State of New South Wales v Monteiro (No 2)

1. [1]

   By notice of motion filed 17 February 2025, the State of New South Wales (the State) seeks an expedited hearing of an application for leave to appeal and appeal against an order, made on an interlocutory basis by Garling J on 20 December 2024, varying and deleting certain conditions of an Extended Supervision Order to which Mr Monteiro is subject (the ESO): Monteiro v State NSW [2024] NSWSC 1667 (the Order and the Judgment, respectively). On the application the State relied upon its written submissions, its summary of argument in support of its application for leave to appeal, and an affidavit of Mr McLachlan affirmed on 14 February 2025 which was read on the application. Mr Monteiro made detailed oral submissions opposing the application.

2. [2]

   The State’s contention is that expedition should be ordered having regard to the public interest safety issues arising and in order that the appeal is not rendered inutile. The State seeks directions such that the application for leave to appeal and appeal are heard and determined in advance of a further hearing (discussed below) before Garling J on 5 May 2025.

3. [3]

   At the outset it should be observed that the State’s contention that expedition should be ordered on the basis of public interest safety issues flowing from the Order does not sit comfortably with the evidence of Mr McLachlan that it was not until 16 January 2025, nearly a month after the Order, that the Crown Solicitor received instructions from the Attorney General for New South Wales to commence appellate proceedings. The summons seeking leave to appeal and application for expedition was not filed until 17 February 2025, nearly two months after the Order (with only a notice of intention to appeal having been filed on 17 January 2025). If the public interest safety issues were as pressing as was submitted, it is difficult to see why the State waited two months before commencing appellate proceedings and seeking expedition.

4. [4]

   Further, at a hearing before the Court of Appeal Registrar on 24 February 2025, the State did not oppose Mr Monteiro’s request that the hearing of the application for expedition not be listed before 10 March 2025.

5. [5]

   For the reasons set out below, the State’s application is rejected.

Context of the application for expedition

1. [6]

   By way of context, the ESO was made by Fagan J on 6 July 2020 under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) for a period of five years: State of New South Wales v Monteiro (Final) [2020] NSWSC 881. The index offence upon which the ESO was based was an offence contrary to s 61J(1) of the Crimes Act 1900 (NSW) committed on 2 January 2008. Following a jury trial, the respondent was convicted on one count of aggravated sexual assault. The circumstances of the index offence are described in the judgment of Fagan J (referred to above) at [11]-[14]. As Garling J recorded at [6]:

2. [7]

   Mr Monteiro was sentenced by Norrish DCJ to a term of imprisonment for the index offence of 11 years commencing 8 April 2009 and expiring on 7 April 2020 with a non-parole period of 6 years and 6 months expiring on 7 October 2015. His total sentence, having regard to associated offences of malicious damage to property and larceny, was 12 years and 3 months with a non-parole period of 7 years and 9 months.

3. [8]

   By summons filed on 7 December 2023 Mr Monteiro commenced proceedings for revocation of the ESO and a civil claim for damages. On 28 November 2024, Garling J made an order under Uniform Civil Procedure Rules 2005 (NSW), r 28.2 for the separate determination of the question:

4. [9]

   As Garling J noted in the Judgment, the final hearing on that separate question has been fixed to take place on 5 May 2025: J[21]. That separate question includes both variation of the conditions, and revocation, of the ESO. Consistent with this, Garling J said in the Judgment that he was dealing with the application for varying or revocation of the conditions of the ESO “on an interlocutory basis pending the final determination of the application”: J[3]. As Garling J expressly refused to undertake any determination of contested fact at the hearing in the Judgment, it will be open to the State to make contentions as to such matters at the hearing on 5 May 2025.

5. [10]

   As is thus apparent, his Honour has not made any final determination as to whether or not the conditions of the ESO should be varied or revoked but has left this for the hearing on 5 May 2025.

6. [11]

   That is consistent with the procedure which his Honour adopted for the purpose of making the Order. His Honour, having observed that he was considering an interlocutory application which had been brought on speedily, and that the Court had limited time available to deal with the application, found that it was neither possible nor appropriate to permit oral evidence to be given, or cross-examination to take place, on the filed written evidence: J [3]. As to this, his Honour said:

7. [12]

   The refusal to allow oral evidence or cross-examination was obviously of some significance as factual determinations and evaluations of risk are at the heart of proceedings such as those brought by Mr Monteiro in his summons of 7 December 2023. As the index to the White Book before this Court for the purposes of the application for leave to appeal shows, a large volume of written evidence was relied upon, both by Mr Monteiro and by the State, before Garling J. Oral evidence and cross-examination are likely to be of real importance in resolving the separate question on a final basis. This is particularly so given that primary object of the Act is one of ensuring “the safety and protection of the community”: s 3(1) of the Act, and that the power to vary the conditions of an ESO depends upon “demonstration of a material change in circumstances since the original order was made”: New South Wales v Mills [2019] NSWSC 298 at [30] (Campbell J) applied in Monteiro v State of New South Wales [2022] NSWSC 148 at [10] (Campbell J).

8. [13]

   Considered in this context, Garling J’s decision to vary the ESO only on an interlocutory basis is readily understandable. At the hearing on 5 May 2025 his Honour will likely hear oral evidence, and observe cross-examination, going to the question of risk and the appropriateness of Mr Monteiro remaining subject to the conditions of an ESO. As his Honour plainly recognised, he could not make a final determination as to the variation or revocation of conditions in advance of the ventilation and testing of evidence that will be an inevitable part of the hearing on 5 May 2025.

The Order

1. [14]

   By the Order, Garling J revoked the following conditions which had been imposed by Fagan J:

   1. (1)

      The defendant must wear electronic monitoring equipment as directed by the Department Supervising Officer (DSO) or any other person supervising him: Condition 4;

   2. (2)

      The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the prior approval of his DSO, which may not be withheld unreasonably: Condition 8; and

   3. (3)

      The defendant must, before commencing any form of employment, volunteer work or educational course, to advise the DSO of the nature and place of the relevant activity and the contact details of the person in charge and/or responsible for the plaintiff’s involvement and participation: Condition 13.

2. [15]

   His Honour also varied Condition 15, which had provided that the plaintiff must inform those supervising him of the name of any person with whom he has an intimate or sexual relationship within 24 hours, and must answer truthfully any questions about that relationship, and that person may be informed of the plaintiff’s criminal history. As amended by the Order, Condition 15 provides that:

3. [16]

   Conditions 16 to 23 which govern internet and other forms of communication were also varied by the Order.

The State’s contention as to utility

1. [17]

   The State’s contention as to the utility of an order for expedition is based primarily upon its submission that the appeal may be rendered inutile by any orders made by Garling J at or following the 5 May 2025 hearing. This submission should be rejected.

2. [18]

   The State’s proposed grounds of appeal, as elaborated upon in its Summary of Argument, are that Garling J erred by:

   1. (1)

      failing to provide adequate reasons; and/or

   2. (2)

      failing to take into account:

3. [19]

   Whilst the State’s proposed Notice of Appeal seeks orders setting aside the Order and dismissing Mr Monteiro’s notice of motion, it is unlikely that this Court would make such orders in light of the grounds of appeal advanced. Rather, the likelihood is that the matter would be remitted to Garling J for further consideration and/or to provide reasons. That further consideration could not practically occur prior to the 5 May 2025 hearing even if expedition of the appeal were ordered.

4. [20]

   Moreover, if Garling J revokes the ESO, then an expedited appeal will have had no practical significance. Recognising this, Senior Counsel for the State told this Court that the State would consider its position as regards prosecution of the appeal in these circumstances: Tcpt, 10 March 2025, p 17(25-30).

5. [21]

   If Garling J does not revoke the ESO, at the hearing of 5 May 2025 the State will in any event have had a full opportunity at that hearing to make contentions as to what variation should be made to the conditions of the ESO under s 13(1) of the Act having regard to all of the evidence, including elicited in cross-examination, before Garling J. Whilst Senior Counsel for the State made a somewhat faint submission (not advanced in the written submissions) that if its appeal proceeds prior to the hearing before Garling J on 5 May 2025, this Court will “provide appropriate guidance to Justice Garling about the proper way in which the variation of such conditions ought be approached”: Tcpt, 10 March 2025, p 22(48-50), she did not identify how this would be so. In any event, the significance of the evidence of Dr Parker and what the State says is Mr Monteiro’s “pattern (while subject to the ESO) of not disclosing details of his intimate relationships” is likely to turn very much upon the oral evidence and cross-examination which will no doubt occur at the hearing on 5 May 2025. In these circumstances, it is difficult to see how resolution of the State’s proposed grounds of appeal will provide any meaningful guidance to Garling J.

6. [22]

   If, contrary to my understanding of the Judgment as set out at [10]-[13] above, Garling J did not permit the State to make contentions at the hearing on 5 May 2025 as to variation of the conditions the ESO on a final (as opposed to interlocutory) basis, then the State could then prosecute its appeal against the Order and that appeal would have the same utility that it would have had if expedition were ordered. Whilst a successful appeal may necessitate a further hearing before Garling J, that is insufficient in my judgment to outweigh the waste of resources that would be occasioned by the preparation for, and hearing of, an appeal that may well be unnecessary or have little or no practical effect.

The State’s contention as to public safety

1. [23]

   The State seeks an expedited hearing because it considers that the deletion of Conditions 4 and 8 from the ESO “raises a matter of public importance with significant implications for community safety”, such that the expeditious determination of the appeal “is in the public interest”. The State contends that the deletion of these two conditions is significant to the ability of the Departmental Supervising Officer to supervise Mr Monteiro and the risks he possesses.

2. [24]

   The State did not put any evidence before this Court to make good this submission. In particular, there was no evidence explaining why, in the context of the ESO as a whole, the deletion of these two conditions significantly impacted the effectiveness of the supervision of Mr Monteiro under the ESO, having regard to the totality of the conditions to which Mr Monteiro remains subject, and which are set out at Annexure A to this judgment.

3. [25]

   Moreover, the State did not put any evidence before this Court to support its contention that there would be significant risk to public safety arising in the period of time between the hearing and determination of an expedited appeal, and either the hearing on 5 May 2025 and final determination of the separate question, or the hearing and determination of an appeal which was not expedited. On any view, an expedited appeal was unlikely significantly to reduce the period during which (on the State’s contention) there is a risk to public safety by reason of the Order revoking Conditions 4 and 8 of the ESO.

4. [26]

   In these circumstances, and having regard to the State’s delay in instituting the appeal and applying for expedition, I am unpersuaded that a risk to public safety justifies an order for expedition.

5. [27]

   I should add that Mr Monteiro advanced detailed oral submissions addressing the issue of risk to community safety, contending that there was never any unacceptable risk to the public in the first place and that, in any event, there is no current risk and no weight should have been given to Dr Parker’s report. Having regard to my conclusion as set out above, I have not found it necessary to make any findings as to the many matters he raised. In these circumstances, I do not propose to attempt to summarise his submissions in this judgment.

6. [28]

   Nor have I found it necessary to make any findings as to the weight or significance that should be given on the question of public safety to the findings of Fagan J in 2020 or to the extracts of the expert opinion of Dr Parker that were relied upon in the State’s written submissions at [4(iii)], noting that no report from Dr Parker was tendered in support of the State’s application for expedition. Again, in these circumstances, there is no need to repeat those matters here.

Mr Monteiro’s contention of prejudice

1. [29]

   At the hearing on 10 March 2025 Mr Monteiro contended that he would be prejudiced were the State’s application for expedition to succeed. In essence, he relied upon four matters.

2. [30]

   First, he contended that this would prejudice his ability to prepare for the 5 May 2025 hearing, and the appeal, in circumstances where he has a range of ongoing legal matters that he has to attend to and has limited financial and personal resources to deal with these matters. He says he has been under considerable stress by reason of the legal proceedings he is already involved in: Tcpt, 10 March 2025, pp 6(50)-7(1-5).

3. [31]

   Second, he contended that the barrister currently representing him in other matters had agreed to represent him and had some familiarity with the issues: Tcpt, 10 March 2025, p 7(15-19). He said that this had to be approved through Legal Aid, which would take time. Following the hearing, by email of 11 March 2025, my Associate was notified that Mr Monteiro had received a grant of Legal Aid for solicitors, junior counsel, and senior counsel for the appeal, and that solicitors were on the record and junior counsel had been briefed. However, the solicitors informed my Associate that the only day on which junior counsel was available was 2 April 2025, “but we would be seeking further time due to counsel’s availability”. Available dates for senior counsel could not be given as no-one had yet been briefed.

4. [32]

   Third, he contended that he suffered significant prejudice by reason of having the ankle bracelet: Tcpt, 10 March 2025, p 29 (39-41), including because he could not work whilst he had the ankle bracelet on: Tcpt, 10 March 2025, p 31(33-34) and because this prejudiced him psychologically: Tcpt, 10 March 2025, p 33(47-50).

5. [33]

   Fourth, he contended that there was prejudice to him because an appeal would deny him the opportunity to show that there was no offending or complaints during the entirety of the period between 20 December 2024 (when Garling J made the Order removing the requirement that he wear an ankle bracelet) and the hearing on 5 May 2025 (and he contended that this was in fact the reason why the State was seeking expedition): Tcpt, 10 March 2025, pp 32(43)-33(7).

6. [34]

   Given my conclusion that the State has not made good its contentions in support of expedition it is unnecessary to consider these matters.

Conclusion

1. [35]

   It follows that the State’s application for expedition of the appeal is dismissed.

2. [36]

   The orders I make are:

   1. (1)

      Application for expedition is dismissed.

   2. (2)

      The matter is referred to the Court of Appeal Registrar’s List on 17 March 2025 at 2.30 pm.