Torts … Justice Ian Harrison throws out intimidating solicitor’s malicious prosecution case and awards damages to former client … Client sexually assaulted by her lawyer … Who to believe … Poisonous relationships … Unstructured and discursive submissions … Barrister at sea … Alan Zheng on the case
The “will they? won’t they?” tension is still there, but for the parties in this case, there is no romantic resolution, only anguish and 14 court decisions to show for it.
When Gerard Brennan delivered his oft-cited address on ethics in the legal profession in 1992, he noted the risk of reducing ethics into black letter rules. This, he said, could enliven spiritless compliance and skilful evasion. Let us hope Brennan does not stumble onto this case for it happens to have both in significant dollops.
At the core of this complication was an issue of malicious prosecution and a civil claim on a backdrop of serious criminal charges which were subsequently withdrawn.
The details were unsparingly spelled out in Fregnan v Stanizzo by Justice Ian Harrison.
Wollongong Solicitor Vincent Francis Stanizzo found himself in hot water. One of his clients, Vivian Valvano alleged that he committed serious crimes, including two instances of sexual assault and intimidation to go with it. Charges were duly laid.
The alleged assaults took place in September 2008 and May 2009. Valvano first reported them to the police in October 2009.
They had first met when Valvano was selling her property in 2008. When the sale fell through, Stanizzo offered to purchase half of it. It was after receiving a cheque from Stanizzo and while celebrating the sale of property at Stanizzo’s house that Valvano alleged the first sexual assault took place.
Afterwards, Stanizzo remained her lawyer on a commercial dispute. They continued corresponding, except now, the correspondence was laced with threats. Stanizzo apparently told Valvano:
“… you know what happens to people who open their mouths [and] if you tell anyone I will put you in the ocean with concrete legs and withdraw the cheque.”
The second alleged assault took place in Stanizzo’s office. This time, Stanizzo asked her to give him a massage and afterwards he allegedly assaulted her.
This time, another solicitor at the firm, a Muhammad Badarne, heard the assault take place and observed Valvano when she came out of the office. He heard Valvano say, “leave me alone; don’t touch me”.
On separate occasions, he witnessed Stanizzo holding and touching Valvano, who appeared uncomfortable and remarked “leave me alone”. She had also once asked “since when has a business transaction become a sexual transaction?”
Badarne handed these details to the police.
This unenviable narrative landed on the desk of Detective Senior Constable Murdock who noted at the time that there was sufficient evidence to put Stanizzo before the court, but “the prospect of conviction was low”.
Badarne refused several requests to sign an affidavit confirming Stanizzo side of the story.
“Can you make a statement saying that I made no sexual advances to Vivian and that the door was always open when I met her?” Stanizzo apparently asked.
These requests took a sharp turn soon after. Badarne told the police that Stanizzo had variously threatened to slice him with an axe, teach him a lesson, incapacitate him and make him regret the day he was born, among other dire warnings.
Police were subsequently granted a warrant and Badarne was fitted out with a wire
In a conversation between the men, the wire picked up Stanizzo offering Badarne money whilst requesting he sign a statutory declaration to deny Valvano’s claims.
Incapable of benign explanation, counsel for Stanizzo later conceded this evidence was “dynamite.”
Later that day, Stanizzo was arrested. Whilst initially pleading guilty to the less serious charges of indecent assault and intimidation, the plea was rapidly withdrawn because it had not been entered freely or voluntarily, Stanizzo suggested.
At trial, factual inconsistencies in Valvano’s account led the DPP to drop the charges. The main discrepancy was the time of day that Valvano was at Stanizzo’s house when the first assault occurred.
Valvano had originally told the Court that she was at the solicitor’s home at 5pm on that day but the defence produced documentation indicating Valvano had already acquired the cheque for the property sale from Stanizzo by 3:48PM.
This was also verified by evidence that she had made phone calls and indicated she had the cheque to a mortgage company around that time.
Stanizzo quickly went on the counterattack, instructing Charles Waterstreet and Michael Rollinson to commence proceedings under the tort of malicious prosecution against each of Valvano, Badarne and the State of New South Wales.
Valvano also kickstarted proceedings against Stanizzo claiming civil damages arising out of the assaults.
Justice Harrison dismissed Stanizzo’s claim in tort and found in favour of Valvano’s claim, awarding $135,000 in damages.
What became clear in the case, according to HH, was the “frankly poisonous state of the relationship” among the parties, as well as Stanizzo’s “contempt for the machinery of the State that prosecuted him”:
“So deeply do these enmities appear to extend that I am even cautious about adopting, if only and obviously for the sake of efficiency, any summary of the facts contained in any one party’s written submissions … there is no universally agreed position on almost any allegedly important matter of fact.”
Stanizzo’s case failed against the State for several reasons, largely attributable to speculative and unsubstantiated evidence which fell short of proving the requisite absence of reasonable and probable cause.
On occasion, HH noted Stanizzo’s submissions could not be related to the issue of reasonable and probable cause at all.
For his part, Stanizzo’s case theory was that Valvano and Badarne had both conspired to initiate the prosecution by making complaints and this was aided by the State because Detective Murdock failed to consider the malicious motives and defects in the credibility of the complaints.
Stanizzo pointed to initial records in the COPS system which noted Murdock’s concern that laying charges could satisfy Valvano if she had a collateral purpose at using it for leverage in an ongoing commercial dispute with the solicitor.
But the State argued these initial concerns could not be conflated with the genuine belief that arose as a result of a thorough investigation.
Stanizzo failed to establish that the prosecution was motivated by a purpose other than the proper invocation of criminal law, in part because he relied upon inferences drawn from Murdock’s conduct, when those inferences had already been rejected by the court.
The case against the State was dismissed with costs and his claim against Badarne met with a similar fate.
He said that Badarne had an ulterior motive for making allegations because of a complex history of events between the men including Badarne’s alleged misappropriation of client money, deception and collusion in the course of his employment as a solicitor at Stanizzo’s firm.
While the court accepted that such a motive could exist, accepting that the relationship between them had broken down, it nonetheless found that the motive was not established in fact.
Stanizzo’s submission was hindered significantly by the fact that Badarne was never the prosecutor for the purposes of the claim in tort.
Stanizzo could also not prove that Badarne’s complaints to the police were false especially where Badarne’s only contradictor was Stanizzo himself.
As for Stanizzo’s claim in tort against Valvano, the core of his argument was that Valvano’s allegations were false and suffered evidential flaws.
He emphasised that there was no corroborating witness to the assaults, there were errors in her description of the interior layout of his house and contradictions in her memory when Stanizzo provided the cheque.
These were bold assertions, HH found, and the way Stanizzo’s case was presented on this point was highly unusual and “somewhat curious, unstructured and discursive”.
In Valvano’s favour was the fact that she provided “intimate details of [Stanizzo’s] anatomy, a matter that, if incorrect, would have been fatal to her account without more.” As for the time the cheque was received, the Court found it more likely that Valvano was mistaken about when she received it.
Many of the issues alleged by Stanizzo were peripheral evidential details or matters readily explainable. For example, Valvano’s belated reporting to the police was put down to Stanizzo’s threats and intimidation.
HH observed that Stanizzo’s conduct in the witness box was reflective of an “intimidating personality” who “showed no apparent respect for a contrary or alternative point of view”.
It didn’t help Stanizzo’s case either that the cross-examination conducted by his counsel “centered on matters of no or only marginal significance” and contributed to the “mountain of (often scarcely helpful) documents”.
The court ultimately preferred Valvano’s evidence, finding that her accounts of the two sexual assaults were true under the civil standard of proof.
HH found that Stanizzo’s evidence – insofar as it related to any disputed issues of fact or documents of which he was the author – could not be accepted.
Numerous disadvantages had plagued Valvano in life who “grew up in less than ideal circumstances” and had a number of “cruel, unsupportive” partners, according to the treating doctor.
Those disadvantages did not stop there. The court noted that the conduct of the case was beyond her and worsened by the assistance of her initial barrister who “had no idea what he was doing.”
“Based simply upon my own observations and with apologies to William Shakespeare, it does not seem to me that Ms Valvano could actually be described as the feather in Fortune’s cap.”
Medical evidence was heard which indicated the onset of psychological symptoms, including major depressive disorder and anxiety following the two sexual assaults, although other stressors were adding to Valvano’s mental burden, according to the treating doctor.
The court awarded $120,000 in general damages and $15,000 for future treatment and medical expenses, with Stanizzo to cough up costs.
Stanizzo previously handed over $57,000 after breaching his duty of care by failing to lodge a caveat and causing consequential losses. He also had similarly bad luck in a defamation claim back in 2014.
A gripping story for horrifying times.