E-G v Moodoonuthi[2023] QDC 34

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   In August 2019 at Gecko’s Backpackers hostel in Cairns, Mr Moodoonuthi sexually and physically assaulted, and stabbed, Ms E-G,^[1] a young Chilean tourist.
2. [2]
   Moodoonuthi was charged with three offences: count 1, sexual assault; count 2, assault occasioning bodily harm; and count 3, attempted murder, or alternatively, wounding with intent to do grievous bodily harm. He pleaded guilty to count 2, assault occasioning bodily harm and not guilty to count 1, sexual assault, and count 3, attempted murder, but guilty to wounding with intent to do grievous bodily harm. The latter plea was not accepted in discharge of count 3. A trial ensued on counts 1 and 3. He was found guilty of count 1, sexual assault, but the jury failed to agree on count 3. There was a retrial on count 3. His previous plea to count 3 was vacated. At the close of the Crown case, following discussion between the parties, he was rearraigned and pleaded guilty to wounding with intent to do grievous bodily harm. That plea was accepted in discharge of the indictment and the jury was discharged.
3. [3]
   For count 3, wounding with intent to do grievous bodily harm, Moodoonuthi was sentenced to eight years imprisonment with a serious violent offender declaration, which required him to serve 80% of that sentence before being eligible for parole. He received lesser concurrent sentences for counts 1 and 2. He remains incarcerated.
4. [4]
   Moodoonuthi was sentenced on the following factual basis. He was working at the hostel in return for free board. E-G was a paying guest at the hostel, staying there with her friend, another young woman tourist. Moodoonuthi and E-G were both in the kitchen. He was washing up. Without warning, he briefly grabbed her by the vagina, cupping his hand outside her clothing under her pubic region and applying a lot of pressure. It was described as an active and deliberate grope. She was angry and responded by striking him on the head with a cup. He flew into a rage and assaulted her by punching her multiple times, including after she fell to the ground. The assault broke her nose and left her face bruised. Her friend pulled her along the floor away from Moodoonuthi. He retrieved a carving knife from the bench. E-G and her friend ran away, out the front towards the street. Moodoonuthi chased them, caught E-G and stabbed her, causing a small wound to her upper arm. He grabbed her from behind and then stabbed her in the upper chest, lower neck area. It was described as an obviously deliberate and forceful stabbing, the blade penetrating her, bypassing the collarbone, upwards and towards the midline, all the way to the spine, where it fractured two winglets of the vertebrae. By his plea of guilty, he accepted that he intended to cause grievous bodily harm, and that he deliberately stabbed her. E-G suffered significant physical and psychological injuries.
5. [5]
   The sentencing judge made the following observations about Moodoonuthi’s criminal history:

You have a bad criminal history, generally for violence and including violence against women. While you have no previous convictions for indecent assault, your criminal history nonetheless combined with the circumstances of that offence [count 1, sexual assault] to suggest a head sentence of 18 months for that act would be comfortable within range.

…

I take account of your background and that it involved a problematic exposure to violence. But drawing on that in mitigation, involves a process of ever-diminishing returns for a violent offender with a criminal history of your kind.

…

Yet, your criminal history shows you have not applied your willpower to resolving your trait of failing to control your violent temperament when angered. It is not just a serious problem for you; it is a problem that is a cause for community protection. The reality is that you have repeatedly exhibited that you are a violent, dangerous and angry man when upset.

…

This was an extraordinary combination of violence by a recidivist violent offender.

…

Part of the background of the criminal history reveals that you offended while the subject of a suspended sentence. Because of the magnitude of the sentence imposed upon you, while I conclude that it is just to activate the suspended sentence, I propose to do so in such a way that it will be served concurrently with the sentences just imposed.^[2]

Nature of this application

6. [6]
   E-G gave a Part 1 Notice of Claim to each of Moodoonuthi, and the owner and operator of Gecko’s Backpackers, claiming for damages under the Personal Injuries Proceedings Act 2002 (Qld) (‘PIPA’). 
7. [7]
   The “incident” described in the Notice of Claim comprised the assaults by Moodoonuthi on E-G on 5 August 2019, in terms generally consistent with the factual basis upon which he was sentenced.
8. [8]
   The nature of E-G’s claim advanced against Gecko’s Backpackers is in negligence, vicarious liability, and contract. It includes: damages for breach of duty of care owed to a paying hostel guest; breach of implied terms in the contract for her to stay at the hostel, including an implied term to take due care for her safety; vicarious liability for the criminal acts of Moodoonuthi while he was working at the hostel under a work for accommodation arrangement; and breach of statutory guarantee under s 60 of sch 2 of the Competition and Consumer Act 2010 (Cth), to exercise due care in the provision of hospitality service for reward.
9. [9]
   The nature of the claim advanced against Moodoonuthi appears to be for damages for trespass to the person.
10. [10]
    In deciding this application, it is unnecessary to consider questions of liability in negligence for conduct that is an intentional act, or the nature of the damages that may be claimable for an unlawful intentional act, or whether the criminal conduct in this case would preclude a finding of vicarious liability. I proceed on the basis of the claims advanced as broadly described by the applicant’s legal representatives. 
11. [11]
    There has not yet been a compulsory conference.
12. [12]
    In this application, E-G seeks, at a preliminary hearing, an order pursuant to s 27(1)(b)(i) of the PIPA requiring Moodoonuthi to provide details of his Queensland criminal history and sentencing remarks.
13. [13]
    Gecko’s Backpackers elected not to be heard on this application.
14. [14]
    Moodoonuthi declined to provide the information requested and opposed the application. With the assistance of a McKenzie Friend, he submitted that:

    1. (a)
       to allow the application would be unjust because he would be punished twice, contrary to s 16 of the Criminal Code Act 1899 (Qld) (‘the Code’);
    2. (b)
       his criminal history could not be used to elevate any compensation claim;
    3. (c)
       it was Gecko’s Backpackers responsibility to do a criminal history check;
    4. (d)
       the sentencing judge said that he did not have any previous convictions for sexual offences;
    5. (e)
       he had not yet been able to test the claim; and
    6. (f)
       he had not had the opportunity to obtain legal assistance or time to consider the application properly.
15. [15]
    Without intending any disrespect, these submissions are misconceived and not directed to the statutory test the court must apply in considering the application. That is unsurprising, given that there is no evidence that Moodoonuthi is legally qualified.
16. [16]
    Dealing with the above submissions briefly and sequentially.
17. [17]
    An order made under s 27 of the PIPA would not amount to double punishment under s 16 of the Code because the proceeding involves a potential civil claim for damages, not “punishment” either under the provisions of the Code or any other law.
18. [18]
    The relevance, if any, of his criminal history to the issues in dispute in the proceeding would ultimately be a matter for consideration in any civil trial.
19. [19]
    Likewise, whether Gecko’s Backpackers owed to E-G as a guest a duty to conduct a criminal history check of Moodoonuthi as an employee is a matter for any civil trial.
20. [20]
    Moodoonuthi would have the opportunity to test E-G’s claim at trial.
21. [21]
    The submission that he has not had the opportunity to obtain legal assistance and time to consider the application properly was not pressed strongly, and the procedural history demonstrates that the submission is without merit.
22. [22]
    An originating application was filed on 18 July 2022, seeking leave to commence proceedings within 60 days of a compulsory conference (or an order dispensing with one), as well as orders under s 27 of the PIPA. On 27 July 2022 leave was granted, and the s 27 application was adjourned to 9 September 2022. On 9 September 2022 it was reviewed and adjourned to 4 November 2022. On 4 November 2022 leave was granted for a McKenzie Friend to assist Moodoonuthi on this application and it was listed for hearing in February 2023. On 9 December 2022 it was reviewed by me and adjourned with a direction that the registry provide Moodoonuthi a document containing information to assist self-represented litigants in civil proceedings. That occurred. On 8 February 2023 it was reviewed again by me with a direction that E-G’s legal representatives send the relevant documents in support of the application to LawRight on Moodoonuthi’s behalf.  That occurred. On each occasion, Moodoonuthi appeared.
23. [23]
    I am satisfied the he has been afforded procedural fairness and that he has had ample opportunity to obtain advice.
24. [24]
    The matter ought not be delayed further, particularly having regard to the ways in which the purpose of the PIPA set out in s 4(1) is to be achieved, including: providing a procedure for the speedy resolution of claims for damages for personal injury; and promoting settlement of claims at an early stage wherever possible: s 4(2).

Statutory framework

25. [25]
    Section 27 is in Chapter 2, Part 1, Division 2 of the PIPA, headed “Obligations of the Parties”.
26. [26]
    The purpose of this division is to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim: s 21.
27. [27]
    Section 27 states, relevantly:

27 Duty of respondent to give documents and information to claimant

3. (1)
   A respondent must give a claimant—

1. (a)
   copies of the following in the respondent’s possession that are directly relevant to a matter in issue in the claim—

1. (i)
   reports and other documentary material about the incident alleged to have given rise to the personal injury to which the claim relates;

2. (ii)
   reports about the claimant’s medical condition or prospects of rehabilitation;

3. (iii)
   reports about the claimant’s cognitive, functional or vocational capacity; and

2. (b)
   if asked by the claimant—

1. (i)
   information that is in the respondent’s possession about the circumstances of, or the reasons for, the incident; or

2. (ii)
   if the respondent is an insurer of a person for the claim, information that can be found out from the insured person for the claim, about the circumstances of, or the reasons for, the incident.

3. (2)
   A respondent must—

1. (a)
   give the claimant the copies mentioned in subsection (1)(a) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving a complying part 1 notice of claim and, to the extent any report or documentary material comes into the respondent’s possession later, within 7 days after it comes into the respondent’s possession; and

2. (b)
   respond to a request under subsection (1)(b) within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving it.

3. (3)
   If the claimant requires information provided by a respondent under this section to be verified by statutory declaration, the respondent must verify the information by statutory declaration.

3. (4)
   If a respondent fails, without proper reason, to comply fully with this section, the respondent is liable for costs to the claimant resulting from the failure.

(emphasis added)

28. [28]
    The court must be satisfied that the information sought is in the respondent’s  possession and is “about the circumstances of, or the reasons for, the incident”: s 27(1)(b)(i).
29. [29]
    “Incident” is defined in Schedule 1 Dictionary of the PIPA: “incident, in relation to personal injury, means the accident, or other act, omission or circumstance, alleged to have caused all or part of the personal injury”.
30. [30]
    Section 27 was considered by the Court of Appeal in SDA v Corporation of the Synod of the Diocese of Rockhampton (‘SDA’).^[3]
31. [31]
    It was held (Fraser JA, Lyons SJA agreeing) 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 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: [5], [135].
32. [32]
    Under the relevant part of the PIPA, a claimant who wishes to commence litigation must give a Notice of Claim containing prescribed information, the respondent to the claim must obtain information about the incident alleged to have given rise to the relevant personal injury, and the respondent must take steps with a view to settling the claim before litigation: [6], [135]. Section 27 is in the part of the PIPA that regulates pre-court procedure. It imposes certain obligations on the parties, mostly concerning the exchange of documents and information. The purpose of Division 2, which s 27 is in, is expressed in s 21 as “…to put the parties in a position where they have enough information to assess liability and quantum in relation to a claim.”
33. [33]
    The above statutory context and purpose must be taken into account in construing the expressions “the circumstances of” and “the reasons for” in s 27(1)(b)(i). With that in mind, the required information about the reasons for, and the circumstances of, the incident must comprehend information relating to the question whether the respondent may or may not be found liable, and the appropriate quantum of the applicant’s claim: [26], [135].
34. [34]
    Morrison JA said that there must be a critical examination of just what constitutes the “information” in the particular case. The “information” must be “about the circumstances of, or the reasons for, the incident” alleged to have caused the personal injury. Therefore, the information must be on the subject of or connected with the act, omission, or circumstance that is alleged to have caused the personal injury: [110]. As the legislature chose to use formulations of both “the circumstances of” and the “reasons for” the relevant act, omission or circumstance, in s 27(1)(b)(i), there is a difference between them: [111]-[114].
35. [35]
    The word “circumstances” refers to the facts surrounding the act, omission or circumstance, ie. what happened. It refers to any fact to which occurrence of the act, omission or circumstances may be attributed: [115]-[116], [118].
36. [36]
    The “reasons for” should be understood as referring to facts serving to explain the act, omission or circumstance that is alleged to have caused all or part of the personal injury, ie. why it happened: [117], [119].
37. [37]
    The “information” under s 27(1)(b)(i) is not limited to what the respondent did or did not do, and it does not exclude information relevant to the respondent’s duty in the circumstances: [121]. The plain words of the section do not suggest such a limitation, nor is it required by applying a broad, remedial construction on the section: [121]. The phrase “act, omission or circumstance” refers to factual matters in each case; that is, those facts that explain what is alleged to have caused the personal injury: [124].  The impact of reading the definition of “incident” into s 27(1)(b) is that the provision is concerned with questions of causation as well as duty of care, such that questions can be asked of what the respondent did or did not do, but also what it ought to have done: [129]-[131].

Consideration

38. [38]
    E-G’s counsel submitted that information about Moodoonuthi’s criminal convictions, including the suspended sentence he was serving at the time of the incident, is information that is in Moodoonuthi’s possession about the circumstances of, or the reasons for, the incident.
39. [39]
    In response to E-G’s request for information under s 27 of the PIPA, Mr Hoare, the director of Gecko’s Backpackers Pty Ltd, provided a statutory declaration to the effect that:

    1. (a)
       He first met Moodoonuthi in July 2018 when the latter stayed at the hostel on a work for accommodation basis for approximately two months;
    2. (b)
       He did not otherwise know Moodoonuthi or his family or associates;
    3. (c)
       He did not learn or ascertain any facts about Moodoonuthi’s previous criminal history between first meeting him and the incident in 2019;
    4. (d)
       On both occasions that Moodoonuthi stayed at the hostel, he showed the owner (who did not take copies) documents relating to his resume, including hospitality certificates and references;
    5. (e)
       He did not make any enquiries with respect to Moodoonuthi’s background, previous criminal history, or previous personal conduct;
    6. (f)
       He described Moodoonuthi as a “work for accommodation guest” and said he was never “employed”;
    7. (g)
       Moodoonuthi was a “work for accommodation guest” between July and September 2018 and then again from July 2019, commencing about two or three weeks before the incident. In this role he “undertook approximately 3 hours of simple tasks each day in exchange for free accommodation”, including changing linen, mopping floors, sweeping surfaces and general tidying. The tasks were completed each day before midday;
    8. (h)
       In response to a question whether Moodoonuthi was involved in any physical altercation with a person at or in the vicinity of the premises at any time before the incident, he declared:

On one occasion, during the first period of Mr Moodoonuthi’s stay in 2018, I was informed by Mr Moodoonuthi that an altercation occurred between him and a stranger in the community up the road from the premises. The person who the altercation occurred with was not a guest of the premises and entirely unknown to Mr Moodoonuthi. I recall Mr Moodoonuthi returned to the premises and told me that this unknown man approached him in a confronting manner which resulted in some pushing and shoving, followed by both men going their separate ways;

9. (i)
   No action was taken in response to that information, and “[n]othing in the information that was provided to me would have led me to believe that Mr Moodoonuthi was at fault or a risk to other guests.”;
10. (j)
    At no stage during either of the two periods Moodoonuthi was there as a work for accommodation guest was a complaint ever made about him.

40. [40]
    In response to E-G’s request for information under s 27 of the PIPA, Moodoonuthi completed an (unsworn) questionnaire to the following effect:

    1. (a)
       He thought that he first met the director of Gecko’s Backpackers in February 2018;
    2. (b)
       He was working for accommodation;
    3. (c)
       He paid a security deposit and then worked for accommodation;
    4. (d)
       The work included cleaning, housekeeping, room checks, linen change, cleaning rooms, cleaning toilets and keeping the hostel clean;
    5. (e)
       In response to the question “Did Mr Hoare ever interview you as to your personal background, education, work experience or training?” he answered, words to the effect “no, Mr Hoare worked on trust.”;
    6. (f)
       In response to a question about whether he was ever asked any questions about criminal charges or convictions, he answered “without prejudice, no”;
    7. (g)
       In response to a question about whether before the date of the incident he had been charged with or convicted of any criminal offences, he answered “without prejudice, I cannot see why you would ask this question”;
    8. (h)
       He did not provide any written references; and
    9. (i)
       To the best of his knowledge and memory, while residing at the hostel he was not involved in any fight or altercation with any other person.
41. [41]
    It was not in issue that information about his previous criminal convictions is information in the possession of Moodoonuthi. Only an individual may request their criminal history from Queensland Police Service or authorise its release to others.
42. [42]
    Counsel for E-G submits that:

    1. (a)
       facts relating to the previous conduct of the respondent, as set out in his criminal history, with an analysis of the nature of his previous offending or offences, and of his conduct during the previous offences, can fairly be said to be information about the reasons for the incident, in the sense that they might help explain why the incident happened.  During the incident, the respondent first perpetrated a sexual assault upon the applicant. His conduct was uninvited, not consented to, and completely unexpected. No conduct on her part can explain why that sexual assault happened. The explanation must lie in the character of the respondent, including an analysis of his character and his previous conduct, including any propensity to perpetrate sexual assaults upon women, or to commit crimes which have an element of sexual assaults upon women;
    2. (b)
       With respect to the subsequent acts of violence, the conduct and responses of the applicant do not provide any explanation for the grossly violent and life-threatening course of conduct by the respondent. It is submitted that any previous history of the respondent, including any relevant criminal history, pertaining to his character and prior behaviour, including any propensity for previous violent conduct, is likely to provide an explanation for why the incident happened, and in particular, why the respondent reacted in such a grossly disproportionate way to the applicant striking him with a cup after he sexually assaulted her; and
    3. (c)
       In summary, the information in his criminal history and sentencing remarks is relevant to explaining his conduct on the date, why the incident occurred, and to answer any allegation by him that she provoked, caused or contributed to the assaults upon her, or to her physical or psychiatric injuries.
43. [43]
    Applying the broad remedial construction of s 27(1)(b)(i) adopted in SDA, I accept those submissions. The defendant’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 Moodoonuthi did or did not do, what Gecko’s Backpackers did or did not do, and also, what it ought to have done.
44. [44]
    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.
45. [45]
    The information sought may also include information about the “altercation” Moodoonuthi reported to Hoare in 2018 while he was staying at the hostel; whether it resulted in a charge or conviction, whether the altercation had any factual connection with the suspended sentence Moodoonuthi was serving at the date of the incident, whether Gecko’s Backpackers was on notice of the likelihood or foreseeability of an assault by Moodoonuthi upon a guest, and what steps, if any, it should have taken to prevent that. That may be information about the “circumstances of” the incident, in the sense of any fact to which occurrence of the act, omission, or circumstance may be attributed. Where what is alleged as the cause of the personal injury may include an omission to take reasonable care or certain steps, facts that might explain why the omission occurred could comprehend that other things happened which served to put Gecko’s Backpackers on notice of any risk.
46. [46]
    Having reached the view that details of Moodoonuthi’s Queensland criminal history are disclosable under s 27(1)(b)(i) of the PIPA, I turn to the terms of the order.

Form of order

47. [47]
    E-G initially sought an order that Moodoonuthi’s entire criminal history be disclosed but then changed position and sought to limit it to only convictions within the last 10 years, on the basis that Moodoonuthi was entitled to the benefit of the spent conviction legislation.
48. [48]
    In my view, that is not an appropriate way to frame the proposed order. The application of s 6 of Criminal Law (Rehabilitation of Offenders) Legislation Act 1986 (Qld) is not without complexity. It is not as simple as saying every conviction more than 10 years old is spent, or not required to be disclosed. The rehabilitation period varies depending upon whether it is a conviction upon indictment (10 years) or not (five years): s 3(1). A rehabilitation period applies only if no term of imprisonment is imposed for the conviction, or a term of imprisonment of not more than 30 months is imposed for the conviction: s 3(2).  It is irrelevant whether or not the person is ordered to be imprisoned for any of the term of imprisonment imposed: s 3(2A). In addition, a spent conviction is revived following conviction of certain kinds of further offences, and the rehabilitation period commences again to run from the date of conviction of the subsequent offence: s 11. Thus, the application of this legislation to someone with a lengthy criminal history (as the sentencing judge described) may not be straightforward. Applying a random cut off date of convictions within 10 years of the date of order may not capture all of the required information.
49. [49]
    In my view, the obligation on Moodoonuthi to provide information under s 27(1)(b)(i) extends to his entire criminal history and transcripts on sentence. Questions of admissibility, if any, (for example, with respect to spent convictions and s 15A of the Evidence Act 1977 (Qld)) can be dealt with at a later stage if necessary.
50. [50]
    G-E also sought an order that Moodoonuthi provide a statutory declaration in compliance with s 27(3) of the PIPA, and that costs of and incidental to the application be the costs of each party in any proceedings commenced. I agree that those orders are appropriate.

Conclusion and orders

51. [51]
    The application under s 27(1)(b)(i) of the PIPA is allowed.
52. [52]
    Within three business days of publication of these reasons, the applicant provide to the Court and the respondent a draft order reflecting these reasons.
53. [53]
    Listed for mention at 9am on 10 March 2023 (leave granted to appear by audio-visual link).