FRIGGER -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 114

[2026] WASCA 114 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FRIGGER -v- THE STATE OF WESTERN AUSTRALIA [2026] WASCA 114 CORAM : THOMSON P MITCHELL JA SWEENEY JA HEARD : 19 AUGUST 2026 DELIVERED : 19 AUGUST 2026 PUBLISHED : 20 AUGUST 2026 FILE NO/S : CACR 51 of 2026 BETWEEN : ANGELA CECILIA THERESA FRIGGER Appellant AND THE STATE OF WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA Coram : GETHING DCJ File Number : IND 1112 of 2019 -- 1 of 17 -- [2026] WASCA 114 Page 2 Catchwords: Criminal law - Second appeal against conviction - Whether grounds of appeal identify fresh and compelling evidence or new and compelling evidence that should, in the interests of justice, be considered on an appeal - Whether grounds have a reasonable prospect of succeeding - Whether leave to issue a witness summons should be granted - Turns on own facts Legislation: Criminal Appeals Act 2004 (WA), s 35D, s 35E, s 35F, s 35H Criminal Code (WA), s 169 Result: Application to issue a witness summons dismissed Leave to appeal refused Appeal dismissed Category: B Representation: Counsel: Appellant : In person Respondent : R P Arndt Solicitors: Appellant : In person Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): Awap Sgt 26 Investment Ltd v CN 2000 Holdings Ltd [2020] WASCA 74 Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2 (S) EC Dawson Investments Pty Ltd v Crystal Finance Pty Ltd [No 2] [2011] WASC 8 -- 2 of 17 -- [2026] WASCA 114 Page 3 Embleton Motor Co Pty Ltd v St Kilda Beach Taxi School and Staffing Pty Ltd [2014] WASCA 183 Frigger v Banning [No 9] [2019] FCA 1611 Frigger v Professional Services of Australia Pty Ltd [2022] WASCA 119 Frigger v Professional Services of Australia Pty Ltd [2025] WASCA 154 Frigger v Professional Services of Australia Pty Ltd [2026] FCAFC 9 Frigger v Professional Services of Australia Pty Ltd [No 4] [2025] WASC 259 Frigger v The State of Western Australia [No 2] [2025] WASCA 7 LEG v The State of Western Australia [2025] WASCA 129 Luo v The King [2025] WASCA 36 Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222 The State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 The State of Queensland v Stradford (a pseudonym) [2025] HCA 3; (2025) 99 ALJR 396 Vella v The State of Western Australia [No 2] [2025] WASCA 70 -- 3 of 17 -- [2026] WASCA 114 REASONS OF THE COURT Page 4 REASONS OF THE COURT: 1 At the conclusion of the hearing on 19 August 2026, we dismissed the appellant's applications for leave to appeal and for leave to issue a witness summons, and dismissed the appeal. We said that we would publish written reasons for making those orders later. These are our reasons for making the orders. Introduction 2 On 4 June 2024, the appellant was convicted after trial by jury of one count of knowingly making a statement under oath that was false in a material particular, contrary to s 169 of the Criminal Code (WA). On 14 January 2025, this court dismissed her appeal against that conviction for reasons published as Frigger v The State of Western Australia [No 2] [2025] WASCA 7 (First Appeal Decision). 3 The relevant background and the evidence at trial are summarised in the First Appeal Decision, with which these reasons should be read. Terms defined in the First Appeal Decision are used in their defined sense in these reasons. 4 In the First Appeal Decision, the court rejected a ground of appeal that the guilty verdict was unreasonable and unsupported by the evidence, and another ground which is not presently significant. The court upheld a ground of appeal contending that the trial judge made a wrong decision on a question of law when directing the jury as to the requirement that the relevant statement must be false in a 'material particular'. However, the court dismissed the appeal on the basis that no substantial miscarriage of justice had occurred. This was because the trial judge's error operated wholly in the appellant's favour and the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant's guilt of the charged offence. 5 On 2 June 2026, the appellant instituted the present second appeal against her conviction under pt 3A of the Criminal Appeals Act 2004 (WA) (CA Act). On the same day, the appellant filed an affidavit she swore on 25 May 2026 (appellant's affidavit) as required by r 28A of the Supreme Court (Court of Appeal) Rules 2005 (WA) (CoA Rules) and an appellant's case containing the following ground of appeal: The fresh, and/or new and compelling evidence in the Appellant's affidavit of 25 May 2026 establishes that the offender is innocent. -- 4 of 17 -- [2026] WASCA 114 REASONS OF THE COURT Page 5 Particular 1: The civil proceedings in which the Appellant's alleged false statements were made were brought entirely without corporate authority and were a nullity in substance, rendering the essential element of materiality incapable of proof. Particular 2: The evidence in the affidavit directly contradicts the prosecution's case that CAT did not pay the Appellant's directors' fees prior to 23 September 2008. 6 On 12 June 2026, the appellant filed an application in an appeal seeking to have a witness summons issued to Mr Kitay requiring him to produce a 'reconstructed Directors' Loan Account' identified in a letter from Freehills to Mr Kitay dated 25 August 2010 (Application). 7 On 21 July 2026, Thomson P referred the application for leave to appeal and the Application to a hearing of the court on 19 August 2026. We are presently dealing with those applications. 8 For the following reasons, the ground of appeal does not identify any fresh and compelling evidence or new and compelling evidence and, in any event, has no reasonable prospect of succeeding. Leave to appeal should be refused, the Application should be dismissed and the current appeal should be dismissed. Legal framework 9 Under s 35E of the CA Act, an offender convicted of an offence on indictment may bring a second or subsequent appeal against conviction if: (a) there is fresh and compelling evidence relating to the offence; or (b) there is new and compelling evidence relating to the offence. 10 For these purposes, evidence is relevantly 'fresh' if, despite the exercise of reasonable diligence, the evidence was not and could not have been tendered at the trial of the offence or any previous appeal. Evidence not tendered at trial or a previous appeal is 'new' if it could, with the exercise of reasonable diligence, have been tendered at the trial of the offence or any previous appeal. Evidence will be compelling -- 5 of 17 -- [2026] WASCA 114 REASONS OF THE COURT Page 6 only if it is highly probative in the context of the issues in dispute at the appellant's trial.1 11 Under s 35F of the CA Act, leave to appeal is required for each ground of appeal in an appeal brought under pt 3A of that Act. Section 35F(4) provides that this court must not give leave to appeal on a ground of appeal unless it is satisfied: (a) the ground identifies fresh and compelling evidence or new and compelling evidence that should, in the interests of justice, be considered on an appeal; and (b) the ground has a reasonable prospect of succeeding. Unless this court grants leave to appeal on at least one ground of appeal, the appeal is taken to be dismissed. 12 Under s 35H(2) of the CA Act, an appeal based on fresh evidence must be allowed if the court is satisfied that there was a miscarriage of justice. Under s 35H(4), an appeal based on new evidence must be allowed if the court is satisfied on the balance of probabilities that, in light of all of the evidence, the evidence establishes that the offender is innocent. Otherwise, under s 35H(1), the appeal must be dismissed. 13 The operation of pt 3A of the CA Act was considered in Luo v The King.2 As the court observed in that case:3 [U]nder s 35E(1), a second or subsequent appeal may only be brought if there is fresh and compelling or new and compelling evidence. That is, fresh and compelling or new and compelling evidence must actually exist at the time the appeal is brought. The bringing of a second or subsequent appeal is not a speculative venture. It can only be competently brought if fresh and compelling or new and compelling evidence exists at the time the appeal notice is filed. Put another way, a second or subsequent appeal cannot be competently brought on the basis that the fresh and compelling or new and compelling evidence upon which the appeal is purportedly brought might exist, or will be put before the court later in the course of the appeal. This is not to deny the general power of the court to admit other evidence in the appeal pursuant to s 40(1)(e) of the [CA Act], but this power does not entitle an appellant to bring a second or subsequent appeal without putting before the court, when the appeal notice is filed, the fresh and compelling, or new and compelling, evidence. (original emphasis) 1 CA Act s 35D. 2 Luo v The King [2025] WASCA 36 [47] - [53], adopted in Vella v The State of Western Australia [No 2] [2025] WASCA 70 [76]. 3 Luo [48]. -- 6 of 17 -- [2026] WASCA 114 REASONS OF THE COURT Page 7 14 The court also observed that, to be 'highly probative', evidence must have the capacity to have a significant effect upon the resolution of a material issue at the trial.4 Particular 1: capacity and authority of PSA to institute proceedings 15 The appellant's first particular concerns an allegation that, because PSA did not have shareholders or validly appointed directors to operate its business, it could not authorise the commencement of proceedings. The appellant therefore contends that the civil appeal, the stay application and the application for a freezing order in the primary proceedings were 'null'. It follows, on the appellant's argument, that the affidavits sworn by the appellant in those proceedings could not have been false in a material particular. This is because a statement cannot be material to a proceeding that is a legal nullity because it is not reasonably capable of affecting the outcome of a null process. 16 The evidence on which the appellant relies to establish that PSA lacked shareholders and directors who could authorise proceedings comprises: 1. An amended statement of claim filed on 24 October 2023 in proceedings CIV/1986/2023 in the General Division of this court. Those proceedings were brought by the appellant and Mr Frigger as plaintiffs against PSA, Ms Banning in her personal capacity, Ms Banning as administrator of the estate of Mr Banning and three legal practitioners as defendants.5 2. Reasons published by Hill J on 30 June 2025 in CIV/1986/2023: Frigger v Professional Services of Australia Pty Ltd [No 4] [2025] WASC 259. In those reasons, Hill J held that a memorandum of appearance and notice of intention to abide filed by PSA should be struck out as they had been signed by Ms Banning rather than a solicitor. Her Honour held that, at that time, no solicitor was on the record for PSA in those proceedings. Her Honour proposed to list the appellant's and Mr Frigger's applications for default judgment against PSA and summary judgment against the other defendants for directions.6 17 On 19 August 2025, Hill J made orders staying the proceedings in CIV/1986/2023 until the appellant and Mr Frigger satisfied outstanding 4 Luo [53]. 5 Annexure AF6 to the appellant's affidavit. 6 Annexure AF9 to the appellant's affidavit. -- 7 of 17 -- [2026] WASCA 114 REASONS OF THE COURT Page 8 costs orders made against them in other proceedings. On 30 October 2025, this court refused leave to appeal and dismissed an appeal against the stay orders.7 It appears that the proceedings in CIV/1986/2023 currently remain stayed pursuant to those orders. 18 The appellant relies on O 20 r 14(1) of the Rules of the Supreme Court 1971 (WA) (SC Rules), which provides that, subject to a presently immaterial exception: Subject to subrule (4), any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue under rule 15 operates as a denial of it. 19 The appellant contends that PSA's failure to file a valid appearance or defence in CIV/1986/2023 deems it to have admitted all the allegations pleaded in the amended statement of claim. The same consequence is said to follow from Ms Banning's filing of a notice of intention to abide without filing a defence in those proceedings. 20 There appear to be many difficulties with this aspect of the appellant's argument. 21 First, any deemed admission by PSA or Ms Banning would not be binding on the State in the criminal proceedings. Indeed, it would not be binding on PSA or Ms Banning other than for the purposes of the proceedings in CIV/1986/2023 and the court would not be bound to act on the deemed admission even in those proceedings.8 Further, the rule only applies in relation to an allegation of fact and has no operation in relation to an allegation of law or an allegation of mixed law and fact.9 The evidence annexed to the appellant's affidavit is only capable of establishing that PSA and Ms Banning were deemed to admit pleaded facts on which the appellant relies to establish that PSA lacked authority to bring the civil appeal and the freezing order application. However, it is not evidence in the criminal proceedings that PSA actually lacked that authority. 7 Frigger v Professional Services of Australia Pty Ltd [2025] WASCA 154 (annexure AF8 to the appellant's affidavit). 8 See Embleton Motor Co Pty Ltd v St Kilda Beach Taxi School and Staffing Pty Ltd [2014] WASCA 183 [43] - [44], [46] (Newnes JA, Murphy JA & Edelman J agreeing); Awap Sgt 26 Investment Ltd v CN 2000 Holdings Ltd [2020] WASCA 74 [184] - [189]. 9 EC Dawson Investments Pty Ltd v Crystal Finance Pty Ltd [No 2] [2011] WASC 8 [16]. -- 8 of 17 -- [2026] WASCA 114 REASONS OF THE COURT Page 9 22 Secondly, while Hill J's decision of 30 June 2025 post-dates the criminal trial, the contention that PSA was not properly constituted and lacked authority to bring the proceedings is not new: 1. The proceedings in CIV/1986/2023 were commenced in 2023 and the essential allegations were not substantially altered by the amendment to the statement of claim. 2. The amended statement of claim was filed in October 2023, and evidence to support the appellant's allegations should have been obtainable with the exercise of reasonable diligence prior to trial. 3. The application to strike out PSA's appearance and notice to abide was made on 12 March 2024, prior to the commencement of the criminal trial. 4. The appellant and Mr Frigger instituted proceedings in the Federal Court of Australia against PSA and Ms Banning in 2022, seeking a declaration that PSA's registration as a company was invalid because the memorandum and articles of association were not signed by subscribers to the memorandum. The argument dealt with in that case is at least substantially similar to that sought to be advanced in this appeal. A judgment rejecting the appellant's argument was handed down in the Federal Court on 26 April 2024, prior to the commencement of the criminal trial.10 5. In 2022, the appellant advanced similar but distinct arguments, which this court characterised as seeking to create 'an alternative universe', alleging that PSA lacked capacity to bring proceedings including the freezing order application, which were therefore nullities.11 23 In light of the above litigation history, evidence relied on to support the appellant's contention about PSA's lack of corporate capacity and the consequent nullity of the civil appeal and freezing order applications could, by the exercise of reasonable diligence, have been tendered at trial. Evidence seeking to establish those facts is properly characterised as new evidence rather than fresh evidence for 10 See the decision of the Full Court of the Federal Court of Australia dismissing the appeal from those orders, which was delivered on 17 February 2026: Frigger v Professional Services of Australia Pty Ltd [2026] FCAFC 9 [6] - [21] (annexure AF7 to the appellant's affidavit). 11 Frigger v Professional Services of Australia Pty Ltd [2022] WASCA 119 [4] - [8]. -- 9 of 17 -- [2026] WASCA 114 REASONS OF THE COURT Page 10 the purposes of pt 3A of the CA Act. The only evidence which post- dates the trial is the decision of Hill J on 30 June 2025 which, by itself, does not establish any material fact. 24 Thirdly, even if PSA lacked authority to bring the civil appeal and the freezing order application, that would not nullify the Supreme Court proceedings. Orders were made by the court on the stay application,12 the civil appeal,13 and the freezing order application.14 The 2010 affidavit was sworn for the purposes of the appellant's and Mr Frigger's application to set aside the freezing orders and their application for costs in the primary proceedings. The orders made in the primary proceedings dismissed the appellant's and Mr Frigger's application for costs.15 Those orders of a superior court of record are valid until set aside,16 so that the proceedings in which those orders were made cannot be characterised as nullities. 25 Fourthly, the appellant's argument ignores the fact that Mr Banning (or his estate following his death) was also an appellant in the civil appeal,17 an applicant in the stay application,18 and an applicant for freezing orders.19 Even if PSA somehow lacked the capacity or authority to institute those proceedings, and that 'nullified' the proceedings brought by PSA, the same proceedings were instituted by Mr Banning or his estate. 26 Fifthly, even if PSA somehow lacked the capacity or authority to institute the civil appeal, the stay application and the freezing order application, that was not a point taken in the primary proceedings or the civil appeal. As this court explained in the First Appeal Decision, a statement will be false in a material particular for the purposes of s 169 of the Criminal Code if it is reasonably capable of affecting the outcome of the purpose for which the statement was made.20 For the reasons explained in the First Appeal Decision, par 22 of the 2008 affidavit was made for the purpose of opposing the stay application and 12 Exhibit 7: Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222. 13 Exhibit 8. 14 Exhibit 11. 15 See exhibit 28: Computer Accounting and Tax Pty Ltd v Professional Services of Australia Pty Ltd [No 3] [2010] WASC 2 (S) [60], [115], [123]. 16 The State of Queensland v Stradford (a pseudonym) [2025] HCA 3; (2025) 99 ALJR 396 [53]; The State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 [32]; Frigger v Professional Services of Australia Pty Ltd [2025] WASCA 154 [9]. 17 Exhibit 4. 18 Exhibit 5. 19 Exhibit 9. 20 First Appeal Decision [11], [93]. -- 10 of 17 -- [2026] WASCA 114 REASONS OF THE COURT Page 11 was reasonably capable of affecting the outcome of the stay application.21 Paragraph 22 of the 2010 affidavit was made for the purpose of seeking the discharge of the freezing order and an application for costs and was reasonably capable of affecting the outcome of those applications.22 27 The 2008 affidavit was in fact relied on by Buss JA in dismissing PSA's and Mr Banning's stay application.23 The 2010 affidavit was actually relied on by Simmonds J in dismissing PSA's and Mr Banning's application for costs against the appellant and Mr Frigger in relation to the freezing order.24 Even if the authority of PSA to bring proceedings was open to challenge, the fact that the issue was not raised meant that it could not be said that the outcome of the proceedings was inevitable and incapable of being affected by the statements in the 2008 and 2010 affidavits. 28 The proposed additional evidence does not cast any doubt on the conclusion that the statements made in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit, if false, were false in a material particular. 29 Therefore, the additional evidence on which the appellant seeks to rely in respect of particular 1 to the ground of appeal is new evidence rather than fresh evidence. It is incapable of establishing that the appellant is innocent of the offence against s 169 of the Criminal Code. Further, irrespective of how the evidence is categorised, it is not 'compelling' within the meaning of s 35D(4) of the CA Act as it could not have a significant effect upon the resolution of a material issue at the trial. The proposed ground of appeal, so far as it contends the additional evidence establishes the appellant to be innocent, has no reasonable prospect of succeeding. Nor would that ground have any reasonable prospect of succeeding if it alleged that the absence of that evidence at trial gave rise to a miscarriage of justice. 21 First Appeal Decision [107] - [111]. 22 First Appeal Decision [112] - [153]. 23 Exhibit 7: Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222 [27]. 24 Exhibit 28: Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 3] [2010] WASC 2 (S) [121] - [123]. -- 11 of 17 -- [2026] WASCA 114 REASONS OF THE COURT Page 12 Particular 2: Mr Kitay's reconstruction of the directors' loan account 30 The principal additional evidence relied on in support of the appellant's second particular is a letter from Freehills to Mr Kitay dated 25 August 2010 (Freehills' advice).25 31 The appellant's affidavit also attaches a transcript of proceedings in closed court before Hill J in COR/2/2010 on 15 April 2026.26 The transcript is of part of the hearing of an application by Mr Kitay and CAT that the appellant be punished for contempt for breaching various orders made in those proceedings relating to a confidential affidavit sworn by Mr Kitay (Confidential Affidavit).27 The appellant is alleged to have breached those orders by retaining the Confidential Affidavit filed by Mr Kitay and attaching it to affidavits sworn in other proceedings. One of the alleged contempts was attaching the Confidential Affidavit to an affidavit filed in District Court proceedings which was itself attached to an affidavit sworn by the appellant in Federal Court proceedings WAD/607/2015 (Federal Court proceedings) on 30 August 2019.28 32 The appellant seeks to use this transcript for two purposes. 33 First, the appellant deposes that, 'In the course of proceedings leading to my trial' Mr Kitay swore the Confidential Affidavit which contained the Freehills' advice.29 The Confidential Affidavit and the legal advice attached to it were subject to a claim of legal professional privilege and confidentiality maintained by Mr Kitay.30 At the time of trial, the appellant says she was aware of the existence of the Freehills' advice,31 but:32 Because the Confidential Affidavit remained subject to privilege and confidentiality, I was prevented from referring directly to Kitay's evidence contained in it. As a direct consequence, I could not at trial compel production of the confidential affidavit or place its contents before a jury. 34 At the hearing of the contempt application before Hill J, the applicants sought to tender an affidavit sworn by David John on 25 Annexure AF2 to the appellant's affidavit. 26 Annexure AF1 to the appellant's affidavit. 27 Annexure AF1 to the appellant's affidavit (ts 936 - 937). 28 Annexure AF1 to the appellant's affidavit (ts 938 - 939). 29 Par 9 of the appellant's affidavit. 30 Par 10 of the appellant's affidavit. 31 Par 11 of the appellant's affidavit. 32 Par 12 of the appellant's affidavit. -- 12 of 17 -- [2026] WASCA 114 REASONS OF THE COURT Page 13 28 February 2020.33 The appellant objected to the admission of annexure DWJ10 of Mr John's affidavit, which, it can be inferred from the transcript, was the appellant's affidavit sworn in Federal Court proceedings on 30 August 2019.34 One ground of objection was that the use of the affidavit sworn in the Federal Court proceedings for the purposes of the contempt application was a breach of the Harman principle. Hill J overruled this objection on the basis that it could be inferred, from the reasons of Colvin J in Frigger v Banning [No 9],35 that the appellant's affidavit of 30 August 2019 had been read or relied upon in open court in the Federal Court proceedings so that the Harman principle did not apply to it.36 35 The relevant passage of Colvin J's reasons was in the following terms:37 Mr and Mrs Frigger have also applied to vary or set aside the orders that I made in these proceedings on 21 August 2019. They say they are entitled to proceed with this action, even if they are not successful in challenging the sequestration orders as to their estates. Mr and Mrs Frigger maintain that there are arguable grounds upon which they could continue these proceedings. They claim amongst other things that there have been steps which amount to the tort of malicious prosecution. They sought to support that claim by reference to an affidavit which had not been filed in support of the application but nevertheless appeared to be available within the Court record. There was objection taken to certain of the annexures to that affidavit on the basis that they had been, allegedly, obtained in breach of court orders made by the Supreme Court of Western Australia. That contention was disputed by Mr and Mrs Frigger, who maintain that the annexures constitute material that is in the public domain. Having regard to the applications that have been brought by Mr and Mrs Frigger in respect of the orders that I have made in these proceedings concerning the last version of the pleading and the view that these proceedings are the subject of a statutory stay, I took the view that it was not appropriate for me in the course of the present application to form a view about the merits of the claims made in these proceedings while those applications were pending. I indicated to the parties in the course of argument that I would proceed on the basis that, given the current state of disputation between the parties as to the matters relied upon to support some aspects of the claims that Mr and Mrs Frigger wish to advance in these proceedings, I would accept for 33 Annexure AF1 to the appellant's affidavit (ts 942 - 943). 34 Annexure AF1 to the appellant's affidavit (ts 944 - 945). 35 Frigger v Banning [No 9] [2019] FCA 1611. 36 Annexure AF1 to the appellant's affidavit (ts 950). 37 Frigger v Banning [No 9] [2019] FCA 1611 [10] - [11]. -- 13 of 17 -- [2026] WASCA 114 REASONS OF THE COURT Page 14 present purposes that there was arguable merit as to some part of the claims that Mr and Mrs Frigger seek to bring in these proceedings. 36 In this court, the appellant contends that Hill J's ruling has the effect of removing the prohibition against her referring directly to or relying upon the Confidential Affidavit, making the contents of the Confidential Affidavit available to her for the first time.38 37 Secondly, the appellant relies on evidence given by Mr Kitay under cross-examination in the contempt proceedings, where he accepted that it was brought to his attention that the Confidential Affidavit had been attached to an affidavit filed in the Federal Court proceedings (to which he was not a party). He assumed that the affidavit was adduced into evidence. Mr Kitay's evidence at the contempt hearing was that he could not recall what transpired between the solicitors in relation to the alleged breach of the court's orders.39 38 Mr Kitay's evidence at trial is summarised in the First Appeal Decision.40 At trial, Mr Kitay's evidence was also that he could not recall undertaking a reconstruction of the directors' loan account in 2010,41 but a reconciliation in 2017 indicated that the appellant and Mr Frigger owed over $2.3 million to CAT on the directors' loan account.42 The appellant seeks to use the Freehill's advice for the purposes of seeking to establish that Mr Kitay did undertake a reconstruction of the directors' loan account in 2010 which showed that the appellant and Mr Frigger were debtors rather than creditors of CAT, albeit in a lesser amount than was assessed in 2017. We will proceed on the assumption that the additional evidence, either by itself or together with other evidence, is capable of establishing that fact. As the Freehill's advice is, at least prima facie, confidential and subject to legal professional privilege, we will not set out any of the contents of that advice in these reasons. 39 This particular of the ground of appeal is not established for the following three reasons. 40 First, the ruling made by Hill J as to the admissibility of the appellant's affidavit of 30 August 2019 in the contempt proceedings does not arguably affect the operation of the orders made by the 38 Par 14 of the appellant's affidavit. 39 Annexure AF1 to the appellant's affidavit (ts 1035 - 1039). 40 First Appeal Decision [54] - [55]. 41 Trial ts 2052 - 2053, 2061. 42 Trial ts 2059. -- 14 of 17 -- [2026] WASCA 114 REASONS OF THE COURT Page 15 General Division of this court restricting the use of the Confidential Affidavit. The ruling was that, because the appellant's affidavit of 30 August 2019 had been used in the Federal Court proceedings, its use in the contempt proceedings was not contrary to the Harman principle. That meant that the appellant's affidavit of 30 August 2019 could be adduced to prove that the appellant contravened orders restricting the use of the Confidential Affidavit by annexing it to her affidavit. That ruling did not mean that the restrictions imposed on the appellant's use of the Confidential Affidavit by orders made in the General Division of this court were removed. If those orders prohibit the use of the Freehills' advice in the criminal proceedings, that prohibition continues. As such, evidence of the Freehills' advice, which was in the appellant's possession prior to trial, is not fresh evidence by reason of Hill J's ruling that the affidavit sworn by the appellant in the Federal Court proceedings on 30 August 2019 was admissible in the contempt proceedings. Its use in the contempt proceedings, conducted in closed court, did not remove the confidentiality of the Confidential Affidavit. 41 Nothing in the preceding paragraph should be taken to pre-empt Hill J's decision in the contempt proceedings as to whether annexing the Confidential Affidavit or the Freehills' advice to affidavits filed in other proceedings constituted a contempt of court by contravening the orders made in the General Division of this court. Nor is it necessary, for the purposes of dismissing the present application for leave to appeal, to determine whether annexing the Freehills' advice to the appellant's affidavit filed in this appeal contravenes the orders restricting the appellant's use of the Confidential Affidavit. Nothing in these reasons should be taken to involve any determination of that question. 42 Secondly, irrespective of whether the evidence is characterised as fresh or new evidence, evidence that a reconciliation of the directors' loan account conducted by Mr Kitay in 2010 indicated that the appellant was a debtor rather than a creditor of CAT would not, in the context of the evidence given at trial, have the capacity to have a significant effect upon the resolution of a material issue at the trial. 43 Mr Kitay gave evidence at trial of undertaking a reconciliation of the directors' loan account in 2017 which concluded that the appellant and Mr Frigger owed CAT in excess of $2.3 million. Evidence that he had also undertaken a reconciliation in 2010, which concluded that the appellant and Mr Frigger owed CAT a smaller amount, would not have been of any additional assistance to the appellant. -- 15 of 17 -- [2026] WASCA 114 REASONS OF THE COURT Page 16 44 Thirdly, evidence that Mr Kitay had conducted a reconciliation in 2010 which concluded that the appellant and Mr Frigger were debtors rather than creditors of CAT is incapable of giving rise to a reasonable doubt as to any element of the charged offence. For the reasons set out in the First Appeal Decision, the appellant made the statement at par 22 of the 2010 affidavit that CAT had accrued debts to her.43 Evidence that a reconciliation conducted by Mr Kitay in 2010 concluded that the appellant and Mr Frigger were debtors rather than creditors of CAT would only have tended to show that it was the statement made in par 22 of the 2010 affidavit, rather than the statement made in par 22 of the 2008 affidavit, which was false. Its effect would be equivalent to the evidence of Ms Lawford about the financial records provided to her by the appellant.44 45 As indicated by the terms in which particular 2 to the appellant's ground of appeal is cast, this aspect of the appellant's argument proceeds on the false premise that the prosecution case was based on a contention that CAT did not pay the appellant's directors' fees prior to 23 September 2008. To the contrary, the prosecution case did not seek to establish which of the statements in par 22 of the 2008 affidavit and par 22 of the 2010 affidavit was false. Rather, the prosecution case was that, because they were irreconcilable, one of the statements must have been false. 46 The appellant also complains that, after being placed on notice, the Office of the Director of Public Prosecutions did not obtain the 2010 reconciliation of the directors' loan account. There is no merit in that complaint, as the prosecutor's disclosure obligation relates to evidentiary material in the possession of the organisation or person who investigated the offence rather than an obligation to obtain evidentiary material so that it may be disclosed.45 47 For the above reasons, the proposed additional evidence as to the reconciliation of the directors' loan account in 2010 constitutes neither fresh and compelling nor new and compelling evidence within the meaning of s 35D of the CA Act. The proposed ground of appeal, so far as it contends the additional evidence establishes the appellant to be innocent, has no reasonable prospect of succeeding. Nor would that ground have any reasonable prospect of succeeding if it alleged that the absence of that evidence at trial gave rise to a miscarriage of justice. 43 First Appeal Decision [135] - [148], [166] - [170]. 44 See First Appeal Decision [170]. 45 LEG v The State of Western Australia [2025] WASCA 129 [38] - [41], [68]. -- 16 of 17 -- [2026] WASCA 114 REASONS OF THE COURT Page 17 Orders 48 For the above reasons, we were not satisfied that the ground of appeal identified fresh and compelling evidence or new and compelling evidence that should, in the interests of justice, be considered on an appeal. Nor were we satisfied that the ground of appeal had any reasonable prospect of succeeding. 49 The proposed witness summons requiring the production of the reconciliation of the directors' loan account in 2010 could not, for the reasons explained above, advance the appellant's position. We therefore concluded that the Application should be dismissed. It is unnecessary to consider when it may be appropriate for this court to grant leave to issue a witness summons in an appeal under pt 3A of the CA Act. 50 For these reasons, at the hearing on 19 August 2026, we made the following orders: 1. The application for leave to appeal on the sole ground of appeal is refused. 2. The appellant's application in an appeal filed on 12 June 2026 is dismissed. 3. The appeal is dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. TI Associate to the Hon Justice Mitchell 20 AUGUST 2026 -- 17 of 17 --