Monteiro v State of New South Wales

[2025] NSWSC 439

Supreme Court

New South Wales

Medium Neutral Citation:

Monteiro v State of New South Wales [2025] NSWSC 439

Hearing dates:

5 May 2025

Date of orders:

5 May 2025

Decision date:

05 May 2025

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) The hearing of the separate question reserved by Garling J on 20 December 2024 and fixed for today, is adjourned.

(2) Relist the matter before me for mention only at 9.30am on 13 May 2025.

(3) All questions of costs are reserved.

(4) The notice of motion filed by the State on 4 April 2025 is also listed for mention before me at 9.30am on Tuesday, 13 May 2025.

(5) The non‑publication order made by Garling J on 2 May 2025 in respect of a witness referred by the pseudonym "IT" is amended by substituting the pseudonym "Joanne” and is extended and continued until further order of the Court.

(6) Under s 7 of the Court Suppression and Non‑publication Orders Act 2010 (NSW), on the ground specified in s 8, that it is otherwise in the interests of justice, the witness [redacted] is to be referred to by the synonym "Jane", and her name is not otherwise to be published, in connection with these proceedings, or in relation to Mr Monteiro, until further order of the Court.

Catchwords:

PRACTICE AND PROCEDURE – Adjournment – application to vary ESO – withdrawal of plaintiff’s legal representatives – no issue of principle

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW), ss 11, 13 & 21

Civil Procedure Act 2005 (NSW), s 56

Cases Cited:

Monteiro v State of New South Wales [2024] NSWSC 1667

State of New South Wales v Mills [2019] NSWSC 298

State of New South Wales v Monteiro (Final) [2020] NSWSC 881

Category:

Procedural rulings

Parties:

Simon Monteiro (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel: H El-Hage SC and C McGorey (Defendant)

Solicitors: Crown Solicitor’s Office

File Number(s):

2023/454715

Publication restriction:

Non-publication of witness names (orders 5 & 6)

EX-TEMPORE JUDGMENT (REVISED)

1. Mr Monteiro has made application by way of summons, inter alia, for the revocation of an extended supervision order (“ESO”) made against him by Fagan J, under the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”): State of New South Wales v Monteiro (Final) [2020] NSWSC 881. The order that was imposed as long ago as 5 July 2020 but had been suspended by reason of Mr Monteiro serving a fixed term of 18 months' imprisonment under a sentence substituted by the Court of Criminal Appeal in relation to a conviction for breaching the conditions of the ESO. That has had the legal effect that the duration of the ESO has been extended until January 2027 by reason of its suspension.

2. The application for revocation under s 13 of the Act was lodged in December 2023. It involves some complex questions. The matter had been case managed initially by Harrison CJCL and more recently by Garling J. In November 2024, Garling J made orders for the determination of a separate question, to which I will return.

3. At a time when he was not legally represented, Mr Monteiro purported to include in his summons extensive claims for damages against the State and various of its instrumentalities concerned with his custody and supervision. Garling J continues to case manage those aspects of the claim, and they are currently listed for further directions before him on 5 August 2025.  The various issues dealing with the application for revocation, are the subject of the separate question, which was formulated by Garling J.  Given the complexity of some of the issues, Garling J listed that matter for hearing commencing today, with an estimate of three days.  At the time the matter was fixed, it was obviously felt that a sufficient period of time for preparation was required.  Hence, the period of about six months that was allowed by the directions his Honour made; I infer.

4. In the interim, Mr Monteiro was able to obtain a grant of Legal Aid for his application for revocation, extending to the retention of solicitors and senior and junior counsel.  It is apparent from what Mr Monteiro told me from the bar table, that tension crept into that relationship and, indeed, he said, frankly, there was a breakdown in his relationship with senior counsel briefed, notwithstanding that person's eminence and long experience in this area.

5. The situation has now arisen where the solicitors formerly acting for Mr Monteiro, pursuant to the grant of Legal Aid, have withdrawn their representation, and he tells me from the bar table, and it is not disputed by the State of New South Wales, that he was informed of that development last Thursday, that is to say, two business days before the commencement of the hearing. It is also apparent from the way Mr Monteiro wishes to present his case, that all of the evidence he would wish to rely upon, has not been marshalled, reduced into admissible form and served upon the State. In particular, potentially material evidence from a forensic psychologist whom Mr Monteiro tells me has been treating him for some time, has not been obtained. Clearly, such evidence may be highly relevant to the question of whether Mr Monteiro continues to pose an unacceptable risk, within the meaning of s 5B of the Act.

6. Mr Monteiro also made clear that there is a body of evidence from, I will say, lay witnesses of a positive nature he wished to lead, which he submits is capable of proving that the risk identified on the evidence accepted by Fagan J does not exist.  Such lay evidence may well be very material to be considered in conjunction with the expert evidence, in a case of this nature.

7. I should make it clear that, as Mr Monteiro has made clear to me, his case not limited to an argument that there has been a material change in circumstances since Fagan J made the ESO. He wishes to advance the case, that the imposition of the ESO against him, was always unjustified. Mr Monteiro would probably express it in stronger language. While I have discussed with him this morning potential legal difficulties in a wholesale challenge to the legality of the imposition of an order by another judge of the Common Law Division, there is no doubt that the width of the power conferred upon the Court by s 13 of the Act may extend to the consideration of circumstances before the imposition of the order, as well as after: State of New South Wales v Mills [2019] NSWSC 298.

8. The matter which is of the most concern in terms of the interests of justice in this case is given that an ESO represents very significant infringement of a person's right to be at liberty, the opportunity to vindicate one's rights with the assistance of properly qualified and experienced legal representation is important.  Given the grant of Legal Aid and the previous availability of representation, I am satisfied that Mr Monteiro would wish to take advantage of that opportunity, as he has assured me, to give himself the best chance of successfully pursuing his application.  I am persuaded by him that the interests of justice require that I grant him an adjournment, to obtain legal representation by lawyers who will complete the necessary preparation of the evidence, that he tells me is available, relevant to his case.

9. Quite properly in my view, the State accepts that the application is made on proper grounds and does not oppose an adjournment of the hearing, subject to some qualifications voiced by Mr El‑Hage SC, who appears with Mr McGorey for the defendant, to which I will return. 

10. Obviously, proceedings under the Act, as stated by s 21, are civil proceedings, and given that three days of court time have been set aside, and were set aside six months ago, the Court, having regard to the overriding purpose established by s 56 of the Civil Procedure Act 2005 (NSW), is slow to permit a loss of so much court time set aside so long ago, given the consideration that necessarily other litigants have been denied a place the list for those three days for which a judge has been allocated to this case.

11. However, as I have indicated, while civil in nature, the proceedings are concerned with, in a very real sense, the liberty of the citizen, and that is a matter which is entitled to considerable weight, in my judgment, in exercising powers of the Court to grant an adjournment for which there are otherwise reasonable grounds.  One should also bear in mind that, as I have indicated at the commencement of these reasons, Mr Monteiro will be subject to the ESO during the period of the adjournment. 

12. That brings me back to Mr El‑Hage's qualifications. On the application of Mr Monteiro, Garling J on 20 December 2024, on an interim basis, deleted, I will say, certain of the conditions to which Mr Monteiro had, until then, been subject: Monteiro v State of New South Wales [2024] NSWSC 1667. Those interim orders were made pending the final determination of Mr Monteiro's application for revocation. It is not necessary for me to detail each of the matters which were deleted or amended from Fagan J’s s 11 conditions by Garling J’s in the interim, but principal amongst them, it could be said, was the previous requirement that Mr Monteiro be subject to electronic monitoring.

13. Electronic monitoring is always a significant issue in cases arising under the Act. It involves a most significant limitation on and infringement of a person's right to be at liberty by reason of the restriction of the person's freedom of movement; and it confers upon the State a right of monitoring a person's movements as a corollary. If I may say so, in my experience as a judge of the Common Law Division, I have never heard a case arising under the Act where the defendant, here the plaintiff, was ever happy to be subjected to electronic monitoring. I only make these comments to demonstrate the nature of the issue, and why it is such a hotly contested condition between Mr Monteiro and the State.

14. As a related matter, Mr El‑Hage has pointed to the notice of motion filed by the State on 4 April 2025, seeking the dissolution, if that is the right way of putting it, of the interim orders made by Garling J.  I think Mr Monteiro told me from the bar table he had only become aware of that notice of motion comparatively recently; however, Mr El‑Hage accepts that the considerations of fairness that I have referred to in relation to the presentation of Mr Monteiro's case, apply equally to his defence of the notice of motion.  In the circumstances, it seems that the motion must also be adjourned, for the same reasons.  This, of course, would be subject to the right of the State to make an application to bring the notice of motion forward, if there is undue delay in the principal proceedings being determined.

15. Mr Monteiro has submitted that given his strong feeling of the injustice of his present situation, he wishes the application “could have been dealt with yesterday”, to use the common expression.  But I think that that concern of the State is legitimate, and I propose to bring the matter back at an early point in time, to enable Mr Monteiro to report back on his ability to engage new lawyers, or to otherwise put together the currently missing evidence.

16. For these reasons, I make the following orders:

1. The hearing of the separate question reserved by Garling J on 20 December 2024 and fixed for today, is adjourned.

2. Relist the matter before me for mention only at 9.30am on 13 May 2025.

3. All questions of costs are reserved.

4. The notice of motion filed by the State on 4 April 2025 is also listed for mention before me at 9.30am on Tuesday, 13 May 2025.

5. The non‑publication order made by Garling J on 2 May 2025, in respect of a witness referred to as the synonym "IT" is amended by substituting the pseudonym "Joanne", and is extended and continued until further order of the Court.

6. Under s 7 of the Court Suppression and Non‑publication Orders Act 2010, on the grounds specified in s 8 that it is otherwise in the interests of justice, the witness [redacted] is to be referred to by the pseudonym "Jane", and her name is not otherwise to be published, in connection with these proceedings, or in relation to Mr Monteiro, until further order of the Court.

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Decision last updated: 07 May 2025