FRIGGER -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 39 (28 February 2023)

1. The appellant has lodged an appeal against the primary judge's decisions dismissing each aspect of the appellant's application referred to in [10] above - CACR 19 of 2023. Ground 1 challenges the judge's decision to dismiss the appellant's no case to answer submission. Ground 2 challenges the judge's decision to refuse the appellant's application for a permanent stay. Ground 3 challenges the primary judge's decision not to refer questions to this court.
2. No appeal lies against these decisions.
3. It is often said that an appeal is a creature of statute. In other words, a right of appeal exists to the extent, and only to the extent, that such a right is conferred by statute.[5] The Criminal Appeals Act 2004 (WA) is the only source of a right to appeal against an offence against statute law in Western Australia.[6]
4. Section 23(1) of the Criminal Appeals Act confers a right of appeal on an offender against a decision as to their conviction; their sentence; or the making of orders that were made, or the refusal to make orders that might have been made, as a result of their conviction. The only pretrial decision in respect of which a right of appeal is conferred under the Criminal Appeals Act is the pretrial decision referred to in s 26, which is of no present relevance.
5. The appellant points to s 38 and s 40 of the Criminal Appeals Act as supporting her appeal. Neither of those provisions confers any rights of appeal. Section 38 is concerned with the procedural question of how multiple appeals are to be heard and decided. It presupposes, and does not confer, a right of appeal. Section 40 sets out the powers of the court in hearing an appeal, again presupposing that an appeal has been competently instituted.
6. Beckett v The Queen,[7] on which the appellant relies, concerned a statutory provision in New South Wales specifically providing for a right of appeal against interlocutory judgments and so does not assist her.
7. Thus, the appellant's purported appeal is incompetent and must be dismissed.
8. For these reasons, we ordered that leave to appeal on each ground in CACR 19 of 2023 be refused and the appeal dismissed.

The application for leave to reopen the first appeal

1. As already noted, the appellant applies for an order reopening the first appeal to enable reconsideration of the order for a retrial and the substitution, for that retrial order, of a judgment of acquittal.
2. The appellant asserts that the State obtained a retrial order in the first appeal by:[8]

(a) there was no deficiency in the prosecution case in the first trial;

(b) the miscarriage of justice occurred as a result of errors in the trial judge's summing up and was not attributable to the way in which the prosecution ran, or did not run, its case;

(c) the evidence adduced at the first trial was sufficiently cogent to support a conviction on the charged offence; and

(d) the case the prosecution advanced was a viable one and the prosecutor ran a viable case.

1. The appellant points to indications that the State now proposes to call evidence that it did not call at the first trial, namely expert accounting evidence and some other additional evidence in the form of one of the annexures to the 2010 affidavit sworn by the appellant.
2. The appellant says that the State should have informed this court that it would not be running the same case as it did at the first trial, and that the case that it now proposes to run is 'different in time and quality of evidence'.[9]
3. The starting point in considering an application to reopen is the finality of orders made by a court, including this court, which finally dispose of a matter and which have been perfected. In the absence of statutory provision to the contrary, and subject to certain very narrow exceptions, a formally recorded order made by an intermediate appellate court cannot be reopened or reconsidered.[10] The formal recording of the order marks the end of the proceeding in that court. Any power to reopen or reconsider the order made must be found in the governing statute; here the Criminal Appeals Act.[11]
4. The appellant relies on what was said by Malcolm CJ in Mustafa v The Queen.[12] That case concerned provisions of the Criminal Code (WA) which have been replaced by the Criminal Appeals Act. In any event, in Wallam,[13] this court adopted the approach of Murray J in Mustafa in preference to that taken by Malcolm CJ. What is said in [24] above is firmly established as the law in this State.
5. The appellant asserts that this court has power to reopen the appeal on the ground of there being a fraud on the court. As Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ observed in DJL v Central Authority,[14] in a passage cited with approval by Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ in Burrell v The Queen,[15] the preferable course in circumstances where a party asserts that a judgment was obtained by fraud is the institution of a separate proceeding seeking to impeach the judgment for fraud. In Chang v Legal Profession Complaints Committee [No 2],[16] Buss P and Murphy JA observed that, in curial proceedings, the general rule is that final orders regularly and formally entered can only be challenged on appeal or in proceedings to set aside the judgment for fraud.[17]
6. Other cases on which the appellant relies are concerned with the different question of the powers of an administrative tribunal in cases of fraud. Consequently, they are not of assistance.
7. For present purposes, we are content to assume, without deciding, that this court has power to reopen a perfected order on the ground that it was obtained by a fraud on the court.
8. Proceeding on that assumption, the appellant's assertion that a fraud was perpetrated on this court is baseless and misconceived. The question for present purposes is not whether, in proposing to adduce evidence in addition to the evidence it led at trial, the respondent is now seeking to make a new case that was not made at the first trial. Rather, the appellant asserts, and so must demonstrate, that the respondent's submissions to this court at the first appeal were deliberately false. Of course, that must be tested at the time the respondent made its submissions.
9. The fact that the prosecution intends, evidently in light of the appellant's evidence at her first trial, now to supplement the evidence it led at the first trial falls well short of falsifying the submissions made by the prosecution, summarised, in effect, at [21] above. To submit that evidence adduced at a trial was sufficient to support a conviction is not to undertake to adduce only precisely the same evidence at a retrial. The inclusion of supplementary evidence does not suggest, much less demonstrate, that the evidence at the original trial was insufficient to support a conviction. Still less does it demonstrate that, at the time of the hearing of the first appeal, the respondent knew that the evidence at the original trial was insufficient.
10. For these reasons, we dismissed the appellant's application for leave to reopen her appeal in CACR 170 of 2021.

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

[1] Frigger v The State of Western Australia [No 2] [2022] WASCA 72 (first appeal reasons).

[3] First appeal reasons [84] - [85].

[5] Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [2], [80]; JS v The State of Western Australia [2014] WASCA 177 [4].

[6] Allbeury v Corruption and Crime Commission [16]; JS v The State of Western Australia [4]; WCM v The State of Western Australia [2015] WASCA 55 [12].

[7] Beckett v The Queen [2014] NSWCCA 305; (2014) 315 ALR 295.

[8] Affidavit of Angela Frigger 22 February 2023 [3].

[9] Affidavit of Angela Frigger 22 February 2023 [9].

[10] The State of Western Australia v Wallam [2008] WASCA 117 (S) [16]; JS v The State of Western Australia [14]; Nguyen v The State of Western Australia [2019] WASCA 5 [29].

[11] Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 [20] ‑ [22], [24], [26].

[12] Mustafa v The Queen [2002] WASCA 357; (2002) 27 WAR 73.

[14] DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 [36] ‑ [37].

[16] Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208; (2020) 56 WAR 263 [221].

[17] Citing Perpetual Trustees Australia Ltd v Heperu Pty Ltd [No 2] [2009] NSWCA 387; (2009) 78 NSWLR 190 [44].