Monteiro v State of New South Wales

[2025] NSWSC 181

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

06 March 2025

Date of orders:

06 March 2025

Decision date:

06 March 2025

Jurisdiction:

Common Law

Before:

Garling J

Decision:

Refuse the application by Mr Monteiro to cross-examine the deponent of the affidavits relied on by the Crown to establish public interest immunity.

Catchwords:

EVIDENCE – Privileges – Public interest immunity – Evidence excluded in public interest – Matters of state – Whether the public interest in admitting into evidence documents dealing with State matters is outweighed by the public interest in preserving confidentiality – Whether a person responding to an application for public interest immunity in support of which affidavits are read has a right to cross-examine the deponent – Whether cross-examination of a deponent would be likely to reveal issues relevant to a claim for public interest immunity – Where a respondent to a public interest immunity claim seeks to argue substantive issues during the cross-examination of a deponent of affidavits relied upon by the State in a claim for public interest immunity

Legislation Cited:

Evidence Act 1995 (NSW)

Cases Cited:

Attorney General (NSW) v Stuart (1994) 34 NSWLR 667

R v Hawi (No. 2) [2011] NSWSC 1648; (2011) 216 A Crim R 64

Young v Quin [1985] FCA 18; (1985) 4 FCR 483

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

EX TEMPORE JUDGMENT

1. By Notice of Motion filed on 5 March, the State of New South Wales (“the State”) seeks an order with respect to certain redacted documents which are part of an Exhibit to the affidavit of Luke Sampson in the substantive proceedings, where Mr Monteiro seeks the revocation of his Extended Supervision Order (“ESO”).

2. The Motion seeks that the State be excused from providing unredacted copies of the documents on the basis of public interest immunity.

3. In support of that Motion, the State has read two affidavits of Mr Bernard Ripperger, one affirmed on 4 March 2025, and the other affirmed on 5 March 2025. Mr Ripperger is the Assistant Commissioner of Corrective Services NSW. Two exhibits have been tendered.

4. In respect to Mr Ripperger’s affidavit of 4 March 2025, and after objection was taken, the State did not press paragraphs 19 to 24 (inclusive) of the affidavit, nor did it seek to include in that affidavit annexures A to E (inclusive) which are referred to in paragraphs 19 to 24 and which are the source material for the opinion expressed in paragraph 24. There have been no redactions in those “open” affidavits.

5. The State, in addition, proposes to read two further affidavits of the deponent, Mr Ripperger, which it seeks that the Court receive and deal with on a confidential basis. They have not yet been put formally before the Court.

6. I would expect, and I understand this to be the case, that the exhibits to those two confidential affidavits will include the unredacted versions of the documents in respect of which public interest immunity is being claimed. This approach would accord with the standard and accepted approach of the Court when determining claims for public interest immunity.

7. One of the objections to the two affidavits which have been read so far (which I will refer to as the “open affidavits”) by the plaintiff is that he seeks to cross‑examine the deponent to test his evidence.

8. In Attorney General (NSW) v Stuart (1994) 34 NSWLR 667 at p 681, Hunt CJ at CL, with whom Smart and Studdert JJ agreed, said in respect of proceedings where there was a disputed claim for public interest immunity, this:

“There was no application to cross-examine the Senior Assistant Commissioner in relation to an assertion in his affidavit that these were ‘continuing investigations’. There is, of course, no right to cross-examine such a deponent upon his affidavit and leave to permit such cross-examination is granted only very rarely. More usually, the party claiming immunity will be requested by the judge instead to produce further evidence which overcomes any defect in the claim which may be apparent on the basis of the evidence already produced.”

9. That decision referred to earlier decisions where a similar approach had been taken, one of which ought to be mentioned - the decision of Young v Quin [1985] FCA 18; (1985) 4 FCR 483, - a decision of the Full Court of the Federal Court. In that decision, Bowen CJ said, at p 486, after discussing the appropriate procedure for dealing with the claim for public interest immunity, this:

“In my opinion, a claim of public interest immunity in relation to oral evidence should be dealt with very much in the same confined way as a claim for immunity in relation to documents. It would be a very rare case indeed where the Court would permit cross examination of a deponent or would allow countervailing evidence, although I am not prepared to say that the Court would not allow it.”

10. To the same effect, Sheppard J said, at p 488:

“I conclude that the problem is to be approached in the same way as a case involving public interest grounds. In such a case, cross-examination of the deponent of the affidavit claiming immunity is not usually permitted. The court may accept the affidavit as conclusive, or it may require the production of documents so that it may inspect them.”

11. At p 496 Beaumont J said:

“Since, on the material now available, it is not apparent how the cross- examination of Inspector Wheatley could assist the defence and since mere assertion to the contrary is not enough to warrant a general investigation of the position, as foreshadowed by counsel for the accused, it must follow in my opinion that the appellant was entitled to the relief he sought in respect to the cross-examination of Inspector Wheatley. …”

12. The appellant was the relevant Minister for State making the claim for immunity.

13. In 1995 the Evidence Act 1995 (NSW) was enacted. Section 130 of that Act deals with claims which fall under the general description of public interest immunity.

14. Section 130(1) of that Act provides, in summary, that if the public interest in admitting into evidence information or a document dealing with matters of the State is outweighed by the public interest in preserving secrecy or confidentiality, the Court may direct that the information, or the document, not be adduced as evidence.

15. Section 130(3) provides as follows:

“In deciding whether to give such a direction, the Court may inform itself in any way it thinks fit”.

16. R A Hulme J, in R v Hawi (No. 2) [2011] NSWSC 1648; (2011) 216 A Crim R 64, considered an application to cross-examine a Deputy Commissioner of Police on his affidavits in support of a public interest immunity claim, and referred to some of the authorities to which I have drawn attention, as well as s 130(3). At [71], he stated:

“It allows for a degree of flexibility in the manner in which a court may proceed upon such an application. For present purposes, I take it to confirm the common law that there is no ‘right’ to cross-examination.”

17. I am satisfied that the state of authorities at present is that a person responding to an application for public interest immunity in support of which affidavits are read has no right to cross-examine the deponent.

18. The question for the Court is whether, in light of submissions which it receives in support of an application to cross-examine, it is satisfied that any such cross‑examination would be likely to elucidate issues relevant to its consideration of the claim for public interest immunity.

19. I accept that Mr Monteiro, who is the respondent to this application, has strong views about the way in which officers of Corrective Services (both those in the custodial settings and those in community corrections settings) have treated him.

20. The substantive application, which is to be dealt with in due course, is an application by Mr Monteiro to revoke or set aside an ESO to which he is presently subject.

21. This application today is about whether the contents of particular documents which have been identified are in whole, or in part, properly the subject of public interest immunity.

22. In my view, none of the substantive issues about the fact of the ESO or the way in which it has been implemented and enforced by officers of Corrective Services NSW, or the background and context for the enforcement of that application, including by officers during a time when Mr Monteiro was in custody, directly relate to the existence of the public interest immunity claim in this case.

23. I can perceive nothing in the submissions put to me by Mr Monteiro as to why he should be permitted to cross-examine Mr Ripperger on his two open affidavits. There is nothing in what he has outlined which would assist this Court to determine if the identified documents are or are not the subject of a claim for public interest immunity and whether that claim is made out. On the contrary, it appears that Mr Monteiro wishes to take the opportunity to deal with matters relevant to the ESO by cross-examining Mr Ripperger.

24. I refuse the application by Mr Monteiro to cross-examine the deponent of the affidavits relied on by the State to establish public interest immunity.

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Decision last updated: 11 March 2025