Flowers v State of New South Wales [2022] NSWCA 28

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Flowers v State of New South Wales [2022] NSWCA 28 Hearing dates: 24 February 2022 Date of orders: 2 March 2022 Decision date: 02 March 2022 Before: Basten JA; White JA; Beech-Jones JA Decision: (1) Direct that the notice of appeal filed on 20 August 2021 be treated as an application for leave to appeal from the judgment in the Common Law Division given on 22 July 2021 and the orders entered on 10 August 2021. (2) Refuse leave to appeal. (3) Order that the applicant pay the respondent's costs in this Court. Catchwords: APPEAL – leave to appeal – whether statutory threshold met – no affidavit supporting right to appeal – no objection to competency – matter deemed to be leave application APPEAL – motion to adduce further evidence – where appellant sought to examine opponent's lawyers as to conduct of trial – full transcript of trial available APPEAL – challenge to finding as to credibility of police informant – finding not inconsistent with objective evidence nor glaringly improbable – allegation not put to police officer in cross-examination CIVIL PROCEDURE – hearings – application to vacate hearing – challenge to covid-19 protocol requiring persons entering court to be vaccinated – matter not fixed for live hearing – hearing by audio-visual link or telephone available – applicant homeless – inconvenience where no live hearing CIVIL PROCEDURE – application for trial by jury – application for appeal to be heard by jury – no jury available on appeal COURT AND JUDGES – procedural fairness – reasonable apprehension of bias – plaintiff wrongly accused State of concealing documents - judge told plaintiff he owed the State an apology – whether lay observer might think judge might be biased TORTS – malicious prosecution – evidence of improper purpose – whether prosecutor concealed evidence – improper motive said to be revenge for prior successful claim by appellant Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 Supreme Court Act 1970 (NSW), ss 75A, 85, 101; Pt 6, Div 2 Uniform Civil Procedure Rules 2005 (NSW), rr 29.2, 51.22. Cases Cited: A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Flowers v State of New South Wales [2020] NSWSC 526 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Category: Principal judgment Parties: Mark Stephen Flowers (Applicant) State of New South Wales (Respondent) Representation: Counsel: Applicant self-represented Mr N Newton (Respondent)