Stanizzo v Fregnan

[2021] NSWCA 195

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Stanizzo v Fregnan; Stanizzo v Badarne; Stanizzo v State of New South Wales [2021] NSWCA 195

Hearing dates:

27-29 April 2021

Date of orders:

3 September 2021

Decision date:

03 September 2021

Before:

Payne JA; McCallum JA; Simpson AJA

Decision:

Stanizzo v Fregnan:

1.    Appeal dismissed with costs.

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

Stanizzo v Badarne:

1.    Appeal dismissed with costs.

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

Stanizzo v State of New South Wales:

1.    Appeal dismissed with costs.

Catchwords:

TORTS — Trespass to the person — Battery — Sexual assault — where resolution of the issues depended on the assessment of the truthfulness of each party — no issue of principle

TORTS — Evidence — proof of a fact relied on by defendant

TORTS — Malicious prosecution — where defendant provided statement to police in connection with criminal investigation — whether defendant a prosecutor for purposes of the tort — whether defendant knowingly provided false information to a prosecuting authority

Legislation Cited:

Civil Liability Act 2002 (NSW), s 3B

Director of Public Prosecutions Act 1986 (NSW), s 9

Evidence Act 1995 (NSW), ss 136, 140

Law Reform (Vicarious Liability) Act 1988 (NSW), Pt 4

Oaths Act 1900 (NSW)

Supreme Court Act 1970 (NSW), s 75A

Surveillance Devices Act 2007 (NSW)

Cases Cited:

A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10

Clavel v Savage [2015] NSWCA 61

Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30

Crowley v Glissan (1905) 2 CLR 744; [1905] HCA 31

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63

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

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Lee v Lee; HSU v RACQ Insurance Ltd; Lee v RACQ Insurance Ltd (2019) 266 CLR 129; [2019] HCA 28

Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v Baden-Clay (2018) 258 CLR 308; [2018] HCA 35

Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679

State of New South Wales v Quirk [2012] NSWCA 216

Texts Cited:

Fleming, The Law of Torts, Law Book Company Information Services, 1998

Category:

Principal judgment

Parties:

Vincent Stanizzo (Appellant)
Karina Vivianna Fregnan (1st Respondent)
Muhammed Badarne (2nd Respondent)
State of New South Wales (3rd Respondent)

Representation:

Counsel:
N Hutley SC/M Rollinson (Appellant)
In person (1st Respondent)
A J Macauley (2nd Respondent)
N Newton/T Buterin (3rd Respondent)

Solicitors:
Oliveri Attorneys (Appellant)
Self-represented (1st Respondent)
Badarne Lawyers (2nd Respondent)
NSW Crown Solicitor (3rd Respondent)

File Number(s):

2020/151357

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Civil

Citation:

[2020] NSWSC 402

Date of Decision:

30 April 2020

Before:

Harrison J

File Number(s):

2012/129649
2014/92425
2016/296293

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 4 November 2010, the appellant, Mr Vincent Stanizzo, was charged with two counts of sexual assault and related offences alleged to have been committed against Ms Karina Fregnan, the respondent in the first of three concurrently heard appeals brought by the appellant. At the same time, he was charged with four counts of intimidation of Mr Muhammed Badarne, the respondent in the second of the three appeals. Ultimately, in respect of each set of charges, a nolle prosequi was entered.

Ms Fregnan brought claims in tort against Mr Stanizzo arising from the same alleged conduct as had founded the sexual assault and related charges. Ms Fregnan alleged that on 19 September 2008 Mr Stanizzo called her to ask that she come to his office so that he could give her a cheque in connection with a property deal into which the two had entered. She alleged that after she arrived at his office in the afternoon, he did not immediately give her the cheque but invited her to his home. She gave detailed evidence of a sexual assault which she said he then committed on her in his bedroom.

Ms Fregnan further alleged that on a separate occasion, on 25 May 2009, she attended Mr Stanizzo’s office. She alleged that Mr Stanizzo demanded that she perform a neck massage on him and that if she refused he would demand repayment of monies which he had paid on her behalf. She alleged that after she performed the massage he sexually assaulted her in his office. The criminal proceedings having terminated in his favour, Mr Stanizzo cross-claimed against Ms Fregnan for malicious prosecution. The primary judge found that both assaults had been committed, and gave judgment in Ms Fregnan’s favour for $135,000. Mr Stanizzo’s cross-claim for malicious prosecution was dismissed.

Mr Stanizzo also brought claims for malicious prosecution against Mr Badarne and against the State of NSW, the respondent to the third appeal. Both claims were dismissed. The primary judge found that Mr Badarne was not, for the purposes of the tort of malicious prosecution, a prosecutor. He found that the officers of the State responsible for the prosecutions had not been shown to have acted maliciously or without reasonable and probable cause.

Mr Stanizzo appealed against each decision. In respect of Ms Fregnan’s claim, he contended that tape recordings which were said to be of telephone calls made by Ms Fregnan on the afternoon of the first alleged assault demonstrated that her evidence was untruthful. The recordings, he said, showed that Ms Fregnan was in possession of the cheque by no later than 3.19 pm, contrary to her evidence that it was not until later, having been coerced back to Mr Stanizzo’s house by the promise of the cheque, that she eventually received it. In respect of the claims against Mr Badarne and the State, Mr Stanizzo argued that the primary judge erred in finding that Mr Badarne was not a prosecutor and that he did not act with malice, and in finding that the officers of the State responsible for investigating and prosecuting the charges acted with reasonable and probable cause and without malice.

The Court held (per Payne JA, McCallum JA and Simpson AJA):

Stanizzo v Fregnan

Assuming that the tape recordings are accepted as proving that by 3.19 pm on 19 September 2008, Ms Fregnan was in possession of the cheque, this does not significantly weaken her case, which was substantiated by other features in the evidence: at [141]. Ms Fregnan gave a detailed and broadly accurate description of Mr Stanizzo’s house: at [144]; and committed herself to a description of his anatomy: at [148]. In a recorded conversation between Mr Badarne and Mr Stanizzo, the latter indicated that Ms Fregnan had been to his house on the relevant occasion: at [145]. Apart from Mr Stanizzo’s evidence (which the primary judge did not believe), there was nothing to contradict Ms Fregnan’s account of the second sexual assault, which makes it more likely that the first incident also occurred: at [155]. Mr Stanizzo’s cross-examination supports Ms Fregnan’s assessment of his overbearing character, which explains her delay in reporting and her confusion about the instrument of coercion and the timing of her receipt of the cheque: at [156]-[157].

Stanizzo v Badarne

Mr Badarne was not a prosecutor. In respect of the sexual assault charges, on no view of Mr Badarne’s statement, could he be said to have instigated the criminal proceedings. His statement was no more than a supporting statement as to the events of which Ms Fregnan complained: at [232]. In respect of the intimidation charges, the evidence supported Mr Badarne’s allegations, such that he was not, by reason of deliberately malicious and false allegations, a prosecutor: at [247].

Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343; [1935] HCA 30 at 379, applied.

Stanizzo v The State of NSW

The investigating detective, Detective Murdock, approached Ms Fregnan’s allegations with considerable scepticism, and decided to lay charges only when he came into possession of objective evidence. Mr Stanizzo failed to show that Detective Murdock acted without reasonable and probable cause: at [305], [310]. Mr Stanizzo also failed to show malice, as it was not proved that Detective Murdock, the Crown Prosecutor Barr or the Crown’s instructing solicitor was actuated by any improper motive in, respectively, instigating and maintaining the prosecution: at [312].

Judgment

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

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

The proceedings

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

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

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

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

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

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

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

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

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

Background

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The first proceeding: Fregnan v Stanizzo

28. In her statement of claim Ms Fregnan alleged:

1. that, on 19 September 2008, after she had met Mr Stanizzo at his office for the purpose of obtaining legal advice and finalisation of the financial arrangements between them, she was “coerced” by him into accompanying him to his home, where he sexually assaulted her;

2. that, on 25 May 2009, Mr Stanizzo “coerced” her into his office, where he detained her and sexually assaulted her.

The evidence

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

1. 19 September 2008: Ms Fregnan’s account

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

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

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

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

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

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

“Look after me and you will get everything you want.”

She shouted at him that she was not going to have sex and demanded that he let her go.

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

37. She said that Mr Stanizzo then said:

“If you tell anyone I will put you in the ocean with concrete legs and withdraw the cheque just like I did with the other cheque a week ago.”

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

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

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

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

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

1. 25 May 2009: Ms Fregnan’s account

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

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

“I took a step back as I did not want him to hug me. Vince grabbed me and forced me into the bookshelf. I had my back up against the bookshelf and Vince was up against me. He then grabbed my left breast with his right hand, dug his fingers in and squeezed. This hurt and also caused my shirt to become untucked and hang out. As he did this I could feel that he had an erection as it pressing [sic] against my leg through his trousers.”

Ms Fregnan told Mr Stanizzo to leave her alone and not to touch her.

45. She then said in her statement:

“Vince was smiling and grabbed me in my groin area with his left hand. He did so with such force that one of his fingers went so straight into my vagina very roughly. I was only wearing a G-string under my skirt. Vince then removed his finger, put it to his nose and sniffed it, whilst still holding me against the bookshelf.”

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

1. 25 May 2009: Mr Badarne’s account

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

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

“Leave me alone, don’t touch me!”

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

“I walked to his office door and turned the door handle however it would not open cause Vince had earlier disabled it. He did that to stop me coming in the office as I have caught him in the office with other woman [sic] on other occasions. I shook the door and made a fair bit of noise before going back to my office.”

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

“Don’t talk to her she is a liar, don’t believe her, don’t believe anything she says, she is nothing by [sic] trouble, didn’t I tell you not to talk to her. If she wants you to act for her I have to authorise it and she has to see me.”

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

“That massage was bullshit, it was nothing to do with massages and his neck, it was an excuse, he grabbed me between the legs and put his finger there. That is not the first time that Vince has done it to me, do you remember when we used to go to lunches, me and Vince? And we never used to come back?”

According to Mr Badarne Ms Fregnan then said:

“We went to his house to discuss the matter (house), I needed to go to the toilet, he showed me the toilet, I went to the toilet, as soon as I went out of the toilet Vince was naked standing at the toilet door and grabbing me totally naked. He pinned me down to the bed and was on top of me, I struggled and released myself and thanks to God Vince did not lock the door this time and allowed me to go.”

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

“He was on top of me and I was struggling really hard and he knew that I meant it when I said no and released me and I left.”

1. Mr Stanizzo’s awareness of the allegations

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

1. 4 November 2010: a conversation between Mr Badarne and Mr Stanizzo

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

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

“I observed that if she, if he was busy on the phone, Valvano [Ms Fregnan] would take liberty to roam around the office without permission. In May last year Stanizzo was suffering from a pinched nerve in his lower neck and was in visible discomfort. Valvano, who happened to come to our office that day on that day, on noticing his discomfort offered to give him a neck massage, but Stanizzo declined her offer and told her that he was going to see his doctor for pain relief tablet [sic].”

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

“I mean, it’s a opposite of what I, I, I saw or heard. I mean, you ask her to give you the massage.”

Mr Stanizzo denied that and there ensued an argument between the two men about whether the massage of 25 May 2010 was initiated by Ms Fregnan or by Mr Stanizzo. Mr Stanizzo maintained that his recollection was as stated in the draft statutory declaration.

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

“… if Stanizzo had behaved inappropriately, I would have heard it because, as I have said or, our respective rooms are not soundproof.”

and said:

“And that’s the whole idea. That our rooms are not soundproof, and on that day she went to your room, man. And I heard things.”

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

“You know, the shoving and she said, ‘leave me alone’. And she just storm out. She go, even first, if you remember … she forgot her wallet. She forgot her bag and she came to my room and snatch it and I said, ‘what’s, what’s up’. She just snatch it and went. Do, do you remember? When you gave me the glass of, even you noticed that I was upset about the episode and under stress, and you gave me a glass of, of whiskey to loosen up.”

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

“No, no, no, no … mate, come on. That’s, you’re just, that, I would not allow her to touch me … no way.”

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

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

“Who, who, who’s … who’s going to know, you know, what happened here? except you and me. I, I, I say that it, it did not happen. She says different. And I know why she says different. If she was so concerned about being touched, whatever, she used to come here, even, even when I, after you left …

Why would she come here? Why would she come here if she was sexually assaulted? Why, why would she come here?”

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

“Not the price, but that’s a quid pro quo, the deal, isn’t it?”

63. Mr Stanizzo’s response was:

“Well, … you know, said, I’m, I’m not, I’m not making any promises to you. It just if you do it I, you know, I, I, I don’t want to buy the evidence. But that, that’s the, the way I remember it. That’s the way. What happened there is the way I remember it … .”

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

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

“[Mr Stanizzo]: What, what do you want me to do …

[Mr Badarne]: Amend it properly and I will do it and we’ll get over done with it.

[Mr Stanizzo]: Yeah, well, what …

[Mr Badarne]: I mean …

[Mr Stanizzo]: I, I ask you to amend it and you haven’t amend it

[Mr Badarne]: You don’t like the, my amendment.

[Mr Stanizzo]: Well because it’s nott [sic] true, that’s why.

[Mr Badarne]: Yeah, everything is like America, again. If you are not with, with me, you are against me. I’m, you know.

[Mr Stanizzo]: Muhammad …

[Mr Badarne]: Yes. Yes

[Mr Stanizzo]: … sign this.

[Mr Badarne]: How can I sign it, Vince? How can I sign it if I am not confident that the, even, it’s a true, how can I sign it?

[Mr Stanizzo]: It is true.”

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

“Listen to this. You know, we’ve been friends for a long time and we work, work every day, so what exactly is it that you want to change and I’ll, I’ll give you the money and forget about it O.K. I’ll give you the money to, you, you know. I’ll give you the money, I’m telling you, otherwise you wouldn’t be here.”

67. The following exchange then took place:

“[Mr Stanizzo]: Well, that’s right. Then, then, as men, let’s, let’s try to work this out. Tell me what you want changed and we change it and, yeah, I give you the money. Come on.

[Mr Badarne]: If you accept my changes you’ll give me the money?

[Mr Stanizzo]: Well, depends what they are. I will not accept this thing that I, I …

[Mr Badarne]: But that’s my statement. But … that is my statement.

[Mr Stanizzo]: But that is not true, that is not true. It is not true.”

Throughout the conversation Mr Stanizzo insisted that he had not behaved inappropriately towards Ms Fregnan.

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

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

1. Mr Stanizzo’s evidence

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

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

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

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

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

1. 19 September 2008: Mr Stanizzo’s evidence

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

“Total Advance - $240,000

Less deductions”

This may be taken to be the piece of paper on Mr Stanizzo’s desk to which Ms Fregnan referred in her 19 July 2013 statement. Seventeen deductions, with amounts, were itemised. The list showed that, after deductions, $134,518.07 remained to be paid to Permanent Custodians, subject to a further withholding of $10,000 “in reserve”. That was consistent with Mr Stanizzo’s evidence of what he said occurred in his office on the morning of 19 September 2008. Another document contained a photocopy of a cheque in the amount of $134,518.07 made out to Permanent Custodians, dated 19 September 2008 and signed in the name of Stanizzo. Underneath the depiction of the cheque, was a receipt also dated 19 September 2008, signed (so far as can be deciphered) in the name of Vivian Sgangarella-Valvano; the receipt said, simply:

“I received the above cheque”.

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

“To V. Stanizzo

I direct you to pay the sum of $134,518.07 to Permanent Custodians Ltd, out of the advance money and keep a further amount of $10,000 of acount [sic] of registration and strata plan and other expenses.”

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

1. 25 May 2009: Mr Stanizzo’s evidence

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

1. The 4 November 2010 surveillance device tape recording: Mr Stanizzo’s evidence

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

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

1. David Stanizzo’s evidence

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

1. Bluestone Mortgages: record of telephone calls 19 September 2008

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

• a document described as “electronic loan notes” for 19 September 2008 in relation to Ms Fregnan’s loan. That document purports to note three telephone conversations between Ms Fregnan and the Bluestone Mortgages representatives, as follows:

“3:19:24 Tenoai Latini:   mrs rg advd she wants to make lump sum pmt twds loan of over $100K but wants to redraw every mth to pay loan – I advd mrs we can reamortise loan but mrs didn’t want to so trf mrs to VL to discuss redrawn and faxed dd form to 0242753264 as mrs wants to give us new bank dets.

4:09:44 Stringer Narelle:   Mrs rang and wanted to find out about putting a chq for about $100k on loan and using to make DD for next 12 mths and have advised mrs to put request in writing with chq..

4:38:10 Vanhoff Fritz:   Spoke to Viviana, she has amount of $130k to deposit into the account. She does not want to make payments for the next 12 months, instead for us to take the money from their [sic]. Mrs not happy to deposit funds into the nominated ANZ account, and advsd her thats the only way to do it. mrs to speak to broker and get back to us.”

Under the name “Vanhoff Fritz” the word “incorrect” appears in parentheses. There is no explanation for this entry, and no explanation of what was incorrect.

• Two compact discs (marked Ex S5 and Ex S6), presented on the basis that they were tape recordings of the conversations summarised in the electronic notes above. In one, Ms Fregnan is recorded as reading to the Bluestone Mortgages operator details of the cheque Mr Stanizzo had given her, including the bank, the branch, the BSB and the account number.

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

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

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

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

Issues at trial

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

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

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

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

The primary judgment

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

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

“228   …the case effectively distils, but is not limited, to the determination of whether Mr Stanizzo assaulted Ms Valvano on one or other of the two occasions as she alleged or whether he did not.

229   Resolution of that issue depends largely, but not necessarily exclusively, upon whom between them is telling the truth. That in turn is to be assessed by reference to their evidence in particular as well as to the surrounding circumstances and documentary material. As is apparent, apart from Mr Badarne’s limited involvement with the events of 25 May 2009, there are no corroborating witnesses.”

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

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

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

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

95. His Honour then observed:

“233   There was other evidence to which Ms Valvano could have referred in aid of her own evidence that she was at Mr Stanizzo’s office at around 10 am on 19 September 2008.”

Since his Honour in the next paragraph (at [234]) said that it has always been Ms Fregnan’s contention that she did not attend Mr Stanizzo’s office in the morning of 19 September, and that she was in fact some distance away at Shellharbour, we are satisfied that, in [233], his Honour intended to say that there was other evidence to which Ms Fregnan could have referred in support of her own evidence that she was not at Mr Stanizzo’s office at around 10 am on 19 September.

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

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

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

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

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

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

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

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

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

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

“268   Having had the benefit of observing Ms Valvano both in court generally and whilst giving evidence in particular, I think that it is more likely that she is mistaken about when she received the cheque. Apart from the possibility that she is mistaken, there is nothing arising from the fact that she did not receive the cheque at the house that fundamentally contradicts her description of the assault taking place there as she describes. I consider that it is likely that Ms Valvano has become confused about her timing, but is telling the truth about the substance of the allegations. Even in evidence in this Court, Ms Valvano has never backed away from her allegations, which clearly continue to cause her a great deal of emotion.”

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

The cross-claim

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

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

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

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

Damages

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

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

The appeal

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

1. factual error on the part of the primary judge in accepting Ms Fregnan’s accounts of the two alleged sexual assaults;

2. error in failing to find that the criminal prosecution against Mr Stanizzo in 2013 was maliciously instigated by Ms Fregnan;

3. error (in one respect only) in the assessment of damages.

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

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

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

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

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

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

• Ms Fregnan insisted that she did not receive the cheque from Mr Stanizzo until after 5 pm and that she accompanied him to his home only because she was “coerced” to do so in order to receive the cheque, which he had, while in the office, shown her, but had not allowed her to retain; and

• the telephone call recordings demonstrated conclusively (so it was asserted) that Ms Fregnan was in possession of the cheque by no later than 3.19 pm on that day.

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

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

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

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

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

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

“Well, I understood that it was given to you [counsel] by Michael Barr, the Crown Prosecutor, who in turn had received it from Detective Murdock, who in turn had received it from a member of the staff of Bluestone.”

At this point the primary judge intervened and pointed out that, since Ms Fregnan was unrepresented and had challenged the provenance and authenticity of the tape recordings, it was necessary that they be proved strictly.

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

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

“All and any audio recordings and audio files of telephone calls or contact on tape or DVD in relation to loan number [the number of Ms Fregnan’s loan] with Vivianna Karina Sgangarella Valvano and Vincent Frances Stanizzo on 19 September 2008.”

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

“(a)   Electronic file notes of conversations between Vivian Valvano (also known as Karina Fregnan) and Bluestone Mortgages Pty Ltd; and

(b)   One disk containing audio files of recorded conversations between Vivian Valvano (also known as Karina Fregnan) and Bluestone Mortgages Pty Ltd.”

A v NSW was cited as authority for the proposition in the last sentence. Paragraphs [61]-[63] of the primary judgment were identified as containing the allegedly erroneous findings. No such finding is to be found in those paragraphs. In [61] the primary judge simply records that “the central theme” of Mr Stanizzo’s submissions was that Detective Murdock realised the likelihood that Ms Fregnan was lying out of a malicious motive towards Mr Stanizzo. His Honour said that he was unable to conclude that Detective Murdock had, or even should have had, any such realisation. That was simply a rejection of a factual proposition advanced on behalf of Mr Stanizzo – indeed, it is a rejection that disposed of a good part of the argument advanced on behalf of Mr Stanizzo. But it was not a finding that Detective Murdock was entitled to proceed unless he had an actual realisation that Ms Fregnan’s allegations were deliberately false, or had material that demonstrated that her allegations were inherently improbable or obviously false or was certain or confident that she was lying. Moreover, as [73] of A v NSW shows, it is not usually for a police officer to determine the credibility of a complainant or informant, or to embark on findings of fact about alleged offences. An objective analysis is what is required of a prosecutor such as a police officer who has no independent knowledge of the relevant fact but is dependent upon information supplied by a complainant or informant. In other words the reasoning wrongly attributed to the primary judge was not erroneous in any event.

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

“63   … However, reasonable and probable belief does not equate to certainty. Detective Murdock could not in my view have been certain or even confident that Ms Valvano’s allegations were false. He was entitled in the particular circumstances of this case, in the absence of material from which to conclude otherwise, [to form the opinion] that the allegations were true.” (italics added)

His Honour added that he was satisfied that Detective Murdock had formed that opinion and that the material before him was sufficient for him to have done so; and that Ms Fregnan’s allegations were neither inherently improbable nor obviously false. That was a finding that the subjective and objective aspects of the existence of reasonable and probable cause were established – and that Mr Stanizzo had failed to establish the contrary as he was required to do if he were to establish the four elements of the tort.

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

“The judge erred in finding that Murdock would have reasonable and probable cause to proceed unless he knew that Valvano had a collateral purpose of advancing her interests in the Civil Case against Stanizzo, and should have found that Murdock should have enquired as to the facts of the Civil Case and not proceeded if it was probable that she had such a purpose, which she did.” (bold in original)

Para [71] of the primary judgment is identified as the location of the “finding”.

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

“71   … Quite to the contrary, the extracted portion from the longer COPS entry indicates clearly that Detective Murdock was aware of the possibility that Ms Valvano may have had a collateral purpose in seeking to have Mr Stanizzo charged. That is an entirely different proposition to the suggestion that the allegations were false and that Detective Murdock must have known.”

These mischaracterisations make assessment of the grounds of appeal more difficult than it needs to be.

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

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

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

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

“On Friday, 16 July 2010 I contacted the accused by telephone and spoke with him.

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

The accused said, ‘Yes, I know Valvano.’

I said, ‘She is alleging that you sexually assaulted her on two occasions, at your house and at your office’.

The accused said, ‘That’s complete rubbish, she is just trying to discredit me and a woman called Gael Mcpherson [sic]. We have a civil matter currently before the Supreme Court. That’s complete rubbish’.

I said, ‘What I would like to do is formally interview you in relation to the allegations. Will you come into Wollongong Police Station to be interviewed?’

The accused said, ‘No’. The call ended.”

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

“Before he [Detective Murdock] arrested me I recall that he rang me in mid July 2010 and said words to the following effect:

‘I am Senior Detective Murdock from Wollongong Police. I have received a complaint from Vivian Valvano. Are you willing to come to the police station and talk about it?[‘]

He did not give me any particulars about the complaints nor did he say that I would be ‘formally interviewed’.

I said:

‘What for? She is a trouble maker and has made complaints to the Office of Legal Services Commissioner which have been dismissed. She complains about the Caveat that I refused to withdraw because I am entitled to have on the Title pursuant to certain Deeds she signed after she received independent legal advice from a solicitor of her choice. She is trying to put pressure on me and Gail [sic] Macpherson as a Supreme Court hearing is listed in November this year. She has redrawn on the mortgage loan contrary to the Deed and now she has come to you to see how far she can go to force me to withdraw the Caveat’.

He [Detective Murdock] said:

‘That’s what I want to hear.’

And the conversation ended. I did not hear or see Murdock again till the day of the arrest on 4 November 2010.”

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

“…And the way [Detective Murdock] set it out is false and is grossly misleading. And we would like to have the opportunity for Mr Murdock to be here instead of hiding on some sort of medical excuse that he’s had a nervous breakdown because of this case. I wonder why …

That’s what he’s done isn’t it, he’s applied …

He makes a statement … .”

Mr Stanizzo went on to say that, had Detective Murdock mentioned sexual assault, he would have consulted counsel with criminal experience and gone to the police station to see what sort of allegations were made.

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

“23.   The call is also crucial because it showed both absence of reasonable and probable cause and a bias against Stanizzo indicative of malice, at this point in the investigation.

23.1   Murdock deliberately did not tell Stanizzo what Valvano’s allegation actually was, this was concealed so that Stanizzo would not be on guard about future developments.

23.2   He did not mention that Badarne had made a Statement (7 November 2009). Had he done so Stanizzo would not have dealt with or talked to Badarne – contrary to Murdock’s intention.

23.3   He thereby deprived Stanizzo of the opportunity to answer the allegations of Valvano and Badarne before investigation proceeded any further. All was part of a deliberate scheme to try to entrap Stanizzo.”

These submissions, with their accusations as to Detective Murdock’s motivation, have not the slightest foundation in the evidence.

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

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

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

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

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

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

“On 1^st 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 2^nd, 3^rd and 4^th November 2010. … A jury was subsequently empanelled and trial commenced. Vivian VALVANO commenced her evidence and was in the witness box for over a week giving evidence in chief. Cross examination commenced during which the defence provided documentation from Bluestone Mortgages, the company involved in the civil matter between STANIZZO and VALVANO.

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

Severe credibility issues arose in relation to VALVANO’S evidence and a decision was made by the Crown to seek permission from the Director of Public Prosecutions to withdraw all charges against STANIZZO relating to VALVANO. …”

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

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

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

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

“About 9 am on Wednesday 9^th June 2010, Vivian VALVANO contacted the author. She stated that she had spoken with her barrister who is representing her in her civil case involving the POI, STANIZZO. She stated that she was advised by him that if STANIZZO was charged it would help her civil case and speed it up considerably.

The author advised VALVANO that he would not be acting in any way, shape or form simply to support her civil case. She was advised that further investigation was necessary and that investigators would be taking appropriate action (if any) at a time when the investigation has concluded and not when it suited her civil case.” (italics added)

Detective Murdock went on to note that an appointment had been made for Ms Fregnan to attend at the police station to discuss the matter further.

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

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

“However, in paragraph 26 she states ‘we had coffee at his place and discussed.’ It makes no mention whatsoever of the alleged sexual assault.”

301. Detective Murdock went on to record:

“It is the authors strong opinion that the VIC is simply using police to try and discredit the POI in the civil dispute. She will be contacted in the following week to organise a time for her to attend WGPS [Wollongong Police Station] to be spoken to at length regarding this matter.

Should she still wish to pursue the matter a statement will be obtained from her and the POI and WIT [witness] spoken to. As previously stated, there are no witnesses to the alleged sexual assault, no first complainant [sic-?? complaint], no DNA or physical evidence and no other evidence to support the VIC’s allegations.” (italics added)

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

“I left in disgust because of Mr Stanizzo’s approaches and indecency.”

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

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

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

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

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

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

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

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

Malice

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

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

313. This appeal is dismissed with costs.

314. Accordingly, the following orders are made:

Stanizzo v Fregnan:

1. Appeal dismissed with costs;

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

Stanizzo v Badarne:

1. Appeal dismissed with costs.

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

Stanizzo v State of New South Wales:

1. Appeal dismissed with costs.

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Amendments

03 September 2021 - Amendment to order2, Stanizzo v Fregnan

Decision last updated: 03 September 2021