QLD Public Liability: District Court of Queensland considers a request for information pertaining to prior criminal convictions – E-G v Moodoonuthi [2023] QDC 34

The District Court of Queensland has recently considered the scope of s 27 of the Personal Injuries Proceedings Act 2002 (Qld) (‘PIPA’) in the context of a request for documents about prior criminal convictions.   

Background

In August 2019, the respondent sexually assaulted, physically assaulted, and stabbed the applicant at Gecko’s Backpackers hostel in Cairns. The respondent was subsequently convicted of a number of offences, with the sentencing judge making various observations about the respondent’s criminal history, which included a history of violence against women, when providing sentencing remarks.  

The applicant subsequently made a claim for damages against the respondent and the owner and operator of Gecko’s Backpackers.  

The subject application was made by the applicant, seeking an order pursuant to s 27(1)(b)(i) of the PIPA, requiring the respondent to provide details of his Queensland criminal history and the relevant sentencing remarks.  

Submissions of the Parties

The respondent opposed the application, submitting that: –  

  1. Allowing the application would be unjust as it would amount to him being punished twice, contrary to s 16 of the Criminal Code Act 1899 (Qld);  
  2. His criminal history could not be used to elevate a compensation claim; 
  3. It was the responsibility of Gecko’s Backpackers to do a criminal history check; 
  4. The sentencing judge had stated that the respondent did not have any previous convictions for sexual offences;  
  5. The respondent had not yet been able to test the applicant’s claim; and 
  6. He hadn’t had the opportunity to obtain legal assistance, nor time to consider the applicant. 
It was submitted on behalf of the applicant that the request information was relevant to explaining the respondent’s conduct on the date of incident, why the incident occurred, as well as an answer to any allegation that the applicant somehow provoked, caused, or contributed to the assaults which lead to her physical or psychiatric injuries.  

Decision

The court opined that the respondent’s submissions were misconceived, and not directed to the relevant statutory test the court must apply in considering the application. The court was also satisfied that the respondent had been afforded procedural justice, and that those submissions alleging the contrary were without merit.  

The court’s conception of the relevant statutory test was whether the court was satisfied that the information sought was both in the respondent’s possession, and was “about the circumstances of, or the reasons for, the incident”. 

In its decision, the court referred to the Court of Appeal’s decision in SDA v Corporation of the Synod of the Diocese of Rockhampton (2021) 8 QR 440 (‘SDA’). The court noted that it was held in SDA  that the nature of information about prior similar incidents (then, in the context of a claim for damages as a result of abuse in an institution) which is required to be given by a respondent under s 27(1)(b)(i) is not “confined to information about prior incidents that have a causative effect in relation to the incident alleged by a claimant.” 

With respect to the constructions of s 27(1)(b)(i), referencing SDA, the court opined that the word “circumstances” refers to the facts surrounding the act, omission, or circumstance (i.e. what happened). According to the court, the term “reasons for” is properly understood as referring to facts that go to explaining the act, omission, or circumstance that allegedly caused all, or part, of the personal injury (i.e. why it happened).  

Applying the “broad remedial construction of s 27(1)(b)(i) adopted in SDA”, the court accepted the applicant’s submissions, opining that the respondent’s criminal history was information about the “reasons for” the incident, insofar as it may serve to explain the act, omission, or circumstance that allegedly caused all, or part, of the personal injury. Further, submissions made in respect of the sentencing hearing would also provide information on the circumstances of the incident.  

In light of the above, the court allowed the application, issuing orders compelling the respondent to provide his criminal history and transcripts on sentence, as well as a statutory declaration in compliance with s 27(3) of the PIPA.  

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