Re Application by Simon Monteiro [2022] NSWCCA 10

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Re Application by Simon Monteiro [2022] NSWCCA 10 Hearing dates: On the papers Date of orders: 2 February 2022 Decision date: 02 February 2022 Before: Beech-Jones CJ at CL Decision: Applications for orders under s 12 of the Criminal Appeal Act 1912 dismissed Catchwords: CRIMINAL APPEAL – pending application for bail and leave to appeal against sentence – application for orders under s 12 – attempt to challenge Extended Supervision Order – no question of principle Legislation Cited: Crimes (High Risk Offenders) Act 2006 Criminal Appeal Act 1912 Cases Cited: Kable v State of New South Wales (2013) 252 CLR 118; [2013] HCA 26 State of New South Wales v Monteiro (aka Lowe) (No 3) (Preliminary) [2020] NSWSC 350 State of New South Wales v Monteiro (Final) [2020] NSWSC 881 Category: Procedural rulings Parties: Simon Monteiro (Applicant) File Number(s): 2022/20436

Judgment 1. This judgment concerns an application by Mr Simon Monteiro for the making of orders under s 12 of the Criminal Appeal Act 1912 for the production of documents and for witnesses to attend for examination. The power to make such orders can be exercised by a "Judge of the Supreme Court designated by the Chief Justice in the same manner as they may be exercised by the court, and subject to the same provisions" (s 22). The Chief Justice has designated all judges of the Common Law Division as having that power (and the other powers listed in s 22). 2. Mr Monteiro has a substantial criminal history including convictions for a number of serious sexual offences. In April 2020, just prior to the expiry of a parole period for such an offence, an Interim Supervision Order ("ISO") was made against him under the Crimes (High Risk Offenders) Act 2006 (NSW) (State of New South Wales v Monteiro (aka Lowe) (No 3) (Preliminary) [2020] NSWSC 350). On 6 July 2020, an Extended Supervision Order ("ESO") was made against Mr Monteiro for a period of five years (State of New South Wales v Monteiro (Final) [2020] NSWSC 881). 3. After pleading guilty, on or about 16 June 2021 he was convicted on breaching his ESO. He was sentenced to a non-parole period of 2 years commencing on 18 August 2020 and expiring on 17 August 2022. His total sentence will expire on 17 April 2023. 4. On or about 22 September 2021, a notice seeking leave to appeal against sentence was filed in this Court. It contended that his sentence was manifestly excessive. His application was originally listed for hearing on 9 February 2022. Additional grounds as to sentence were filed on 22 November 2021. 5. On 9 December 2021, he filed an additional ground of appeal alleging incompetence on the part of the legal representatives who acted for him in the District Court. The submissions that accompany his application make a series of allegations but they included an attack on the ISO and the ESO as well as personalised attacks on the judges who made them. This ground appears to be the foundation of a conviction appeal (though an amended Notice of Appeal has not yet been filed). 6. As the basis for his application to the Court expanded dramatically, the hearing date of 9 February 2022 was vacated and the application is anticipated to be relisted for 17 June 2022. However, Mr Monteiro filed an application for bail and that is listed on 9 February 2022. 7. Since he commenced acting for himself, Mr Monteiro has filed a number of applications that in effect seek the Court make orders under s 12 of the Criminal Appeal Act for the production of documents and the attendance of witnesses. 8. Mr Monteiro was given the opportunity to lodge submission specifying the basis for seeking the orders. His response dated 31 January 2021 included various scurrilous allegations against judges, lawyers and police as well as threat to create a website attacking me in the event that the matter is determined adversely to him. His conduct can be considered in the event that the circumstance arises in which there is an assessment of the risk he poses to others and the likelihood that he will comply with court orders. Otherwise, Mr Monteiro is now on notice that the inclusion in submissions of any form of threat against a judicial officer if they rule against him is, amongst other offences, potentially a serious contempt of court and may be dealt with as such. 9. One identifiable basis that emerged in those submissions, as well as the submissions lodged in support of his bail application and the application for leave to appeal against sentence, to support at least some of the production orders are sought concerns Mr Monteiro's challenge to the ESO and ISO. It seems that Mr Monteiro contends that in considering his bail application and ultimately his application for leave to appeal against sentence and appeal against his conviction, this Court can either set aside the ESO (and ISO) or otherwise determine that it should not have been made. Hence one of the production orders seeks copies of the "hearing transcripts" that lead to the making of the ISO and the ESO. 10. This aspect of Mr Monteiro's complaints is entirely misconceived. Both the ISO and the ESO are orders of a superior court of record, namely the Supreme Court. As such, they are valid unless and until set aside even if made in excess of jurisdiction (Kable v State of New South Wales (2013) 252 CLR 118; [2013] HCA 26 at [32] to [33] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ and at [56] to [57] per Gageler J). It follows that, even if the orders were to be now set aside by a court of competent jurisdiction, then it would have no effect on the issue whether Mr Monteiro committed an offence. Further, the Court of Criminal Appeal does not have jurisdiction to set aside the ESO or the ISO. Hence to the extent that Mr Monteiro seeks documents and testimony from witnesses for the purpose of attacking the making of the ESO (and ISO) in support of either his bail application or his application for leave to appeal against sense it is an exercise in futility. 11. As for the balance of the orders sought including for various witness orders none of them appear to have any relevance to the two grounds of the application for leave to appeal that referred to above and nor does their production appear necessary to support his bail application. 12. Accordingly, the applications are refused.