HIS HONOUR: By his notice of motion filed on 11 June 2024, Simon Monteiro applies pursuant to UCPR 49.19 for a review of a decision by the Registrar refusing to grant him leave to issue a series of subpoenas. The question of whether or not these subpoenas manifest a legitimate forensic purpose must be assessed by reference to the principal proceedings and the issues calling for determination.
Mr Monteiro is currently the subject of an extended supervision order imposed on 6 July 2020 by Fagan J: see State of New South Wales v Monteiro (Final) [2020] NSWSC 881. Although it is by no means clear from the state of the current pleadings, as to which see below, I am at least generally satisfied from the way in which the present application has been conducted by Mr Monteiro that he ultimately seeks a revocation of the extended supervision order in accordance with s 13 of the Crimes (High Risk Offenders) Act 2006. That section is in these terms:
13 Supervision order may be varied or revoked
(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 the offender.
(1A) The period of an order must not be varied so that the period is greater than that otherwise permitted under this Part.
(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 have changed sufficiently to render the order unnecessary.
(2) For the purpose of ascertaining whether to make such an application in relation to an extended supervision order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months.
(3) The report must indicate whether the Commissioner considers the continuation of the extended supervision order to be necessary and appropriate. [emphasis added]
Although it will be necessary in due course to return to the grounds upon which Mr Monteiro seeks to revoke his extended supervision order, I anticipate from his submissions that he proposes at the final hearing to contend that he is not limited or constrained in his revocation application by the need to establish "that circumstances have changed". I apprehend that Mr Monteiro wishes to contend, among several other things, that what he maintains has been the unfair, oppressive and overly pedantic administration of the conditions attaching to the order, mean that it should now be revoked. Unfortunately, in my opinion, a case articulating a claim for relief on such a basis has so far not been adequately exposed.
In that context it is timely to recall the terms of the relief originally sought by Mr Monteiro in his summons filed on 7 December 2023:
RELIEF CLAIMED
Pursuant to any and all sections relevant to my application of the Crimes (High Risk Offenders) Act 2006
A An order that the Commissioner has been unreasonable, made irrelevant considerations [sic] and did not at the time provide reasons for refusal to grant permission to leave the State be made [and] has not made relevant considerations in making an administrative decision, an order be made that the decision deprives me of due process, procedural fairness and natural justice.
B An order that the Commissioner must not now give a formal direction in response to this judgment, or internal direction, that the applicant not leave the State.
C An order that the Court rule that the material the Crown has served on me at the eleventh hour is onerous excessively to say the least and will make it impossible for me to fairly continue this application, and that the material is inadmissible, as it must be filed before the case started and when the Commissioner made a decision I must receive the reasons for his decision.
D An order that the Commissioner's decision is unlawful and/or invalid and/or unreasonable and/or not in accordance with the Crimes (High Risk Offenders) Act 2006.
Three things about these claims need to be said. First, Mr Monteiro is not legally represented. He is not to be criticised for that and the Crown has, in terms, repeatedly conceded that, in such circumstances, an appropriate allowance needs to be made for him. Secondly, the summons would appear to have been filed by Mr Monteiro in the shadow of a particular decision concerning a refusal to permit him to travel to Queensland and in that respect is more narrowly focussed than the type and scope of relief that his extensive oral presentations have made abundantly clear he wishes to pursue. Thirdly, Mr Monteiro has filed an "amended summons" since the original summons was filed.
In order that my present understanding of Mr Monteiro's concerns should not be misrepresented or misunderstood, I shall summarise what I confidently perceive to be the raft of matters that he wishes to agitate.
Mr Monteiro's extended supervision order was first imposed for a period of 5 years, expiring on 5 July 2025. However, Mr Monteiro has spent an additional period in custody between 19 August 2020 and 17 February 2022 following his conviction for breaching conditions imposed as part of the extended supervision order as well as the terms of the interim supervision order that preceded it. As a result, Mr Monteiro's extended supervision order is now due to expire on 5 January 2027, or exactly 18 months later than provided for in the original order.
As the Crown's submissions note, and as I have earlier mentioned, Mr Monteiro's revocation application appears to be a response to a decision by the Commissioner for Corrective Services refusing to approve a request to travel to Queensland over the Christmas period. It was at that time that it became apparent that Mr Monteiro wished to make an application to revoke his extended supervision order, a matter that could obviously not have been accommodated by the duty judge at the time it came to be considered.
Since then, Mr Monteiro has served the defendant with what has been described as an amended summons, containing more extensive claims for relief than its predecessor. On 1 July 2024, I granted Mr Monteiro leave to file that document in Court and the defendant quite properly accepted that it should be taken to be Mr Monteiro's current "pleading". It is in the following terms:
"Relief Claimed
(1) Pursuant to section 13(1) of the Crimes (High Risk Offender) Act 2006 (NSW) and other relevant sections of the Act, and pursuant to the relevant section/sections of which ever Act is appropriate in NSW, I seek the following:
(a) The Supreme Court make an order that the Extended Supervision Order be immediately and totally revoked.
(b) The Supreme Court make a finding and order that the Extended Supervision Order was unlawfully imposed, as the information relied on by the Court was known to be fraudulently misleading, untrue, manipulated, exaggerated, by the Crown, CSNSW et al, and that due process, procedural fairness and natural justice was not afforded to me in critical areas and areas that made the imposition of the order unlawful & unconstitutional. This occurred at both the ISO hearing and ESO hearing.
(c) An order be made for damages in the form of financial compensation/relief, being awarded to me for being deliberately criminally tortured in Goulburn prison in 2014 and at other prisons (including Goulburn Prison) before and after 2014 by custodial & medical staff, for deliberately mistreating me in and out of custody in deliberate, cruel, spiteful, inhumane, perverse, odious, criminally assaulting me & purposely inflicting as much pain & suffering as correctional staff in custody and community corrections staff in the community could dream up and scheme. The damages sought are $10,000,000.00 (Ten Million dollars). This also would include CSNSW/CCNSW staff deliberately depriving me of reasonable conditions, management supervision et al that would enable me to run a business, pursue employment, study or plan my future.
(d) The Supreme Court make an order that the Crimes (High Risk Offenders) Act 2006 (NSW) is unconstitutional by design, and application at the regulatory and administerial level.
(e) That the applicant, by order of the Supreme Court of NSW be lawfully and effectively enabled to litigate (sue) government employees personally and that these individuals have their government immunity/judicial immunity stripped (per Salvatore Vasta FCJ Case) for deliberately abusing & exceeding their employment remit job description, rules & regulations, policy and procedures, legislational and regulatory requirements and boundaries. Those individuals will be named in a statement of claim, affidavit, written & oral submissions.
(f) An order be made that my name may not be published unless an application be made to the Supreme Court and not until the applicant is present to defend the application to publish.
(g) An order be made & a finding that the treatment the applicant has been subjected to from 2008 until present by CSNSW/CCNSW, has been, and remained to be, extremely cruel, perverse, odious, deliberate, tantamount to a personal vendetta sponsored by the State, akin to terrorism of my very existence, extremely inhumane, criminally torturous (torture) at times and purposely, by design, to be as uncomfortable, difficult, intolerable and has destroyed my physical, emotion & mental health to the point I may never recover and function normally ever again, due to the damage being so profound.
(h) An order/finding be made, that an unacceptable risk was never established requisite to justify the imposition of an ISO/ESO.
(i) An order/finding be made that the investigating officers of the NSW Police, John Bongiorno detective / Jessica Hammond Detective withheld crucial/relevant evidence and misled the court in statements and statements of facts/antecedents, resulting in the applicant being unnecessarily/unfairly/without justification imprisoned for 2 years based on purported technical only breaches of the ESO that was unlawfully imposed."
It will be immediately apparent that there are a number of different claims in this document that do not fall easily or, in some cases, at all within the rubric of an application to revoke an extended supervision order. That does not, of itself, mean that such claims, subject to being properly and clearly pleaded, could not all be maintained in the one proceeding. For presently relevant purposes, however, it tends to complicate the assessment of which of the subpoenas that Mr Monteiro wishes to issue have an obvious forensic purpose. Specifically, and inadvertently in a way that is potentially inimical to Mr Monteiro, the assessment of the forensic legitimacy of the subpoenas could become more restricted than necessary if the revocation of the extended supervision order were treated as the only relevant touchstone: the wider the ambit of Mr Monteiro's claims, the wider the potential matters calling for consideration.
Having said as much, the particular difficulty that confronts the present application, at least from my position, is not merely that Mr Monteiro's claims are not properly pleaded but that they are not pleaded at all. Although the defendant has not so far taken the point, there remains a considerable risk that any final hearing of these proceedings will be difficult, if not impossible, to manage unless the precise claims are properly articulated, and the defendant has been required to formulate a defence to them, in accordance with the rules.
I appreciate that Mr Monteiro wishes to prosecute at least the following claims:
1. An order that the extended supervision order made on 6 July 2020 be revoked.
2. Further or in the alternative, by reason of the matters that were before Fagan J, an order that the extended supervision order made on 6 July 2020 is invalid and of no force or effect.
3. In the alternative to order (2), a declaration that the extended supervision order made on 6 July 2020 is constitutionally invalid.
4. Damages for personal injuries, including psychological injuries, loss of enjoyment of life and loss of income caused or occasioned to him by reason of the mode of application and enforcement of the conditions of his extended supervision order made on 6 July 2020.
5. Damages for personal injuries, including psychological injuries, loss of enjoyment of life and loss of income caused or occasioned to him by reason of the illegal and improper treatment of him whilst an inmate of the New South Wales prison system.
It is not for me to comment upon the viability of any such claims as Mr Monteiro may wish to pursue, including the extent to which any claim may be barred by operation of the Limitation Act 1969. Nor is my reference to the claims that I perceive Mr Monteiro wishes to maintain intended to exclude any claims that I have not generally identified. Moreover, it is no part of my role to offer legal advice to Mr Monteiro about what causes of action he might have that are viable or what causes of action are probably or possibly without merit.
My principal concern, bearing in mind the admirable restraint exhibited by the defendant thus far, is to ensure from the Court's standpoint that whatever case Mr Monteiro wishes to pursue is framed or formulated in a way that eliminates or at least minimises the prospect of wasted court time that might potentially result from any confusion or misunderstanding about what is alleged or the legal and factual basis upon which it rests.
Limiting for present purposes my attention to Mr Monteiro's claim for relief pursuant to s 13 of the Act, the following matters should be noted.
In State of New South Wales v Schmidt (Preliminary) [2019] NSWSC 52, Walton J analysed the construction of s 13 at [14]-[31]. At [21], he specifically said of s 13(1B):
"The opening words of s 13(1B) are clearly designed to preserve the broad discretion residing in the Court under s 13(1) as referred to in Kay [State of New South Wales v Kay [2018] NSWSC 1235]. The use of the words 'the grounds' may require further attention after more detailed argument directed to the meaning of the expression but whether construed as the factors forming a basis for action or as a justification for forming a view or conclusion regarding the same, the plain intention is to preserve the width of discretion in the Court under s 13(1)."
The "broad discretion" in Kay, identified by Walton J, referred to remarks by Wilson J as to the operation of s 13(1). In Kay at [66], Wilson J said:
"the wording of [s 13] is such that the Court's discretion is unfettered, subject to the objects and the provisions of the Act".
The objects and the provisions of the Act are as follows:
3 Objects of Act
(1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.
(2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.
Attention to these objects will undoubtedly be important when this case is heard.
I have also been referred to the particularly helpful analysis of s 13 conducted by Campbell J in State of New South Wales v Mills [2019] NSWSC 298, especially at [21] ff.
Although I have so far only been concerned with these proceedings for the purposes of adjudicating upon the subpoenas Mr Monteiro wishes to issue, it is clear that his claim for revocation of the extended supervision order has proceeded upon the express or implied assumption that he must demonstrate a change in circumstances before he can succeed with such a claim. As I have attempted to make plain, whether with or without statutory support for his contentions, Mr Monteiro clearly wishes to argue that he is not so limited, as the opening words of s 13(1B) would suggest, and in particular that the discretion to revoke such an order is not only unfettered but includes the manifold circumstances under which, and the ways in which, the conditions attaching to such an order have, or may have been, enforced or administered. I take Mr Monteiro to contend that the circumstances supporting the breaches for which he was convicted, and which were the subject of the sentence imposed by his Honour Bright DCJ in R v Monteiro [2021] NSWDC 340, are matters of this type.
In summary, I am not satisfied that the present proceedings are yet in a state of sufficient readiness for any principled decision to be made concerning Mr Monteiro's subpoenas. Additionally, there are logistical difficulties issuing subpoenas to attend and give evidence when no hearing date has been set. Furthermore, there is at least some prospect that Mr Monteiro has not yet come to terms with the limited ability of a party calling a subpoenaed witness to cross-examine such a person, a proposal to which Mr Monteiro has regularly adverted.
Mindful of the fact that Mr Monteiro is neither legally represented nor legally trained himself, the matter is not in my estimation capable of progressing until Mr Monteiro's claims are properly pleaded and particularised in a statement of claim. For all I know, Mr Monteiro may wish to limit his concerns to the revocation of the extended supervision order and postpone the balance of his claims for damages and the like. Those matters will need to be clarified before any proper assessment of his subpoenas can be provided.
To that end, and subject if necessary to hearing the parties further, I would propose the following orders and directions:
1. Direct Simon Monteiro within 28 days, or such other period as the Court may either by agreement or on the application of the parties or one of them provide, file and serve a statement of claim in accordance with the rules.
2. Direct the defendant, within 28 days following receipt of the statement of claim contemplated by order (1), to serve on Mr Monteiro any request for further and better particulars of the statement of claim as it may be instructed to make.
3. Direct Mr Monteiro to answer the defendant's request for further and better particulars within 28 days of the receipt of the request.
4. Direct the defendant to file and serve its defence to the statement of claim within 14 days of the receipt of Mr Monteiro's answers to its request for further and better particulars.
5. List the proceedings for directions before me by arrangement with my Associate on such date as may be appropriate, and suitable to the Court, having regard to the parties' compliance with order (1) to (4) hereof.
6. Grant liberty to the parties to apply on 48 hours' notice to my Associate and to the other party.
7. Reserve the costs of Mr Monteiro's application to review the order of the Registrar concerning his attempt to issue subpoenas.
[2]
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Decision last updated: 17 July 2024