Frigger v The State of Western Australia [No 2]

In Frigger v The State of Western Australia, the appellant appealed against his conviction for knowingly making a false statement under oath that was false in a material particular. The 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. 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. The appellant argued that the 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.

The court had to decide 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. The court also had to determine whether materiality of a false statement is a question of fact for the jury or a question of law for the trial judge. The court held that the materiality of a false statement 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. The court also held that questions of materiality 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.

The appeal was dismissed. The court held that the trial judge's direction to the jury was not wrong and that the appellant's conviction was not unreasonable or unsupported by the evidence. The court also held that the absence of a direction as to the use which other inconsistencies in statements made in the affidavits could be put did not give rise to a miscarriage of justice. The court held that it was not in the interests of justice to grant leave to reopen the case, amend the grounds of appeal and advance further written and oral submissions after the hearing of the appeal had been completed.

The ratio of this case is that, for the purposes of s 169 of the Criminal Code, 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. Questions of materiality 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. The materiality of a false statement is not a question of fact for the jury, but a question of law for the trial judge.