Re AW - [2022] WADC 96

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE AW [2022] WADC 96
CORAM:   WHITBY DCJ
HEARD:   12 OCTOBER 2022
DELIVERED          :   11 NOVEMBER 2022
FILE NO/S:   APP 21 of 2022
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: AW
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   C F HOLYOAK-ROBERTS
File Number            :   CIC 84/2022

Catchwords:

Criminal injuries compensation - Whether appellant committing separate offences when she suffered her injuries - Whether appellant disentitled to an award of compensation pursuant to s 39 Criminal Injuries Compensation Act2003 (WA) - Turns on its own facts

Legislation:

Criminal Code (WA)
Criminal Injuries Compensation Act 2003 (WA)
Misuse of Drugs Act 1981 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Amicus Curiae	:	Mr C D Tan on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	In person
Amicus Curiae	:	State Solicitor for Western Australia

Case(s) referred to in decision(s):

Atholwood v The Queen [2000] WASCA 76
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Guy v Hampson [2019] WADC 19
Hamilton v The State of Western Australia [2010] WASCA 7
Hinchcliffe v Hinchcliffe [2010] WADC 78
Jones v The State of Western Australia [2006] WASCA 192
Kennedy v The State of Western Australia [2021] WASCA 55
Lau v The State of Western Australia [2017] WASCA 16
McDavitt v McDavitt [2013] WADC 22
Re Richardson [2009] WADC 93
Re Tilbury [2010] WADC 46
Sweetman v Lilley [2021] WADC 74
Underwood v Underwood [2018] WADC 13

WHITBY DCJ:

In 2020, AW was 26 years old and was in a relationship with CD. AW continues to be in a relationship with CD.
In March 2020, due to financial difficulties, AW was working as an escort. AW would meet her clients in a spare room of her apartment in East Perth. AW would see clients during the day and the night. When AW saw clients at night, CD would be at the apartment in their bedroom. AW's clients were not aware that CD was there.
In the early morning of 25 March 2020, AW agreed to meet with her first client at her apartment at 2.30 am (Client 1). The appointment was for one hour. AW also agreed to meet the respondent for one hour at 4.00 am.
Client 1 arrived late at 2.45 am. AW had a few 'tokes' of methylamphetamine before Client 1 arrived to make her stay awake and feel more confident. AW met with Client 1 and then had a shower after he left. It is not clear how long Client 1 stayed for.
AW received a text message from the respondent at 3.59 am and sent him her address. AW quickly had a few more 'tokes' of methylamphetamine before the respondent arrived.
AW showed the respondent into the spare room. CD was asleep in the nearby bedroom with the door closed. After AW and the respondent talked briefly, the respondent punched AW in the face without warning. AW fell back onto the bed and the respondent continued to punch her in the head and place a pillow over her face.
The respondent then stopped punching AW but remained on top of her. After a short time, CD came into the room and jumped on top of the respondent. CD and the respondent rolled onto the other side of the bed, freeing AW.
CD restrained the respondent in a headlock and hit the respondent several times. AW also hit the respondent in the head several times.
AW and CD then allowed the respondent to leave the apartment. The respondent left without his wallet and other belongings.
The respondent later reported to the police that he had been assaulted by CD at the apartment. As a result, the police went to AW's apartment and executed a search warrant. The police obtained CCTV footage from AW that showed that the respondent had assaulted her.
As a consequence of the assault, AW suffered bruising to her head and face, underneath her chin, on the left side of her neck, to her hands and wrists and experienced pain in her back and left leg.
On 25 May 2021, the respondent was convicted in the District Court of, with intent to harm, doing an act causing bodily harm pursuant to s 304(2)(a) of the Criminal Code (WA). Her Honour Judge Wallace sentenced the respondent to 18 months' imprisonment conditionally suspended for 18 months (Sentencing Remarks).
By application dated 10 January 2022, AW claimed compensation pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA) (the Act) as a consequence of injury and loss arising from the assault by the respondent (original application).
On 25 February 2022, an assessor of Criminal Injuries Compensation (Assessor) refused the original application.
On 18 March 2022, AW filed a notice of appeal against the decision of the Assessor to refuse her application for compensation.
For the reasons that follow, I find that AW was committing a separate offence when she suffered her injuries and, pursuant to s 39 of the Act, she is not entitled to a compensation award.

The original application

The original application was made by AW pursuant to s 12 of the Act. Section 12(1) of the Act provides:
(1)A person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered.
The term 'proved offence' is defined in s 3 of the Act as:
[A] crime, misdemeanour or simple offence of which a person has been convicted[.]
There is no dispute that the offence for which the respondent was convicted is a proved offence for the purposes of s 12 of the Act.
The material before the Assessor included the following:
(a)police statement of AW dated 27 March 2020;
(b)prosecution brief;
(c)letter from AW to the Assessor dated 4 February 2022 (in response to the letter dated 27 January 2022 from the Assessor to AW);
(d)letter from AW to the Assessor dated 19 February 2022 (in response to the letter dated from the Assessor to AW); and
(e)the Sentencing Remarks.
The Assessor refused the original application, pursuant to s 39 of the Act, on the basis that at the time AW was injured she was committing a separate offence, that was being in possession of drug paraphernalia in contravention of s 7B of the Misuse of Drugs Act 1981 (WA) (MODA).

The appeal to the District Court

The appeal is made pursuant to s 55 of the Act. In hearing the appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the Assessor's decision': s 56(1) of the Act.
The court may determine the appeal 'solely on the evidence and information that was in the possession of the Assessor or may receive further evidence and information': s 56(1) of the Act.
The court should admit further evidence unless there is some reason why it would be unjust to do so.[1]
[1] Re Tilbury [2010] WADC 46 [3]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9].
It is open to the court to 'confirm, vary or reverse the Assessor's decision, either in whole or in part': s 56(2)(b) of the Act.
Cases decided in this court differ in their findings as to whether it is appropriate to have regard to the Assessor's assessment of compensation (given the assessment is made by a specialist tribunal in the field).[2]
[2] See for example Robinson [2017] WADC 18 [9] and Underwood v Underwood [2018] WADC 13 as authority for the view that regard should be had to the assessment as opposed to Sweetman v Lilley [2021] WADC 74 and Guy v Hampson [2019] WADC 19 [14] as authority for the view that it is not appropriate to have regard to the assessment.
I am of the view that a hearing de novo requires me to consider this appeal without regard to the prior decision of the Assessor. In any event, the Assessor refused the original application and therefore did not make any assessment of damages in relation to AW's injuries. This is not an appeal where the quantum of the assessment is in issue, rather whether the injuries are compensable at all. Accordingly, I will determine the appeal without regard to the decision of the Assessor.
AW sought to rely upon the material contained in the book of documents dated 6 October 2022. The majority of the material contained in the book of documents was before the Assessor. The additional material contained in the book of documents that was not before the Assessor was:
(a)the affidavit of AW sworn on 5 October 2022;
(b)the affidavit of CD sworn on 5 October 2022;
(c)two CCTV image stills of the respondent arriving at the apartment;
(d)the WA Health Interim Guide for Remediation of Low-level Illicit Drug Contamination; and
(e)the Clean Plus Chemicals Safety Data Sheet - Sugar Soap.
It was unclear whether the psychological report of Helen Fowler dated 15 July 2021 was before the Assessor. To avoid any confusion, I considered this report to have not been before the Assessor.
I granted leave, pursuant to s 56(1) of the Act, for AW to rely upon these additional materials, including the report of Dr Fowler, in support of the appeal, being satisfied that it was not unjust to do so.
In summary, AW says that the Assessor erred in not awarding her compensation for injuries and consequential losses sustained as a result of the proved offence in that:
(a)the Assessor erroneously considered irrelevant and incorrect facts in the decision regarding the drug paraphernalia;
(b)the Assessor did not give any weight to the outcome of the police search which did not identify any drug paraphernalia;
(c)the Assessor erroneously gave more weight to contemporaneous information when the relevant information had no relevance for being documented contemporaneously, thereby limiting procedural fairness;
(c)the Assessor erroneously determined facts regarding methylamphetamine use without these being put to her and giving her an opportunity to respond; and
(d)when looking at the evidence overall, the Assessor unreasonably and erroneously concluded that she was in possession of drug paraphernalia when sustaining the injuries.
As I have outlined, it is irrelevant whether or not the Assessor erred as I am considering the original application afresh.
By orders of Registrar Kubacz dated 17 May 2022, the Chief Executive Officer of the Department of Justice (CEO) was granted leave to appear as amicus curiae. The CEO sought to rely upon its outline of submissions dated 7 October 2022.

Issues

The threshold issue for determination is whether AW suffered the injuries when she was committing a separate offence.
If the answer to this is yes, then the court is precluded from making an award of compensation in favour of AW by virtue of s 39 of the Act.
Only if the answer to this is no does the court go on to consider firstly whether, pursuant to s 41 of the Act, AW's behaviour, condition, attitude or disposition contributed directly or indirectly to her injuries, and secondly, the amount of any award that is appropriate.

Did AW suffer the injuries when she was committing a separate offence?

Section 39(1) of the Act provides:
(1)If an assessor is satisfied -
(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.
It is not in dispute that AW was injured as a consequence of the commission of the proved offence for which the respondent was convicted. I find that AW suffered her injuries when she was punched multiple times by the respondent.
Therefore, what is in issue is the second limb of s 39 - that is whether AW suffered her injuries when she was committing a separate offence.
The principle underpinning s 39 of the Act is that a person is not entitled to criminal injuries compensation for injuries suffered as the consequence of the commission of an offence where that person was engaged in criminal conduct when the injuries were suffered: Attorney General for Western Australia v Her Honour Judge Schoombee.[3]
[3] Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [32] (Martin CJ) (Schoombee).
There does not need to be a causal connection between the injuries suffered by the person and the separate offence allegedly being committed by that person. Only a temporal connection is required. In order to determine whether there is a temporal connection between the injuries suffered and the alleged separate offence, the court is required to consider all of the facts and circumstances of the case and decide whether the person was committing a separate offence at the time he or she was injured: Re Richardson.[4] The court should not adopt a narrow interpretation of the temporal connection required between the proved offence and the separate offence as this would be inconsistent with the purpose of s 39 of the Act.[5]
[4] Re Richardson [2009] WADC 93 [31] (Yeats DCJ) cited with approval in Schoombee [33] and [54].
[5] Schoombee [53].
In Schoombee, the applicant was the victim of the offences of indecent assault and sexual penetration without consent which occurred in her own home. The applicant and the offender smoked methylamphetamine a number of times before and after, but not during, the commission of the offences.
The Court of Appeal in Schoombee held that the evidence before the assessor and the Judge was capable of sustaining the conclusion that the applicant was committing a number of continuing offences throughout the entire period during which she was sexually assaulted.[6] Those offences included being in possession of a pipe for use in connection with the smoking of a prohibited drug in or on which pipe there are detectable traces of a prohibited drug[7] and possession of a prohibited drug, in the form of methylamphetamine, that remained in the pipe belonging to the applicant and her husband at the time the sexual offences were committed.[8]
[6] Schoombee [55].
[7] An offence at the time pursuant to s 5(1)(b) MODA.
[8] An offence at the time pursuant to s 6(2) MODA.
The CEO submits that it is open for the court to find that AW was committing either or all of the following separate offences when she suffered her injuries:
(a)having in her possession or using a prohibited drug, contrary to s 6(2) MODA;
(b)being in possession of drug paraphernalia in or on which there is a prohibited drug, contrary to s 7B(6) of the MODA; and/or
(c)common assault under s 223 of the Criminal Code.
I must be satisfied, on the balance of probabilities, that AW was committing a separate offence when she was injured: s 3 of the Act. Where criminal conduct is alleged, there must be clear and cogent evidence in order for the court to be satisfied to the requisite standard that an offence was committed: McDavitt v McDavitt.[9]
[9] McDavitt v McDavitt [2013] WADC 22 [30] (Davis DCJ).
Methylamphetamine is a prohibited drug: s 4(1)(c) and sch III item 80 MODA. There is no issue that AW was referring to methylamphetamine when she said that she took a few tokes of 'meth' twice on 25 March 2020, once before seeing Client 1 and again before seeing the respondent.
Section 3(1) MODA provides that:
to possess includes to control or have dominion over, and to have the order or disposition of …
In determining any issue as to the facts that form part of the proved offence following a plea of guilty, the facts admitted for the purposes of sentencing, as evident from the Sentencing Remarks, are the most reliable guide. Any additional facts I consider in determination of the appeal must not be inconsistent with the material facts comprising the elements of the proved offence: Underwood v Underwood.[10]
[10] Underwood v Underwood [56] - [62] (Gething DCJ).
The respondent's plea of guilty to the proved offence is evidence of the facts admitted for the purposes of sentencing the respondent. The agreed facts of the proved offence, according to the Sentencing Remarks, are as follows:
(a)on 25 March 2020, at the time of the offending, AW was working as an escort. The respondent found AW's escort profile on the website Skokka, and texted her to engage AW as an escort. AW and the respondent agreed to meet for a one hour session;
(b)the respondent arrived at AW's home on 25 March 2020, at 4.00 am. AW let the respondent into her home, and into the bedroom she used for clients. AW sat at the head of the bed, while the respondent sat next to her on the same side of the bed;
(c)after a brief chat about payment of the agreed amount, the respondent stood up, turned to AW, and suddenly punched her in the face. They fell back onto the bed, with the respondent lying on top of AW. The respondent then punched AW repeatedly in the face as she was trapped underneath him;
(d)the respondent picked up a pillow and held it over AW's face, trying to smother her. AW continued struggling with the respondent, and tried to scream for help as the respondent pressed the pillow over her face;
(e)when CD entered the room, he threw himself at the respondent and restrained the respondent with a headlock, thus freeing AW;
(f)in the struggle, the respondent's wallet and other items were left on the bed. Upon examining the respondent's wallet, AW realised that the respondent only had $5 in his wallet (and therefore did not have the money to pay her for the appointment). AW and CD told the respondent to leave their home; and
(g)as a result of the respondent's assault, AW suffered bruising to her head and face, underneath her chin, and on the left side of her neck, to her hands and wrists, and experienced pain in her back and left leg.
However, I am not limited to these facts for the purposes of determining the original application. In her statement to the police, AW said:
(a)on the day of the offending, she arranged to meet with two clients. She met with the first client at 2.30 am, for a one hour appointment. This client arrived late, at around 2.45 am and wanted an hour. Before she met this client she had a few tokes of meth. She had the meth to make her stay awake and feel more confident. She met with this client and when he left, she quickly had a shower to freshen up. She got changed into a white singlet and knickers;[11]
(b)the respondent was the second client for the night. She told him that she could meet him at 4.00 am and that the minimum appointment was one hour;[12]
(c)at 3.59 am, she received a message from the respondent stating that he was at the agreed location. She replied telling him to give her a couple of minutes and then messaged the respondent her address. She had a few more tokes of meth before the respondent arrived at the apartment. The respondent pressed the doorbell to her apartment on the ground floor and she allowed him access and waited for him to arrive;[13]
(d)She normally waits by the door so she can look through the peep hole and prevent her clients from knocking on the door. On this occasion, she did not get to the door in time and the respondent knocked a couple of times on the door.[14]
[11] Statement of AW dated 27 March 2020 (AW Statement), pars 47 - 53: Assessor's papers, pages 13 - 41.
[12] AW Statement, pars 55 - 56.
[13] AW Statement, pars 70 - 76.
[14] AW Statement, pars 77 - 78.
The Assessor wrote to AW and asked AW to:[15]
… provide me with some more information around your meth use on that evening and in particular, after you had smoked it the second time, what you did with the remaining meth and the smoking implement whilst the incident occurred with the second client.
[15] Letter from Assessor to AW dated 27 January 2022: Assessor's papers, page 89.

AW also gave the following responses to the Assessor's enquiries about her methylamphetamine use on the evening she was assaulted:[16]
As stated in my police statement I had been using meth on the date of the incident, March 25^th 2020. I had obtained a small amount as I would only use enough to assist me with my work that evening as it made it easier to meet with clients, as stated in paragraph 65 [of my police statement] – I have the meth to make me stay awake, but it also makes me feel more confident …
As I only had a small amount that evening after smoking it the second time, I had actually finished the last of what I had prior to the offender entering into my home. I only ever allowed clients access to the spare room (my work room) and the guest bathroom and toilet. So, as I had done with the arrival of any of my clients, I had left the smoking implement in my bedroom and shut my bedroom door. I was very strict on never combining it with my work and always made sure nothing was ever visible to my clients.
Once I had greeted the offender at the door we walked directly to my work room where the incident occurred shortly after. The offender only ever entered my work room and the hallway from the front door leading to my work room.
[16] Letter dated 4 February 2022 from AW to the Assessor: appellant's book of documents.
The Assessor then advised AW that her preliminary view was as follows:
(a)AW had retained possession of the smoking implement by placing it in her bedroom after smoking methylamphetamine shortly before the offender arrived at the house;
(b)this led to the inference that residue of methylamphetamine remained in the smoking implement at the time that AW stored it in her bedroom;
(c)as a result, at the time AW was injured, she was committing a separate offence, that is possession of drug paraphernalia in or on which there is a prohibited drug in contravention of s 7B MODA; and
(d)the application ought be refused on the basis of s 39 of Act.[17]
[17] Letter dated 10 February 2022 from the Assessor to AW: appellant's book of documents.
The Assessor invited AW to make any further submissions in relation to the preliminary view expressed.
By way of further submissions, AW informed the Assessor that:[18]
In my previous letter I advised I had left the smoking implement in my bedroom and closed the bedroom door. However, I did not go into detail about where I had left it in my room and what state it was in.
Prior to smoking meth the first time that evening, I had had to ask if I could borrow [CD]'s smoking implement as I did not have my own to use. He allowed me to borrow it temporarily, as long as I returned it to him as soon as I would no longer need to use it. He also asked for it to be returned in the same condition it was when I received it; which was clean with no residue.
As previously mentioned, prior to the offender entering my home, I had finished the last of the meth I had. Knowing that I would no longer require the use of the smoking implement I knew I had to return it to [CD]. Therefore, before returning it to him I proceeded to clean the implement ensuring it was in the same state it was when I obtained it which was clean and empty with no traces of any substance inside.
Once I was satisfied with the cleanliness of the smoking implement, I made sure to return it to [CD] and that he was aware I was returning it as I would no longer need to use it. He was in our bedroom on the bed, and so I returned the smoking implement to him, thanked him for allowing me to briefly borrow it and left the bedroom shutting the door behind me before greeting the offender.
[18] Letter dated 19 February 2022 from AW to the Assessor: appellant's book of documents.
The facts given by AW in her statement dated 27 March 2020 and in her subsequent further submissions to the Assessor, whether or not I accept them, are not inconsistent with the facts of the proved offence. Therefore, I have regard to these facts in considering whether she was committing a separate offence when she was injured.
AW submitted that the police conducted an extensive search of her house and did not charge her with any offence of possession of drug paraphernalia or prohibited drugs and as a result the court can be satisfied she was not committing a separate offence.[19] The Act defines 'offence' as including an 'alleged offence': s 3 MODA. An 'alleged offence' is also defined in s 3 MODA as 'a crime, misdemeanour or simple offence of which no person has been convicted'. It is not necessary for AW to have been charged with any offence for it to constitute a 'separate offence' for the purposes of s 39 of the Act. The fact that AW has not been charged with any offence is not determinative of the issue of whether she was committing a separate offence.
[19] Outline of submissions of AW dated 11 October 2022 (AW Submissions), par 7.
On the basis of AW's own admissions, I am satisfied that AW was both in possession of and used a prohibited drug, and was in possession of drug paraphernalia on which there was residue of a prohibited drug, on 25 March 2020. The real issue is whether she was committing either of these offences when she was injured.
I find that, given AW had used the methylamphetamine before she was injured and not when she suffered her injuries (ie when she was punched by the respondent), the requisite temporal connection between an offence of using a prohibited drug and the injuries being suffered is not present. However, the issue that remains is whether AW continued to be in 'possession' of methylamphetamine and/or drug paraphernalia on which there was residue of a prohibited drug when she was injured.
The concept of 'possession' is relevant to consideration of whether the required temporal connection exists between these separate offences and AW's injuries.
The definition of 'to possess' contained in s 3(1) of the Act extends the scope of possession beyond physical custody: Kennedy v The State of Western Australia.[20]
[20] Kennedy v The State of Western Australia[2021] WASCA 55 [48].
Therefore, AW will be in possession of a prohibited drug if she either has physical possession of methylamphetamine or has methylamphetamine otherwise in her control or under her dominion.
At the time that AW was injured by the respondent, I find, on the balance of probabilities, that she was not in immediate physical possession of methylamphetamine and/or a smoking implement. Therefore, I must be satisfied on the balance of probabilities that AW had an intention to control or have dominion over the methylamphetamine and/or the smoking implement when she suffered her injuries: Lau v Western Australia.[21]
[21] Lau v The State of Western Australia [2017] WASCA 16 [64].
Proof of knowledge of methylamphetamine will normally be sufficient to show an intention to control the substance: Atholwood v The Queen.[22]
[22] Atholwood v The Queen[2000] WASCA 76.
AW does not have to have knowledge of the precise location of the methylamphetamine or smoking implement in order to have 'dominion over' or 'the order or disposition of' that methylamphetamine or smoking implement. As explained in Hamilton v The State of Western Australia:[23]
'To possess' is defined in s 3 of the Act as including 'to control or have dominion over, and to have the order or disposition of'. It does not appear to be a necessary requirement of having 'dominion over' or 'the order or disposition of' an item that one has knowledge of its precise location. A courier has possession of drugs if, for example, the courier knows that they are secreted somewhere in his or her baggage, even if he or she does not know in which case, or in which package (see He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523 at 537). Moving from physical possession, a person may 'have' an item if they know that the item is in a particular type of receptacle, and have a general knowledge of where the receptacle is kept, even if they are not aware of its precise location and even if they need the assistance of another to have access to it (see Ryan v Dimitrovski (1996) 16 WAR 457 at 460, 462). What is required in each case is 'sufficient knowledge' of the item (see Williams v The Queen (1978) 140 CLR 591 at 610), together with an ability to exercise control.
(emphasis added)
[23] Hamilton v The State of Western Australia[2010] WASCA 7 [14].
More than one person can be in possession of the methylamphetamine at the same time: Jonesv The State of Western Australia.[24]
[24] Jonesv The State of Western Australia[2006] WASCA 192 [20].
AW told the Assessor that she 'had actually finished the last of what [she] had prior to the offender entering into [her] home' and that she 'left the smoking implement in [her] bedroom and shut [her] bedroom door'.[25] AW provided this information to the Assessor after being asked to provide the Assessor with more information regarding her methylamphetamine use and what she did with the remaining methylamphetamine and smoking implement before meeting the respondent on 25 March 2020. AW did not tell the Assessor that the smoking implement was not hers, or that she cleaned any remaining residue from the implement, or that she had returned it to CD prior to the respondent entering the apartment.
[25] Letter from AW to the Assessor dated 4 February 2022: Assessor's papers, page 80.
The Assessor then wrote back to AW indicating that her preliminary view was that AW was injured while she was committing a separate offence, that was being in possession of drug paraphernalia in or on which there is a prohibited drug, and was therefore not entitled to compensation. The Assessor indicated that, given that AW had informed her that she had smoked meth on two occasions that evening, she inferred that residue remained in the smoking implement at the time that AW stored it in her bedroom.[26]
[26] Letter from the Assessor to AW dated 10 February 2022: Assessor's papers, page 91.
In response, AW told the Assessor that she did not go into detail previously about where she had left the smoking implement and what state it was in. She also told the Assessor that the smoking implement was CD's, that she had to ask him to borrow it, that he allowed her to borrow it temporarily as long as she returned it when she no longer needed to use it and that she returned it in the same condition that it was when he lent it to her, that is clean with no residue. AW provided an affidavit to this effect in support of the notice of appeal.[27] CD also provided an affidavit in support of the notice of appeal, in which he stated:[28]
2.On 25 March 2020, [AW] asked to use my glass pipe to smoke Methylamphetamine. I allowed her to use it and requested she return it in the same condition as she received it - clean with no residue.
3.[AW] woke me up prior to the arrival of [the respondent] to return the glass pipe to me. She said she no longer needed to use it. The pipe appeared to be in the same condition as when I gave it to her – clean with no residue.
4.It is my belief that had [AW] sought to use the same glass smoking pipe again, she would have asked me and I would have made a determination as to whether she could use it and what conditions she could use it under. [AW] was aware that the glass smoking pipe was not otherwise able to be used at her discretion.
[27] Affidavit of AW sworn on 5 October 2022 (Book of Documents, document 1).
[28] Affidavit of CD sworn 5 October 2022 (Book of Documents, document 2).
I am satisfied, on the balance of probabilities, that AW had control or dominion over the smoking implement, either solely or jointly with CD, when she suffered her injuries on 25 March 2020 and that she did not clean the smoking implement after she used it for the following reasons:
(a)AW only provided that information to the Assessor after the Assessor had informed AW of her preliminary view;
(b)AW's and CD's affidavit evidence was also provided after they had been made aware of the Assessor's preliminary view;
(c)AW's statement to the police that she '[has] the Meth to make me stay awake but also it makes me feel more confident'[29] and that she had tokes of meth on both occasions that evening before she saw her clients, makes it more likely than not that AW had access to the smoking implement whenever she wanted to use it;
(d)AW's and CD's evidence that she must return the smoking implement to him free of residue and ask for permission to use it is inconsistent with AW's admitted use of methylamphetamine, the fact that it was the early hours of the morning and that CD was asleep;
(e)although AW may have had time to clean the smoking implement before seeing the respondent, she only asserted that she did so after she became aware of the Assessor's preliminary view;
(f)it is more likely than not that AW did not clean the smoking implement as she alleges given that it was the early hours of the morning and that she had just taken a few tokes of methylamphetamine in order to prepare herself for meeting the respondent.
[29] AW Statement, par 65.
I am therefore satisfied, on the balance of probabilities, when the respondent punched AW, that is when AW suffered her injuries, AW had control over, and was therefore in possession of, a prohibited substance namely the residue of methylamphetamine in the smoking implement and was in possession of drug paraphernalia on or in which there was residue of a prohibited substance. AW was committing separate offences under s 6(2) and s 7B(6) MODA when she suffered her injuries.
I find that AW is precluded, pursuant to s 39 of the Act, from receiving an award of compensation.
Given these findings, it is not necessary to determine whether AW was committing a separate offence of assault or whether her behaviour, condition, attitude or disposition contributed directly or indirectly to her injuries. Although if I had been required to do so, I would have found that AW did not contribute directly or indirectly to her injuries in any manner.

Summary and conclusion

AW represented herself at the hearing of the appeal. I commend her on the manner in which she conducted herself before the court. I found AW to be an intelligent and articulate person. My finding that she is not entitled to compensation is in no way a reflection of the extent of the injuries she has suffered or a finding that she contributed in any way to the offending against her. In fact, it is the opposite. I find that there was no causal connection between the offence committed against her and her committing separate offences.
The role of the court is to interpret and apply the provisions of the Act. The wording of s 39 of the Act is clear and unambiguous and therefore, must be given its ordinary and grammatical meaning. It is not the role of the court to descend into whether statutory provisions are unjust or inconvenient.
A causal connection between the respondent's offending and the commission of a separate offence by AW is not required to enliven the operation of s 39 of the Act. Only a temporal connection is required. The case of Schoombee makes this abundantly clear. If the court is satisfied that there is a temporal connection between the respondent's offending and the commission of the separate offence/s, then it must not make a compensation award in favour of the applicant.
I am satisfied, on the balance of probabilities, that AW suffered her injuries when she was committing the separate offences of being in possession of a prohibited drug and/or being in possession of drug paraphernalia in or on which there was a prohibited drug. Section 39 of the Act provides that I must not make a compensation award in favour of AW.
I dismiss the notice of appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CB
Associate to her Honour Judge Whitby
11 NOVEMBER 2022