Frigger v WA

[2026] WASCA 114

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

1. Criminal law
2. › Appeals
3. › Second or subsequent appeal against conviction
1. Criminal law
2. › Appeals
3. › Fresh and compelling evidence — new and compelling evidence — distinction
1. Criminal law
2. › Appeals
3. › Leave to appeal — reasonable prospect of succeeding
1. Criminal law
2. › Offences
3. › Perjury — false statement under oath — materiality

Evidence supporting a contention that could have been advanced at trial with reasonable diligence is 'new' rather than 'fresh' evidence under s 35D of the Criminal Appeals Act 2004 (WA), even where a post-trial judicial decision touches on the same subject matter, if the underlying factual basis was available before trial.
A ruling admitting a document in one set of proceedings does not remove confidentiality restrictions imposed by court orders in separate proceedings; such restrictions continue to operate unless specifically set aside, and do not render previously restricted material 'fresh evidence' for the purposes of a second appeal.
Where the prosecution case was that two irreconcilable sworn statements proved one must be false, evidence tending to show which statement was false (rather than that neither was false) is not highly probative and does not constitute 'compelling' evidence within s 35D(4) of the CA Act.

Citation[2026] WASCA 114

CourtWASCA

JurisdictionWestern Australia

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