Supreme Court New South Wales Medium Neutral Citation: Flowers v State of New South Wales [2020] NSWSC 883 Hearing dates: 02 July 2020 Date of orders: 09 July 2020 Decision date: 09 July 2020 Jurisdiction: Common Law Before: Harrison J Decision: Applications for recusal and trial with a jury are dismissed. Catchwords: BIAS – apprehended bias – application for judge to disqualify himself PRACTICE – trial – trial by jury – whether trial by jury is in the "interests of justice" Legislation Cited: Supreme Court Act 1970 (NSW), s 85(2)(b) Cases Cited: Flowers v State of New South Wales [2020] NSWSC 526 Maroubra Rugby League Football Club Inc v Malor (2007) 69 NSWLR 496; [2007] NSWCA 39 Category: Procedural and other rulings Parties: Mark Stephen Flowers (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: A Williams (Defendant) Solicitors: McCabe Curwood (Defendant) File Number(s): 2019/117371 Publication restriction: Nil Judgment 1. HIS HONOUR: By notice of motion filed on 22 June 2020, Mr Flowers moves the Court for an order that I recuse myself "as having any authority to determine any issues of law or fact in these proceedings". That application is apparently supported by Mr Flowers' affidavit filed on 22 June 2020. 2. Unfortunately, Mr Flowers' affidavit does not contain any single piece of relevant evidence that is directed to the question of actual or apprehended bias on my part. Indeed, as presently advised, I have no idea what Mr Flowers contends in support of his desire that I remove myself from hearing any contested issue in his proceedings. 3. The basic test is whether a fair minded lay observer with knowledge of the material objective facts might reasonably apprehend that the judicial or administrative decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question at hand. Nothing contained in Mr Flowers' affidavit addresses this test. Moreover, when the matter came before me for argument, Mr Flowers sought orally to reproduce the matters referred to in his affidavit. I declined to permit him to do so. He declined my offer to make submissions that addressed the issue at hand. 4. In these circumstances I consider that Mr Flowers' application is misconceived and should be dismissed. 5. I indicated to Mr Flowers that, in the event that I declined to recuse myself as requested by him, I would return to the question of whether he was entitled to have his case determined by a jury. That issue remains current having regard to what I said in Flowers v State of New South Wales [2020] NSWSC 526 at [17] as follows: "[17] In the nature of things, having regard to his fundamental proposition that s 85 is invalid and of no force or effect, Mr Flowers did not address this issue. It will be apparent that I consider that s 85 operates and applies in the present circumstances to govern the question of the mode of trial. If Mr Flowers wished to contend, despite his so-called 'jurisdictional' point, that his case warranted trial by jury, because it was in the interests of justice to depart from the usual mode of trial, he should of course be given an opportunity to do so. In the circumstances, given the way in which Mr Flowers approached the matter, I will direct him within 21 days, if so advised, to furnish me with written submissions not exceeding five pages, setting out the reasons why, in his opinion, the interests of justice in this case lead to the conclusion that a jury should determine whether he can demonstrate that he was prosecuted without reasonable and probable cause and maliciously and if so, the quantum of any damages to which he is entitled." 1. In accordance with my direction, Mr Flowers provided me with written submissions dated 3 June 2020, which I take to be directed to the question of whether I could be satisfied "that the interests of justice require a trial by jury in the proceedings": see s 85(2)(b) of the Supreme Court Act 1970. By reason of the fact that trial by jury has shown itself in the course of these proceedings so far to be a matter of paramount importance to Mr Flowers, it seems to me that, despite their length, his submissions should be reproduced in full, in order to obviate or eliminate the possibility of any misunderstanding of his position on this issue. They are as follows: "2. Trial by Jury is in the Interest of Justice in this case, Attempted murder of the plaintiff for blowing the whistle! There has been an attempt on the plaintiffs life by an assailant 'believed' directly linked to this case. Whilst his honour made mention on the 8/5/20 with regard to this violent life threatening attack on the plaintiff. His honour has not acknowledged that he and the Supreme Court of NSW was furnished a Special Circumstances document filed on the 13/8/19. This document made it quite clear the plaintiffs life was at risk of NSW Police reprisal, in fact the it said at risk of being murdered by the NSW Police. 3. Trial by Jury is available if it is in the 'interest of justice' well it is and his honour is in possession of all the filed evidence that proves it so. 4. Trial by Jury is in the Interest of Justice in this case, It is wrong for his honour to say Mr Flowers has not complied with the act {on page 4 point 5 of judgment} or the rules with regard to Section 85 requisition for trial by jury, when his honour and the Supreme Court NSW have in there possession, A. the requisition for trial by jury 13/8/19 B. the application to fee waive 13/8/19 It is the fault of the Supreme Court to have taken 10 months to confirm what it already knows that being Mr Flowers is entitle to fee waive of the costs due to his homeless position and centrelink payment position. Mr Flowers has complied with the act and the rules to s 85. 5. Trial by Jury is in the Interest of Justice in this case, as this case does not just involve the proving of the reasonable and probable cause in the malicious prosecution specific to Bathurst matter. The plaintiff additionally relies the connecting historic evidence to be heard by a jury so as to prove the 'State denied pattern of abuse against the plaintiff' It very simple in this case a corrupt state NSW has been abusing the plaintiff for 15 years and it is proven in evidence before his honour. 6. Trial by Jury is in the Interest of Justice in this case, because his honour refuses to acknowledge the evidence filed original file 2018/348865 15th April 2019 large affidavit. It is no wonder his honour does so because the file has been closed without judgement to that specific evidence. That is an abuse of process by the Supreme Court of NSW to have closed the file of the main evidence in this case. The file should never of been closed in that fashion, the only portion of closure agreed to was the DISCOVERY SUMMONS commenced by plaintiffs former lawyers on 2018/348865. The state were allowed the 'discovery to end' as I had filed the 2018/348865 SOC and large affidavit. I agreed to his honour proposition that I could subpoena further discovery as the case progressed. I did not agree to file number 2018/348865 being closed, it is in the interest of justice to reopen the file and connect it to the 2019/117371 as it is all one file one case. 7. Trial by Jury is in the Interest of Justice in this case, because his honour has taken the word of the Bar association and Law Society to be gospel in this case and 'the plaintiff's un legally trained position' to be unworthy of fact structure or accuracy, when in fact the evidence speaks for itself and damns the state. When your honour questioned Mr Williams 'state fishing expedition' re the plaintiffs further and better particulars supply of answers to the 53 state questions. In regard to whether the plaintiff had answered the 'state fishing expedition' Mr Williams said no your honour in fact its muddied the waters further. How could the state of NSW via there state employee Mr Williams judge the plaintiffs answers to the 53 questions, and give opinion to the state appointed judge, saying there was no benefit in the answers provided by the plaintiff to help the court. I MEAN WOULD MR WILLIAMS SAY, MR FLOWERS HAS NAILED US AND NOW WERE SUNK AND POLICE OFFICERS WILL GO TO GAIL! It is neither the state judge or the state lawyers position to judge the answers to evidence before Statement Of Claim is accepted. The evidence provided in those answers will stand the test. The state fears trial by jury in this case. At the moment its just state bullying to hide a state conspiracy. A very serious conspiracy! 8. Trial by Jury is in the Interest of Justice in this case, because the state via the Supreme Court of NSW has bullied and pressured the position of the current Statement of Claim filed on 15/11/19. And in doing so have in effect weeded out the evidence that the State of NSW cant defend. All parties are here by on notice the most damning historic evidence and the human rights violations the major connecting evidence 'has been re submitted' to the 15/11/19 SOC and a further amended SOC is in stream! This state nsw bullying will not be stood for any further, the state will now need to provide further defence to the previous torture evidence and the human rights violations evidence that had been 'bullied out of the self litigants claim' by state influence. Further all of the defendants have now been named on the SOC. 9. Trial by Jury is in the Interest of Justice in this case, State of NSW failed to provide full discovery of NSW Police full file of the plaintiff! 10. Trial by Jury is in the Interest of Justice in this case, The Supreme Court of NSW via his honour ordered the plaintiff to attend pro bono meetings to assist the court. The Bar Association and the Law Society all of the State of NSW, REFUSED TO HELP THE PLAINTIFF to draft SOC, even with the orders of his honour. The plaintiff could not even hire a lawyer in NSW to just draft the SOC in acceptable form. The plaintiff has been denied legal representation such is the level of corruption through the Judicial and the legal fraternity NSW. That's why a jury is needed. The state is currently judging it self! That's not acceptable. 11. Trial by Jury is in the Interest of Justice in this case, This Supreme Court process has shown no fairness to this plaintiff, for his honour to remind this plaintiff that his SOC was hanging by a thread and that his honour intervened asked that further and better particulars be sought to help save the SOC. When the real problem was simply State of NSW systemic corruption in action through out the NSW Police and the judicial to thwart the plaintiffs claim, that's why a jury is needed. This case could prove a PURE CORRUPT DENIAL OF JUSTICE and in the Supreme Court NSW. And all parties knew Mr Flowers had suffered injury previously PTSD life long at the hands of NSW Police. And with all the accurate evidence on file, this case can only be trial by jury lest the Supreme Court be brought into disrepute along with the State of NSW. 12. Trial by Jury is in the Interest of Justice in this case, On the 13/8/19 your honour was furnished with the Apprehension of bias document filed in the Supreme Court of NSW. It additionally explains the reality of the plaintiffs major concerns of the State judging the State. 13. Trial by Jury is in the Interest of Justice in this case, The ordered mediation sought by Mr Williams was a farce and a waste of public funds there was no intent to mediate and no intent to settle by the state. As the state had bullied the plaintiff to the 15/11/19 SOC position, where by the plaintiffs historic connecting evidence of state torture and human rights violations had been removed to the satisfaction of the state, that's why trial by jury is needed. Further the defendants names had been suppressed NO LONGER WILL THEY BE this meant the state had achieved its goal of the defending the case it wants to defend and that will not be allowed to continue! My evidence will stand the test and will not be watered down for the state. I will refile the 2nd {hopefully last} Further amended SOC, it is already at the Supreme Court email filing, as soon as sealed I will forward copy to all parities, in fairness see attached copy unsealed version THE SOC with the Human rights violations and the torture evidence that I will rely on. Also to assist in fairness the front page and from page 20 point 63 has additional torture evidence and human rights breach evidence. 14. Mediation opportunity is possible though not in that format again, and with actual torture and human rights breaches in evidence leading to the current malicious prosecution pattern of abuse towards plaintiff acknowledged." 1. These proceedings are brought by Mr Flowers seeking damages for malicious prosecution. I have elsewhere referred to and described the circumstances out of which Mr Flowers' allegations are said to arise. They are unremarkable in the scheme of similar claims by others in this Court. The interests of justice do not require that a jury determine them. "The standard required by s 85(2)(b) is high and absolute, namely that the judge must be satisfied that the interests of justice require trial by jury in the instant proceedings": Maroubra Rugby League Football Club Inc v Malor (2007) 69 NSWLR 496; [2007] NSWCA 39 at [32]. I am not so satisfied. 2. In forming that view, I have had regard to Mr Flowers' submissions, which are regrettably discursive and unfocussed. I have been unable to detect anywhere in those submissions any reasonable basis for a conclusion that the interests of justice require a jury trial in this case. I have also, out of deference to Mr Flowers' enthusiasm, endeavoured to look beyond his submissions for some possible basis for concluding that the interests of justice do require trial by jury here, even though not specifically mentioned by Mr Flowers. I have been unable to find anything that might qualify. 3. In the circumstances, I decline to order under s 85(2) of the Supreme Court Act 1970 that these proceedings are to be tried with a jury. I will direct that the proceedings be listed before the Registrar for further directions on 15 July 2020 in anticipation that the parties are now or will by then be ready to approach the List Manager for the allocation of a hearing date. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 July 2020