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

[2020] NSWSC 402

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Fregnan v Stanizzo; Stanizzo v Badarne; Stanizzo v State of New South Wales [2020] NSWSC 402

Hearing dates:

12-15, 18-22 February, 16, 20-24, 27-29 May,3, 4, 7, 13, 25 June 2019 and 28 February 2020

Date of orders:

30 April 2020

Decision date:

30 April 2020

Jurisdiction:

Common Law

Before:

Harrison J

Decision:

In proceedings 2012/129649:
(1)    Judgment for the plaintiff for $135,000 on the plaintiff’s claim.
(2)    Judgment for the cross-defendant on the cross-claim.
(3)    Order the defendant/cross-claimant to pay the plaintiff/cross-defendant’s costs of the proceedings.

 

In proceedings 2014/92425:
(1)    Judgment for the defendant.
(2)    Order the plaintiff to pay the defendant’s costs of the proceedings.

 In proceedings 2016/296293:
(1)    Judgment for the defendant.
(2)    Order the plaintiff to pay the defendant’s costs of the proceedings.

Catchwords:

TORTS – malicious prosecution – whether absence of reasonable and probable cause – whether proceedings instituted or maintained on sufficient grounds – whether prosecutor had actual knowledge of falsity of allegations – distinction between whether complainant motivated by malice or made false allegations and whether investigating detective suspected so – where material before detective sufficient to show allegations neither improbable nor false – where material sufficient to put accused on trial – where no improper purpose in prosecution – whether further inquiries could have been made – proper place and function of investigating detective

 

TORTS – malicious prosecution – whether complainants independently liable as prosecutors – where falsity of statements made by complainant to police not proved – where malice not established

 

TORTS – malicious prosecution – malice – whether material capable of supporting finding that allegations made maliciously – whether investigating detective had genuine or reasonable belief in truth of allegations

  TORTS – malicious prosecution – damages – assessment at common law – where one party unrepresented – where complaints to medical practitioner in medical reports taken into account as if given in evidence – causation of loss – distinction between injury arising out of assault and injury arising out of other stressors – where party susceptible to suffer from certain conditions – whether assaults exacerbated conditions

Legislation Cited:

Civil Liability Act 2002 (NSW)
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:

A v New South Wales (2007) 230 CLR 500; [2007] HCA 10
Beckett v State of New South Wales [2015] NSWSC 1017
Clavel v Savage [2013] NSWSC 775
Commonwealth Life Assurance Society v Brain (1953) 53 CLR 343
Fred Saad & Ors v State of New South Wales; Ashley Saad v State of New South Wales [2016] NSWSC 1247
Gillies v State of New South Wales (No 2) [2014] NSWSC 1598
Herniman v Smith [1938] AC 305
Johnston v Australia & New Zealand Banking Group Ltd & Ors [2006] NSWCA 218
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
State of New South Wales v Abed [2014] NSWCA 419
Thomas v State of NSW (2008) 74 NSWLR 34; [2008] NSWCA 316
Wood v State of New South Wales [2018] NSWSC 1247

Category:

Principal judgment

Parties:

Karina Vivianna Fregnan
Vincent Francis Stanizzo
Muhammad Badarne
State of New South Wales

Representation:

Counsel:
C Waterstreet and M Rollinson (V Stanizzo)
A Macauley (M Badarne)
N Newton and T Buterin (State of NSW)

  Solicitors:
VF Stanizzo Lawyer (V Stanizzo)
Bardane Lawyers (M Badarne)
Crown Solicitor's Office (State of NSW)

File Number(s):

2012/1296492014/924252016/296293

Publication restriction:

Nil

Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Background facts

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

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

“The POI in this matter, STANIZZO is a practicing [sic] solicitor and is known to several members of the Wollongong Detectives Office.

The VIC met the POI whilst trying to sell her property in early 2008. After the sale of the property fell through the POI offered to purchase half of it to which the VIC agreed.

On 19th September 2008 the VIC attended the POIs place of work at 62 King St Warrawong to collect a cheque for this sale. The POI handed over a cheque of $135,000 which was partial payment for the sale.

The VIC alleges that the POI invited her to his residence (LOC) to have a drink and ‘celebrate’ the sale of the property. The VIC agreed and the VIC and POI then travelled to the LOC in the POIs vehicle.

The VIC alleges that upon arrival she informed the POI that she needed to use the toilet and the POI showed the VIC to an ensuite bathroom off the main bedroom which she entered, closing the door.

The VIC alleges that upon opening the ensuite door she observed the POI standing in the bedroom completely naked with an erection. The VIC alleges that the POI took hold of her and threw her onto the bed before pinning her down and penetrating her vagina with his fingers. The VIC was wearing a skirt at the time.

The VIC further alleges that the POI then attempted to penetrate her vagina with his penis however was unable to do so due to her struggling and trying to keep her legs together. The VIC alleges that at one point the POI got his penis ‘a quarter of the way in’. The VIC was screaming and struggling and states that the POI was telling her to ‘be quiet’ and ‘shut up’.

The VIC alleges the POI was continually rubbing his penis on her clitoris for an unknown time before ejaculating on her legs.

The VIC immediately left the LOC and went to the nearby Balgownie Shops where she caught a taxi home, she did not disclose the incident to anyone.

Over the following months the VIC attended the POIs place of work in Warrawong several times in relation to ongoing problems with the sale of her premise [sic]. She alleges that each and every time the POI continues to threaten to kill her if she tells anyone.

She also alleges that on several occasions the POI has been physically violent towards her in his office and that another solicitor, M BADARNE was present and can offer certain evidence in relation to these assaults.

Despite the alleged threats and physical violence the VIC did not contact of [sic] approach police.

The VIC finally attended Wollongong Police Station on Thursday 8th October 2009, some thirteen months after the alleged assault, to report it. When questioned why it took so long for the report the VIC stated that it was because of the threats made by the POI.

Whilst talking to her it became apparent that there is still ongoing civil and financial issues between the two with the VIC making numerous comments about ongoing financial dispute and the fact that she has tried to get every solicitor in Wollongong however none will ‘take the POI on’. She also made reference to having future contact with Sydney Legal Aid to act on her behalf with the civil case relating to the property dispute. Investigators believe this ongoing civil issue may be a motive for the report. It will be explained to the VIC that at no time will police waste any time or resources on investigating this allegation if it is solely for her leverage or gain in her civil case.

Also of interest is that the VIC has prior intel on COPS for prostitution.

At the time of speaking with her the VIC appeared somewhat erratic, speaking very quickly and jumping from one thing to the next. She was advised to create a timeline of events, being as detailed as possible and contact detectives when completed so that a detailed statement can be obtained from her. Once a statement is obtained the alleged WIT will be spoken to about what evidence, if any, he can offer.

There are no witnesses to the actual sexual assault and due to time, no physical or biological evidence available to police to co-oberate [sic] the VIC’s version.

Detectives will now wait to hear from the VIC before investigation the matter any further.

Investigation continuing.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Murdock: “Mr Stanizzo, my name is Detective Jake Murdock from Wollongong Detectives. I need to speak with you in relation to a woman called Vivian Valvano. Do you know her?”

Stanizzo: “Yes, I know Valvano.”

Murdock: “She is alleging that you sexually assaulted her on two occasions, at your house and at your office.”

Stanizzo: “That’s complete rubbish, she is just trying to discredit me and a woman called Gael McPherson.”

Murdock: “What I would like to do is formally interview you in relation to the allegations. Will you come into Wollongong Police Station to be interviewed?”

Stanizzo: “No.”

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

“Police view is that there is sufficient evidence to put Stanizzo before the court however prospect of a conviction is low. Advised that legal advising would be sought from DPP and their advice taken re action. Advise she would be contacted once result of legal advising was known.”

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

“…He advised police that he was aware the author had spoken to Stanizzo in relation to this matter. He informed police that Stanizzo had since made contact with him in relation to the allegations and asked him that Badarne provide a statement or affidavit in relation to the matter in which he was to state that at no time did he see Stanizzo make any sexual advances towards Valvano, that his door was always open in the office whenever Valvano was present, and that he never heard anything in Stanizzo’s office. He also stated that Stanizzo stated that he wanted Badarne to state that Stanizzo always had his door open when Valvano was present as he was scared of Valvano and such allegations.

Badarne has agreed to provide a statement and is to attend WGPS on 09.08.10 to do so.

Consideration is to be given to the possibility of conducting the telephone interface between Badarne and Stanizzo as Badarne now states that there is a high likelihood that Stanizzo will corroborate this and talk further on the phone.”

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

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

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

Mr Badarne: “What do you mean you want to bury me man?”

Mr Stanizzo: “Not only do I bury you, I bury your daughter, your wife and everybody. I even go to Israel and bury your brothers if I need to … I do not care, I have done my career, right, my career is at an end. I do not want to practise anymore for two or three years, but your is not … I am telling you, I am telling you that I don’t believe in the peace process, do you know in what peace process I would believe, you know what it is … the same one that the German did to the Jews. I tell you what there is no other solution … Do you know what I would do to your people, from Damascus or Palestine all the way to Rome crucified, like the Romans used to do, this is why they held an empire for a thousand years … We, I tell you something, I tell you something, we in my part of the world, we never make a threat unless we intend to carry it out … Do you know what they (relatives) are going to do to your family. They are going to slice them like Mortadella, bit by bit, bit by bit.”

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

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

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

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

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

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

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

“The complainant in this matter is Vivian SGANGARELLA-VALVANO, aged 51 years. For the purpose of this matter she will hereby be referred to as VALVANO.

The accused in this matter is Vincent STANIZZO aged 57 years. STANIZZO is a practising solicitor owns VF STANIZZO Lawyers located at 62 King St Warrawong. For the purposes of this matter STANIZZO will hereby be referred to as the accused.

The witness in this matter is Muhammad BADARNE, aged 44 years. He is also a practising solicitor and worked at VF STANIZZO Lawyers from March 2006 to August 2009. He will hereby be referred to as BADARNE.

VALVANO states that she has known the accused since 1982 when she met him at the Fraternity Club in Fairy Meadow through her ex-husband. VALVANO states that she has seen the accused several times over the years however their interactions were limited to greetings only.

In 1999 VALVANO and her (now ex) husband purchased a house at 51 Auburn St Wollongong. The following year they divorced and VALVANO retained the house following the property settlement.

In January 2008, due to money problems, VALVANO decided to sell her residence and contacted ‘Illawarra Properties’ in Warrawong to list the house for sale. VALVANO was subsequently referred to a solicitor in the same office block to have contracts for sale prepared. VALVANO attended this solicitor and discovered that it was in fact the accused at VF Stanizzo Lawyers.

VALVANO has told Police that during the initial consultation with the accused, he enquired about her marital status and made numerous comments such as, ‘I am divorced, I have not told you this before but I am infatuated with you’. VALVANO has told Police that whilst she was unhappy with the accused’s conduct she could not afford another solicitor and therefore engaged the accused’s professional services.

Over the following months, VALVANO attended the accused’s practice numerous times to sign documents in relation to the sale of the house. VALVANO has told Police that on almost every occasion, the accused would get in her personal space, touch and rub her on the shoulders and try to hug her. The accused allegedly made remarks about how she should have married him. The accused allegedly made constant requests for VALVANO to massage his neck.

BADARNE was present and is alleged to have witnessed the behaviour the accused exhibited towards VALVANO. BADARNE has told Police that VALVANO appeared uncomfortable with the accused persons behaviour.

In June 2008, a prospective buyer was found for VALVANO’s house. However, prior to the sale the accused allegedly approached VALVANO and offered to purchase the house. It was agreed between the accused and VALVANO that the accused would purchase half the house for $240,000.

On 19 September 2008, VALVANO attended the accused’s practice to collect a cheque for the monies relating to the sale of her house. Prior to giving VALVANO the cheque, the accused allegedly stated ‘I have got some nice wines at home I can give you. Would you like to come back to my house and celebrate our business deal?’

Fearing the accused would not give her the cheque if she refused his offer, VALVANO accepted and was driven to the accused’s house at … Peace Crescent, Balgownie. On route, the accused allegedly said, ‘This is a lot of money I am giving you, I hope you appreciate it’.

VALVANO alleges that upon arrival at the accused’s residence they entered the house and spoke for an amount of time during which the accused asked her to massage his neck, to which she declined. A short time later, VALVANO requested to use the bathroom and was led by the accused to a bedroom on the bottom floor of the residence where an en-suite bathroom was located. VALVANO entered the en-suite and closed the door. VALVANO alleges that after using the facilities she opened the en-suite door and observed the accused standing immediately at the door naked from the waist down.

It is alleged that the accused then grabbed VALVANO in a ‘bear hug’ and put her up against the wall. The accused is alleged to have stated ‘Look after me and you will get everything you want.’ VALVANO stated ‘No, I’m not having sex with you’, however the accused started moving towards the bed. VALVANO said ‘Stop, get off, leave me alone!’ with the accused saying ‘Come on, you are a mature woman, stop acting like a child, you want it just as bad as I do’.

The accused then threw VALVANO on a nearby bed and lay on top of her. It is alleged that he then reached under her skirt, moved her underwear to the side and then penetrated her vagina with the middle finger of his left hand. VALVANO screamed for the accused to stop, however he then inserted his pointer finger into her vagina as well and told her to ‘Shut up’.

It is also alleged by VALVANO that she could feel the accused thrusting and trying to insert his erect penis into her vagina, however he was unable to due to VALVANO struggling. The accused then ejaculated on VALVANO’s left thigh before rolling off her.

The accused then said to her, ‘If you tell anyone I will put you in the ocean with concrete legs and withdraw the cheque just like I did with the other cheque a week ago’ (referring to different cheque). VALVANO collected her handbag and left the residence, returning home in a taxi. Due to shock, embarrassment and fear VALVANO did not report the matter to Police or disclose the offence to anyone.

Following the offence, VALVANO stayed away from the accused for several months by restricting contact to telephone or correspondence. VALVANO alleges that the accused regularly made advances towards her and would say; ‘Do not tell anyone I want to take you on dates, do not tell people I want to take you dancing, don’t tell anyone I am your solicitor cause you know what will happen to you, you know what happens to people who open their mouths’. These comments scared VALVANO.

Over the following months a civil suit commenced in the NSW Supreme Court involving the accused, VALVANO and other parties relating to monetary issues involving the proposed sale of VALVANO’s house.

On 29 April 2009, BADARNE commenced assisting VALVANO in relation to an unrelated legal issue and VALVANO was required to attend the accused’s practice in Warrawong several times to speak with BADARNE.

VALVANO alleges that whilst at the accused’s practice, the accused would continually harass her and request her to massage his neck, but she ignored him.

On 25th May 2009, VALVANO and BADARNE attended Shellharbour TAFE in relation to the unrelated matter before returning to the accused’s practice at 62 King St Warrawong to discuss the matter.

Shortly after arriving, the accused attended the office and again asked her to massage his neck.

To stop the accused pestering her, and despite being very hesitant, VALVANO agreed and the two went into the accused’s office. The accused shut the door. VALVANO observed that the accused already had a bottle of massage oil on his desk.

After massaging his neck for several minutes VALVANO went to leave the accused’s office and the accused attempted to hug her and she stepped back to avoid him. The accused then took hold of VALVANO and forced her up against a bookshelf in his office before groping VALVANO’s left breast, digging his nails in. The accused groped VALVANO’s left breast with such force that it caused her shirt to become untucked. VALVANO could feel that the accused had an erection.

VALVANO said ‘Don’t touch me! Leave me alone!’ several times. BADARNE has told Police that he heard VALVANO say, ‘Don’t touch me! Leave me alone!’ several times.

The accused then used his left hand to grab VALVANO on the vagina, he grabbed with such force that one of his fingers penetrated her vagina. At the time VALVANO was wearing a skirt and G-string. The accused then removed his hand and put it to his nose, sniffing his fingers.

VALVANO stormed out of the room, retrieved her handbag from BADARNE’s office and ran out of the building. VALVANO left the location and did not report the matter to Police or disclose the offence to anyone out of fear and embarrassment.

BADARNE has told Police that prior to entering the accused’s office VALVANO was immaculately dressed. BADARNE witnessed the accused enter and ask VALVANO to massage his neck and she was hesitant but agreed. BADARNE states that shortly after the two entered the accused’s office he could hear VALVANO yelling ‘Don’t touch me, leave me alone’ numerous times as well as the sound of furniture being banged or moved around. BADARNE approached the accused door and attempted to open it but it could not be opened. BADARNE made as much noise as he could with the door handle and then went back to his office.

Seconds later, BADARNE observed VALVANO enter his office, grab her handbag and run out of the building. BADARNE saw that VALVANO’s hair was now all messed up and her shirt was now untucked. The accused made no comment about the incident but asked BADARNE to do him a favour and not speak with VALVANO, as she was a liar.

Following this incident the accused refused to allow BADARNE to act for VALVANO in relation to the Shellharbour TAFE matter, telling BADARNE ‘she is a liar, don’t believe her, don’t believe anything she says, she is nothing but trouble …’

VALVANO continued to attend STANIZZO’s practice in relation to her house, however she would telephone BADARNE first to ensure that BADARNE was present and she would not be left alone with the accused. During one of these phone calls in early August 2009, VALVANO spoke with BADARNE and disclosed both sexual assaults to him.

In early October 2009 VALVANO spoke again with BADARNE who agreed to provide a statement to police. VALVANO attended Wollongong Police Station on 8th October 2009 where she reported the alleged offences. VALVANO and BADARNE have provided statements to police in relation to the allegations.

On 16th July 2010 Detectives contacted the accused and questioned him about the allegations. He claimed that the allegations were ‘complete rubbish’ and that VALVANO was just trying to discredit him in relation to the upcoming civil court proceedings. He was given the opportunity to attend Wollongong Police Station and be formally interviewed in relation to the allegations but he refused.

BADARNE alleges that since the accused has been made aware of the police investigation he has contacted him on several occasions requesting BADARNE provide him with an affidavit or statement regarding the alleged offences, in particular that BADARNE never observed the accused make sexual advances toward VALVANO, that his office door was always open when VALVANO was in there and that BADARNE never heard anything occur inside the accused’s office. BADARNE declined the accused’s requests and has provided a second statement to police in relation to this.

Detectives subsequently applied for and were granted warrant 10/0469 under the Surveillance Devices Act 2007 entitling them to utilise listening devices to covertly record the telephone conversations between the accused and BADARNE. This warrant was granted by his honour Mr Justice HULME of the Supreme Court of NSW on 26th October 2010.”

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

Mr Badarne: “It’s the opposite of what I saw or heard…you ask her to give you the massage…But if I sign this, that is not the truth…so what, I should sign this regardless of…what I saw and witnessed?”

Mr Stanizzo: “…that’s what I remember.”

Mr Badarne: “[contrary to what was in the statutory declaration] rooms are not soundproof.”

Mr Stanizzo: “Are you going to sign this…I’m not insisting. But I will be pleased if you would sign it…Who’s going to know…what happened here? Except you and me. I say…it did not happen. She says different…if there’s not, your statement is not any use to me, what’s the use of having the statement?”

Mr Badarne: “These things are false and I cannot approve them. This, stat dec is false man, because when people lie…”.

Mr Stanizzo: “Listen to this. You know, we’ve been friends for a long time and we work, work every day, so what exactly is it that you want to change and I’ll, I’ll give you the money to, you, you know. I’ll give you the money, I’m telling you otherwise you wouldn’t be here…as men…let’s try to work this out. Tell me what you want changed and we change it and yeah, I’ll give you the money. Come on.”

Mr Badarne: “If you accept my changes you’ll give me the money?”

Mr Stanizzo: “Well depends what they are…Muhammad, before you go…you prepare a statement, all right. But…it looks very bad for me…I’m a victim here…I, I, I, I risk going to gaol. I, I risk being struck off. Look that’s the risk there…I haven’t done anything wrong…juries can get things wrong…innocent people end up in gaol.”

44. Mr Stanizzo was arrested later the same day.

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

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

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

“On 1st July 2013, the trial commenced at Downing Centre District Court. The matter commenced with a voir dire relating to the admissibility of the material obtained using the Listening Device on 2nd, 3rd and 4th November 2010. This voir dire was set down for a week with the final result being that the material from 2nd and 3rd November 2010 was inadmissible however the material from 4th November 2010 was admissible with some amendments made. A jury was subsequently empanelled and trial commenced. Vivian Valvano commenced her evidence and was in the witness box for over a week giving evidence in chief. Cross-examination commenced during which the defence provided documentation from Bluestone Mortgages, the company involved in the civil matter between Stanizzo and Valvano.

As a result of the production of this material the Crown requested the author seek to obtain records from Bluestone regarding calls made by Valvano to Bluestone. Police obtained under subpoena voice recordings of calls made by Valvano on 19th September 2008 (date of first alleged sexual assault). These recordings revealed that Valvano had the cheque from Stanizzo at 3.48pm that date. In a statement obtained from her at prior date Valvano had told Police that she attended Stanizzo’s office approx. 5pm that date and attended his home as he refused to give her the cheque if she refused. As a result of the obvious discrepancy existed. The defence was put on notice at the first opportunity and as a result the recordings were played to Valvano during her cross-examination. Valvano refused to accept it and claimed the version she provided to police was correct, not the recording.

Severe credibility issues arose in relation to Valvano’s evidence and a decision made by the Crown to seek permission to withdraw all charges against Stanizzo relating to Valvano. This was granted by the Director and all charges relating to Valvano were withdrawn several days later.”

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

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

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

Oral evidence

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

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

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

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

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

55. It is convenient to deal with this case first.

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

Absence of reasonable and probable cause

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

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

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

“Murdock had therefore serious doubts as to [Valvano’s] credibility, bona fides and motive (financial gain) from the outset – he realised the likelihood that she was lying out of malicious motives towards Stanizzo.”

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

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

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

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

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

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

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

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

“amounted to an encouragement to Badarne and [Valvano] to continue to collude in making complaints, which in the case of each he must have known might well be malicious and false, see above, against Stanizzo.”

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

“An inference arises of improper purpose on Murdock’s part, a desire to make a case against Stanizzo to justify arrest without fair chance for him to respond, knowing that [Valvano] and Badarne would collude in supplying material to build that case, as well as the subjective and objective absence of reasonable and probable cause to prosecute.”

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

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

“Investigators believe this ongoing civil issue may be a motive for the report. It will be explained to the VIC that at no time will police waste any time or resources on investigating this allegation if it is solely for her leverage or gain in her civil case.”

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

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

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

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

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

“[57] There are three features of the present law to which attention should be drawn. First, because questions of malicious prosecution can arise only where the prosecution has ended in the plaintiff's favour, the paradigm case to consider is where the plaintiff has been acquitted of the offence charged. (It is convenient to leave aside what other circumstances suffice to show that the prosecution has ended in the plaintiff's favour, and focus on the paradigm case of acquittal.) That acquittal is not to be controverted. The hypothesis for a subsequent action for malicious prosecution arising from such a case is, therefore, that the plaintiff was not guilty of the offence charged. But that alone does not entitle the plaintiff to a remedy against the prosecutor.

[58] Secondly, the inquiry about reasonable and probable cause has two aspects. That is, to decide whether the prosecutor did not have reasonable and probable cause for commencing or maintaining the prosecution, the material available to the prosecutor must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it? To ask only whether there was material available to the prosecutor which, assessed objectively, would have warranted commencement or maintenance of the prosecution would deny relief to the person acquitted of a crime prosecuted by a person who not only acted maliciously, but who is shown to have acted without forming the view that the material warranted prosecution of the offences. Conversely, to ask only what the prosecutor made of the material that he or she had available when deciding to commence or maintain the prosecution would favour the incompetent or careless prosecutor over the competent and careful.

[59] Thirdly, the action for malicious prosecution has a temporal dimension. To ask whether a prosecution was commenced or maintained without reasonable and probable cause directs attention to the state of affairs when the prosecution was commenced, or when the prosecutor (the defendant in the subsequent civil claim) is alleged to have maintained that prosecution. Moreover, it necessarily directs attention to what material the prosecutor had available for consideration when deciding whether to commence or maintain the prosecution, not whatever material may later have come to light.”

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

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

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

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

“[408] In my opinion, having regard to these matters, Detective Thomas could not have formed and therefore lacked an honest belief in Ms Beckett’s guilt. The evidence at its highest indicated in terms that the only two witnesses to the allegation did not themselves think that Ms Beckett was serious. Ms Ridgeway thought Ms Beckett was drunk. Mr Morris had never even met Ms Beckett before. Ms Ridgeway introduced Ms Beckett to Mr Morris on that night. He went along with her in disbelief. Mr Morris and Ms Ridgeway had a bit of a laugh about it after Ms Beckett left. In her evidence at the trial Ms Ridgeway even went as far as to say that ‘we thought it was funny’ and that she ‘didn’t think she was serious.’ In response to a suggestion by Ms Beckett’s counsel at her trial that she thought it was ‘quite hilarious’ Ms Ridgeway responded, ‘Yes, not many people walks up and offers my brother money like that.’ Ms Ridgeway agreed that she had had about six middies of beer by that stage of the evening. Mr Morris had drunk five schooners.

[409] At the time when these matters came to the notice of Detective Thomas, he was an experienced detective and investigator with the New South Wales police. I am prepared to assume that he had investigated a large number of allegations of criminal conduct in that time. I am however, unable to accept that in 1989 in this State of Australia Detective Thomas could have formed an honest belief in Ms Beckett’s guilt of soliciting Mr Morris, a complete stranger to whom she had only been introduced that evening, to murder her husband in the course of a drunken conversation in a noisy RSL club in which neither Mr Morris nor his sister thought the offer was serious and said so, and which neither felt constrained to report to the police. It would surprise me to the point of astonishment if Detective Thomas had ever been presented with a more absurd complaint in the whole of his policing career to that point. It is difficult from my perspective to imagine a less credible or more unlikely set of facts upon which to base an honest belief in the guilt of anyone.”

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

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

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

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

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

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

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

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

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

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

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

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

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

84. Mr Stanizzo then made the following submission:

“Murdock’s Police Statement contains no explanation of why he selected these items to examine and ignored the remaining 99% of the materials. There is no analysis of the contents of the items he examined, and he is silent as to what consideration he gave to the propriety of continuing with the prosecution of the charges he had laid, in light of those items. There is no evidence that any other police officer, or officer of the DPP (Ms Rallis or other) or the Crown Prosecutor Mr Barr, ever examined any of those seized materials, either those selected by Murdock, or any of the remaining 99% of the materials. The inescapable conclusion and very strong inference is that Murdock decided to ignore or suppress the materials that were adverse to the prosecution case.

Proper consideration of such materials would have revealed that there was no reasonable and probable cause for the prosecution to continue.”

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

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

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

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

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

“The submissions and numerous dot points within the plaintiff’s submissions at [54] are premised on an acceptance of everything Mr Stanizzo says, which unrealistically elevates the role of DSC Murdock to someone who must determine the truth of peripheral matters, and are made with hindsight reasoning. Ultimately, each of the matters raised by Mr Stanizzo at [54] are matters that might have been put to Ms Valvano and/or Mr Badarne during cross-examination in an attempt to undermine the credibility of their evidence, the acceptance of which was quintessentially a matter for a jury. It was not possible, nor was it appropriate, for DSC Murdock to determine where the truth lay in respect of each of those matters. None of the matters referred to positively disproved the substance of Ms Valvano’s allegations and in any event they are all confined to only one of the various incidents alleged against Mr Stanizzo. The plaintiff’s submissions to the contrary ought be rejected.”

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

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

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

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

• She was moderately depressed, somewhat anxious, but not overly irritable at the time of interview.

• Her affect was a little distant initially, but she warmed as time went on. Her affect was never incongruent.

• She was focused in thought on the problems detailed above, rather to the exclusion of more general matters of life. She had no disorder of the rate or form of her thought processes.

• She was not paranoid in attitude. She was not suffering delusions, hallucinations or other symptoms to suggest a psychotic disorder of mind.

• Her cognition was adequate for the purposes of interview.

…

Opinion

47. The case of Ms Fregnan (now fifty three years old) is unusually complex. Whilst the plaintiff undoubtedly suffers currently from a major depressive disorder (single episode, chronic, moderate intensity, non-psychotic) DSM-5 296.223, the disorder is complicated significantly by the co-existence of anxiety spectrum symptoms and trauma based symptoms (a matter to which I will return). Additionally, the plaintiff’s symptomatology which developed over a number of years will be demonstrated to be multi causal in origin, but with one specific and abiding stressor of particular note (to be addressed below).

48. It may be useful to consider Ms Fregnan’s developmental pathway, this being the background to her current psychological problems.

49. Ms Fregnan grew up in less than ideal circumstances. She had been a child when her father suffered a severe work injury which left him unemployed. The family lived in relative poverty. On recollection, her father was a strict person and quite restrictive in relation to the plaintiff’s social life. She twice suffered sexual abuse during her formative years (sexualised touching on two occasions by an elderly neighbour when she was approximately three years old, and attempts by a boy to involve her in oral sex during her mid-teenage years). On the other hand, the plaintiff did not give any history of any significant violence directed at her during her formative years, sexual abuse by her father, or abuse of alcohol and/or drugs within the family system.

50. On the information available to me, there is no clinical evidence of Ms Fregnan’s developing any recognisable psychiatric disorder during her formative years. I believe it can be accepted that she had sufficient emotional fortitude to overcome the negative aspects of her early life. However, the plaintiff’s innate psychological resilience would have been eroded to some extent, leaving her more vulnerable to stressors later in life.

51. Ms Fregnan had a number of unsatisfactory relationships, but her first relationship lasted for many years. There is no clinical evidence which suggests that the plaintiff was the prime reason for the break-up of the relationships. It appears more likely that the plaintiff’s partners were cruel, unsupportive, lacked loyalty and at least one of them had a significant problem with alcohol.

52. Despite the various relationship problems, Ms Fregnan appears to have been an adequate mother, and to have successfully maintained a home and where possible to have been involved in a working life. Assuming this to be the case, the plaintiff again had sufficient emotional fortitude to cope with the ongoing stressors which occurred in her life.

53. Ms Fregnan’s psychological decompensation only began at/around the time she became unwillingly involved with Mr Stanizzo, this being at a time when she was under intense financial pressure and unable to meet mortgage payments on her home.

54. I am relying solely on the history given by Ms Fregnan about the unusual pressures put upon her by Mr Stanizzo. This is not an entirely satisfactory situation, and I will be happy to consider information from other sources. However, the plaintiff advised that, from shortly after the initial meeting, Mr Stanizzo put her under intense pressure in a number of areas of her life, and with this pressure being a trigger which led to psychological decompensation with the development of her now chronic and pervasive mental health problems. However, it is to be underscored that there had been other stressors which added to and exacerbated her psychological problems (a matter to which I will return).

55. I have detailed Ms Fregnan’s contact with Mr Stanizzo in the body of this report. On this history given to me, Mr Stanizzo moved very rapidly to try to build an intimate rather than professional relationship with the plaintiff. My understanding is that Mr Stanizzo was a solicitor and the usual professional ethics should have applied.

56. Ms Fregnan said that Mr Stanizzo determined at their first meeting her then single status. He began to touch her (without permission) and he invited her to lunch (where he treated her as if she was his intimate partner). In the period which followed, Mr Stanizzo advised a number of financial matters which she failed to understand, and which turned out to be disastrous from her point of view (leading ultimately to the loss of her home). The plaintiff said that she did not understand the recommendations made by Mr Stanizzo, but nevertheless went ahead with his directions, including the signing of various legal documents.

57. The plaintiff noted that concurrent with the various transactions, Mr Stanizzo pressed her to go on a date with him. He is said to have touched her in his office (without permission) and he asked her to massage his neck. Mr Stanizzo pushed her to begin a sexual relationship with him. She refused his sexual advances on numerous occasions. The plaintiff went on to note that Mr Stanizzo assaulted her sexually at his home on 19 September 2008, forcing digital penetration of her vagina at the time. The plaintiff noted a second sexual assault on 25 May 2009 which occurred at his office. On that occasion he again forced digital penetration. The plaintiff found the actions of Mr Stanizzo to have been highly traumatic from a psychological point of view.

58. Ms Fregnan advised that towards the end of the period of contact with Mr Stanizzo, and when she went to Police (October/November 2010), Mr Stanizzo made serious threats on her life, particularly threats that she would be drowned in unusual circumstances.

59. As stated already, Ms Fregnan began to develop substantive psychological symptoms during the period of her contact with Mr Stanizzo and with the onset of symptoms probably during 2008, but with worsening symptoms at about the time of the District Court hearing which involved Mr Stanizzo. I believe the hearing was in the early months of 2013. The plaintiff faced a protracted cross examination at the time. She found herself no longer to be able to think or reason with any degree of clarity and felt herself to be ‘zombie like’ at the time. The plaintiff is aware that she did not have sufficient memory function at the time on which to base reliable answers to questions.

60. Ms Fregnan developed a broad group of depression spectrum symptoms (with co-existing anxiety spectrum and post trauma symptoms) from approximately 2008. The plaintiff suffered an increasingly anhedonic mood state (reactive largely to the actions/threats of Mr Stanizzo), she had a constant sense of fear, she lost her former capacity to articulate, she was without sex drive and had a fear of intimacy. Additionally, the plaintiff no longer felt attractive and thought she had aged prematurely, she had difficulties with sleep (with shock like experiences in the course of the night, and recurrent nightmares (linked to Mr Stanizzo), she lost trust in her capacity to be a mother, she was increasingly avoidant in her behaviour (preferring to remain at home) and she became excessively vigilant (with a tendency to overreact to unexpected sounds). The plaintiff said also that she was increasingly worried by financial matters, and she was troubled by impaired cognition (confusion, memory difficulties, loss of mental focus, reduced attention span, a sense that all mental tasks had become difficult). She also had developed physical problems (including dark bags beneath her eyes, chronic fatigue, pain within her chest, worsening arthritis).

61. On the history there has been no change in Ms Fregnan’s pattern of symptoms. The plaintiff became nihilistic in 2011 and had passing suicidal thoughts. She was admitted as an involuntary patient, to the Mental Health Unit at Shellharbour Hospital where a complex diagnosis of post-traumatic stress disorder/depression/cluster B personality disturbance was made.

62. For purposes of verification, Ms Fregnan has over a long period of time met criterion A(1) for major depressive disorder (depressed mood most of the day, nearly every day); criterion A(2) (diminished pleasure/interest in life activities); criterion A(4) (impaired pattern of sleep); criterion A(6) (unusual fatigue); criterion A(7) (feelings of worthlessness); criterion A(8) (subjective cognitive impairment); criterion (9) (nihilistic and occasional suicidal thinking); criterion B (symptoms cause clinically significant distress/impairment across numerous domains of life); criterion C (symptoms are not due to the physiological effects of a substance, or secondary to another medical condition); criterion D (exclusion of primary psychotic disorder); criterion E (exclusion of manic/hypomanic disorder).

63. Additionally, Ms Fregnan has co-existing anxiety spectrum symptoms (particularly fear of being hurt by way of retaliation, a fear that she is not a good enough mother, and fear relating to her financial status). Also to be noted are the plaintiff’s trauma related symptoms (heightened vigilance, overreaction to unexpected sounds, nightmares, daytime flashbacks, ruminations). I do not believe the plaintiff has the full spectrum of symptoms required to reach threshold for a diagnosis of either generalised anxiety disorder or post-traumatic stress disorder.

64. The causal pathway leading to Ms Fregnan’s mental health problems is clear. The plaintiff probably suffered erosion of her psychological resilience secondary to adverse factors during her formative years. The plaintiff first became symptomatic during the period of her interaction with Mr Stanizzo, both as a consequence of the pressures he placed on her in relation to financial matters, but also importantly as a consequence of the two sexual assaults as described by her. The plaintiff has remained symptomatic since then. I accept that other stressors are likely to be adding to her current mental burden, these including issues within the family, ongoing financial pressure, and her deteriorating physical health status. Proportioning diagnostic weight is always difficult. On my analysis of the plaintiff’s case, the two sexual assaults perpetrated by Mr Stanizzo appear to be of greatest importance, particularly noting that she did not consent in any manner to his advances, and that she was already under significant pressure from him.

65. Personnel making entries in Ms Fregnan’s clinical notes at Shellharbour Hospital in 2011 have raised the possibility that the plaintiff suffers either from a cluster B personality disturbance or a borderline personality disorder. I am unable to state, on the basis of two consultations with the plaintiff, and in the context of her current psychiatric disorder, whether or not she has any longstanding disturbance of personality dysfunction. There was nothing in her history or presentation which could lead me currently to state that she has either a disturbance of personality trait function, or a diagnosable personality disorder.

66. Ms Fregnan has significant unmet treatment needs. The plaintiff has the intelligence and verbal capacity to cope with a psychotherapy (this being the preferred method of treatment). However it is late in the cycle of illness and this will militate against change. In my opinion the plaintiff should embark on a psychotherapy of approximately fifty consultations to be delivered over a period not exceeding eighteen months, and based on psychodynamic and cognitive/behavioural principles. Treatment should be delivered by a psychiatrist or clinical psychologist. It would encompass a controlled catharsis, psychoeducation, grief work (relating to her losses in recent years), and the optimising of her coping mechanisms. Additionally, the plaintiff will require monthly follow up in the year after conclusion of formal therapy, and second monthly follow up thereafter until the symptoms are significantly reduced (if this is possible).

67. Additionally, Ms Fregnan should be medicated with a modern antidepressant agent, minimally for one year and probably on an indefinite basis.

68. The current Government recommended fee for a consultation with a psychiatrist of 45 minutes duration or longer is $183.65. The current Australian Medical Association (AMA) recommended fee for the same service is $335.00. A clinical psychologist may charge minimally less.

69. A reasonable monthly costing for medication with a modern antidepressant agent will be in the range of $50.00 - 100.00, accepting Pharmaceutical Benefits Scheme (PBS) pricing and allowing for the drug chosen and the treatment regime.

70. In the absence of treatment, Ms Fregnan will remain much as she is now. She will effectively be dysfunction in most areas of her life. Her prognosis will be poor. However with treatment the plaintiff should make slow but useful gains. Her prognosis will be for improvement, but it will remain uncertain.

71. There is one additional matter which I think needs to be raised. Ms Fregnan has suffered significant cognitive impairment over a long period of time, in keeping with the diagnosis of major depressive disorder. It is highly likely that the plaintiff was in this state at the time of the court hearing. With respect, I doubt that she would, at the time, have had the capacity to cope with a long cross examination. More particularly, the plaintiff would have experienced difficulties in holding questions in her mind, marshalling relevant thoughts, calling on memory, and providing relevant and proper answers. I am not sure also whether the plaintiff would have retained capacity to instruct her legal advisors at the time, given her chronic and pervasive depression spectrum symptoms with co-existing anxiety spectrum symptoms and trauma related symptoms.

72. Finally, it is always wise in the medico-legal setting to try and determine whether the plaintiff has given a self-serving history or has feigned (malingered) symptoms. Whilst I note that Ms Fregnan was highly focused on events in the recent past, there was no indication of either of the above processes.”

282. Dr Phillips also gave the following evidence:

“Q. Your information from Ms Fregnan was, as at your consultation with her, that since the dates of the alleged incidents involving Mr Stanizzo, namely 2008 and 2009, she had been, for a period of three years, involved in a relationship with Mr Stevenson, which had broken up and involved discord and violence. Correct?

A. I believe that is correct.

Q. Do you not consider that that matter must have been a very powerful stressor and origin of any psychiatric or psychological condition that she was presenting with when she saw you in 2014?

HIS HONOUR: When you say, ‘Do you believe that it must have been’, I think, are you not only able to ask him on the balance of…I'll ask it.

Q. Doing the best you can, on the balance of probabilities, would you think that there was a relationship between those events as described, and the condition with which she presented at about that time?

A. Your Honour, I think we have to look at this is proper chronology. If I could step back a little, I had noted in that first report and subsequent reports, that there was a steady worsening in Ms Fregnan's mental state, beginning 2008. And she already had, in my view, an established group of symptoms which reflected three; one diagnosis and two sub diagnoses. The primary diagnosis being major depressive disorder, and there was coexisting anxiety spectrum symptoms and trauma induced symptoms. I accept what you've stated, that it is likely that there were additional stressors circa 2011, involving Mr Stevenson, and perhaps other matters as well. And they would have added in some measure to the process which was already established. But it's critical from my point of view to make the point that there were earlier symptoms which in my view, are sufficient to make the diagnostic formulation which I have.

…

ROLLINSON: Did Ms Fregnan tell you that she had been assaulted by her partner?

A. I don't recall so, but again I make the point, it was 2014; and I make a second point, that if she did, it would have been a matter of significance to me, and it would have been in my primary notes, and transposed into my report.”

283. The cross-examination continued:

“Q. All right.  You note that history in formative years as related to you and then at paragraph 51 you state that she has had a number of unsatisfactory relationships but the first one, and that's a reference to the marriage I take, it had lasted for many years?

A.  Yes.

Q.  And made some remarks as to the nature of the partners in question, that they were cruel and unsupportive et cetera?

A.  Yes.

Q.  Then you proceed to conclude at paragraph 52 ‘that she’, Ms Fregnan, ‘had sufficient emotional fortitude to cope with the ongoing stressors which occurred in her life,’ it's the case though isn't it doctor that you had not been given in any detail by Ms Fregnan the details of her interactions with each of these persons with whom she had had relationships?

A.  No we're talking about two different things here if I could try and disentangle it.  Firstly the formative years and I'm quite happy to use the cut‑off point of 19 years, there is no evidence available to me that Ms Fregnan despite the problems of her childhood and early life developed any diagnosable psychiatric disorder at the time, but, very importantly, there would have been erosion of her psychological resilience.  No person can resist these matters over a period of years.  The difference is there was no overt psychological disturbance.  The psychological disturbance came later and that's where in my view the issue of multiple factors needs to be taken into consideration and I'm not I would not move away from that.  The most important in my view being what appears to be a history of sexual abuse by Mr Stanizzo.

Q.  But have you not leapt to a conclusion here that the what you describe as the de‑compensation only has its origin subsequent to the alleged events involving Mr Stanizzo?

A.  I think it's right, it refers to that at about that time yes.

Q.  Yes but that is based isn't it entirely upon a conclusion that Ms Fregnan has more or less a clean bill of psychiatric health prior to the dates of these incidents doesn't it?

…

Q. Are you able to answer it doctor?

A. I think if you read, if you read my words carefully I'm referring to there was no evidence of overt psychiatric disorder during her formative years. My, on the history which I had available to me I believed that her psychological decompensation, the slippery slope if you like, began circa 2008 and continued thereafter. The exact sequence following 2008 as I understand it has been documented in that first report.”

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

“In consequence of the two sexual assaults perpetrated by Stanizzo on me, I suffered loss and damage, on the following basis.

Psychological Harm

I have suffered extensive long-term psychological harm.

Vincent Stanizzo destroyed my psychological well-being and created continual intense fear and helplessness. Stanizzo forced unwanted sexual attention causing me deep depression, and panic attacks followed by post-traumatic stress disorder. This also created loss of sexual desire. Due to Stanizzo’s abuse I live my life with chronic hyperarousal state and difficulty sleeping.

Stanizzo caused humiliation and embarrassment and punished me. He always tried to control every situation. I was suffering in silence and very scared. I felt that I had no choice and I was walking on eggshells.

Stanizzo made my life a living hell. Each day was filled with crippling fear that Stanizzo will find me for exposing him to the police.

It all started in his office requesting me to sign many documents under duress. I always felt that I had to tread lightly around him, and I never knew what to expect from one day to another. Stanizzo had created a situation of extreme fear that I would be losing my house. The onset of PTSD took over my life, interfering with my nursing studies and home duties.

I became withdrawn and disinterested in life and had even contemplated suicide. Stanizzo turned my life upside down. I was living in fear because Stanizzo threatened to put me in the ocean with concrete legs. Stanizzo created so much fear that I began having nightmares and flash backs and dreams of Stanizzo coming at me with a knife and then awaking with a panic attack.

Stanizzo instigated numerous court proceedings and dragged me through unnecessary court appearances.

He is known as a serial litigator. The distress took over my life. I feel that I have been violated … physically, mentally and emotionally. My children lost a mum because of all my court matters. My youngest child missed out on a mum. She was only four years old when this all started. The mental distress was so overwhelming that I can no longer process information as I once did, and my youngest daughter has even stated that her mother comes across ‘as [disabled]’.

The extreme pressure and stress that Stanizzo was continually putting on to me, also caused me to be unable to devote all of the time that I would have needed to study effectively, also caused me to be unable to concentrate in the manner that I needed to, to be able to pass my Nursing Course at TAFE. The additional effect of Stanizzo’s ongoing manipulative operations of my personal affairs and myself was that I could no longer adequately cope psychologically with everyday life, nor always deal appropriately with other people, especially when things got heated or confrontational. In fact, the mental and emotional pressure got so much, that I was unable to finish my Practical Placement required in the Nursing Course at TAFE. This module was mandatory for being allowed to pass the Nursing Course at TAFE. Since I could not finish this module, I was disqualified from passing the entire Course.

Because of this entire affair, I now also suffer Post-Traumatic Stress Disorder (PTSD). I have difficulty concentrating, hypervigilance, processing information and impairment in social and occupational situations.”

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

3B Civil liability excluded from Act

(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows--

(a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person…

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

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

1. Humiliation.

2. Physical injuries to her bodies [sic] in consequence of the assaults perpetrated on her.

3. Psychological and emotional damage as a result of the assaults made by the defendant on her whilst he was in a position of trust as her solicitor.

4. Costs involved in the preparation of her case but not limited to expert medical reports.

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

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

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

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

Orders

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

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Amendments

30 April 2020 - Missing word in paragraph 6

Decision last updated: 30 April 2020