Simon Monteiro (Monterio) v Commissioner of Police

[2023] NSWSC 1651

Supreme Court

New South Wales

Medium Neutral Citation:

Simon Monteiro (Monterio) v Commissioner of Police [2023] NSWSC 1651

Hearing dates:

15 December 2023

Date of orders:

15 December 2023

Decision date:

15 December 2023

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) I am disqualified from hearing the matter as the result of apprehended bias.

(2) Adjourn the matter for hearing before Justice Weinstein at 11 am on 18 December 2023.

(3) Parties to bear their own costs.

Catchwords:

CIVIL LAW – extended supervision order – application to vary or revoke order – where defendant subject of order seeks to travel interstate – subjective assessment as to quality of judges – opinions may differ – disclosure that judge appeared for defendant in criminal proceedings when a barrister – apprehended bias – judge disqualified from further hearing the application

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), s 8

Crimes (High Risk Offenders) Act 2006 (NSW), s 11(2)

Cases Cited:

Manna v State of New South Wales [2021] NSWSC 1220

State of New South Wales v Carr [2020] NSWSC 643

Category:

Procedural rulings

Parties:

Simon Monteiro (Monterio) (Applicant)
Police Commissioner of NSW (Respondent)

Representation:

Simon Monteiro (Monterio) (self-represented) (Applicant)
Crown Solicitor’s Office (NSW) (Respondent)

File Number(s):

2023/454715

Publication restriction:

Non-publication order over two names and any members of their family on an interim basis until Monday 18 December 2023.

EX-TEMPORE Judgement (REVISED)

1. This is an application by Simon Monteiro (or Monterio) [1] for relief set out in a summons, which is essentially to the effect that an extended supervision order (“ESO”), to which he was subjected as the result of a decision made by Fagan J on 8 July 2020, be revoked or varied in order to allow him to leave the State of New South Wales and be in Queensland from 18 December 2023 until 7 January 2024, and that the reporting requirements under the ESO be suspended during that period of time. The matter has come before me as the duty judge after lunch on Friday and with very limited time and other matters to be attended to as duty judge.

   1. There are inconsistent spellings of the litigant’s surname, which is not his birth name, in the material before the Court.

2. The application has been the subject of some spirited submissions on the part of Mr Monteiro, and a spirited defence on the part of Mr Thomson who appears for the Commissioner of Police. Some strong and colourful things have been said about judges of this Court and about Mr Thomson, and as I have tried to make entirely clear throughout, I have simply been impervious to those observations because they should play no role in the exercise of my judicial function.

3. I am told, and I accept, from Mr Monteiro that he has good reason to travel to Queensland, that his fiancée is there, and is present – at least virtually – and available to give evidence of her wanting him to come to Queensland to see her. Mr Monteiro has also told me he intends to take his father, who is elderly and not in great health, to Queensland, and also that there are some business reasons whereby, [redacted], Mr Monteiro’s business partner, was also proposing to travel.

4. A matter raised by Mr Thomson, which appears on its face to have force, is that s 11(2) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“CHRO Act”) says this:

“An extended supervision order or interim supervision order must include a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services”.

5. There was such a condition made in the ESO subject of the current dispute. I am told from the bar table by both Mr Monteiro and Mr Thomson that an application has been made to the Commissioner of Corrective Services for permission for Mr Monteiro to leave the State of New South Wales for the purposes that I have articulated inelegantly and ex tempore. Furthermore, that permission has not been granted and, at this stage, it would seem that the application to vary the order is such that I would not have power, or a judge of this Court would not have the power, to vary the order if it is contrary to the provision in s 11(2) of the CHRO Act.

6. What there may be is an opportunity for the Corrective Services Commissioner to revisit the application and, subject to what I am about to say, I would encourage the Commissioner to give further consideration to it because, on its face, the application to suspend the order for the period has some merit. That is based merely on what Mr Monteiro has said to me in Court this afternoon and the fact that I accept that – online, virtually, at this moment – are three witnesses who would back him up. But, I have not heard from those witnesses, and there is a reason for that and I will come to it.

7. At this stage I do not have a power to vary the order in the way that the summons invites me to do. Mr Thomson, appearing for the State, and notwithstanding strong words said against him by the applicant, says that it may be that the decision of the Commissioner could be subject to some form of judicial review. At the moment, the case is not cast in that way and that is something that Mr Monteiro and preferably legal representatives that he might obtain, might consider attending to.

8. In revising this judgment, I considered it appropriate to quote the following from the transcript:

“APPLICANT: … I’m not going through this anymore. I’m not putting my friends, myself and my family – I’m not coping. I cannot eat, I cannot feed my cattle dog, I cannot work. This is not what this case – what this thing was designed for. These people are so unreasonable and I don’t - and with respect, your Honour, it’s okay for them to lie - the Crown - in court. But if I go to say they’ve lied, well, I'm the person that's - in the Court that’s - the person that's getting attitude from the Court. That is wrong, with respect, your Honour.

HIS HONOUR: No, please, I’m not giving you attitude.

APPLICANT: Well, no, but by what you're saying, you don’t - yep.

HIS HONOUR: What I’m trying to say to you--

APPLICANT: And, and, sorry, just one further thing, if I could say this. I’m going to get, next year, a Justice Fagan or an Elizabeth Fullerton or someone that’s so pro-Crown that I can’t get this up. I know you’re a reasonable judge. When I got you today, you know what I said, ‘I know exactly who you are. You’ve represented me’, and I went in there and I just said, 'You know what? Best judge in the Supreme Court.’ Best judge in the Supreme Court, you are.

HIS HONOUR: That’s very kind of you, but I’m not sure that everyone will agree.

APPLICANT: And I mean that, by reasonable--

HIS HONOUR: No, it’s all right. Have I represented you?

APPLICANT: Yeah, you did. You used to, used to, used to be instructed by Phillip Gibson. My name was Simon Lowe.

HIS HONOUR: Okay. That creates a problem.

APPLICANT: Well, it might create a problem--

HIS HONOUR: I mean, it’s very decent of you to raise that.

APPLICANT: Yep.

HIS HONOUR: It does create a problem.

APPLICANT: You represented me on a bail application only.

HIS HONOUR: No, I think I remember now. But it makes it very difficult as a matter of appearances for me to even hear the matter at all, I think.

APPLICANT: I can’t – I cannot deal, your Honour, with this. I mean, I can’t deal in my life like this, and this, and this is next year, they’re going to get in here again and they’re going to tell more lies and I’ll get before some judge who won’t hear – [who’ll] rule very credible evidence inadmissible. It’ll side up with the Crown because they’ll, you know, whatever happens – whatever that reason happens to be, you know, the Court is in a state – it is the state of the Court in terms of which – you’ve got to, you’ve got to try and get a good judge. That isn’t what justice is about.

All judges should be reasonable and unbiased and impartial and that is not the case. It is out of control and if I have to sit out there in front of that Court and hand out banners about things I know that certain members of the judiciary do which are not quite legal, I will do it and I’ll end my life on the Supreme Court steps. I’ve had enough; I’m not dealing with this anymore. I don’t care. You can lock me up for saying it; I don’t care.

HIS HONOUR: I’m hardly going to do that.”

9. However, in the course of Mr Monteiro’s submissions, apart from making reference to a number of cases, or two cases in particular the case of State of New South Wales v Carr [2020] NSWSC 643 (“Carr”) and another case, inferentially, a case of Manna v State of New South Wales [2021] NSWSC 1220 (“Manna”), has also indicated that he knows me and by that, he meant I appeared for him when I was a barrister. He reminded me of what his name was before it was changed to Monteiro and the solicitor who instructed me and I immediately remembered the fact of that, and then perhaps this is the mind playing tricks on me, but I then thought that I probably recognised Mr Monteiro’s appearance as well. I cannot be sure that was not a form of “confirmation bias”, but I certainly remember appearing for him on a bail application many years ago.

10. I am of the view that to preside over the case to finality would be wrong and would give rise to the appearance and apprehension of bias and I do not propose to make any final decisions in the case.

11. What I do recognise is that Mr Monteiro has, at least on its face, significant grievances to air and they should be aired formally and properly in a courtroom and presided over by a judge who does not have the stain of apprehended bias that I may well have. That bias could cut both ways, I should hasten to add. In other words the fact that I appeared for him could give rise to those appearing for the State, or for those who might otherwise be affected by the order or subject to criticism by me in a judgment, as were certain parties in both the cases of Manna and Carr to which I have referred, to think that I may have somehow been motivated by my historic knowledge of and professional association with Mr Monteiro, albeit by another name. But it could also be that Mr Monteiro, if I make a decision adverse to him, may think that my knowledge of the facts and circumstances surrounding the matter for which I appeared may have caused me, even subconsciously, to decide the case unfavourably to him.

12. All of those things are perceptions. Plainly, I would do my best to do justice between the parties and without fear or favour, and I think this is not a matter about actual bias, it is a matter about appearances and the apprehension of bias. Accordingly, I will not make any final orders in the case.

13. After that became clear, I attempted to cut the argument short, largely unsuccessfully. In any event I left the bench and spoke to a colleague who will be, along with me, sharing the duties of vacation duty judge next week. That judge is Justice Weinstein, and Justice Weinstein has indicated that he is able to hear the case on Monday. We will be splitting the duties next week and I propose to adjourn the matter, at least in the first instance, to be commenced before or heard by Justice Weinstein at 11am on Monday 18 December 2023, because his Honour has a commitment between 10 and 11am and it may be that the case starts a little after that. The parties will have to check the list and the arrangements.

14. I want Mr Monteiro to understand that, at first blush, the fundamental submission made by Mr Thomson in relation to the variation sought under the current summons appears to have substance, and it may be that Mr Monteiro needs to consider the precise form of relief that he seeks. Whether or not an application for judicial review of the kind that Mr Thomson spoke of could be prepared adequately by Monday at 11am is questionable, but I do invite Mr Monteiro to consider the substance of that submission and to reconsider whether or not the summons needs to be amended or recommenced in some way.

15. I also make a recommendation that the Commissioner for Corrective Services, as much as is possible, consider the application to go to Queensland made by Mr Monteiro because, at least on its face, there appears to be some validity to it. Having said all that, I know so little about his performance on the ESO that my recommendation is purely pragmatic and not based on any view I have formed as to the merit or otherwise of the application.

16. A number of things have been said about other judges of this Court. I have ignored them. Submissions have been made that the whole scheme of High Risk Offenders applications is unconstitutional. That is not a matter I can decide. It is not a matter that Justice Weinstein will be able to resolve favourably to the applicant on Monday and Mr Monteiro is urged to focus the arguments; he is urged to approach lawyers if possible; and he is urged to take a realistic and not a personal approach to the matter.

17. In terms of the case itself, it is adjourned until Monday at 11am before the Common Law vacation duty judge, Justice Weinstein and his Honour will do what he can. I note the rules of duty cases, particularly at this time of year, is that there is a two-hour time limit on them and that the parties should ensure that their submissions are contained and efficiently made so that the case can be disposed of within that time period. His Honour will not be in a position to hear the case for the rest of Monday.

18. I also say – and this is directed to the State of New South Wales and resulting from my experience in the way High Risk Offenders matters are conducted – that the Judge should not be bombarded with pages and pages of notes and, perhaps more accurately, folders and folders of material. I think the Crown Solicitor’s Office are well aware of my view on that. This view has made its way into catchwords and other parts of my judgments. [2] The evidence should be confined so that Justice Weinstein can focus on the true issues.

    2. See my reference to the “dumb and unhelpful” approach to the tender of material in such matters: State of New South Wales v Schmidt [2019] NSWSC 764, [13]-[15].

19. So those are the orders I will make in relation to the matter. I will formally hold that I am disqualified from hearing the matter because I used to be Mr Monteiro’s barrister once upon a time and the apprehension of bias that will create. I will adjourn the matter for hearing before Justice Weinstein on Monday, 18 December 2023 at 11am or as soon thereafter as his Honour can get to it with a strict two-hour time limit. I will again recommend the Commissioner reconsider the application to allow variation of the reporting conditions and that the offender be permitted to leave New South Wales, i.e., that he approves a trip to Queensland.

20. There has also been raised an issue concerning the publication of the identity of two people referred to in the evidence. The first is the applicant’s fiancée who, as far as I can tell, has only been referred to as [redacted] and I am not going to ask for her full name, but there is also a business associate called [redacted]. An application was made that there be no publication of the names or identities of those people and my inclination is to make such an order, unless I hear anything that would suggest to the contrary.

21. There is a non‑publication order over the two names and any members of their family on an interim basis until Monday when his Honour, Justice Weinstein, may choose to extend those orders or make a final order pursuant to the provision in s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW).

22. There may also be the need for the matter to be adjourned to later in the week but that will depend on where his Honour is once he has heard this application.

23. Accordingly, I make the following orders:

1. I am disqualified from hearing the matter on the ground of apprehended bias.

2. Adjourn the matter for hearing before Justice Weinstein at 11 am on 18 December 2023.

3. Recommend the Commissioner for Corrective Services consider again Mr Monteiro’s application to travel to Queensland.

4. There is a non-publication order over the two names and any members of their family on an interim basis until Monday 18 December 2023, when Justice Weinstein may choose to extend those orders or make a final order pursuant to s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW).

5. The parties are to bear their own costs.

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Endnotes

Decision last updated: 22 December 2023