Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Whether the appellant was committing a separate offence at the time she was injured - Section 39(1) of the Criminal Injuries Compensation Act 2003 (WA)

Criminal Injuries Compensation Act 2003 (WA), s 39(1), s 41

Misuse of Drugs Act 1981 (WA), s 3, s 4, s 4(1)(c), s 6(2), s 7(2), s 7B, s 7B(1)(b), s 7B(6)

Mr A J Gibson appeared on behalf of the Chief Executive Officer of the Department of Justice

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29

Bozzer v The State of Western Australia [2017] WASCA 226

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Davies v The State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31

Lai v The Queen [1990] WAR 151

Lau v The State of Western Australia [2017] WASCA 16

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

Re AW [2022] WADC 96

1. This is an appeal against a decision of a criminal injuries compensation assessor (Assessor) dated 4 July 2025 to refuse Ms Woods' application for criminal injuries compensation pursuant to s 39(1) of the Criminal Injuries Compensation Act 2003 (WA) (Act) on the basis that at the time when Ms Woods was assaulted and suffered injury she was committing separate offences in contravention of the Misuse of Drugs Act 1981 (WA) (MDA) by being in possession of cannabis and drug paraphernalia on which there was a prohibited drug or a prohibited plant.
2. For the reasons which follow I am satisfied that at the time Ms Woods suffered injury as a result of being assaulted by the respondent she was in possession of cannabis and drug paraphernalia on which there was a prohibited drug or prohibited plant and was therefore committing separate offences pursuant to s 7(2) and s 7B(6) of the MDA and that therefore her application for criminal injuries compensation must be dismissed.

1. On 22 December 2023, the respondent was convicted after trial in the Perth Magistrates Court of aggravated unlawful assault causing bodily harm to the appellant, committed on 6 April 2022 (Offence).[1] The aggravating circumstance was that the respondent was in a family relationship with the appellant. The respondent was made subject to a pre-sentence order before being ultimately sentenced on 21 November 2024.[2] The respondent was sentenced to 12 months' imprisonment conditionally suspended for 12 months with a supervision requirement.[3]
2. This matter initially came on for hearing before me on 7 February 2026 but was adjourned to 19 March for the purpose of the court obtaining the transcript of the trial and of the reasons for decision. After the hearing on 19 March the parties were notified that the reserved reasons for decision would be delivered on 2 April.
3. Initially, the court was unable to obtain the transcript of the magistrate's reasons for decision which were delivered on 22 December 2023, when he convicted the respondent of aggravated unlawful assault causing bodily harm to Ms Woods, despite a request for the transcript being sent to the Magistrates Court. However, the court did receive the transcript of the trial in the Magistrates Court on 29 August 2023 and the sentencing hearing on 21 November 2024 when the magistrate placed the respondent on a pre-sentence order. On 1 April the court received a copy of the Magistrates Court transcript of 22 December 2023 which confirmed the trial magistrate delivered his reserved reasons for decision which he published. However, a copy of the published reasons for decision was not provided.
4. On 2 April, shortly before the court was due to sit to deliver its reserved reasons for decision, a copy of the magistrate's published reasons for decision, which do not appear to have been published on the Magistrates Court website, was received by the court. A copy of the published reasons was provided to both Ms Woods and counsel for the amicus. Ms Woods had earlier advised the court that because of internet difficulties she was unable to appear, either by Teams link or by telephone, at the hearing for the delivering of the reserved reasons for decision and requested that the published reasons be forwarded to her by email. Various unsuccessful attempts were made to contact her by telephone. Counsel for the amicus, who had only a brief opportunity to read the magistrate's published reasons for decision for convicting the respondent, appeared and made brief submissions. The court made an order providing Ms Woods with the opportunity to make any further submissions in writing in response to the magistrate's published reasons for decision and that the appeal would be otherwise determined on the papers.
5. Normally, where a person has been convicted after trial, an application for criminal injuries compensation must be considered on the basis of the factual findings made by the trial court rather than on papers provided to the Assessor, including police statements. However, relevant to the issue in this appeal, as to whether for the purposes of s 39(1) of the Act Ms Woods was committing separate offences at the time she was assaulted and suffered injury, I formed the view I could proceed to finally hear and determine the appeal without needing to make factual findings of the circumstances in which Ms Woods was assaulted and suffered injury, and without the magistrate's reasons for decision. There is no issue she was assaulted and suffered injury as a consequence. Now that the magistrate's reasons for decision have been received by the court it is appropriate I consider those reasons before finally determining this appeal.

1. As a threshold issue, the court must be satisfied that Ms Woods' injuries were a consequence of the Offence.
2. If satisfied, the question is then whether the court is satisfied that Ms Woods' injuries were suffered when she was committing a separate offence.
3. If the answer is 'yes', then the court must not make an award of compensation in favour of Ms Woods pursuant to s 39(1) of the Act.
4. If the answer is 'no' the court may have regard to whether, pursuant to s 41 of the Act, Ms Woods' behaviour, condition, attitude or disposition contributed directly or indirectly to her injuries. If the court finds it did, then the court may, if it thinks it just to do so, either refuse to make a compensation award or reduce the amount that it would have otherwise awarded.[4]

1. Although the notice of appeal states the Assessor erred in her application of s 39 it is unnecessary to establish error because an appeal under the Act is a hearing de novo. This court must decide the application for criminal injuries compensation afresh without being fettered by the Assessor's decision.[5]
2. However, it is instructive to set out the basis of the Assessor's reasons for dismissing the application:[6]

Under s 39 of the Criminal Injuries Compensation Act 2003 (WA) I must not make a compensation award if I am satisfied that the injury was suffered when the applicant was committing a separate offence.

Relevant factors in relation to the application of s 39 include:

1. An assessor has no discretion to allow an application when the applicant is committing a separate offence. Therefore the seriousness of the offence is not a relevant consideration.
2. There is no requirement the separate offence being committed by the applicant be a proved offence.
3. There is no requirement there be any causal connection between the injury suffered by the applicant and the separate offence committed by the applicant, but merely a temporal connection.

I adopt the comments of Black DCJ in AW (pseudonym initials) v CD (pseudonym initials):

There is an obvious disparity between the very small quantity of drugs involved in the appellant's offence and the very serious nature of the offences committed against the appellant. I note however that s 39 of the CIC Act does not allow me, where I am satisfied that s 39(1) applies to an application, to then exercise any discretion regarding the proportionality between the two sets of offending so as to decide if the appellant ought still to be compensated, at least to some extent. The terms of the provision are clear that if s 39(1) is made out then I 'must not' make an award of compensation in favour of the appellant. This is a case where the punishment did not fit the crime. Nonetheless, having found that the appellant was committing a separate offence at the time he sustained injuries from a different offence, I must not make a compensation award in favour of the appellant.

Given there is evidence you were in possession of cannabis and drug paraphernalia in contravention of the Misuse of Drugs Act 1981 (WA) at the time you were injured, I must refuse your application for compensation in relation to the incident pursuant to s 39 of the Act.

1. I have had regard to the documentation contained in the Assessor's Papers, the sentencing transcript of the Magistrates Court of 21 November 2024 and also the transcript of the trial in the Magistrates Court on 29 August 2023. Further, I have now read, and considered, the magistrate's reserved reasons for decision delivered on 22 December 2023. I have also had regard to the detailed written submissions filed by Ms Woods dated 3 February 2026 and the supplementary submissions filed on 15 March 2026 in which Ms Woods conceded her initial written submissions regarding the correct statutory interpretation of s 39 were wrong and she no longer sought to rely on those submissions. I have also had regard to the submissions filed by the amicus dated 9 February 2026.
2. In accordance with the order I made on 2 April 2026 Ms Woods provided detailed written submissions addressing the Magistrates Court reasons for decision. Ms Woods emphasises the serious nature of the injuries she suffered and the circumstances in which she suffered those injuries and the trauma she has experienced because of the court proceedings. However, Ms Woods' submissions do not further assist her appeal.

Applicable legal principles - s 39(1) of the Criminal Injuries Compensation Act 2003 (WA)

1. Section 39(1) of the Act provides:

(a) that a person was injured as a consequence of the commission of an offence; and

(b) that the injury was suffered when the person was committing a separate offence,

the assessor must not make a compensation award in favour of the person.

1. In Attorney General for Western Australia v Her Honour Judge Schoombee Martin CJ said:[7]

... The evident purpose of s 39 is to preclude the payment of compensation to a person who suffers injury as a consequence of the commission of an offence when that person is themselves engaged in criminal conduct. That evident purpose would be defeated if too narrow or precise a view is taken of the temporal connection between the offence giving rise to the injury for which compensation is claimed, and the offence committed by the claimant.

1. The following principles emerge from Attorney General for Western Australia v Her Honour Judge Schoombee:
   1. No causal nexus is required between the injury for which the claim is made and any offence committed by the victim. Section 39 merely requires a temporal connection. Whether there is a sufficient temporal connection is a question of fact and degree.
   2. The temporal connection does not require the appellant's offence to be committed at the same instant in time as the offence giving rise to the appellant's injuries. Similarly, the temporal connection does not require that the appellant's offence and the offence giving rise to the appellant's injuries occur simultaneously, but generally they do need to form part of one incident.
   3. The civil standard of proof applies to a determination that the injured person was committing a separate offence. There is no onus of proof on either party when determining if a claimant was committing an offence when injured.
   4. The gravity of the imputation of a criminal offence and the significance of its consequences warrant the application of the principles enunciated in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[8] following Briginshaw v Briginshaw.[9] Where criminal conduct is alleged, clear and cogent evidence is required.
   5. If s 39(1) is made out, then the assessor (or the court) must not make an award of compensation in favour of the applicant. Section 39 does not allow the decision-maker to exercise any discretion regarding the proportionality between the two sets of offending.
2. It is not in dispute that Ms Woods was injured as a consequence of the commission of the proved offence for which the respondent was convicted. I find that Ms Woods suffered her injuries when she was punched and headbutted by the respondent. I summarise the injuries suffered by Ms Woods later in these reasons.

Was Ms Woods committing a separate offence when she suffered injury?

1. The central issue in this appeal is whether Ms Woods was committing a separate offence of either possessing a prohibited drug or possession of drug paraphernalia in or on which there was a prohibited drug, contrary to s 6(2) or s 7B(6) of the MDA respectively.
2. Section 6(2) of the MDA provides that:

A person who has in his or her possession or uses a prohibited drug commits a simple offence.

1. For the purposes of this appeal, to establish that Ms Woods was committing an offence under s 6(2) of the MDA, the court must be satisfied on the balance of probabilities, having regard to the principles in Briginshaw, the appellant had in her possession a prohibited drug.
2. As a matter of law cannabis is a prohibited drug. Section 3 defines 'prohibited drug' as a drug to which the MDA applies by virtue of s 4. Section 4(1)(c) relevantly provides that the MDA applies to the drugs specified in sch I of the MDA. Item 5 of sch I is:

Cannabis or cannabis resin or any other cannabis derivative.

1. Accordingly, cannabis is a prohibited drug for the purposes of s 6(2) of the MDA.
2. The term 'to possess'[10] includes 'to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb ''to possess'' have correlative meanings'.
3. Therefore, possession means to knowingly have control or custody over something, in this case a prohibited drug, namely cannabis (or have dominion over and to have the order or disposition of) with the intention to possess that drug. In short, it means having something, knowing that you have it and intending to exercise some control over it. There are three requirements for possession, knowledge, custody or control and intention.
4. Therefore, to prove Ms Woods was in possession of cannabis at the time she was assaulted and suffered injury it must first be proved Ms Woods had knowledge that the thing she possessed was a prohibited drug of some kind. There is no issue Ms Woods was aware of the cannabis and that she was aware it was a prohibited drug.
5. Secondly it must be proved she had control over the cannabis.
6. Control may be established through having either actual physical custody or constructive custody of the prohibited drug. Relevantly, a person will have physical custody of a prohibited drug where they have the prohibited drug on their person. A person will have constructive custody where the prohibited substance is separate from the person, but the person is still in control of it.[11]
7. A prohibited drug may be possessed solely by one person or jointly by two or more persons.[12]
8. Ms Woods in her submissions said that the cannabis was not hers but was the respondent's. She denied she was in physical custody of the cannabis at the time she was assaulted and said she had not used cannabis before she was assaulted.
9. I will address this aspect of the issue of possession of the cannabis when I later refer to the evidence Ms Woods gave under oath during the trial in the Magistrates Court.
10. Turning then to consider whether Ms Woods was committing a further offence of being in possession of drug paraphernalia in or on which there was a prohibited plant, contrary to s 7B(6) of the MDA when she was assaulted and suffered injury.
11. Section 7B(6) provides:

A person who is in possession of any drug paraphernalia in or on which there is a prohibited drug or a prohibited plant commits a simple offence.

1. For the purposes of this appeal, to establish that Ms Woods was committing an offence under s 7B(6) of the MDA, the court must be satisfied the appellant:

(b) there was a prohibited drug or prohibited plant on or in that drug paraphernalia.

1. The term 'drug paraphernalia' is defined in s 7B(1) of the MDA to mean, relevantly:

(b) any thing made or modified to be used by a person -

(i) to administer a prohibited drug or a prohibited plant to a person; or

(ii) to smoke, inhale or ingest a prohibited drug or a prohibited plant; or

(iii) to smoke or inhale the smoke or fumes resulting from burning or heating a prohibited drug or a prohibited plant.

1. Applying this definition, a bong which is being used or is capable of being used, to smoke cannabis is plainly drug paraphernalia.
2. The definitions and principles relating to the meaning of 'possession' and 'prohibited drug' under s 6(2) similarly apply to the meaning of those terms in s 7B.

1. Ms Woods' written submissions dated 3 February 2026 variously assert that s 39 of the Act:

(a) should not be triggered by 'mere temporal coincidence' and instead requires a 'meaningful connection' between the separate offence and injury sustained;[13]

(b) by implication, requires a 'causal or operative connection' between the two offences;[14]

(c) requires an 'evaluative and discretionary judgment', in part due to the use of the word 'satisfied' in s 39;[15]

(d) concerns the exercise of a discretion;[16] and

1. Each of those submissions is contrary to the correct statutory interpretation of s 39 as explained in Attorney General for Western Australia v Her Honour Judge Schoombee. Accordingly, I reject each of those submissions. They are wrong in law.
2. In supplementary written submissions filed on 15 March 2026 Ms Woods resiled from her earlier submissions regarding the correct statutory interpretation of s 39.[18] In her supplementary written submissions Ms Woods submits:[19]

I turn to my primary case, which is concerned with whether I committed a separate offence at the relevant time, for the following reasons:

(a) the absence of voluntary possession in the legal sense.

(b) the defence of duress under section 32 of the Criminal Code 1913 (WA) as recently amended.

(c) my physical incapacitation by COVID-19 at the time of the assault.

1. The main thrust of Ms Woods' supplementary submissions, and in her further oral submissions at the hearing on 19 March, was that the cannabis was not hers, it was the respondent's who, she submitted, supplied, controlled and profited from the cannabis. She only used the cannabis when permitted by the respondent.
2. The principal basis upon which Ms Woods pressed her application for compensation was that at all times she was only using cannabis because she was under duress because of threats made to her by the respondent to harm and assault her. She was scared she was going to be assaulted by the respondent and picked up the bong and started chopping cannabis because she believed that was necessary to try to prevent the respondent carrying out his threat to assault her. Her actions in having possession of the bong and chopping the cannabis was, she submits, a reasonable response to the threat the respondent made to her when she was faced with circumstances of duress. She says she did not use cannabis before she was assaulted.
3. Ms Woods says that she only used cannabis after she was assaulted because she was under the control of the respondent who permitted her to use cannabis. The use of the cannabis was not, she submits, a free choice and was therefore not voluntary behaviour.

The magistrate's reasons for decision for convicting the respondent - delivered 22 December 2023

1. His Honour, Magistrate Maughan, published written reasons for decision on 22 December 2023 in which he concluded he was satisfied beyond reasonable doubt the respondent was guilty of aggravated unlawful assault of Ms Woods causing her bodily harm and breaching a police order. Referring to Ms Woods' evidence, the magistrate noted that after Ms Woods had retrieved some wipes and thrown them to the respondent, she returned to her bedroom and started to chop up some cannabis to assist her to go back to sleep,[20] in circumstances where the respondent was enraged and had threatened to cave her head in and she was petrified of what was about to happen. As the respondent charged at her while she had been sitting, she got up and swung the bong towards the respondent which missed him and he then struck her in the face with a closed fist. The blow struck her in the left eye. The accused then took the scissors from her and headbutted her in her nose causing her to bleed profusely.[21]
2. The magistrate also noted Ms Woods' evidence in cross-examination that she agreed there were arguments between her and the respondent revolving around her use of drugs but denied arguing about her smoking cannabis in front of her son.[22] He also noted Ms Woods' evidence in cross-examination that by the time the accused had approached her she had consumed some cannabis.[23]
3. The magistrate then considered and dismissed defences on behalf of the respondent of provocation and self-defence.[24]
4. The respondent elected not to give evidence. In assessing the credibility of Ms Woods the magistrate:[25]

... found the complainant to be a compelling witness notwithstanding her consumption of cannabis and the apparent omissions from her police statement. Those omissions did not relate directly to the substantive allegations against the Accused. In my view her evidence in relation to the substantive allegation was given cogently and honestly. She was prepared to make concessions about her conduct where appropriate.

1. Therefore, at least implicitly, the magistrate found Ms Woods had consumed, or was consuming, cannabis at the time she was assaulted by the respondent.
2. In relation to the injuries suffered by Ms Woods, the magistrate found:
   1. Whilst I am unable to ascertain whether the complainant's fractured eye socket was as a result the accused's punch to her eye or the head butt to her nose the injury suggests that some force was used. There is no evidence before the court which suggests the accused suffered any or any significant injury as a consequence of the acts committed upon him.
   2. In either case I am satisfied the Accused's assault upon the Complainant was unlawful.

1. Although the magistrate referred to Ms Woods' evidence at the trial regarding her consumption of cannabis at the time she was assaulted by the respondent, it is helpful to refer to the evidence in more detail relevant to the issues in this appeal which were not relevant in the Magistrates Court proceedings.
2. In her evidence-in-chief Ms Woods said that after she threw the respondent some wipes while he was in the toilet:

Then I retreated back to the bedroom and I started to chop up some cannabis so I could go back to sleep.

What were you using to chop up the cannabis?---Scissors, just the children's kind. Yes.

And how were you planning to consume the cannabis?---Smoke it through a bong.

1. After that evidence was given the magistrate raised with the prosecutor whether there was a need for a s 11 of the Evidence Act 1906 (WA) certificate. His Honour later granted Ms Woods a s 11 certificate in the usual terms.
2. When asked how she was planning to consume the cannabis Ms Woods responded:[26]

Through the bong. I smoked it. Yes.

Can you describe the bong?---It was a plastic, partially glass bong. So it was mostly plastic on the top and had a glass base.

So, whilst you were doing that, what happened?---So Rozbeh said that he was going to come and cave my head in. So, at that time, when I was chopping up the weed, I was petrified of what was about to happen. I kind of got scared. And I just braced myself to see what would happen.

In what tone of voice did he say that?---Very enraged to the point that it's extremely intimidating. It was intimidating at the time.

Where was he when he made that comment?---He was still on the toilet. Yes. And I was in the other room.

What happened then?---He comes charging in. He comes charging in through the door and directly at me. I instantly got up and swung the bong to, you know, to - as a reaction. And it completely missed him and then he struck me in the face with a closed first to my eye.

Which eye?---My left eye.

Now, you mentioned you tried to hit Mr Tangshabani with the bong. How did - - -?---Yes.

- - - you do that?---I swung the bong, like, at him but completely missed.

1. Ms Woods was later asked by the prosecutor:[27]

Where was Mr Tangshabani when he's making all these comments?---He was laying in his bed.

And where were you?---I was on the coach [sic], but kind of on the ground where I first was struck with the weed, chain-smoking profusely. And he started laughing at me saying 'ha ha' and laughing because I was a mess.

1. In cross-examination Ms Woods conceded a source of arguments between her and the respondent was her drug use[28] and that one of the respondent's biggest concerns was Ms Woods smoking drugs around her son. Ms Woods conceded that because of her drug use her child was in care.[29] She conceded that when she was smoking cannabis that day her son was also there.[30] She accepted that the cannabis she used was bought for her by the respondent.[31]
2. Later in her cross-examination Ms Woods said that she was cutting up cannabis at the time she was attacked by the respondent and had a bong and scissors in her hands because she was smoking cannabis.[32] She accepted she had consumed cannabis at the stage that she was assaulted by the respondent.[33] She had scissors in her right hand because she was chopping up more cannabis and had the bong in her left hand. She was chopping up more cannabis because she had already consumed cannabis.[34]
3. She accepted that par 43 of her police statement in which she said she started to chain-smoke cannabis, was correct.[35]
4. She later confirmed that at the time of the incident in which she was assaulted she was not using other drugs, she was just using cannabis.[36]
5. That evidence, given under oath in the Magistrates Court hearing, for which Ms Woods was granted a s 11 Evidence Act certificate when the magistrate later ruled Ms Woods had given her evidence in a satisfactory manner, was not admissible in evidence in criminal proceedings against Ms Woods for the offences of being in possession of cannabis and possession of drug paraphernalia. However, the granting of the s 11 certificate does not assist Ms Woods in these proceedings. Her application for criminal injuries compensation and her appeal to this court is a civil proceeding and therefore the s 11 certificate does not apply to these proceedings. Accordingly, the evidence Ms Woods gave during the trial in the prosecution of the respondent regarding her cannabis use is evidence admissible in these proceedings. On the basis of the evidence Ms Woods gave on 29 August 2023 in the Magistrates Court proceedings it is clear she was committing two separate offences of being in possession of a prohibited drug, namely cannabis, and being in possession of drug paraphernalia in or on which there was a prohibited drug.
6. The evidence Ms Woods gave under oath contradicts the submissions she made that she had not used cannabis prior to being assaulted by the accused. I reject her submissions which are contrary to the evidence she gave under oath. Based on the evidence she gave at the trial I am satisfied on the balance of probabilities Ms Woods used cannabis both before and after the respondent assaulted her. I accept the circumstances in which she interacted with the respondent that morning and in which she was assaulted would have been stressful and she would have been concerned for her welfare and safety and frightened of the respondent. However, I do not accept, what is implicitly suggested in her submissions, that she was forced by the respondent to smoke cannabis. I am satisfied she used cannabis both before and after she was assaulted. Although she was no doubt stressed and anxious, and distressed after she was assaulted, I am satisfied she used cannabis of her own free will. It was her decision to smoke cannabis.
7. In my view, those findings are consistent with and are not contradicted by the findings of the magistrate when he convicted the respondent of aggravated unlawful assault of Ms Woods which caused her bodily harm.
8. I am also satisfied that although the cannabis was given to or provided to her by the respondent she was in possession of the cannabis. She had actual physical custody or control over the cannabis that she consumed.
9. I am also satisfied she used the bong to smoke cannabis and she was therefore in possession of drug paraphernalia at a time contemporaneously to when she was assaulted and suffered injury.
10. Ms Woods' statement to the Western Australia Police dated 7 April 2022 relevantly stated:[37]

I went back into the bedroom and started to pack a bong with weed so I could go back to sleep.

It is a plastic and glass bong and I was using some scissors to chop up some weed.

1. Ms Woods' statement then records that the respondent began yelling, charged into the room, then ran close to her, such that:[38]

... I really feared for my safety so when he came close I tried to hit him with the bong in my hand but I missed.

1. Ms Woods' statement then records her account of the Offence.[39]
2. Ms Woods subsequently states that, following the respondent's assault:[40]

I started to chain smoke cannabis, he kept telling me to shut up.

1. The statement is signed by Ms Woods and contains the standard proviso that the statement is true to the best of the maker's knowledge and belief.[41]
2. The evidence Ms Woods gave at the trial is generally consistent with her police statement.
3. In response to a query from the Assessor as to whether Ms Woods had a prescription for medicinal cannabis at the time she was injured Ms Woods stated, among other things:[42]

I could not obtain a prescription at that time as I was held captive by the perpetrator for a number of 3 months and he would have the cannabis for me to consume as an alternative ...

[I] don't see how it is a crime to consume cannabis as it did not aid to the offence occurring nor a criminal offence to do so ...

1. Ms Woods' outpatient referral dated 27 April 2022 records:[43]

Aside from IVDU (methamphetamine) and daily THC, [the Appellant] has nil significant medical history and takes no medications.

1. The facts as set out in Ms Woods' police statement dated 7 April 2022 and in the medical records are not inconsistent with the above findings I have made as to the circumstances in which the respondent offended against Ms Woods by assaulting her.
2. From the above evidence I find on the balance of probabilities that Ms Woods committed offences against both s 6(2) and s 7B(6) of the MDA. I find she committed those offences, that is the possession and use of cannabis using a bong which was drug paraphernalia, at a time contemporaneously with the commission of the offence by the respondent against Ms Woods as a result of which she suffered injuries. I therefore find that there was a sufficient temporal connection between the respondent's offending against Ms Woods and her commission of the offences against the MDA.

1. In her original submissions, Ms Woods asserts that, among other things:[44]

At the time of these events, I was not acting freely. ...

... In that environment, the offender dictated what I could do, where I could sit, and what I was permitted to touch. Any interaction with cannabis was not voluntary conduct, but part of the offender's control and dominance.

...

On occasion, the offender permitted cannabis use in a degrading and humiliating way, as something he controlled, not something I possessed. I respectfully submit that this was part of the coercive dynamics of abuse, not independent offending behaviour.

1. In Ms Woods' supplementary submissions she directly raises a defence or excuse of duress pursuant to s 32 of the Code which reads:
   1. Duress

(1) A person is not criminally responsible for an act done, or an omission made, under duress under subsection (2).

(2) A person does an act or makes an omission under duress if -

(ii) the threat will be carried out unless an offence is committed; and

(iii) doing the act or making the omission is necessary to prevent the threat from being carried out;

(b) the act or omission is a reasonable response to the threat in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs.

(3) Subsections (1) and (2) do not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of -

(a) doing an act or making an omission of the kind in fact done or made by the person under duress; or

(b) prosecuting an unlawful purpose in which it is reasonably foreseeable such a threat would be made.

1. In Lau v The State of Western Australia Buss P explained the correct statutory construction of s 32 as follows:[45]

The ground of appeal: aspects of the proper construction of s 32

1. By s 32(1), a person is not criminally responsible for an act done, or an omission made, under duress as specified in s 32(2).
2. Section 32(2) states in effect that a person does an act or makes an omission under duress if the conditions set out in s 32(2) apply and are satisfied. There are in essence five conditions.
3. First, the person must believe that a threat has been made: s 32(2)(a)(i).
4. Secondly, the person must believe that the threat will be carried out unless an offence is committed: s 32(2)(a)(ii).
5. Thirdly, the person must believe that doing the act or making the omission is necessary to prevent the threat from being carried out: s 32(2)(a)(iii).
6. Fourthly, the act or omission must be a reasonable response to the threat in the circumstances as the person believes them to be: s 32(2)(b).
7. Fifthly, there must be reasonable grounds for the beliefs stated in the first, second, third and fourth conditions: s 32(2)(c).
8. Each of the beliefs referred to in the first, second, third and fourth conditions is the person's subjective belief. So, the person must have a subjective belief: that a threat has been made (the first condition); that the threat will be carried out unless an offence is committed (the second condition); that doing the act or making the omission is necessary to prevent the threat from being carried out (the third condition); and as to the circumstances (the fourth condition).
9. As to the fourth condition, the act or omission by the person must be a reasonable response (that is, an objectively reasonable response) to the threat in the circumstances as the person subjectively believes them to be.
10. As to the fifth condition, there must be reasonable grounds (that is, objectively reasonable grounds) for each of the person's subjective beliefs within the first, second, third and fourth conditions.
11. Further:

(a) As to s 32(1) and the chapeau of s 32(2), the 'act' or the 'omission' which the person allegedly did or made under duress must be an element of the charged offence. This follows from the nature and content of s 32(1), which operates, in effect, to excuse a person from criminal responsibility for an act done, or an omission made, under duress if the conditions set out in s 32(2) apply and are satisfied. If the relevant act or omission was not a criminal act or omission, for the purposes of the charged offence, s 32 would be otiose.

(b) As to the 'threat' referred to in s 32(2)(a), s 32(2)(b) and s 32(3), the term 'threat' is not defined for the purposes of those provisions. The term is defined in s 332(4) and s 338 of the Code, but neither of those definitions applies to s 32. The term 'threat' in s 32 bears its ordinary and natural meaning. A 'threat', for the purposes of s 32, includes an express or implied statement of an intention to kill or injure another, or to cause loss or damage to another or his or her property. This explanation of the content of 'threat' in s 32 is not an exhaustive account. The broad ambit of the term 'threat' in s 32 is circumscribed in its application by the requirement in s 32(2)(b) that the relevant act or omission be a 'reasonable response' to the 'threat' in 'the circumstances' as the person believes them to be, and the requirement in s 32(2)(c) read with s 32(2)(a) and s 32(2)(b) that there be 'reasonable grounds' for the person's 'beliefs'.

(c) Section 32(2)(a)(ii) requires that the person do the act or make the omission in the belief that the threat will be carried out unless 'an offence' is committed. Section 32(2)(a)(ii) must be read with the definition of 'offence' in s 2. When that is done, it is apparent that s 32(2)(a)(ii) requires that the person do the act or make the omission, within s 32(1) and the chapeau of s 32(2), in the belief that the threat will be carried out unless an act or omission, within the definition of 'offence' in s 2, which renders the person doing the act or making the omission liable to punishment, is committed. The requisite belief must relate to the whole of the subject matter of s 32(2)(a)(ii). The act or omission, within the definition of 'offence' in s 2, must necessarily be a criminal act or omission because the definition requires that the doing of the act or the making of the omission will render the person concerned liable to punishment. However, the focus of s 32 is on 'an act' done or 'an omission' made, within s 32(1) and the chapeau of s 32(2), as distinct from 'an offence' committed. The act done or the omission made by the person, within s 32(1) and the chapeau of s 32(2), is not necessarily co extensive with the acts or the omissions which constitute the 'offence' referred to in s 32(2)(a)(ii). It is not essential that the 'offence' referred to in s 32(2)(a)(ii) be identical to the charged offence. Section 32 distinguishes between an act or omission, on the one hand, and an offence, on the other. Section 32(1) excuses a person from criminal responsibility for 'an act' done, or 'an omission' made, under duress within s 32(2). Section 32(1) does not excuse a person from criminal responsibility for 'an offence' committed, even though that may be the effect, in a particular case, of the person being excused from criminal responsibility for an act done, or an omission made, under duress within s 32(2).

(d) By s 32(2)(a)(iii), the doing of the act or the making of the omission must be 'necessary' to prevent the threat from being carried out. The word 'necessary' is susceptible of various meanings. Its meaning in a statute must be determined by reference to the connection in which it is used. The word takes colour from its context. In s 32(2)(a)(iii), the word 'necessary' connotes that the doing of the act or the making of the omission by the person is essential (and not merely useful, convenient or expedient) to prevent the threat from being carried out.

(e) As to s 32(2)(b), the determination of the 'reasonableness' of the act or omission as a response to a 'threat', which threat satisfies s 32(2)(a), involves an evaluation of the nature and quality of the act or omission in the context of:

(b) the nature and quality of 'the circumstances' as the person believes them to be.

1. By s 32(3), neither s 32(1) nor s 32(2) applies if the threat is made by or on behalf of a person 'with whom the person under duress is voluntarily associating' for the purpose of:

(a) doing an act or making an omission of the kind in fact done or made by the person under duress; or

(b) prosecuting an unlawful purpose in which it is reasonably foreseeable such a threat would be made.

1. There is no evidence before me that the respondent forced Ms Woods to use illicit drugs and I reject the submission. Further, such a submission is contrary to Ms Woods' sworn evidence at the trial and in her police statement that she:

(a) initially sought to use cannabis to help her fall asleep;

(b) chain-smoked cannabis after the Offence in a manner which is not consistent with her submission of only using cannabis when 'permitted' by the respondent; and

(c) continued to use cannabis daily following the Offence, despite the fact that she was no longer associating with the respondent.

1. Further, the submission is contrary to the evidence Ms Woods gave when she:

(a) responded to the Assessor's preliminary determination by asserting that her cannabis use was for medical reasons; and

(b) later asserted to the Assessor that the respondent had prevented her from obtaining a prescription for medicinal cannabis and would provide cannabis to her as an alternative.

1. Further, the submission is contrary to the evidence she gave at trial that she was using cannabis before she was assaulted and was chopping up more cannabis to continue smoking cannabis at the time she was assaulted. After she was assaulted she continued to use cannabis. As I have found, although I accept the circumstances in which Ms Woods was confronted by the respondent and in which she was smoking cannabis were stressful and she would have been concerned about her safety and welfare, she made the decision to smoke cannabis because she was a long-term user of cannabis and not because the respondent forced her to smoke cannabis.
2. I am not satisfied that either on the evidence before me or on the basis of Ms Woods' submissions, s 32 of the Code is applicable in the circumstances in which Ms Woods was injured and was committing separate offences of being in possession of and smoking cannabis and being in possession of drug paraphernalia.

1. I have no hesitation in finding Ms Woods suffered injury as a result of being assaulted by the respondent. The Sir Charles Gairdner Hospital (SCGH) medical records of Ms Woods confirm she attended the SCGH Emergency Department on 6 April 2022 at 4.30 pm before being admitted on 7 April 2022.
2. The discharge summary for the period 7 - 8 April 2022 relevantly records that Ms Woods sustained:[46]

(b) a 'left orbital blowout fracture with mildly displaced medial and inferior orbital wall fragments'.

1. Ms Woods subsequently presented to SCGH on 10 April 2022 'with worsening headache and symptoms of recent traumatic orbital blowout fracture' and was admitted until 12 April 2022. The discharge summary relevantly records that:[47]

(a) clinical findings were 'L conjunctival haemorrhage, bilateral black eyes. Otherwise well';

(b) Ms Woods elected to discharge against medical advice; and

(c) a follow-up appointment was scheduled with plastic surgeons on 19 April 2022.

1. The discharge summary of each of the above admission periods records 'post-traumatic stress disorder' under Medical History.[48]
2. A report completed on 13 April 2022 records much of the same information as in the discharge summary, with the addition that:[49]

[The Appellant] represented to hospital on 09/04/2022 at 19.37 complaining of headache, nausea and dizziness consistent with post concussion syndrome. I reviewed [the Appellant] on the 11/04/2022 at 09.30 am. No further injuries were identified. She was discharged on the 12/04/2022.

1. A report completed on 2 August 2022 records that the writer, a qualified medical practitioner at SCGH, and their colleague examined the appellant on 6 July 2022.[50] The report records the writer's opinion that:

(a) there was no permanent structural damage to the intraocular structures noted during the examination;

(b) the injuries were not of such a nature as to endanger or be likely to endanger life; and

(c) the injuries were not of such a nature as to cause permanent injury to the eyes, although routine review with an optometrist would still be required.

1. A report was prepared on 29 June 2022 by a medical practitioner in the SCGH Plastic Surgery Department.[51] The writer of the report reviewed notes taken by the inpatient Plastic Surgery ward, Ms Woods' outpatient clinic file, Emergency Department admission notes and inpatient progress notes.
2. The report relevantly recorded that notes from Ms Woods' initial presentation at the SCGH Emergency Department listed the following findings:[52]

(a) left eye bruising (periorbital haematoma) with normal vision;

(b) a left orbital blowout fracture with mildly displaced medial and inferior orbital walls;

(f) minor lacerations to 4th (ring) and 5th (pinky) fingers; and

(g) myalgias (muscle pain) to left lower back, with no overlying bruising.

1. The report further records that the following was noted by the Plastic Surgery team after reviewing Ms Woods on 10 April 2022:[53]

(a) ecchymosis (bruising) to left periorbital region;

(c) mild discomfort with eye movements but no evidence of entrapment or double vision;

(d) tender nasal bridge but no septal haematoma or obvious deformity;

1. Finally, the report records that:[54]

[The Appellant] was reviewed in the Plastics Dressings Clinic first on the 19/04/2022 and subsequently on 03/06/2022. She has been managed conservatively. At last review on 03/06, she reported ongoing sensation of nasal obstruction and difficulty breathing. This is to be expected with her injury and may take 1 - 2 months for this to resolve completely. She is due to be followed up in the Consultant Clinic in 3 months from her last appointment.

1. I have also had regard to the various photographs of the appellant's injuries.[55]
2. Further, those findings are consistent with and supported by the reasons for decision of the magistrate who found Ms Woods' fractured eye socket was as a result of being either punched to her eye or headbutted to her nose and that those injuries constituted bodily harm.[56]

1. I am satisfied from the evidence of the matters to which I have referred that at a time contemporaneously to when Ms Woods was assaulted and suffered injury she was committing separate offences of being in possession of cannabis and being in possession of drug paraphernalia on which there was a prohibited drug or prohibited plant. That is, that she was in possession of and smoking cannabis and in possession of a glass bong which she was using to smoke cannabis. Although I accept Ms Woods suffered significant injuries as a result of being assaulted by the respondent, of which he was convicted, and that those injuries have had a lasting impact upon both her physical and mental health, I am prevented from making an award of damages because of the provision of s 39 of the Act.
2. Therefore, it follows that pursuant to s 39 the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Assessor's Papers (Assessor's Papers), pages 462 and 466.

[3] Magistrates Court sentencing transcript dated 21 November 2024, page 2.

[4] See Re AW [2022] WADC 96 [36].

[6] Assessor's Papers, pages 2 - 3, Letter of Assessor to Ms Woods dated 4 July 2025.

[7] Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [32] (Martin CJ, Newnes & Murphy JJA agreeing).

[8] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170.

[9] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw).

[11] Lai v The Queen [1990] WAR 151, 155.

[12] Davies v The State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31 [8], [10] (Steytler P), [38] (Roberts-Smith & McLure JJA). Bozzer v The State of Western Australia [2017] WASCA 226 [28].

[13] Appellant's Submissions, dated 3 February 2026 (Appellant's Submissions), page 17.

[18] Appellant's Supplementary Submissions filed 15 March 2026 (Appellant's Supplementary Submissions), par 4.

[19] Appellant's Supplementary Submissions, par 5.

[20] Magistrate's reasons for decision dated 22 December 2023 (Magistrate's reasons) [31].

[21] Magistrate's reasons [32] - [35].

[22] Magistrate's reasons [47] and [48].

[24] Magistrate's reasons [79] - [83].

[26] Magistrates Court trial transcript dated 29 August 2023 (MC ts) 15.

[37] Assessor's Papers, page 11, pars 13 - 14.

[38] Assessor's Papers, page 11, par 17.

[40] Assessor's Papers, page 14, par 43.

[41] Assessor's Papers, page 16, par 55.

[44] Appellant's Submissions, pages 12 - 13.

[45] Lau v The State of Western Australia [2017] WASCA 16 [108] - [119] (Mazza & Mitchell JJA agreeing).

[46] Assessor's Papers, pages 374 - 375.

[47] Assessor's Papers, pages 370 - 372.

[48] Assessor's Papers, pages 371 and 375.

[49] Assessor's Papers, pages 588 - 589.

[51] Assessor's Papers, pages 387 - 390, 584 - 586.

[53] Assessor's Papers, pages 388 - 389.

[55] Assessor's Papers, pages 265 - 268, 274 - 277, 282 - 285, 590 - 597.

[56] Magistrate's reasons [80] - [85].