Warning: This article contains details about sexual assault which may be upsetting for some readers. Reader discretion is advised.
The District Court of Queensland considers the ambit of a request for documents about prior criminal convictions under section 27 of the Personal Injuries Proceedings Act 2002
The Queensland District Court considered the ambit of a request for documents about prior criminal convictions under section 27 of the Personal Injuries Proceedings Act 2002 (“PIPA”) in the context of an assault claim.
In August 2019 at Gecko’s Backpackers hostel in Cairns, Mr Moodoonuthi (“respondent”) sexually and physically assaulted, and stabbed, Ms E-G (“applicant”) (“the incident”). It was alleged by Mr Hoare, the director of Gecko’s Backpackers, that the respondent worked for accommodation and was never “employed”.
As a part of the respondent’s criminal sentencing for the incident, the sentencing judge made various comments pertaining to the respondent’s criminal history including his history of violence against women.
Having sustained personal injuries as a result of the incident, the applicant gave a Part 1 Notice of Claim under PIPA to the respondent, as well as the owner and operator of Gecko’s Backpackers, claiming damages.
The incident described in the notice of claim comprised the assaults suffered by the applicant which was generally consistent with the factual basis upon which the respondent was sentenced.
The applicant sought an order pursuant to section 27(1)(b)(i) of PIPA, requiring the respondent to provide details of his criminal history, including sentencing remarks (in circumstances where the respondent refused to provide the requested details).
In response to the application filed pursuant to section 27(1)(b)(i), the respondent submitted that:
- to allow the application would be unjust because he would be punished twice, contrary to section 16 of the Criminal Code Act 1899 (Qld) (‘the Code’);
- his criminal history could not be used to elevate any compensation claim;
- it was Gecko’s Backpackers’ responsibility to do a criminal history check;
- the sentencing judge said that he did not have any previous convictions for sexual offences;
- he had not yet been able to test the claim; and
- he had not had the opportunity to obtain legal assistance or time to consider the application properly.
The Court found that the respondent’s submissions were misconceived and not directed to the statutory test to be applied with reference to an application under section 27(1)(b)(i) of PIPA.
The District Court noted that section 27 of PIPA was considered by the Court of Appeal in SDA v Corporation of the Synod of the Diocese of Rockhampton (2021) 8 QR 440 (SDA) where it was held that the nature of information about prior similar incidents (in the context of a claim for damages for abuse in an institution) which is required to be given by a respondent to a claimant under section 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.
On behalf of the applicant, it was submitted that the information in the respondent’s criminal history and sentencing remarks was relevant to explaining his conduct on the date of incident, why the incident occurred, and to answer any allegation by him that the applicant provoked, caused, or contributed to the assaults upon her, or to her physical or psychiatric injuries.
The Court applied the broad remedial construction of section 27(1)(b)(i) of the PIPA (consistent with the decision of the Court of Appeal in SDA), and, in doing so, accepted the applicant’s submissions.
In the circumstances, the Court concluded:
“The [respondent’s] previous criminal history, including convictions for violent offending, and propensity for violent offending (as described by the sentencing judge), is information about the “reasons for” the incident, in that it may serve to explain the act, omission or circumstance that is alleged to have caused all or part of the personal injury, ie. why it happened, what [the respondent] did or did not do, what Gecko’s Backpackers did or did not do, and also, what it ought to have done.
Information in submissions made on the sentencing hearing would also refer to the facts surrounding the incident, ie. what happened, and facts to which occurrence of the act, omission or circumstances may be attributed, and therefore be about “the circumstances of” the incident.”
On that basis, the Court allowed the application and issued orders compelling the respondent to:
- Provide a copy of his entire criminal history and transcripts on sentence; and
- Provide a statutory declaration in compliance with section 27(3) of the PIPA, and that costs of and incidental to the application be the costs of each party in any proceedings commences.
Implications for you
This decision falls in line with that previously made in the earlier decision of SDA and highlights the importance of considering the scope of allegations made by the claimant in their notice of claim when responding to a request made under section 27(1)(b) of PIPA.