State of New South Wales v Monteiro (aka Lowe) (No 1)

This is the second of three preliminary applications that will need to be determined before the conclusion of the hearing of the substantive application under the Crimes (High Risk Offenders) Act 2006 (NSW).

The substantive application is, itself, a preliminary application in the sense that the State seeks interlocutory and preliminary orders and not final relief.

Mr Kell of Senior Counsel, who appears with Mr McGorey of Counsel, on behalf of the State, has brought to the Court’s attention s 57 of the Legal Aid Commission Act 1979 (NSW).

The defendant, who is representing himself, has lodged an appeal in respect of the termination of his grant of legal aid. I granted leave to counsel for the defendant to withdraw last week following the termination of the grant of legal aid.

Section 57 of the Legal Aid Commission Act is in the following terms:

The defendant, having been made aware of the section, says that he would rather the matter be adjourned so that he can get proper legal representation.

Ordinarily, I would accede to that request.

However, the State is seeking urgent interlocutory and preliminary orders at this time because the supervision to which the defendant is subject whilst on parole ends on 7 April 2020. The State seeks orders that the defendant be examined by a psychiatrist as well as interim supervision orders that the defendant be subject to the conditions attached to the summons.

If I accede to the defendant’s request and adjourn the matter, it will not be heard before the date on which he ceases to be under parole. There is no evidence on which I could conclude that the appeal will be determined before then.

While s 57C allows the Court to adjourn the proceedings and, indeed, suggests that the Court should adjourn the proceedings, that is only if there are no special circumstances that prevent it from doing so.

In my view, the circumstances which exist at this time, being 23 March 2020, would constitute special circumstances. The two matters that constitute special circumstances are, firstly, it is necessary that this application be heard before 7 April. There is no likelihood of the defendant’s position in terms of legal representation changing before that time.

Secondly, we are obviously in a period of national emergency and crisis. Whilst it is very important in times of crisis that the administration of justice continues to function fairly and evenly and that all persons be given an opportunity to be properly represented, the reality is that in my judgment, if this matter does not proceed tomorrow, it would be very difficult for the matter to proceed at all before 7 April. Indeed, it is most uncertain what will be happening on 7 April. I am satisfied also that, whilst it would be preferable that the defendant is legally represented, he presents as a person who understands the processes. Indeed, at the commencement of the hearing today, he raised issues about the conditions and what he would like to happen in respect of the conditions. The defendant is not a person who has no understanding of what is going on and not a person who is incapable of making submissions. Whilst the situation is not ideal, I am satisfied that special circumstances exist.

Further, the defendant indicated to me that he was in touch with counsel. It seems to me that if, at the conclusion of the proceedings today, he wishes to speak to that counsel or contact that counsel, he may do so.

Therefore, my ruling today at 3.00pm on 23 March 2020, is that the matter will go on, on the basis that there are special circumstances, such that I should not adjourn the proceedings, but I will revisit that ruling tomorrow morning, 24 March 2020, if requested to do so.

In part, I make that ruling because, at this stage, all that is going to happen is that the State will outline its case. Again, I have asked the State to do so to make sure that the defendant understands it. The parties will tender their evidence and we will adjourn until tomorrow. That places the defendant in a position where he can have overnight to further consider the evidence.