was the alleged victim.

20. [240]

    Only in two respects was it suggested that the finding of the absence of contradictory evidence in relation to the Badarne charges was wrong. The first was that each was denied by Mr Stanizzo in his evidentiary statement. The second was that Ms Gael MacPherson had given evidence with respect to the offence alleged to have been committed on 10 June 2010 (the incident in the carpark at Mr Stanizzo’s office).

21. [241]

    Having regard to the adverse credit finding by the primary judge with respect to Mr Stanizzo, the fact that he denied the conversations or statements attributed to him can have little weight. But there is more substantial material to support the approach of the primary judge. The conversation of 14 November 2010 was, in part, recorded on tape. The opening words of the tape recording give support to Mr Stanizzo’s position that the meeting had not been initiated by him and, indeed, that Mr Badarne’s visit came as a surprise to him. They support his evidence that Mr Badarne’s arrival was unexpected and unwelcome. Thereafter, however, the content of the tape recording is inescapably adverse to Mr Stanizzo and supportive of what Mr Badarne said.

22. [242]

    In cross-examination Mr Stanizzo acknowledged that the voice on the tape recording was his and that he had spoken the words recorded. He maintained that some of the words had been said on other occasions, a proposition which is highly unlikely. While it might be accepted that the recording was partial only and may not have recorded any provocative words spoken by Mr Badarne, there is no avoiding the reality of the very highly intimidatory language that can be heard and that was used by Mr Stanizzo. Mr Stanizzo did not give any evidence to support his claim to have been provoked.

23. [243]

    The tape recording is highly corroborative of Mr Badarne’s claims. It is relevant, not only in the count relating to 14 November 2010, but also to the other counts. The conduct attributed to Mr Stanizzo on the other occasions is consistent with what can be heard on the tape recording.

24. [244]

    Senior counsel also relied on the evidence of Ms MacPherson in support of the proposition that Mr Badarne’s statements were knowingly false. That is difficult to understand: in three very material respects Ms MacPherson contradicted Mr Stanizzo and confirmed Mr Badarne’s account of the meeting in the carpark on 10 June. She confirmed that the encounter with Mr Badarne took place in the carpark; she confirmed that Mr Badarne remained in the car; and she confirmed that Mr Stanizzo said the words:

25. [245]

    There was also corroboration (in the statement of Mr Badarne’s wife) of both the visit by Mr Stanizzo to the Badarne home on 12 September 2010 and his apparently threatening and intimidatory behaviour.

26. [246]

    The only foundation for the proposition that the primary judge erred in failing to find that Mr Badarne was a prosecutor was the asserted falsity of Mr Badarne’s allegations, such as to make him liable in accordance with the principles stated by Dixon J in Brain. Far from establishing falsity, the evidence supports Mr Badarne’s allegations.

27. [247]

    The primary judge was correct to find that Mr Badarne was not, by reason of deliberately malicious and false allegations, a prosecutor.

28. [248]

    Since the four elements of the tort of malicious prosecution are cumulative, that means that Mr Stanizzo’s case had to fail.

29. [249]

    It is therefore necessary to deal only briefly with the remaining elements of the tort. The second element is not in issue; the criminal proceedings terminated in Mr Stanizzo’s favour.

30. [250]

    Proof of the third element, malice, depends on proof that the sole or dominant purpose actuating the prosecutor in bringing the proceedings was a purpose other than the proper invocation of the criminal law – “an illegitimate or oblique motive”: A v NSW at [91].

31. [251]

    The primary judge, correctly, held that Mr Stanizzo had failed to discharge the onus of proving that element. A conclusion of malice is contradicted by the circumstances we have set out above, in the consideration of whether Mr Badarne’s statements to police were deliberately false. Even if Mr Badarne could be held to have been a prosecutor, there was not the slightest basis in the evidence for a conclusion that he reported the four occasions of intimidation, or gave his evidence supporting Ms Fregnan, for any purpose other than the proper invocation of the criminal law. The evidence relied on by Mr Stanizzo establishes, in fact, that Mr Badarne had every reason to involve the criminal law. That there was a history of ill-will between the two men does not establish a misuse of the processes of the law, where there is considerable other evidence of criminal conduct.

32. [252]

    Mr Stanizzo addressed no argument to the fourth element, the absence of reasonable and probable cause. That, no doubt, was because there was nothing that could usefully be said. Once it is accepted, as it must be (at least for the purposes of these proceedings) that Mr Badarne was not fabricating his allegations, it must also be accepted that there was a proper case for the prosecution of each of the charges.

33. [253]

    The appeal against the order of the primary judge dismissing the second proceeding is dismissed with costs.

34. [254]

    It follows that the notice of motion of 29 January 2021 (in which Mr Stanizzo sought restraining orders with respect to property) must also be dismissed.

35. [255]

    Two further observations might be made. In written submissions in reply, it was proposed on behalf of Mr Stanizzo, that the various statements tendered in evidence in his case without limitation should not be regarded as evidence of the truth of their contents. That argument was not adopted by senior counsel who appeared on the appeal (who was not the author of the written submissions).

36. [256]

    It was also proposed that some evidence that was not admitted in the trial should now be admitted. No application, pursuant to s 75A(7) of the Supreme Court Act, to admit further evidence was made; had any such application been made, it would have been subject to the qualification in sub-s 75A(8), that requires “special grounds” for further evidence, where the appeal in question is from a judgment given after a hearing on the merits. No “special grounds” can be identified.

The third proceeding: Stanizzo v the State of NSW

1. [257]

   Before proceeding to deal with this appeal, we note the following. This appeal in both written and oral submisisons was conducted by junior counsel for Mr Stanizzo. After judgment was reserved, the Court received, by email, an application by junior counsel for Mr Stanizzo for leave to provide further written submissions. The Court refused leave and, by email, so advised counsel. Notwithstanding that refusal, junior counsel purported, again by email, on at least three further occasions, to provide further written submissions. The parties were advised that the purported further submissions would not be taken into account. In what follows we have disregarded those purported further submissions.

2. [258]

   The Statement of Claim was filed in the Supreme Court on 5 October 2016. It identifies the claim as:

3. [259]

   Appended to the statement of claim were three attachments – a 41 page document entitled “Attachment A”, and annexures B and C, being respectively, copies of the 2011 and 2013 indictments, containing the Fregnan charges and Badarne charges.

4. [260]

   Paragraphs 3 to 19 of Attachment A, under the heading “Wrongful Arrest”, constituted a narrative account of the arrest of Mr Stanizzo on 4 November 2010 until his release on bail the following day, and the execution of the search warrant on 4 November. Those paragraphs were then incorporated in the next section of the document, under the heading “Malicious Prosecution”, which continued for the remainder of the lengthy document.

5. [261]

   Attachment A is a melange of narrative, assertions and arguments. At [21] it was asserted that:

6. [262]

   It was then asserted that:

7. [263]

   The only police officer identified as responsible for the prosecution was Detective Murdock. The ODPP officers so identified were Crown Prosecutor Michael Barr and instructing solicitor Helen Rallis.

8. [264]

   It was then pleaded that:

9. [265]

   In its defence, the State admitted that, pursuant to Pt 4 of the Law Reform (Vicarious Liability) Act 1988 (NSW), it bore vicarious liability for any relevant tortious conduct of Detective Murdock, Mr Barr and Ms Rallis. It otherwise pleaded to the specific paragraphs of Attachment A to the Statement of Claim. It expressly admitted that, on or about 5 November 2010, the ODPP, pursuant to s 9 of the Director of Public Prosecutions Act 1986 (NSW) assumed conduct of the criminal proceedings against Mr Stanizzo; that the solicitor with carriage of the prosecution at Mr Stanizzo’s trial was Ms Rallis; and that the Crown Prosecutor instructed at the trial was Mr Michael Barr.

10. [266]

    The claim for wrongful arrest does not appear to have been pursued. It is not mentioned in the primary judgment. It has not been mentioned in the appeal. It is the tort of malicious prosecution that must be considered.

11. [267]

    The first and second elements of the tort were not in issue. The State accepted that the criminal prosecution of Mr Stanizzo had been initiated by it, or by officers for whose wrongdoing (if any) it was vicariously liable. The State also admitted that the proceedings terminated in favour of Mr Stanizzo. That left for debate only the third and fourth elements (malice and the absence of reasonable and probable cause for the prosecutions).

12. [268]

    Mr Stanizzo’s case at first instance, and on appeal, involved an attack on Detective Murdock’s bona fides in instituting his prosecution. It primarily concentrated on Detective Murdock’s decision to charge Mr Stanizzo with the counts of sexual offences against Ms Fregnan. Little, if any, attempt was made to differentiate between Detective Murdock’s state of mind in instituting the Fregnan charges, and his state of mind in instituting the Badarne charges. Instead, attention was directed to vast swathes of material contained in the appeal books, analysis of which, it was contended, ought to have convinced Detective Murdock that Ms Fregnan’s allegations of sexual assault were false, such that Detective Murdock ought to have been found to have known that there was not “a proper case for prosecution”: A v NSW at [80]-[81].

The primary judgment

1. [269]

   The primary judge noted that Mr Stanizzo’s contention was that analysis of the police records (the COPS entries) demonstrates that Detective Murdock knew, or at least ought to have known, that Ms Fregnan and Mr Badarne were conspiring with one another to make false allegations against him. His Honour noted “that the central theme” of Mr Stanizzo’s submissions was that Detective Murdock “realised the likelihood that Ms Fregnan was lying out of malicious motives towards Stanizzo” (at [61]).

2. [270]

   His Honour then dealt, serially, with the points made on behalf of Mr Stanizzo that, it was contended, had or ought to have led Detective Murdock to the conclusion that there was “not a proper case for prosecution”.

3. [271]

   These included:

4. [272]

   It was put, on Mr Stanizzo’s behalf, to the primary judge that there was some impropriety in Detective Murdock’s arrangement for Mr Badarne to engage in a tape-recorded conversation with Mr Stanizzo on 4 November 2010. This, the primary judge recorded, was said to have amounted to an encouragement to Mr Badarne and Ms Fregnan to continue to collude in making malicious complaints against Mr Stanizzo which he (Detective Murdock) must have known “might well” have been malicious and false.

5. [273]

   Reliance was also placed on the Bluestone Mortgages telephone records (see [82] above).

6. [274]

   The primary judge considered and systematically rejected each claim and assertion made on behalf of Mr Stanizzo. He noted (at [81]) a catalogue of items of information in Detective Murdock’s possession that the State contended “provided ample grounds for his suspicions that Mr Stanizzo had committed the offences with which he was charged”.

7. [275]

   Almost no submission in relation to the charges of intimidation of Mr Badarne was made. One exception was recorded as a submission that Mr Stanizzo was unfairly deprived of the opportunity to examine the tape recording of the conversation between Mr Badarne and Mr Stanizzo on 14 November 2009. The primary judge noted that, in cross-examination, Mr Stanizzo accepted that he had made the statements there recorded. Any failure of opportunity to examine the recording was, in those circumstances, inconsequential.

8. [276]

   A second complaint related to the 2011 indictment (the Badarne charges) was that no evidence was adduced by the State to indicate that Detective Murdock, Ms Rallis or Mr Barr gave any consideration as to the fate of the Badarne charges after the abandonment of the Fregnan charges on 2 August 2013, and while the indictment containing the Badarne charges remained alive.

The appeal

1. [277]

   Numerous grounds of appeal were pleaded. The first and principal ground asserted error by the primary judge in failing to find (i) absence of reasonable and probable cause to commence the prosecution; and (ii) that malice on the part of police and officers of the ODPP (presumably Detective Murdock, Mr Barr and Ms Rallis) was proved. By the ground numbered 23 of the FANoA it was asserted:

2. [278]

   The remaining “grounds” are little more than particulars of reasons why it is asserted that Detective Murdock should have disbelieved Ms Fregnan. A number of specific assertions rely on what are blatant misrepresentations of the primary judge’s conclusions. Two examples will suffice.

3. [279]

   Ground 23.2 was framed as follows:

4. [280]

   In [63] the primary judge again restated a submission made on behalf of Mr Stanizzo that Detective Murdock had material in his possession that showed or demonstrated to him that Ms Fregnan’s allegations were in fact false or concocted for an improper motive. By reference to that submission the primary judge said:

5. [281]

   A second example is to be found in the appeal ground numbered 23.6 in the FANoA, which was framed as follows:

6. [282]

   The primary judge made no such finding. In [71] he referred to the submission (which he considered to be “frankly extravagant”) that Detective Murdock should have known that Ms Fregnan’s prospects of success in her civil case were poor. (Quite how Detective Murdock was to make that assessment was unexplained by Mr Stanizzo). In any event, far from finding that Detective Murdock would have reasonable and probable cause to proceed unless he knew that Ms Fregnan had a collateral purpose, the primary judge, having noted the submission, said:

7. [283]

   We propose to proceed, by reference to the written and oral submissions, on the basis that Mr Stanizzo asserts that the primary judge ought to have found (and this Court, in the exercise of its powers under s 75A of the Supreme Court Act ought to find) that Mr Stanizzo had proved the absence of reasonable and probable cause to proceed with the prosecution and that Detective Murdock was motivated by malice, and that Mr Barr and Ms Rallis likewise lacked reasonable and probable cause to maintain the prosecution after the ODPP took it over. That approach may be excessively generous to Mr Stanizzo. It reconstitutes the appeal he has formulated.

8. [284]

   We now turn to the written submissions. Again, some caution needs to be exercised. The written submissions contain references to documents that were not in evidence in the trial, but have been reproduced in the appeal books. It is impossible, from the index to the appeal books, to know what documents were in evidence, and the transcript of the trial is not always helpful in this respect. In the State’s submissions some such documents (including a judgment of the District Court judge in the criminal trial, and some transcript from that trial) were identified as not in evidence in the proceedings before the primary judge. That assertion was not contradicted in Mr Stanizzo’s submissions in reply and may be taken to be correct. Indeed, in submissions in reply in the second proceeding, it was submitted that evidence not tendered ought now to be accepted. As mentioned above, no application for leave to adduce further evidence was made.

9. [285]

   The submissions on behalf of Mr Stanizzo reduce to the proposition that, taking into account all of the material that was before Detective Murdock, he could not realistically have formed the view that there was “a proper case for prosecution” (A v NSW at [80]).

10. [286]

    On behalf of Mr Stanizzo much was made of a conflict in the evidence about the telephone call Detective Murdock made to Mr Stanizzo on 16 July 2010. In his statement dated 2 December 2010 (tendered in Mr Stanizzo’s case, without limitation as to its use) Detective Murdock said:

11. [287]

    Mr Stanizzo’s account of this conversation was given in his evidentiary statement made on 2 June 2017. He said:

12. [288]

    Mr Stanizzo maintained this position in cross-examination. When the topic was introduced, Mr Stanizzo said that the conversation was as set out in his statement. He then said:

13. [289]

    The following submissions, which can only be described as florid, were made:

14. [290]

    The principal difficulty with the reliance placed on Mr Stanizzo’s version of the conversation of 16 July is, as was consistently the case, that the primary judge did not accept anything Mr Stanizzo said as true unless it was independently corroborated.

15. [291]

    Another circumstance to which reference was made concerned the events of 2 and 3 November 2010, which occurred after the Surveillance Devices Act warrant had been issued. According to Detective Murdock two unsuccessful attempts were made for Mr Badarne to telephone Mr Stanizzo from the police station, with the intention that the conversations would be recorded in accordance with the warrant. Each attempt was unsuccessful because the equipment failed to record the call. The final attempt, on 4 November 2010, was the visit by Mr Badarne, fitted with the surveillance device, to Mr Stanizzo’s office.

16. [292]

    In his written submissions, junior counsel for Mr Stanizzo said that Mr Stanizzo does not accept as a fact that the recording equipment failed. There was no support in the evidence for the implied submission that Detective Murdock’s evidence of the failure of the equipment was false.

17. [293]

    The finding by the primary judge at [87] was challenged as erroneous. There the primary judge said that the case against Mr Stanizzo (in the criminal trial) unravelled when it became obvious (from the Bluestone Mortgages tape recordings) that Ms Fregnan had the cheque from Mr Stanizzo shortly after 3.00 pm on 19 September 2008 in contrast to Ms Fregnan’s assertion that it was the promise of the cheque that lured her to accompany Mr Stanizzo to his home after 5.00 pm on that day. A seriously misleading submission was made in this respect with which we will deal as briefly as we can. The submission was that, from the execution of the search warrant on 4 November 2010, Detective Murdock was aware of the content of the Bluestone Mortgages tape recordings. (For a more complete account of the Bluestone Mortgages tape recordings see [82] above). That, it was said, was because the documents seized under the search warrant included the affidavit sworn by Ms Bontigao, filed in the civil proceedings brought by Ms MacPherson against Ms Fregnan, to which were annexed the “electronic notes” of the conversations Ms Fregnan was said to have had with Bluestone Mortgages employees on the afternoon of 19 September 2008. It was undoubtedly the discovery of the tape recordings that brought the criminal prosecution of the sexual assault charges to a sudden halt. It was said that Ms Bontigao’s affidavit gave the lie to Ms Fregnan’s account of the events of 19 September 2008.

18. [294]

    As has been pointed out above (at [136]-[140]) there was nothing in the very short form of the electronic notes that demonstrated the falsity of Ms Fregnan’s version of the events of that day. It was the production, during the course of the criminal trial, of the tape recordings, that provided the evidence that Ms Fregnan had recited the details of the 19 September cheque at a time before the time at which she claimed to have gone with Mr Stanizzo to his home.

19. [295]

    So much is clear from Detective Murdock’s notes of the circumstances in which that criminal trial aborted. He recorded in the COPS notes the following:

20. [296]

    It would not be productive to engage with the further argumentative matters put on behalf of Mr Stanizzo. They are directed to the proposition that Detective Murdock ought to have declined to lay charges against Mr Stanizzo. That question can best be resolved by reference to what Detective Murdock did.

21. [297]

    Detective Murdock received the first report from Ms Fregnan on 8 October 2009. He recorded in a COPS entry, in some detail, what she had told him, which is also recorded in statement form. Detective Murdock noted that he had questioned Ms Fregnan about why her first report was made 13 months after the first alleged assault, and that she explained that it was because of threats made by Mr Stanizzo. Detective Murdock then recorded:

22. [298]

    On 9 June 2010 Detective Murdock recorded (in COPS):

23. [299]

    Detective Murdock’s next entry was on Friday 30 October 2009 when he recorded that Ms Fregnan had attended at the police station and provided him with a copy of a ten-page affidavit filed in the civil proceedings commenced against her by Ms MacPherson. Detective Murdock noted that the affidavit contained no information about the sexual assault allegation and simply related to the “ongoing civil dispute” between Ms Fregnan and Mr Stanizzo.

24. [300]

    Detective Murdock then made a further note to the effect that the affidavit referred to Ms Fregnan having received a cheque from Mr Stanizzo in the sum of $134,518.07 on 19 September 2008 and “then attending his residence to celebrate”. Detective Murdock said:

25. [301]

    Detective Murdock went on to record:

26. [302]

    It may be noted that Detective Murdock’s comment in the COPS entry that the affidavit filed in the civil proceedings made “no mention whatsoever of the alleged sexual assault” may not have been entirely accurate. The affidavit to which Detective Murdock apparently referred was in evidence. It is correct that in the affidavit Ms Fregnan said that the cheque was handed to her in Mr Stanizzo’s office (which was not inconsistent with the account she gave of having been handed the cheque but not permitted to retain it), and Mr Stanizzo invited her to go to his home to celebrate, and that they had coffee and made general conversation. However, the paragraph to which Detective Murdock referred [para 28, not 25 as stated] concludes:

27. [303]

    From 7 November 2009 Detective Murdock had Mr Badarne’s statement corroborating Ms Fregnan’s allegations of 25 May 2009. Even in possession of that important piece of evidence, he did not then lay charges.

28. [304]

    Detective Murdock then sought and obtained the warrant under the Surveillance Devices Act to record conversations between Mr Badarne and Mr Stanizzo. As indicated above, two attempts to record a telephone conversation failed because of equipment defects. The final attempt to obtain recorded evidence, on 4 November 2009, was when Mr Badarne visited Mr Stanizzo in his office. An account of the relevant portions of that conversation is given above at [55]-[67]. Detective Murdock listened to the highly incriminating conversation that then took place. It was then that he made the decision to charge Mr Stanizzo. That was more than 12 months after Ms Fregnan’s initial report.

29. [305]

    This chain of events demonstrates that Detective Murdock approached Ms Fregnan’s allegations with considerable scepticism. He was fully aware of the possibility that Ms Fregnan might be using her reports of sexual assault for the purpose of furthering her civil case in which Mr Stanizzo was also involved, and was alive to the need to avoid police being used to further any such attempt. It was only when, through the use of the Surveillance Device Act recording, he came into possession of objective evidence that he decided to charge Mr Stanizzo. Far from proving the absence of reasonable and probable cause, the chain of events established that Detective Murdock waited until he was satisfied that he had reasonable and probable cause to make the arrest and lay the charges.

30. [306]

    Detective Murdock was not in control of the prosecution from the time it was taken over by the ODPP on 5 November 2010. He continued, however, to be in charge of the investigation, and he continued to make inquiries, and to assist the ODPP. On 19 September 2011, having made apparently extensive investigations of telephone records, he communicated by email with the ODPP. He referred to evidence of telephone calls made by Ms Fregnan on 19 September 2008. That evidence did not support some of Ms Fregnan’s claims. He expressed doubt about an explanation given by Ms Fregnan that she had, at the time, used many different prepaid numbers.

31. [307]

    By ground 25 in the FANoA it was asserted that the primary judge disregarded the obligation for the prosecutors “to have reasonable and probable cause to maintain the prosecution at all stages”, and nominated five dates on which it was proposed that reasonable and probable cause was absent. The last of these was August 2013, when the criminal trial of the Fregnan charges aborted, in circumstances set out above.

32. [308]

    Detective Murdock was advised on 16 January 2014 that the ODPP had decided to enter a nolle prosequi with respect to the Badarne charges. No reason for that decision was disclosed in the evidence. It is difficult to see that those charges were affected by the Bluestone Mortgages tape recordings, the discovery of which precipitated the abandonment of the Fregnan charges. Those recordings were perceived to affect, adversely, Ms Fregnan’s credibility. So far as can be seen on the evidence, Ms Fregnan was not to be a witness in the proposed proceedings on the Badarne charges, and those charges were completely independent of Ms Fregnan.

33. [309]

    In any event, there is nothing in the evidence that even suggests, let alone establishes, the absence of reasonable and probable cause to maintain that prosecution between August 2013, when the Fregnan charges trial aborted, and January 2014, when the Badarne charges were also abandoned.

34. [310]

    We agree with the primary judge that Mr Stanizzo failed to establish that Detective Murdock acted without reasonable and probable cause. That is sufficient to dispose of the appeal.

35. [311]

    We also agree with the primary judge that there was no reason based on the evidence to impute to Detective Murdock any improper motive in his decision to prosecute. Mr Stanizzo failed to establish that essential element of the tort also.

36. [312]

    There was simply no evidence to establish any lack of bona fides on the part of either the Crown Prosecutor or Ms Rallis. Indeed, no real argument was addressed to that proposition. It is sufficient to note that, on becoming aware of the content of the Bluestone Mortgages tape recordings, Mr Barr and Ms Rallis acted promptly and decisively and brought the criminal proceedings on the Fregnan charges to a halt.

37. [313]

    This appeal is dismissed with costs.

38. [314]

    Accordingly, the following orders are made: