Frigger v The State of Western Australia - [2021] WASCA 211

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   FRIGGER -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 211
CORAM:   BEECH JA
HALL J

HEARD:   8 DECEMBER 2021
DELIVERED          :   9 DECEMBER 2021
FILE NO/S:   CACR 170 of 2021
BETWEEN:   ANGELA CECILIA THERESA FRIGGER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SHARP DCJ
File Number            :   IND 1112 of 2019

Catchwords:

Criminal law and procedure - Bail pending appeal - Whether there are exceptional reasons why bail should be granted - Turns on own facts

Legislation:

Bail Act 1982 (WA), cl 4A pt C sch 1

Result:

Bail granted

Category: B

Representation:

Counsel:

Appellant	:	G M Cridland
Respondent	:	B M Murray

Solicitors:

Appellant	:	G G Legal
Respondent	:	Director of Public Prosecutions (WA)

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

Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133
Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S)
Serukai v The State of Western Australia [2020] WASCA 127
The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527

JUDGMENT OF THE COURT:

Introduction

The appellant applies for bail pending the determination of her appeal against conviction. On 9 August 2021, the appellant was convicted, following a trial by a judge and jury, of one count of making a false statement on oath, contrary to s 169 of the Criminal Code (WA). On 26 November 2021, the appellant was sentenced to a term of 1 year 4 months' immediate imprisonment.
On 26 November 2021, by an application dated 19 November 2021, the appellant applied for bail pending the outcome of her appeal against conviction.
For the reasons that follow, we would grant bail.

The charge

The appellant was charged that between 22 September 2008 and 23 June 2010 she, when under oath, knowingly made a statement that was false in a material particular, in that in affidavits sworn on 23 September 2008 and 22 June 2010, she said two things that conflicted irreconcilably, namely, (1) as at 23 September 2008, that the company Computer Accounting and Tax Pty Ltd had no liabilities save quarterly GST, and (2) that as at 23 September 2008 the company had accrued debts to her and another.
As can be seen, the charge concerns two affidavits sworn by the appellant, one on 23 September 2008 (the 2008 affidavit) and one on 22 June 2010 (the 2010 affidavit).
The charge is best understood by reference to some of the considerable litigation in which the appellant and her company have been involved. Not all of the background below was in evidence before the jury, but it is included to provide context to assist in understanding the appellant's case in response to the charge.

Background - and the two affidavits

A company controlled by the appellant and her husband, Computer Accounting and Tax Pty Ltd (CAT) sued another company, Professional Services of Australia Pty Ltd (PSA) in relation to CAT's purchase of a property from PSA (the Armadale property).
Judgment was entered for CAT against PSA for a sum of just under $1 million.[1]
[1] Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [2008] WASC 133.
PSA appealed against the judgment to this court. PSA applied for a stay pending the hearing of the appeal. An interim stay was granted.
In opposition to PSA's application for an extension of the interim stay until the substantive hearing of the appeal, the appellant swore the 2008 affidavit, which stated, so far as is material, that CAT had no liabilities except for GST. This was relevant to the stay application as it went to the financial capacity of CAT to repay the judgment sum in the event that the appeal by PSA was successful.
In dismissing the application to extend the interim stay, Buss JA referred to the appellant's 2008 affidavit.[2]
[2] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222 [24], [27].
As a result of the dismissal of the stay application, PSA was obliged to, and did, make payment of the judgment sum, together with interest.
On 23 October 2009, PSA's appeal was partially successful in that this court reduced the judgment sum to an amount of about $675,000.[3]
[3] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183.
Subsequently, on 7 December 2009, this court ordered that CAT pay - in substance by way of repayment - the amount overpaid by PSA of approximately $850,000.[4]
[4] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) [21].
Three events then occurred. One was on the day on which the reasons of the Court of Appeal were published (23 October 2009). The other two occurred soon after. The events were:
(a)On 23 October 2009, the Friggers registered a charge allegedly created on 10 September 2009, over property of CAT described as 'all of the proceeds from legal proceedings Supreme Court and Magistrates Court' to secure repayment of loans allegedly made by the Friggers to CAT in the sum of $2,000,000.
(b)On 13 November 2009, the Friggers arranged for the lodgement of two absolute caveats over the title to two pieces of real estate registered in the name of CAT. One caveat related to the title to the property at 140 Edward Street and 46 Pier Street, Perth (referred to in Mrs Frigger's 2008 affidavit and comprising two lots on a single title), and the other related to the Armadale property. The caveats claimed, in effect, that the property was held by CAT as trustee for the Frigger Superannuation Fund.
(c)On 3 December 2009, the Friggers, being the members of CAT, resolved to put CAT into voluntary liquidation. No declaration of solvency existed when the resolution was passed.
CAT did not pay to PSA the sum of approximately $850,000 following the orders of this court. On 3 December 2009, PSA brought an application for freezing orders to prevent the Friggers taking steps to enforce payment to them of moneys said to be due under the deed of charge and for various other orders.
On 10 December 2009, Simmonds J made freezing and ancillary orders, the precise form of which was settled on 16 December 2009.[5] Among other things, the ancillary orders made by Simmonds J required the appellant and her husband to provide information as to what had become of the money paid to CAT in satisfaction of the judgment, to provide information as to the consideration given by them in support of the loan owing to them by CAT and to provide information as to what had become of any amounts paid to them by PSA in diminution of the loan account since 23 October 2009.[6]
[5] Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2.
[6] Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [39] - [41].
After a series of other appearances, the appellant and her husband sought and obtained an adjournment of the hearing as to costs to allow them to file an affidavit in opposition to the costs orders sought by PSA.
On 22 June 2010, the appellant filed the 2010 affidavit. The 2010 affidavit included, so far as are material, the following:
5.More particularly, this affidavit is to explain the following transactions by the plaintiff.
a.The purchase and transfer of the property at 140 Edwards Street, Perth ('Edward Street Property').
b.The purchase and transfer of the property at 269 South West Highway, Armadale ('Armadale Property').
c.Repayment of the loans in relation to the above purchases.
d.The payments made by the plaintiff:
(i)of $999,999 in January 2009 to the Frigger Superannuation Fund ('FSF');
(ii)payment in June 2009 of $1,165,661.54 to my husband (as trustee of the FSF).
THE EDWARD STREET PROPERTY
6.In 2001 my husband and I agreed that CAT should purchase the Edward Street Property as an investment property. The purpose of the purchase was to acquire the Edward Street Property so it could ultimately be transferred into the FSF. In 2001 superannuation funds could not borrow funds to purchase assets and, accordingly, this structure allowed us to purchase an asset which could then ultimately be transferred into the FSF.
7.The purchase price of the Edward Street Property was $435,000 with $17,450 stamp duty also required to be paid. That is, the total purchase consideration and duty was $452,450.
8.My husband and I borrowed the $452,450 from our bank and, to secure that loan, pledged our properties at 29 Gairloch Street Applecross and 3/61 Cale Street, Como. We then on lent that money to CAT and CAT used the funds to purchase the Edward Street Property.
9.The terms of the loan for the purchase of the Edward Street Property was that CAT would be liable to pay interest on the loan made by my husband and I but the interest would not be paid but would accrue and be added to the loan made.
10.In the fullness of time, once an appropriate opportunity arose, the loan would be repaid by the transfer of Edward Street Property into the FSF. We fixed the interest rate to be paid by CAT at 8.5% on the basis this was a reasonable rate for a commercial loan - I depose that my recollection is that our bank were charging us about 7.3% to 7.7% (or thereabouts) on the funds we borrowed from the bank. This rate has not been challenged by the ATO.
11.Between 2001 and 2008, my husband and I repaid to the bank the loan which had been on‑lent to CAT to purchase the Edward Street Property. My husband and I repaid the loan to the bank from our own income and funds.
12.Over the same period, the debt due from CAT to my husband and I increased by the amount of the interest that accrued on our loan to CAT.
13.In about 2007 my husband and I decided we should prepare our financial affairs to enable us to transition to retirement on reaching age 55. This included, as had been planned in 2001, that the Edward Street Property would now be transferred to the FSF. Accordingly, on 1 July 2007 ownership of the Edward Street Property was transferred to FSF.
…
THE ARMADALE PROPERTY
18.Following the same investment strategy in relation to the Edward Street Property, in 2003 CAT purchased another commercial property, again financed by an extension to the loan referred to para 8. Again we on lent the funds to CAT. This property is the Armadale Property. The property cost $665,000 and stamp duty of $36,875 was also payable on this property, the total of these amounts was borrowed and on lent to CAT to allow it to purchase the Armadale Property.
19.This property was also transferred to the FSF on 1 July 2008 at sworn valuation of $523,000 obtained in these proceedings from licensed valuer Jeff Spencer dated 1 March 2007.
…
REPAYMENTS
20.On 1 September 2003 the directors resolved to use any judgment sum awarded to CAT in these proceedings to repay the loan (ie the loans with which CAT purchased the Edward Street Property and the Armadale Property). Attached and marked 'AF‑5' is a true copy of my affidavit dated 7 July 2005 which evidences this resolution by CAT.
21.I reiterate CAT did not make any repayments of principal or interest to us during the period December 2001 to June 2008. However, we used our own personal funds and income to repay the loan we borrowed from bank.
…
31.On 1 April 2009 the directors of CAT held a meeting and made resolutions confirming the taxation strategy referred to above and granted to my husband and I as the beneficiaries of the FSF the right to register a charge to secure the balance of the loan to CAT which remained outstanding. As at 1 April 2009, the outstanding loan amount was $1,669,896.47. I depose that of this amount over $200,000 was for the payment of legal fees incurred by CAT which my husband and I had lent to CAT to pay those fees. Attached and marked 'AF‑8' is copy of the minutes.

The State case at trial

The State case was that the statements in the 2008 affidavit and the 2010 affidavit were irreconcilable, so that one of them must be false. The State asserted, in both opening and in closing, that this was all that needed to be found in order to sustain a verdict of guilty and that it was unnecessary for the jury to decide which statement was false.[7]
[7] ts 359, 367 - 368, 518, 520.

The defence case

In opening, the appellant's counsel said that the defence took no issue with the characterisation of the charge and that the central task for the jury was to compare the effect of what the appellant said in the 2008 affidavit with what was said in the 2010 affidavit.[8]
[8] ts 373 - 374.
The defence case, as explained in opening, was that what was said in the September 2008 affidavit - that CAT had no liabilities - was true and that, properly understood, the 2010 affidavit does not say anything to the contrary.[9] The transactions described in the 2010 affidavit did not give rise to liabilities on the part of CAT. Counsel foreshadowed that the appellant, a qualified accountant, would give evidence explaining why this was so.[10]
[9] ts 375.
[10] ts 375.
Counsel suggested that one of the most important issues, perhaps the crucial issue, would be whether, in the light of the appellant's evidence, the jury accepted the allegation in the indictment to the standard of proof beyond reasonable doubt.[11]
[11] ts 375 - 376.

Defence closing address

The central theme of the appellant's counsel's closing address to the jury was that, taking into account the appellant's evidence, the jury could not be satisfied beyond reasonable doubt of her guilt.
In the course of closing, counsel for the appellant quoted various parts of the appellant's evidence.[12] The evidence referred to can be summarised as follows.
(1)The appellant gave evidence concerning a minute of directors' meeting dated 1 April 2009 on which the prosecution relied. She did not remember how the balance of the loan increased from nil as at 23 September 2008 to about $1 million as at 1 April 2009 because she was focused on events up to 23 September 2008.[13] Counsel submitted that the appellant's inability to recall details of something more than a decade earlier fell well short of being proof by the prosecution beyond reasonable doubt.
(2)As at 23 September 2008, the appellant and her husband owed CAT $147,000.[14]
(3)While CAT had been ordered to repay $760,000 to PSA by this court, CAT had a costs order in its favour valued at about $750,000. The appellant offered seven times to pay $850,000 into CAT's solicitor's trust account to remain until all of the taxations and the costs had been calculated and a proper amount was calculated as to how much CAT had to repay to PSA.[15]
(4)The appellant denied that she was saying different things at two different times as to CAT's financial state as at September 2008.[16]
(5)As at 23 September 2008, CAT did not owe a liability, being the purchase price of the Edwards Street property, because it had already been repaid by transfer of the property to the Frigger Superannuation Fund on 1 July 2007.[17]
(6)The Edwards Street and Armadale properties remained assets of CAT after the transfer to the Frigger Superannuation Fund (the transfer of the Armadale property having occurred on 1 July 2008).[18]
(7)The loans were extinguished by the operation of a Quistclose trust - when CAT transferred the properties to the Fund.[19]
[12] ts (closing addresses) 32.
[13] ts 457 - 458.
[14] ts 418.
[15] ts 419 - 420.
[16] ts 464.
[17] ts 435.
[18] ts 439 - 441.
[19] ts 445 - 446.
Counsel for the appellant also pointed to paragraphs [13] and [19] of the 2010 affidavit, which referred to the Edwards Street and Armadale properties being transferred to the Frigger Superannuation Fund, submitting to the jury that the transfers from CAT to the Frigger Superannuation Fund took place before 23 September 2008, with the result that there was no outstanding liability.[20]
[20] ts (closing addresses) 40.
In concluding, counsel submitted that the appellant had, in her evidence, taken the jury in detail through her second affidavit explaining the transactions there referred to and explaining why those transactions did not mean that CAT had any liabilities as at 23 September 2008.[21]
[21] ts (closing addresses) 49.

The judge's summing up

At the outset of his summing up, the trial judge told the jury that the State's case was that the statements in the two affidavits as to CAT's liabilities were irreconcilable, so that one must be false, and that that was all that was needed to establish the State case.[22] The judge reiterated that more than once in the course of the summing up.[23]
[22] ts 505.
[23] ts 518 - 520.
In the course of giving conventional directions as to the burden of proof and inferences, the judge said that the State asks the jury to find that the appellant knowingly made a false statement under oath, with the question of the appellant's state of mind being a matter for inference.[24] The judge said that the State asked the jury to draw an inference that the appellant knowingly made a false statement under oath, the judge emphasising to the jury the word 'knowingly'.[25] In similar vein, towards the end of the directions, in a passage referred to below, the judge said that the task for the jury was to decide whether one or other of the affidavits was a deliberate untruth.[26]
[24] ts 515.
[25] ts 516 - 517.
[26] ts 525.
The judge gave a conventional Liberato direction, telling the jury that if they believed the appellant's evidence or if it left the jury in a state of reasonable doubt as to whether it was true, the jury must acquit.[27]
[27] ts 517 - 518.
The judge said as follows in summarising the State case:[28]
(a)the statements in the two affidavits are contradictory, as one asserts CAT had no liabilities and the other asserts that CAT had accrued debts to the appellant and her husband;
(b)consequently, one of those statements must be false;
(c)that is all that is needed to find guilt;
(d)the prosecutor referred to some of the paragraphs of the 2010 affidavit set out at [19] above.
[28] ts 518 - 520.
The judge then said as follows, in summarising the defence case:[29]
Now, the defence - and I may as well just sum up their position too, says that it takes no issue with the State's characterisation of the charge in the indictment in the sense that it agrees that you, the jury, will have to compare what she deposed to, what she said in an affidavit under oath in 2008 with what she said in the 2010 affidavit.
The defence also accepts that the civil dispute in the Supreme Court initially, and then on appeal in the Supreme Court Court of Appeal, et cetera, was complicated, protracted and a long-running dispute and the defence is happy to agree that you don't really need to get into too much detail about that. So the defence says put simply, PSA sold to CAT a service station in Armadale, things didn't work out with the service station and so CAT, whose directors were Ms Frigger and her husband, sued PSA.
Initially there was judgment in favour of CAT and PSA was forced to pay money. PSA decided to appeal that decision and didn't want to pay the money until the appeal was determined. Nevertheless, the court ordered that they had to pay the money. Once the appeal was heard, the outcome of the case was that CAT was required to repay some of the original money ordered to be paid to them and on 23 September 2008 Ms Frigger, in the 2008 affidavit, said that CAT had no liabilities save for its ongoing duty to pay GST. And then on 22 June 2010 she swore the 2010 affidavit.
And the defence case is this. When Ms Frigger deposed to the fact in the 2008 affidavit that CAT had no liabilities on 23 September 2008, that was the truth. When she described in the 2010 affidavit transactions in which CAT had been involved, the defence says that this didn't give any rise to liabilities of CAT, in other words, CAT had no liabilities in 2008 and at the time she made the 2010 affidavit the situation had not altered.
That's the defence in this case. The defence says that there's no irreconcilable conflict between CAT's financial position as ascribed in two different affidavits at two different points of time.
[29] ts 520 - 521.

The judge then turned to explaining the elements of the offence, saying that these are the matters that must be proved before the appellant could be found guilty.[30] The judge told the jury that there were six elements as follows:[31]
(1)identity;
(2)that the appellant swore the two affidavits under oath;
(3)that the two affidavits contained statements referred to in the indictment;
(4)the statements were both material statements;
(5)that 'the material statements in one or other of the two affidavits were irreconcilable with each other so that one or other statement must be false';[32]
(6)'when [the appellant] swore the affidavits she knew that they contained material statements that conflicted irreconcilably in a material particular'.[33]
[30] ts 521.
[31] ts 522 - 523
[32] ts 523.
[33] ts 523.
In effect, the judge told the jury that the issues in the case concerned the fifth and sixth elements and that the other elements would not cause the jury any difficulties.[34]
[34] ts 522, 523, 524.
The judge restated the fifth and sixth elements in the same terms including, as to the sixth element, that 'when [the appellant] swore the affidavits, she knew they contained material statements that conflicted irreconcilably in a material particular'.[35]
[35] ts 524.

The judge then said the following, saying it was to assist the jury:[36]
To assist you, I'll say this. You have to look very, very carefully at the two affidavits. You need to give the words in the affidavits their ordinary meaning. Please don't try to give them an overly technical meaning, unless you're clear, from the affidavits, that [the appellant] intended the reading of the affidavits to be given a technical, rather than an ordinary, meaning to the words.
If, for example, she was intending the word "accrued" in the 2010 affidavit was to be given a technical meaning, say, an accounting meaning, does she say that anywhere in the affidavits, "And I'm using this in its technical sense, not in its ordinary sense"? If you, members of the jury, are satisfied that she meant to - meant the reader to use the word "accrued" in its technical sense, if indeed it has a technical sense, then that's a matter for you.
If you're satisfied that she was - that she was using the word "accrued" in its ordinary, general, day to day parlance, then that's, again, a decision for you to make. Now, on a similar point, you heard [the appellant], during her cross‑examination, mention that the debt or liability of CAT to her and her husband, that's the loan to enable CAT to buy the Edwards Street property, and I think the Armadale property, was extinguished by the transfer of that property to the superannuation fund, and thus the coming into being of a Quistclose Trust.
Now, I can certainly assure you that there is such a thing called a Quistclose Trust, it's named after a case and I think it's an English case, and I think it involves somebody called Quistclose, that's usually the way that we name things. I'm not going to attempt to explain it to you. It would be inappropriate for me to try to do so, because I've told you that what I say is not evidence, and no evidence has been led, either by the State or the defence, about the concept of a Quistclose Trust.
In any event, are you satisfied, on your scrutiny of the two affidavits, that [the appellant] had intended that a reader of the affidavits would know about and understand a Quistclose Trust? Is there a reference in either affidavit to a Quistclose Trust? That is something that you must consider in your deliberations. Importantly, you don't need to decide, if you find that the statements in the two affidavits are irreconcilable, you don't need to decide which one's true and which one's false.
[36] ts 524 - 525.
The judge reiterated that the jury did not need to find which of the statements was false, only whether the statements conflicted irreconcilably.[37]
[37] ts 525.
The judge then said, again, that the jury must decide whether the appellant knew that the two affidavits contained irreconcilable statements.[38] The judge added that the jury had to look at the statements to decide whether one or other of the statements in the 2008 affidavit and the 2010 affidavit was a deliberate untruth.[39]
[38] ts 525.
[39] ts 525.
The judge posed the question, '[d]id she [the appellant] truly believe that a reader of the two affidavits would be able to reconcile the two statements?'[40]
[40] ts 525.
Immediately after the jury retired to consider their verdict, defence counsel sought a redirection from the judge to summarise or refer to salient parts of the appellant's evidence.[41] The judge declined to give any such further direction, observing that it was a short trial and that the jury had recently heard the appellant's evidence.[42]
[41] ts 529 - 530.
[42] ts 530, 533.

The appeal

The appellant has not yet filed an appellant's case. The appeal notice includes two draft grounds of appeal. The first contends that the learned trial judge failed, over objection, to adequately deal with or address the defence case in his summing up. The second draft ground contends that the prosecution and conviction of the appellant under s 169 of the Criminal Code contravened the doctrine of witness immunity from prosecution for statements made in legal proceedings.

Appellant's submissions as to bail

The appellant's written submissions in support of bail concentrate on ground 1. The appellant points to s 112 of the Criminal Procedure Act (2004) WA and to the decision of this court in The State of Western Australia v Pollock.[43]
[43] The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527.
The appellant contends that her evidence was, by its nature, complex and technical, encountering the technical and conceptual language of accounting. In the circumstances, in order to ensure a fair trial, it was incumbent on the trial judge to ensure that the jury had a sufficient grasp of the evidence given by the appellant.
The appellant submits that the judge's brief summary of the defence case - in [32] above - did not refer to the appellant's evidence. Further, the effect of the judge's observations set out at [36] above was to undermine, if not dismiss entirely, the appellant's evidence, which was at the heart of the defence case.
In oral submissions, the appellant foreshadowed an additional ground of appeal. The proposed additional ground challenges the judge's identification of the elements of the offence, contending that the judge did not adequately identify the crucial element of knowledge, on the part of the appellant, of the falsity of the relevant statement in the affidavit. The appellant points to the passages in the summing up set out at [33] and [35] above, submitting that knowledge of irreconcilability cannot be equated with knowledge of falsity. The appellant acknowledges that at one point the judge correctly framed the question by reference to knowledge of falsity. However, she submits that this does not overcome the erroneous effect of the identification of the knowledge element in the course of setting out the elements.
The appellant submits that there are exceptional reasons why she should be granted bail pending appeal. In that regard she relies primarily on what she says are her strong prospects of success in relation to ground 1 and the proposed additional ground. She also points to the fact that she and her husband are involved in numerous civil proceedings in the Supreme Court and in the Federal Court and, as self‑represented litigants, and given her husband's linguistic difficulties, she is required to conduct those proceedings.

Respondent's submissions

The respondent submits that neither of the draft grounds of appeal is strongly arguable and there are no exceptional circumstances as would warrant the grant of bail. It points to the relatively confined issues in the trial, submitting that the jury's determination turned on the discrete issue of whether they were satisfied beyond reasonable doubt that the two affidavits contained irreconcilable conflicts such that one of them must have been false.[44] It also points to the passages in the summing up set out at [32] and [36] above. The respondent submits that the trial judge adequately identified the substance of the defence and the relevant portions of the appellant's evidence in the course of the summing up.[45]
[44] Respondent's submissions [14].
[45] Respondent's submissions [20].
As to the proposed additional ground, the respondent accepts that there are, at least, some issues as to the parts of the judge's direction that focused on knowledge of irreconcilability. However, it points to the judge's remark (ts 525) that the jury had to look at the two statements to decide if one of the statements was a deliberate untruth.

Bail pending appeal: principles

The principles relating to the grant of bail pending the determination of an appeal are well‑established. The court must be satisfied that there are exceptional reasons why the appellant should not be kept in custody. Also, it must be proper to grant bail having regard to the provisions of cl 1 and cl 3 of pt C sch 1 of the Bail Act 1982 (WA). See cl 4A pt C sch 1 of the Bail Act.
We adopt the following observations of Buss P in Serukai v The State of Western Australia:[46]
The test to be applied where the prospects of success in the appeal is one of the matters relied upon in support of a submission that there are exceptional reasons why the appellant should not be kept in custody has been expressed in various ways. Something more than a reasonably arguable case must be shown.
In Peters v The State of Western Australia, McLure P observed, in the context of an appeal against conviction:
It is sufficient for present purposes to adopt the formulation relied upon, which is that the appeal is strongly arguable. See Shrivastava v The State of Western Australia [2010] WASCA 96 [32]. That formulation, like others, is predicated on the notion that the prospect of success must be sufficiently likely to give rise to a real concern the appellant would suffer injustice by having been kept in custody on an unsound conviction: Fermanis v The State of Western Australia [2005] WASCA 212 [15].
[46] Serukai v The State of Western Australia [2020] WASCA 127 [13] ‑ [14].
Thus, the primary consideration is whether the appellant has demonstrated a strongly arguable case on appeal that sustains the grant of bail pending the determination of the appeal.

Disposition

At the stage of a bail application, the court's views as to the apparent merits of the appeal are necessarily preliminary in nature. In the circumstances we think it appropriate to state our views in a conclusionary fashion, without elaboration.
At this stage, we are persuaded that the merits of the appellant's appeal against conviction are of sufficient strength to justify a grant of bail.
We consider that the proposed additional ground gives rise to a strongly arguable case that the trial judge misdirected the jury as to the elements of the offence in the manner summarised in [45] above.
We are also satisfied, at this stage, that draft ground 1 is strongly arguable on the basis outlined at [44] above.
The appellant was sentenced to 16 months' imprisonment. Her appeal will not be heard for several months. In our view, the combination of those circumstances with the appellant's strongly arguable case on appeal constitutes exceptional reasons why she should not be kept in custody pending the determination of her appeal against conviction.
For these reasons, the appellant's application for bail should be granted.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JR
Research Associate to the Honourable Justice Beech
9 DECEMBER 2021