Monteiro v State of New South Wales (No 3)

Mr Monteiro, who is presently in custody, commenced these proceedings by summons filed in 2014. On 26 October 2016, at the commencement of the hearing of two motions - one of 20 May 2016 brought by the Commissioner for Corrective Services seeking orders dismissing an earlier motion filed by Mr Monteiro in April 2016 and the other filed by Mr Monteiro on 13 May 2016, seeking to have the hearing of the Commissioner’s motion vacated- Mr Monteiro made, and I refused, an application that I disqualify myself.

These are the reasons for the refusal of that application.

The basis of Mr Monteiro’s application was that I was a member of the bench which dismissed an appeal he had brought against his sentence on account of Muldrock error (see Monteiro v R [2014] NSWCCA 277). There I and Gleeson JA agreed with reasons given by Bellew J for the dismissal of the appeal.

Additional evidence was received on that appeal. Bellew J described at [100] – [112] part of the case there advanced for Mr Monteiro to be:

Pertinently, Bellew J observed at [118] – [128]:

Both I and Gleeson JA added our own observations to those of Bellew J. I said at [2] – [4]:

These observations; complaints advanced by Mr Monteiro in relation to the views expressed by Bellew J as to his health and conditions of custody, with which I had agreed; as well as matters which he complained had not been taken into account on the appeal, as they ought to have been, he submitted provided a basis on which I had to disqualify myself from hearing what lay in issue between the parties in these proceedings.

In Monteiro v State of New South Wales (No 2) [2015] NSWSC 1901 McCallum J explained at [3] that in these proceedings Mr Monteiro seeks judicial review of many aspects of the conditions of his imprisonment, “ranging from his classification, which correctional centre he should be housed in, his access to computers, charges for photocopying for legal and educational material, his need for orthopaedic shoes, disciplinary findings, the prison’s telephone system protocol, the “decision to transport the plaintiff in prison trucks and prison vans” (he seeks to be transported only in sedans, station wagons or four-wheel drives), decisions relating to access to psychological support, decisions relating to the operation of the buy-up process and so on”.

McCallum J there noted that the defendants are the State of New South Wales, the Attorney General, the Commissioner of Corrective Services, the Department of Corrective Services, GEO Group Australia Pty Ltd, Justice Health, Legal Aid and Law Access New South Wales and the general manager for the time being of Mid North Coast Correctional Centre. Mr Monteiro has also by motions sought to add other defendants. It is the Commissioner of Corrective Services who appears in the proceedings as contradictor, to contest the relief Mr Monteiro seeks.

Her Honour had earlier referred Mr Monteiro for pro bono legal assistance, with the result that he had been represented at the hearing. Afterwards Mr Monteiro applied to have her Honour recuse herself. He was not represented on that application, which was refused. Her Honour’s decision concerned a question as to Mr Monteiro’s dietary requirements, her Honour declaring that a Justice Health decision of 11 December 2014 that the special diet which he sought was not required for reasons of health, was not valid. Nevertheless, her Honour declined to quash the decision, because it was no longer operative. Her Honour also refused to make an order that Mr Monteiro be provided with a particular diet, taking the view that it was not the Court’s role to descend into the management of prisons.

What fell to me to decide in these proceedings, by way of comparison, was not the merits of any aspect of Mr Monteiro’s claims, but rather various procedural matters. Firstly, whether the hearing of the Commissioner’s motion should be vacated; secondly, if not, whether the Commissioner should be given leave to amend the May motion; and thirdly, whether the orders sought by the Commissioner in relation to Mr Monteiro’s amended May 2016 motion, namely, that the motion should be dismissed, in whole or in part, with an order for costs, should be made.

The orders Mr Monteiro sought in his May motion included orders that Justice Fullerton and “other pro crown and/or corrupt judges” recuse themselves from ever hearing any of his matters; that the relief sought in orders 1 and 2 of his summons (for minimum security classification, the grant of day and weekend release and domicile in a cell alone), be heard in an expedited fashion; that all court fees be waived; that named persons be added as defendants and that they be required via subpoena to give evidence; that he be referred for pro bono legal assistance; that he be provided with a copy of identified written submissions; and that these matters only be dealt with on an interim basis and not to finality, due to unspecified medical conditions.

The bare assertion of bias on the part of the judge is not a sufficient basis on which a disqualification application may be acceded to. In the absence of any suggestion of actual bias, the test for disqualification of a judge for apprehended bias is that “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]). Such a “fair-minded observer” must have attributed to him or her “knowledge of the actual circumstances of the case” (see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31 at 87).

What must also be considered on such an application is firstly, “what it is said might lead the judge to decide the case other than on its legal and factual merits”. Secondly, there must also be an “articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits” (see Ebner at [8]).

So considered, I was satisfied that it was not open to conclude that a fair-minded observer, having knowledge of what had been dealt with in the Court of Criminal Appeal’s judgment that Mr Monteiro relied on; what was there in issue; what was there decided; what I and Bellew J had there observed; and the concerns Mr Monteiro expressed, would reasonably apprehend that I might not bring an impartial mind to the resolution of the procedural matters lying between the parties in these proceedings, which fall to me to decide.

Further, I was satisfied that the necessary connection between what Mr Monteiro believed might lead me to decide those issues other than on their legal and factual merits and the feared deviation from the course of deciding those matters on their merits, was not established.

From his submissions it is apparent that Mr Monteiro holds adverse views about judges of this Court, including me, not only as to their competence, but also as to their integrity. That he holds such views is not a basis for concluding that a fair-minded observer having knowledge of the actual circumstances of the matters which arose for determination of his appeal by the Court of Criminal Appeal of which I was a member, would share those views. To the contrary, I was satisfied both that such an observer would not share them and that such views could not establish the necessary connection earlier discussed.

Accordingly, I refused the disqualification application, but later granted Mr Monteiro an adjournment of the hearing of the Commissioner’s motion, for a short period, so that he could be provided with a copy of the Commissioner’s submissions and a supporting affidavit earlier served upon him, which he claimed had been removed from his cell the previous day. His adjournment application, pressed on the basis of hearing problems and his declining mental state, was otherwise refused, for reasons then given.