HCP v The State of Western Australia - [2019] WASCA 38

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HCP -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 38
CORAM:   BUSS P
MAZZA JA
BEECH JA

HEARD:   23 NOVEMBER 2018
DELIVERED          :   22 FEBRUARY 2019
FILE NO/S:   CACR 103 of 2018
BETWEEN:   HCP
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   HERRON DCJ
File Number             :   IND 335 OF 2017

Catchwords:

Criminal law - Appeal against conviction - Appellant convicted after trial of six counts of sexually penetrating a child under the age of 13 years - Whether a school report about an incident at school involving the complainant was admissible - Whether the school report was relevant - Whether the school report concerned collateral facts

Legislation:

Criminal Code (WA), s 320(2)
Evidence Act 1906 (WA), s 25, s 79C

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

BBH v The Queen [2012] HCA 9; (2012) 245 CLR 499
Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024
HAR v The State of Western Australia (No 2) [2015] WASCA 249; (2015) 49 WAR 266
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
MNO v The State of Western Australia [2009] WASCA 59; (2009) 193 A Crim R 466
Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610
Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650

BUSS P:

The appellant has applied for leave to appeal against conviction.
The appellant was charged on indictment with seven counts of child sex offending against a girl, M.
Count 1 alleged that on a date unknown between 22 January 2011 and 21 January 2014, the appellant sexually penetrated M, a child under the age of 13 years, by penetrating her anus with his penis, contrary to s 320(2) of the Criminal Code (WA) (the Code).
Count 2 alleged that on another unknown date between 22 January 2011 and 21 January 2014, the appellant sexually penetrated M, a child under the age of 13 years, by penetrating her vagina with his penis, contrary to s 320(2) of the Code.
Count 3 alleged that on another unknown date between 22 January 2011 and 21 January 2014, the appellant sexually penetrated M, a child under the age of 13 years, by engaging in cunnilingus, contrary to s 320(2) of the Code.
Count 4 alleged that on another unknown date between 22 January 2011 and 21 January 2014, the appellant sexually penetrated M, a child under the age of 13 years, by penetrating her anus with his finger, contrary to s 320(2) of the Code.
Count 5 alleged that on same date as in count 4, the appellant sexually penetrated M, a child under the age of 13 years, by penetrating her vagina with his finger, contrary to s 320(2) of the Code.
Count 6 alleged that on the same date as in count 4, the appellant sexually penetrated M, a child under the age of 13 years, by again penetrating her anus with his finger, contrary to s 320(2) of the Code.
Count 7 alleged that on the same date as in count 4, the appellant sexually penetrated M, a child under the age of 13 years, by again penetrating her vagina with his finger, contrary to s 320(2) of the Code.
The appellant pleaded not guilty. On 16 February 2018, after a trial before Herron DCJ (the trial judge) and a jury, the appellant was convicted by the jury of counts 1, 3, 4, 5, 6 and 7 and acquitted by the jury of count 2.
I would refuse leave to appeal. My reasons as follows.

The appellant's legal representation at trial and in the appeal

The appellant was represented at the trial by an experienced and competent criminal defence lawyer.
On 31 May 2018, the appellant filed his appeal notice in this court. He was represented by lawyers between 17 September 2018 and 21 November 2018. His appellant's case was prepared and filed by his lawyers. On 21 November 2018, the appellant filed a notice of self‑representation.

Overview of the State's case at the trial

The State's case at the trial was, in summary, as follows.
The victim, M, was aged between 4 and 6 years and the appellant was aged between 32 and 35 years when the alleged offending occurred.
M lived with her mother, twin sister and older brother. M had an older half‑sister, S. At the time of the alleged offending, S lived with the appellant, who was S's partner. S and the appellant had a son, R, who was born in July 2009.
In April 2016, M told her mother that the appellant had sexually assaulted her. The police were informed of M's allegations shortly afterwards.
The alleged offences occurred while M was visiting and staying with S and the appellant at their home. M's evidence about the alleged offences was to the following effect.
Count 1 allegedly occurred when M and the appellant were alone together at what was referred to as the appellant and S's 'old house'. After S had left the house to go shopping, M was sitting on a chair in the lounge room. M was about to have a shower. The appellant came into the lounge room holding a plastic bag. He told M to stand up. She did so. The appellant then pulled down his pants and pulled down her pants. The appellant stood behind M and she faced forward. They were both in front of the couch. The appellant then inserted his penis into M's anus. After he had moved his penis backward and forward in her anus, the appellant stopped and removed his penis. The appellant then placed a plastic bag under M and she defecated into the bag. After she defecated into the bag, the appellant resumed penetrating M's anus with his penis. The appellant then received a text message from S indicating that she would be home soon. The appellant stopped, pulled up his pants, pulled up M's pants, disposed of the plastic bag and walked into his bedroom. M said that after this incident her bottom felt 'weird and a tiny bit sore' and 'tinkly and stuff'. She did not suffer any bleeding and the pain that she experienced subsided after an hour.
Count 2 allegedly occurred on another occasion at the old house. The incident happened in R's room. M could not remember where R or S were at the time. M stood in front of and faced the appellant. He told her to remove her pants and boxer shorts. She did so. The appellant then pulled down his pants and underpants. He then inserted his penis into M's vagina. M said the appellant's penis was 'going up and down'. When he heard R or S, the appellant stopped and pulled up his pants. Afterwards, M's vagina felt 'a little bit sore and tinkly, like things [had] been in there, like sand'. When M returned home she went to the toilet and noticed 'a bit of blood'.
Count 3 allegedly occurred when M was staying at what was referred to as the appellant and S's 'new house'. The offence was committed at night after the appellant had washed M in the bathroom and dried her. M went into the lounge room. Before the appellant put M's nappy on, which she wore at night, he lifted up her legs, opened them and licked her vagina. At the time she was lying on a mattress in the lounge room.
The offending the subject of counts 4, 5, 6 and 7 allegedly occurred when M was staying at the new house. The offences were committed while the appellant washed M in the shower and then dried her. On each of those occasions the appellant allegedly penetrated M's anus or vagina with his fingers.
M's mother and S were State witnesses. They gave contextual background evidence; in particular, evidence that M occasionally visited and stayed with S and the appellant at their home.
In addition to the offending pleaded in the indictment, M gave evidence of other incidents when the appellant had allegedly sexually abused her. The other incidents were lacking in detail, but involved allegations that the appellant had inserted his penis into her vagina, the appellant had licked her vagina and she had seen S and the appellant in bed watching pornographic films. The State relied on the evidence of these other incidents as relationship evidence.

Overview of the appellant's case at the trial

The appellant's case at the trial was, in summary, as follows.
The appellant maintained that none of the alleged sexual offending had occurred. M was not an honest or reliable witness. She had given evidence that was untruthful and false.
Defence counsel contended that M's account of what had occurred was implausible. There were significant inconsistencies in her evidence.
Defence counsel suggested that M had lied to gain her mother's attention because her mother was focused on dealing with behavioural issues and disabilities suffered by M's twin sister and older brother. Defence counsel also suggested that M had become aware of sexual behaviour due to her exposure to pornographic films watched by her father.
The appellant did not give evidence at the trial or adduce any evidence.

The ground of appeal

The sole ground of appeal alleges that the trial judge 'erred and/or there was a miscarriage of justice when [his Honour] considered, over objection, that a school report concerning an incident of a sexual nature involving [M] was inadmissible'.

The school report referred to in the ground of appeal

On 31 August 2017, M's evidence was pre-recorded at a hearing before Derrick DCJ.
During her cross‑examination at the pre-recorded hearing, M was asked, without objection, about an incident at school (the schoolyard incident) (ts 71). The cross-examination was as follows:
Do you remember there was a time when you were at school … that you told some boys to put their fingers in their bottoms? Do you remember that? --- Yes, I ---
And you got into trouble for telling those boys to do that, didn't you? ---I did not say that. One of my friends said that.
Didn't the boys say that it was you that told them to put their fingers up their bottoms? --- No, I did not say that.
And wasn't it after that, that your mum asked you about [the appellant] and then you said, 'Oh, it's true, he did sexually abuse me'? Was that true? --- Yes (ts 71).
A teacher at M's school prepared a written report dated 24 March 2016 (the school report) about the schoolyard incident. The report reads, relevantly:
M was [involved] in an incident at recess with [B], [F] and [C] where she told the boys to stick their fingers in each other's bottoms as it would make her laugh. [F] did this a number of times to [B]. When I spoke to all [four] children they said it was only a joke and they were mucking around. I emphasised the importance of not touching anyone's privates and said I would be contacting all parents.
The school report was disclosed by the State to the appellant and formed part of the State's brief.
The alleged offending the subject of the counts on the indictment occurred between 22 January 2011 and 21 January 2014, when M was aged between 4 and 6 (nearly 7) years. The schoolyard incident occurred on 24 March 2016, when M was aged 9 years. M disclosed the alleged offences to her mother in April 2016.

The trial judge's ruling in relation to the admissibility of the school report

On 13 February 2018, at the commencement of the trial, defence counsel applied to the trial judge, in effect, for a ruling that the evidence embodied in the school report was relevant and admissible and that defence counsel was entitled to tender the document pursuant to s 79C of the Evidence Act 1906 (WA). Defence counsel argued that the school report was relevant 'in the sense that [the school report] relates to an incident that [M] was involved in, it was an incident where she and three … boys were together at the school and she, according to this report, encouraged those boys to put their fingers into their anuses' (ts 85). Defence counsel contended that the school report was relevant as to 'the issue of [M's] sexual activity and the influences that [she has] had as part of the defence case that she was already aware of sexual activities and that she has been involved in [sexual activities] at school' (ts 85). After hearing further submissions from defence counsel and, also, submissions from the prosecutor, the trial judge expressed his 'preliminary view' that the school report was not relevant to any issue in the proceedings and was therefore inadmissible. His Honour said:
I'm not going to make a ruling on it at the moment. It's more appropriate to make a formal ruling once I've heard the evidence and understand in more detail how this may or may not be relevant. But my preliminary view is it's not relevant and is therefore not admissible. It's also, it seems to me, … collateral and is therefore objectionable on that basis, whether or not it's a business record.
That's my preliminary view, but I'm not going to make a formal ruling until I've heard the evidence and understand what the evidence is in more detail. You can renew your application if you wish to do so at an appropriate time. But my preliminary view is it's inadmissible (ts 90).
Defence counsel did not renew his application in relation to the admissibility of the school report before the close of the appellant's case. Indeed, the matter was not referred to again until shortly after the jury had retired to consider its verdict. The following exchange then occurred between defence counsel and his Honour:
RYAN MR: There's just really a small matter of housekeeping, your Honour. I just bring it to your Honour's attention, I don't know what your Honour wants to do about it but obviously at the beginning of the trial, I made submissions about the school record and your Honour gave a preliminary view, I accept that, but your Honour did say that you'd wait until you'd heard all the evidence and give - - -
HERRON DCJ: You never revisited it, Mr Ryan.
RYAN MR: No.
HERRON DCJ: I just assumed it was not an issue that you wished to pursue.
RYAN, MR: Well, given what your Honour had said, I didn't- I couldn't - there wasn't anything more for me to add.
HERRON DCJ: Well, I'd said to you I needed - my preliminary view was it wasn't admissible for the reasons I outlined but I wouldn't rule finally at the moment, I'd wait and see how the evidence emerged and it was up to you to make the application - - -
RYAN, MR: Well, look - - -
HERRON DCJ: - - - again. If it's of any assistance, in view of the evidence that was led, I wouldn't have changed my preliminary view.
RYAN, MR: No.
HERRON DCJ: My view will remain that it wasn't admissible, both on the grounds of relevance and because it was collateral (ts 299).

The ground of appeal: the appellant's submissions

The appellant submitted that the school report was relevant and the trial judge should have permitted defence counsel to tender it.
It was submitted that the relevance of the school report to the appellant's case '[flowed] from the fact that [M's] involvement in the schoolyard incident went to her state of mind at the time she [disclosed the alleged offending to her mother] and, in particular, the degree of her knowledge of sexual matters and sexual conduct at that time, which was a significant issue given her very young age'. It was argued that the 'timing [of the schoolyard incident] was pivotal to the [appellant's] case and was not damaged by the fact that it post-dated the [occurrence of the alleged] offences'.
The appellant contended that M's 'general sexual experience, as portrayed by her involvement in the schoolyard incident, reflected on the level and degree of her sexual experience prior to [her] disclosure [of the alleged offending to her mother]'. According to the appellant, this alleged 'general sexual experience, as portrayed by [M's] involvement in the schoolyard incident' would have assisted the appellant in rebutting the prosecutor's argument in her closing address to the effect that the alleged offending, as described by M (including the sensation she experienced when the appellant penetrated her vagina and anus), could not have been learnt or fabricated by a 9 or 10‑year‑old child.
It was argued that the tendering of the school report would have assisted the appellant in establishing 'the extent of information which was available to [M] in relation to sexual matters at the time she made disclosure to her mother against the appellant'.
According to the appellant, his Honour's ruling that the school report was irrelevant and therefore inadmissible was erroneous and occasioned a miscarriage of justice.
The appellant asserted that his submissions were supported by the decision of this court in MNO v The State of Western Australia.[1]
[1] MNO v The State of Western Australia [2009] WASCA 59; (2009) 193 A Crim R 466.

The ground of appeal: its merits

I will assume (favourably to the appellant), but without deciding, that the appellant may raise the ground of appeal even though defence counsel did not renew his application in relation to the admissibility of the school report before the close of the appellant's case at the trial.
In Goldsmith v Sandilands,[2] Gleeson CJ made the following observations in relation to the concept of relevance and the admissibility of evidence:
(a)The primary rule of evidence is that a court will receive, and will only receive, evidence that is relevant to the issues at the trial.
(b)Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue at the trial.
(c)The general rule that relevant evidence will be received is qualified by other rules.
(d)One such qualification limits investigation of collateral matters.
[2] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2].
The question as to the relevance of evidence, in a criminal trial before a judge and jury, is whether the evidence, if accepted, could rationally affect the jury's assessment of the probability of the existence of a fact in issue. See Smith v The Queen.[3] Evidence may have that effect directly or indirectly. See Roach v The Queen.[4] Evidence may be relevant if it assists in the evaluation of other evidence. See HML v The Queen.[5] Evidence is either relevant or it is not. No question of discretion is involved. A decision as to whether evidence is relevant is based on logic and general experience. See BBH v The Queen.[6] If evidence is not relevant, no further issue arises as to admissibility. Irrelevant evidence will not be received. See Smith [6]. The rules of exclusion at common law arise for consideration only with respect to evidence which is relevant. See Papakosmas v The Queen;[7] Roach [14].
[3] Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 [7] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).
[4] Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610 [12] (French CJ, Hayne, Crennan & Kiefel JJ).
[5] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 [6] (Gleeson CJ).
[6] BBH v The Queen [2012] HCA 9; (2012) 245 CLR 499 [51] (French CJ).
[7] Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 [21] (Gleeson CJ & Hayne J).
The collateral evidence rule states that an answer given by a witness to a question in cross-examination relating to collateral issues is final, and may not be contradicted or rebutted by other evidence. This common law principle is subject to exceptions. The general rule does not apply to:
(a)evidence of prior inconsistent statements;
(b)evidence of previous convictions;
(c)evidence of reputation for untruthfulness;
(d)medical evidence affecting the reliability of a witness's evidence; and
(e)evidence of bias, interest or corruption.
There are probably some other exceptions. See Nicholls v The Queen.[8]
[8] Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 [248] (Hayne & Heydon JJ; Gleeson CJ agreeing).

In Nicholls [38], McHugh J explained the nature of collateral facts as follows:
Collateral facts are 'facts not constituting the matters directly in issue between the parties' (Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 546 per Latham CJ; Goldsmith (2002) 76 ALJR 1024 at 1025 [3]; 190 ALR 370 at 372 per Gleeson CJ) or 'facts that are not facts in issue or facts relevant to a fact in issue' (Goldsmith (2002) 76 ALJR 1024 at 1030 [32]; 190 ALR 370 at 378 per McHugh J). In most cases, a fact that affects the credibility of a witness is a collateral fact. Hence, an answer given by a witness to a matter that relates to credibility alone - in other words, a collateral matter - is final and cannot be rebutted.
Section 25 of the Evidence Act is concerned with questions put to a witness in cross-examination which relate to matters not relevant to the proceeding, except in so far as they affect 'the credit' of the witness by injuring his or her character, and whether (and, if so, to what extent) the imputation conveyed by the questions affects 'the credibility' of the witness. Section 25 empowers the court to intervene in a cross‑examination and decide whether, in the exercise of its discretion and having regard to the considerations specified in s 25(2), a witness should or should not be required to answer a question of the kind to which the provision applies. See, generally, HAR v The State of Western Australia[9] in relation to the proper construction and application of s 25. In the present case, s 25 was not invoked in the course of M's cross-examination or otherwise referred to at the trial.
[9] HAR v The State of Western Australia (No 2) [2015] WASCA 249; (2015) 49 WAR 266.
In my opinion, the trial judge was correct, in the present case, in ruling, in effect, that the evidence embodied in the school report was irrelevant and therefore inadmissible. I am of that opinion for the following reasons.
First, there were vast differences between the nature, quality and context of the activities recorded in the school report, on the one hand, and the nature, quality and context of the conduct allegedly engaged in by the appellant against M, on the other. The schoolyard incident occurred between children all of whom were aged about 9 years. The conduct allegedly engaged in by the appellant against M involved very serious criminality by a mature adult man (aged between 32 and 35 years) against a young girl (aged between 4 and 6 years). The appellant's alleged conduct involved grotesque child sex abuse. The schoolyard incident was not even remotely comparable. Secondly, contrary to the appellant's submissions, the schoolyard incident recorded in the school report did not relate to M's 'general sexual experience'. The incident was not a 'sexual experience' of or in relation to M. M did not sexually penetrate or deal with any of the other children. None of the other children sexually penetrated or dealt with M. The incident did not relate to M's 'sexual experience' either specifically or generally. Thirdly, children aged about 9 years know that they and all other people have an anus. They are toilet trained. They know the physical structure of an anus and its physiological function. Fourthly, it is not unusual for some children of and under the age of 9 years to participate with each other in activities of the kind recorded in the school report as a game or in role‑playing. The schoolyard incident was of that character and was not probative of M's knowledge of sexual matters or conduct. Fifthly, there was a significant interval between the earlier occurrence of the alleged offending and the later occurrence of the schoolyard incident.
I am satisfied that the evidence of the schoolyard incident (as described in the school report), if accepted by the jury, could not rationally have affected the jury's assessment of the probability of the existence of any fact in issue.
In particular, the evidence of the schoolyard incident, if accepted, could not (either alone or in combination with any other evidence and either directly or indirectly) rationally have affected the jury's assessment of whether:
(a)the appellant had sexually penetrated M, as alleged in the counts in the indictment and her evidence; or
(b)M had fabricated those allegations, as alleged by the appellant.
Further, the evidence of the schoolyard incident, if accepted by the jury, could not have assisted the jury in the evaluation of other evidence.
The decision of this court in MNO is distinguishable and does not support the appellant's submissions.
The appellant in MNO appealed against his conviction, after a trial before a judge and jury, on eight counts of sexual penetration of a child under the age of 16 years and two counts of indecent dealing with a child under the age of 16 years. The offending involved two complainants, one referred to as 'Diane' and the other as 'Lorraine'.
The sole ground of appeal in MNO related to a ruling made by the judge before whom the evidence of the complainants was pre-recorded, to the effect that defence counsel was precluded from cross-examining the complainants in relation to certain matters arising from their previously recorded interviews with police.
In MNO, defence counsel had applied to cross‑examine the complainants about whether they had heard their mother say that men other than the appellant had engaged in sexual acts with them. Defence counsel's application was based on a passage in 'Diane's' video-recorded interviews with police in which 'Diane' said, in substance, that she had overheard her mother speaking about other men having performed sexual acts upon 'Diane' of the same kind as those allegedly performed by the appellant.
At the trial, the appellant in MNO gave evidence in which he denied the allegations made by each complainant.
The prosecutor in MNO, in his closing address to the jury, referred to the level of detail to which each complainant descended in her description of the various sexual activities engaged in by the appellant with her. The prosecutor submitted to the jury that the complainants would be unlikely to be able to recount that level of detail, or to describe the experiences which they said they had undergone, unless the incidents had in fact occurred. It was implicit in the prosecutor's submissions that the complainants (one of whom was aged between 9 and 11 years and the other of whom was aged between 8 and 10 years at the time of the offending) would be unlikely to have sufficient knowledge of sexual conduct to be able to relate those matters in the detail to which they descended unless the incidents had in fact occurred.
The purpose of defence counsel's proposed cross-examination in MNO was to rebut that aspect of the prosecution's case. The proposed line of questioning by defence counsel, if successful, may have provided an alternative explanation for the complainants' detailed knowledge and description (often in coarse language) of a variety of sexual behaviours.
In MNO, this court held that the judge was in error in refusing to permit defence counsel's proposed line of cross-examination. The proposed cross‑examination was relevant to the source of the complainants' knowledge. This court held, however, that the appeal should be dismissed because no substantial miscarriage of justice had occurred.
By contrast with the present case, the matters on which defence counsel wanted to cross-examine in MNO concerned alleged serious child sex abuse by an adult male (not the appellant) against a young child that was directly comparable to the alleged serious child sex abuse perpetrated the appellant. The evidence in question in MNO was relevant but the evidence in question in the present case was not.
In my opinion, the trial judge was also correct, in the present case, in ruling, in effect, that the questions which defence counsel put to M in cross‑examination about the schoolyard incident (as described in the school report) concerned collateral facts. Those facts could only affect M's credibility as a witness. Her answers were therefore final and could not be rebutted by the tendering of the school report.
The ground of appeal is without merit.

Conclusion

Leave to appeal should be refused because the ground of appeal does not have a reasonable prospect of success. The appeal must be dismissed.

MAZZA JA:

I have had the opportunity of reading in draft the separate reasons of Buss P and Beech JA. For the reasons each gives, I, too, would refuse leave to appeal and dismiss the appeal.

BEECH JA:

The background, the course of and respective cases at the trial, the relevant legal principles, the ground of appeal and an outline of the school report the subject of the ground, are set out in the reasons of Buss P.
For two reasons, in my opinion, the ground of appeal has no merit.
First, the ground alleges that the judge erred and/or there was a miscarriage of justice, when the judge 'considered' that the school report was inadmissible. The language of the ground reveals its flaw. At the commencement of the trial, the judge did not make a ruling; his Honour expressed what he described as a 'preliminary view'.[10] The judge invited counsel for the appellant to renew the application to tender the school report, should he wish to do so.[11] That invitation was not taken up; as the appellant accepts,[12] and as revealed in the exchange set out at [37] of Buss P's reasons, the issue of the school report's admissibility was not revisited during the trial. In those circumstances, the judge did not err and no miscarriage of justice was occasioned.
[10] ts 90.
[11] ts 90.
[12] Appellant's submissions [15].
Secondly, and in any event, in my opinion, the preliminary view expressed by the trial judge was correct. The appellant proposed to tender the school report pursuant to s 79C of the Evidence Act. That section makes admissible statements in a document that tend to establish a fact if direct oral evidence of that fact would be admissible. The school report was not admissible because, for the reasons below, the facts stated in the school report were not relevant.
A question of relevance directs attention to the facts in issue. The facts in issue were, relevantly, whether the appellant had done the acts the subject of the counts on the indictment.

One basis on which evidence may be relevant is if it assists in the evaluation of other evidence that is relevant to a fact in issue.[13] That is the basis on which the appellant relies.
[13] Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610 [12].
The appellant claims, in effect, that the school report was relevant because it was capable of assisting the jury's evaluation of M's evidence. The appellant submits, in substance, that:
(1)The incident the subject of the school report was 'directed at [M's] general sexual experience', including before her disclosure to her mother of her allegations against the appellant.[14]
(2)M's general sexual experience and degree of knowledge of sexual matters, before her disclosure of the appellant's alleged conduct, was relevant because the jury would have viewed it as unlikely that a complainant of M's young age would have had the sexual knowledge revealed in her disclosure, unless the alleged sexual conduct did in fact occur.[15]
(3)There was a 'very real risk' that the jury would have asked themselves how, unless the alleged acts actually took place, a complainant of such tender years had the sexual knowledge that she did, in describing the acts of penetration she said had been committed by the appellant.[16] The appellant points to the prosecutor's closing submission to the jury, which suggested that M's evidence was so compelling that it could not have been learnt by a 9 or 10‑year‑old child, and that her descriptions of what occurred were descriptions that only a 9 or 10‑year‑old child who had experienced those acts could have provided.[17]
(4)The contents of the school report were capable of explaining, other than by reason of the occurrence of the alleged conduct of the appellant:
(a)why, by the time she complained of the appellant's conduct to her mother, M was able to describe the acts said to have been committed by the appellant; and
(b)the giving by M of the evidence she gave at trial.[18]
[14] Appellant's submissions [17], [19].
[15] Appellant's submissions [17].
[16] Appellant's submissions [11].
[17] Appellant's submissions [23], referring to ts of closing addresses 8.
[18] Appellant's submissions [17], [22], [26].
In support of these submissions, the appellant relies,[19] by analogy, on MNO v The State of Western Australia.[20]
[19] Appellant's submissions [22], [24], [25].
[20] MNO v The State of Western Australia [2009] WASCA 59; (2009) 193 A Crim R 466.
In my opinion, these submissions are entirely without substance. Nothing that was recorded in the school report was a sexual experience, or could be said to bear in any way upon M's sexual experience or her knowledge of sexual matters. Unlike the contested evidence in MNO, the incident the subject of the school report is incapable of providing any explanation for the description by M, in her disclosure to her mother and in her evidence, of the acts she said had been done to her by the appellant. The fact of having told some 9‑year‑old male classmates to put their fingers in each other's bottoms does not assist a 10‑year‑old child's ability to describe the acts the subject of M's disclosure and evidence, namely acts of sexual penetration done to her by a mature man.
As a matter of logic and common experience,[21] the conduct described in the school report is so fundamentally different in nature and context to be entirely unrelated to the conduct the subject of the charges and of M's disclosure and evidence. Acceptance that M had told some 9‑year‑old male classmates to put their fingers in each other's bottoms to make her laugh was incapable of rationally affecting the jury's assessment of the probability of whether the appellant committed the acts the subject of the indictment.[22]
[21] BBH v The Queen [2012] HCA 9; (2012) 245 CLR 449 [51].
[22] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2].
Insofar as the school report was tendered to contradict M's evidence at trial that she did not tell the boys to put their fingers in each other's bottoms, the report went only to M's credibility and thus was collateral.[23]
[23] Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 [1], [38], [248], [249].
For these reasons, the ground of appeal is without merit. Leave to appeal must be refused and the appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
FN
Research Associate to the Honourable Justice Buss
22 FEBRUARY 2019