Director of Public Prosecutions v Kamalasanan (Ruling No 4)

[2018] VSC 379

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2017 0113

DIRECTOR OF PUBLIC PROSECUTIONS

v  

ARUN KAMALASANAN

AND

S CR 2017 0112

DIRECTOR OF PUBLIC PROSECUTIONS

v  

SOFIA SAM

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 10 November 2017
DATE OF RULING:	14 November 2017
DATE OF REASONS:	10 July 2018
CASE MAY BE CITED AS:	DPP v Kamalasanan (Ruling No 4)
MEDIA NEUTRAL CITATION:	[2018] VSC 379

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CRIMINAL LAW — Evidence — Admissibility — Murder — Relationship evidence — Whether evidence relevant to facts in issue — Evidence admissible.

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APPEARANCES:		Counsel		Solicitors
For the Director of Public Prosecutions		Ms K E Judd QC with Mr J H Shaw		Mr J Cain, Solicitor for Public Prosecutions
For the Accused Kamalasanan		Mr P Tehan QC with Mr A V Chernok		James Dowsley & Associates
For the Accused Sam		Mr P J Hannebery with Ms A J Burnnard		Victoria Legal Aid

HIS HONOUR:

1. Arun Kamalasanan and Sofia Sam are charged with the murder of Sofia Sam’s husband, Sam Abraham. At trial, the prosecution proposes to lead evidence that is said to demonstrate the nature of the relationship between Kamalasanan and Sam.

1. Part of the relationship evidence that the prosecution seeks to adduce are entries in a diary made by both Kamalasanan and Sam.  The diary entries were made between 28 January 2013 and 22 October 2013.  The prosecution also proposes to lead the details of entries made in an electronic diary on a computer hard drive found at Kamalasanan’s home after his arrest.

1. Sam and her son, ‘R’, arrived in Australia on 2 December 2012 and her husband arrived on 26 May 2013.  Kamalasanan arrived in Australia on 7 July 2013.

1. The details of the significance of the diary are set out in the Summary of Prosecution Opening:

The deceased man, Sam ABRAHAM, and both accused were all born in India. They all lived in the State of Kerala.  Sam ABRAHAM and the female accused were married in India in 2008.  Their son, Reyhan, was also born in India.  Reyhan was six and a half when his father was killed.

On 2 December 2012, the female accused and Reyhan moved to Melbourne (Immigration Records – Deps 876).  Sam ABRAHAM was working in Dubai at the time.  Sam ABRAHAM joined the female accused and Reyhan in Melbourne on 26 May 2013 (Immigration Records – Deps 868).

From January 2013, the female accused was in possession of a diary (Deps 2518). Between 28 January 2013 and 18 July 2013, the female accused made numerous entries in the diary. Those entries were in English, Hindi, and Malayalam. Those entries included the following (translated into English where necessary):

·“Brought this diary for 3$ You know why I need this diary?? Its a secret I will tell you later OK” [sic] (28 January, Deps 2533)

·“We never know Y we like someone more than others?? Why … we love some one without reason Why we feel happy to think them their presence … their caring some relations has no explanation” [sic] (29 January, Deps 2533)

·“I feel to hug you & comfort u”  “I want to hug you and make all your sorrows disappear” (30 January, Deps 2533, translation – Deps 2586)

·“Was waiting  With your memories on my mind, I’m waiting for you” (2 February, Deps 2533, translation – Deps 2586 )

·“You are unable to meet me … I’m unable to live … Miss u … a lot …” (3 February, Deps 2533, translation – Deps 2586)

·“I wish to sleep in your arms but I can’t do that I want to be yours but you are not mine You are the one for me but you don’t belong to me” (8 February, Deps 2534, translation – Deps 2586)

·“I do remember you first in this day” “I’m the lucky girl in this world but on the other hand I am still the unlucky gal” (14 February, St Valentine’s Day, Deps 2535)

·“Miss you a lot dear Can you hold me tight … I want to drift away in your love I want to forget myself in your arms Just come for a moment Take me in your arms Hug me tight … hold me rude … I am here for you … miss you dear” (17 February, Deps 2535, translation –  Deps 2587)

·“Why I am made with rock heart    Why I am so cruel   Why I am so cunning. I you make me do bad things   Why you make me force to do bad things why you made me bad … “ [sic] (5 March, Deps 2538)

·“Its my son’s birthday today. 4^th birthday at Aus” (8 March, Deps 2538, translation – Deps 2588)

·“I love you a lot   a lot means a lottt   but its not the way as you do bcoz ‘YOU ARE NOT MINE’” [sic] (26 March, Deps 2541) 

·“My first interview in AUSTRALIA I was very much happy to attend the interview. You gave me courage  your words make me proud of myself  I feel proud to be yours I just think if you are with me I can reach heights” (12 April, Deps 2543)

·“ ‘I’m not angry that I can’t have you … but I’m sad because I know what I’m missing’ ” (18 April, Deps 2544)

·“Freedom of life   This is the need or right of each and every individual … and when this not allowed … it makes the life worst … especially the gals have to suffer always” [sic] (23 April, Deps 2545)

·“I miss you A little too much A little too often and A little more everyday” (25 April, Deps 2545)

·“AM I DOING WRONG !!??  They say I am wrong … they say I am bad … they say I always do mistakes … all are there to correct me!! They say I don’t know anything They say I have ‘stubbornness’ stubborn female They will say I am bad” (10 May, Deps 2547, translation – Deps 2589)

·“I am kind of habituated to you  What magic have you and your love done?” (22 May, Deps 2549, translation – Deps 2589)

·“Miss you dear … I thought to meet you today   I am in bus now   I brought it to give you but couldn’t give it  I feel like running and coming close to you but my heart is helpless  C U SOON” (10 July, three days after the male accused arrived in Australia, Deps 2556, translation – Deps 2589)

·“I love you  I miss you really miss you in my life I was afraid that I should give this to you or not. Now it reached your hand I am happy to be with you” (15 July, Deps 2557)

·“Planning is always needed in what we do and its the thing we always miss” and the printed words “An idea without a plan is no more than a dream” are circled. (18 July, Deps 2557)

The male accused moved to Australia on 7 July 2013 on a student visa (Immigration Records – Deps 886).  His wife and son remained in India.

Between 23 July 2013 and 8 August 2013 the male accused made several entries in the same diary. Those entries included the following:

·“It may take thousands of books to describe how much I love my love my eternal love … It took a long time to gather the strength to let her know about my love and how much I love. Now. She knows … How much I love her. I flew in to Australia on 6^th evening July 2013 on Singapore airlines. And reached Melbourne on 07/07/2013 4:02 PM. It was a surprise to her when I called her from my Australian mobile.” (23 July, Deps 2558)

·“I just need to love you till my last breath. To help you always be yourself. But I wish to live a life with you … And at the end of that life I will wish one more life with you. I wont be enjoying my life till I get a life to love with you.”  (23 July, Deps 2558)

·“Oh God … You can do everything … My love for her is not fake. That’s the gift you gave to me … Let me love her for ever and a little more everyday.” (6 August, Deps 2560)

The female accused made further entries in the diary on 19, 20, 21 August 2013, and 10 and 11 September 2013. Those entries included the following:

·“You know y I have smiled when we were walking down the steps. I just remembered the college days … When you used to come near me to ask something and after that you just go fast I used to make my steps faster to reach you” (21 August, Deps 2562)

·“Sorry dear … sorry … I didn’t mean to hurt you … I heard the sound from your heart asking me ‘why the hell is like this why I can’t choose my own way or style … why my interest always have to be kept aside.’” (10 September, Deps 2565) 

The male accused made further entries in the diary on 10 September 2013. Those entries included the following:

·“She is the best match for me in all ways, that is proved in all my days. But what to do. But I am sure that one day she will be mine this life or next. I’ll wait for her. I am afraid that how many more day I need to live in pain without her.” [sic] (10 September, Deps 2565)[1]

The last entry in the dairy is dated 22 October 2013.

[1]Summary of Prosecution Opening dated 4 September 2017 [14]–[20].

1. The prosecution also proposes to lead evidence of:

(a)money transfers between 1 January 2014 and 8 July 2015 where transfers were made by Sam to India where she gave Kamalasanan’s address as her own;

(b)a joint bank account which was opened on 8 January 2014 and closed on 30 November 2015; and

(c)an incident observed by Arun Yoshith, Sam’s employer, that in early 2015, he had seen Sam and Kamalasanan in a food court at lunchtime sitting close to one another and possibly holding hands.

1. Objection was taken by both Sam and Kamalasanan to the leading of all that evidence on the basis of relevance.

1. It was submitted that the diary entries were too remote in time to be relevant, ie. they could not rationally affect the probability of ‘the alleged causation of death of Ms Sam or her participation in any agreement. Even if the parties had feelings ascribed to them by the diary in 2013, it does not follow as a matter of logic that Ms Sam had the relevant intention for murder.’[2]

   [2]Defence Outline of Submissions as to Pre-Trial Issues dated 27 October 2017 [13].

1. The relevant statutory provisions are ss 55 and 56 of the Evidence Act 2008.  Those sections relevantly provide:

55       Relevant evidence

(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2)In particular, evidence is not taken to be irrelevant only because it relates only to—

(a)       the credibility of a witness; or

(b)       the admissibility of other evidence; or

(c)       a failure to adduce evidence.

56       Relevant evidence to be admissible

(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2)Evidence that is not relevant in the proceeding is not admissible.

1. The prosecution submitted that the diary entries:

could rationally affect jury’s assessment of the probability of a fact in issue, namely that the two accused had an agreement or understanding to murder the deceased.[3]

[3]Crown Submissions on Relevance of Diary, Money Transfers, Joint Bank Account and the Witness Yoshith dated 6 November 2017 [3].

1. It was further submitted:

Circumstantial evidence can be relevant evidence as it can indirectly affect the jury’s assessment of the probability of the existence a fact in issue. Circumstantial evidence need not have any particular degree of probative force to be relevant (see Odgers, Uniform Evidence Law in Victoria, 2nd ed, 225).[4]

[4]Ibid [5].

1. It was also proposed to lead evidence of an apparent continuing relationship after the death of Mr Abraham.

1. It was accepted by both Kamalasanan and Sam that there was a relationship between them, but it was of a platonic nature.  It does seem that, at the time the diary entries were made, there was a reasonably deep emotional relationship between them.  It was submitted that the continuation of a relationship of that kind could not be established. 

1. Kamalasanan and Sam in their respective interviews gave versions of meeting each other in Australia, which on examination of the diary material could be said to be untrue.  The prosecution sought to rely upon those untruths as post-offence conduct going to guilt.  I did not accept that submission but did accept that the material could be used as going to the credit of both Kamalasanan and Sam.

1. A separate argument existed in relation to Kamalasanan and that was that he had told an undercover operative that he had been planning the murder for three years.[5]  It followed that this material could be used in assessing the truthfulness of that assertion.  The truthfulness of what Kamalasanan said to the undercover operative was an issue in the trial

   [5]Depositions 1594, 1600 and 2409.

1. In relation to the other evidence objected to, a similar argument was advanced going to relevance on behalf of Sam.

1. The prosecution submitted that the evidence of the bank account and the money transfers was simply further evidence of a relationship and capable of putting a lie to what both Kamalasanan and Sam said about the circumstances of their meeting in Australia and the nature of their relationship.

1. Ultimately, the evidence of Mr Yoshith was such that no reliance could be placed on that part of the evidence which suggested that Kamalasanan and Sam were holding hands.  The rest of Mr Yoshith’s evidence therefore remained as part of the evidence of the ongoing relationship.

1. Mr Tehan QC, who appeared with Mr Chernok for Kamalasanan, adopted the submissions put by Mr Hannebery for Sofia Sam.  In summary, that is each of these pieces of evidence should be rejected on the basis of relevance.

1. Mr Hannebery made separate submissions about the prosecution’s allegation that what had been said by Sam in the interview was untrue.  He submitted that when Sam said she had met Kamalasanan after ‘six months’, ‘eight months’ or ‘a year’, it was not clear what event these suggested times were after.

1. It is really a matter for the jury to decide on the whole of the evidence whether Sam was attempting to convey to the interviewer a misleading description of how she came to meet Kamalasanan in Australia.

1. I indicated that I did not regard the prosecution’s submission that the ‘lie’ could be post-offence conduct as being a strong one.  I asked the prosecution to not open the matter.  I do regard it as being open to the jury to find that, on the whole of the evidence, the description of the relationship was untruthful and if the jury so found that it could go to the credit of Sam.

1. I am satisfied that when the whole of the evidence is looked at, it is reasonable for a jury to find that there was an ongoing relationship which continued even after the death of Sam Abraham.

1. The joint bank account was operated between January 2014 and 20 November 2015 and there were numerous transactions reflected in the statements relevant to that account.  The money transfers took place between January 2014 and July 2015.

1. That evidence is capable of showing a relationship which continued after the last diary entry in October 2013.  I am satisfied that the conduct shown by the use of the bank account and the conduct of the money transfer as being sufficiently personal for a jury to conclude that the depth of the relationship shown in the diary entries continued.  That is, I do not accept the mere elapse of time between the diary entries and the murder as determinative of its lack of relevance.

1. I am satisfied that the nature of the relationship between Arun Kamalasanan and Sofia Sam is relevant and goes to whether the jury could conclude that Arun Kamalasanan and Sofia Sam jointly killed Sam Abraham as the law understands it. 

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