Monteiro v State of New South Wales

[2025] NSWSC 235

Supreme Court

New South Wales

Medium Neutral Citation:

Monteiro v State of New South Wales [2025] NSWSC 235

Hearing dates:

13 March 2025

Date of orders:

21 March 2025

Decision date:

21 March 2025

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Note that I am satisfied that the claim for public interest immunity with respect to the redacted parts of the documents in Exhibit BR-2 should be upheld.

(2)   Excuse the defendant from providing unredacted copies of the documents in Exhibit BR-1.

(3)   Notice of Motion dated 5 March 2025 be otherwise dismissed.

(4)   Costs of the Notice of Motion are to be costs in the cause.

Catchwords:

EVIDENCE – Privileges – Public interest immunity – Judicial decisions – Matters of state – Application of section 130 of the Evidence Act 1995 (NSW) – Whether the disclosure of redacted documents would be injurious to the public interest to disclose in the proceedings – Whether information disclosing or tending to disclose the identity of a confidential source of information provided to Community Corrections is subject to public interest immunity – Protection of confidential sources in a law enforcement context – Where the Court is tasked with the balancing process of assessing the public interest in disclosing or not disclosing materials to an opposing party in proceedings – General principle that the identity of police informers may not be disclosed in a civil action – Whether public interest considerations are available with respect to the operations of Community Corrections in relation to the supervision, investigation and monitoring of compliance with an Extended Supervision Order

CIVIL PROCEDURE – Discovery – Objection to inspection – Public interest immunity

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW) s 13(1)

Evidence Act 1995 (NSW) pt 3.10, s 130, 131A

Legal Profession Act 1987 (NSW)

Uniform Civil Procedure Rules 2005 (NSW) pt 28 r 2

Cases Cited:

Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404

Australian National Airlines Commission v Commonwealth of Australia [1975] HCA 33; (1975) 132 CLR 582

Doudar v Commissioner of Corrective Services (NSW) [2011] NSWSC 778

Finch v Grieve & Ors (1991) 22 NSWLR 578

Monteiro v State of New South Wales [2024] NSWSC 864

Monteiro v State of New South Wales [2025] NSWSC 181

Monteiro v State of New South Wales [2025] NSWSC 184

R v Brownlowe (1994) NSWCCA (unreported)

Rogers v Home Secretary; Gaming Board for Great Britain v Rogers [1973] AC 388; [1972] 3 WLR 279

Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1

State of New South Wales v Biber [2021] NSWSC 47

State of NSW v Monteiro (Final) [2020] NSWSC 881

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

Simon Monteiro (Plaintiff/Respondent)
State of New South Wales (Defendant/Applicant)

Representation:

Counsel:
In person (Plaintiff/Respondent)
R Bhalla (Defendant/Applicant)

Solicitors:
Crown Solicitors Office (Defendant/Applicant)

File Number(s):

2023/454715

Publication restriction:

Not Applicable

JUDGMENT

Extended Supervision Order

1. On 6 July 2020, Fagan J ordered that the plaintiff, Mr Monteiro, be subject to an Extended Supervision Order (“ESO”) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“HRO Act”) for a period of five years, commencing 6 July 2020. His Honour ordered that the plaintiff comply with 26 identified conditions which were set out in Schedule A to the ESO.

2. The reasons for his Honour’s conclusions are to be found at: State of NSW v Monteiro (Final) [2020] NSWSC 881.

Current Proceedings

3. On 7 December 2023, Mr Monteiro filed a Summons which commenced these proceedings. He nominated the State of NSW (“the State”) as the defendant. In his Summons, Mr Monteiro claimed the following relief:

“RELIEF CLAIMED

Pursuant to any and all sections relevant to my application of the Crimes (High Risk Offenders) Act 2006:

A.   An order that the Commissioner has been unreasonable, made irrelevant considerations and did not at the time provide reasons for refusal to grant permission to leave the State. He made [an] [has not made relevant considerations in making an administrative decision, an order be made that the decision deprives me of due process, procedural fairness and natural justice.

B.   An order that the Commissioner has not now give a formal direction in response to this judgment, or internal direction, that the applicant not leave the State.

C.   An order that the Court rule that the material the Crown has served on me at the 11^th hour is onerous excessively to say the least and will make it impossible for me to fairly continue this application, and that the material is inadmissible, as it must be filed before the case started when the Commissioner made a decision, I must receive the reasons for his decision.

D.   An order that the Commissioner’s decision is unlawful and/or invalid and/or unreasonable and/or not in accordance with the Crimes (High Risk Offenders) Act 2006.”

4. On 1 July 2024, Harrison CJ at CL granted Mr Monteiro leave to file an Amended Summons which contained more extensive claims for relief than the earlier version. It claimed relief in the following terms:

“Relief Claimed

(1) Pursuant to section 13(1) of the Crimes (High Risk Offender) Act 2006 (NSW) and other relevant sections of the Act, and pursuant to the relevant section/sections of which ever Act is appropriate in NSW, I seek the following:

(a)   The Supreme Court make an order that the Extended Supervision Order be immediately and totally revoked.

(b)    The Supreme Court make a finding and order that the Extended Supervision Order was unlawfully imposed, as the information relied on by the Court was known to be fraudulently misleading, untrue, manipulated, exaggerated, by the Crown, CSNSW et al, and that due process, procedural fairness and natural justice was not afforded to me in critical areas and areas that made the imposition of the order unlawful & unconstitutional. This occurred at both the ISO hearing and ESO hearing.

(c)    An order be made for damages in the form of financial compensation/relief, being awarded to me for being deliberately criminally tortured in Goulburn prison in 2014 and at other prisons (including Goulburn Prison) before and after 2014 by custodial & medical staff, for deliberately mistreating me in and out of custody in deliberate, cruel, spiteful, inhumane, perverse, odious, criminally assaulting me & purposely inflicting as much pain & suffering as correctional staff in custody and community corrections staff in the community could dream up and scheme. The damages sought are $10,000,000.00 (Ten Million dollars). This also would include CSNSW/CCNSW staff deliberately depriving me of reasonable conditions, management supervision et al that would enable me to run a business, pursue employment, study or plan my future.

(d) The Supreme Court make an order that the Crimes (High Risk Offenders) Act 2006 (NSW) is unconstitutional by design, and application at the regulatory and administerial level.

(e)    That the applicant, by order of the Supreme Court of NSW be lawfully and effectively enabled to litigate (sue) government employees personally and that these individuals have their government immunity/judicial immunity stripped (per Salvatore Vasta FCJ Case) for deliberately abusing & exceeding their employment remit job description, rules & regulations, policy and procedures, legislational and regulatory requirements and boundaries. Those individuals will be named in a statement of claim, affidavit, written & oral submissions.

(f)    An order be made that my name may not be published unless an application be made to the Supreme Court and not until the applicant is present to defend the application to publish.

(g)    An order be made & a finding that the treatment the applicant has been subjected to from 2008 until present by CSNSW/CCNSW, has been, and remained to be, extremely cruel, perverse, odious, deliberate, tantamount to a personal vendetta sponsored by the State, akin to terrorism of my very existence, extremely inhumane, criminally torturous (torture) at times and purposely, by design, to be as uncomfortable, difficult, intolerable and has destroyed my physical, emotion & mental health to the point I may never recover and function normally ever again, due to the damage being so profound.

(h)    An order/finding be made, that an unacceptable risk was never established requisite to justify the imposition of an ISO/ESO.

(i)    An order/finding be made that the investigating officers of the NSW Police, John Bongiorno detective / Jessica Hammond Detective withheld crucial/relevant evidence and misled the court in statements and statements of facts/antecedents, resulting in the applicant being unnecessarily/unfairly/without justification imprisoned for 2 years based on purported technical only breaches of the ESO that was unlawfully imposed.”

5. In a judgment of 17 July 2024, Monteiro v State of New South Wales [2024] NSWSC 864, Harrison CJ at CL summarised these proceedings in these terms:

“(1)   An order that the extended supervision order made on 6 July 2020 be revoked.

(2)   Further or in the alternative, by reason of the matters that were before Fagan J, an order that the extended supervision order made on 6 July 2020 is invalid and of no force or effect.

(3)   In the alternative to order (2), a declaration that the extended supervision order made on 6 July 2020 is constitutionally invalid.

(4)   Damages for personal injuries, including psychological injuries, loss of enjoyment of life and loss of income caused or occasioned to him by reason of the mode of application and enforcement of the conditions of his extended supervision order made on 6 July 2020.

(5)   Damages for personal injuries, including psychological injuries, loss of enjoyment of life and loss of income caused or occasioned to him by reason of the illegal and improper treatment of him whilst an inmate of the New South Wales prison system.”

6. The matter came before me on 28 November 2024 for general directions and case management orders. As part of those orders, I determined that it would be appropriate that the part of Mr Monteiro’s claim relating to relief under the HRO Act should be heard and determined first. Amongst other orders, I made the following:

“1. Order, pursuant to Part 28 r 2 of the Uniform Civil Procedure Rules 2005 that the following question be heard and decided separately from all other questions, and before the hearing of any further trial in the proceedings, namely:

‘Whether the Extended Supervision Order imposed by this Court (Fagan J on 6.7.2020) (State of NSW v Monteiro (Final) [2020] NSWSC 881) should be varied in part, or revoked in whole, as sought by Notice of Motion served by the plaintiff on the defendant by email on 20.11.2024.’

…

8.   Strike out the Amended Statement of Claim served on 3.9.2024 and the Statement of Claim filed on 11.9.2024.

9.   Grant leave to the plaintiff to serve any proposed amended statement of claim on the defendant on or before 21.3.2025.

…

12.   Fix the hearing on 5.5.2025 with an estimate of three days, the plaintiff’s application for revocation of the Extended Supervision Order imposed on 6.7.2020.

13.   In respect of that motion, order that on or before 31.1.2025, the State is to file and serve any affidavit including an affidavit attaching records relevant to the ESO imposed on the plaintiff including case notes, material contained in the OIMS database, notes in the Justice Health records or other records of the Corrective Services NSW including the ESO supervision team upon which the State proposes to rely in opposition to the plaintiff’s application.

14.   Order that on or before 28.2.2025, the plaintiff is to file and serve all material including affidavits or other material, upon which it proposes to rely in support of his application for revocation of the ESO.

…

22.   Grant the parties liberty to apply.”

Service of Affidavit by the State

7. Pursuant to the Orders of the Court made on 28 November 2024, the State served an affidavit of Luke Sampson affirmed on 31 January 2025. It comprised six volumes of documents which included copies of the records of the kind that were described in Order 13 set out above.

8. The affidavit of Mr Sampson is relatively brief and largely, in a formal way, describes the sources of the documents which have been exhibited to him as part of his affidavit. The six volumes of documents total 4,219 pages and, relevantly for the present application, include 543 pages of Custodial Corrections files and 61 pages of Community Corrections files. In addition, the OIMS case notes comprise 760 pages.

9. At the time the affidavit of Mr Sampson was filed, a number of redactions of the contents of some of the documents were made. The State claimed that it carried out the redactions upon the basis that it had formed the view that public interest immunity applied to the material which had been redacted.

10. The matter was restored before me at the request of Mr Monteiro pursuant to the grant of liberty to apply which I made on 28 November 2024. Mr Monteiro sought a ruling that it was not open to the State to redact any of the material. Counsel for the State, who appeared at the directions hearing, indicated that the State wished to maintain a claim for public interest immunity with respect to the redacted material. I made directions so that claim could be ventilated and argued.

Current Notice of Motion

11. The State filed a Notice of Motion on 5 March 2025 in which it sought to be excused from revealing the contents of the material which had been redacted on the basis that revealing those parts of the documents “… would be injurious to the public interest to disclose in these proceedings”.

12. By the conclusion of the hearing of the State’s motion, the State had relied on five affidavits, only two of which (one affirmed on 4 March 2025 and the other affirmed on 5 March 2025) were open affidavits which had been provided to Mr Monteiro, together with redacted copies of the documents relevant to the claim.

13. In addition, the State relied upon three further affidavits which were confidential affidavits, dated, respectively, 4 March 2025, 5 March 2025 and 12 March 2025. All of the affidavits were affirmed by Mr Bernhard Ripperger, an Assistant Commissioner, Community Corrections, of Corrective Services NSW.

14. In accordance with the usual procedure, where claims of public interest immunity are made with respect to the contents of identified documents, the Court read the confidential affidavits and looked through the unredacted versions of the documents, which were the subject of the Motion. Mr Monteiro was not provided with the confidential affidavits or the unredacted documents.

15. In the course of the hearing, two rulings were given. The first ruling rejected an application by Mr Monteiro that he be entitled to cross-examine Mr Ripperger. My ex tempore reasons are to be found at Monteiro v State of New South Wales [2025] NSWSC 181. I also adjourned the proceedings for a week over the objection of Mr Monteiro. My reasons for so doing are to be found at Monteiro v State of New South Wales [2025] NSWSC 184.

16. This judgment deals with the current Notice of Motion, filed by the State, seeking to uphold public interest immunity with respect to the contents of documents which have been redacted.

“Offender Non-Association” Information

17. Confidential Exhibit BR-4 contains 20 pages of documents on which there are redactions. The documents in question were Inmate Profile Documents. The material redacted contained a number, but not all, of the entries on those documents under the heading “Offender Non-Association”.

18. Although initially, in the course of submissions, Mr Monteiro maintained that he was entitled to see the unredacted versions of the Inmate Profile documents, prior to the conclusion of oral argument, Mr Monteiro indicated that he did not wish to, nor need to, read the contents of the unredacted documents falling into Confidential Exhibit BR-4.

19. In those circumstances, there is no need for the Court to consider whether the redacted material on those 20 pages of Inmate Profile Documents were properly the subject of a public interest immunity claim.

OIMS Case Note Reports

20. The documents which were redacted in part, or whole, and which remained in issue between Mr Monteiro and the State, comprised 36 pages of the OIMS Case-Note Reports (“OIMS notes”). The redacted documents are to be found in Exhibit BR-1 and the unredacted documents, which the Court has read but Mr Monteiro has not, are to be found in Confidential Exhibit BR-2.

21. In his open affidavit of 4 March 2025, Assistant Commissioner Ripperger explains that the information which is the subject of the claim for public interest immunity in the OIMS notes consists of information disclosing or tending to disclose the identity of a confidential source of information provided to a member of staff of the Community Corrections Service. He also describes the material as being other information received confidentially by Community Corrections which could not be further explained in an open way.

Legal Principles

22. In open submissions, which were made in writing and adopted orally, counsel for the State submitted that there was a strong public interest in the protection of confidential sources in a law enforcement and law enforcement-related context. He submitted that the OIMS notes fell into that category. Counsel drew attention to the principles of public interest immunity. It is unnecessary to recount all of those. However, it is to be noted that the traditional common law principles of public interest immunity now find general statutory expression in s 130 of the Evidence Act 1995 (NSW).

23. Section 130 of the Evidence Act is in the following form:

“130   Exclusion of Evidence of Matters of State:

(1)   If the public interest in admitting into evidence information or a document that relates to matters of state, is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

…

(4)   Without limiting the circumstances in which information or a document may be taken for the purpose of subsections(1) to relate to matters of State, the information or document is taken for the purposes of that subsection to relate to matters of State if adducing it as evidence would –

…

c)   prejudice the prevention, investigation or prosecution of an offence, or

…

e)   disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State, or

f)   prejudice the proper functioning of the government of the Commonwealth or a State.

(5)   Without limiting the matters that the court may take into account, for the purpose of subsection (1), it is to take into account the following matters –

a)   the importance of the information, or the document in the proceeding,

…

c)   the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding,

d)   the likely effect of adducing evidence of the information or document and the means available to limit its publication,

e)   whether the substance of the information or document has already been published …”

24. Section 130 of the Evidence Act falls within Part 3.10 Privileges. Section 131A applies Part 3.10 to preliminary proceedings of Courts. It notes that, if a person is required to produce a document which would result in the disclosure of the contents of a document of the kind subject to public interest immunity, then any such objection must be determined by the Court applying the provisions of the Part, here, specifically the provisions of s 130. Section 131A requires the Court to determine the objection “…with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence”.

24. The State drew attention to the fact that it may be, having regard to the specific circumstances under which the State was obliged to file its evidence, that the provisions of Part 3.10 were not applicable. However, it submitted that in the event that such statutory provisions were not applicable, then the claim should be dealt with in accordance with the common law. It submitted that there was no difference in substance between the common law and statutory test.

25. As Button J described the Court’s task in State of New South Wales v Biber [2021] NSWSC 47 (“Biber”) at [19], the task of the Court is to assess the public interest in disclosing or not disclosing the material to an opposing party. His Honour noted that there were two different aspects of the public interest – first, being the public interest in all relevant material being able to be placed before a Court in determining a disputed matter; and secondly, the public interest in the efficient operations of government (or its agencies) which sometimes require confidentiality. His Honour then described a three-stage test which first required assessing the risk to the State, and then the potential value of the evidence to, here, the plaintiff and finally “… if those two aspects of public interest are in conflict, doing my best to ‘balance them up’ ”.

26. His Honour’s description of that approach drew upon the High Court’s decisions in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 and Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404.

27. It is important to recognise at the outset that public interest immunity is not confined to defined categories. As Wood J said in Finch v Grieve & Ors (1991) 22 NSWLR 578, at 591E:

“Similarly, in D v National Society for Prevention of Cruelty to Children [1978] AC 171, proceedings by a mother against the Society for negligence in failing to properly investigate a complaint of mistreatment of her daughter, the claim for public interest immunity was upheld in relation to the informant. The public interest to be protected was identified as the effective functioning of an organisation, authorised under act of Parliament, to bring legal proceedings for the welfare of children. The decision established that the categories of public interest are not closed, and that there is no reason or authority for confining, as a ground of non-disclosure or non-production, to the effective functioning of departments or organs of central government.”

29. In that case, Lord Diplock identified the public interest which was relied upon as being “analogous to [that]… protected by the well-established ‘rule of law’ that the identity of police informers may not be disclosed in a civil action”.

30. Wood J, by reference to the nature of the disciplinary role engaged in by the Bar Council within areas assigned to it under the Legal Profession Act 1987 (NSW), held that it was appropriate to proceed by engaging in the balancing process of weighing the detriment to the public interest involved in disclosure against the detriment to the public interest in non-disclosure. His Honour held, at 596E:

“I am satisfied that there is a substantial public interest in the Bar Council receiving complaints about misconduct of barristers, in being able to speak freely with such complainants, in being able to fully investigate those complaints and in appropriate cases, being able to gather additional evidence. This is part and parcel of a public interest that it effectively carry out the statutory functions assigned to it, and that the legislation as a whole be implemented. The public interest is obvious and hardly needs stating. The public are to be protected from barristers who are guilty of professional misconduct, or unsatisfactory professional conduct, and are entitled to have effective orders made not only for the disciplining of those barristers who offend, but to have their losses made good. These are the ends the Act serves, and it provides an effective means for discipline and compensation.”

31. I note that Courts have considered that there is a public interest arising with respect to the operations of a variety of organisations, including arms or agencies of government, or other bodies which have undertaken activities that have public purposes. Public interest immunity principles have been applied to information received by the Gaming Board of Great Britain: Rogers v Home Secretary; Gaming Board for Great Britain v Rogers [1973] AC 388; [1972] 3 WLR 279; documentary records prepared for and referred to in a meeting of the High Risk Offenders Assessment Committee, a body created by Part 4 of the HRO Act: Biber; investigations of wrongdoing within the prison system: Doudar v Commissioner of Corrective Services (NSW) [2011] NSWSC 778.

32. Finally, I note that in Australian National Airlines Commission v Commonwealth of Australia [1975] HCA 33; (1975) 132 CLR 582, Mason J heard and considered a claim for public interest immunity relating to the contents of a tape fitted to a privately owned aeroplane, known as a “cockpit voice recorder tape”. This contained conversations between members of the crew of the private aeroplane which was involved in a collision with another aeroplane on an aerodrome under the control of the Commonwealth of Australia. Although Mason J did not uphold the claim for public interest immunity, he noted that there was a public interest in the content of such conversations.

Discernment

33. An ESO is an order made by the Supreme Court pursuant to provisions of the HRO Act. When an ESO is made, it will be accompanied by one or more conditions. Ordinarily, those conditions will include, as they did in Mr Monteiro’s case, that the person who is the subject of the ESO (“the supervisee”) must accept the supervision of Corrective Services NSW for the term of the Order, the supervisee must report to the Departmental Supervising Officer (“DSO”) or any other supervising officer as directed, and that the supervisee must comply with any reasonable direction given by his DSO for the enforcement and implementation of the ESO or any of the conditions attached to it.

34. There may well be other conditions applied relating to accommodation, advice of movements or electronic monitoring, place and travel restrictions, employment restrictions, non-association conditions and conditions relating to electronic or other communications.

35. Community Corrections, which is part of Corrections Services NSW, has the responsibility, through the DSO, of overseeing the individual subject to the ESO. Part of that supervision includes ensuring that the conditions applicable to the ESO are being complied with.

36. With respect to the role which Community Corrections undertakes, given that the supervisee is living in the community and interacting, or potentially interacting, with members of the community in ways which may or may not comply with the conditions of the ESO, it is obviously in the interests of the effective supervision of the ESO, for Community Corrections to be able to make enquiries with members of the community about their interactions with the supervisee, to receive information as a result of those enquiries or because information is volunteered to Community Corrections about the behaviour of the supervisees. As well, given that people who are the subject of an ESO present risks of committing further serious offences, it is not unlikely that some of the sources of information will seek that their identity be kept confidential for their own safety and protection.

37. In those circumstances, I am satisfied that public interest considerations are available with respect to the operations of Community Corrections, insofar as officers supervise individuals who are the subject of an ESO and, in the course of that undertaking, investigate and monitor compliance with the ESO and, in the course of those tasks, receive information from a variety of sources.

38. Accordingly, I must enter into a balancing exercise between that public interest and the public interest in litigants seeing the contents of documents which may be able to be admitted into evidence in their proceedings, or else be of relevance to the conduct of the proceedings.

39. The State does not seek to rely upon the contents of the documents as part of its case in opposition to the revocation of Mr Monteiro’s ESO.

40. Whilst this may be a matter to which significant weight should be attached, it is not the only matter relevant here. There is a public interest in Mr Monteiro being able to see the contents of the documents so as to be able to tender them in evidence himself in support of the Orders which he seeks to enable a revocation of the ESO to which he is subject.

41. In that context, one strand in obtaining the relief which Mr Monteiro seeks is that he asserts, and intends to prove, that the manner by which Community Corrections has carried out its supervision of the ESO to which he is subject, has been unduly restrictive, inappropriate, harsh and oppressive. Whether that is so, and if so, what relevance it may have to the revocation of an ESO is not to be determined by this judgment. It is a matter which will need to be determined at the time Mr Monteiro’s motion seeking revocation is heard.

42. However, in determining the current Motion, which in effect seeks to uphold the redactions, the fact that Mr Monteiro wishes to mount this argument is a relevant factor to be kept in mind.

43. I have read and carefully considered the contents of the unredacted OIMS notes contained in Confidential Exhibit BR-2. Without revealing the contents of the parts of the document which have been redacted, I am satisfied that the redacted content of each of the documents contain:

1. information provided to Community Corrections officers by a variety of individuals relating to or about the behaviour of Mr Monteiro;

2. information which was provided voluntarily in each case, and not under any form of compulsion of law, or other compulsory process;

3. information which may have been proffered to officers of Community Corrections, or else obtained from individuals after enquiry was made of them by Community Corrections officers;

4. descriptions which indicated that many of the individuals who provided information sought that the information, and their names and personal information, be kept confidential.

44. The contents of the OIMS notes generally do not record that the information provided was directly used in any prosecution of Mr Monteiro for a breach of a particular condition specified in the ESO applicable to him.

45. My careful reading of the unredacted documents well satisfies me that the public interest in admitting the information into evidence, or else making it available to Mr Monteiro for use more generally in the proceedings, is outweighed by a significant margin by the public interest in preserving the confidentiality of the information and the confidentiality of the personal details of any individual who provided that information.

46. In coming to that conclusion, the dominant feature has been the context of the provision of the information and its recording in OIMS notes, which are records maintained by Community Corrections as an integral part of the supervision of the ESO imposed on Mr Monteiro. Were the information and personal details released to any interested party, I am satisfied that there would be a significant deterrent to the effective oversight of the existing ESO, and as well, all other ESOs. The revelation of this material would be likely to diminish co-operation by individuals, including members of the public, with Community Corrections. Unless individuals can give information freely to Community Corrections without that information becoming known to the supervisee, or publicly known, then they are most unlikely to give such information.

47. Finally, in considering the competing interests and weighing them up, I have taken into account my own assessment of the information from the perspective of whether the information might be able to be deployed by Mr Monteiro to assist his case for the revocation of the ESO. I am satisfied that the information, including the identity of the personal details of the individuals who provided the information, would not, as I presently understand the issues to be raised, provide any assistance to Mr Monteiro.

48. Accordingly, I have concluded that the State’s Motion should succeed.

Orders

49. I make the following orders:

1. Note that I am satisfied that the claim for public interest immunity with respect to the redacted parts of the documents in Exhibit BR-2 should be upheld.

2. Excuse the defendant from providing unredacted copies of the documents in Exhibit BR-1.

3. Notice of Motion dated 5 March 2025 be otherwise dismissed.

4. Costs of the Notice of Motion are to be costs in the cause.

*********

Decision last updated: 21 March 2025