Flowers v State of New South Wales (No 2) [2021] NSWSC 318

Supreme Court New South Wales

Medium Neutral Citation: Flowers v State of New South Wales (No 2) [2021] NSWSC 318 Hearing dates: 22-26, 29 March 2021 Decision date: 29 March 2021 Jurisdiction: Common Law Before: Rothman J Decision: Leave is granted to issue subpoenas to the relevant persons from the Bathurst Police Station. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural rulings Parties: Mark Stephen Flowers (Plaintiff/Applicant) State of New South Wales (Defendant/Respondent) Representation: Counsel: Self Represented (Plaintiff/Applicant) A Williams (Defendant/Respondent)

Solicitors: Self Represented (Plaintiff/Applicant) McCabe Curwood (Defendant/Respondent) File Number(s): 2019/117371

EX TEMPORE Judgment 1. HIS HONOUR: On 15 March 2021, exactly one week before this case was listed for hearing, subpoenas were sought against a number of people that have been the subject of mention during the course of the proceedings today. Some of those persons were stationed at Bathurst Police Station. Today the applicant agitates once more for their attendance. 2. One of them was the prosecutor in the proceedings which have been impugned in these proceedings, and appeared, it seems, in the apprehended violence order application, such as it was, before the Court. That person, Sergeant Pearce, was not previously the subject of an application for subpoena, but has, as a result of the evidence of Constable Hughes, been added to the list sought by the applicant. 3. The applicant is self-represented. Notwithstanding the lateness of the application when it was first made, and that we are now past the eleventh hour in relation to these proceedings, which have gone for five days, the applicant renews his application for the issue of the subpoenas and leave pursuant to the provisions of r 7.3 of the Uniform Civil Procedure Rules 2005 (NSW). 4. Notwithstanding the strident submissions of the applicant, I am not satisfied from the material I currently have before me or anything else that has been adduced in the proceedings in the last five days that leave should be issued in relation to the former Commissioner of Police, Andrew Scipione; nor the former Commissioner of Corrective Services, Mr Woodham; nor the current Commissioner of Police, Mr Fuller; nor the Police Minister, Mr Elliott; nor the Commonwealth Attorney General, if he still be that, Mr Christian Porter. I have not seen anything that warrants that call, nor anything that would render their conduct relevant to the proceedings. 5. Mr Flowers also seeks to subpoena Hornsby police officers, in particular Sergeant Gilroy and Leading Senior Constable Warner, and an officer from Windsor Police, or formerly of Windsor Police, Constable Hynes. As I understand, the submission in relation to those three persons is that they were at the instigation of what Mr Flowers, the plaintiff in the proceedings, suggests is a perversion of the course of justice and/or a conspiracy against him. 6. The difficulty is that essentially the statement of claim in the proceedings seeks relief from malicious prosecution, and while it may be that the prosecutors, if there be more than one, in the proceedings may have had a motivation, it is their motivation and their subjective state of mind that is relevant to the proceedings. 7. I have not yet heard or seen any evidence or material that would suggest that whatever view Officers Warner, Gilroy and Hynes have about Mr Flowers was or could be relevant to the issuing of either the criminal prosecutions in Bathurst or the apprehended violence order for which the protected person or person said to be in need of protection was Mr Frost. 8. In the circumstances, leave is not granted in relation to those other persons who are sought to be subpoenaed. 9. Leave is granted in relation to those persons from the Bathurst Police Station previously outlined. 10. Further, it is said by Mr Flowers that he is impecunious and unable to afford conduct money, which essentially is required so that persons who are compelled to attend Court are not out of pocket in relation to that attendance. 11. I accept for present purposes, and only for present purposes, Mr Flowers' impecuniosity. As a consequence, I invited application that the evidence be adduced by audio visual link. Such an application was made by Mr Flowers and that application has been granted. Arrangements need to be made with the State of New South Wales for that to occur.