Simon Monteiro (Monterio) v Commissioner of Police

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.

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.

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.

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:

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

Accordingly, I make the following orders: