FRIGGER -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 184 (9 December 2025)

1. By s 51(1) of the Bail Act, an accused who, without reasonable cause, fails to comply with the requirements of a bail undertaking commits an offence. By s 51(6), a person who is convicted of an offence against subsection (1) is liable to a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years, or both.
2. Section 52 of the Bail Act applies where the court before which the accused is bound to appear at the time when he or she fails to comply with their bail undertaking is the Supreme Court or the District Court.[1]
3. Section 52(2)(b) relevantly provides that where the accused was bound to appear before the District Court (as the appellant was in this case), a judge of that court shall deal summarily with an offence against s 51(1).
4. By s 52(3), the prosecution for an offence against s 51(1) may be commenced by a police officer.
5. By s 52(4) of the Bail Act, such a prosecution is to be commenced and conducted under the Criminal Procedure Act 2004 (WA) as if it were a prosecution of a simple offence in a court of summary jurisdiction. Thus, the initiating process is by prosecution notice.
6. Section 53(1) of the Bail Act provides for the right of appeal to the Court of Appeal against a decision made under s 52 to convict or sentence an accused for an offence contrary to s 51(1). Section 53(2) provides:

For the purposes of subsection (1), Part 2 of the Criminal Appeals Act 2004, with any necessary changes, applies as if -

(a) the decision referred to in subsection (1) were a decision of a court of summary jurisdiction; and

(b) a reference in that Part to a court of summary jurisdiction were a reference to the court that made the decision referred to in subsection (1); and

(c) a reference in that Part to commencing an appeal were a reference to applying for leave to appeal.

1. Thus, the right of appeal of a person convicted by the District Court of an offence contrary to s 51(1) of the Bail Act is conferred by s 53(1), and it is to be heard, with necessary modifications, as if it were a pt 2 appeal under the Criminal Appeals Act. The words 'as if' in s 53(1) do not detract from the fact that the statutory source of the right of appeal remains s 53 of the Bail Act. The provisions of pt 2 of the Criminal Appeals Act, with any necessary changes, apply to the manner in which an appeal under s 53 of the Bail Act is to be conducted and determined. To be clear, the source of the appellant's appeal rights is not pt 2 of the Criminal Appeals Act.
2. The Bail Act confers power on the Court of Appeal to grant bail after conviction and sentencing for an accused awaiting disposal of an appeal. Clause 4A of sch 1 pt C of the Bail Act creates a rebuttable presumption against a grant of bail to an accused who is in custody waiting for the disposal of appeal proceedings. The court may only grant bail if satisfied that there are exceptional reasons why an appellant should not be kept in custody, and it is otherwise proper to do so having regard to the provisions of cl 1 and cl 3 of sch 1 pt C.
3. Clause 5 of sch 1 pt C provides that cl 4A does not apply to the bail of a person who is awaiting the disposal of appeal proceedings under pt 2 of the Criminal Appeals Act; such a person shall be deemed, for the purposes of sch 1 pt C of the Bail Act, to be awaiting an appearance in court before conviction for an offence.
4. Clause 5 has no application to the present applications for bail because, as we have just stated, the appellant's right of appeal is not under pt 2 of the Criminal Appeals Act. Accordingly, cl 4A applies to the appellant's applications. Therefore, the appellant is required to demonstrate that exceptional reasons exist as to why she should not be kept in custody, and, if such exceptional reasons exist, that it would be proper to grant bail having regard to the provisions of sch 1 pt C cl 1 and cl 3.
5. Although, in the appellant's written submissions, she accepted that cl 4A applied to her applications for bail, in oral submissions she contended that cl 5 applied because her appeals were appeals under pt 2 of the Criminal Appeals Act. For the reasons given above, we do not accept the appellant's submissions on this point.

1. On 5 November 2025, the appellant filed her appeal notices.
2. In the appeal against conviction, the draft grounds of appeal are expressed as follows:

GROUND 1

The trial judge erred in mixed fact and law in finding that the appellant validly undertook to attend court on 5 June 2024.

Particulars:

a) The Clerk of Arraigns pointed to the words printed in bold before the appellant signed Form 6, but failed to discharge the statutory duties required under s 30 of the Bail Act.

b) The Clerk of Arraigns failed to provide Form 7 to the appellant.

c) The Clerk of Arraigns obtained surety through Hartmut Frigger's signature on Form 8, but failed to discharge the statutory duties required under s 43 of the Bail Act.

d) In the circumstances, the bail undertaking was invalid ab initio.

GROUND 2

Alternatively, the trial judge erred in law in finding the appellant breached her bail undertaking when Part C of the undertaking entitled the appellant to appear as soon as practicable if she did not appear on 5 June 2024.

Particulars:

a) The appellant had reasonable cause for not appearing on 5 June 2024.

b) Four days later, on 9 June 2024, the appellant appeared through her solicitor, Dr Gerhard Janssen, who filed a notice of acting.

c) The appellant's clinical psychologist, Michelle Allenson [sic], provided evidence that the appellant was medically unfit to attend court on 5 June 2024.

d) In the circumstances, the appellant complied with her bail undertaking by appearing as soon as practicable, or alternatively, any non‑compliance was excused by reasonable cause.

GROUND 3

The trial judge erred in law and denied the appellant procedural fairness, resulting in a miscarriage of justice.

Particulars:

a) The learned judge failed to apply the test in s 155 of the Criminal Investigation Act [2006 (WA)] and the principles in Bunnings v Cross before admitting Perth Airport CCTV footage that was obtained after WA Police officers Lynn Barber and Kevin Beard falsely represented to Perth Airport security staff that: i. the appellant had been ordered to surrender her passport; and ii. the appellant and her husband had committed offences at Perth Airport.

b) The learned judge ruled Michelle Allenson's [sic] evidence of reasonable cause inadmissible without first hearing Ms Allenson's [sic] evidence, while permitting the prosecution to adduce its evidence first over the appellant's objection and subsequently ruling it admissible.

c) The prosecution failed to call WA Police officer Lynn Barber (despite her written witness statement) or Kevin Beard (despite his email to Perth Airport security staff referenced at (a) above).

1. In respect of her appeal against sentence, the appellant's draft ground of appeal is as follows:

GROUND 1

The trial judge erred in law in sentencing the appellant.

Particulars:

a) The Trial Judge Gething erred in law in the exercise of the sentencing discretion. Judge Gething did not make a court order on 4 June 2024 and the appellant did not disobey a non‑existent court order; T59, 60, 63, 64

b) The appellant was convicted of failing to appear in court on 5 June 2024, but not charged or convicted of disobeying court orders.

c) On 26 June 2024, Judge Gething found the appellant had breached her bail undertaking and made a $50,000 forfeiture order against surety Hartmut Frigger, without a trial.

d) On 27 October 2025, Judge Lonsdale sentenced the appellant to 10 months' imprisonment and ordered a further $50,000 forfeiture.

e) The imposition of two separate $50,000 forfeiture orders constituted double punishment for the same breach.

f) The aggregate sentence of 10 months' imprisonment and $100,000 in total forfeitures was manifestly excessive and disproportionate having regard to the four‑day duration of the alleged failure to comply with bail undertaking.

1. In neither appeal has the appellant filed her appellant's case. Accordingly, this court does not have before it the appellant's actual ground or grounds of appeal, nor any detailed submissions in support of them.
2. However, the court has before it the appellant's written submissions in support of her bail applications, filed on 10 November 2025, and her affidavits in support of each bail application, sworn 6 November 2025. The court heard the appellant's oral submissions in support of her bail applications, including her submissions as to the merits of her appeals.
3. The appellant emphasised that her grounds of appeal against conviction and sentence are strongly arguable, and that almost all of the non‑parole period of her sentence will have been served before the appeals are heard and determined, if they are to proceed in the usual course.
4. In the affidavits filed by the appellant in support of her bail applications, the appellant also asserted that there were additional reasons why bail should be granted, being that her continued incarceration 'has resulted in severe prejudice' to 15 separate civil actions she says she is involved in across various courts; and that, while in custody, she has been subjected to hardship, including, as mentioned, threats and an assault while at Bandyup Prison, and a failure to properly manage several medical conditions.
5. On behalf of the respondent, it was submitted that the grounds of appeal in both appeals are not strongly arguable, and that none of the other reasons given by the appellant, either individually or in combination, constitute exceptional reasons under cl 4A of sch 1 pt C of the Bail Act. Even if there were exceptional reasons, the respondent submits that the appellant poses such an unacceptable flight risk that she should not be granted bail, having regard to cl 1 and cl 3 of sch 1 pt C of the Bail Act.

1. The legal principles governing the grant by this court of bail pending appeal were summarised by Mazza JA in ZHA v The State of Western Australia,[2] as follows:

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.

...

As I recently said in Debono v The State of Western Australia, the 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). See KWLD v The State of Western Australia [No 2]. (footnotes omitted)

1. We have considered the appellant's draft grounds of appeal in each appeal, her written submissions, the contents of her affidavits, and her oral submissions. Bearing in mind that the appeals are very much at a preliminary stage, and we do not have the benefit of full written submissions or oral argument, it does not appear at this stage that in either appeal any of the appellant's proposed grounds of appeal are strongly arguable, or that the appeal is most likely to succeed. We are not presently satisfied that the appellant's prospects of success in either appeal are sufficiently strong as to give rise to a real concern that the appellant would suffer injustice by being kept in custody on an unsound conviction or an unjust sentence.
2. The fact that the appellant may be experiencing difficulties in maintaining her civil litigation while in custody would not, alone or in combination with other factors, give rise to an exceptional reason why bail should be granted. We accept that the appellant was assaulted at Bandyup Prison on 14 November 2025, and that she requires ongoing medical treatment for her medical conditions. However, it is the responsibility of the prison authorities to provide proper medical treatment, and to ensure, as far as reasonably possible, the appellant's personal safety. There is no evidence before us which shows that the responsible authorities are not providing the appellant with proper medical care, or are incapable of doing so. We note that, since the incident on 14 November 2025, the appellant has moved to the Boronia Pre‑Release Centre, and that there have been no further incidents.
3. We are not satisfied that any of the matters raised by the appellant, either individually or in combination, constitute exceptional reasons for the grant of bail pending determination of her appeals against conviction and sentence. Accordingly, each application for bail must be refused.
4. Even if we had been 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.
5. While we appreciate that the appellant was granted bail by Wager CJDC prior to conviction for this offence, on conditions which the appellant apparently complied with prior to the commencement of the trial before Lonsdale DCJ, and she has answered her bail in other circumstances in the past, the situation has changed now that she has been convicted of, and sentenced for, the offence against s 51(1) of the Bail Act.
6. The appellant is presently serving a term of immediate imprisonment. If she were granted bail pending appeal, and her appeals then failed, she would be returned to prison to serve the balance of her sentence. The prospect of imprisonment should her appeals fail makes her, in light of her past behaviour, a flight risk. We can see no condition of bail that might reasonably be imposed upon her which would sufficiently remove the possibility that the appellant would not appear in this court as required.
7. For these reasons, each of the appellant's applications for bail pending appeal were dismissed.
8. However, given the relatively short sentence of immediate imprisonment imposed on the appellant, it was appropriate to grant an urgent appeal order under r 46 of the Supreme Court (Court of Appeal) Rules 2005 (WA). The appeals will be heard on 20 January 2026.

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

[1] Bail Act 1982 (WA), s 52(1).

[2] ZHA v The State of Western Australia [2019] WASCA 160 [39], [41].