FRIGGER -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2025] WASCA 7 (14 January 2025)

1. The appellant was charged with the following count on an indictment:[2]

Between 22 September 2008 and 23 June 2010 at Perth [the appellant], when under oath, knowingly made a statement that was false in a material particular, in that in affidavits sworn on 23 September 2008 and 22 June 2010, [the appellant] said two things that conflicted irreconcilably, namely (1) as at 23 September 2008, that the company [CAT] had no liabilities save quarterly GST, and (2) that as at 23 September 2008 the company had accrued debts to her.

1. That is an offence contrary to s 169(1) of the Criminal Code, 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 sch 1 cl 6(12)(b) of the Criminal Procedure Act, 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. The appellant was originally convicted of the charged offence after trial on 9 August 2021. 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 9 December 2021, this court granted the appellant bail pending the determination of her appeal.[3] On 24 June 2022, this court allowed the appellant's appeal against conviction, set aside the conviction and ordered a retrial.[4] In ordering a retrial, this court concluded that the evidence adduced at the first trial was sufficient to support a conviction.[5] 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.[6]
3. The appellant's retrial took place before the trial judge and a jury between 21 May 2024 and 4 June 2024. While the appellant was represented by counsel at her first trial, she was self-represented at the retrial.

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. CAT, a company controlled by the appellant and Mr Frigger,[7] sued PSA and Mr Banning in the primary proceedings. The primary proceedings were brought in the General Division of this court and related to CAT's purchase of the Armadale property from PSA.[8] They were tried by Simmonds J.
3. On 9 July 2008, judgment was entered in favour of CAT against PSA for $967,202.50.[9] In the civil appeal, 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 civil appeal.[10]
4. On 23 September 2008, the 2008 affidavit, which on its face indicated that it was sworn by the appellant, was filed in the civil appeal.[11] There was no issue that the appellant signed the 2008 affidavit before a justice of the peace, Ms Machele. In both the opening part of the 2008 affidavit and in the jurat, the appellant stated that the affidavit was sworn by her. The appellant described her occupation as 'Accountant and Company Director'. 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, which included:
   1. A property referred to as the Edward Street property, which had 'a sworn value on April 2007 of $1,100,000', which was still owned by CAT and was unencumbered.
   2. The Armadale property, valued at $615,030 at 1 March 2007 by Simmonds J, which was still owned by CAT and was unencumbered.
   3. A term deposit in the amount of $999,999.
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 judgment sum should the civil appeal be successful.
7. PSA's stay application was dismissed by Buss JA (as his Honour then was) on 24 September 2008.[12] In dismissing PSA's claim, Buss JA observed:[13]

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 [civil] 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).[14]
2. On 23 October 2009, PSA's civil appeal was partially successful, and this court substantially reduced the judgment sum.[15]
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 + Magistrates Court' to secure the payment of loans allegedly made by the appellant and Mr Frigger to CAT.[16]
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.[17] Simmonds J made a freezing order on 16 December 2009.[18]
5. On 7 December 2009, this court made final orders in the civil appeal including orders requiring CAT to pay PSA and Mr Banning amounts totalling $775,822.72 plus interest.[19]
6. On or about 22 June 2010, the 2010 affidavit, which on its face indicated that it was sworn by the appellant on 22 June 2010 in Applecross, was filed in the primary proceedings.[20] 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. In the 2010 affidavit, the appellant described her occupation as 'Accountant'. 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 and for the costs of the application to be awarded to the appellant and Mr Frigger.
7. In the 2010 affidavit, the appellant deposed that she and Mr Frigger had lent money to CAT in 2001 to fund CAT's purchase of the Edward 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 appellant deposed that the Edward Street property was transferred to the Frigger Super Fund (FSF), of which CAT was trustee, on 1 July 2007. The appellant deposed that Armadale property was transferred to the FSF on 1 July 2008. The appellant deposed that, on 1 October 2008, she and Mr Frigger, as directors of CAT, resolved to ratify the transfer of the two real estate properties to the FSF as part payment of the loan 'we had made to CAT'.[21]
8. 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 directors' loan account was $2,436,278.24 on 23 September 2008, which included director's fees. The balance of the directors' 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 had acted dishonestly, 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, on 23 September 2008, CAT had no liabilities save for quarterly GST.
   2. In the 2010 affidavit, the appellant said that, on 23 September 2008, CAT had an accrued debt in the form of director's 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 affidavits showed that they were made on oath.[22]

1. The appellant made an opening statement at trial. The appellant accepted that she made the statement that CAT had no liabilities on 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, on 23 September 2008, the company had accrued debts to her. The appellant said that the 'director's fees' that she referred to in the 2010 affidavit, 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 director's fees had not been paid. The appellant anticipated adducing evidence from an accountant that the director's fees had been paid when the appellant made the 2008 affidavit and did not constitute a liability of CAT at that time. She contended that both statements were true, and the jury should find her not guilty of the charged offence.[23]
2. In her closing submissions, the core of the appellant's defence was in essence that the director's fees were paid by being credited to a directors' loan account, which had a credit balance in favour of CAT as at 23 September 2008. On that basis, payment of the director's fees operated to reduce the amount which the appellant and Mr Frigger would otherwise owe CAT. Therefore, the director's fees did not represent a debt owed by CAT to her as at 23 September 2008. References in par 22 of the 2010 affidavit to the appellant's salary having 'accrued as director's fees', and to her accrued remuneration and salary, should be understood in that sense and were true.

1. The prosecution called two witnesses in support of its case.

1. Detective Sergeant Beard, the investigating officer, produced various documents obtained during the police investigation. Those documents provided evidence of the uncontroversial background noted above.

1. Jason Sim, a senior forensic accountant employed in the WA Police Force, gave expert evidence as to various 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.[24] In cross-examination, Mr Sim in effect accepted that CAT's financial statements indicated that director's fees were recorded to a running account between CAT and its directors. He accepted that, if the status of the running account was that the directors owed money to CAT, the director's fees would reduce their liability to CAT.[25] In cross-examination, the appellant also adduced evidence of Mr Sim's view that the financial records of CAT, which included multiple inconsistent versions of the same documents and had not been audited, did not enable him to form a view as to CAT's true financial position.[26] Mr Sim gave further evidence to this effect in re-examination, identifying some of the inconsistencies which made CAT's financial records unreliable.[27]

1. The appellant elected not to give evidence but adduced evidence from the following witnesses.

1. Phillip Thomas, the justice of the peace who witnessed the 2010 affidavit, gave evidence to the effect that his ordinary practice was to administer an oath when witnessing an affidavit. He recognised his signature on the 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.[28]

1. Mr Frigger gave evidence that he was a chemical engineer who was married to the appellant and was a director of CAT.[29] He said that he and the appellant visited Ms Machele several times when the primary proceedings started, including when the 2008 affidavit was signed. Ms Machele was a justice of the peace who Mr Frigger described as an 'old lady' who was 'far over 80'. Mr Frigger said that the affidavit was important 'because PSA was supposed to pay us $1 million and PSA refused to pay'.[30] Mr Frigger's evidence was that he was present when the 2008 affidavit was signed by the appellant, and Ms Machele never asked the appellant to swear an oath.[31]
2. Mr Frigger identified exhibit 29 as a modified version of the loan schedule which was annexure AF9 to the 2010 affidavit. He said that exhibit 29 was prepared by the appellant and was a 'running account to show who is owing money and who's receiving money'.[32] He said that it related to his engineering fees, which the Australian Tax Office had ruled should be treated as his income rather than CAT's.[33] In exhibit 29, entries for interest and engineering fees had been deleted, and a repayment of $750,000 was shown on 30 June 2008 (which Mr Frigger could not recall the details of). It showed that, as at 31 August 2008, the appellant and Mr Frigger owed CAT $711,750.[34]
3. Mr Frigger also identified various financial records for CAT which had been prepared by the appellant and provided to Heather Lawford (whose evidence is discussed below).[35]
4. The general effect of Mr Frigger's evidence in cross-examination was that he had a poor recollection of CAT's financial affairs, and a poor understanding of CAT's financial accounts which were prepared by the appellant.[36] While he was asked many questions about the transactions referred to in the 2010 affidavit, he had limited recollection about them.[37]
5. In re-examination, Mr Frigger gave evidence that he did not know when annexure AF9 to the 2010 affidavit was prepared.[38]

1. Heather Lawford, the director of an accounting firm, gave evidence that she had received exhibits 30 - 37 and been given access to a 'QuickBooks' data file for CAT.[39] She said that the journal entries in exhibit 30 showed director's fees being debited to the profit and loss account and credited to the directors' loan account.[40] Using the journal entries, Ms Lawford was able to extract a balance sheet for CAT as at 23 September 2008 which had the same figures as shown on exhibit 33 (a balance sheet prepared by the appellant). This indicated that, as at 23 September 2008, the directors' loan account was an asset of CAT which had a value of $667,867.07.[41]
2. 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 affidavit and 2010 affidavit, including as to whether any director's fees had been paid.[42]

1. Mervyn Kitay, who was appointed provisional liquidator of CAT in January 2010 and liquidator of CAT in May 2010,[43] was called to give evidence by the appellant. He gave evidence that the appellant's report of CAT's affairs indicated that there was a directors' loan of several hundred thousand dollars, but CAT's financial statements did not corroborate that amount. The directors' loan had been the subject of much debate and Mr Kitay had claimed in Supreme Court proceedings that the appellant and Mr Frigger owed CAT $2.6 million, or alternatively $2.356 million, on the directors' loan account.[44] Mr Kitay said that the amount of the claim had been calculated in the following manner:[45]

These amounts in this loan account, as set out here ... were founded on reconciliations of the loan accounts based on the interrogation and forensic analysis of the numerous sets of financial statements presented by [the appellant] to us and/or obtained by us in reference to [the appellant's] affidavits containing such financial informations ... which leads to a confused state of which of the financial records can be relied upon. Our analysis has sought to do a job as best as we can faced with a multiplicity of profit and loss and balance sheets for each year from, I recall, 1998 to 2010 ... where we've got all these records and we've ... created the reconciliation from that.

1. Mr Kitay's evidence was that the task was also complicated by the fact CAT did not have its own bank account and the only bank account into which funds were paid was the appellant's personal bank account.[46] In cross-examination, he confirmed the confusion created by multiple profit and loss statements and balance sheets from 2001 to 2010 and the fact that CAT's money was going into and out of the appellant's personal bank account (the records of which the liquidators had no ability to access).[47]

1. 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, to find the appellant guilty, they needed to give affirmative answers to all the following questions relating to the six elements of the charged offence:[48]
   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 AF6 and AF9, 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. After giving the directions just quoted, by reading those passages in the jury handout, the trial judge gave the following further oral directions:[49]

So let me just fine tune a little bit something that [the appellant] said in her closing. The question is not whether the statement was material. The question is whether the statement was false in a material particular.

So that's the question that you have to answer. Was the statement false in a material particular? So the requirement of materiality is focused on the significance of the falsity. And as I've said, the requirement for the statement to be false in a material particular protects an accused person from criminality liability for a minor inaccuracy or omission.

Now, in determining whether the statement was false in a material particular, you can obviously look at the statement. You can look at the context in which it was made as well. But that's a matter for you whether the statement was false in a material particular.

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. The appellant's appeal notice against her conviction was accepted for filing on 23 July 2024. On 21 August 2024, this court refused the appellant's application for bail (first bail application) and made an urgent appeal order programming the hearing of the appeal to 7 November 2024.
2. At the appeal hearing on 7 November 2024, the appellant was represented by counsel. The appellant's grounds of appeal were amended at the hearing, and ultimately were expressed in the following terms:
   1. The verdict of guilty was unreasonable and unsupported by the evidence.

a) Particular one: the correct interpretation of 'false in a material particular' requires proof that the statement was a 'material particular'.
>
> b) Particular two: no evidence was led by the State for the purpose of proving that the statements were material particulars.

2. The learned trial judge erred in law by directing the jury that the question of 'materiality' in the element 'false in a material particular' is focussed on the significance of the falsity, and neglecting consideration of whether the statement was a 'material particular'. 3. The learned trial judge erred in law by failing to direct the jury about the uses to which the evidence of 'other alleged inconsistencies' must not be put.

Ground 2: meaning of 'false in a material particular'

1. It is convenient to begin with ground 2, which raises a question of construction of s 169(1) of the Criminal Code. The question concerns the construction of the reference to a statement 'that is false in a material particular'. On the State's construction of that phrase, which was adopted by the trial judge, the term 'material' in this phrase relates to the degree of difference between the statement and the truth.
2. By ground 2, the appellant contends that the trial judge erred in law by directing the jury that the question of materiality in the element 'false in a material particular' is focussed on the significance of the falsity, and neglecting consideration of whether the statement was a 'material particular'.
3. The appellant submits that, while the focus on the significance of the falsity might impose an additional requirement on the State, the requirement for the statement to be a 'material particular' cannot be ignored in proving the element. The appellant argues that this requirement was neglected by both the prosecution and trial judge. The appellant submits that the prosecution led no evidence for the purposes of proving that the statement itself was a 'material particular'.

1. Section 169 and the related s 170 of the Criminal Code were originally enacted in the following relevant terms:
   1. Any person who, on any occasion on which a person making a statement touching any matter is required by law to make it on oath or under some sanction which may by law be substituted for an oath, or is required to verify it by solemn declaration or affirmation, makes a statement touching such matter which, in any material particular, is to his knowledge false, and verifies it on oath or under such other sanction or by solemn declaration or affirmation, is guilty of a crime, and is liable to imprisonment with hard labour for seven years. (emphasis added)

1. Any person who, on any occasion on which he is permitted or required by law to make a statement or declaration before any person authorised by law to permit it to be made before him, makes a statement or declaration before that person which, in any material particular, is to his knowledge false, is guilty of a misdemeanour, and is liable to imprisonment with hard labour for three years.
2. The provisions were not relevantly amended until 2005.[50] In 2005, the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) was enacted and replaced the earlier Declarations and Attestations Act 1913 (WA). Section 41 and s 42 of the Oaths, Affidavits and Statutory Declarations (Consequential Provisions) Act 2005 (WA) repealed s 169 and s 170 of the Criminal Code and substituted the current provisions. It does not appear from the explanatory memorandum or the second reading speech to the Bill for the latter 2005 Act that any substantive change, other than a reduction in the summary conviction penalty, was intended by this amendment.[51]
3. In their current terms, s 169 and s 170 of the Criminal Code relevantly provide:
   1. False statement on oath

(1) 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.

...

(2) Any person who knowingly makes a statement that is false in a material particular in a statutory declaration is guilty of a crime and is liable to imprisonment for 5 years.

...

(1) Any person who, being required under a written law to give information, whether orally or in writing, to another person, knowingly gives information to the other person that is false in a material particular is guilty of a crime and is liable to imprisonment for 3 years.

...

(2) Subsection (1) does not apply if the person is required to give the information on oath or in a statutory declaration.

1. Section 169 appears in ch XX of the Criminal Code, which is entitled 'Miscellaneous offences against public authority'.
2. The provisions of ch XVI of the Criminal Code, which concern 'Offences relating to the administration of justice', also form part of the statutory context in which s 169 is to be construed. The offences in ch XVI generally apply to conduct in a 'judicial proceeding', which is defined in s 120 of the Criminal Code to include:

any proceeding had or taken in or before any court, tribunal, or person, in which evidence may be taken on oath.

1. Section 124 of the Criminal Code, which is in ch XVI, creates the offence of perjury in the following terms (which have not been relevantly amended since enactment):

Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding, or intended to be raised in that proceeding, is guilty of a crime which is called perjury. (emphasis added)

1. Later parts of s 124 include provision that it 'is immaterial whether the false testimony is given orally or in writing', indicating that the offence of perjury can be committed by swearing an affidavit which is used in a judicial proceeding. Section 125 of the Criminal Code provides for a person who commits perjury to be liable to a maximum penalty of 14 years imprisonment.[52]
2. Other provisions of the Criminal Code also create offences by reference to whether a statement or information is false in a material particular.[53]

1. The State contends that the phrase 'false in a material particular' focuses attention on the quality of the falsity when compared with the underlying truth or reality of the situation or, in a case such as the present alleging irreconcilable conflict, the quality of the difference between the two or more impugned statements. The State contends that the requirement that a false statement be 'material' in this sense is to protect an accused against criminal liability for a minor inaccuracy or omission.[54]
2. The State's argument is primarily based upon the differences between the offence of perjury provided for in s 124 and the offence created by s 169(1) of the Criminal Code. The State notes that s 124 is confined to statements made in or for the purposes of judicial proceedings, while s 169 does not refer to the purpose for which the statement must be made.[55] Section 124 draws a direct link with the false testimony on oath and a 'matter which is material to any question then depending', which is very different language to that employed in s 169.[56] The State says that an offence against s 124 would also be an offence against s 169(1) but the contrary is not the case. The State says that the offence created by s 169(1) is broader in scope in that:
   1. there is no requirement that it be connected with any judicial proceeding; and
   2. there is no requirement that the false statement be of any significance to a matter relevant to a question to be determined in a judicial proceeding.
3. The State says that this explains why the offence created by s 169(1), although wider in scope than the offence created by s 124, is a relatively less serious offence which carries a lesser penalty.[57] The State argues:[58]

[T]here is also a policy reason why deliberately false statements on oath ought to be the subject of criminal sanction even if they could not have any possible bearing on the decision to be made. It is not uncommon for the criminal law to punish more serious outcomes more severely than less serious results even though there may not be any difference in the acts which led to those outcomes.

Section 169, properly interpreted in the context of the other provisions which are contained in Part III of the Code, must necessarily be designed to capture conduct that does not amount to perjury. The element of deliberate falsity is the same. However, section 169, in carrying a lesser penalty, is not concerned with where the lie was made or how important the lie was to any question to be decided. If the offence does not capture conduct which falls outside the scope of the offence of perjury (which is the effect given to the provision upon the appellant's construction) then the offence provision would be otiose. This is why, in the respondent's submission, the element that might loosely be described as 'materiality' is dealt with in a significantly different way as between the two provisions.

1. We do not accept the State's submissions summarised under the previous heading.
2. The difference in the maximum penalties for an offence against s 124 and s 169(1) of the Criminal Code is explicable by the fact that s 124 is concerned only with statements made on oath in judicial proceedings while s 169(1) is concerned with statements made on oath for any purpose. The circumstance that a statement is made on oath in a judicial proceeding, so as to have the potential to undermine or impede the due administration of justice, can be regarded as significantly exacerbating the seriousness of the conduct proscribed by s 124 of the Criminal Code.
3. Contrary to the State's submissions, the offence created by s 169(1) is not rendered otiose if the requirement for materiality in that section relates to the impact of the false statement on the purpose for which the statement is made. There are a variety of circumstances in which information may be given to officers or bodies for investigative purposes which do not involve any 'proceeding' in which 'evidence' may be taken on oath for the purposes of the definition of 'judicial proceeding' in s 120 of the Criminal Code.[59] Affidavits and statutory declarations (to which the similarly expressed s 169(2) applies) may be made for a variety of purposes in circumstances not provided for by legislation. Section 169(1) will operate in those circumstances where s 124 will not because they do not involve a 'judicial proceeding'.
4. The difference in language used in s 124 and s 169 in relation to materiality is explicable by the narrower operation of s 124 of the Criminal Code. Section 124 is concerned with statements made in or for the purpose of instituting a judicial proceeding. Section 169 is concerned with statements that may be made for a wide variety of purposes. Given that narrower scope of s 124, the reference to materiality in relation to questions depending, or intended to be raised, in the judicial proceeding is logical. The specification of a relation to a specific purpose would be difficult in the context of a provision such as s 169 where the relevant statement might be made for any purpose.
5. The State's construction of the phrase 'false in a material particular' in s 169(1) (which must have a cognate meaning in s 169(2) and s 170(1)) would produce curious results which Parliament could not have objectively intended. The following hypothetical examples relating to statements about the age of a person illustrate this point:
   1. Section 321 of the Criminal Code creates an offence of sexual penetration of a child of or over the age of 13 years and under the age of 16 years. On the State's construction, a parent of a child complainant who gave investigating police officers an affidavit containing the knowingly false statement that their child, who had recently turned 13 at the date of offence, was actually just under 16 years old at that time would commit an offence against s 169(1) of the Criminal Code. This would be on the basis of the significant difference between the child's actual and stated age, despite the falsity having no effect on the potential prosecution of that offence. However, the parent of a child who was alleged to have been sexually penetrated on 14 March 2024 who gave investigating police officers an affidavit stating that the child's 16th birthday was 13 March 2024, knowing that it was actually 15 March 2024, may not commit an offence due to the small difference between the knowingly false statement and the true position.
   2. Under s 190 of the Children and Community Services Act 2004 (WA), it is an offence to employ a child under 15 years of age in a business carried on for profit. An inspector investigating such an offence may direct a person to give information verified by statutory declaration under s 241E of that Act. On the State's construction, a person knowingly making a false statement in a statutory declaration that a child employed in a business on a particular day was 12 years old when they were actually 14 years old would commit an offence against s 169(2) on the basis of the significant difference between the child's actual and stated age. However, a person who knowingly made a false statement that the child was 14 years and 51 weeks old on that day, when the day was actually the day after the child's 15th birthday, may not offend against s 169(2) because of the small difference between the statement and the true position.
   3. Section 44(1)(c) of the Electoral Act 1907 (WA) requires a claim for enrolment as an elector to include the claimant's date of birth. Under s 17(1)(b) of that Act, only persons who have attained the age of 18 years are entitled to be enrolled. On the State's construction, a 19-year-old who falsely claimed to be 21 years old would contravene s 170(1), while a claimant who lied about being 18 a few days short of their 18th birthday may not.
6. On the State's construction, in the above examples an offence is more likely to be committed by the person who makes a knowingly false statement of no practical consequence than the person whose knowing false statement is of critical importance to the purpose for which the statement is proffered.
7. Further, the State's construction departs from the approach commonly taken to construing statutory references to a statement which is false in a material particular. The cases referred to below construe the term in significantly different statutory contexts and must be approached with caution for that reason. However, the common theme running through them is that materiality is to be assessed by reference to the purpose for which the relevant statement is made.
8. In Murphy v Griffiths,[60] s 236 of the Road Traffic Act 1960 (UK) created an offence where a person issued a test certificate for a vehicle which was, to the person's knowledge, 'false in a material particular'. This was in a context where driving a vehicle on a road without a current test certificate was an offence. A certificate with the date of issue backdated was held to be false in a material particular because the date of issue determined the date of expiry of the certificate.[61]
9. In Minister for Immigration v Dela Cruz,[62] s 20 of the Migration Act 1958 (Cth) referred to statements in an arriving passenger card, or to an officer granting a visa, that were 'false or misleading in a material particular'. The Full Federal Court held that, in the context of s 20, a statement will be false in a material particular if it was relevant to the purpose for which it was made. The court held that a statement would be relevant for that purpose if it may be taken into account in making a decision under the Act as to the grant of the visa or entry permit in respect of which the statement was made.[63]
10. In R v Maslen,[64] s 178BB of the Crimes Act 1900 (NSW) created an offence of making a statement with intent to obtain financial advantage knowing that statement to be 'false or misleading in a material particular'. Hunt CJ at CL (Sully and Smart JJ agreeing) held that the false statement would be material if it was objectively capable of inducing the provision of relevant financial advantage.[65]
11. In Gill v Chief Executive Officer of Customs,[66] s 234 of the Customs Act 1901 (Cth) created an offence of knowingly or recklessly making a statement to a customs officer that was 'false or misleading in a material particular'. It was held that a false statement would be material for these purposes if it was material to the assessment of customs duty.[67]
12. In Commissioner of State Taxation v EDI Rail (Maryborough) Pty Ltd,[68] s 75JD(4) of the Stamp Act 1921 (WA) provided for penalties where information given to the Commissioner in an application for exemption from stamp duty was 'false in a material particular or any material information is not given to the Commissioner'. McLure P (Owen and Newnes JJA agreeing) held that information must be both relevant and significant, in the sense that it is capable of influencing the outcome of the exercise of the Commissioner's relevant power, to be material.[69]
13. In Burke v Corruption and Crime Commission,[70] s 168 of the Corruption and Crime Commission Act 2003 (WA) created an offence of giving evidence to the Commission which the person knew was false or misleading in a material particular. Buss JA (Martin CJ and Mazza JA agreeing) held that the question of materiality was determined by reference to whether the evidence was material to the Commission's investigation.[71]
14. The general approach reflected in the above cases is to assess the materiality of a false statement by reference to the purpose for which the statement is made and the capacity of the false statement to affect that purpose. In our view, consistently with the above authorities and bearing in mind the very broad range of circumstances in which statements may be verified by oath, affirmation or statutory declaration, materiality 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. Where the false statement is made for the purposes of a judicial or administrative process, the question will be whether the false statement is reasonably capable of affecting the outcome of that process. In contrast to the position in relation to the offence of perjury, the materiality to which s 169 of the Criminal Code refers is to the falsity of the statement rather than the matter to which the false statement relates.[72] However, as with the offence of perjury, questions of materiality in s 169 are concerned with the capacity of the false statement to have the relevant effect rather than whether the statement actually had that effect. Questions of materiality, including the purpose for which the statement is made, 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.
15. For the above reasons, we do not accept the State's submission as to the proper construction of the reference in s 169 of the Criminal Code to a statement being false in a material particular. The issue is not whether the difference between the statement and the true position is small or 'minor', but whether the false statement is reasonably capable of affecting the outcome relevant to the purpose for which the statement is made.

1. The State's submissions raise a further question of construction of s 169 of the Criminal Code if its primary construction of that provision is rejected. In that event, the State contends that the question of materiality is a question of law for the trial judge rather than a question of fact for the jury. The appellant accepts that the question of materiality is a question of law.[73]
2. For the following reasons, we generally accept the State's submission subject to a qualification. The qualification is that the identification of the purpose for which a statement is made may be a question of fact for determination of the jury. As noted above, the purpose for which the statement is made is to be determined at the time when the statement is verified by oath or affirmation, which is the point in time at which the commission of the offence is complete. However, the question of whether the statement is reasonably capable of affecting the outcome relevant to an identified purpose for which the statement is made is a question of law for the determination of the trial judge rather than a question of fact for the jury.
3. In the context of the offence of perjury created by s 124 of the Criminal Code, questions of materiality are, at least generally, questions of law for the determination of the trial judge rather than questions of fact for the jury.[74] The same principle should be applied to questions of materiality under s 169 of the Criminal Code.
4. As explained above, materiality is not concerned with the identification of any effect which the false statement actually had, which would involve questions of fact. Rather, materiality is concerned with the effect which the false statement was reasonably capable of having. Determination of that question will ordinarily require a proper understanding of the legal framework for the decision-making which the false statement has the purpose of affecting. Where the false statement is made for the purpose of use in court or tribunal proceedings, a proper understanding of the relevant legal principles which govern the exercise of jurisdiction will be critical to assessment of materiality. Where the false statement is made for the purpose of an administrative decision by a public officer, materiality will depend on the statutory provisions which confer the relevant decision-making authority.
5. As the present case illustrates, it would be unrealistic to expect that a jury could identify and properly apply the legal principles which will determine the materiality of the false statement. For example, the 2008 affidavit was, in its terms, sworn in opposition to PSA's application for a stay of judgment pending appeal. Ascertaining whether the statement in par 22 of the 2008 affidavit was false in a material particular requires a proper appreciation of the legal principles governing the grant of a stay of judgment pending determination of an appeal. It also requires a determination of whether the statement in par 22 of the 2008 affidavit was reasonably capable of affecting the outcome of the stay application having regard to those legal principles and the relevant factual context. These are questions of law rather than questions of fact. They are not issues that a jury could be expected to properly resolve even if they were given general directions as to the applicable legal principles.
6. The analysis of the relevant principles by Wells J in Davies, discussing the law of perjury, are apposite in the present context. As his Honour noted:[75]

Questions of relevance of evidence have for centuries been the sole responsibility of the judge. Judges are accustomed, ex rerum natura, to dealing with the bearing that evidence has upon the issues to be determined by the tribunal of fact. Materiality is akin to, though not identical with, relevance. A fact, in my opinion, is material for the purposes of a charge of perjury when it is of such significance and importance, having regard to the whole of the evidence, that it is capable of affecting the decision of the appropriate tribunal of fact on the factual issue or issues, and materiality should be given a corresponding meaning[.]

1. In considering the policy rationale for this rule, Wells J later observed:[76]

The rule that materiality is for the trial judge is more than ever appropriate in this decade when administrative and semi-administrative tribunals, boards and other authorities are obliged to determine all manner of issues and for that purpose to receive evidence on oath. It would, in 1974, be quite impossible for jurors confidently and sensibly to apply their collective minds to the question as to what would or might affect the findings on fact of these tribunals whose powers, functions and procedures are not generally known, and indeed, are frequently esoteric.

1. The increasing legal complexity of court and tribunal proceedings, and the rules governing administrative decision-making, in the 50 years since Wells J made these observations tends to reinforce their veracity.
2. In our view, conformably with the approach taken in relation to the offence of perjury, the question of whether a statement made for a particular purpose is false in a material particular for the purposes of s 169 of the Criminal Code is, at least generally, a question of law for determination of the trial judge. We say 'at least generally' to account for the possibility that different considerations may arise where the purpose for which a false statement is made does not involve the application of any legal standard. That is not the present case, where the appellant's allegedly false statements were made for the purposes of legal proceedings in which legal standards must be applied in determining the question of materiality.
3. It follows, that, in an ordinary case where there is no issue as to the purpose for which a relevant statement was made, the trial judge should rule on whether the statement, if false, is false in a material particular. If the allegedly false statement is ruled not to be material, then the judge would find the accused to be not guilty of the charge on the basis that the judge was satisfied that the accused had no case to answer.[77] If the allegedly false statement was ruled to be material, then the judge would direct the jury that, if they find that the statement is false as a matter of fact, then the statement will be false in a material particular.
4. There may also be cases in which a factual issue arises as to the purpose for which an allegedly false statement was made. In such a case, the jury should generally be directed that whether a statement was made for the purposes alleged by the prosecution is a question of fact for them to determine. However, if the judge determines the allegedly false statement to be material to that purpose, then he or she will ordinarily direct the jury that, if they find that the statement was made for the alleged purpose and that the statement was false, then as a matter of law the statement will be false in a material particular.
5. In the present case, the purposes for which the 2008 affidavit and the 2010 affidavit were made was apparent on the face of each affidavit. In determining the direction which ought to have been given, this court is in as good a position as the trial judge to determine the question of law of whether the statements in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit, if false, were false in a material particular.

1. There was no issue at trial as to the purpose for which the 2008 affidavit was made. Paragraph 3 of the 2008 affidavit relevantly stated that it was made in opposition to PSA's application for a stay of the judgment which CAT had obtained in the primary proceedings. The affidavit was made in the context where CAT had obtained a judgment of over $900,000 against PSA in the primary proceedings, PSA had appealed against that judgment and PSA had applied for a stay on enforcement of the judgment pending determination of the civil appeal.
2. The principles applied on such an application are well established, and were well established at the time the 2008 affidavit was sworn. They were summarised by Murray and Parker JJ in Eastland Technology Australia Pty Ltd v Whisson:[78]
   • The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.
   • It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
   • It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
   • The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.
   • If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.
   • If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.
3. One basis on which an appeal may be rendered nugatory if a stay is not granted is where there is a real prospect that a successful plaintiff will be unable to repay the money without difficulty or delay if the appeal were to succeed.[79]
4. As such, the question of whether CAT would have the capacity to repay the judgment sum if the judgment in the primary proceedings were set aside on appeal was a critical issue on the stay application. The 2008 affidavit addressed this question by the appellant deposing that CAT had assets valued at over $2.8 million and, as deposed in par 22 of the 2008 affidavit, 'no liabilities save quarterly GST liabilities'. This was relied on by CAT to show, as indicated in par 23 of the 2008 affidavit, that 'there is no reason to stay the judgment on the ground that [CAT] would not be in a financial position to repay the sum should the [civil] appeal be successful'.
5. The statement in par 22 of the 2008 affidavit was reasonably capable of affecting the outcome of PSA's application for a stay of the judgment in the primary proceedings pending determination of the civil appeal. The fact that CAT had no liabilities save quarterly GST liabilities was likely to inform the court's assessment of whether the civil appeal might be rendered nugatory if a stay was not granted on the basis that there was a real prospect that CAT would be unable to repay the judgment sum without difficulty or delay if the civil appeal were to succeed. Convincing the court that there was no realistic prospect that the judgment sum would not be repaid if a stay was not granted and the civil appeal succeeded was the purpose for which the statement in par 22 of the 2008 affidavit was made. If the statement was false, it was plainly false in a material particular for the purposes of s 169 of the Criminal Code.

1. On or about 22 June 2010, the 2010 affidavit was filed in the primary proceedings. The affidavit was made in the context where the appellant and Mr Frigger sought a discharge of freezing orders made against them in the primary proceedings and costs.

1. The making and operation of freezing orders and ancillary orders is, and was in 2010, provided for by O 52A of the Rules of the Supreme Court 1971 (WA). Order 52A has not been materially amended since it was made in 2007.
2. Under O 52A r 2(1), the court may make a freezing order for the purpose of preventing the frustration or inhibition of the court's process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied. Under O 52A r 2(2), a freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.
3. Under O 52A r 5(4), the court may make a freezing order against a judgment debtor or prospective judgment debtor:

if the Court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur -

...

(b) the assets of the judgment debtor, prospective judgment debtor or another person are -

(ii) disposed of, dealt with or diminished in value.

1. Under O 52A r 5(5), the court may make a freezing order against a person other than a judgment debtor or prospective judgment debtor (a third party):

if the Court is satisfied, having regard to all the circumstances, that -

(a) there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because -

(i) the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or

(ii) the third party is ... in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor;

(b) a process in the Court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.

1. In Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq),[80] this court summarised the principles applied in the exercise of the court's discretion under O 52A r 5(4) of the Rules of the Supreme Court to the following effect.
2. Under O 52A r 5(4), the court must be satisfied of three elements:[81]
   1. one or more of the events described in O 52A r 5(4)(a) or r 5(4)(b) might occur;
   2. there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied; and
   3. that danger arises because one or more of the events described in O 52A r 5(4)(a) or r 5(4)(b) might occur.
3. It is not sufficient for the court to conclude that one or more of the events described in O 52A r 5(4)(a) or r 5(4)(b) might occur. The court must be satisfied that the identified danger arises because one or more of those events might occur. That is, the court must be satisfied that there is a causal connection between the event and the danger.[82]
4. The events referred to in O 52A r 5(4)(a) and r 5(4)(b) must give rise to a 'danger' that a judgment or prospective judgment will be wholly or partly unsatisfied. The reference to a 'danger' is to a risk of that outcome.[83] The court in Duro Felguera observed:[84]

The risk or danger must be real or substantial, as opposed to a remote, speculative or theoretical possibility. The applicant must prove facts from which the court can infer the existence of a real or substantial risk or danger that the respondent will dispose of or otherwise deal with its assets in a way such that the applicant will not be able to satisfy any judgment obtained against the respondent. The facts from which the risk or danger is to be inferred must be proved on the balance of probabilities. However, it is not necessary to establish that it is more probable than not that judgment will be unsatisfied unless a freezing order is made. (citations omitted)

1. An applicant for a freezing order does not need to show that the respondent to the application has acted for the purpose of avoiding the satisfaction of judgment before a freezing order can be granted.[85] If the effect of a dealing is to give rise to a danger that a prospective judgment will be wholly or partly unsatisfied, then the jurisdictional requirement in O 52A r 5(4)(b) will be satisfied irrespective of the purpose for which the respondent may act. The court is able to protect the exercise of its jurisdiction by preventing its frustration by conduct which is not intentionally directed to that end.[86]
2. However, as the court recognised in Duro Felguera:[87]

That is not to say that the purpose for which a respondent may enter into a transaction, or the irregular nature of the transaction, will be irrelevant to the exercise of the power to grant a freezing order.

If there is evidence that a respondent intends to act with the purpose of frustrating the satisfaction of a judgment, that will be a powerful discretionary consideration once the court is satisfied of the existence of the danger referred to in O 52A r 5(4)(b).

Further, evidence as to such an intention held by the respondent will be a factor pointing towards the existence of a real or substantial risk that a prospective judgment will be unsatisfied because assets might be dealt with. If the evidence demonstrates that the respondent may act for that purpose then it may readily be inferred that there is a real or substantial risk of the purpose being achieved.

Conversely, when the court exercises its discretion having found the jurisdictional requirement to be satisfied, the absence of any purpose of defeating the court's process or any irregularity in the transaction will be a relevant factor. For example, it is difficult to see how the discretion would be exercised in favour of granting a freezing order where the danger referred to in O 52A r 5(4)(b) arose only because of dealings, such as the payment of normal trading debts, in the ordinary course of trade. In such a case, while the court may be satisfied of the existence of a danger that judgment will be unsatisfied because of such dealings, the court would not exercise its discretion to make a freezing order. It remains the case that a freezing order is not made under O 52A only for the purpose of providing security for judgment or preventing insolvency.

1. Similar considerations will be relevant to the exercise of the discretion to make a freezing order under O 52A r 5(5) of the Rules of the Supreme Court, which is based on the language employed by the High Court in Cardile v LED Builders Pty Ltd.[88]

Factual context in which the 2010 affidavit was sworn

1. The 2010 affidavit was sworn in the following context established by the evidence adduced at trial.
2. During June 2009, PSA paid CAT $1,165,661.54, being the sum of the judgment in the primary proceedings given on 9 July 2008 and calculated interest.[89]
3. On 23 October 2009, this court made orders allowing the civil appeal from the judgment in the primary proceedings, setting aside the award of damages of $967,202.50 plus interest in the primary proceedings and substituting an award of damages to CAT of $285,624.50 plus interest. Orders about disputed matters were programmed for determination on the papers.[90]
4. Also on 23 October 2009, the appellant and Mr Frigger registered notification of a fixed charge given to them by CAT on 10 September 2009 over 'all proceeds from legal proceedings Supreme Court + Magistrates Court' to secure a loan of $2 million from the appellant and Mr Frigger.[91]
5. On 13 November 2009, Registrar's caveats were registered over the Edward Street property and the Armadale property, of which CAT was registered proprietor and trustee, to protect the beneficiaries of the FSF.[92]
6. On 3 December 2009, PSA applied in the primary proceedings for a freezing order and ancillary orders against CAT, including a freezing order providing that CAT must not remove from Australia or in any way dispose of, deal with or diminish the value of its assets in Australia up to the encumbered value of $850,000.[93] The affidavit of Donald Campbell-Smith sworn on 3 December 2009 in support of PSA's application concluded with the statement that:[94]

I do not know whether [the appellant and Mr Frigger] have purported to enforce the charge in any respects and/or whether [CAT] now has the ability to pay the prospective judgment given the charge and the claims which appear to underpin the caveats. I am concerned and do verily believe that the conduct of [CAT] and [the appellant and Mr Frigger] in registering the charge and the caveats has been designed to frustrate or inhibit the Court's process by preventing repayment by [CAT] to [PSA and Mr Banning] of prospective judgment. I hold this belief in part because the apparent effect of the charge and the caveats is to confer a preference upon [the appellant and Mr Frigger] to the detriment of other creditors of [CAT] including [PSA and Mr Banning].

For these reasons it is respectfully submitted that freezing and ancillary orders should be made in terms of the application filed herein.

1. On 7 December 2009, this court made final orders in the civil appeal including orders requiring CAT to pay PSA and Mr Banning amounts totalling $775,822.72 plus interest.[95]
2. On 16 December 2009, Simmonds J made a freezing order which relevantly provided that:[96]
   1. The appellant and Mr Frigger must not take any steps to enforce the payment to them of any amount claimed to be owing to them by CAT pursuant to a Deed of Charge dated 10 September 2009 or otherwise.
   2. The appellant and Mr Frigger must not take any steps to replace CAT as trustee of any trust of which CAT was then the trustee.
   3. The appellant and Mr Frigger must not take any steps to deal with or diminish the value of identified assets of CAT.
   4. Subject to liberty granted to apply to vary or discharge the order, the order had effect up to 22 January 2010 when there would be a further hearing in respect of the order.
3. The orders made by Simmonds J on 16 December 2009 also included ancillary orders requiring the appellant and Mr Frigger, by no later than 20 January 2010, to file an affidavit deposing to specified financial affairs of CAT including 'all liabilities [CAT] owes to any person and the amount of those liabilities at the date of swearing the affidavit'.[97]
4. Simmonds J reached the conclusion that the making of freezing and ancillary orders was appropriate by reference to both O 52A r 5(5)(a) and r 5(5)(b) of the Rules of the Supreme Court.[98]
5. The freezing order was subsequently extended on various occasions as matters related to the winding up of CAT were dealt with, culminating in a decision of Master Sanderson on 6 May 2010 that CAT should be wound up in insolvency.[99] The freezing order was further extended until further order and the matter was adjourned to a hearing on 5 July 2010.[100]

1. The 2010 affidavit was sworn by the appellant on 22 June 2010. The purpose of the affidavit was stated in the following terms:[101]
   1. I swear this affidavit as a composite affidavit of the matters for which I can give evidence and which are to be relied on in the further hearing regarding the freezing orders made by this Honourable Court on 16 December 2009. I swear this affidavit to support the discharge of those orders and for costs of the application to be awarded to my husband and me.
   2. More particularly, this affidavit is to explain the following transactions by [CAT:]

1. The purchase and transfer of the [Edward Street Property]. 2. The purchase and transfer of the [Armadale Property]. 3. Repayment of the loans in relation to the above purchases. 4. The payments made by [CAT]:

(i) of $999,999 in January 2009 to the [FSF];
>
> (ii) payment in June 2009 of $1,165,661.54 to my husband (as trustee of the FSF).

2. The 2010 affidavit then deposed to the purchase of the Edward Street property by CAT in 2001 using $452,450 borrowed from the appellant and Mr Frigger to pay the purchase price and stamp duty. It deposed that the terms of the loan were that interest at 8.5% per annum would 'not be paid but would accrue and be added to the loan made'.[102] The funds lent by the appellant and Mr Frigger were sourced from a loan from their bank, which they repaid between 2001 and 2008 from 'our own income and funds'.[103] The appellant deposed:[104]

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. (emphasis added)

1. The appellant deposed that, in about 2007, the Edward Street property was transferred to the FSF by a stamped transfer which indicated that the consideration was $1.[105] A valuation of the Edward Street property was obtained in the amount of $800,000 which was used for taxation and accounting purposes.[106] The appellant attached at AF4 the 'relevant accounts' of the FSF and CAT, which included the balance sheet of CAT as at June 2007 and June 2008. The balance sheets identified CAT's liabilities on each date as a directors' loan of $2,963,658.62 as at June 2007 and $2,730,800.61 as at June 2008.
2. The appellant deposed that CAT purchased the Armadale property in 2003 using the same investment strategy. The appellant and Mr Frigger borrowed and on-lent the $701,875 used to purchase this property and pay stamp duty. The Armadale property was transferred to the FSF on 1 July 2008, at which time a valuation of the property at $523,000 was obtained.[107]
3. The appellant deposed that, on 1 September 2003, the directors of CAT resolved to use any judgment sum awarded to CAT in the primary proceedings to repay the loans with which CAT had purchased the Edward Street property and the Armadale property.[108] The appellant reiterated that CAT did not make any repayments of principal or interest to herself and Mr Frigger during the period December 2001 to June 2008, and that the pair used their own personal funds and income to repay the bank loan.[109]
4. Paragraph 22 of the 2010 affidavit then 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

1. The appellant then deposed to Mr Frigger obtaining overseas contracts as a commissioning engineer and 'his income was earned in CAT's name'. She then set out a schedule of engineering income which CAT earned in the period 2002 to 2009, which totalled $1,003,875.58.[110]
2. The appellant deposed that, on 1 October 2008, as part of a transition to retirement, she and Mr Frigger, as directors of CAT, passed a resolution which 'ratified the transfer of the two real estate properties to the FSF as part repayment of the loan we had made to CAT'.[111] On the same date, declarations of trust over the properties were registered and, on advice from Landgate, were lodged with Landgate. The appellant deposed that, '[o]nce the declarations of trust were lodged, the Registrar registered a caveat on the titles to give notice to third parties of the interests of the FSF'.[112]
3. The appellant deposed that, on or about 2 January 2009, a deposit of $999,999 held by CAT was 'applied in further reduction of the loan account and transferred to the FSF as non-concessional contributions on behalf of my husband and myself'.[113] After describing legal advice which she received concerning the prospects of success in the civil appeal,[114] the appellant said:[115]

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.

1. The appellant deposed that, on or about 9 June 2009, PSA and Mr Banning paid $1,165,661.54 to CAT 'in part payment of the judgment sum'. In accordance with CAT's resolution of 1 April 2009, 'this amount was transferred in further reduction of the directors' loan account'. The appellant deposed:

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 ... (emphasis added)

The appellant identified annexure AF9 to be a 'schedule of the loan'. The appellant said that the loan schedule did not include approximately $175,000 in legal costs paid by the appellant and Mr Frigger on behalf of CAT in the 2009/2010 year.[116]

1. The loan schedule showed the advance of $452,450 on 19 December 2001 in respect of the purchase of the Edward Street property and the advance of a total of $701,850 on various dates in 2003 and 2004 in respect of the purchase of the Armadale property. Interest is charged on the outstanding balance of the loan each month at the rate of 8.5% per annum. The appellant's remuneration deposed to at par 22 of the 2010 affidavit is included under the 'principal' column of the loan schedule, is generally designated 'directors fees' and increases the outstanding balance of the loan. The 'engineering income' referred to at par 24 of the 2010 affidavit is likewise included under the 'principal' column of the loan schedule and increases the outstanding balance of the loan. The only repayments of the loan noted in the loan schedule are:
   1. $800,000 on 31 July 2007 (being the assessed value of the Edward Street property);
   2. $523,000 on 31 July 2008 (being the assessed value of the Armadale property);
   3. $999,999 on 31 January 2009 (described as 'repayment principal/interest' and being the amount referred to at [143] above); and
   4. $1,165,661.54 (described as 'refund of engineering fees' and being the judgment sum referred to at [144] above).
2. The loan schedule also shows the outstanding balance of the loan to be $2,963,658.62 as at June 2007 and $2,730,800.61 as at June 2008, consistently with the balance sheets referred to at [137] above.
3. After describing the civil appeal hearing on 22 July 2009, the appellant deposed that, on 10 September 2009, 'pursuant to the directors' resolution of 1 April 2009 CAT executed a Fixed Charge to secure the loans my husband and I had made to CAT'.[117]
4. The 2010 affidavit then goes on to depose to other matters which it is unnecessary to summarise in these reasons.

Materiality of the statement in par 22 of the 2010 affidavit

1. An express purpose of the 2010 affidavit was to seek a discharge of the freezing order that had been made on an interim basis on 16 December 2009 at the further hearing regarding the matter. Relevant to the exercise of the discretion to discharge or continue the freezing order was whether the transfer of property and funds to the FSF described above was done to discharge a pre-existing liability of CAT to the appellant and Mr Frigger or was simply a mechanism for avoiding repayment of the judgment sum to PSA and Mr Banning. If the transfer and payments had discharged a loan liability of CAT that predated payment of the judgment sum by PSA, then that would count significantly against the continuation of the freezing order.
2. The appellant's assertion in the 2010 affidavit was that the transfer of property and funds from CAT to the FSF was in discharge of a pre-existing loan liability. The liability to pay the director's fees referred to in par 22 of the 2010 affidavit was a significant component of the outstanding loan balance allegedly owed by CAT to the appellant and Mr Frigger. The existence of that liability was part of the explanation of why the impugned property transfer and payments had been made for reasons other than avoiding the repayment of the judgment sum. In that way, the statement to the effect that the amount of the appellant's 'accrued salary' as at 23 September 2008 (ie the sworn date of the 2008 affidavit) was $426,534 was material to the exercise of the court's discretion. Further, it was reasonably capable of affecting the exercise of the court's discretion to discharge or continue the freezing order at the hearing which was forthcoming at the time the 2010 affidavit was sworn.
3. In reaching the above conclusion we do not overlook the fact that, as events transpired, there was no contested hearing and PSA and Mr Banning consented to the discharge of the freezing order.[118] However, as noted above, any offence against s 169 of the Criminal Code based on the 2010 affidavit was complete at the point the appellant swore that affidavit. Questions of materiality are to be determined by reference to that point in time and the purpose for which the 2010 affidavit was sworn, rather than the use which was ultimately made of the 2010 affidavit.
4. There is a further way that the statement in par 22 of the 2010 affidavit would be material, even if it was never to be used in a contested hearing concerning the continuation or discharge of the freezing order. It was also a stated purpose of the 2010 affidavit to support orders awarding costs of the application for a freezing order to the appellant and Mr Frigger. In determining the question of costs absent either an agreement or contested determination of the merits of the application for a freezing order, the court may award costs against a party who has acted unreasonably or in favour of a party who the court regards would almost certainly have succeeded if the matter had been fully tried.[119] In that event, the statements in the 2010 affidavit, including those in par 22, were material as they would be reasonably capable of affecting the exercise of the court's costs discretion. They could show that the conduct of CAT in resisting the freezing order was not unreasonable so that it was not appropriate to make an order for costs against CAT. This was the way in which the 2010 affidavit was in fact used by Simmonds J in making costs orders on the freezing order application.[120] If the statements in the 2010 affidavit had been accepted then they might have formed the basis of a costs order in favour of CAT if the explanations for the transactions led the court to the view that CAT would have almost certainly succeeded if the matter had been fully tried.
5. For these reasons, the statement in par 22 of the 2010 affidavit to the effect that the amount of the appellant's 'accrued salary' as at 23 September 2008 (ie the sworn date of the 2008 affidavit) was $426,534 was material. If the statement that, as at 23 September 2008, CAT had accrued debts to the appellant was false, then it was false in a material particular for the purposes of s 169 of the Criminal Code.

The direction which ought to have been given in the present case

1. Therefore, if either statement which the State alleged to have been made in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit was false, it would have been false in a material particular. The trial judge should have given the jury a direction of law to that effect. The trial judge erred in directing the jury, in effect, that the requirement of materiality was for them to determine. The trial judge also erred in directing the jury that the question of 'materiality' in the element 'false in a material particular' is focussed on the significance of the falsity, in the sense that it protects an accused person from criminal liability for a minor inaccuracy or omission.
2. The trial judge's direction on materiality involved a wrong decision on a question of law for the purposes of s 30(3)(b) of the Criminal Appeals Act 2004 (WA).[121] Although it was an error entirely in the appellant's favour, it was material in the sense that it could have affected the jury's verdict. The question of whether that error should lead to the appeal being allowed is best dealt with under the auspices of the 'proviso' in s 30(4) of the Criminal Appeals Act. Before doing so, we will deal with the other grounds.

1. Ground 1 contends that the verdict of guilty was unreasonable and unsupported by the evidence. The relevant legal principles for assessing whether a verdict of guilty should be set aside because it is unreasonable or cannot be supported, within the meaning of s 30(3)(a) of the Criminal Appeals Act are well established. They were recently summarised in Loh v The State of Western Australia [No 2],[122] in the following terms:
   1. It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported.
   2. An appellate court must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in all the circumstances to permit the verdict to stand.
   3. The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence).
   4. The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction.
   5. The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
   6. The appellate court's function is to determine for itself whether the evidence at trial was sufficient in nature and quality to remove any reasonable doubt that the accused was guilty of the offence charged. The critical issue is whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the jury can be taken to have had by reason of having seen and heard the evidence at trial.
   7. The appellate court examines the trial record to ascertain whether, despite the jury's advantage in having seen and heard the witnesses in the context of the trial, the jury, acting rationally, should have entertained a reasonable doubt as to proof of guilt.
   8. The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
   9. The setting aside of a jury's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step. Trial by the appellate court is not to be substituted for trial by jury.
   10. The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict.
   11. The nature and extent of the appellate court's task, in a particular case, will be informed by the elements of the offence, the accused's defence, the issues in contest at the trial, the manner in which the trial was conducted, the way in which the case was ultimately left to the jury, and the particulars of the ground of appeal.

1. The last of these points is significant in the present case. The particulars to ground 2, in effect, contend that the evidence at trial could not satisfy the jury, beyond reasonable doubt, that, if the statements in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit were false, they were false in a material particular.
2. For the reasons given in dealing with ground 2, the evidence led at trial did establish that, if either statement was false, it was false in a material particular. Therefore ground 1, as particularised, is not established.
3. However, as a matter of caution and completeness, we will consider whether the evidence at trial established the other elements of the charged offence. For the following reasons, in our view the evidence at trial established, beyond reasonable doubt, each of the elements of the charged offence against s 169 of the Criminal Code.

1. In the previous conviction appeal reasons, this court identified the following elements of the offence against s 169 of the Criminal Code:[123]

(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.

1. The court held that it was open to the State to run its case as to falsity in the following manner:[124]

[T]he 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.

1. The court held that, in running its case in this manner, the State was required to establish the element of knowledge of falsity, by reference to both possibilities. The court observed:[125]

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.

1. The trial judge at the appellant's first trial was found to have erred in framing the issue as the appellant knew, when she swore the affidavits, that they contained material statements that conflicted irreconcilably in a material particular.[126] The court held that the trial judge at the appellant's first trial:[127]

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.

1. It appears from the passages quoted at [162] and [163] above that the element of knowledge is concerned with the falsity of the statement rather than an appreciation by the accused that the false statement was material in the sense described above. That meaning is consistent with the statutory text, understood in its historical context. As noted at [69] above, s 169 as originally enacted referred to a statement which, in any material particular, was to the knowledge of the person false. That formulation made it clear that the requirement of knowledge related to the falsity rather than the materiality of the statement. The language of s 169 as it was re-enacted in 2005 is less clear. However, as noted at [70] above, it was not a purpose of the re-enactment to substantively alter the elements of the offence. In that context, the reference in the current text of s 169 to a person knowingly making a statement which is false in a material particular is to be read as a person knowingly making a false statement which is objectively material in the sense described above.

1. There was no issue as to identity in the present case. The affidavits were on their face signed by the appellant and there was no evidence to suggest that some other person made the statements in the affidavits.

1. There was also no real issue at trial that, in par 22 of the 2008 affidavit, the appellant made the statement alleged by the prosecution, namely that, as at 23 September 2008, CAT had no liabilities save for quarterly GST liabilities. That statement was expressly made in those terms and no other meaning is capable of arising from the context in which the statement was made.
2. There was an issue at trial as to whether, in par 22 of the 2010 affidavit, the appellant made the statement alleged by the prosecution, namely that, as at 23 September 2008, CAT had accrued debts to her. We are satisfied, beyond reasonable doubt, that the appellant made this statement in par 22 of the 2010 affidavit. Any ambiguity in the reference in that paragraph to the appellant's 'remuneration which was accrued', and to her accrued remuneration and salary, was removed by the loan schedule in annexure AF9 which showed that the director's fees had been added to the outstanding loan balance so as to constitute an accumulating debt owed by CAT to the appellant and Mr Frigger. Any ambiguity was also removed by the balance sheets referred to at [137] above, which referred to CAT's liabilities as a directors' loan in an amount equal to that indicated in the loan schedule which included a liability in respect of director's fees.
3. That meaning of par 22 of the 2010 affidavit is consistent with Mr Sim's evidence that, ordinarily, references to accruals in accounting terms is to revenue or expenses that have been earned or incurred but not paid.[128] It is also consistent with the evidence of Ms Lawford that, in accounting terms, a reference to accrued director's fees is ordinarily a reference to director's fees that are waiting to be paid.[129]
4. That meaning of par 22 of the 2010 affidavit is also consistent with the use of the term 'accrual' in other references in that affidavit, which clearly refer to unpaid liabilities of CAT. In par 9, the appellant deposed that interest on the loan for the Edward Street property 'would not be paid but would accrue and be added to the loan funds'. In par 12 she deposed that between 2001 and 2008, debt due from CAT to the appellant and Mr Frigger 'increased by the amount of the interest that accrued on our loan to CAT'. In par 32, she deposed to the loan having increased by unpaid remuneration entitlements due to Mr Frigger which 'having accrued but not having been paid' was added to the loan.
5. At trial the appellant relied on evidence of Ms Lawford to the effect that financial records of CAT produced to Ms Lawford by the appellant showed that director's fees were paid to the appellant by being credited to the directors' loan account. She also relied on evidence that these financial records indicated that the directors' loan account was in positive balance, meaning that the appellant and Mr Frigger owed CAT $667,868.07 as at 23 September 2008.[130] However, the financial records were not audited and had been prepared by the appellant. Mr Sim and Mr Kitay gave uncontradicted evidence as to the confused state of CAT's financial records, including the existence of multiple inconsistent versions of the same documents. Given that evidence, it was well-open to the jury to be satisfied that the financial records on which Ms Lawford's opinion was based were not accurate and reliable. But even if the financial records provided by the appellant to Ms Lawford were accepted to be accurate and reliable, they would merely tend to show that the contrary statements in the 2010 affidavit were false. Ms Lawford's evidence about those financial records, if accepted, does not alter the meaning conveyed by par 22 of the 2010 affidavit read in the context of the rest of that affidavit.

1. Section 4 and s 7(1) of the Oaths, Affidavits and Statutory Declarations Act provides the form in which an oath is to be administered. Under s 16 of that Act, the validity of an oath is not affected by the fact that:
   1. the person taking the oath does not use the exact words required as long as the words actually used do not materially affect the substance of the exact words and are not likely to mislead; or
   2. the required procedure for taking the oath is not followed exactly as long as the procedure actually followed substantially complies with the required procedure.
2. Both the 2008 affidavit and the 2010 affidavit stated, in the opening words, body and jurat of the affidavits, that they were sworn by the appellant. The jurats indicated that they were sworn before a justice of the peace: Ms Machele in the case of the 2008 affidavit and Mr Thomas in the case of the 2010 affidavit. The affidavits themselves are strong evidence that each affidavit was sworn before a justice of the peace.
3. Ms Machele did not give evidence at trial. This is unsurprising given that Mr Frigger's evidence was that, in 2008, Ms Machele was 'an old lady' who was 'far over 80'.[131] Mr Frigger's evidence at trial that he had a recollection of the signing of this particular affidavit about 16 years earlier, and that no oath was administered, is inherently implausible and was rightly rejected by the jury.
4. Mr Thomas understandably did not recall the appellant swearing the affidavit but identified his signature on the 2010 affidavit and confirmed that his usual practice was to administer an oath or affirmation. Nothing in his evidence gives reason to doubt that, as indicated on the face of the 2010 affidavit, he administered the oath when that affidavit was signed by the appellant in his presence. The fact that the affidavit states that it was sworn at Applecross, and Mr Thomas' evidence was that he worked as a justice of the peace in Booragoon, Perth and Fremantle,[132] does not provide any basis for doubting that the affidavit was sworn when the appellant signed it before him.
5. The trial record as a whole does not leave us with any reasonable doubt that the statements in both the 2008 affidavit and the 2010 affidavit were made under oath.

1. The statements made in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit were irreconcilable. Paragraph 22 of the 2008 affidavit stated that, as at 23 September 2008, CAT had no liabilities save quarterly GST liabilities. Paragraph 22 of the 2010 affidavit stated that, as at 23 September 2008, CAT had accrued debts to the appellant in the amount of $426,534. The statements could not both be true. At least one of the statements must have been false. As noted above, it was not necessary for the State to prove which statement was false.
2. For the reasons explained in dealing with ground 2, if either of the two statements was false then it was false in a material particular.

Whether the appellant knew the relevant statement was false

1. The evidence established the following uncontroversial facts:
   1. The appellant was at all material times a director of CAT.
   2. The appellant was a qualified accountant.
   3. As is apparent from the content of the 2008 affidavit and 2010 affidavit and indicated by Mr Frigger's evidence, the appellant was intimately involved in managing the financial affairs of CAT at all material times.
2. In our view, the only reasonable inference to be drawn from these facts is that the appellant was, at the time of swearing the 2008 affidavit and the 2010 affidavit, aware of whether or not CAT owed a significant debt to her as at 23 September 2008. At the time she swore each affidavit, the appellant must have known of the falsity of whichever of the statements in par 22 of the 2008 affidavit or par 22 of the 2010 affidavit was false.
3. The appellant did not give evidence at trial, and there was no other admissible evidence indicating that the appellant's subjective understanding of the meaning of par 22 of the 2010 affidavit differed from its objective meaning. The meaning of par 22 of the 2010 affidavit, read with the balance sheet and loan schedule annexed to the affidavit, was unambiguous particularly to a qualified accountant. The only reasonable inference is that the appellant appreciated that par 22 of the 2010 affidavit stated that, as at 23 September 2008, CAT had accrued debts to her which remained unpaid.
4. Evidence of CAT's accounting records referred to at [170] above does not provide a basis for doubting that the appellant knew of the falsity of whichever statement was false. That evidence would tend to support a conclusion that it was the statement in par 22 of the 2010 affidavit which was false and the appellant must have known this to be the case.
5. The evidence at trial is inconsistent with the appellant holding a belief, at the time she made each affidavit, that all of the statements in the 2008 affidavit and the 2010 affidavit were true. The 2008 affidavit stated that, as at 23 September 2008, CAT had no liabilities save quarterly GST liabilities. The 2010 affidavit deposed to large liabilities of CAT owed to the appellant and Mr Frigger as at 23 September 2008, arising from the purchase of the Edward Street property and the Armadale property. The appellant must have appreciated that, in making either the 2008 affidavit or the 2010 affidavit, she was presenting a false picture of CAT's financial position. That inevitable conclusion supports the inference that the appellant must have known of the falsity of whichever of the statements in par 22 of the 2008 affidavit or par 22 of the 2010 affidavit was false.
6. Taken as a whole, the evidence at trial established beyond reasonable doubt that, when she swore the affidavit, the appellant had knowledge of the falsity of the statement in par 22 of the 2008 affidavit, if that statement was false. The evidence at trial, taken as a whole, also established beyond reasonable doubt that, when she swore the affidavit, the appellant had knowledge of the falsity of the statement in par 22 of the 2010 affidavit, if that statement was false.

1. In the present case, there is no need to resort to the jury's advantage in having seen and heard the evidence given at trial. Our assessment of the totality of the evidence leaves us with no reasonable doubt in relation to any of the elements of the charged offence. We are not satisfied that it would be dangerous to permit the verdict of guilty to stand, or that there is a significant possibility that an innocent person has been convicted.
2. In reaching this conclusion, we have not referred to all of the evidence which the appellant adduced at trial or her submissions in respect of that evidence. Much of what the appellant put forward at trial was misconceived, irrelevant or a distraction from the essential questions which the jury was required to determine. There is little to be gained by summarising those parts of the trial record in these reasons, especially where the particulars of the ground are confined to the issue of materiality. While we have considered the whole of the trial record, in these reasons we have focused on the parts of the trial record of significance to the question of whether each element of the offence has been proved beyond reasonable doubt.

Ground 3: direction as to use of other inconsistencies

1. Ground 3 contends that the trial judge erred in law by failing to direct the jury about the uses to which the evidence of 'other alleged inconsistencies' must not be put. The 'other alleged inconsistencies' referred to are inconsistencies which the prosecutor alleged existed between parts of each affidavit other than the inconsistency between par 22 of the 2008 affidavit and par 22 of the 2010 affidavit which was the particularised subject matter of the charge.

1. In opening, the prosecutor said that, before coming to the elements of the offence and the director's fees, he wanted to deal with 'other irreconcilable differences' between the 2008 affidavit and the 2010 affidavit.[133] The prosecutor said:[134]

And the State will be saying, at the end of this trial, these irreconcilable differences between the two affidavits will demonstrate two things.

The first thing is that [the appellant] was dishonest. That's what the State will be saying. That is the State's case. That she is unreliable is the second.

The evidence that I'm talking about in my opening is the evidence in [the appellant's] affidavits. You will see that for yourself during this trial, and other documents that have been collected by the WA Police. They are in written from and they will be before you in this trial.

The irreconcilable differences in two affidavits is part of the essential context in which to understand the representations made by [the appellant] about the directors' loans and the director's fees.

1. The prosecutor then identified the following inconsistencies between the affidavits:[135]
   1. In the 2008 affidavit, the appellant said that the Edward Street property was still owned by CAT as at 23 September 2008 and was unencumbered, while the 2010 affidavit deposed that ownership of the Edward Street property was transferred to the FSF on 1 July 2007.
   2. In the 2008 affidavit, the appellant said that the Armadale property was still owned by CAT as at 23 September 2008 and was unencumbered, while the 2010 affidavit deposed that ownership of the Armadale property was transferred to the FSF on 1 July 2008.
   3. In the 2008 affidavit, the appellant deposed that CAT had no liabilities as at 23 September 2008, while the 2010 affidavit deposed that CAT's purchase of the Edward Street property and Armadale property was funded by directors' loans which were still outstanding in 2010.
   4. In the 2008 affidavit, the appellant identified CAT's assets on 23 September 2008 as including the Edward Street property, the Armadale property, and a term deposit of $999,999, while the balance sheet annexed to the 2010 affidavit did not list any of these assets.
2. The prosecutor then dealt with the elements of the offence, stating in relation to the element of falsity:[136]

And to be clear, the material particular in respect of the irreconcilable difference in the 2008 and 2010 affidavit is what is found at those paragraphs, and they both happen to be at paragraph 22 in both of the affidavits. In the 2008 affidavit, [the appellant] says:

As at 23 September 2008, CAT had no liabilities save for quarterly GST.

And in the 2010 affidavit, and the loan schedule, she says as at 23 September 2008, CAT had accrued a debt in the form of director's fees which were owed to her. The State says the statements conflict irreconcilably. The State will be saying one of the statements must be false, because they cannot both be true.

1. The prosecutor's closing address to the jury as to the elements of the offence made it clear that the inconsistency the subject of the charge was between statements made in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit.[137] The prosecutor then turned to the element of knowledge, accepting that the State needed to prove that the only reasonable inference open on all of the evidence was that, whichever of the statements was false, the appellant knew that it was false at the time she swore the affidavit containing the statement. The prosecutor said that he would draw attention to three groups of facts in relation to the inference as to the knowledge element:[138]
   1. The appellant's knowledge of CAT.
   2. The appellant's motivation when she made each of the statements.
   3. Other material inconsistencies between the two affidavits, which the State said demonstrated that the appellant was 'dishonest, inaccurate and unreliable'.
2. After identifying the other material inconsistencies relied on for the third of these points consistently with what is set out at [188[139] above,139 the prosec[140]r said:140

The evidence establishes [the appellant] was motivated to make statements in an attempt to put herself and CAT in the most favourable position, conditional on what was required, regardless of whether it was true or not. In 2008, it was to defeat the stay judgment in order to receive the judgment amount from PSA, Mr Banning, and in 2010, it was to defeat the freezing and ancillary orders.

The State says the evidence establishes [the appellant] knew one, if not both, statements were false. CAT was her company, [the appellant] was the informed and active director and accountant and the loan was owed to her. The State says the only reasonable inference, given [the appellant's] role in the business, her occupation as an accountant, and that whichever of the statements was false, [the appellant] knew of the falsity when she made that statement.

1. The trial judge's direction summarised the submissions referred to at [190] and [191] above as part of his Honour's summary [141]the State's case.141 The trial judge did not give the jury any direction of law as to the uses to which evidence of the other inconsistencies between the 2008 affidavit and the 2010 affidavit could not be put.

1. The appellant's written submissions do not take issue with the 'other irreconcilable differences' being utilised by the jury in drawing an inference as to the appellant's knowledge. However, the appellant submits that the prosecutor essentially invited the jury to find that the appellant was the type of person who engaged in dishonest conduct, who made false statements in affidavits and who is the type of person who would act in pursuit of an outcome that was favourable to her regardless of the truth. The appellant submits that, even if this was not the prosecutor's intention, there was a risk that the jury might engage in this type of reasoning without invitation. It is contended that, as the State did not rely on propensity reasoning and the trial judge did not give a propensity direction, it was incumbent upon the trial judge to direct the jury that they must not engage in that type of reasoning.
2. In oral submissions, counsel for the appellant identified the risk which a direction was required to guard against as the risk that the jury might reason that the appellant must have knowingly made a false statement in par 22 of the 2008 affidavit or par 22 of the 2010 affidavit because she had a tendency to lie or make false statements and was the type of person who would do so.[142] Counsel identified the direction which ought to have been given in the following terms:[143]

The jury should have been directed that they must not reason on the basis of the evidence of the other conflicts that the accused was the kind of person who was likely to have committed the charged offence.

1. Although framed as alleging an error of law, ground 3 must be treated as alleging a miscarriage of justice within the meaning of s 30(3)(c) of the Criminal Appeals Act. The mere failure to give a direction which was not sought at trial to guard against a risk of impermissible use of evidence by the jury does not involve a wrong decision on a question of law for the purposes of s 30(3)(b) of that Act.
2. The following general principles, summarised by this court in KHA v The State of Western Australia,[144] are well established:

A judge is bound to give a direction to the jury if, in the circumstances of the particular case, the direction is necessary to avoid a perceptible risk of a miscarriage of justice. This is an incident of the judge's duty to ensure a fair trial for the accused.

Where evidence is admitted for a limited purpose and there is a perceptible risk that, absent a direction, the jury will use the evidence for an improper purpose, then a direction as to the permissible uses will be required to avoid a miscarriage of justice. This will ordinarily involve directing the jury, with the authority of the trial judge, as to the ways in which the evidence may be, and more importantly must not be, used.

This general principle and its application to propensity reasoning was stated in the following terms by Beech JA in LNV v The State of Western Australia [[2019] WASCA 180 [103]]:

Generally speaking, where evidence is admissible for one purpose but inadmissible for another, the trial judge should direct the jury that they must not use the evidence for the purpose for which it is inadmissible, at least where the use of the evidence for the impermissible or irrelevant purpose would be adverse to the accused.

1. As the appellant's submissions correctly accept, it was permissible for the jury to have regard to other irreconcilable differences between statements made in the 2008 affidavit and the 2010 affidavit in considering whether the only reasonable inference was that the appellant knew of the falsity of whichever statement in par 22 of the 2008 affidavit or par 22 of the 2010 affidavit was false at the time she swore the relevant affidavit. In our view, when the addresses of the prosecutor are considered as a whole, they did not invite the jury to engage in any impermissible form of reasoning. Nor was there any perceptible risk that the jury would reason that the appellant must be guilty or was likely to have committed the charged offence because she was the kind of person who would knowingly make false statements on oath.
2. This was not a case where the discreditable conduct was unconnected with the offending. The conduct which was the subject of the charge was the swearing of two affidavits containing statements which conflicted irreconcilably so that one of the statements must, to the appellant's knowledge, have been false in a material particular. The prosecution narrowly particularised its case to allege an irreconcilable conflict between par 22 of the 2008 affidavit and par 22 of the 2010 affidavit.
3. However, the balance of each affidavit was admissible to provide the context in which the statements in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit were made for the purpose of understanding their true meaning. The broader inconsistencies were also relevant to the assessment of whether the only reasonable inference available on the evidence as a whole was that the appellant knew of the falsity of whichever of the statements in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit was false when she made the relevant affidavit. That was the only use of the evidence suggested by the prosecutor and did not involve any impermissible tendency reasoning.
4. The fact that the appellant had acted dishonestly in swearing at least one of the affidavits, which the prosecutor submitted was evidenced by the other inconsistencies, logically supported the inference that she knew of any falsity made in par 22 of the 2008 affidavit or par 22 of the 2010 affidavit. That reasoning draws from what the appellant has done in swearing the 2008 affidavit and 2010 affidavit rather than a general tendency of the appellant to make false statements in affidavits. It draws from the dishonesty established in the swearing of the affidavits which were the subject of the charge.
5. In our view, there was no perceptible risk in the context of this trial that the jury would reason that, because of irreconcilable differences which were not the subject of the prosecution particulars, the appellant was a generally dishonest person who had a tendency to knowingly make false statements in affidavits and who must therefore be guilty of the charged offence. In the circumstances of this case, no direction was required to guard against impermissible uses of the evidence and avoid a miscarriage of justice. Ground 3 is not established.

1. We have determined that ground 2 is established to the extent that the trial judge made a wrong decision on a question of law in directing the jury on the element of materiality. We have determined that the trial judge ought to have directed the jury that, if either of the statements which the State alleged to have been made in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit was false, it would have been false in a material particular.
2. However, we are satisfied that the appeal should be dismissed under s 30(4) of the Criminal Appeals Act on the basis that no substantial miscarriage of justice has occurred.
3. The trial judge's error worked entirely in the appellant's favour. Rather than foreclosing the issue by a direction that any false statement was material as a matter of law, the trial judge's direction left the issue of materiality for the jury to determine. The appellant gained the benefit of the prospect, however remote, that the jury might determine that issue in her favour. The error in the direction did not involve any fundamental defect in the trial which would preclude the application of the proviso in s 30(4) of the Criminal Appeals Act.
4. In a case that does not involve a fundamental defect, the proviso cannot be applied unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict.[145] For the reasons explained in dealing with ground 1, the evidence at trial in the present case did prove the appellant's guilt of the charged offence beyond reasonable doubt. We reach that conclusion, which does not depend on giving any weight to the jury's guilty verdict, on our own assessment of the trial record.
5. In these circumstances, we are satisfied that the appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred.

Appellant's application to reopen appeal and amend appellant's case

1. On 11 November 2024 (the second working day after the hearing of the appeal), the appellant filed a notice of self-representation in the appeal. On 15 November 2024, the appellant filed an application in an appeal. The orders sought in that application included that the appellant have leave 'to reopen the appeal on the ground of incompetent and negligent counsel'. In essence, the appellant deposed to being concerned at the hearing that an unreasonable verdict ground was not being advanced but that she did not insist on such a ground being included because she understood counsel to advise her that the existing grounds of appeal 'were indefensible and accordingly the ground of appeal would be successful'. The appellant also said that counsel had failed to follow her instructions in relation to certain aspects of the oral submissions advanced at that hearing.
2. It appeared from her affidavit in support of her application to reopen that the appellant was seeking to amend her grounds of appeal. At that stage, it did not appear to us to be in the interests of justice to give the appellant an additional opportunity to advance oral submissions after judgment had been reserved. We made the following orders on 15 November 2024:

1. By 4.00 pm on 29 November 2024, the appellant is to file and serve:

(a) If the appellant intends to amend her grounds of appeal or written submissions, an application in an appeal seeking leave to amend her appellant's case supported by an affidavit by the appellant annexing a minute of the proposed amended appellant's case in a form which complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules).
>
> (b) If a minute of proposed amended appellant's case proposes to add a new ground of appeal to which Practice Direction 7.4 would apply, a schedule in the form provided for in that practice direction.
>
> (c) Written submissions (not exceeding 5 pages in length) in support of the appellant's application for leave to reopen the appeal.

1. By 4.00 pm on 20 December 2024, the respondent file and serve:

(a) If the appellant applies to amend her appellant's case, a minute of proposed respondent's answer on which the respondent would rely if leave to amend the appellant's case in accordance with the minute is granted.
>
> (b) If the appellant files a Practice Direction 7.4 schedule, the respondent's Practice Direction 7.4 schedule.
>
> (c) Any written submissions (not exceeding 5 pages in length) in opposition to the appellant's application for leave to reopen the appeal.

1. Unless the Court otherwise orders, the appellant's application in an appeal dated 12 November 2024, any application made pursuant to para 1(a) of these orders and, if leave to amend the appellant's case is granted, any amended ground of appeal are to be determined on the papers.
2. On 29 November 2024, the appellant lodged with the Court of Appeal office an application in an appeal seeking leave to amend her appellant's case and supporting affidavit. The affidavit was sworn by the appellant on 22 November 2024 and attached a minute of proposed amended appellant's case which sufficiently complied with the Rules. The appellant also lodged written submissions in support of her application to amend and to reopen her case. The documents were accepted for filing on 3 December 2024.
3. In our view, it is not in the interests of justice to permit the appellant to reopen her case or amend her appellant's case at this stage of the proceedings. That is so for a combination of three reasons.
4. First, the appellant made a forensic decision to engage counsel who prepared her appellant's case and advanced submissions on her behalf at the hearing of the appeal. Counsel made forensic decisions as to the grounds of appeal and the submissions to be advanced orally and in writing. This involved abandoning grounds of appeal which the appellant had anticipated advancing when she was self-represented in the appeal. The appellant was bound by counsel's forensic decisions as to these matters and as to what concessions should be made at the hearing. These were matters within counsel's remit, requiring counsel to apply her professional judgment, having regard to her professional obligations to the court, as to which grounds and submissions had reasonable prospects of succeeding. In any event, it appears from the appellant's affidavit sworn on 12 November 2024 that the appellant acceded to the grounds of appeal formulated because she believed that the grounds being advanced 'were indefensible and accordingly the appeal would be successful'.
5. The hearing of the appeal is ordinarily the final opportunity of an appellant in either a civil or a criminal case to advance their grounds and submissions in support of an appeal. The hearing is the time and place to present the parties' oral and written argument in support of an appeal. The parties may not file supplementary written material after the conclusion of oral argument without the leave of the court.[146] Outside cases where the court grants leave to the parties to file supplementary written submissions to address a new point which arises at the hearing, leave will be granted only in exceptional circumstances. The hearing is the opportunity which the rules of procedural fairness require be given to a party, and a party has no legal right to continue to put written material before the court after the hearing.[147]
6. The discretion to allow reopening is broader before the court's reserved decision is made and reasons are published than after reasons are published. However, the public interest in the efficient administration of justice and the finality of litigation counts against granting leave to file further material without good reason. A hearing of an appeal is not to be taken as an opportunity to test how the court receives certain grounds of appeal and submissions with a view to subsequently reformulating a case which the litigant perceives has not been well received. Yet that appears to have been how the appellant has approached the hearing in the present case. That is a significant factor counting against the grant of leave to either reopen the appeal for further oral submissions or amend the appellant's case.
7. Secondly, there is no proper foundation for the appellant's submission that the appeal was incompetently argued by counsel. Counsel made a sound professional judgment about the grounds and submissions which were advanced and properly discharged her professional responsibilities.
8. Thirdly, there is no merit to the additional grounds and submissions which the appellant seeks to advance.
9. The appellant seeks to add a new ground contending that the charge was defective for duplicity because it alleges multiple possible offences within a single charge without specifying which statement is false. She contends that sch 1 cl 6(12)(b) of the Criminal Procedure Act only applies in the present context where two or more conflicting things are said in a single statement. That submission cannot be accepted. Unless the contrary intention appears in the legislation, words in the singular include the plural.[148] There is nothing in the context of sch 1 cl 6(12)(b) of the Criminal Procedure Act, which could have little practical purpose on the appellant's construction, to suggest a contrary intention. The matters sought to be raised by the appellant do not provide any proper basis for this court to depart from the view expressed in the previous conviction appeal reasons noted at [161] above, that it was open to the State to run the case in the manner in which it did without having to prove which of the statements was false.
10. The appellant also seeks to amend the unreasonable verdict ground so that it is not confined to alleging an unreasonable verdict in relation to the question of materiality. We have dealt with why the evidence at trial proved the other elements of the charged offence in dealing with ground 1. For the reasons explained in dealing with ground 1, there is no merit to any of the appellant's proposed new particulars and submissions. The proposed additional submissions also refer to additional evidence in relation to the swearing of an affidavit by Mr Frigger before Mr Thomas, which stands outside the scope of the proposed amended ground of appeal.
11. We also note that the appellant's proposed amended grounds of appeal do not include existing ground 2, which is the appellant's only meritorious ground of appeal.
12. The lack of merit in the proposed amended grounds of appeal and submissions means that there would be no utility in granting leave to reopen the appeal and amend the appellant's case.
13. For the above reasons, the appellant's applications in an appeal filed on 15 November 2024 and 3 December 2024 should be dismissed.
14. We note that, on 22 December 2024, the appellant lodged with the Court of Appeal office two documents, titled 'Angela Frigger's Responsive Submissions to Opposing Leave to Reopen and Amend' and 'Angela Frigger's Responsive Submissions to Respondent's Amended Answer'. The programming orders did not provide for the filing of responsive submissions, and the additional submissions sought to be advanced in these documents are not purely responsive. In the circumstances, it is not in the interests of justice to grant leave to the appellant to file these further submissions.

1. At the conclusion of the hearing of the appeal, the court dismissed a further bail application made by the appellant on 5 November 2024 (second bail application). We said that we would publish our reasons for making that decision later. These are our reasons for making that order.
2. Our reasons for dismissing the second bail application are essentially the same as those given in dismissing the first bail application, with which these reasons should be read.[149] After hearing argument on the amended grounds, we were not satisfied that the appellant's prospects of success in the appeal were sufficiently likely to give rise to a real concern that the appellant would suffer injustice by being kept in custody on an unsound conviction. Nor were we satisfied that there were otherwise exceptional reasons why the appellant should not be kept in custody pending determination of the appeal. In any event, we were not satisfied that it would be proper to grant bail, having regard to the provisions of sch 1 pt C cl 1 and sch 1 pt C cl 3 of the Bail Act. Given the appellant's actions in absconding on a flight to Singapore on 5 June 2024, we regarded the risk that the appellant would fail to appear in court in accordance with her bail undertaking to be sufficient in the circumstances of this case to justify the refusal of bail. Our concerns about that risk were not alleviated by an affidavit sworn by the appellant on 4 November 2024, relied on by the appellant in support of her second bail application.

1. On 2 December 2024, the appellant filed a further application in an appeal seeking bail pending the determination of the appeal (third bail application). In her affidavit in support of the third bail application, the appellant relied on her proposed new ground of appeal as constituting exceptional reasons why bail should be granted. The appellant also relied on the fact that she was granted bail in relation to the breach of bail charge pending in the District Court. The appellant asserts that the Chief Judge 'considered I am no longer a flight risk and granted me bail'.[150]
2. On 3 December 2024, we dealt with the third bail application on the papers and ordered that the application in an appeal filed on 2 December 2024 be dismissed.
3. We dealt with the application on the papers without an oral hearing because it appeared to us that the application was a reiteration of the two earlier bail applications and there had been no material change in circumstances.
4. For reasons explained at [216] above, the proposed new appeal ground is without merit and the strength of that ground did not constitute an exceptional reason why bail should be granted pending determination of this appeal.
5. The fact that the appellant has been granted bail in relation to the breach of bail charge is not a new circumstance. That decision was made by the trial judge on 20 August 2024,[151] which was the day prior to the day on which this court heard the appellant's first bail application. The appellant told the trial judge that she expected to be granted bail by this court.[152] After noting that she was remanded in custody for sentencing for the present offence, the trial judge indicated that he proposed to grant the appellant bail on the breach of bail charge 'in terms of simplicity'.[153] This court was advised of the grant of bail by the trial judge on the breach of bail charge at the hearing of the first bail application on 21 August 2024.[154] The grant of bail by the Chief Judge on 4 November 2024 was made on approval of the appellant's daughter as surety on that date. The grant of bail in relation to the breach of bail charge was not a material change in circumstances. Given the reasons for granting bail in respect of the breach of bail charge expressed by the trial judge, who refused bail pending sentence for the present offence, his Honour's decision to grant bail did not reflect an assessment that the appellant should be granted bail for the present offence.
6. For the above reasons, we were not satisfied that 'new facts have been discovered, new circumstances have arisen or the circumstances have changed' since this court's jurisdiction to grant bail was last invoked. In the absence of any suggestion that the appellant failed to adequately present her case for bail on the previous occasions, she had no right to further invoke this court's jurisdiction to grant bail.[155] Further, we remained of the view that there were no exceptional reasons why the appellant should not be kept in custody pending determination of the appeal and, in any event, we were not satisfied that it would be proper to grant bail, having regard to the provisions of sch 1 pt C cl 1 and sch 1 pt C cl 3 of the Bail Act.

1. As ground 2 is established in part, leave to appeal should be granted on that ground. Ground 1, so far as it relates to the element of materiality, is sufficiently arguable to justify the grant of leave to appeal on that ground. We are not satisfied that ground 3 has any reasonable prospects of success, and so would refuse leave to appeal on that ground. Notwithstanding the partial success of ground 2, the appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred.
2. For the above reasons, the following orders should be made:
   1. The appellant's applications in an appeal filed on 15 November 2024 and 3 December 2024 are dismissed.
   2. Leave to appeal is granted on grounds 1 and 2 of the grounds of appeal, as amended pursuant to the orders made by the court on 7 November 2024.
   3. Leave to appeal is refused on ground 3 of the grounds of appeal, as amended pursuant to the orders made by the court on 7 November 2024.
   4. The appeal is dismissed.

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

[1] Mr Banning died during the proceedings, which continued with his estate as a party. It is convenient to refer to Mr Banning as the relevant party, rather than his estate, throughout these reasons.

[2] The indictment was amended during the course of the trial to delete the words 'and another' at the end of the charge: see trial ts 2032 - 2036, 2189 - 2190.

[3] Frigger v The State of Western Australia [2021] WASCA 211.

[4] Frigger v The State of Western Australia [No 2] [2022] WASCA 72 (previous conviction appeal reasons).

[5] Previous conviction appeal reasons [91] - [92].

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

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

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

[19] Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2 (S) (exhibit 28) [26] - [27].

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

[26] Trial ts 1381 - 1386, 1508 - 1510.

[31] Trial ts 1785 - 1786. Mr Frigger maintained this position in cross-examination at trial ts 1847 - 1850.

[34] Trial ts 1830, the cross-examination of Mr Frigger at trial ts 1876 - 1877 and re-examination at trial ts 1882 - 1884.

[35] Being exhibit 30 - exhibit 37, see trial ts 1834 - 1839.

[36] Trial ts 1840 - 1846, 1850 - 1851.

[42] Trial ts 1923 - 1924, 1953 - 1954.

[50] Reference in s 169 to an offender being arrested without warrant was made by s 30 of the Criminal Law Amendment Act 1985 (WA). References to imprisonment 'with hard labour' were removed by s 16(2) of the Criminal Law Amendment Act (No 2) 1992 (WA).

[51] See Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2005, 6739 - 6740; Explanatory Memorandum for the Oaths, Affidavits and Statutory Declarations (Consequential Provisions) Bill 2005 (WA), Overview of Bill and clause notes for cl 41 and cl 42 of the Bill.

[52] A special maximum penalty of life imprisonment is provided for where the crime is committed in order to procure the conviction of another person for a crime punishable with imprisonment for life.

[53] These include s 85 (where a public officer corruptly gives a certificate or information or furnishes a return 'which is false in a material particular'); s 106 (where a person makes a statement 'that is false in a material particular' in relation to an election); s 133A (where a person knowingly signs a prosecution notice 'which, in any material particular, is to his knowledge false'); s 142 (where a person publishes an advertisement under the authority of a court or tribunal 'knowing the advertisement to be false in any material particular'); and s 419 - s 422, s 424 (relating to corporate records which are false in a material particular).

[54] Respondent's submissions, pars 2, 23 (White AB 28, 33).

[55] Respondent's submissions, par 15 (White AB 31).

[56] Respondent's submissions, pars 18 - 20 (White AB 32 - 33).

[57] Respondent's submissions, par 22 (White AB 33).

[58] Respondent's submissions, pars 24 - 25 (White AB 34).

[59] See, for example, s 12(5)(c)(iv) of the Architects Act 2004 (WA), which empowers an investigator appointed by the Architects Board of Western Australia to require answers or information to be given on oath; s 34(2)(b) of the Auditor General Act 2006 (WA), which empowers the Auditor General to direct that information, explanation or answers to questions be verified or given on oath; s 13(6) of the Criminal Investigation Act 2006 (WA) , which generally requires applications for warrants to be made on oath.

[60] Murphy v Griffiths [1967] 1 WLR 333.

[62] Minister for Immigration v Dela Cruz (1992) 34 FLR 348.

[64] R v Maslen (1995) 79 A Crim R 199.

[66] Gill v Chief Executive Officer of Customs [2001] NSWCCA 470; (2001) 166 FLR 125.

[67] Gill [74] - [80], applying Hansen v Comptroller-General of Customs (1996) 130 FLR 72 at 83 - 84.

[68] Commissioner of State Taxation v EDI Rail (Maryborough) Pty Ltd [2010] WASCA 17; (2010) 41 WAR 197.

[70] Burke v Corruption and Crime Commission [2012] WASCA 49; (2012) 289 ALR 150.

[72] Compare Mellifont v Attorney-General (Qld) [1991] HCA 53; (1991) 173 CLR 289, 308 - 309.

[74] Christianos v The Queen (unreported, Court of Criminal Appeal of Western Australia; 17 December 1991; Library no 9217) per Malcolm CJ (Pidgeon & Murray JJ agreeing) at pages 14 - 16; R v Davies (1974) 7 SASR 375, 387 ‑ 399 (Wells J); R v Traino (1987) 45 SASR 473, 478 (King CJ), 479 ‑ 481 (Jacobs J); Mellifont (309).

[77] Criminal Procedure Act 2004 (WA) s 108.

[78] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].

[79] See, for example, TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; (1999) 48 NSWLR 381 [15]; Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [24]; City of Wanneroo v Bakota [2023] WASCA 61 [12].

[80] Duro Felguera Australia Pty Ltd v Trans Global Projects Pty Ltd (in liq) [2018] WASCA 174; (2018) 53 WAR 201.

[88] Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 [57].

[90] Exhibit 8 read with exhibit 10, annexure DCS2.

[91] Exhibit 10, par 7, annexures DCS3 and DCS4.

[92] Exhibit 10, par 9, annexures DCS5 - DCS8.

[119] See Re Minister for Immigration; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 - 625, referred to by Simmonds J in exhibit 28 [74]. This statement of principle has been applied on many occasions, including by this court in Lafferty v Waterton [2016] WASCA 183 [17] - [18].

[121] OKS v The State of Western Australia [2018] WASCA 48; (2018) 52 WAR 482 [125] ‑ [129], [244] ‑ [255], [259] ‑ [262].

[122] Loh v The State of Western Australia [No 2] [2024] WASCA 166 [76]. See also the reference at [77] to Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [37].

[123] Previous conviction appeal reasons [62].

[124] Previous conviction appeal reasons [63] ‑ [64].

[125] Previous conviction appeal reasons [64].

[126] Previous conviction appeal reasons [66] - [68].

[127] Previous conviction appeal reasons [65].

[131] Trial ts 1785. There was some (albeit apparently hearsay) evidence that Ms Machele was deceased at the time of trial (trial ts 1849) which the appellant relied on in her closing submissions (trial ts 2324 - 2325).

[144] KHA v The State of Western Australia [2022] WASCA 173; (2022) 305 A Crim R 265 [42] - [45].

[145] OKS v The State of Western Australia [2019] HCA 10; (2019) 265 CLR 268 [31].

[146] Carr v Finance Corporation of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246, 258.

[147] Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 [29] - [31] (McHugh J, Gummow J agreeing). See also [143] (Heydon J, Kirby, Hayne & Callinan JJ agreeing).

[148] Interpretation Act 1984 (WA) s 10(c).

[149] Frigger v The State of Western Australia [2024] WASCA 100.

[150] Affidavit of the appellant sworn 22 November 2024 and filed on 2 December 2024 in support of the third bail application, par 3.

[155] See Bail Act 1982 (WA) sch 1 pt B cl 2 and sch 1 pt B cl 4.