Frigger v The State of Western Australia [No 2]

[2025] WASCA 7

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   FRIGGER -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2025] WASCA 7

CORAM:   MAZZA JA

MITCHELL JA

HALL JA

HEARD:   7 NOVEMBER 2024

DELIVERED          :   14 JANUARY 2025

FILE NO/S:   CACR 76 of 2024

BETWEEN:   ANGELA CECILIA THERESA FRIGGER

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   GETHING DCJ

File Number            :   IND 1112 of 2019

Catchwords:

Criminal law - Appeal against conviction - Knowingly making a false statement under oath that is false in a material particular - Where prosecution alleged that one of two statements made in two different affidavits which irreconcilably conflicted with each other must have been false in a material particular - Whether the term 'material' relates to the degree of difference between the statement and the truth or to whether the statement is reasonably capable of affecting the outcome relevant to the purpose for which it is made - Whether materiality of a false statement is a question of fact for the jury or a question of law for the trial judge - Where trial judge directed the jury that it was for them to determine whether a false statement was false in a material particular and that the requirement of materiality protected an accused person from criminal liability for a minor inaccuracy or omission - Where trial judge ought to have directed the jury that, if either of the statements the subject of the charge was false, it would have been false in a material particular - Whether wrong decision on a question of law concerning the direction as to materiality, which was favourable to the accused, gave rise to a substantial miscarriage of justice - Whether guilty verdict was unreasonable or unsupported by the evidence - Whether absence of a direction as to the use which other inconsistencies in statements made in the affidavits could be put gave rise to a miscarriage of justice

Appeal - Practice and procedure - Where appellant seeks to reopen case, amend grounds of appeal and advance further written and oral submissions after the hearing of the appeal - Whether it is in the interests of justice to grant leave after judgment has been reserved on completion of the hearing of the appeal

Legislation:

Bail Act 1982 (WA), sch 1 pt C cl 1, sch 1 pt C cl 2
Criminal Appeals Act 2004 (WA), s 30
Criminal Code (WA), s 124, s 169, s 170
Criminal Procedure Act 2004 (WA), sch 1 cl 6(12)(b)
Interpretation Act 1984 (WA), s 10(c)
Rules of the Supreme Court 1971 (WA), O 52A

Result:

Leave to appeal granted
Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant	:	F M Hugo
Respondent	:	L M Fox SC

Solicitors:

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

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

Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150

Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380

Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246

Christianos v The Queen (unreported, Court of Criminal Appeal of Western Australia; 17 December 1991; Library no 9217)

City of Wanneroo v Bakota [2023] WASCA 61

Commissioner of State Taxation v EDI Rail (Maryborough) Pty Ltd [2010] WASCA 17; (2010) 41 WAR 197

Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2 (S)

Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq) [2018] WASCA 174; (2018) 53 WAR 201

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318

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

Frigger v The State of Western Australia [2023] WASCA 39

Frigger v The State of Western Australia [2024] WASCA 100

Frigger v The State of Western Australia [No 2] [2022] WASCA 72

Gill v Chief Executive Officer of Customs [2001] NSWCCA 470; (2001) 166 FLR 125

Hansen v Comptroller-General of Customs (1996) 130 FLR 72

KHA v The State of Western Australia [2022] WASCA 173; (2022) 305 A Crim R 265

Lafferty v Waterton [2016] WASCA 183

Loh v The State of Western Australia [No 2] [2024] WASCA 109

Mellifont v Attorney-General (Qld) (1991) 173 CLR 289

Minister for Immigration v Dela Cruz (1992) 34 FLR 348

Murphy v Griffiths [1967] 1 WLR 333

OKS v The State of Western Australia [2018] WASCA 48; (2018) 52 WAR 482

OKS v The State of Western Australia [2019] HCA 10; (2019) 265 CLR 268

Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222

R v Davies (1974) 7 SASR 375

R v Maslen (1995) 79 A Crim R 199

R v Traino (1987) 45 SASR 473

Re Minister for Immigration; Ex parte Lai Qin (1997) 186 CLR 622

TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; (1999) 48 NSWLR 381

Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168

Contents

Summary

The charged offence

Previous trial and appeal

Uncontroversial background

Prosecution case at trial

Defence case at trial

Prosecution evidence at trial

Detective Sergeant Beard's evidence

Mr Sim's evidence

Defence evidence at trial

Mr Thomas' evidence

Mr Frigger's evidence

Ms Lawford's evidence

Mr Kitay's evidence

Ms Banning's evidence

Case left for the jury at trial

Grounds of appeal

Ground 2: meaning of 'false in a material particular'

Legislative history and statutory context

The State's construction

Merits of the State's construction

Determining questions of materiality

Materiality of par 22 of the 2008 affidavit

Materiality of par 22 of the 2010 affidavit

Statutory context

Factual context in which the 2010 affidavit was sworn

The 2010 affidavit

Materiality of the statement in par 22 of the 2010 affidavit

The direction which ought to have been given in the present case

Ground 1: unreasonable verdict

Elements of the offence

Identity

Whether the appellant made the statements

Whether the statements were made on oath

Whether one of the statements was false

Whether the appellant knew the relevant statement was false

Conclusion as to ground 1

Ground 3: direction as to use of other inconsistencies

Prosecutor's opening statement

Prosecutor's closing address

Trial judge's direction

Appellant's submissions

Disposition of ground 3

Application of proviso

Appellant's application to reopen appeal and amend appellant's case

Bail application at the hearing of the appeal

Further bail application on 2 December 2024

Orders

JUDGMENT OF THE COURT:

Summary

1. On 4 June 2024, the appellant was convicted after trial by jury of one count of knowingly making a statement under oath that was false in a material particular, contrary to s 169 of the Criminal Code (WA).

2. The charge related to statements which the appellant made in two affidavits sworn in proceedings in this court.  The proceedings were between:

   1.Computer Accounting and Tax Pty Ltd (CAT), a company controlled by the appellant and her husband Hartmut Frigger; and

   2.Professional Services of Australia Pty Ltd (PSA) and Martin Banning[1] (who was a director of PSA).

   [1] Mr Banning died during the proceedings, which continued with his estate as a party.  It is convenient to refer to Mr Banning as the relevant party, rather than his estate, throughout these reasons.

3. In CIV 2265 of 2006 (primary proceedings), CAT sued PSA and Mr Banning in the General Division of this court, seeking damages for misleading and deceptive conduct arising out of CAT's purchase of a service station from PSA.  The service station was located on land at Armadale (Armadale property).  On 9 July 2008, judgment was entered in favour of CAT against PSA for $967,202.50.  PSA appealed against the judgment to this court in CACV 76 of 2008 (civil appeal).  PSA unsuccessfully applied for a stay of the judgment in the primary proceedings pending the determination of the civil appeal (stay application).  PSA and Mr Banning paid $1,165,661.54 (comprising the judgment sum and interest) to CAT before the determination of the civil appeal.  The civil appeal was ultimately successful in part.  Damages awarded to CAT were reduced and CAT was ordered to refund the overpayment.  

4. On 16 December 2009, a freezing order was made in the primary proceedings preventing the appellant and Mr Frigger from taking steps to enforce payment of money which they claimed to be due to them from CAT.  This order was made to protect against the danger that the order for refund of the overpayment of damages might be unsatisfied because the appellant and Mr Frigger were in a position of control and influence over CAT's assets.

5. The statements which were the subject of the charge were made in two affidavits.  The first affidavit was sworn on 23 September 2008 in the civil appeal in opposition to the stay application (2008 affidavit).  In par 22 of the 2008 affidavit, the appellant stated that CAT had no liabilities save for quarterly GST liabilities.  The second affidavit was sworn on 22 June 2010 in the primary proceedings (2010 affidavit) seeking a discharge of the freezing order and costs.  The State alleged that, in par 22 of the 2010 affidavit, the appellant stated that, as at 23 September 2008, CAT had accrued debts to her.

6. The prosecution did not seek to establish which of the statements made in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit was false. Relying on sch 1 cl 6(12)(b) of the Criminal Procedure Act 2004 (WA), which modifies the ordinary rule as to duplex charges, the prosecution alleged that the two statements conflicted irreconcilably so that one of the statements must have been false. The prosecution contended that, whichever of the two statements was false, the statement was false in a material particular and the appellant knew it was false at the time she swore the relevant affidavit.

7. In submitting that the only reasonable inference was that the appellant knew of the falsity of whichever statement contained in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit was false, the prosecutor referred to other inconsistencies between the 2008 affidavit and the 2010 affidavit.  The trial judge did not give any direction of law about the use which could not be made of these other inconsistencies.

8. In his Honour's charge to the jury, the trial judge directed the jury that it was for them to determine whether a false statement was false in a material particular and that the requirement of materiality protected an accused person from criminal liability for a minor inaccuracy or omission.

9. The appellant now appeals against her conviction on three grounds.  Ground 1 contends that the guilty verdict was unreasonable and unsupported by the evidence.  Ground 2 in effect contends that the trial judge made a wrong decision on a question of law when directing the jury as to the requirement that the relevant statement must be false in a 'material particular'.  Ground 3 in effect contends that a miscarriage of justice arose when the trial judge failed to direct the jury about the uses to which the evidence of 'other alleged inconsistencies' between the 2008 affidavit and the 2010 affidavit must not be put.

10. For the reasons explained below, neither ground 1 nor ground 3 is established.

11. However, ground 2 is established to the following extent. A statement will be false in a material particular for the purposes of s 169 of the Criminal Code if it is reasonably capable of affecting the outcome relevant to the purpose for which the statement is made.  Where the false statement is made for the purposes of a judicial or administrative process, the question will be whether the false statement is reasonably capable of affecting the outcome of that process.  Contrary to the approach advocated by the State and adopted by the trial judge, the term 'material' is not concerned merely with the degree of difference between the false statement and the truth.  Further, the question of whether the statement is reasonably capable of affecting the outcome relevant to an identified purpose for which the statement is made is a question of law for the determination of the trial judge rather than a question of fact for the jury.

12. In the present case there was no issue at trial as to the purposes for which the statements in the 2008 affidavit and the 2010 affidavit were expressly made.  As a matter of law, each statement was reasonably capable of affecting the outcome relevant to the purpose for which the statement was made.  In these circumstances, the trial judge ought to have directed the jury that, if either of the statements which the State alleged to have been made in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit was false, it would have been false in a material particular.  The failure of the judge to direct the jury in these terms constituted a wrong decision on a question of law.

13. However, the trial judge's error in this respect operated wholly in the appellant's favour.  In circumstances where the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant's guilt of the charged offence, the appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred.

14. After the conclusion of the hearing of the appeal, the appellant, who was represented by counsel at that hearing, filed a notice of self‑representation and sought leave to reopen the appeal, amend her grounds of appeal and advance further written and oral submissions.  For the reasons explained below, those applications should be dismissed.

The charged offence

1. The appellant was charged with the following count on an indictment:[2]

   Between 22 September 2008 and 23 June 2010 at Perth [the appellant], 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, [the appellant] said two things that conflicted irreconcilably, namely (1) as at 23 September 2008, that the company [CAT] had no liabilities save quarterly GST, and (2) that as at 23 September 2008 the company had accrued debts to her.

   [2] The indictment was amended during the course of the trial to delete the words 'and another' at the end of the charge: see trial ts 2032 - 2036, 2189 - 2190.

2. That is an offence contrary to s 169(1) of the Criminal Code, which provides:

   Any person who, when under oath or any sanction that may be lawfully substituted for an oath, knowingly makes a statement, whether orally or in writing, that is false in a material particular is guilty of a crime and is liable to imprisonment for 7 years.

3. In seeking to prove this offence, the State relied on sch 1 cl 6(12)(b) of the Criminal Procedure Act, which provides:

   In a charge that alleges an offence involving the giving of false evidence, false information or a false statement (whether those words or others are used) -

   …

   (b)the charge may allege that in the evidence, information or statement the accused said 2 or more things that conflict irreconcilably, without specifying which of them is false.

Previous trial and appeal

1. The appellant was originally convicted of the charged offence after trial on 9 August 2021.  On 26 November 2021, the appellant was sentenced to a term of 1 year 4 months' immediate imprisonment for that offence.  She had not previously spent any time in custody on remand.

2. The appellant lodged an appeal against that conviction to this court.  On 9 December 2021, this court granted the appellant bail pending the determination of her appeal.[3]  On 24 June 2022, this court allowed the appellant's appeal against conviction, set aside the conviction and ordered a retrial.[4]  In ordering a retrial, this court concluded that the evidence adduced at the first trial was sufficient to support a conviction.[5]  On 28 February 2023, this court dismissed an application by the appellant for leave to reopen the appeal to enable the court to reconsider its order for a retrial and to substitute an order acquitting the appellant of the charged offence.[6]

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

   [4] Frigger v The State of Western Australia [No 2] [2022] WASCA 72 (previous conviction appeal reasons).

   [5] Previous conviction appeal reasons [91] - [92].

   [6] Frigger v The State of Western Australia [2023] WASCA 39.

3. The appellant's retrial took place before the trial judge and a jury between 21 May 2024 and 4 June 2024.  While the appellant was represented by counsel at her first trial, she was self-represented at the retrial.

Uncontroversial background

1. The following background facts appear to have been uncontroversial at trial.  They were established by documents tendered through the investigating officer, Detective Sergeant Beard.

2. CAT, a company controlled by the appellant and Mr Frigger,[7] sued PSA and Mr Banning in the primary proceedings.  The primary proceedings were brought in the General Division of this court and related to CAT's purchase of the Armadale property from PSA.[8]  They were tried by Simmonds J.

   [7] Exhibit 2.

   [8] Exhibit 3.

3. On 9 July 2008, judgment was entered in favour of CAT against PSA for $967,202.50.[9]  In the civil appeal, PSA appealed against the judgment to this court and applied for a suspension or stay of the orders made by Simmonds J pending the hearing of the civil appeal.[10]

   [9] Exhibit 10, annexure DCS2.

   [10] Exhibit 5.

4. On 23 September 2008, the 2008 affidavit, which on its face indicated that it was sworn by the appellant, was filed in the civil appeal.[11]  There was no issue that the appellant signed the 2008 affidavit before a justice of the peace, Ms Machele.  In both the opening part of the 2008 affidavit and in the jurat, the appellant stated that the affidavit was sworn by her.  The appellant described her occupation as 'Accountant and Company Director'.  Paragraph 3 of the 2008 affidavit stated that the appellant swore the affidavit in opposition to PSA's application for a stay of judgment.  In pars 16 - 21 of the 2008 affidavit, the appellant said that CAT had assets valued at $2,850,043, which included:

   1.A property referred to as the Edward Street property, which had 'a sworn value on April 2007 of $1,100,000', which was still owned by CAT and was unencumbered. 

   2.The Armadale property, valued at $615,030 at 1 March 2007 by Simmonds J, which was still owned by CAT and was unencumbered.

   3.A term deposit in the amount of $999,999.

   [11] Exhibit 6.

5. At par 22 of the 2008 affidavit, the appellant stated that CAT 'has no liabilities save quarterly GST liabilities'.

6. At par 23 of the 2008 affidavit, the appellant stated that, given PSA's own admission that CAT's financial affairs were 'buoyant', there was no reason to stay the judgment on the ground that CAT would not be in a position to repay the judgment sum should the civil appeal be successful.

7. PSA's stay application was dismissed by Buss JA (as his Honour then was) on 24 September 2008.[12]  In dismissing PSA's claim, Buss JA observed:[13]

   In my opinion, the only proper basis, in the present case, on which the interim stay might be extended is if there was a real risk that [CAT] would be unable to repay the judgment sum in the event of the [civil] appeal being allowed. I am satisfied, on the basis of the material in pars 7 and 16 to 22 of [the 2008 affidavit], that there is no such risk.

   [12] Exhibit 7.

   [13] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222 [27].

8. On or about 9 June 2009, PSA paid $1,165,661.54 to CAT (comprising the judgment sum and interest).[14]

   [14] Exhibit 10, par 4; exhibit 12, par 32.

9. On 23 October 2009, PSA's civil appeal was partially successful, and this court substantially reduced the judgment sum.[15]

   [15] Exhibit 8.

10. Also on 23 October 2009, the appellant and Mr Frigger registered a charge, allegedly created on 10 September 2009, over property of CAT.  The charge was over 'all of the proceeds from legal proceedings Supreme Court + Magistrates Court' to secure the payment of loans allegedly made by the appellant and Mr Frigger to CAT.[16]

    [16] Exhibit 10, annexure DCS4.

1. On 3 December 2009, PSA brought an application for freezing orders in the primary proceedings to prevent the appellant and Mr Frigger taking steps to enforce payment to themselves of moneys from CAT said to be due under the deed of charge.[17]  Simmonds J made a freezing order on 16 December 2009.[18]

   [17] Exhibit 9.

   [18] Exhibit 11.

2. On 7 December 2009, this court made final orders in the civil appeal including orders requiring CAT to pay PSA and Mr Banning amounts totalling $775,822.72 plus interest.[19]

   [19] Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2 (S) (exhibit 28) [26] - [27].

3. On or about 22 June 2010, the 2010 affidavit, which on its face indicated that it was sworn by the appellant on 22 June 2010 in Applecross, was filed in the primary proceedings.[20]  As with the 2008 affidavit, in the 2010 affidavit the appellant stated, both in the opening part of the affidavit and in the jurat, that the affidavit was sworn by her.  In the 2010 affidavit, the appellant described her occupation as 'Accountant'.  Paragraph 4 of the 2010 affidavit stated that the appellant swore the affidavit to support the discharge of freezing orders that had been made in the primary proceedings and for the costs of the application to be awarded to the appellant and Mr Frigger.

   [20] Exhibit 12.

4. In the 2010 affidavit, the appellant deposed that she and Mr Frigger had lent money to CAT in 2001 to fund CAT's purchase of the Edward Street property.  The 2010 affidavit also deposed that the appellant and Mr Frigger lent money to CAT in 2003 to fund CAT's purchase of the Armadale property.  CAT had not made any repayments of principal or interest to the appellant and Mr Frigger in the period from December 2001 to June 2008.  The appellant deposed that the Edward Street property was transferred to the Frigger Super Fund (FSF), of which CAT was trustee, on 1 July 2007.  The appellant deposed that Armadale property was transferred to the FSF on 1 July 2008.  The appellant deposed that, on 1 October 2008, she and Mr Frigger, as directors of CAT, resolved to ratify the transfer of the two real estate properties to the FSF as part payment of the loan 'we had made to CAT'.[21]

   [21] Exhibit 12, par 26.

5. In par 22 of the 2010 affidavit, the appellant stated:

   Since the purchase of the above two properties, I have acted as property manager for both properties.  I was not paid a salary as property manager, but my salary was accrued as director's fees during that period.  I depose that the following schedule correctly sets out my remuneration which was accrued:

   30 June 2002              $25,000

   31 December 2002      $25,000

   30 June 2003              $35,162

   30 June 2004              $61,126

   30 June 2005              $55,246

   Total $201,534

   In 2005/2006 my accrued salary increased to cover both property management and dealing with the CAT lawyers in these proceedings and the various related proceedings:

   30 June 2006              $75,000

   30 June 2007              $75,000

   30 June 2008              $75,000

   30 June 2009              $75,000

   30 June 2010              $75,000

   Total $375,000

   On the above figures, the amount of the appellant's 'accrued salary' as at 23 September 2008 (ie the sworn date of the 2008 affidavit) was $426,534.

6. Paragraph 32 of the 2010 affidavit deposed that the sum of $1,165,661.54 received by CAT from PSA on 9 June 2009 was 'transferred in further reduction of the directors' loan account'.  The appellant stated:

   By this time the loan had increased by unpaid remuneration entitlements due to my husband.  The remuneration entitlement having accrued but not having been paid it was added to the loan.  Accordingly, on this remuneration being paid (by the repayment of the loan), the payment was treated as salary received by my husband and was allowed to be taken as salary sacrifice payments into FSF and, accordingly, once in FSF was subject to the benefit of the superannuation taxation regime. Attached and marked 'AF-9' is a schedule of the loan.  This schedule does not include the amounts paid by my husband and me in legal costs on behalf of CAT in the 2009/2010 year which is approximately $175,000.

7. Annexure AF9 to the 2010 affidavit showed that the balance of the directors' loan account was $2,436,278.24 on 23 September 2008, which included director's fees.  The balance of the directors' loan account was $2,963,658.61 as at 30 June 2007 and $2,730,800.61 as at 30 June 2008 (before an addition for 'shortfall legal fees').  Annexure AF4 to the 2010 affidavit included balance sheets for CAT which identified its liabilities to be comprised of a 'Directors' Loan' of $2,963,658.62 as at June 2007 and of $2,730,800.61 as at June 2008.

Prosecution case at trial

1. The prosecution case at trial was that the statement made by the appellant at par 22 of the 2008 affidavit conflicted irreconcilably with the statement made in par 22 of the 2010 affidavit.  Although the prosecutor identified other irreconcilable differences between the affidavits for the purposes of contending that the appellant had acted dishonestly, it was these passages which were the subject of the charge.  The prosecutor contended that the statements in the passages were irreconcilable as:

   1.In the 2008 affidavit, the appellant said that, on 23 September 2008, CAT had no liabilities save for quarterly GST.

   2.In the 2010 affidavit, the appellant said that, on 23 September 2008, CAT had an accrued debt in the form of director's fees which were owed to her. 

   The prosecutor contended that one of these statements must be false because they could not both be true. 

2. The State invited the jury to draw the inference that the appellant, as a director of CAT who was an accountant and the person to whom the debt was owed, knew of the falsity of whichever of the statements was false.  It contended that the statements were material and that the terms of the affidavits showed that they were made on oath.[22]

   [22] See, in particular, trial ts 1004 - 1005.

Defence case at trial

1. The appellant made an opening statement at trial.  The appellant accepted that she made the statement that CAT had no liabilities on 23 September 2008 other than quarterly GST liabilities.  She contended that this statement was true.  The appellant denied that the 2010 affidavit contained the statement alleged in the indictment - that, on 23 September 2008, the company had accrued debts to her.  The appellant said that the 'director's fees' that she referred to in the 2010 affidavit, on which the prosecution was based, had been paid to her.  The appellant contended that, in using the word 'accrued' in par 22 of the 2010 affidavit, she did not mean that the director's fees had not been paid.  The appellant anticipated adducing evidence from an accountant that the director's fees had been paid when the appellant made the 2008 affidavit and did not constitute a liability of CAT at that time.  She contended that both statements were true, and the jury should find her not guilty of the charged offence.[23]

   [23] Trial ts 1010 - 1014.

2. In her closing submissions, the core of the appellant's defence was in essence that the director's fees were paid by being credited to a directors' loan account, which had a credit balance in favour of CAT as at 23 September 2008.  On that basis, payment of the director's fees operated to reduce the amount which the appellant and Mr Frigger would otherwise owe CAT.  Therefore, the director's fees did not represent a debt owed by CAT to her as at 23 September 2008.  References in par 22 of the 2010 affidavit to the appellant's salary having 'accrued as director's fees', and to her accrued remuneration and salary, should be understood in that sense and were true.

Prosecution evidence at trial

1. The prosecution called two witnesses in support of its case. 

Detective Sergeant Beard's evidence

1. Detective Sergeant Beard, the investigating officer, produced various documents obtained during the police investigation.  Those documents provided evidence of the uncontroversial background noted above.

Mr Sim's evidence

1. Jason Sim, a senior forensic accountant employed in the WA Police Force, gave expert evidence as to various accounting terms and how financial statements adduced into evidence would ordinarily be read.  Mr Sim gave evidence to the effect that a reference to an 'accrued' liability in accounting terms was to a liability which had been incurred but not paid.[24]  In cross-examination, Mr Sim in effect accepted that CAT's financial statements indicated that director's fees were recorded to a running account between CAT and its directors.  He accepted that, if the status of the running account was that the directors owed money to CAT, the director's fees would reduce their liability to CAT.[25]  In cross-examination, the appellant also adduced evidence of Mr Sim's view that the financial records of CAT, which included multiple inconsistent versions of the same documents and had not been audited, did not enable him to form a view as to CAT's true financial position.[26]  Mr Sim gave further evidence to this effect in re-examination, identifying some of the inconsistencies which made CAT's financial records unreliable.[27]

   [24] Trial ts 1276.

   [25] Trial ts 1421 - 1423.

   [26] Trial ts 1381 - 1386, 1508 - 1510.

   [27] Trial ts 1662 - 1673.

Defence evidence at trial

1. The appellant elected not to give evidence but adduced evidence from the following witnesses.

Mr Thomas' evidence

1. Phillip Thomas, the justice of the peace who witnessed the 2010 affidavit, gave evidence to the effect that his ordinary practice was to administer an oath when witnessing an affidavit.  He recognised his signature on the affidavit, but he could not recall witnessing the 2010 affidavit or whether he administered an oath on that occasion.  He had worked as a justice of the peace in Perth, Booragoon and Fremantle, but not in Applecross.[28]

Mr Frigger's evidence

[28] Trial ts 1995 - 1998.

1. Mr Frigger gave evidence that he was a chemical engineer who was married to the appellant and was a director of CAT.[29]  He said that he and the appellant visited Ms Machele several times when the primary proceedings started, including when the 2008 affidavit was signed.  Ms Machele was a justice of the peace who Mr Frigger described as an 'old lady' who was 'far over 80'.  Mr Frigger said that the affidavit was important 'because PSA was supposed to pay us $1 million and PSA refused to pay'.[30]  Mr Frigger's evidence was that he was present when the 2008 affidavit was signed by the appellant, and Ms Machele never asked the appellant to swear an oath.[31]

   [29] Trial ts 1783.

   [30] Trial ts 1785.

   [31] Trial ts 1785 - 1786.  Mr Frigger maintained this position in cross-examination at trial ts 1847 - 1850.

2. Mr Frigger identified exhibit 29 as a modified version of the loan schedule which was annexure AF9 to the 2010 affidavit.  He said that exhibit 29 was prepared by the appellant and was a 'running account to show who is owing money and who's receiving money'.[32]  He said that it related to his engineering fees, which the Australian Tax Office had ruled should be treated as his income rather than CAT's.[33]  In exhibit 29, entries for interest and engineering fees had been deleted, and a repayment of $750,000 was shown on 30 June 2008 (which Mr Frigger could not recall the details of).  It showed that, as at 31 August 2008, the appellant and Mr Frigger owed CAT $711,750.[34]

   [32] Trial ts 1823.

   [33] Trial ts 1823 - 1824.

   [34] Trial ts 1830, the cross-examination of Mr Frigger at trial ts 1876 - 1877 and re-examination at trial ts 1882 - 1884.

3. Mr Frigger also identified various financial records for CAT which had been prepared by the appellant and provided to Heather Lawford (whose evidence is discussed below).[35]

   [35] Being exhibit 30 - exhibit 37, see trial ts 1834 - 1839.

4. The general effect of Mr Frigger's evidence in cross-examination was that he had a poor recollection of CAT's financial affairs, and a poor understanding of CAT's financial accounts which were prepared by the appellant.[36]  While he was asked many questions about the transactions referred to in the 2010 affidavit, he had limited recollection about them.[37]

   [36] Trial ts 1840 - 1846, 1850 - 1851.

   [37] Trial ts 1856 - 1874.

5. In re-examination, Mr Frigger gave evidence that he did not know when annexure AF9 to the 2010 affidavit was prepared.[38]

Ms Lawford's evidence

[38] Trial ts 1884 - 1885.

1. Heather Lawford, the director of an accounting firm, gave evidence that she had received exhibits 30 - 37 and been given access to a 'QuickBooks' data file for CAT.[39]  She said that the journal entries in exhibit 30 showed director's fees being debited to the profit and loss account and credited to the directors' loan account.[40]  Using the journal entries, Ms Lawford was able to extract a balance sheet for CAT as at 23 September 2008 which had the same figures as shown on exhibit 33 (a balance sheet prepared by the appellant).   This indicated that, as at 23 September 2008, the directors' loan account was an asset of CAT which had a value of $667,867.07.[41] 

   [39] Trial ts 1910 - 1911.

   [40] Trial ts 1914 - 1916.

   [41] Trial ts 1917.

2. In cross-examination, Ms Lawford accepted that her opinion was based on the information which the appellant provided to her, and that that information was inconsistent in various respects with the contents of the 2008 affidavit and 2010 affidavit, including as to whether any director's fees had been paid.[42]

Mr Kitay's evidence

[42] Trial ts 1923 - 1924, 1953 - 1954.

1. Mervyn Kitay, who was appointed provisional liquidator of CAT in January 2010 and liquidator of CAT in May 2010,[43] was called to give evidence by the appellant.  He gave evidence that the appellant's report of CAT's affairs indicated that there was a directors' loan of several hundred thousand dollars, but CAT's financial statements did not corroborate that amount.  The directors' loan had been the subject of much debate and Mr Kitay had claimed in Supreme Court proceedings that the appellant and Mr Frigger owed CAT $2.6 million, or alternatively $2.356 million, on the directors' loan account.[44]  Mr Kitay said that the amount of the claim had been calculated in the following manner:[45]

   These amounts in this loan account, as set out here … were founded on reconciliations of the loan accounts based on the interrogation and forensic analysis of the numerous sets of financial statements presented by [the appellant] to us and/or obtained by us in reference to [the appellant's] affidavits containing such financial informations … which leads to a confused state of which of the financial records can be relied upon.  Our analysis has sought to do a job as best as we can faced with a multiplicity of profit and loss and balance sheets for each year from, I recall, 1998 to 2010 … where we've got all these records and we've … created the reconciliation from that.

   [43] Trial ts 2047.

   [44] Trial ts 2052, 2059.

   [45] Trial ts 2060.

2. Mr Kitay's evidence was that the task was also complicated by the fact CAT did not have its own bank account and the only bank account into which funds were paid was the appellant's personal bank account.[46]  In cross-examination, he confirmed the confusion created by multiple profit and loss statements and balance sheets from 2001 to 2010 and the fact that CAT's money was going into and out of the appellant's personal bank account (the records of which the liquidators had no ability to access).[47] 

Ms Banning's evidence

[46] Trial ts 2075.

[47] Trial ts 2105 - 2107.

1. Sandra Banning, a director of PSA, was asked about certain documents relating to the primary proceedings. 

Case left for the jury at trial

1. The trial judge directed the jury in effect that, to find the appellant guilty, they needed to give affirmative answers to all the following questions relating to the six elements of the charged offence:[48]

   1.Has the State proven beyond a reasonable doubt that, in the 2008 affidavit, the appellant made a statement that, as at 23 September 2008, CAT had no liabilities save quarterly GST (2008 statement)?

   2.Has the State proven beyond a reasonable doubt that the 2008 statement was made under oath by the appellant?

   3.Has the State proven beyond a reasonable doubt that, in the 2010 affidavit, the appellant made a statement that, as at 23 September 2008, CAT had accrued debts to her (2010 statement)?

   4.Has the State proven beyond a reasonable doubt that the 2010 statement was made under oath by the appellant?

   5.Has the State proven beyond a reasonable doubt that either the 2008 statement or the 2010 statement was false in a material particular?

   6.Has the State proven beyond a reasonable doubt that, whichever of the statements was false, the appellant knew that it was false at the time when she swore the affidavit containing the statement?

   [48] MFI ZB.

2. In relation to the first element, the trial judge noted that the State alleged that the 2008 statement is contained in par 22 of the 2008 affidavit.

3. In relation to the second and fourth elements, the trial judge directed the jury that:

   An affidavit will not be made under oath unless the person who made the affidavit, in the presence of a Justice of the Peace, says orally on oath or orally affirms that:

   (a) that he or she is the person named as the maker of the affidavit; and

   (b) that the contents of the affidavit are true; and

   (c) that the signature or mark is his or hers; and

   (d) if necessary, that any attachment to the affidavit is the attachment referred to in it.

   An oath may be made by a person, in the presence of a Justice of the Peace, holding or touching a Bible or holding up one of their hands, and swearing by Almighty God the matters in the first paragraph.

4. In relation to the third element, the trial judge directed the jury that:

   The accrued debts relied on by the State is the accrued remuneration as director's fees between June 2002 and June 2010 totalling $426,534.  The State alleges that the 2010 Statement is set out in [par 22], and attachments AF6 and AF9, of the [2010 affidavit].  Whether this material has the meaning or effect alleged by the State, being that as at 23 September 2008 CAT had accrued debts to [the appellant], is a matter for you to determine.

5. In relation to the fifth element, the trial judge directed the jury that:

   The law does not require the State to specify which statement it says is false. Rather, it is sufficient for the State to allege in the indictment that [the appellant] said two or more things that conflict irreconcilably, without specifying which of them is false.

   You do not need to determine which of the statements was false.  It is sufficient for you to determine that one of the statements must have been false at the time it was made.

   The meaning of the 2008 Statement, the meaning of the 2010 Statement, whether they conflict irreconcilably and whether, therefore, one was false in a material particular are matters for you to determine.

   The requirement that the statement be false in a 'material' particular protects an accused person from criminal liability for a minor inaccuracy or omission.

6. After giving the directions just quoted, by reading those passages in the jury handout, the trial judge gave the following further oral directions:[49]

   So let me just fine tune a little bit something that [the appellant] said in her closing.  The question is not whether the statement was material. The question is whether the statement was false in a material particular.

   So that's the question that you have to answer.  Was the statement false in a material particular?  So the requirement of materiality is focused on the significance of the falsity.  And as I've said, the requirement for the statement to be false in a material particular protects an accused person from criminality liability for a minor inaccuracy or omission.

   Now, in determining whether the statement was false in a material particular, you can obviously look at the statement.  You can look at the context in which it was made as well.  But that's a matter for you whether the statement was false in a material particular.

   [49] Trial ts 2368.

1. In relation to the sixth element, the trial judge directed the jury that:

   Element 6 only arises if the State has proven each of the other elements beyond a reasonable doubt.  So, if the State has not proven element 5 beyond a reasonable doubt, then you would find [the appellant] not guilty, and element 6 does not arise.

   As to element 6, [the] State may prove [the appellant's] knowledge by inference.  In order to do so, the State must prove that the only reasonable inference is that, whichever of the statements was false, [the appellant] knew that it was false at the time when she swore the affidavit in which it was contained.

Grounds of appeal

1. The appellant's appeal notice against her conviction was accepted for filing on 23 July 2024.  On 21 August 2024, this court refused the appellant's application for bail (first bail application) and made an urgent appeal order programming the hearing of the appeal to 7 November 2024.

2. At the appeal hearing on 7 November 2024, the appellant was represented by counsel.  The appellant's grounds of appeal were amended at the hearing, and ultimately were expressed in the following terms:

   1.The verdict of guilty was unreasonable and unsupported by the evidence.

   a) Particular one: the correct interpretation of 'false in a material particular' requires proof that the statement was a 'material particular'.

   b) Particular two: no evidence was led by the State for the purpose of proving that the statements were material particulars.

   2. The learned trial judge erred in law by directing the jury that the question of 'materiality' in the element 'false in a material particular' is focussed on the significance of the falsity, and neglecting consideration of whether the statement was a 'material particular'.

   3. The learned trial judge erred in law by failing to direct the jury about the uses to which the evidence of 'other alleged inconsistencies' must not be put.

Ground 2: meaning of 'false in a material particular'

1. It is convenient to begin with ground 2, which raises a question of construction of s 169(1) of the Criminal Code.  The question concerns the construction of the reference to a statement 'that is false in a material particular'.  On the State's construction of that phrase, which was adopted by the trial judge, the term 'material' in this phrase relates to the degree of difference between the statement and the truth.

2. By ground 2, the appellant contends that the trial judge erred in law by directing the jury that the question of materiality in the element 'false in a material particular' is focussed on the significance of the falsity, and neglecting consideration of whether the statement was a 'material particular'.

3. The appellant submits that, while the focus on the significance of the falsity might impose an additional requirement on the State, the requirement for the statement to be a 'material particular' cannot be ignored in proving the element.  The appellant argues that this requirement was neglected by both the prosecution and trial judge.  The appellant submits that the prosecution led no evidence for the purposes of proving that the statement itself was a 'material particular'.

Legislative history and statutory context

1. Section 169 and the related s 170 of the Criminal Code were originally enacted in the following relevant terms:

   169. Any person who, on any occasion on which a person making a statement touching any matter is required by law to make it on oath or under some sanction which may by law be substituted for an oath, or is required to verify it by solemn declaration or affirmation, makes a statement touching such matter which, in any material particular, is to his knowledge false, and verifies it on oath or under such other sanction or by solemn declaration or affirmation, is guilty of a crime, and is liable to imprisonment with hard labour for seven years. (emphasis added)

   …

   170.Any person who, on any occasion on which he is permitted or required by law to make a statement or declaration before any person authorised by law to permit it to be made before him, makes a statement or declaration before that person which, in any material particular, is to his knowledge false, is guilty of a misdemeanour, and is liable to imprisonment with hard labour for three years.

2. The provisions were not relevantly amended until 2005.[50]  In 2005, the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) was enacted and replaced the earlier Declarations and Attestations Act 1913 (WA). Section 41 and s 42 of the Oaths, Affidavits and Statutory Declarations (Consequential Provisions) Act 2005 (WA) repealed s 169 and s 170 of the Criminal Code and substituted the current provisions.  It does not appear from the explanatory memorandum or the second reading speech to the Bill for the latter 2005 Act that any substantive change, other than a reduction in the summary conviction penalty, was intended by this amendment.[51]

   [50] Reference in s 169 to an offender being arrested without warrant was made by s 30 of the Criminal Law Amendment Act 1985 (WA). References to imprisonment 'with hard labour' were removed by s 16(2) of the Criminal Law Amendment Act (No 2) 1992 (WA).

   [51] See Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2005, 6739 - 6740; Explanatory Memorandum for the Oaths, Affidavits and Statutory Declarations (Consequential Provisions) Bill 2005 (WA), Overview of Bill and clause notes for cl 41 and cl 42 of the Bill.

3. In their current terms, s 169 and s 170 of the Criminal Code relevantly provide:

   169.False statement on oath

   (1)Any person who, when under oath or any sanction that may be lawfully substituted for an oath, knowingly makes a statement, whether orally or in writing, that is false in a material particular is guilty of a crime and is liable to imprisonment for 7 years.

   …

   (2)Any person who knowingly makes a statement that is false in a material particular in a statutory declaration is guilty of a crime and is liable to imprisonment for 5 years.

   …

   170.False information to official etc.

   (1)Any person who, being required under a written law to give information, whether orally or in writing, to another person, knowingly gives information to the other person that is false in a material particular is guilty of a crime and is liable to imprisonment for 3 years.

   ...

   (2)Subsection (1) does not apply if the person is required to give the information on oath or in a statutory declaration.

4. Section 169 appears in ch XX of the Criminal Code, which is entitled 'Miscellaneous offences against public authority'.

5. The provisions of ch XVI of the Criminal Code, which concern 'Offences relating to the administration of justice', also form part of the statutory context in which s 169 is to be construed. The offences in ch XVI generally apply to conduct in a 'judicial proceeding', which is defined in s 120 of the Criminal Code to include:

   any proceeding had or taken in or before any court, tribunal, or person, in which evidence may be taken on oath.

6. Section 124 of the Criminal Code, which is in ch XVI, creates the offence of perjury in the following terms (which have not been relevantly amended since enactment):

   Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding, or intended to be raised in that proceeding, is guilty of a crime which is called perjury. (emphasis added)

7. Later parts of s 124 include provision that it 'is immaterial whether the false testimony is given orally or in writing', indicating that the offence of perjury can be committed by swearing an affidavit which is used in a judicial proceeding. Section 125 of the Criminal Code provides for a person who commits perjury to be liable to a maximum penalty of 14 years imprisonment.[52]

   [52] A special maximum penalty of life imprisonment is provided for where the crime is committed in order to procure the conviction of another person for a crime punishable with imprisonment for life.

8. Other provisions of the Criminal Code also create offences by reference to whether a statement or information is false in a material particular.[53] 

The State's construction

[53] These include s 85 (where a public officer corruptly gives a certificate or information or furnishes a return 'which is false in a material particular'); s 106 (where a person makes a statement 'that is false in a material particular' in relation to an election); s 133A (where a person knowingly signs a prosecution notice 'which, in any material particular, is to his knowledge false'); s 142 (where a person publishes an advertisement under the authority of a court or tribunal 'knowing the advertisement to be false in any material particular'); and s 419 - s 422, s 424 (relating to corporate records which are false in a material particular).

1. The State contends that the phrase 'false in a material particular' focuses attention on the quality of the falsity when compared with the underlying truth or reality of the situation or, in a case such as the present alleging irreconcilable conflict, the quality of the difference between the two or more impugned statements.  The State contends that the requirement that a false statement be 'material' in this sense is to protect an accused against criminal liability for a minor inaccuracy or omission.[54]

   [54] Respondent's submissions, pars 2, 23 (White AB 28, 33).

2. The State's argument is primarily based upon the differences between the offence of perjury provided for in s 124 and the offence created by s 169(1) of the Criminal Code. The State notes that s 124 is confined to statements made in or for the purposes of judicial proceedings, while s 169 does not refer to the purpose for which the statement must be made.[55] Section 124 draws a direct link with the false testimony on oath and a 'matter which is material to any question then depending', which is very different language to that employed in s 169.[56] The State says that an offence against s 124 would also be an offence against s 169(1) but the contrary is not the case. The State says that the offence created by s 169(1) is broader in scope in that:

   1.there is no requirement that it be connected with any judicial proceeding; and

   2.there is no requirement that the false statement be of any significance to a matter relevant to a question to be determined in a judicial proceeding.

   [55] Respondent's submissions, par 15 (White AB 31).

   [56] Respondent's submissions, pars 18 - 20 (White AB 32 - 33).

3. The State says that this explains why the offence created by s 169(1), although wider in scope than the offence created by s 124, is a relatively less serious offence which carries a lesser penalty.[57]  The State argues:[58]

   [T]here is also a policy reason why deliberately false statements on oath ought to be the subject of criminal sanction even if they could not have any possible bearing on the decision to be made.  It is not uncommon for the criminal law to punish more serious outcomes more severely than less serious results even though there may not be any difference in the acts which led to those outcomes. 

   Section 169, properly interpreted in the context of the other provisions which are contained in Part III of the Code, must necessarily be designed to capture conduct that does not amount to perjury. The element of deliberate falsity is the same. However, section 169, in carrying a lesser penalty, is not concerned with where the lie was made or how important the lie was to any question to be decided. If the offence does not capture conduct which falls outside the scope of the offence of perjury (which is the effect given to the provision upon the appellant's construction) then the offence provision would be otiose. This is why, in the respondent's submission, the element that might loosely be described as 'materiality' is dealt with in a significantly different way as between the two provisions.

Merits of the State's construction

[57] Respondent's submissions, par 22 (White AB 33).

[58] Respondent's submissions, pars 24 - 25 (White AB 34).

1. We do not accept the State's submissions summarised under the previous heading.

2. The difference in the maximum penalties for an offence against s 124 and s 169(1) of the Criminal Code is explicable by the fact that s 124 is concerned only with statements made on oath in judicial proceedings while s 169(1) is concerned with statements made on oath for any purpose. The circumstance that a statement is made on oath in a judicial proceeding, so as to have the potential to undermine or impede the due administration of justice, can be regarded as significantly exacerbating the seriousness of the conduct proscribed by s 124 of the Criminal Code. 

3. Contrary to the State's submissions, the offence created by s 169(1) is not rendered otiose if the requirement for materiality in that section relates to the impact of the false statement on the purpose for which the statement is made. There are a variety of circumstances in which information may be given to officers or bodies for investigative purposes which do not involve any 'proceeding' in which 'evidence' may be taken on oath for the purposes of the definition of 'judicial proceeding' in s 120 of the Criminal Code.[59] Affidavits and statutory declarations (to which the similarly expressed s 169(2) applies) may be made for a variety of purposes in circumstances not provided for by legislation. Section 169(1) will operate in those circumstances where s 124 will not because they do not involve a 'judicial proceeding'.

   [59] See, for example, s 12(5)(c)(iv) of the Architects Act 2004 (WA), which empowers an investigator appointed by the Architects Board of Western Australia to require answers or information to be given on oath; s 34(2)(b) of the Auditor General Act 2006 (WA), which empowers the Auditor General to direct that information, explanation or answers to questions be verified or given on oath; s 13(6) of the Criminal Investigation Act 2006 (WA) , which generally requires applications for warrants to be made on oath.

4. The difference in language used in s 124 and s 169 in relation to materiality is explicable by the narrower operation of s 124 of the Criminal Code. Section 124 is concerned with statements made in or for the purpose of instituting a judicial proceeding. Section 169 is concerned with statements that may be made for a wide variety of purposes. Given that narrower scope of s 124, the reference to materiality in relation to questions depending, or intended to be raised, in the judicial proceeding is logical. The specification of a relation to a specific purpose would be difficult in the context of a provision such as s 169 where the relevant statement might be made for any purpose.

5. The State's construction of the phrase 'false in a material particular' in s 169(1) (which must have a cognate meaning in s 169(2) and s 170(1)) would produce curious results which Parliament could not have objectively intended. The following hypothetical examples relating to statements about the age of a person illustrate this point:

   1.Section 321 of the Criminal Code creates an offence of sexual penetration of a child of or over the age of 13 years and under the age of 16 years. On the State's construction, a parent of a child complainant who gave investigating police officers an affidavit containing the knowingly false statement that their child, who had recently turned 13 at the date of offence, was actually just under 16 years old at that time would commit an offence against s 169(1) of the Criminal Code.  This would be on the basis of the significant difference between the child's actual and stated age, despite the falsity having no effect on the potential prosecution of that offence.  However, the parent of a child who was alleged to have been sexually penetrated on 14 March 2024 who gave investigating police officers an affidavit stating that the child's 16^th birthday was 13 March 2024, knowing that it was actually 15 March 2024, may not commit an offence due to the small difference between the knowingly false statement and the true position.

   2.Under s 190 of the Children and Community Services Act 2004 (WA), it is an offence to employ a child under 15 years of age in a business carried on for profit. An inspector investigating such an offence may direct a person to give information verified by statutory declaration under s 241E of that Act. On the State's construction, a person knowingly making a false statement in a statutory declaration that a child employed in a business on a particular day was 12 years old when they were actually 14 years old would commit an offence against s 169(2) on the basis of the significant difference between the child's actual and stated age. However, a person who knowingly made a false statement that the child was 14 years and 51 weeks old on that day, when the day was actually the day after the child's 15^th birthday, may not offend against s 169(2) because of the small difference between the statement and the true position.

   3.Section 44(1)(c) of the Electoral Act 1907 (WA) requires a claim for enrolment as an elector to include the claimant's date of birth. Under s 17(1)(b) of that Act, only persons who have attained the age of 18 years are entitled to be enrolled. On the State's construction, a 19-year-old who falsely claimed to be 21 years old would contravene s 170(1), while a claimant who lied about being 18 a few days short of their 18^th birthday may not.

6. On the State's construction, in the above examples an offence is more likely to be committed by the person who makes a knowingly false statement of no practical consequence than the person whose knowing false statement is of critical importance to the purpose for which the statement is proffered.

7. Further, the State's construction departs from the approach commonly taken to construing statutory references to a statement which is false in a material particular.  The cases referred to below construe the term in significantly different statutory contexts and must be approached with caution for that reason.  However, the common theme running through them is that materiality is to be assessed by reference to the purpose for which the relevant statement is made.

8. In Murphy v Griffiths,[60] s 236 of the Road Traffic Act 1960 (UK) created an offence where a person issued a test certificate for a vehicle which was, to the person's knowledge, 'false in a material particular'.  This was in a context where driving a vehicle on a road without a current test certificate was an offence.  A certificate with the date of issue backdated was held to be false in a material particular because the date of issue determined the date of expiry of the certificate.[61]

   [60] Murphy v Griffiths [1967] 1 WLR 333.

   [61] Murphy (336).

9. In Minister for Immigration v Dela Cruz,[62] s 20 of the Migration Act 1958 (Cth) referred to statements in an arriving passenger card, or to an officer granting a visa, that were 'false or misleading in a material particular'. The Full Federal Court held that, in the context of s 20, a statement will be false in a material particular if it was relevant to the purpose for which it was made. The court held that a statement would be relevant for that purpose if it may be taken into account in making a decision under the Act as to the grant of the visa or entry permit in respect of which the statement was made.[63]

   [62] Minister for Immigration v Dela Cruz (1992) 34 FLR 348.

   [63] Dela Cruz (371).

10. In R v Maslen,[64] s 178BB of the Crimes Act 1900 (NSW) created an offence of making a statement with intent to obtain financial advantage knowing that statement to be 'false or misleading in a material particular'. Hunt CJ at CL (Sully and Smart JJ agreeing) held that the false statement would be material if it was objectively capable of inducing the provision of relevant financial advantage.[65]

    [64] R v Maslen (1995) 79 A Crim R 199.

    [65] Maslen (203).

1. In Gill v Chief Executive Officer of Customs,[66] s 234 of the Customs Act 1901 (Cth) created an offence of knowingly or recklessly making a statement to a customs officer that was 'false or misleading in a material particular'. It was held that a false statement would be material for these purposes if it was material to the assessment of customs duty.[67]

   [66] Gill v Chief Executive Officer of Customs [2001] NSWCCA 470; (2001) 166 FLR 125.

   [67] Gill [74] - [80], applying Hansen v Comptroller-General of Customs (1996) 130 FLR 72 at 83 - 84.

2. In Commissioner of State Taxation v EDI Rail (Maryborough) Pty Ltd,[68] s 75JD(4) of the Stamp Act 1921 (WA) provided for penalties where information given to the Commissioner in an application for exemption from stamp duty was 'false in a material particular or any material information is not given to the Commissioner'. McLure P (Owen and Newnes JJA agreeing) held that information must be both relevant and significant, in the sense that it is capable of influencing the outcome of the exercise of the Commissioner's relevant power, to be material.[69]

   [68] Commissioner of State Taxation v EDI Rail (Maryborough) Pty Ltd [2010] WASCA 17; (2010) 41 WAR 197.

   [69] EDI Rail [70] - [71].

3. In Burke v Corruption and Crime Commission,[70] s 168 of the Corruption and Crime Commission Act 2003 (WA) created an offence of giving evidence to the Commission which the person knew was false or misleading in a material particular. Buss JA (Martin CJ and Mazza JA agreeing) held that the question of materiality was determined by reference to whether the evidence was material to the Commission's investigation.[71]

   [70] Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150.

   [71] Burke [126].

4. The general approach reflected in the above cases is to assess the materiality of a false statement by reference to the purpose for which the statement is made and the capacity of the false statement to affect that purpose. In our view, consistently with the above authorities and bearing in mind the very broad range of circumstances in which statements may be verified by oath, affirmation or statutory declaration, materiality for the purposes of s 169 of the Criminal Code is to be assessed by reference to the purpose for which the statement is made. For the purposes of s 169, a statement will be false in a material particular if it is reasonably capable of affecting the outcome relevant to the purpose for which the statement is made. Where the false statement is made for the purposes of a judicial or administrative process, the question will be whether the false statement is reasonably capable of affecting the outcome of that process. In contrast to the position in relation to the offence of perjury, the materiality to which s 169 of the Criminal Code refers is to the falsity of the statement rather than the matter to which the false statement relates.[72] However, as with the offence of perjury, questions of materiality in s 169 are concerned with the capacity of the false statement to have the relevant effect rather than whether the statement actually had that effect. Questions of materiality, including the purpose for which the statement is made, must be answered at the time the false statement is verified by oath or affirmation, as this is the point in time at which the commission of the offence is complete.

   [72] Compare Mellifont v Attorney-General (Qld) (1991) 173 CLR 289, 308 - 309.

5. For the above reasons, we do not accept the State's submission as to the proper construction of the reference in s 169 of the Criminal Code to a statement being false in a material particular.  The issue is not whether the difference between the statement and the true position is small or 'minor', but whether the false statement is reasonably capable of affecting the outcome relevant to the purpose for which the statement is made.

Determining questions of materiality

1. The State's submissions raise a further question of construction of s 169 of the Criminal Code if its primary construction of that provision is rejected.  In that event, the State contends that the question of materiality is a question of law for the trial judge rather than a question of fact for the jury.  The appellant accepts that the question of materiality is a question of law.[73]

   [73] Appeal ts 64 - 65.

2. For the following reasons, we generally accept the State's submission subject to a qualification.  The qualification is that the identification of the purpose for which a statement is made may be a question of fact for determination of the jury.  As noted above, the purpose for which the statement is made is to be determined at the time when the statement is verified by oath or affirmation, which is the point in time at which the commission of the offence is complete.  However, the question of whether the statement is reasonably capable of affecting the outcome relevant to an identified purpose for which the statement is made is a question of law for the determination of the trial judge rather than a question of fact for the jury.

3. In the context of the offence of perjury created by s 124 of the Criminal Code, questions of materiality are, at least generally, questions of law for the determination of the trial judge rather than questions of fact for the jury.[74] The same principle should be applied to questions of materiality under s 169 of the Criminal Code.

   [74] Christianos v The Queen (unreported, Court of Criminal Appeal of Western Australia; 17 December 1991; Library no 9217) per Malcolm CJ (Pidgeon & Murray JJ agreeing) at pages 14 - 16; R v Davies (1974) 7 SASR 375, 387 ‑ 399 (Wells J); R v Traino (1987) 45 SASR 473, 478 (King CJ), 479 ‑ 481 (Jacobs J); Mellifont (309).

4. As explained above, materiality is not concerned with the identification of any effect which the false statement actually had, which would involve questions of fact.  Rather, materiality is concerned with the effect which the false statement was reasonably capable of having.  Determination of that question will ordinarily require a proper understanding of the legal framework for the decision-making which the false statement has the purpose of affecting.  Where the false statement is made for the purpose of use in court or tribunal proceedings, a proper understanding of the relevant legal principles which govern the exercise of jurisdiction will be critical to assessment of materiality.  Where the false statement is made for the purpose of an administrative decision by a public officer, materiality will depend on the statutory provisions which confer the relevant decision-making authority.

5. As the present case illustrates, it would be unrealistic to expect that a jury could identify and properly apply the legal principles which will determine the materiality of the false statement.  For example, the 2008 affidavit was, in its terms, sworn in opposition to PSA's application for a stay of judgment pending appeal.  Ascertaining whether the statement in par 22 of the 2008 affidavit was false in a material particular requires a proper appreciation of the legal principles governing the grant of a stay of judgment pending determination of an appeal.  It also requires a determination of whether the statement in par 22 of the 2008 affidavit was reasonably capable of affecting the outcome of the stay application having regard to those legal principles and the relevant factual context.  These are questions of law rather than questions of fact.  They are not issues that a jury could be expected to properly resolve even if they were given general directions as to the applicable legal principles.

6. The analysis of the relevant principles by Wells J in Davies, discussing the law of perjury, are apposite in the present context.  As his Honour noted:[75]

   Questions of relevance of evidence have for centuries been the sole responsibility of the judge.  Judges are accustomed, ex rerum natura, to dealing with the bearing that evidence has upon the issues to be determined by the tribunal of fact.  Materiality is akin to, though not identical with, relevance.  A fact, in my opinion, is material for the purposes of a charge of perjury when it is of such significance and importance, having regard to the whole of the evidence, that it is capable of affecting the decision of the appropriate tribunal of fact on the factual issue or issues, and materiality should be given a corresponding meaning[.]

   [75] Davies (391).

7. In considering the policy rationale for this rule, Wells J later observed:[76]

   The rule that materiality is for the trial judge is more than ever appropriate in this decade when administrative and semi-administrative tribunals, boards and other authorities are obliged to determine all manner of issues and for that purpose to receive evidence on oath. It would, in 1974, be quite impossible for jurors confidently and sensibly to apply their collective minds to the question as to what would or might affect the findings on fact of these tribunals whose powers, functions and procedures are not generally known, and indeed, are frequently esoteric.

   [76] Davies (394).

8. The increasing legal complexity of court and tribunal proceedings, and the rules governing administrative decision-making, in the 50 years since Wells J made these observations tends to reinforce their veracity. 

9. In our view, conformably with the approach taken in relation to the offence of perjury, the question of whether a statement made for a particular purpose is false in a material particular for the purposes of s 169 of the Criminal Code is, at least generally, a question of law for determination of the trial judge.  We say 'at least generally' to account for the possibility that different considerations may arise where the purpose for which a false statement is made does not involve the application of any legal standard.  That is not the present case, where the appellant's allegedly false statements were made for the purposes of legal proceedings in which legal standards must be applied in determining the question of materiality. 

10. It follows, that, in an ordinary case where there is no issue as to the purpose for which a relevant statement was made, the trial judge should rule on whether the statement, if false, is false in a material particular.  If the allegedly false statement is ruled not to be material, then the judge would find the accused to be not guilty of the charge on the basis that the judge was satisfied that the accused had no case to answer.[77]  If the allegedly false statement was ruled to be material, then the judge would direct the jury that, if they find that the statement is false as a matter of fact, then the statement will be false in a material particular.

    [77] Criminal Procedure Act 2004 (WA) s 108.

11. There may also be cases in which a factual issue arises as to the purpose for which an allegedly false statement was made.  In such a case, the jury should generally be directed that whether a statement was made for the purposes alleged by the prosecution is a question of fact for them to determine.  However, if the judge determines the allegedly false statement to be material to that purpose, then he or she will ordinarily direct the jury that, if they find that the statement was made for the alleged purpose and that the statement was false, then as a matter of law the statement will be false in a material particular.

1. In the present case, the purposes for which the 2008 affidavit and the 2010 affidavit were made was apparent on the face of each affidavit.  In determining the direction which ought to have been given, this court is in as good a position as the trial judge to determine the question of law of whether the statements in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit, if false, were false in a material particular.

Materiality of par 22 of the 2008 affidavit

1. There was no issue at trial as to the purpose for which the 2008 affidavit was made.  Paragraph 3 of the 2008 affidavit relevantly stated that it was made in opposition to PSA's application for a stay of the judgment which CAT had obtained in the primary proceedings.  The affidavit was made in the context where CAT had obtained a judgment of over $900,000 against PSA in the primary proceedings, PSA had appealed against that judgment and PSA had applied for a stay on enforcement of the judgment pending determination of the civil appeal.

2. The principles applied on such an application are well established, and were well established at the time the 2008 affidavit was sworn.  They were summarised by Murray and Parker JJ in Eastland Technology Australia Pty Ltd v Whisson:[78]

   ·The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.

   ·It is for the applicant for a stay to move the court to a favourable exercise of its discretion.

   ·It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.

   ·The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.

   ·If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.

   ·If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.

   [78] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].

3. One basis on which an appeal may be rendered nugatory if a stay is not granted is where there is a real prospect that a successful plaintiff will be unable to repay the money without difficulty or delay if the appeal were to succeed.[79]

   [79] See, for example, TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; (1999) 48 NSWLR 381 [15]; Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [24]; City of Wanneroo v Bakota [2023] WASCA 61 [12].

4. As such, the question of whether CAT would have the capacity to repay the judgment sum if the judgment in the primary proceedings were set aside on appeal was a critical issue on the stay application.  The 2008 affidavit addressed this question by the appellant deposing that CAT had assets valued at over $2.8 million and, as deposed in par 22 of the 2008 affidavit, 'no liabilities save quarterly GST liabilities'.  This was relied on by CAT to show, as indicated in par 23 of the 2008 affidavit, that 'there is no reason to stay the judgment on the ground that [CAT] would not be in a financial position to repay the sum should the [civil] appeal be successful'.

5. The statement in par 22 of the 2008 affidavit was reasonably capable of affecting the outcome of PSA's application for a stay of the judgment in the primary proceedings pending determination of the civil appeal. The fact that CAT had no liabilities save quarterly GST liabilities was likely to inform the court's assessment of whether the civil appeal might be rendered nugatory if a stay was not granted on the basis that there was a real prospect that CAT would be unable to repay the judgment sum without difficulty or delay if the civil appeal were to succeed. Convincing the court that there was no realistic prospect that the judgment sum would not be repaid if a stay was not granted and the civil appeal succeeded was the purpose for which the statement in par 22 of the 2008 affidavit was made. If the statement was false, it was plainly false in a material particular for the purposes of s 169 of the Criminal Code.

Materiality of par 22 of the 2010 affidavit

1. On or about 22 June 2010, the 2010 affidavit was filed in the primary proceedings.  The affidavit was made in the context where the appellant and Mr Frigger sought a discharge of freezing orders made against them in the primary proceedings and costs.

Statutory context

1. The making and operation of freezing orders and ancillary orders is, and was in 2010, provided for by O 52A of the Rules of the Supreme Court 1971 (WA). Order 52A has not been materially amended since it was made in 2007.

2. Under O 52A r 2(1), the court may make a freezing order for the purpose of preventing the frustration or inhibition of the court's process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied. Under O 52A r 2(2), a freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.

3. Under O 52A r 5(4), the court may make a freezing order against a judgment debtor or prospective judgment debtor:

   if the Court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur -

   …

   (b)the assets of the judgment debtor, prospective judgment debtor or another person are -

   …

   (ii)disposed of, dealt with or diminished in value.

4. Under O 52A r 5(5), the court may make a freezing order against a person other than a judgment debtor or prospective judgment debtor (a third party):

   if the Court is satisfied, having regard to all the circumstances, that -

   (a)there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because -

   (i)the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or

   (ii)the third party is … in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor;

   or

   (b)a process in the Court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.

5. In Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq),[80] this court summarised the principles applied in the exercise of the court's discretion under O 52A r 5(4) of the Rules of the Supreme Court to the following effect. 

   [80] Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq) [2018] WASCA 174; (2018) 53 WAR 201.

6. Under O 52A r 5(4), the court must be satisfied of three elements:[81]

   1.one or more of the events described in O 52A r 5(4)(a) or r 5(4)(b) might occur;

   2.there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied; and

   3.that danger arises because one or more of the events described in O 52A r 5(4)(a) or r 5(4)(b) might occur.

   [81] Duro Felguera [40].

7. It is not sufficient for the court to conclude that one or more of the events described in O 52A r 5(4)(a) or r 5(4)(b) might occur. The court must be satisfied that the identified danger arises because one or more of those events might occur. That is, the court must be satisfied that there is a causal connection between the event and the danger.[82] 

   [82] Duro Felguera [41].

8. The events referred to in O 52A r 5(4)(a) and r 5(4)(b) must give rise to a 'danger' that a judgment or prospective judgment will be wholly or partly unsatisfied. The reference to a 'danger' is to a risk of that outcome.[83]  The court in Duro Felguera observed:[84]

   The risk or danger must be real or substantial, as opposed to a remote, speculative or theoretical possibility.  The applicant must prove facts from which the court can infer the existence of a real or substantial risk or danger that the respondent will dispose of or otherwise deal with its assets in a way such that the applicant will not be able to satisfy any judgment obtained against the respondent.  The facts from which the risk or danger is to be inferred must be proved on the balance of probabilities.  However, it is not necessary to establish that it is more probable than not that judgment will be unsatisfied unless a freezing order is made.  (citations omitted)

   [83] Duro Felguera [42].

   [84] Duro Felguera [43].

1. Taken as a whole, the evidence at trial established beyond reasonable doubt that, when she swore the affidavit, the appellant had knowledge of the falsity of the statement in par 22 of the 2008 affidavit, if that statement was false.  The evidence at trial, taken as a whole, also established beyond reasonable doubt that, when she swore the affidavit, the appellant had knowledge of the falsity of the statement in par 22 of the 2010 affidavit, if that statement was false. 

Conclusion as to ground 1

1. In the present case, there is no need to resort to the jury's advantage in having seen and heard the evidence given at trial.  Our assessment of the totality of the evidence leaves us with no reasonable doubt in relation to any of the elements of the charged offence.  We are not satisfied that it would be dangerous to permit the verdict of guilty to stand, or that there is a significant possibility that an innocent person has been convicted. 

2. In reaching this conclusion, we have not referred to all of the evidence which the appellant adduced at trial or her submissions in respect of that evidence.  Much of what the appellant put forward at trial was misconceived, irrelevant or a distraction from the essential questions which the jury was required to determine.  There is little to be gained by summarising those parts of the trial record in these reasons, especially where the particulars of the ground are confined to the issue of materiality.  While we have considered the whole of the trial record, in these reasons we have focused on the parts of the trial record of significance to the question of whether each element of the offence has been proved beyond reasonable doubt.

Ground 3: direction as to use of other inconsistencies

1. Ground 3 contends that the trial judge erred in law by failing to direct the jury about the uses to which the evidence of 'other alleged inconsistencies' must not be put.  The 'other alleged inconsistencies' referred to are inconsistencies which the prosecutor alleged existed between parts of each affidavit other than the inconsistency between par 22 of the 2008 affidavit and par 22 of the 2010 affidavit which was the particularised subject matter of the charge.

Prosecutor's opening statement

1. In opening, the prosecutor said that, before coming to the elements of the offence and the director's fees, he wanted to deal with 'other irreconcilable differences' between the 2008 affidavit and the 2010 affidavit.[133]  The prosecutor said:[134]

   And the State will be saying, at the end of this trial, these irreconcilable differences between the two affidavits will demonstrate two things.

   The first thing is that [the appellant] was dishonest.  That's what the State will be saying. That is the State's case.  That she is unreliable is the second.

   The evidence that I'm talking about in my opening is the evidence in [the appellant's] affidavits.  You will see that for yourself during this trial, and other documents that have been collected by the WA Police.  They are in written from and they will be before you in this trial.

   The irreconcilable differences in two affidavits is part of the essential context in which to understand the representations made by [the appellant] about the directors' loans and the director's fees.

   [133] Trial ts 987.

   [134] Trial ts 997.

2. The prosecutor then identified the following inconsistencies between the affidavits:[135]

   1.In the 2008 affidavit, the appellant said that the Edward Street property was still owned by CAT as at 23 September 2008 and was unencumbered, while the 2010 affidavit deposed that ownership of the Edward Street property was transferred to the FSF on 1 July 2007.

   2.In the 2008 affidavit, the appellant said that the Armadale property was still owned by CAT as at 23 September 2008 and was unencumbered, while the 2010 affidavit deposed that ownership of the Armadale property was transferred to the FSF on 1 July 2008.

   3.In the 2008 affidavit, the appellant deposed that CAT had no liabilities as at 23 September 2008, while the 2010 affidavit deposed that CAT's purchase of the Edward Street property and Armadale property was funded by directors' loans which were still outstanding in 2010.

   4.In the 2008 affidavit, the appellant identified CAT's assets on 23 September 2008 as including the Edward Street property, the Armadale property, and a term deposit of $999,999, while the balance sheet annexed to the 2010 affidavit did not list any of these assets.

   [135] Trial ts 997 - 1003.

3. The prosecutor then dealt with the elements of the offence, stating in relation to the element of falsity:[136]

   And to be clear, the material particular in respect of the irreconcilable difference in the 2008 and 2010 affidavit is what is found at those paragraphs, and they both happen to be at paragraph 22 in both of the affidavits. In the 2008 affidavit, [the appellant] says:

   As at 23 September 2008, CAT had no liabilities save for quarterly GST.

   And in the 2010 affidavit, and the loan schedule, she says as at 23 September 2008, CAT had accrued a debt in the form of director's fees which were owed to her.  The State says the statements conflict irreconcilably. The State will be saying one of the statements must be false, because they cannot both be true.

Prosecutor's closing address

[136] Trial ts 1005.

1. The prosecutor's closing address to the jury as to the elements of the offence made it clear that the inconsistency the subject of the charge was between statements made in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit.[137]  The prosecutor then turned to the element of knowledge, accepting that the State needed to prove that the only reasonable inference open on all of the evidence was that, whichever of the statements was false, the appellant knew that it was false at the time she swore the affidavit containing the statement.  The prosecutor said that he would draw attention to three groups of facts in relation to the inference as to the knowledge element:[138]

   1.The appellant's knowledge of CAT.

   2.The appellant's motivation when she made each of the statements.

   3.Other material inconsistencies between the two affidavits, which the State said demonstrated that the appellant was 'dishonest, inaccurate and unreliable'.

   [137] Trial ts 2219 - 2221.

   [138] Trial ts 2221.

2. After identifying the other material inconsistencies relied on for the third of these points consistently with what is set out at [188] above,[139] the prosecutor said:[140]

   The evidence establishes [the appellant] was motivated to make statements in an attempt to put herself and CAT in the most favourable position, conditional on what was required, regardless of whether it was true or not.  In 2008, it was to defeat the stay judgment in order to receive the judgment amount from PSA, Mr Banning, and in 2010, it was to defeat the freezing and ancillary orders.

   The State says the evidence establishes [the appellant] knew one, if not both, statements were false. CAT was her company, [the appellant] was the informed and active director and accountant and the loan was owed to her.  The State says the only reasonable inference, given [the appellant's] role in the business, her occupation as an accountant, and that whichever of the statements was false, [the appellant] knew of the falsity when she made that statement.

Trial judge's direction

[139] Trial ts 2223 - 2225.

[140] Trial ts 2225.

1. The trial judge's direction summarised the submissions referred to at [190] and [191] above as part of his Honour's summary of the State's case.[141]  The trial judge did not give the jury any direction of law as to the uses to which evidence of the other inconsistencies between the 2008 affidavit and the 2010 affidavit could not be put.

Appellant's submissions

[141] Trial ts 2382 - 2383.

1. The appellant's written submissions do not take issue with the 'other irreconcilable differences' being utilised by the jury in drawing an inference as to the appellant's knowledge.  However, the appellant submits that the prosecutor essentially invited the jury to find that the appellant was the type of person who engaged in dishonest conduct, who made false statements in affidavits and who is the type of person who would act in pursuit of an outcome that was favourable to her regardless of the truth.  The appellant submits that, even if this was not the prosecutor's intention, there was a risk that the jury might engage in this type of reasoning without invitation.  It is contended that, as the State did not rely on propensity reasoning and the trial judge did not give a propensity direction, it was incumbent upon the trial judge to direct the jury that they must not engage in that type of reasoning.

2. In oral submissions, counsel for the appellant identified the risk which a direction was required to guard against as the risk that the jury might reason that the appellant must have knowingly made a false statement in par 22 of the 2008 affidavit or par 22 of the 2010 affidavit because she had a tendency to lie or make false statements and was the type of person who would do so.[142]  Counsel identified the direction which ought to have been given in the following terms:[143]

   The jury should have been directed that they must not reason on the basis of the evidence of the other conflicts that the accused was the kind of person who was likely to have committed the charged offence.

Disposition of ground 3

[142] Appeal ts 95 - 96.

[143] Appeal ts 103.

1. Although framed as alleging an error of law, ground 3 must be treated as alleging a miscarriage of justice within the meaning of s 30(3)(c) of the Criminal Appeals Act. The mere failure to give a direction which was not sought at trial to guard against a risk of impermissible use of evidence by the jury does not involve a wrong decision on a question of law for the purposes of s 30(3)(b) of that Act.

2. The following general principles, summarised by this court in KHA v The State of Western Australia,[144] are well established:

   A judge is bound to give a direction to the jury if, in the circumstances of the particular case, the direction is necessary to avoid a perceptible risk of a miscarriage of justice.  This is an incident of the judge's duty to ensure a fair trial for the accused.

   Where evidence is admitted for a limited purpose and there is a perceptible risk that, absent a direction, the jury will use the evidence for an improper purpose, then a direction as to the permissible uses will be required to avoid a miscarriage of justice.  This will ordinarily involve directing the jury, with the authority of the trial judge, as to the ways in which the evidence may be, and more importantly must not be, used.

   This general principle and its application to propensity reasoning was stated in the following terms by Beech JA in LNV v The State of Western Australia [[2019] WASCA 180 [103]]:

   Generally speaking, where evidence is admissible for one purpose but inadmissible for another, the trial judge should direct the jury that they must not use the evidence for the purpose for which it is inadmissible, at least where the use of the evidence for the impermissible or irrelevant purpose would be adverse to the accused. 

   (some citations omitted)

   [144] KHA v The State of Western Australia [2022] WASCA 173; (2022) 305 A Crim R 265 [42] - [45].

3. As the appellant's submissions correctly accept, it was permissible for the jury to have regard to other irreconcilable differences between statements made in the 2008 affidavit and the 2010 affidavit in considering whether the only reasonable inference was that the appellant knew of the falsity of whichever statement in par 22 of the 2008 affidavit or par 22 of the 2010 affidavit was false at the time she swore the relevant affidavit.  In our view, when the addresses of the prosecutor are considered as a whole, they did not invite the jury to engage in any impermissible form of reasoning.  Nor was there any perceptible risk that the jury would reason that the appellant must be guilty or was likely to have committed the charged offence because she was the kind of person who would knowingly make false statements on oath.

4. This was not a case where the discreditable conduct was unconnected with the offending.  The conduct which was the subject of the charge was the swearing of two affidavits containing statements which conflicted irreconcilably so that one of the statements must, to the appellant's knowledge, have been false in a material particular.  The prosecution narrowly particularised its case to allege an irreconcilable conflict between par 22 of the 2008 affidavit and par 22 of the 2010 affidavit. 

5. However, the balance of each affidavit was admissible to provide the context in which the statements in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit were made for the purpose of understanding their true meaning.  The broader inconsistencies were also relevant to the assessment of whether the only reasonable inference available on the evidence as a whole was that the appellant knew of the falsity of whichever of the statements in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit was false when she made the relevant affidavit.  That was the only use of the evidence suggested by the prosecutor and did not involve any impermissible tendency reasoning. 

6. The fact that the appellant had acted dishonestly in swearing at least one of the affidavits, which the prosecutor submitted was evidenced by the other inconsistencies, logically supported the inference that she knew of any falsity made in par 22 of the 2008 affidavit or par 22 of the 2010 affidavit.  That reasoning draws from what the appellant has done in swearing the 2008 affidavit and 2010 affidavit rather than a general tendency of the appellant to make false statements in affidavits.  It draws from the dishonesty established in the swearing of the affidavits which were the subject of the charge.

7. In our view, there was no perceptible risk in the context of this trial that the jury would reason that, because of irreconcilable differences which were not the subject of the prosecution particulars, the appellant was a generally dishonest person who had a tendency to knowingly make false statements in affidavits and who must therefore be guilty of the charged offence.  In the circumstances of this case, no direction was required to guard against impermissible uses of the evidence and avoid a miscarriage of justice.  Ground 3 is not established.

Application of proviso

1. We have determined that ground 2 is established to the extent that the trial judge made a wrong decision on a question of law in directing the jury on the element of materiality.  We have determined that the trial judge ought to have directed the jury that, if either of the statements which the State alleged to have been made in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit was false, it would have been false in a material particular. 

2. However, we are satisfied that the appeal should be dismissed under s 30(4) of the Criminal Appeals Act on the basis that no substantial miscarriage of justice has occurred.

3. The trial judge's error worked entirely in the appellant's favour. Rather than foreclosing the issue by a direction that any false statement was material as a matter of law, the trial judge's direction left the issue of materiality for the jury to determine. The appellant gained the benefit of the prospect, however remote, that the jury might determine that issue in her favour. The error in the direction did not involve any fundamental defect in the trial which would preclude the application of the proviso in s 30(4) of the Criminal Appeals Act.

4. In a case that does not involve a fundamental defect, the proviso cannot be applied unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict.[145]  For the reasons explained in dealing with ground 1, the evidence at trial in the present case did prove the appellant's guilt of the charged offence beyond reasonable doubt.  We reach that conclusion, which does not depend on giving any weight to the jury's guilty verdict, on our own assessment of the trial record.

   [145] OKS v The State of Western Australia [2019] HCA 10; (2019) 265 CLR 268 [31].

5. In these circumstances, we are satisfied that the appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred.

Appellant's application to reopen appeal and amend appellant's case

1. On 11 November 2024 (the second working day after the hearing of the appeal), the appellant filed a notice of self-representation in the appeal.  On 15 November 2024, the appellant filed an application in an appeal.  The orders sought in that application included that the appellant have leave 'to reopen the appeal on the ground of incompetent and negligent counsel'.  In essence, the appellant deposed to being concerned at the hearing that an unreasonable verdict ground was not being advanced but that she did not insist on such a ground being included because she understood counsel to advise her that the existing grounds of appeal 'were indefensible and accordingly the ground of appeal would be successful'.  The appellant also said that counsel had failed to follow her instructions in relation to certain aspects of the oral submissions advanced at that hearing.

2. It appeared from her affidavit in support of her application to reopen that the appellant was seeking to amend her grounds of appeal.  At that stage, it did not appear to us to be in the interests of justice to give the appellant an additional opportunity to advance oral submissions after judgment had been reserved.  We made the following orders on 15 November 2024:

   1. By 4.00 pm on 29 November 2024, the appellant is to file and serve:

   (a) If the appellant intends to amend her grounds of appeal or written submissions, an application in an appeal seeking leave to amend her appellant's case supported by an affidavit by the appellant annexing a minute of the proposed amended appellant's case in a form which complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules).

   (b) If a minute of proposed amended appellant's case proposes to add a new ground of appeal to which Practice Direction 7.4 would apply, a schedule in the form provided for in that practice direction.

   (c) Written submissions (not exceeding 5 pages in length) in support of the appellant's application for leave to reopen the appeal.

   2. By 4.00 pm on 20 December 2024, the respondent file and serve:

   (a) If the appellant applies to amend her appellant's case, a minute of proposed respondent's answer on which the respondent would rely if leave to amend the appellant's case in accordance with the minute is granted.

   (b) If the appellant files a Practice Direction 7.4 schedule, the respondent's Practice Direction 7.4 schedule.

   (c) Any written submissions (not exceeding 5 pages in length) in opposition to the appellant's application for leave to reopen the appeal.

   3. Unless the Court otherwise orders, the appellant's application in an appeal dated 12 November 2024, any application made pursuant to para 1(a) of these orders and, if leave to amend the appellant's case is granted, any amended ground of appeal are to be determined on the papers.

3. On 29 November 2024, the appellant lodged with the Court of Appeal office an application in an appeal seeking leave to amend her appellant's case and supporting affidavit. The affidavit was sworn by the appellant on 22 November 2024 and attached a minute of proposed amended appellant's case which sufficiently complied with the Rules. The appellant also lodged written submissions in support of her application to amend and to reopen her case. The documents were accepted for filing on 3 December 2024.

1. In our view, it is not in the interests of justice to permit the appellant to reopen her case or amend her appellant's case at this stage of the proceedings.  That is so for a combination of three reasons.

2. First, the appellant made a forensic decision to engage counsel who prepared her appellant's case and advanced submissions on her behalf at the hearing of the appeal.  Counsel made forensic decisions as to the grounds of appeal and the submissions to be advanced orally and in writing.  This involved abandoning grounds of appeal which the appellant had anticipated advancing when she was self-represented in the appeal.  The appellant was bound by counsel's forensic decisions as to these matters and as to what concessions should be made at the hearing.  These were matters within counsel's remit, requiring counsel to apply her professional judgment, having regard to her professional obligations to the court, as to which grounds and submissions had reasonable prospects of succeeding.  In any event, it appears from the appellant's affidavit sworn on 12 November 2024 that the appellant acceded to the grounds of appeal formulated because she believed that the grounds being advanced 'were indefensible and accordingly the appeal would be successful'.

3. The hearing of the appeal is ordinarily the final opportunity of an appellant in either a civil or a criminal case to advance their grounds and submissions in support of an appeal.  The hearing is the time and place to present the parties' oral and written argument in support of an appeal.  The parties may not file supplementary written material after the conclusion of oral argument without the leave of the court.[146]  Outside cases where the court grants leave to the parties to file supplementary written submissions to address a new point which arises at the hearing, leave will be granted only in exceptional circumstances.  The hearing is the opportunity which the rules of procedural fairness require be given to a party, and a party has no legal right to continue to put written material before the court after the hearing.[147]

   [146] Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246, 258.

   [147] Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 [29] - [31] (McHugh J, Gummow J agreeing). See also [143] (Heydon J, Kirby, Hayne & Callinan JJ agreeing).

4. The discretion to allow reopening is broader before the court's reserved decision is made and reasons are published than after reasons are published.  However, the public interest in the efficient administration of justice and the finality of litigation counts against granting leave to file further material without good reason.  A hearing of an appeal is not to be taken as an opportunity to test how the court receives certain grounds of appeal and submissions with a view to subsequently reformulating a case which the litigant perceives has not been well received.  Yet that appears to have been how the appellant has approached the hearing in the present case.  That is a significant factor counting against the grant of leave to either reopen the appeal for further oral submissions or amend the appellant's case.

5. Secondly, there is no proper foundation for the appellant's submission that the appeal was incompetently argued by counsel.  Counsel made a sound professional judgment about the grounds and submissions which were advanced and properly discharged her professional responsibilities.

6. Thirdly, there is no merit to the additional grounds and submissions which the appellant seeks to advance. 

7. The appellant seeks to add a new ground contending that the charge was defective for duplicity because it alleges multiple possible offences within a single charge without specifying which statement is false. She contends that sch 1 cl 6(12)(b) of the Criminal Procedure Act only applies in the present context where two or more conflicting things are said in a single statement.  That submission cannot be accepted.  Unless the contrary intention appears in the legislation, words in the singular include the plural.[148] There is nothing in the context of sch 1 cl 6(12)(b) of the Criminal Procedure Act, which could have little practical purpose on the appellant's construction, to suggest a contrary intention. The matters sought to be raised by the appellant do not provide any proper basis for this court to depart from the view expressed in the previous conviction appeal reasons noted at [161] above, that it was open to the State to run the case in the manner in which it did without having to prove which of the statements was false.

   [148] Interpretation Act 1984 (WA) s 10(c).

8. The appellant also seeks to amend the unreasonable verdict ground so that it is not confined to alleging an unreasonable verdict in relation to the question of materiality.  We have dealt with why the evidence at trial proved the other elements of the charged offence in dealing with ground 1.  For the reasons explained in dealing with ground 1, there is no merit to any of the appellant's proposed new particulars and submissions.  The proposed additional submissions also refer to additional evidence in relation to the swearing of an affidavit by Mr Frigger before Mr Thomas, which stands outside the scope of the proposed amended ground of appeal.

9. We also note that the appellant's proposed amended grounds of appeal do not include existing ground 2, which is the appellant's only meritorious ground of appeal.

10. The lack of merit in the proposed amended grounds of appeal and submissions means that there would be no utility in granting leave to reopen the appeal and amend the appellant's case.

11. For the above reasons, the appellant's applications in an appeal filed on 15 November 2024 and 3 December 2024 should be dismissed.

12. We note that, on 22 December 2024, the appellant lodged with the Court of Appeal office two documents, titled 'Angela Frigger's Responsive Submissions to Opposing Leave to Reopen and Amend' and 'Angela Frigger's Responsive Submissions to Respondent's Amended Answer'.  The programming orders did not provide for the filing of responsive submissions, and the additional submissions sought to be advanced in these documents are not purely responsive.  In the circumstances, it is not in the interests of justice to grant leave to the appellant to file these further submissions.

Bail application at the hearing of the appeal

1. At the conclusion of the hearing of the appeal, the court dismissed a further bail application made by the appellant on 5 November 2024 (second bail application).  We said that we would publish our reasons for making that decision later.  These are our reasons for making that order.

2. Our reasons for dismissing the second bail application are essentially the same as those given in dismissing the first bail application, with which these reasons should be read.[149]  After hearing argument on the amended grounds, we were not satisfied that the appellant's prospects of success in the appeal were sufficiently likely to give rise to a real concern that the appellant would suffer injustice by being kept in custody on an unsound conviction.  Nor were we satisfied that there were otherwise exceptional reasons why the appellant should not be kept in custody pending determination of the appeal.  In any event, we were not satisfied that it would be proper to grant bail, having regard to the provisions of sch 1 pt C cl 1 and sch 1 pt C cl 3 of the Bail Act.  Given the appellant's actions in absconding on a flight to Singapore on 5 June 2024, we regarded the risk that the appellant would fail to appear in court in accordance with her bail undertaking to be sufficient in the circumstances of this case to justify the refusal of bail.  Our concerns about that risk were not alleviated by an affidavit sworn by the appellant on 4 November 2024, relied on by the appellant in support of her second bail application.

   [149] Frigger v The State of Western Australia [2024] WASCA 100.

Further bail application on 2 December 2024

1. On 2 December 2024, the appellant filed a further application in an appeal seeking bail pending the determination of the appeal (third bail application).  In her affidavit in support of the third bail application, the appellant relied on her proposed new ground of appeal as constituting exceptional reasons why bail should be granted.  The appellant also relied on the fact that she was granted bail in relation to the breach of bail charge pending in the District Court.  The appellant asserts that the Chief Judge 'considered I am no longer a flight risk and granted me bail'.[150]

   [150] Affidavit of the appellant sworn 22 November 2024 and filed on 2 December 2024 in support of the third bail application, par 3.

2. On 3 December 2024, we dealt with the third bail application on the papers and ordered that the application in an appeal filed on 2 December 2024 be dismissed. 

3. We dealt with the application on the papers without an oral hearing because it appeared to us that the application was a reiteration of the two earlier bail applications and there had been no material change in circumstances. 

4. For reasons explained at [216] above, the proposed new appeal ground is without merit and the strength of that ground did not constitute an exceptional reason why bail should be granted pending determination of this appeal.

5. The fact that the appellant has been granted bail in relation to the breach of bail charge is not a new circumstance.  That decision was made by the trial judge on 20 August 2024,[151] which was the day prior to the day on which this court heard the appellant's first bail application.  The appellant told the trial judge that she expected to be granted bail by this court.[152]  After noting that she was remanded in custody for sentencing for the present offence, the trial judge indicated that he proposed to grant the appellant bail on the breach of bail charge 'in terms of simplicity'.[153]  This court was advised of the grant of bail by the trial judge on the breach of bail charge at the hearing of the first bail application on 21 August 2024.[154]  The grant of bail by the Chief Judge on 4 November 2024 was made on approval of the appellant's daughter as surety on that date.  The grant of bail in relation to the breach of bail charge was not a material change in circumstances.  Given the reasons for granting bail in respect of the breach of bail charge expressed by the trial judge, who refused bail pending sentence for the present offence, his Honour's decision to grant bail did not reflect an assessment that the appellant should be granted bail for the present offence.

   [151] Trial ts 2449.

   [152] Trial ts 2448.

   [153] Trial ts 2449.

   [154] Appeal ts 30.

6. For the above reasons, we were not satisfied that 'new facts have been discovered, new circumstances have arisen or the circumstances have changed' since this court's jurisdiction to grant bail was last invoked.  In the absence of any suggestion that the appellant failed to adequately present her case for bail on the previous occasions, she had no right to further invoke this court's jurisdiction to grant bail.[155]  Further, we remained of the view that there were no exceptional reasons why the appellant should not be kept in custody pending determination of the appeal and, in any event, we were not satisfied that it would be proper to grant bail, having regard to the provisions of sch 1 pt C cl 1 and sch 1 pt C cl 3 of the Bail Act.

   [155] See Bail Act 1982 (WA) sch 1 pt B cl 2 and sch 1 pt B cl 4.

Orders

1. As ground 2 is established in part, leave to appeal should be granted on that ground.  Ground 1, so far as it relates to the element of materiality, is sufficiently arguable to justify the grant of leave to appeal on that ground.  We are not satisfied that ground 3 has any reasonable prospects of success, and so would refuse leave to appeal on that ground.  Notwithstanding the partial success of ground 2, the appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred.

2. For the above reasons, the following orders should be made:

   1.The appellant's applications in an appeal filed on 15 November 2024 and 3 December 2024 are dismissed.

   2.Leave to appeal is granted on grounds 1 and 2 of the grounds of appeal, as amended pursuant to the orders made by the court on 7 November 2024.

   3.Leave to appeal is refused on ground 3 of the grounds of appeal, as amended pursuant to the orders made by the court on 7 November 2024.

   4.The appeal is dismissed.

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

KP

Associate to the Hon Justice Mitchell

14 JANUARY 2025