Australia, June 3 -- New South Wales Land and Environment Court issued text of the following judgement on May 5:

1. Mr Monteiro has made application by way of summons, inter alia, for the revocation of an extended supervision order ("ESO") made against him by Fagan J, under the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"): State of New South Wales v Monteiro (Final) [2020] NSWSC 881. The order that was imposed as long ago as 5 July 2020 but had been suspended by reason of Mr Monteiro serving a fixed term of 18 months' imprisonment under a sentence substituted by the Court of Criminal Appeal in relation to a conviction for breaching the conditions of the ESO. That has had the legal effect that the duration of the ESO has been extended until January 2027 by reason of its suspension.

2. The application for revocation under s 13 of the Act was lodged in December 2023. It involves some complex questions. The matter had been case managed initially by Harrison CJCL and more recently by Garling J. In November 2024, Garling J made orders for the determination of a separate question, to which I will return.

3. At a time when he was not legally represented, Mr Monteiro purported to include in his summons extensive claims for damages against the State and various of its instrumentalities concerned with his custody and supervision. Garling J continues to case manage those aspects of the claim, and they are currently listed for further directions before him on 5 August 2025. The various issues dealing with the application for revocation, are the subject of the separate question, which was formulated by Garling J. Given the complexity of some of the issues, Garling J listed that matter for hearing commencing today, with an estimate of three days. At the time the matter was fixed, it was obviously felt that a sufficient period of time for preparation was required. Hence, the period of about six months that was allowed by the directions his Honour made; I infer.

4. In the interim, Mr Monteiro was able to obtain a grant of Legal Aid for his application for revocation, extending to the retention of solicitors and senior and junior counsel. It is apparent from what Mr Monteiro told me from the bar table, that tension crept into that relationship and, indeed, he said, frankly, there was a breakdown in his relationship with senior counsel briefed, notwithstanding that person's eminence and long experience in this area.

5. The situation has now arisen where the solicitors formerly acting for Mr Monteiro, pursuant to the grant of Legal Aid, have withdrawn their representation, and he tells me from the bar table, and it is not disputed by the State of New South Wales, that he was informed of that development last Thursday, that is to say, two business days before the commencement of the hearing. It is also apparent from the way Mr Monteiro wishes to present his case, that all of the evidence he would wish to rely upon, has not been marshalled, reduced into admissible form and served upon the State. In particular, potentially material evidence from a forensic psychologist whom Mr Monteiro tells me has been treating him for some time, has not been obtained. Clearly, such evidence may be highly relevant to the question of whether Mr Monteiro continues to pose an unacceptable risk, within the meaning of s 5B of the Act.

6. Mr Monteiro also made clear that there is a body of evidence from, I will say, lay witnesses of a positive nature he wished to lead, which he submits is capable of proving that the risk identified on the evidence accepted by Fagan J does not exist. Such lay evidence may well be very material to be considered in conjunction with the expert evidence, in a case of this nature.

7. I should make it clear that, as Mr Monteiro has made clear to me, his case not limited to an argument that there has been a material change in circumstances since Fagan J made the ESO. He wishes to advance the case, that the imposition of the ESO against him, was always unjustified. Mr Monteiro would probably express it in stronger language. While I have discussed with him this morning potential legal difficulties in a wholesale challenge to the legality of the imposition of an order by another judge of the Common Law Division, there is no doubt that the width of the power conferred upon the Court by s 13 of the Act may extend to the consideration of circumstances before the imposition of the order, as well as after: State of New South Wales v Mills [2019] NSWSC 298.

8. The matter which is of the most concern in terms of the interests of justice in this case is given that an ESO represents very significant infringement of a person's right to be at liberty, the opportunity to vindicate one's rights with the assistance of properly qualified and experienced legal representation is important. Given the grant of Legal Aid and the previous availability of representation, I am satisfied that Mr Monteiro would wish to take advantage of that opportunity, as he has assured me, to give himself the best chance of successfully pursuing his application. I am persuaded by him that the interests of justice require that I grant him an adjournment, to obtain legal representation by lawyers who will complete the necessary preparation of the evidence, that he tells me is available, relevant to his case.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196a8a8433634e538fae39af)

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