Flowers v State of New South Wales (No 4) [2021] NSWSC 453

Supreme Court New South Wales

Medium Neutral Citation: Flowers v State of New South Wales (No 4) [2021] NSWSC 453 Hearing dates: 22-26, 29 March, 14, 23, 27 and 28 April 2021 Decision date: 28 April 2021 Jurisdiction: Common Law Before: Rothman J Decision: Leave to subpoena either the Commissioner of Police or the former Commissioner of Police, or both, is refused. Matter to be finalised by written submissions. Catchwords: CIVIL PROCEDURE – application for adjournment to examine further witnesses – application for leave to serve subpoena – all applications refused. Cases Cited: Flowers v State of New South Wales (No 2) [2021] NSWSC 318 Flowers v State of New South Wales (No 3) [2021] NSWSC 418 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: Prior to the luncheon adjournment, the plaintiff applied for an adjournment for two purposes, the first being to assess the proceedings and the need to file any further documentation. The second was in relation to his capacity to deal with - do you wish to say something? 2. PLAINTIFF: Please, your Honour. 3. HIS HONOUR: Yes. 4. PLAINTIFF: Before your Honour gives any orders there, am I allowed some explanation as to why-- 5. HIS HONOUR: Why what? 6. PLAINTIFF: --the State opposes the subpoenas? 7. HIS HONOUR: If they don't provide a reason, that's a matter for them. However, in relation to the Commissioner and former Commissioner, you do realise they were subpoenas sought to be issued earlier in time and with which I dealt at that time. Is there anything else you wish to know, Mr Flowers? 8. PLAINTIFF: Well, the State has opposed the subpoenas all the way. There's no explanation as to why. 9. HIS HONOUR: Mr Flowers-- 10. PLAINTIFF: Surely, they must have to-- 11. HIS HONOUR: --there's a limit to the amount I can give you a leeway-- 12. PLAINTIFF: And there is a limit-- 13. HIS HONOUR: You've - no, no, just listen to me. First of all, I'm speaking very quietly and I don't appreciate being spoken over the top of. I'm speaking deliberately quietly because I don't want anyone to misunderstand I'm not being critical of you, Mr Flowers, but there is a limit to how many times you can raise the same issue. Natural justice requires me to listen to the issues that you wish to agitate. Natural justice does not require me to listen to them more than once. 14. PLAINTIFF: That's the first time I've raised that issue, your Honour. I haven't raised it before. 15. HIS HONOUR: You have raised the issue of the subpoenas to the Commissioner of Police on a number of occasions. You've raised the unavailability of Messrs Chrome and Cosgrove on even more occasions. 16. PLAINTIFF: Your Honour, I'm raising the issue as to why the State proposes. I haven't raised that before. 17. HIS HONOUR: We don't interrogate - if reasons are given-- 18. PLAINTIFF: Well, why are they allowed? 19. HIS HONOUR: If reasons are given, they're given. If they're not given, they're not given and I deal with it as best I can. 20. PLAINTIFF: But I have the right to know what the opposition is to me concluding my case and probing the New South Wales Police. What is the opposition from the State? Do they have grounds? 21. HIS HONOUR: The Crown has put what they want to put on the question of the subpoenas. 22. PLAINTIFF: So, that suggests-- 23. HIS HONOUR: Now, I'm about to deal with them and you interrupted my judgment. Do I ask a question of the Crown-- 24. PLAINTIFF: Why is the Crown-- 25. HIS HONOUR: --of the State of New South Wales, I'm sorry? 26. PLAINTIFF: And - but, you're right, your Honour, they are the Crown. 27. HIS HONOUR: Well, I don't know that they are, technically, but be that as it may. 28. PLAINTIFF: And, your Honour, I deserve an explanation as to why there is opposition to me concluding my case. I'm not getting one. The State-- 29. HIS HONOUR: Mr Flowers, let us assume for the purposes of this discussion that I accept that you deserve an explanation. Let us assume that I understand the difficulty associated with running a case in circumstances where you are unrepresented and you can certainly assume that I understand the difficulty of running a case relating to malicious prosecution in circumstances where all of the police whom you say have acted wrongly are not available for the purposes of being examined or cross-examined. You can assume all of that and I can assure you, sitting here, that I do understand all of that, but, ultimately, however much I understand it, proceedings are dealt with by rules and procedures which are there for very good reason. The bar in malicious prosecution cases is relatively high and whether or not you think it's fair, it is for the plaintiff in a malicious prosecution case to prove its case on the balance of probabilities. 30. PLAINTIFF: I believe I have done in a, but I'm not-- 31. HIS HONOUR: I understand you believe that. I'm not suggesting otherwise, but that's what governs the issues of the availability of evidence. 32. PLAINTIFF: I'm not-- 33. HIS HONOUR: Now, in this case, I have tried and succeeded, thanks to the work of Mr Williams - I'm not talking about his client - but the work of Mr Williams, to have available to you some of the witnesses that you wished to examine, but I can't conjure up witnesses out of thin air. 34. PLAINTIFF: Your Honour, where does the Court, yourself or Mr Williams feel they have the right to decide who I am to probe and who the witnesses are. 35. HIS HONOUR: We don't, if you want to call them, if you want to call them-- 36. PLAINTIFF: Well then I'd like-- 37. HIS HONOUR: If you want to call them then call them. 38. PLAINTIFF: I would just like an explanation as to-- 39. HIS HONOUR: No, no, no, Mr Flowers, I've told you this a number of times. 40. PLAINTIFF: He hasn't answered the question, your Honour. 41. HIS HONOUR: You haven't asked him a question and you're not entitled to ask him a question. 42. PLAINTIFF: I'm asking why-- 43. HIS HONOUR: He's not in the witness box. 44. PLAINTIFF: Well, he should be. 45. HIS HONOUR: Mr Flowers, if you wish to-- 46. PLAINTIFF: Why am I being-- 47. HIS HONOUR: No, don't talk over me, Mr Flowers. If you wish to talk to me, don't scream, if you wish to call Mr Chrome then call him now and I am directing you to call any witness you wish to call, I am directing you to call forthwith. 48. PLAINTIFF: I'm directing the State to provide reasons or grounds, they're opposing me having further subpoenaed witnesses. 49. HIS HONOUR: Did you understand the direction, Mr Flowers? 50. PLAINTIFF: Your Honour, they won't provide grounds, they're conspiring to conceal these witnesses. 51. HIS HONOUR: That's a submission you're entitled to make. Now, do you understand the direction I've given you? 52. PLAINTIFF: I don't know, I'm not speaking about subpoenas at the moment, I'm speaking about the grounds as to why they're being opposed. 53. HIS HONOUR: I understand that, I understand that. 54. PLAINTIFF: I'd like an answer to that, as to why they're being opposed. 55. HIS HONOUR: Yes, alright, thank you. Mr Williams, do you wish to give an answer to that question, you don't have to but, if you wish to, you can? 56. WILLIAMS: Only if your Honour would be assisted by the answer. 57. HIS HONOUR: I think I'm not sure that I would be but I think for the purposes of the proceedings and reaching some conclusion, I think it probably is better if you put whatever reasons you wish to put succinctly. 58. WILLIAMS: The Court pleases, yes. The plaintiff applies for leave to issue subpoenas to either or both of Mr Andrew Scipione, former Commissioner of Police and Mr Michael Fuller, the current Commissioner of Police. Such an application for leave has already been made and refused. The circumstances have not changed such that a different decision ought to be made. The reasons stated for those witnesses being to give account for something to do with a former officer's conduct of a summary prosecution in a regional town five years ago is hard to understand and that the court could not be satisfied that any proper evidence could be given by those witnesses about any fact in issue in the proceedings or that any subpoena would have a requisite legitimate forensic purpose. Those are the reasons why the defendant opposes the grant of leave sought. May it please the Court. 59. HIS HONOUR: Thank you. Just bear with me. My staff have made inquiries while you've been on your feet, Mr Flowers and I have a response from the registry; if you file documents, that is the written submissions to an email address that my associate will give you at the conclusion of today's proceedings but I will read onto the record in any event, it's at sc.emailfiling@justice.nsw.gov.au they will seal them electronically and send them back to you with that seal if that is of any help to you. 60. PLAINTIFF: I'm grateful for that, if I can address the State please? 61. HIS HONOUR: Yes, by all means. I just thought I'd get that across. 62. PLAINTIFF: Thank you for that and thank you to your staff for that. My address to Mr Williams and State of New South Wales is, that is a false representation of the facts. My claim is against the State of New South Wales and I've already said before your Honour that there is absolute grounds to probe the New South Wales Police and the Bathurst Police have not been provided, this is a case against the New South Wales Police, it is irrelevant that I would be seeking to examine former and current police commissioners, it is irrelevant regarding the actions of the Bathurst New South Wales Police when I'm seeking to probe the New South Wales Police for its involvement in this matter. It makes no difference and there is no grounds for the State to claim that it is irrelevant because they would not know the actions of lower officers in the Bathurst region. They will know who has given authority to continue with this malicious prosecution 17 years and they need to answer for this whole matter and not the Bathurst New South Wales Police segment, they need to answer for the New South Wales Police and the State's argument is non-existent so this is against the New South Wales Police and this is not a game of hoping to get the big generals before the court. I don't care how big they are, I don't care who they are, they need to answer and the State has no grounds to say that there is no relevance, there is major relevance. The relevance is within all of the evidence we've heard so far and their continuance to try and conceal these parties is very telling and the State of New South Wales is already involved in concerning behaviour before this Court and that is in producing court books and dissecting court evidence and they had their run in this matter and I want the opportunity to examine the parties so that I can conclude my case. There is no grounds to deny me and the State is simply trying to conceal the opportunity of probing the malicious prosecution further. 63. HIS HONOUR: Thank you, Mr Flowers. Before being interrupted I was in the process of issuing judgment, that is not a criticism for the interruption, nevertheless-- 64. PLAINTIFF: Sorry, sir, we have no resolution to that, your Honour, before we go into orders. 65. HIS HONOUR: To what? 66. PLAINTIFF: To what I've just asked, that the State provide grounds as to why they oppose, there is no grounds. 67. HIS HONOUR: Mr Flowers, I am in the process of delivering a judgment on the issues you have raised, they include the subpoenas and the directions, so if you would take a seat please, I will conclude giving the judgment a second time. 68. PLAINTIFF: Your Honour, I'm not trying to interrupt your doing the judgment. 69. HIS HONOUR: Whether you're trying or not, you've done it twice. 70. PLAINTIFF: Your Honour, that's because the State of New South Wales is concealing the facts-- 71. HIS HONOUR: I understand the submission, you've made it. 72. PLAINTIFF: But I have no leave or no-- 73. HIS HONOUR: You don't know that yet because you haven't heard my judgment, that's why I'm asking you to sit down. 74. PLAINTIFF: I require judgment on the reasons the State is opposing, there are no grounds, I need these parties, there is a conspiracy going on right here in this Court by the State of New South Wales to conceal. 75. HIS HONOUR: Just for the record, for the third time, Mr Flowers has resumed his seat in a sign that he had concluded his submissions and I will treat his submissions as having concluded. The matters with which the Court is dealing are in three categories. The first matter before the Court is an application by the plaintiff for an adjournment for two purposes; the first being to assess the proceedings to ascertain whether it is necessary to file any further documentation; and the second being to subpoena and examine further parties. The second matter is in relation to that latter aspect of the first matter, namely the application for leave to issue subpoenas to either or both of Mr Michael Fuller, the Commissioner of Police and Mr Andrew Scipione, the former Commissioner of Police. The third matter is the question of what, if any directions should be given in relation to the remainder of the proceedings. 76. Let me deal with this firstly with a general statement. The Court as presently constituted is aware of the difficulties associated with a person who is self-represented, appearing before the Court and being required to abide by procedural requirements or directions relating to the conduct of proceedings. As a consequence of that understanding, the Court has been attempting to wave strict compliance with a range of requirements ordinarily imposed upon a party to the proceedings. Thus, material has been adduced which may not strictly be in a form that would, were the plaintiff represented, be admissible and deal with matters that, in many respects, are argumentative and in the nature of submissions. Nevertheless, that material has, subject to the issues associated with the manner in which it will be treated, been received by the Court and treated accordingly. 77. Let me state a fairly general, if not controversial, aspect of civil proceedings before this Court, and any court in the common law world. The plaintiff brings proceedings, not always but usually, for damage, and in so doing undertakes the onus of proving the case for damage on the balance of probabilities. In certain cases, if the allegations made are serious enough, whether proof has been effected, even on the balance of probabilities, must take account of the seriousness of the allegation in determining whether the allegation has been proved. 78. It must be said in the case of an unrepresented litigant, particularly an unrepresented litigant who is, on the statements made to me from the bar table which I accept for present purposes, impecunious, that there is an inherent unfairness and irony. The irony in a case such as this, which is a claim for damages for malicious prosecution, is that the plaintiff alleges malfeasance by officers of the New South Wales Police, if not the police as a whole, in relation to conduct of proceedings against him. 79. The plaintiff relies on the fact that there had been prior proceedings in which judgment issued for the plaintiff against the State of New South Wales in relation to malicious prosecution or a like cause of action. It has been described by persons more learned than I am that the bar in malicious prosecution cases is a high one. With that statement, I would probably agree, although I may not have described it quite that way and certainly not ordinarily in a judgment. The bar that must be passed becomes higher on account of the fact that one or more of the elements associated with malicious prosecution rests upon the purpose or motive of the Prosecutor, by whatever name that may be called, and I include in that term any person that may have instigated or maintained the proceedings. 80. As earlier stated, I accept that the plaintiff in these proceedings is relevantly impecunious. That has stifled the plaintiff's capacity to serve subpoenas and provide conduct money for the persons who have been subpoenaed. It also stifles the plaintiff's capacity to engage private investigators or inquiry agents to find people that might otherwise be desired to be called. 81. As a consequence of that difficulty, the Court requested, but did not direct, the defendant to see if it could make available the witnesses that the Court considered were capable of being subpoenaed on the basis of the material before the Court. Of those witnesses, one was, in fact, called by the State of New South Wales. Another eight were witnesses for whom leave to serve subpoenas issued, six of whom have been made available, two of whom have not. The two who have not been made available are Officers Chrome and Cosgrove. 82. There are before the Court, entries in the electronic police system called COPS in which, at least Sergeant Chrome made an entry relating to Mr Flowers. 83. The two persons, Officers Chrome and Cosgrove - and I do not by that nomenclature insinuate that they are current officers of the police, but they were, at one stage - were not available and that information was provided after, on the material before the Court and addressed in an earlier interlocutory proceeding, [1] the use of an inquiry agent. Mr Flowers, the plaintiff in these proceedings, complains about their unavailability. I sympathise with that complaint. Nevertheless, those are the facts that are before me. 84. The plaintiff seeks leave to file subpoenas against the current Commissioner of Police and the former Commissioner of Police on the basis that he wishes to probe the New South Wales Police for what he says is, in effect, corrupt conduct and a perversion of the course of justice by prosecuting him maliciously. Mr Flowers says to the Court that that malice, at least, in part, arises from the fact that a judgment has been issued against the police on a prior occasion. 85. The Court's function is not that of a Royal Commission. The Court's function is to deal with the issues between the parties as they're presented to the Court. In that respect, it is the function of a Royal Commission with appropriate terms to "probe" New South Wales Police in this regard or to "probe" corruption and/or other matters. It is the Court's function to deal with the evidence that is adduced before it by the parties. 86. The Court is not a Royal Commission and could not be a Royal Commission. The issue of whether the Court could issue a subpoena to the Commissioner of Police and the former Commissioner of Police was dealt with in an earlier interlocutory proceeding. [2] 87. While the plaintiff asserts a grand conspiracy from the top of the police force, downward, as I sit here in this interlocutory application, at least, that is an assertion only and, to some extent, conjecture. That which is pursued by way of detail, and upon which there is evidence, is the prosecution of the plaintiff for assault occasioning; the prosecution of the plaintiff for negligent driving; on one view, an application for an apprehended personal violence order and, lastly, it seems, the prosecution, if that be the correct word, of the plaintiff for a traffic infringement for failing to provide particulars which was the subject of the evidence most recently adduced. 88. To go from those matters and the evidence in relation to those matters, to the - please sit down, Mr Flowers. I'm in the middle of a judgment. Please sit down. I have asked you twice now, quietly-- 89. PLAINTIFF: I don't understand, your Honour. 90. HIS HONOUR: --quietly and firmly, please sit down-- 91. PLAINTIFF: This is wrong-- 92. HIS HONOUR: --or I will call security. 93. PLAINTIFF: This is wrong. 94. HIS HONOUR: To take the matters that have been thus far adduced in evidence to a point where it can be said that probative material could be obtained from the Commissioner of Police or the former Commissioner of Police is at this point either conjecture or fishing or both. 95. As a consequence, I do not alter the position I took on the earlier occasion. Leave to subpoena either the Commissioner of Police or the former Commissioner of Police, or both, is refused. 96. I next deal with the issue of where this matter goes from here. Having heard the parties on appropriate directions, I direct that the matter, as was agreed on a prior occasion, be finalised by written submissions. Mr Flowers, the plaintiff, has sought a week. That seems to me to be too short a time in order to complete the task. 97. I direct that the plaintiff file and serve submissions by 4pm on 17 May 2021. 98. I direct that the defendant file and serve submissions by 4pm on 4 June 2021. 99. I direct that any submissions in reply be filed and served by 4pm on 15 June 2021. 100. The Court adjourns for receipt of written submissions. 101. Court is adjourned.