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

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   FRIGGER -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2022] WASCA 72
CORAM:   MAZZA JA
BEECH JA
DERRICK J

HEARD:   17 JUNE 2022
DELIVERED          :   24 JUNE 2022
FILE NO/S:   CACR 170 of 2021
BETWEEN:   ANGELA CECILIA THERESA FRIGGER
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

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

Catchwords:

Criminal law - Appeal against conviction - One offence of making a false statement on oath by swearing two affidavits that said two things which were irreconcilable in stipulated respects - Where prosecution characterised charge as irreconcilability of statements, such that prosecution did not have to prove which statement was false - Where appellant gave elaborate evidence in her own defence - Where trial judge made little reference to that evidence in summing up the defence case - Whether judge failed to adequately address defence case in summing up - Whether judge's direction as to elements of offence was erroneous by characterising knowledge element as knowledge of irreconcilability - Whether to order retrial or to enter judgment of acquittal

Legislation:

Criminal Appeals Act 2004 (WA), s 30(5)
Criminal Code (WA), s 169

Result:

Appeal upheld
Judgment of conviction set aside
Retrial ordered

Category: B

Representation:

Counsel:

Appellant	:	G M Cridland
Respondent	:	B M Murray

Solicitors:

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

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

Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
Domican v The Queen (1992) 173 CLR 555
Galipo v The State of Western Australia [2019] WASCA 188
King v The Queen (1986) 161 CLR 423
McKell v The Queen [2019] HCA 5; (2019) 264 CLR 307
OKS v The State of Western Australia [2018] WASCA 48; (2018) 52 WAR 482
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527
Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365

JUDGMENT OF THE COURT:

Introduction

The appellant appeals against her conviction, following a trial by a judge and jury, of one count of making a false statement on oath, contrary to s 169(1) of the Criminal Code (WA). She advances two grounds of appeal. Ground 1 contends that the trial judge failed to adequately sum up the defence case. Ground 2 contends that the judge's direction as to a critical element - the appellant's knowledge of the falsity of her affidavit - was deficient.
The respondent concedes that the appeal should be upheld and that the appellant's conviction should be set aside.
For the reasons that follow, in our view, that concession is rightly made. Both grounds of appeal are established.
The parties are at issue as to whether an order for retrial should be made. The appellant contends that a judgment of acquittal should be entered. The respondent submits that it is appropriate to order a retrial.
For the reasons that follow, we would order a retrial.

The charge

The appellant was charged that, between 22 September 2008 and 23 June 2010, when under oath, she knowingly made a statement that was false in a material particular, in that in two affidavits, one of which was sworn on 23 September 2008 and the other on 22 June 2010, she said two things that conflicted irreconcilably, namely, (1) that, as at 23 September 2008, the company Computer Accounting and Tax Pty Ltd (CAT) had no liabilities save quarterly GST, and (2) that, as at 23 September 2008, CAT had accrued debts to her and another.
The prosecution adopted that form of charge in reliance on cl 6(12) of sch 1 of the Criminal Procedure Act 2004 (WA), 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.
There was no issue at trial or on appeal as to whether cl 6(12) authorised the charge in the form it was laid.
As can be seen, the charge concerns two affidavits sworn by the appellant, one on 23 September 2008 (the 2008 affidavit) and one on 22 June 2010 (the 2010 affidavit). It is convenient to set out the material aspects of those affidavits in the broader context in which the appellant swore those affidavits.

Background and the two affidavits

The following facts were established by the evidence adduced by the prosecution, and were not controversial.
CAT, a company controlled by the appellant and her husband,[1] sued another company, Professional Services of Australia Pty Ltd (PSA) in relation to CAT's purchase of a property from PSA (the Armadale property).[2]
[1] Exhibits 1.1 and 1.2.
[2] Exhibit 1.3.
Judgment was entered for CAT against PSA for a sum of just under $1 million.[3]
[3] Exhibit 1.4.
PSA appealed against the judgment to this court.[4] PSA applied for a stay pending the hearing of the appeal.[5]
[4] Exhibit 1.4.
[5] Exhibit 1.5.
In opposition to PSA's stay application, the appellant swore the 2008 affidavit, which stated, so far as is material, that CAT had no liabilities except for GST.[6] This was relevant to the stay application as it went to the financial capacity of CAT to repay the judgment sum in the event that the appeal by PSA was successful.
[6] Exhibit 1.6 [22].
On 23 October 2009, PSA's appeal was partially successful in that this court reduced the judgment sum to an amount of about $675,000.[7]
[7] Exhibit 1.7.
Also on 23 October 2009, the Friggers registered a charge, allegedly created on 10 September 2009, over property of CAT described as 'all of the proceeds from legal proceedings Supreme Court and Magistrates Court' to secure the payment of loans allegedly made by the Friggers to CAT in the sum of $2 million.[8]
[8] Exhibit 1.9.
On 3 December 2009, PSA brought an application for freezing orders to prevent the Friggers taking steps to enforce payment to themselves of moneys from CAT said to be due under the deed of charge and for various other orders.[9]
[9] Exhibit 1.8.
On 7 December 2009, this court ordered that CAT pay - in substance by way of repayment - the amount overpaid by PSA of approximately $850,000.[10]
[10] Exhibit 1.7.
On 22 June 2010, the appellant filed the 2010 affidavit in opposition to PSA's application for freezing orders. The 2010 affidavit included, relevantly, the following:[11]
[11] Exhibit 1.10.
5.More particularly, this affidavit is to explain the following transactions by the plaintiff.
a.The purchase and transfer of the property at 140 Edward Street, Perth ('Edward Street Property').
b.The purchase and transfer of the property at 269 South West Highway, Armadale ('Armadale Property').
c.Repayment of the loans in relation to the above purchases.
d.The payments made by the plaintiff:
(i)of $999,999 in January 2009 to the Frigger Superannuation Fund ('FSF');
(ii)payment in June 2009 of $1,165,661.54 to my husband (as trustee of the FSF).
THE EDWARD STREET PROPERTY
6.In 2001 my husband and I agreed that CAT should purchase the Edward Street Property as an investment property. The purpose of the purchase was to acquire the Edward Street Property so it could ultimately be transferred into the FSF. In 2001 superannuation funds could not borrow funds to purchase assets and, accordingly, this structure allowed us to purchase an asset which could then ultimately be transferred into the FSF.
7.The purchase price of the Edward Street Property was $435,000 with $17,450 stamp duty also required to be paid. That is, the total purchase consideration and duty was $452,450.
8.My husband and I borrowed the $452,450 from our bank and, to secure that loan, pledged our properties at 29 Gairloch Street Applecross and 3/61 Cale Street, Como. We then on lent that money to CAT and CAT used the funds to purchase the Edward Street Property.
9.The terms of the loan for the purchase of the Edward Street Property was that CAT would be liable to pay interest on the loan made by my husband and I but the interest would not be paid but would accrue and be added to the loan made.
10.In the fullness of time, once an appropriate opportunity arose, the loan would be repaid by the transfer of Edward Street Property into the FSF. We fixed the interest rate to be paid by CAT at 8.5% on the basis this was a reasonable rate for a commercial loan - I depose that my recollection is that our bank was charging us about 7.3% to 7.7% (or thereabouts) on the funds we borrowed from the bank. This rate has not been challenged by the ATO.
11.Between 2001 and 2008, my husband and I repaid to the bank the loan which had been on‑lent to CAT to purchase the Edward Street Property. My husband and I repaid the loan to the bank from our own income and funds.
12.Over the same period, the debt due from CAT to my husband and I increased by the amount of the interest that accrued on our loan to CAT.
13.In about 2007 my husband and I decided we should prepare our financial affairs to enable us to transition to retirement on reaching age 55. This included, as had been planned in 2001, that the Edward Street Property would now be transferred to the FSF. Accordingly, on 1 July 2007 ownership of the Edward Street Property was transferred to FSF.
…
THE ARMADALE PROPERTY
18.Following the same investment strategy in relation to the Edward Street Property, in 2003 CAT purchased another commercial property, again financed by an extension to the loan referred to in para 8. Again we on lent the funds to CAT. This property is the Armadale Property. The property cost $665,000 and stamp duty of $36,875 was also payable on this property, the total of these amounts was borrowed and on lent to CAT to allow it to purchase the Armadale Property.
19.This property was also transferred to the FSF on 1 July 2008 at sworn valuation of $523,000 obtained in these proceedings from licensed valuer Jeff Spencer dated 1 March 2007.
REPAYMENTS
20.On 1 September 2003 the directors resolved to use any judgment sum awarded to CAT in these proceedings to repay the loan (ie the loans with which CAT purchased the Edward Street Property and the Armadale Property). Attached and marked 'AF‑5' is a true copy of my affidavit dated 7 July 2005 which evidences this resolution by CAT.
21.I reiterate CAT did not make any repayments of principal or interest to us during the period December 2001 to June 2008. However, we used our own personal funds and income to repay the loan we borrowed from bank.
22.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
…
31.On 1 April 2009 the directors of CAT held a meeting and made resolutions confirming the taxation strategy referred to above and granted to my husband and I as the beneficiaries of the FSF the right to register a charge to secure the balance of the loan to CAT which remained outstanding. As at 1 April 2009, the outstanding loan amount was $1,669,896.47. I depose that of this amount over $200,000 was for the payment of legal fees incurred by CAT which my husband and I had lent to CAT to pay those fees. Attached and marked 'AF‑8' is copy of the minutes.
32.On or about 9 June 2009 the defendants paid $1,165,661.54 to CAT in part payment of the judgment sum (the entire judgment sum was never paid because of disputes in relation to interest and the amount upon which interest is to be calculated). In accordance with CAT's resolution of 1 April 2009, this amount was transferred in further reduction of the directors' loan account. By this time the loan had increased by unpaid remuneration entitlements due to my husband. The remuneration entitlement having accrued but not have bene 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.

The State case at trial

In opening the State's case, the prosecutor said the following:
(1)The State had to prove that the appellant knowingly made a statement, that the statement was false, and that the statement was false in a material particular.[12]
(2)The offence is that the appellant went under oath and knowingly made a statement that was false in a material particular.[13]
(3)In the 2008 affidavit, the appellant stated that CAT had no liabilities, yet in the 2010 affidavit, particularly in [8], [18] and [22], she said, in effect, that CAT had substantial liabilities to herself and her husband.[14]
(4)The statements made in the 2008 affidavit and in the 2010 affidavit were irreconcilable; given that they were irreconcilable, one had to be false; the State did not have to prove which of the statements was false; and all that the jury had to find was that one of the statements had to be false.[15]
(5)The State alleges that what the appellant did in the two affidavits was to deliberately make statements which suited her purpose at the time 'whether they were true or not at the time'.[16]
[12] ts 357.
[13] ts 358.
[14] ts 359 - 361.
[15] ts 359, 361, 364, 367 - 368.
[16] ts 367.
In closing the State's case, the prosecutor made statements substantially to the same effect. Counsel argued that the two statements were irreconcilable and that therefore both statements could not be true, and that the State did not have to prove which of the statements was false.[17] Counsel identified one of the elements of the charged offence to be that the appellant knowingly made a statement that was false and then stated that it was necessary to deal with the element in two parts, which he identified as (1) whether the appellant knowingly made the relevant statement and (2) whether the statement was false.[18] Counsel argued that the fact that the appellant 'made those statements, at least one of which must be false, knowingly…is clear from what she says in the second paragraph of each affidavit'.[19]
[17] ts (closing addresses) 6, 17, 20 and 26.
[18] ts (closing addresses) 3 - 5.
[19] ts (closing addresses) 26.

The defence case at trial

Defence opening address

In opening, the appellant's counsel said that the defence took no issue with the characterisation of the charge and that the central task for the jury was to compare the effect of what the appellant said in the 2008 affidavit with what she said in the 2010 affidavit.[20]
[20] ts 373 - 374.
The defence case, as explained in opening, was that what the appellant said in the September 2008 affidavit - that CAT had no liabilities - was true and that, properly understood, the 2010 affidavit does not say anything to the contrary.[21] The transactions described in the 2010 affidavit did not give rise to liabilities on the part of CAT. Counsel foreshadowed that the appellant, a qualified accountant, would give evidence explaining why this was so.[22]
[21] ts 375.
[22] ts 375.
Counsel suggested that one of the most important issues, perhaps the crucial issue, would be whether, in light of the appellant's evidence, the jury accepted the allegation in the indictment to the standard of proof beyond reasonable doubt.[23]

Defence closing address

[23] ts 375 - 376.

The central theme of defence counsel's closing address was that, taking into account the appellant's evidence, the jury could not be satisfied beyond reasonable doubt of her guilt.
In the course of closing, counsel for the appellant quoted various parts of the appellant's evidence.[24] The evidence referred to can be summarised as follows:
(1)The appellant gave evidence concerning a minute of directors' meeting dated 1 April 2009, on which the prosecution relied. She did not remember how the balance of the directors' loan to CAT increased from nil as at 23 September 2008 to about $1 million as at 1 April 2009 because she had focused her preparation for the trial on events up to 23 September 2008.[25] Counsel submitted that the appellant's inability to recall details of something more than a decade earlier fell well short of being proof by the prosecution beyond reasonable doubt.
(2)As at 23 September 2008, the appellant and her husband owed CAT $147,000.[26]
(3)While CAT had been ordered to repay $760,000 to PSA by this court, CAT had a costs order in its favour valued at about $750,000. The appellant offered seven times to pay $850,000 into CAT's solicitor's trust account to remain until all of the taxations and the costs had been calculated and a proper amount was calculated as to how much CAT had to repay to PSA.[27]
(4)The appellant denied that she had ever said different things at different times about CAT's financial state as at September 2008.[28]
(5)As at 23 September 2008, CAT did not owe a liability, specifically the purchase price of the Edward Street Property, because that liability had already been repaid by transfer of the Edward Street Property to the Frigger Superannuation Fund on 1 July 2007.[29]
(6)The Edward Street and Armadale properties remained assets of CAT despite the transfer of the properties to the Frigger Superannuation Fund (the transfer of the Armadale property to the Frigger Superannuation Fund occurred on 1 July 2008).[30]
(7)The loans for the purchase prices of the Edward Street and Armadale properties were extinguished by the operation of a Quistclose trust when CAT transferred the properties to the Frigger Superannuation Fund.[31]
[24] ts (closing addresses) 32.
[25] ts 457 - 458.
[26] ts 418.
[27] ts 419 - 420.
[28] ts 464.
[29] ts 435 - 436.
[30] ts 439 - 441.
[31] ts 445 - 446.
Counsel for the appellant also pointed to paragraphs [13] and [19] of the 2010 affidavit, which referred to the Edward Street and Armadale properties being transferred to the Frigger Superannuation Fund, submitting to the jury that the transfers from CAT to the Frigger Superannuation Fund took place before 23 September 2008, with the result that there was no outstanding liability at 23 September 2008.[32]
[32] ts (closing addresses) 40.
In concluding, counsel submitted that the appellant had, in her evidence, taken the jury in detail through the 2010 affidavit, explaining the transactions there referred to and explaining why those transactions did not mean that CAT had any liabilities as at 23 September 2008.[33]
[33] ts (closing addresses) 49.

The judge's summing up

At the outset of his summing up, the trial judge told the jury that the State's case was that the statements in the two affidavits as to CAT's liabilities were irreconcilable and that therefore one of the statements must be false.[34] The judge told the jury that the State's case was that it did not have to prove which of the statements was wrong, just that one of them was wrong.[35] The judge reiterated that characterisation of the State's case more than once in the course of summing up.[36]
[34] ts 505.
[35] ts 505.
[36] ts 518 - 520.
In the course of giving conventional directions as to the burden of proof and inferences, the judge said that the State asked the jury to find that the appellant knowingly made a false statement under oath, with the question of the appellant's state of mind being a matter for inference.[37] The judge said that the State asked the jury to draw an inference that the appellant knowingly made a false statement under oath; the judge emphasised to the jury the word 'knowingly'.[38] In a similar vein, towards the end of the directions, in a passage referred to below, the judge said that the task for the jury was to decide whether one or other of the affidavits was a deliberate untruth.[39]
[37] ts 515.
[38] ts 516 - 517.
[39] ts 525.
The judge gave a conventional Liberato direction,[40] telling the jury that if they believed the appellant's evidence or if the appellant's evidence left the jury in a state of reasonable doubt as to whether it was true, the jury must acquit.[41]
[40] Liberato v The Queen (1985) 159 CLR 507.
[41] ts 517 - 518.
The judge summarised the State case as follows:[42]
(1)the statements in the two affidavits are contradictory, as one asserts that CAT had no liabilities and the other asserts that CAT had accrued debts to the appellant and her husband;
(2)consequently, one of those statements must be false; and
(3) that is all that is needed to find guilt.
[42] ts 518 - 520.
The judge then said as follows, in summarising the defence case:[43]
Now, the defence - and I may as well just sum up their position too, says that it takes no issue with the State's characterisation of the charge in the indictment in the sense that it agrees that you, the jury, will have to compare what she deposed to, what she said in an affidavit under oath in 2008 with what she said in the 2010 affidavit.
The defence also accepts that the civil dispute in the Supreme Court initially, and then on appeal in the Supreme Court Court of Appeal, et cetera, was complicated, protracted and a long-running dispute and the defence is happy to agree that you don't really need to get into too much detail about that. So the defence says put simply, PSA sold to CAT a service station in Armadale, things didn't work out with the service station and so CAT, whose directors were Ms Frigger and her husband, sued PSA.
Initially there was judgment in favour of CAT and PSA was forced to pay money. PSA decided to appeal that decision and didn't want to pay the money until the appeal was determined. Nevertheless, the court ordered that they had to pay the money. Once the appeal was heard, the outcome of the case was that CAT was required to repay some of the original money ordered to be paid to them and on 23 September 2008 Ms Frigger, in the 2008 affidavit, said that CAT had no liabilities save for its ongoing duty to pay GST. And then on 22 June 2010 she swore the 2010 affidavit.
And the defence case is this. When Ms Frigger deposed to the fact in the 2008 affidavit that CAT had no liabilities on 23 September 2008, that was the truth. When she described in the 2010 affidavit transactions in which CAT had been involved, the defence says that this didn't give any rise to liabilities of CAT, in other words, CAT had no liabilities in 2008 and at the time she made the 2010 affidavit the situation had not altered.
That's the defence in this case. The defence says that there's no irreconcilable conflict between CAT's financial position as ascribed in two different affidavits at two different points of time.
[43] ts 520 - 521.

The judge then turned to explaining the elements of the offence, describing the elements as the matters that must be proved before the appellant could be found guilty.[44] The judge told the jury that there were six elements, namely that:[45]
(1)the appellant was the person who did the things constituting the offence;
(2)the appellant swore the two affidavits under oath;
(3)the two affidavits contained statements referred to in the indictment;
(4)the statements were both material statements;
(5)'the material statements in one or other of the two affidavits were irreconcilable with each other so that one or other statement must be false';[46] and
(6)'when [the appellant] swore the affidavits she knew that they contained material statements that conflicted irreconcilably in a material particular'.[47] (emphasis added)
[44] ts 521.
[45] ts 522 - 523
[46] ts 523.
[47] ts 523.
In effect, the judge told the jury that the issues in the case concerned the fifth and sixth elements and that the other elements would not cause the jury any difficulties.[48]
[48] ts 522, 523, 524.
The judge then restated the fifth and sixth elements to the jury in the same terms, again describing the sixth element as 'when [the appellant] swore the affidavits, she knew they contained material statements that conflicted irreconcilably in a material particular'.[49]
[49] ts 524.

The judge then said the following, saying that it was to assist the jury:[50]
To assist you, I'll say this. You have to look very, very carefully at the two affidavits. You need to give the words in the affidavits their ordinary meaning. Please don't try to give them an overly technical meaning, unless you're clear, from the affidavits, that [the appellant] intended the reading of the affidavits to be given a technical, rather than an ordinary, meaning to the words.
If, for example, she was intending the word 'accrued' in the 2010 affidavit was to be given a technical meaning, say, an accounting meaning, does she say that anywhere in the affidavits, 'And I'm using this in its technical sense, not in its ordinary sense'? If you, members of the jury, are satisfied that she meant to - meant the reader to use the word 'accrued' in its technical sense, if indeed it has a technical sense, then that's a matter for you.
If you're satisfied that she was - that she was using the word 'accrued' in its ordinary, general, day to day parlance, then that's, again, a decision for you to make. Now, on a similar point, you heard [the appellant], during her cross‑examination, mention that the debt or liability of CAT to her and her husband, that's the loan to enable CAT to buy the Edward Street property, and I think the Armadale property, was extinguished by the transfer of that property to the superannuation fund, and thus the coming into being of a Quistclose Trust.
Now, I can certainly assure you that there is such a thing called a Quistclose Trust, it's named after a case and I think it's an English case, and I think it involves somebody called Quistclose, that's usually the way that we name things. I'm not going to attempt to explain it to you. It would be inappropriate for me to try to do so, because I've told you that what I say is not evidence, and no evidence has been led, either by the State or the defence, about the concept of a Quistclose Trust.
In any event, are you satisfied, on your scrutiny of the two affidavits, that [the appellant] had intended that a reader of the affidavits would know about and understand a Quistclose Trust? Is there a reference in either affidavit to a Quistclose Trust? That is something that you must consider in your deliberations. Importantly, you don't need to decide, if you find that the statements in the two affidavits are irreconcilable, you don't need to decide which one's true and which one's false. (emphasis added)
[50] ts 524 - 525.
The judge reiterated that the jury did not need to find which of the statements was false, only that the statements conflicted irreconcilably.[51]
[51] ts 525.
The judge then said, again, that the jury must decide whether the appellant knew that the two affidavits contained irreconcilable statements.[52] The judge added that the jury had to look at the statements to decide whether one or other of the statements in the 2008 affidavit and the 2010 affidavit was a deliberate untruth.[53]
[52] ts 525.
[53] ts 525.
The judge posed the question, '[d]id [the appellant] truly believe that a reader of the two affidavits would be able to reconcile the two statements?'[54]
[54] ts 525.
Immediately after the jury retired to consider their verdict, defence counsel sought a redirection from the judge to summarise or refer to salient parts of the appellant's evidence.[55] The judge declined to give any such further direction, observing that it was a short trial and that the jury had heard the appellant's evidence recently.[56]
[55] ts 529 - 530.
[56] ts 530, 533.

Grounds of appeal

The appellant advances two grounds of appeal.
Ground 1 contends that the trial judge failed to adequately or fairly deal with or address the defence case in his summing up, thereby occasioning a miscarriage of justice.
Ground 2 contends that the judge's direction as to the elements of the offence was erroneous and inadequate, particularly concerning the crucial element of knowledge, thereby occasioning a miscarriage of justice.

Appellant's submissions

In support of ground 1, the appellant contends that her evidence was, by its nature, complex and technical, involving the technical and conceptual language of accounting. In the circumstances, in order to ensure a fair trial, it was incumbent on the trial judge to ensure that the jury had a sufficient grasp of the evidence given by the appellant.
The appellant submits that the judge's brief summary of the defence case - set out at [32] above - did not refer to the appellant's evidence. Further, the effect of the judge's observations set out at [36] above was to undermine, if not dismiss entirely, the appellant's evidence, which was at the heart of the defence case.
In support of ground 2, the appellant points to the passages in the judge's summing up set out at [33] and [35] above, submitting that knowledge of irreconcilability cannot be equated with knowledge of falsity. Thus, the judge did not adequately identify for the jury the crucial element of the appellant's knowledge of the falsity of the relevant statement in the affidavit. In effect, the judge directed the jury that they must decide whether the appellant knew that the two affidavits contained irreconcilable statements.

Respondent's submissions

The respondent concedes that both grounds of appeal are established and the appeal should be allowed.
The respondent also accepts that, given the complexity of the appellant's evidence, and its central significance as the basis for her defence, it was incumbent on the judge to refer to important aspects of the appellant's evidence to assist the jury to understand the defence case. The respondent notes that, at the conclusion of the summing up, defence counsel referred to the brevity with which his Honour had dealt with the defence case and requested that the jury be reminded of the appellant's evidence, but the judge declined to do so.
The respondent further accepts that the judge's direction to the jury to consider whether the appellant knew that the two statements were irreconcilable was deficient, in that the crucial question was whether the appellant knew that at least one of the statements referred to in the indictment was false.

Disposition

For the reasons below, which essentially reflect the parties' submissions, we would uphold the appeal on both grounds.
It is well established that the task of a trial judge to ensure a fair trial of the accused requires the judge to ensure that the respective cases for the prosecution and the accused are accurately and fairly put to the jury.[57] When directing the jury in a criminal trial, the trial judge must hold an even balance between the cases of the prosecution and the accused.[58]
[57] Domican v The Queen (1992) 173 CLR 555, 561; McKell v The Queen [2019] HCA 5; (2019) 264 CLR 307 [35]; The State of Western Australia v Pollock [2009] WASCA 96; (2009) 195 A Crim R 527 [5] - [6], [147] ‑ [151]; Galipo v The State of Western Australia [2019] WASCA 188 [45].
[58] McKell v The Queen [35].
The trial judge gave a comprehensive summary of the prosecution case.
Unfortunately, the same could not be said of his Honour's summary of the defence case.
The appellant's evidence was, naturally given the nature of the charge, at the heart of the defence case. The appellant's evidence was far from simple, as demonstrated by the outline in [25] above of defence counsel's references in closing to that evidence. The whole of the judge's summary of the defence case is set out in the passage quoted at [32] above. The first three paragraphs simply outline uncontroversial matters of background. They do not identify the defence case. In effect, the defence case is stated in the final two paragraphs of the quote extracted at [32] above.
That summary made no reference to the elaborate explanation given by the appellant in her evidence. The trial judge was, in order to fairly put the appellant's case to the jury, obliged to explain, by reference to the appellant's evidence, so far as was possible, why the appellant contended that the statement in the 2008 affidavit was true and why she contended that the transactions referred to in the 2010 affidavit did not give rise to any liability on the part of CAT as at 23 September 2008.
The trial judge declined defence counsel's request to summarise or refer to salient parts of the appellant's evidence.
Moreover, in the passage set out at [36] above, the judge made some factual comments, all of which tended to undermine the defence case. First, the judge told the jury that they needed to give the words in the affidavits their ordinary meaning. The judge instructed the jury not to give them 'an overly technical meaning' unless the jury were satisfied that the appellant intended the reading of the affidavits to give a technical, rather than an ordinary, meaning. Secondly, the judge observed, in connection to the appellant's evidence that a payment gave rise to a Quistclose trust, that the jury should ask themselves whether they were satisfied that the appellant intended that a reader of the affidavit would know about, and understand, a Quistclose trust.
The judge's undermining of the defence case by the making of these comments exacerbated the effect of his Honour's failure to make the necessary references to the appellant's evidence.
In our respectful opinion, having regard to:
(1)the brevity of the trial judge's summary of the defence case, in circumstances where the defence case was complex and nuanced; and
(2)the judge's observations as to the facts, all of which tended to undermine the appellant's evidence,
the trial judge failed to adequately and fairly sum up the defence case.
Ground 1 is established.
We turn to ground 2.
The elements of the offence with which the appellant was charged are as follows:
(1)The appellant was the offender.
(2)The appellant made a statement.
(3)The appellant made the statement while under oath.
(4)The statement made by the appellant was false in a material particular.
(5)At the time of making the statement, the appellant knew that the statement was false in a material particular.
As already noted, the State case was that it did not have to prove which of the statements was false. Nor did the State invite the jury to determine which of the statements was false. On the State case, it did not have to prove which of the statements was false because, given that they were irreconcilable, one of them had to be false. In this manner, the State sought to prove the element of falsity by demonstrating the irreconcilability of the two statements. On the State case, because the statements were irreconcilable, there were only two possibilities: either the 2008 affidavit was false or the 2010 affidavit was false.
It was open to the State to run its case in this manner. In doing so, the State was required to establish the elements set out in [62], including, critically, the element of knowledge of falsity, by reference to both of the two alternative scenarios - that the 2008 affidavit was materially false, or the 2010 affidavit was. Knowledge of falsity is approached by hypothesising, in turn, each of the two alternative scenarios and on each scenario evaluating whether knowledge of falsity is proved. So the State was required to satisfy the jury that, without determining which of the statements was false, whichever of the statements was false, the appellant knew of the falsity when she swore the affidavit.
As we explain below, the trial judge's identification of the elements of the charged offence, as set out in [33] above, was materially incorrect. Most significantly, and as will be apparent from our identification in [62] of the elements:
(1)the fifth and sixth elements identified by the judge were not elements of the offence; and
(2)the judge failed to clearly explain the element of knowledge of falsity; namely that, without determining which of the statements was false, whichever of the statements was false, the appellant knew of the falsity when she made the statement.
At some points in his summing up, the trial judge correctly framed the question of knowledge by reference to knowledge of falsity. However, in the course of identifying the elements of the offence, as set out in [33] and [35] above, the trial judge identified the critical element of knowledge as being whether the appellant knew, when she swore the affidavits, that they contained material statements that conflicted irreconcilably in a material particular. With respect, this direction was both erroneous and confusing.
This aspect of the judge's direction was erroneous and confusing in that it directed the jury to deal compendiously with the question of the appellant's knowledge 'when [she] swore the affidavits'. The affidavits having been sworn at different times - indeed, 21 months apart - the question of the appellant's knowledge had to be considered in respect of each affidavit separately, as at the time when the respective affidavit was sworn.
Further, and most significantly, this direction was erroneous because, as already explained, the relevant element of knowledge, reflected in the terms of the indictment, was that the appellant knew that the statement that she swore in an affidavit was false in a material particular. To state the obvious, knowledge of irreconcilability cannot be equated with knowledge of falsity. By way of example, if the appellant had, by the time she swore the 2010 affidavit, recognised that her 2010 affidavit was inconsistent with her 2008 affidavit, but considered the 2010 affidavit to be accurate, guilt in connection with the 2010 affidavit would not be established. Moreover, knowledge of irreconcilability cannot sensibly be applied to the 2008 affidavit; when the first affidavit was sworn there was nothing to reconcile it with.
The trial judge's direction was also erroneous because his Honour introduced to the jury's deliberations an irrelevant consideration when he told them that the question for them was whether the appellant truly believed that a reader of the two affidavits would be able to reconcile the statements.
As the respondent concedes, the judge's correct framing of the question by reference to knowledge of falsity at some parts of the summing up does not overcome the erroneous effect of the identification of the knowledge element at the point at which the judge set out the elements of the offence.

The absence of any request for a redirection by defence counsel does not give rise to an obstacle for ground 2. The judge's misdirection as to the elements of the offence is a wrong decision on a question of law and a miscarriage of justice: see OKS v The State of Western Australia.[59]
[59] OKS v The State of Western Australia [2018] WASCA 48; (2018) 52 WAR 482 [125] ‑ [129], [244] ‑ [255], [259] ‑ [262].
For these reasons, ground 2 is established.
For the above reasons, the appeal must be upheld and the appellant's conviction set aside.
The only issue between the parties concerns the order to be made: should there be an order for a retrial or entry of a judgment of acquittal?

Retrial or judgment of acquittal?

Appellant's submissions

The appellant points to three matters in support of her contention that this court should enter a judgment of acquittal.
First, the appellant submits that the evidence led at the trial was insufficient to support a conviction which, in itself, points powerfully to the entry of a judgment of acquittal.
In support of that contention, the appellant emphasises that the prosecution led no evidence as to CAT's financial position and led no expert evidence as to the meaning of technical terms in the affidavits, such as 'accrued'. The appellant emphasises that the language of the two affidavits is different; the 2008 affidavit says that CAT had no liabilities, whereas the 2010 affidavit refers to what has 'accrued'. The appellant points to the range of meanings of the term 'accrued', as was demonstrated by her evidence at the trial. The appellant submits that, in the absence of expert evidence as to the meanings of the term 'accrued', one cannot necessarily say that the affidavits are inconsistent.[60]
[60] Appeal ts 37 - 39.
For these reasons, the appellant submits, the evidence at trial was incapable of establishing the appellant's guilt to the required standard.
Secondly, the appellant submits that, while the grounds of appeal concern errors in the trial judge's summing up, the prosecution bears responsibility for the errors comprising both grounds of appeal.[61]
[61] Appeal ts 41 - 44.
As to the error the subject of ground 1, following defence counsel's request to the trial judge for a summary of the appellant's evidence, the judge observed that his Honour did not need to hear from the prosecutor regarding that request unless the prosecutor wished to submit that a further summary was necessary. The appellant emphasises that the prosecutor declined that invitation.[62]
[62] Appeal ts 41, citing ts 533.
As to ground 2, the prosecution contributed to the error because, in both opening and closing, the prosecution asserted that, in substance, the only matter required to be shown by the prosecution was the irreconcilability of the two affidavits.
Thirdly, the appellant contends that she would suffer injustice were a retrial ordered because she is 69 years old, and the matters the subject of the charge relate to events in 2008 to 2010 and concern a company which has since been liquidated.[63]

Legal principles

[63] Appeal ts 44.

The principles relevant to the court's discretionary power under s 30(5) of the Criminal Appeals Act 2004 (WA) to order a retrial or to enter a judgment of acquittal are well known and have been outlined in this court many times. See, for example, Wark v The State of Western Australia.[64]
[64] Wark v The State of Western Australia [2020] WASCA 19; (2020) 56 WAR 365 [511] ‑ [517].
In deciding whether it is in the interests of justice to order a new trial, two broad issues arise for consideration. First, was the admissible evidence adduced at the original trial sufficiently cogent to support a conviction? If so, are there circumstances that might render it unjust to the accused to make them stand trial again?[65]
[65] Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, 630.
In the context of the first of these issues, it is recognised that the prosecution should not be given an opportunity to make a new case that was not made at the first trial.[66] The reference to a 'new case' is to the particulars of the charge and to the nature of the evidence that will be adduced in support of it, not to the elements of the offence.[67] The difference between the case relied on in the first trial and the case to be relied on in the second trial must be substantial if the difference is to stand as a bar to an order for a second trial.[68]
[66] King v The Queen (1986) 161 CLR 423, 433.
[67] R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [35] ‑ [36]; Wark [515].
[68] Taufahema [67].
The cases have recognised that one of the key factors in exercising the discretion is the public interest in the due prosecution and conviction of offenders and that it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a jury.[69]
[69] Taufahema [49], [51].
Relevant matters bearing on the second issue include whether a significant part of the sentence imposed has been served, and the length of time between the alleged offence and the new trial.[70]

Disposition

[70] Taufahema [55].

Taking account of the following matters, in combination, we would order that there be a retrial.
First, there is a public interest in the due prosecution and conviction of offenders and it is desirable, if possible, for the guilt or innocence of an accused to be finally determined by a fact‑finding tribunal.
Secondly, the miscarriage of justice at the appellant's trial occurred as a result of errors in the trial judge's summing up. None of the grounds of appeal impugned the quality of the evidence led by the State at trial, or the judge's directions concerning that evidence.
Thirdly, in our opinion, the evidence adduced at the original trial was sufficient to support a conviction. Contrary to the appellant's submission, the sufficiency of the evidence at the original trial is to be evaluated by reference to the evidence led by the prosecution; it is not to be evaluated against the appellant's evidence at the trial. The appellant may or may not give evidence at a retrial. In any event, the weight, if any, to be attributed to the appellant's evidence was a matter for the jury at the original trial and will be a matter for the jury at the retrial (assuming the appellant gives evidence).
Evaluated in this framework, the matters to which the appellant points, summarised at [77] above, do not demonstrate the insufficiency of the evidence in sustaining a retrial. The extent of the force of the matters raised by the appellant are properly matters for assessment by the jury. For example, the significance of the use of the term ‘accrued’ in the 2010 affidavit, and the range of meanings it may bear and may have been intended to bear, are matters for the jury to evaluate in light of the fact that the appellant swore the affidavit for use in court proceedings. It is for the jury to evaluate whether:
(1) the statements in the two affidavits on which the prosecution relies are necessarily irreconcilable; and
(2)the only reasonable inference, given the appellant’s role as an active and informed director of CAT, is that whichever of the statements was false, the appellant knew of the falsity when she made the statement.
In our view, it is open to the jury to be satisfied beyond reasonable doubt of these matters.
Fourthly, while we accept that the prosecution played some part in the errors made by the trial judge, the miscarriage of justice arising from the judge's summing up is not primarily attributable to the manner in which the prosecution ran, or did not run, the State case.
Finally, the matters to which the appellant points at [82] above do not, taking into account the combined force of the matters in [89] - [93] above, render it unjust to the appellant that she be required to stand trial again.

Conclusion

For the above reasons, we would make orders to the following effect:
(1)The appeal is upheld.
(2)The judgment of conviction is set aside.
(3)There be a retrial.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AE
Associate to the Honourable Justice Beech
24 JUNE 2022