FRIGGER -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 100 (23 August 2024)

1. That is an offence contrary to s 169(1) of the Criminal Code (WA), 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.

1. In seeking to prove this offence, the State relied on cl 6(12)(b) of sch 1 to 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.

1. On 9 August 2021, the appellant was convicted of the charged offence after trial. 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 8 December 2021, this court granted the appellant bail pending the determination of her appeal.[1] On 24 June 2022, this court allowed the appellant's appeal against conviction, set aside the conviction and ordered a retrial.[2] In ordering a retrial, this court concluded that the evidence adduced at the original trial was sufficient to support a conviction.[3] 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.[4]
3. The appellant's retrial took place before the trial judge and a jury between 21 May 2024 and 4 June 2024.

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. Computer Accounting and Tax Pty Ltd (CAT), a company controlled by the appellant and her husband, Hartmut Frigger,[5] sued another company, Professional Services of Australia Pty Ltd (PSA) and Martin Banning (a director of PSA). Those proceedings, CIV 2265 of 2006 (primary proceedings), were brought in the General Division of this court and related to CAT's purchase of a property (the Armadale property) from PSA.[6] They were tried by Simmonds J.
3. On 9 July 2008, judgment was entered in favour of CAT against PSA for $967,197.50.[7] 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 appeal.[8]
4. On 23 September 2008, an affidavit purportedly sworn by the appellant was filed in the appeal proceedings (2008 affidavit).[9] There was no issue that the appellant signed the 2008 affidavit before a justice of the peace. In both the opening part of the 2008 affidavit and in the jurat, the appellant stated that the affidavit was sworn by her. 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.
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 sum should the appeal be successful.
7. PSA's stay application was dismissed by Buss JA (as his Honour then was) on 24 September 2008.[10] In dismissing PSA's claim, Buss JA observed:[11]

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 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.

1. On or about 9 June 2009, PSA paid $1,165,661.54 to CAT (comprising the judgment sum and interest).[12]
2. On 23 October 2009, PSA's appeal was partially successful and this court substantially reduced the judgment sum.[13]
3. 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 and Magistrates Court' to secure the payment of loans allegedly made by the appellant and Mr Frigger to CAT.[14]
4. 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.[15] Simmonds J made a freezing order on 16 December 2009.[16]
5. On or about 22 June 2010, an affidavit purportedly sworn by the appellant on 22 June 2010 in Applecross (2010 affidavit) was filed in the primary proceedings.[17] There was no issue at trial that the 2010 affidavit was signed by the appellant before a justice of the peace, Phillip Thomas. 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. 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.
6. In the 2010 affidavit, the appellant deposed to herself and Mr Frigger having lent money to CAT in 2001 to fund CAT's purchase of a property referred to as the Edwards 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 Edwards Street property and the Armadale property were transferred to the Frigger Super Fund (FSF), of which CAT was trustee, on 1 July 2008. On 1 April 2009, the appellant and Mr Frigger, as directors of CAT, resolved to use any judgment sum awarded to CAT in the primary proceedings to repay the loans with which CAT purchased the Edwards Street property and the Armadale property.
7. 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.

1. 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.

1. Annexure AF9 to the 2010 affidavit showed that the balance of the loan account was $2,436,278.24 as at 23 September 2008, which included directors' fees. The balance of the 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.

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 was dishonest, 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, as at 23 September 2008, CAT had no liabilities save for quarterly GST.
   2. In the 2010 affidavit, the appellant said that, as at 23 September 2008, CAT had accrued a debt in the form of directors' fees which were owed to her.

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

1. 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 affidavit showed that they were made on oath.[18]

1. The appellant made an opening statement at trial. The appellant accepted that she made the statement that CAT had no liabilities as at 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, as at 23 September 2008, the company had accrued debts to her. The appellant said that the directors' fees 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 directors' fees had not been paid. The appellant anticipated adducing evidence from an accountant that the directors' fees had been paid when the appellant made the 2008 affidavit. She contended that both statements were true and the jury should find her not guilty of the charged offence.[19]

1. It is sufficient at this stage to refer to the evidence adduced at trial in broad terms.
2. The prosecution called two witnesses in support of its case. Detective Sergeant Beard, the investigating officer, produced various documents obtained in the course of the police investigation. Jason Sim, a senior forensic accountant employed in the WA Police Force, was called to give evidence. This included expert evidence as to 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.[20]
3. The appellant elected not to give evidence but adduced evidence from the following witnesses.
4. Mr Frigger gave evidence, including evidence to the general effect that he was present when the 2008 affidavit was signed by the appellant and the justice of the peace and he recalled that no oath was administered to the appellant at that time.[21]
5. Phillip Thomas, the justice of the peace who witnessed the 2010 affidavit, gave evidence to the general effect that his ordinary practice was to administer an oath when witnessing an 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.[22]
6. Heather Lawford, the director of an accounting firm, gave evidence to the general effect that financial documents and a 'QuickBooks' data file provided to her by the appellant indicated that, as at 23 September 2008, CAT had paid the appellant's and Mr Frigger's directors' fees by reducing the balance of the directors' loan account (ie, an account of money owing by the appellant and Mr Frigger to CAT). 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 and 2010 affidavits, including as to whether directors' fees had been paid.[23]
7. Mervyn Kitay, who was appointed provisional liquidator and subsequently liquidator of CAT, was called to give evidence in relation to certain steps he had taken in the liquidation of CAT. Sandra Banning, a director of PSA, was asked about certain documents relating to the primary proceedings.

1. The trial judge directed the jury in effect that, in order to find the appellant guilty, they needed to give affirmative answers to all of the following questions relating to the six elements of the charged offence:[24]
   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?
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.

1. 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 AF 6 and AF 9, 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.

1. 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.

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.

1. In the late afternoon of 4 June 2024, the jury returned a unanimous guilty verdict, and the appellant was convicted of the charged offence. The trial judge indicated that his Honour proposed to sentence the appellant on Friday, 7 June 2024. His Honour said that he would grant the appellant bail until the sentencing hearing but was going to impose conditions which would include requiring the appellant to surrender all passports. However, the judge indicated:[25]

Now, I'm not going to make you surrender your passport tonight, because I don't want you in prison overnight just because you haven't surrendered your passport. So I'm going to adjourn the matter to ... 10 o'clock tomorrow morning. You can expect at that time I'll make an order requiring you to surrender your passport, so you need to bring all your passports with you, any European ones and also your - any current Australian passport. And I'll also make orders in relation to approaching airports.

1. The appellant was granted bail for an appearance at 10.00 am on 5 June 2024, on conditions that she provide a bail undertaking in the amount of $50,000; that Mr Frigger provide a surety undertaking in the amount of $50,000; that she reside at an address in Applecross; and that she remain at that address overnight and not leave save for an emergency.
2. In an apparent breach of the conditions of her bail undertaking, the appellant went to Perth Airport in the early hours of the morning of 5 June 2024 and departed Australia on a flight to Singapore at 3.35 am on 5 June 2024. The appellant did not appear at the hearing before the District Court on 5 June 2024. The trial judge issued a warrant for her arrest.
3. On 25 June 2024, a firm of solicitors sent an email to the Court of Appeal office attaching a form of appeal notice signed by the firm on behalf of the appellant, seeking to appeal against her conviction of the offence against s 169(1) of the Code.
4. Also on 25 June 2024, the Court of Appeal office received a letter from the Office of the Director of Public Prosecutions objecting to the filing of the appeal notice on the basis that the notice was an abuse of process.
5. Having received this objection, the acting Court of Appeal registrar referred the following question to the court:

Should the appeal notice lodged by [the firm of solicitors] on behalf of [the appellant] dated 25 June 2024 be accepted for filing in light of the objection by the Director of Public Prosecutions (WA) that the attempt to file the appeal notice while [the appellant] is a fugitive constitutes an abuse of the process of the court?

1. On 27 June 2024, the trial judge ordered that Mr Frigger forfeit the full $50,000 amount of his surety offered as a condition for the appellant's release on bail under s 49 of the Bail Act 1982 (WA).
2. The registrar's referred question was listed for hearing before this court on 23 July 2024. On the morning of the hearing, the court was advised that the appellant had returned to Australia and had been apprehended at Perth Airport by the Australian Federal Police. This court made an order that:

The appeal notice should be accepted for filing on 23 July 2024 on the basis that the filing of an appeal notice after [the appellant] has been apprehended pursuant to the bench warrant issued by the trial judge on 5 June 2024 is not an abuse of process of this court.

1. Also on 23 July 2024, the appellant was brought before the trial judge pursuant to the bench warrant. The appellant was represented by counsel at that hearing. The trial judge indicated that his Honour was in a position to sentence the appellant in the following week. The appellant's counsel sought orders for the provision of psychiatric and psychological reports on the appellant. The appellant and her counsel were advised that this would delay sentencing until November 2024. After being given an opportunity to take instructions, the appellant's counsel indicated that the appellant wished to pursue obtaining the reports. The trial judge ordered the reports and remanded the appellant in custody until 29 November 2024 for sentencing. The trial judge refused the appellant's application for bail pending sentence.

1. The appellant's appeal notice was accepted for filing on 23 July 2024. On 31 July 2024, the appellant filed a notice of self‑representation in the appeal.
2. By an application in an appeal filed on 2 August 2024, the appellant applied for bail pending the determination of the appeal. The application identified the grounds on which bail was sought in the following terms:
   1. The [appellant] has experienced deteriorating mental health since the initiating of legal proceedings. She has been diagnosed with depressive anxiety disorder, panic/anxiety attacks, depressive symptoms, insomnia as well as suicidal ideation.
   2. The [appellant] believes that she should not be positioned to face similar circumstances, considering the gravity the imprisonment on remand or as a sentence is disproportionate to the first time offending of the [appellant] as well as the nature of the offence she has been convicted of.
   3. The [appellant] submits that her appeal application to the Supreme Court of Appeal has significant merit and ought to be considered of sufficient strength to justify a grant of bail.
   4. Furthermore, the [appellant] notes the submission of the Prosecution on 4 June [2024] amount to the only appropriate sentence being a term of an immediate imprisonment. While sentencing has not determined a formal sentence for the [appellant], based on the previous trial term of imprisonment of 16 month's the [appellant] functions on the assumption that, should a similar sentence be [imposed], she should not be in custody pending the determination of her appeal against conviction.
   5. The appellant has been assessed as, not being at risk of reoffending and any form of imprisonment would be a disproportionate response, particularly if it [is] used as a personal deterrence.
   6. While the [appellant's] conduct to leave the country was heavily influenced by her mental state and breakdown, normal bail condition, which already includes the surrender of the passport are appropriate.
3. The bail application was supported by an affidavit sworn by Mr Frigger on 2 August 2024, which did not depose to any facts significant for the grant of bail.
4. On 2 August 2024, Mitchell JA made programming orders for the hearing of the bail application. Order 1(a) required that, by 9 August 2024, the appellant must file and serve:

an affidavit or affidavits containing any evidence, other than that contained in the affidavit of [Mr Frigger] made on 2 August 2024, on which the appellant seeks to rely in support of her [bail application].

1. Pursuant to the programming orders, the appellant filed an affidavit of Mr Frigger sworn 5 August 2024, in which he deposed:
   1. I am the appellant's husband. During the criminal trial I was appointed as MacKenzie friend in the proceeding below IND 1112/2019 to my wife. I make this affidavit in support of my wife.
   2. [The trial judge] fined my wife 50000$ [sic] following the conviction. As surety I was ordered to pay the fine.
   3. On 23.7.2024 [the trial judge] directed my wife with breach of bail. My wife has not been charged.
   4. My wife advised me, and I verily believe, she will plead not guilty.
2. The appellant has not filed any further affidavits in support of her bail application.
3. In opposition to the bail application, the respondent filed an affidavit of Emily-May Carole Roberts affirmed on 12 August 2024, which contains evidence of the appellant absconding on a flight to Singapore on 5 August 2024 using a passport in the name of 'Angela Cecilia Theresa REID'.

1. The appellant also filed draft grounds of appeal pursuant to the programming orders, which she amended on 11 August 2024. The following references are to the amended draft grounds of appeal.
2. Proposed ground 1 contends that the guilty verdict was unreasonable and could not be supported by the evidence. The particulars to the ground in effect contend that it was not open to the jury to be satisfied of the following elements identified by the trial judge:

Element 2 - two statements conflict irreconcilably

1. [Paragraph 22 of the 2010 affidavit] is not a statement that CAT had accrued debts owing to the appellant on 23 September 2008.
2. Heather Lawford provided expert evidence that the directors fee were paid by journal entry expensing director's fees to the Profit and Loss statement and reducing the running account assets in the balance sheet to $685,000 owed to CAT[.]
3. Mervin Kitay [sic], CAT's liquidator, corroborated Lawford's evidence by posting the same journal entry from the Profit and Loss statement in Exhibit 15 and reconstructing running account, which resulted in a balance of approximately $700,000 owed to CAT: MFIK. Kitay corroborated his reconstruction to CAT's income tax return obtained from ATO.
4. Jason Sim conceded that the director's fee recorded to a running account asset would reduce the asset and would not create a liability.

1. Neither [the 2008 affidavit] nor [the 2010 affidavit] were sworn by the appellant.
2. [Mr Frigger] stated that he was present when Mrs Michelli and the appellant tried [the 2008 affidavit], and no oath was administered.
3. JP Phillip Thomas stated that he never administered oaths in Applecross. His inability to administer an oath without the aid of a written oath was demonstrated at the trial. Kevin Beard obtained witness statements from JP's but did not call them as witnesses.

1. [Paragraph 22 of the 2008 affidavit and par 22 of the 2010 affidavit] do not conflict irreconcilably. Therefore, neither are false.
2. Justice Buss relied on paragraph 16 - 22 [of the 2008 affidavit] to dismiss the stay application in CACV 76 of 2008. Even if [par 22 of the 2008 affidavit] had been omitted Buss J would have made the same decision. The statement was not material.
3. Justice [Simmonds] found that freezing orders had been discharged by consent without merits being adjudicated. No cost order was made. [Paragraph 22 of the 2010 affidavit] was not material to [Simmonds] J reasons.
4. Proposed ground 2 contends that the trial judge failed to direct the jury on certain legal issues, which resulted in a miscarriage of justice. The particulars are to the effect that the trial judge ought to have directed the jury that:
   1. The allegation that the appellant is dishonest, unreliable and a liar was unsubstantiated.
   2. Mr Sim's evidence should be entirely rejected other than evidence against interest, and he was not permitted to give an opinion that the paragraphs conflicted irreconcilably.
   3. Only par 22 of the 2008 affidavit and par 22 of the 2010 affidavit formed part of the charge and neither statement was material to the relevant judicial decisions.
   4. An adverse inference should be drawn from the fact that justices of the peace were not called to give evidence because they would not assist the prosecution.
5. Proposed ground 3 contends that the trial judge 'failed to advise the appellant that leading submissions could be redacted from the transcript'. The import of this ground is unclear, and the appellant was unable to explain its meaning at the hearing, advising the ground had been prepared by her former lawyer.
6. Proposed ground 4 makes various complaints about steps taken by the trial judge after the appellant's conviction.
7. Proposed ground 5 contends that, without prior notice, the appellant was tried on 13 additional offences of perjury and perverting the course of justice, which constitutes a miscarriage of justice. It would appear from the particulars to this ground that the ground is intended to refer to instances where the prosecutor contended that the appellant had told lies.
8. In oral submissions, the appellant anticipated raising two additional grounds of appeal. One concerned an error allegedly made by the trial judge in rejecting a no case submission. The other concerned an allegation of unfairness arising from an amendment of the charge during the trial to remove the words 'and another' at the end of the charge, and the provision of material relating to Mr Sim's evidence only shortly prior to trial.

1. The general principles governing the grant by this court of bail pending appeal were summarised by Mazza JA in ZHA v The State of Western Australia:[26]

Clause 4A of pt C of sch 1 of the Bail Act 1982 (WA) relevantly provides that a judicial officer shall only grant bail to an accused person who is in custody waiting for the disposal of appeal proceedings, if satisfied that (a) exceptional reasons exist; and (b) it is proper to do so, having regard to the provisions of cls 1 and 3 of pt C of the schedule.

....

[T]he use of the word 'exceptional' in cl 4A denotes something which is unusual or out of the ordinary, in some way special or an exception to the general run of cases. What might constitute exceptional reasons will depend upon the circumstances of each particular case and can, of course, be constituted by a combination of factors. However, when considering whether exceptional reasons exist, the strength of the appellant's case will almost always be an important, if not decisive, consideration. It is usually necessary for an appellant to demonstrate that his or her grounds of appeal are strongly arguable and, without detailed argument, that the appeal is most likely to succeed. Put another way, the prospects of success must be sufficiently likely to give rise to a real concern that the appellant would suffer injustice by being kept in custody on an unsound conviction (or sentence).

(citations omitted)

1. The appellant seeks to invoke the jurisdiction of this court to grant bail pending appeal in circumstances where she has not yet been sentenced, she has been remanded in custody and there has been no appeal against a refusal of bail pending sentence by the trial judge.[27] Questions might arise as to the power of this court to grant bail pending the determination of an appeal in these circumstances, and of the effect of an order granting bail on the trial judge's order remanding the appellant in custody pending sentence. However, it is unnecessary to address those questions in the present case as, assuming we have the power to grant bail, we would not exercise the power in the appellant's favour at this stage.
2. We have considered the appellant's draft grounds of appeal and the possible additional grounds of appeal anticipated by her oral submissions. We have not, at this preliminary stage, had the opportunity to give the trial record the close attention that ground 1, in particular, will demand at the hearing and determination of the appeal. However, at this stage it does not appear to us that any of the appellant's proposed grounds of appeal are strongly arguable or that the appeal is most likely to succeed. The proposed grounds of appeal and the limited submissions which we have received on them do not satisfy us that the appellant's prospects of success in the conviction appeal are sufficiently likely to give rise to a real concern that the appellant would suffer injustice by being kept in custody on an unsound conviction.
3. The affidavit of Mr Frigger quoted at [53] above contains a number of misconceptions. The appellant has not been 'fined' $50,000. Rather, the surety which Mr Frigger provided as a condition of the appellant being granted bail has been forfeited because the appellant did not answer her bail. The appellant's submission that she was 'fined $50,000' which 'equates to 292 prison days, at $200 per day, which equates to 10 months' prison time' is wi[28]out merit.28
4. No evidence has been adduced on the bail application as to the mental health issues said to be experienced by the appellant in the particulars to the bail application.
5. The appellant has not yet been sentenced and the sentence which she will receive is unknown. As noted at [5] above, the appellant received a sentence of 1 year 4 months' immediate imprisonment after the original trial, which was set aside on appeal. Having regard to the 'principle of[29]estraint',29 there is a prospect that a similar or lower sentence might be imposed by the trial judge in November 2024, and the sentence backdated to reflect time spent in custody on remand. If that occurs, then there is a prospect that the appellant would have served a substantial portion of the non-parole period before the appeal could be heard and determined. However, in our view that concern is appropriately accommodated by making an urgent appeal order rather than by the grant of bail.
6. In the previous paragraph of these reasons, we should not be taken to be expressing any view as to the sentence which should be imposed by the trial judge, or how the 'principle of restraint' should operate in this case, when the appellant comes to be sentenced in November 2024.
7. We are not satisfied that any of the above matters, considered individually or collectively, constitute exceptional reasons for the grant of bail pending determination of the appeal. The application for bail must be refused in the circumstances.
8. Even if we were satisfied that exceptional reasons existed, we would not, on the evidence before us, have been satisfied that it was proper to grant bail, having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 to the Bail Act.[30] In our view, on the current state of the evidence, the appellant's conduct in absconding in the circumstances prevailing on 5 June 2024 demonstrates that there is an unacceptable risk that, if the appellant is not kept in custody, she will fail to appear in court in accordance with her bail undertaking.[31] In our view, any conditions which might reasonably be imposed on any grant of bail would not sufficiently remove the possibility that the appellant may fail to appear in court in accordance with her bail undertaking.[32] The risk that the appellant will fail to appear in court in accordance with her bail undertaking is sufficient in the circumstances of this case to justify the refusal of bail.
9. We note that, at the conclusion of the hearing, the appellant sought an opportunity to provide an affidavit explaining why she left the country and failed to appear before the District Court on 5 June 2024. Given our conclusion as to the absence of exceptional reasons for granting bail, receipt of that evidence could not have affected the outcome of the bail application. Having reached that conclusion after hearing oral submissions, we were of the view that there was no utility in adjourning the bail application to provide the appellant with a further opportunity to adduce evidence in support of her bail application.

1. For these reasons, at the hearing on 21 August 2024, we ordered that the appellant's application for bail be dismissed. We also made an urgent appeal order programming the appeal for hearing on 7 November 2024.

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 [2021] WASCA 211.

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

[3] Frigger v The State of Western Australia [No 2] [91] - [92].

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

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

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

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

[26] ZHA v The State of Western Australia [2019] WASCA 160 [39] - [41].

[27] Under s 15A of the Bail Act.

[28] Appellant's submissions in support of an application for bail, par 5.

[29] As to the 'principle of restraint', see XMB v The State of Western Australia [2023] WASCA 4 [57] - [64].

[30] As to the general principles on the exercise of the discretion to grant bail, see YSN v The State of Western Australia [2017] WASCA 155 [14] - [21].

[31] See sch 1 pt C cl 1(a)(i) of the Bail Act.

[32] See sch 1 pt C cl 1(e)(i) of the Bail Act.