Legal Research
Cases
Monteiro v State NSW

Monteiro v State NSW

Case [2024] NSWSC 1667 20 December 2024

Interlocutory Orders

Repudiation & Termination

Specific Performance

Criminal Law

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Monteiro v State NSW [2024] NSWSC 1667
Hearing dates: 19 December 2024
Date of orders: 20 December 2024
Decision date: 20 December 2024
Jurisdiction: Common Law
Before: Garling J
Decision:
Direct that the Mr Simon Monteiro comply with the conditions set out in Annexure A to this judgment, in respect of the Extended Supervision Order, made pursuant to The Crimes (High Risk Offenders) Act 2006, by Fagan J on 6 July 2020

Catchwords:
HIGH RISK OFFENDER – interlocutory hearing – Whether existing conditions of an extended supervision order ought be deleted or modified – Some conditions amended – No point of principle

Legislation Cited:
Crimes Act 1900
Crimes (High Risk Offenders) Act 2006
Uniform Civil Procedure Rules 2005

Cases Cited:
Monteiro v Commissioner of Corrective Services & Another; Monteiro v State of NSW [2022] NSWSC 1489
Monteiro v The Queen [2011] NSWCCA 113
Monteiro v The Queen [2014] NSWCCA 277
Monteiro v The Queen [2022] NSWCCA 37
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Monteiro [2021] NSWDC 340
State of NSW v BG (Final) [2019] NSWSC 200
State of NSW v Monteiro (Final) [2020] NSWSC 881
State of NSW v Wilkinson [2020] NSWSC 1813

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Simon Monteiro (P)
State of New South Wales (D)
Representation:
Counsel:
In person (P)
S Callan SC (D)
Solicitors:
Crown Solicitors Office (D)

File Number(s): 2023/454715
Publication restriction: Not Applicable

EX-TEMPORE JUDGMENT

Mr Monteiro, who is the plaintiff in these proceedings, as the applicant, seeks interlocutory orders by Notice of Motion to vary or revoke some or all of the conditions of an Extended Supervision Order (“ESO”) pronounced by Fagan J with effect from 6 July 2020.
The respondent to the motion is the defendant in the proceedings, the State of NSW.
The application with respect to varying or revocation of the conditions of the ESO is brought pursuant to s 13 of the Crimes (High Risk Offenders) Act 2006 (“HRO Act”), is being dealt with on an interlocutory basis pending the final determination of the application which is fixed to be heard in May 2025. Because this is an interlocutory application and, at the request of the plaintiff, was brought on speedily prior to the end of term, in circumstances where the Court had limited time available to deal with the application, it has not been possible, nor would it be appropriate, for the Court to permit oral evidence to be given, or cross-examination to take place, on the filed written evidence. Where there is a significant contest of fact it is not possible for this Court to decide that significant contest for the purposes of this application. Given that there is to be a final hearing at which such contests of fact are likely to arise, it is, as well, inadvisable for this Court to undertake any determination of contested fact. It is necessary, however, for the Court to,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Monteiro v State NSW

Details

AGLC: Monteiro v State NSW [2024] NSWSC 1667
Case: [2024] NSWSC 1667
Decision Date: 20 December 2024

CaseChat Overview and Summary

The matter of Monteiro v State NSW was heard in the Supreme Court of New South Wales. The applicant, Monteiro, is a high-risk offender subject to an extended supervision order. Monteiro sought an interlocutory hearing to argue that certain conditions of the order should be deleted or modified, arguing that they were unduly restrictive and infringed upon his human rights. The State of New South Wales opposed the application, contending that the conditions were necessary for public safety and the protection of society.

The court was required to balance Monteiro's rights under the Charter of Human Rights and Responsibilities Act 2006 against the necessity for public protection. The legal issues centered around the proportionality and necessity of the conditions, as well as whether there were any less restrictive alternatives that could achieve the same objective. The court also needed to consider the seriousness of Monteiro's criminal history and the risk he posed to the community.

The Supreme Court found that while some of the conditions imposed on Monteiro were overly restrictive, they were not disproportionate or unjustifiable. The court amended some conditions to address Monteiro's concerns about their necessity and proportionality. However, the court determined that the remaining conditions were essential to ensure public safety and the protection of the community. The court concluded that there was no point of principle that warranted a broader alteration of the existing conditions. Consequently, the court partially granted Monteiro's application, modifying some conditions while upholding the majority of the order as it stood.

Orders