Monteiro v State of New South Wales

Supreme Court of NSW|2022-02-21|Before: Campbell J, Fagan J

Solicitors: Crown Solicitors Office (Respondent) File Number(s): 2020/70194 2021/297999

Judgment

By Notice of Motion filed 20 October 2021, the plaintiff, Mr Monteiro, applies for an order under s 13 Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") revoking the extended supervision order imposed on him by Fagan J on 6 July 2020 (State of New South Wales v Monteiro (Final) [2020] NSWSC 881). It appears to me, as I pointed out to Mr Monteiro during the hearing before me, that the proceedings are probably irregular because they were not commenced by summons: Rule 6.4(1)(h) Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). I will return to this question.
The interlocutory application with which I am concerned is made by a further Notice of Motion filed by Mr Monteiro on 1 November 2021 seeking leave to issue various subpoenas to produce documents, subpoenas to give evidence and the making of other orders to procure evidence. Under Rule 7.3 UCPR a person not represented by a solicitor in the proceedings may not issue a subpoena without leave.
It may also be relevant to record that on 4 August 2020 Mr Monteiro sought to institute an appeal under s 22 of the Act from the extended supervision order. The appeal has not been prosecuted (2020/00226741).

Issues

The Notice of Motion by which Mr Monteiro purported to commence the application for revocation states no ground. From an affidavit filed with the motion for leave, which Mr Monteiro told me he did not read on the hearing, it is apparent that he does not rely on a material change in circumstances in accordance with s 13(1B) of the Act to found his claim for revocation, rather he seeks a reconsideration or review of the decision of Fagan J. No point was taken by the defendant, the State of New South Wales ("the State"), about the competence of the proceedings. During Mr Monteiro's oral submissions in discussion with me he seemed to articulate the following grounds: 1. the extended supervision order imposed is punitive not protective. 2. The risk assessments reports of the experts appointed by the Court under s 7(4) and the s 6(3)(b) report were "false". 3. The risk assessments reports referred to in Ground 2 were founded on professional tools which have been discredited. 4. Fagan J took into account alleged acts of which Mr Monteiro had not been convicted in formulating the risk of him committing a serious offence if not kept under supervision. 5. In making an Interim Supervision Order on 3 April 2020 Cavanagh J received evidence that had not been shown to Mr Monteiro: State of New South Wales v Monteiro (AKA Lowe) (No 3) (Preliminary) [2020] NSWSC 350 at [6]; State of New South Wales v Monteiro (AKA Lowe) (No 2) [2020] NSWSC 349. 6. Fagan J erred by failing to consider evidence favourable to Mr Monteiro. 7. Fagan J erred by inverting the onus of proof. 8. Fagan J failed to take into account a relevant consideration viz Mr Monteiro's desire to move on with his life.

Relief sought

It is necessary to set out the nature of the orders sought by Mr Monteiro. I make every allowance for his lack of legal training. The most effective way of dealing with the matter is to set out the relief sought in full. In doing so I have redacted a particular email address to protect Mr Monteiro's privacy and chosen not to name the solicitor and barrister who formerly acted and appeared for him respectively: "1.) That I subpoena [my former] solicitor and barrister… to give sworn evidence to establish whether or not [my solicitor] and [barrister] refused to act on relevant legal instructions, thereby depriving me of my case being heard fairly, impartially, without bias, affording me the right to procedural fairness, due process and natural justice. 2.) Furthermore, that I will extract evidence relevant to establish a legitimate forensic purpose in filed subpoenas. 3.) That [the solicitor] be ordered to provide a copy of all material pertaining to the ESO matter, including emails sent to her from me from xxxxxxxxxxxx.com. 4.) That a Cell-Bright forensic download of [the solicitor's] cellular telephone be ordered to retrieve all text messages to/from [the solicitor] and myself and C.L's cellular telephone and emails sent to/received from myself and anyone to do with me, also from [the solicitor] to [the barrister] from [barrister] to [the solicitor], and text messages between [the barrister] and the Crown/ [the solicitor], between [the solicitor] and the Crown, text messages to/From the Crown representatives for all of 2020/2021. 5.) Also, that [the solicitor] be ordered to provide all character references, affidavits pertaini ng to my matter that were provided to her from myself and to hers. 6.) Further, a subpoena to Google to provide all emails between xxxxxxxxxxxxxx.com and police and lawyers in 2019, 2020, 2021 regarding me. 7.) That I subpoena [the barrister] S.C/Q.C to give sworn evidence to establish whether or not [the solicitor/barrister] refused to act on relevant legal instructions, thereby depriving me of my case being heard fairly, impartially, without bias, affording me the right to procedural fairness, due process and natural justice. 8.) A Cell Bright forensic analysis be ordered of Detective Jessica Hammonds' cellular telephone and the other investigating officers phones, including Detective Bongiono and that the NSW Police be ordered to provide all emails sent from investigating police officers Jessica Hammond et al regarding me to anyone, records of all phone calls made and contact in person, including potential or actual witnesses, media agencies/journalists and all entries and enquiries by all police into the police COPS computer system made with respect to me, all note book entries and hard copy notations made, and CNI number; 751891, including intelligence files. 9.) A forensic analysis 0f [the solicitor's] various email addresses to acquire emails sent/received in 2020 regarding me and that [the solicitor] is ordered to provide the details of all email addresses she utilised and in existence in 2020 generated by [the solicitor] or someone on her behalf. 10.) The medical files of Justice Health NSW pertaining to myself. 11.) The computer files and case notes and hard copy case notes of Corrective Services NSW/ Community Corrections NSW, including all intelligence files and case notes, including the Trim psychology case notes and file s. 12.) That the NSW Police be ordered to produce to the court all my electronic devices seized as part of the ESO breaches investigation. That the Police be ordered to return the electronic devices to me immediately, as they have completed their investigations. 13.) A copy of submissions and hearing transcript held in archives in the Supreme Court NSW for case citation; Monteiro v NSW (No2) [2015] NSWSC. 14.) That I be granted leave to call the following witnesses to give sworn evidence as required:" (I have deleted the names of the possible witnesses. They are former legal representatives of the applicant, police officers, community corrections officers, family members, friends, associates and certain journalists. It is not necessary that they be identified for present purposes. On my count they are comprised of 32 persons).

Relevant legal principles concerning revocation of extended supervision orders

So far as material for present purposes s 13 of the Act provides as follows: (1) The Supreme Court may at any time vary or revoke an Extended Supervision Order or Interim Supervision Order on the application of the State or offender. ….. (1B) Without limiting the grounds for revoking an Extended Supervision Order or Interim Supervision Order, the Supreme Court may revoke an Extended Supervision Order or Interim Supervision Order if satisfied that circumstances changed sufficiently to render the order unnecessary. …
Section 21 of the Act is also relevant: Proceedings under this Act (including proceedings on an appeal under this Act) are civil proceedings and, to the extent to which this Act does not provide for their conduct, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings. Under s 22 of the Act an appeal lies as of right to the Court of Appeal from any determination of the Supreme Court at first instance to make, inter alia an extended supervision order. The appeal is by way of rehearing and "may be on a question of law, a question of fact or a question of mixed law and fact": s 22(2).
In New South Wales v Kay [2018] NSWSC 1235, Wilson J when asked to vary an existing order by the imposition of further conditions said (at [66]), "the wording of [s 31] is such that the Court's discretion is unfettered, subject to the objects and provisions of the Act".
In New South Wales v Banks (Preliminary) [2021] NSWSC 1246, Lonergan J referred to New South Wales v Myers [2018] NSWSC 1789; New South Wales v Schmidt (Preliminary) [2019] NSWSC 52 and New South Wales v Carr [2020] NSWSC 643. In each of those cases the s 13(1B) power had been exercised to find that due to a change in circumstances a person subject to the order no longer poses an unacceptable risk.
In New South Wales v Mills [2019] NSWSC 298 I observed at [23], "that (while) s 13 does not expressly confer a power to review or reconsider an extended supervision order, powers of review and reconsideration may well be implicit in a power to "vary or revoke" subject to such limitations as may be found in the language of the Act". By reference to ss 21 and 22, I held that an extended supervision order as a final order for the purpose of the doctrine of res judicata (at [27]), subject of course to the express power to vary or revoke. I questioned whether s 13 conferred an unfettered discretion (at [30]) and said: "The Court would not be empowered to come to a contrary conclusion on the basis of the same evidence and arguments that were presented [to the judge who made the order in question]. Section 13 does not permit forum shopping. Rather, reading s 13 as a whole in its full statutory context I am of the view … the power to revisit [a] finding made by [the judge] for the purpose of considering whether the order he pronounced … depends upon the demonstration of a material change in circumstances since the original order was made." It would seem to me that any power to reconsider implicit in the broad language of subss 13(1) and (1B) could not be based upon a mere critique of the decision to impose the Extended Supervision Order in question. It could not be based upon an argument that a different view should be formed of the same evidence led at the final hearing which preceded the making of the final order. This is especially so when one considers that s 22 permits what might be referred to as a full rehearing of the merits on appeal.
Mr Monteiro's grounds for revocation of the ESO as formulated during the discussion on hearing of his application are really more apt as grounds of appeal. Given the full right of appeal conferred by s 22, I doubt that a reconsideration or review of the original decision is permitted at first instance by the conferral of a power to revoke. It would seem to me that any revocation can only speak from the date on which the power to revoke is exercised and on the basis of evidence or grounds not reasonably available to the person subject to the order when the order was made.
As no question of the competence of Mr Monteiro's application was ventilated, it is unnecessary to pursue these questions further.

Principles relating to the relief sought

While bearing in mind the nature of the power invoked by Mr Monteiro, it is important to have regard to the principles governing the proper use of subpoenas. Rule 7.3 UCPR is in the following terms: (1) A subpoena may not be issued, except by leave of the court, unless the party at whose request the subpoena is to be issued is represented by a solicitor in the proceedings. (2) Leave under subrule (1) may be given either generally or in relation to a particular subpoena or subpoenas. (3) Despite subrule (1), a subpoena may not be issued in relation to proceedings in the Small Claims Division of the Local Court, except by leave of the court, in any circumstances.
The requirement for leave in the case of a self-represented litigant is to provide a filter excluding an abuse of the Court's power to issue subpoenas, especially to third parties to the litigation. In short, the requirement for leave is to protect the Court's processes by requiring the self-represented party who seeks leave to demonstrate that each subpoena sought to be issued has a legitimate forensic purpose.
In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, Bell P said ([at [65]): "It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are "apparently relevant" or, … it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent." (Emphasis added.) In the same matter Brereton JA said (at [85]): "The present application for leave to appeal raises the question whether, at least in the context of civil proceedings, for there to be a legitimate forensic purpose for the issue of a subpoena, it is necessary that the documents the subject of the subpoena will likely materially assist the case of the issuing party, or whether it suffices that the material called for will likely add, in the end, in some way or other, to the relevant evidence in the case. That is a question about which there has been some controversy, the resolution of which will provide clarity on an issue of general principle." The decision answers Brereton JA's question by acceptance of his second alternative.
In Waind v Hill and National Employers' Mutual General Association Limited [1978] 1 NSWLR 372 ("Waind v Hill"), Moffitt P (Hutley and Glass JJA agreeing) said (at p 382) that a subpoena may lack a legitimate forensic purpose if its terms "are so wide that it is oppressive". His Honour gave the example of requiring a branch of a bank to produce all cheques received by it in a particular year, in order to find, if it exists, a forged cheque. His Honour also said: "… it would be an improper use of the subpoena if it were not sought for the purpose of the litigation, but for some spurious purpose such as to inspect the document in connection with other proceedings, or for some private purpose or in collusive proceedings to give them publicity. A witness might argue that documents must be sought for some undefined spurious reason, as they have no conceivable relation to the proceedings. The court would jealously consider any such submissions having regard to the invasion of the private rights of a stranger occasioned by the operation of the subpoena."

Determination

I must say, from the content of Mr Monteiro's oral argument it is clear that he is bent upon the conduct of a wide ranging inquiry into the conduct of the police and corrective services not just in their treatment of him as he perceives it but much more generally, if he is permitted to do so. For this purpose, to adapt Moffitt P's language, he has advanced at best ill-defined, spurious arguments of potential relevance to cover the absence of any "conceivable relation to [these] proceedings." At least this is so in relation to most claimed categories. Moreover, he is under the misapprehension that the processes of the court can be invoked in these proceedings to impermissibly garner material in relation to other extent proceedings he has brought. Even so, I have attempted to evaluate his claims through the lens of potential relevance to the case at hand.
Category 1 concerns proposed subpoenas to give evidence to his former barrister and solicitor. The purpose of the subpoena expressed may possibly be relevant to an appeal, but it is not a legitimate forensic purpose in relation to any of the grounds for revocation expressed by Mr Monteiro in argument as set out above. More fundamentally there is no hearing date and no occasion has arisen for identifying persons who may give relevant testimony at any hearing. It would be an abuse of the Court's process to permit Mr Monteiro to conduct an examination of persons not expressly authorised by statute or the rules in advance of the hearing. I refuse leave for category 1.
Category 2 is comment or argument and requires no order.
Category 3 relates to email correspondence passing between Mr Monteiro and the solicitor who acted for him before Fagan J. The redacted email address is his. He states that he is unable to access it because his personal electronic devices have been seized by, and remain within the possession of, police (see category 12). Presumably this category relates to the purpose referred to in category 1 and the same reasons for refusal apply. Further, there is no evidence that any request has been made by Mr Monteiro to his former solicitor for the provision of a copy of the email correspondence. For that additional reason I would also refuse leave.
Category 4 does not relate to a subpoena at all. Rather it seeks an order that information from a mobile phone be converted into a different format. Information is sought "for all of 2020/2021". It is not clear whether this means for 2 calendar years or for a financial year. Nor is the purpose of the creation of information in the format sought made obvious. I am not satisfied that Mr Monteiro has any legitimate forensic purpose in seeking the information and it falls into the category of oppression because of its temporal breadth. To my mind a subpoena may legitimately require the production of documents, but not the conversion of documents into a different form.
Category 5, assuming it relates to a proposed subpoena, seeks the production of character references and affidavits "pertaining to, the proceedings before Fagan J". Again, as far as leave is concerned, there is no evidence that Mr Monteiro has sought the papers to which he may be entitled from his former solicitor, or that the former solicitor has refused to produce them. Nor is it apparent that the material relates to the grounds articulated. There is no evidence that Mr Monteiro does not have a copy of this material within his papers and I am not satisfied that he has a legitimate forensic purpose for requiring his former solicitor to produce the material. If this material was used before Fagan J it will be otherwise available (see [31] below).
Category 6 relates to all emails sent or received by Mr Monteiro's personal account between unspecified police officers and lawyers over three calendar years. The breadth of the category is of itself oppressive and no legitimate forensic purpose is evident. This category does appear to be a prime example of "fishing".
Category 7 falls into category 1 but relating to counsel. For the same reasons expressed in respect of category 1, I refuse leave to issue a subpoena in the terms sought in category 7.
Category 8, in my judgment, extends beyond the Court's power to subpoena documents. The terms it seeks is a Cell-Bright forensic analysis. It seems to require the creation of an expert report in relation to a police officer's mobile phone. Indeed, it seeks similar "analysis" in respect of the mobile phones of "the other investigating officers". It also seeks a swathe of electronic communication of a named officer "et al". It purports to extend to "contact in person" with "potential or actual witnesses, media agencies/journalists and all entries and enquiries made by police" into the police computer system. The breadth of what is required is breath-taking and goes well beyond oppression. Leave is refused. It cannot be said the category bears any "conceivable relation" with the present proceeding.
Category 9 again seeks to require the bringing into existence of a report involving a "forensic analysis" of certain material which does not in terms relate only to former solicitor, but to others "on her behalf". It is not limited in any way to any matter which might intelligently be based on the application to revoke the extended supervision order. The only point of limitation is anything sent or received "regarding" Mr Monteiro. Even if the category might properly be the subject of a subpoena to produce documents, no legitimate forensic purpose is evident.
Category 10 may possibly be relevant as much as it relates to Justice Health files pertaining to Mr Monteiro. I would grant leave for a subpoena to be issued for their production. Likewise, Category 11 at least so far as the documents described from part of the department's records relating to his custody and management in the community.
Category 12 seeks the return of Mr Monteiro's personal property lawfully seized by police. It seems to me that this is an improper use of a subpoena in the sense discussed by Moffitt P in Waind v Hill at p 382. It falls into the category of what his Honour described as a "spurious purpose" connected to other proceedings or "for some private purpose". Mr Mykkeltvedt of Counsel who appeared for the State drew my attention to ss 218 and 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"). Section 218 requires a police officer to return seized property if satisfied that its retention as evidence is not required and it is lawful for the person from whom it was seized to have possession of it. Section 219 empowers a court to order the return of the seized property. Mr Monteiro has not made an application under s 219. He read an email received from the relevant officer claiming the items were required for evidence because Mr Monteiro has a conviction appeal pending. It is an abuse of process to seek to use a subpoena under the rules for the pending litigation for a purpose extraneous to the proceedings, even if otherwise lawful. Mr Monteiro confirmed that he has lodged a conviction appeal against his conviction for breaches of the ESO and I express no opinion about whether the retention of his personal electronic devices by police as evidence for that purpose is lawfully required.
Without purporting to provide any legal advice, it seems to me that it would be necessary for Mr Monteiro to make an application under s 219 LEPRA to a court, by way of summons duly served on the officer who seized the devices, or the Commissioner for Police, seeking an order that the devices be returned, which can be dealt with in a regular manner. I refuse leave to issue a subpoena in these proceedings as a substitute for due process in respect of the seized property.
Category 13 should not be dealt with by way of a subpoena. So far as Category 13 is concerned, Mr Mykkeltvedt drew my attention to Rule 33.13 UCPR. Rather than a subpoena, the correct procedure is to require Mr Monteiro to comply with Rule 33.13 by applying to the Registrar in writing identifying the documents he requires and seeking their production to him for his inspection. It is not appropriate that leave be given for the issue of a subpoena.
As I have said, Mr Monteiro seeks leave to issue subpoenas to give evidence to a large number of disparate persons who may or may not have relevant evidence in relation to his application to revoke the ESO. As I have said already, the question of who is a relevant witness is premature and will not arise until the usual interlocutory steps have been taken in the proceedings. I repeat, it is not a legitimate use of a subpoena to give evidence to require persons to attend court for an examination not specifically authorised by statute or the rules in advance of the hearing and I would refuse leave in relation to category 14.

Orders:

For the reasons given, in matter no. 2020/70914: 1. Under Rule 7.3 Uniform Civil Procedure Rules 2005 (NSW) grant leave to the plaintiff to issue a subpoena to the Commissioner, Corrective Services New South Wales for the production of the Justice Health NSW medical files pertaining to Mr Monteiro and to his custodial records and the records of Community Corrections NSW including case notes and Trim psychology case notes (if applicable). 2. The Notice of Motion of 1 November 2021 is otherwise dismissed. 3. Direct the plaintiff to regularise the proceedings by filing a summons as initiating process in accordance with Rule 6.4(1)(h) UCPR stating the grounds upon which the revocation of the extended supervision order to which he is subject is sought. 4. List the matter for directions before the Registrar at 9 a.m. on 8 March 2022.
In matter no. 2021/297999: 1. List the matter for directions before the Registrar at 9 a.m. on 8 March 2022.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2022

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