Kannan and Kannan v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0182

KANDASAMY KANNAN	Applicant
v
THE KING	Respondent

S EAPCR 2021 0193

KUMUTHINI KANNAN	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, NIALL and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2023
DATE OF JUDGMENT:	21 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 58
JUDGMENT APPEALED FROM:	DPP (Cth) v Kannan & Anor (Unreported, Supreme Court of Victoria, 23 April 2021, Champion J) (Conviction); [2021] VSC 439 (Sentence)

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CRIMINAL LAW – Appeal – Conviction – Application for extension of time to bring application for leave to appeal – Slavery – Possess a slave – Use a slave – Joint trial – Whether substantial miscarriage of justice occasioned by joint trial – Whether prosecution failed to isolate evidence admissible against accused – Whether judge failed adequately to direct jury as to evidence admissible against each accused – Whether risk of complicity reasoning – Extension of time refused.

CRIMINAL LAW – Appeal – Conviction – Application for extension of time to bring application for leave to appeal – Slavery – Possess a slave – Use a slave – Joint trial – Whether verdicts against each accused unreasonable or cannot be supported by the evidence – Extension of time refused.

CRIMINAL LAW – Appeal – Sentence – Application for extension of time to bring application for leave to appeal – Slavery – Possess a slave – Use a slave – Total effective sentence of 6 years’ imprisonment with 3 year non-parole period – Whether sentence manifestly excessive – Extension of time refused.

CRIMINAL LAW – Appeal – Sentence – Application for extension of time to bring application for leave to appeal – Slavery – Possess a slave – Use a slave – Total effective sentence of 8 years’ imprisonment with 4 year non-parole period – Whether parity principle breached – Extension of time refused.

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Counsel
Applicant Kandasamy Kannan:	Mr C Mandy SC with Ms G Connelly
Applicant Kumuthini Kannan:	Mr DA Dann KC with Dr G Boas
Respondent:	Mr P Doyle SC with Mr A Sprague
Solicitors
Applicant Kandasamy Kannan:	Peter Lunt Lawyers
Applicant Kumuthini Kannan:	Ravi James Lawyers
Respondent:	James Carter, Solicitor for Public Prosecutions (Cth)

PRIEST JA
NIALL JA
MACAULAY JA:

Introduction

After a trial of almost 10 weeks’ duration, on 23 April 2021 a jury in the Supreme Court found Kandasamy Kannan, now aged 58,[1] and his wife, Kumuthini Kannan, now aged 52,[2] guilty of intentionally possessing a slave[3] (charge 1) and intentionally exercising over a slave powers attaching to the right of ownership[4] (charge 2). The prosecution case — which, in essence, the jury must have accepted — was that, in an eight year period between 5 July 2007 and 30 July 2015, the Kannans possessed a ‘slave’, Rajalakshmi Natarajan, now aged 70, and exercised over her powers attaching to the right of ownership.
[1]His date of birth is 18 February 1964.
[2]Her date of birth is 27 September 1967.
[3]Criminal Code (Cth), s 270.3(1). The maximum penalty is 25 years’ imprisonment and a fine not exceeding 1500 penalty units.
[4]Criminal Code (Cth), s 270.3(1). The maximum penalty is 25 years’ imprisonment and a fine not exceeding 1500 penalty units.
Pleas in mitigation having been conducted, on 21 July 2021 the trial judge sentenced Kandasamy Kannan to three years’ imprisonment on the first charge, and six years’ imprisonment on the second, both sentences to commence that day.[5] The total effective sentence was thus six years’ imprisonment, upon which the judge fixed a non-parole period of three years. That same day, the judge sentenced Kumuthini Kannan to four years’ imprisonment on the first charge, and eight years’ imprisonment on the second, both sentences to commence that day. The total effective sentence was thus eight years’ imprisonment, upon which the judge fixed a non-parole period of four years.
[5]See Crimes Act 1914 (Cth), s 19(2).
Both Kandasamy Kannan and Kumuthini Kannan now seek an extension of time within which to file notices of application for leave to appeal against conviction and sentence.[6] If granted extensions of time, both applicants wish to seek leave to appeal against conviction and sentence.
[6]See Criminal Procedure Act 2009, s 313(1)(a).
With respect to conviction, Kandasamy Kannan seeks to rely on the following grounds:
1    The learned trial judge erred in directing the jury that it was entitled to have regard to the benefit derived by me from the use or possession of the complainant by the first accused in circumstances where I was charged as a principal and no head of accessorial liability was relied upon to ground the charges against me.
2    A substantial miscarriage of justice was occasioned by the joint trial of the applicant with his co-accused in circumstances where:
(a)the prosecution did not clearly identify to the jury the evidence it asserted was admissible in the applicant’s separate trial; and
,(b)the prosecution invited the jury:
(i)   to rely on evidence that was inadmissible in the applicant’s separate trial to reason towards his guilt; and/or
(ii) to use evidence to reason towards the guilt in a different way from the way it had disclosed in the separate trials application, the further revised prosecution summary of opening of 18.6.2019, the table of evidence and its opening address to the jury;
(c)the trial judge did not adequately direct the jury as to what evidence was admissible in the applicant’s separate trial; and
(d)the trial judge erroneously devolved to the jury the determination of what evidence was admissible in the applicant’s separate trial when that question was a matter of law for the judge with the result that:
(i)   the applicant was denied procedural fairness; and
(ii) there is a risk evidence inadmissible against the applicant was relied on by the jury to reach its verdict.[7]
3    The verdicts are unsafe or cannot be supported by the evidence.
[7]The applicant was given leave to substitute this ground for a ground formulated as follows: ‘The learned trial judge erred in refusing the application for separate trials’.
So far as sentence is concerned, Kandasamy Kannan relies on a ground that contends that the ‘individual sentences for charges 1 and 2 are excessive’, having regard to the absence of a determination ‘of the period over which each [applicant] was said to have used and possessed the complainant’, or ‘of the indicia of control [which] was said to have been exercised by the [applicant] as a principal offender’; and the matters in mitigation, ‘specifically the finding of exceptional circumstances vis-à-vis family hardship’.
Kumuthini Kannan seeks leave to appeal against her conviction on a single ground that contends that the guilty verdicts are ‘unsafe and unsatisfactory’. As to sentence, she relies on a ground that contends that the judge ‘erred in his application of the parity principle by imposing a sentence that was too disparate from the sentence imposed on [her husband]’.
For the reasons that follow, in each case we would refuse an extension of time within which to file the relevant notices of application for leave to appeal.

Background and overview

By way of essential background, Rajalakshmi Natarajan, the complainant, whom the jury concluded was the applicants’ slave, arrived in Melbourne from Tamil Nadu, India, on 5 July 2007. Ms Natarajan, an Indian national, has little education — she left school aged six years — and is illiterate and innumerate. She arrived in Australia on a tourist visa issued on 3 July 2007. A condition of the visa was she not engage in employment. Her visa expired on 5 August 2007, so that she was an unlawful non-citizen from then on.
Ms Natarajan had travelled to Australia pursuant to an agreement made between the applicant Kumuthini Kannan and Ms Natarajan’s son-in-law, Jawahar Krishnan, for Ms Natarajan to provide domestic services to the Kannan family. The Kannans organised and paid for Ms Natarajan’s travel, she having twice previously travelled to Australia to provide domestic services to the Kannan family. Upon her arrival, they took her passport.
After arriving in July 2007, Ms Natarajan lived at the Kannan family home at 3 Gillian Road, Mount Waverley, for eight years, until she was taken to hospital on 30 July 2015. During those years, she cared for the applicants’ three children, and undertook a variety of household chores.
Kumuthini Kannan maintained contact with Jawahar Krishnan between 2007 and 2012 through internet calls. Mr Krishnan would speak to the complainant during these calls. There was no contact made by Kumuthini Kannan after 2012, however, except for a call in 2014, and another in 2015.
In 2014, Kumuthini Kannan called Mr Krishnan and told him that the complainant was ill and not able to move. Mr Krishnan asked her to send Ms Natarajan back to India, but Kumuthini Kannan said she could not do so due to passport issues. Later, in May 2015, Mr Krishnan spoke to the complainant on the telephone. He became concerned that his mother-in-law was unwell, and asked Kumuthini Kannan to send Ms Natarajan home. Kumuthini Kannan claimed, however, that the complainant was too weak to travel.
A couple of months later, on 30 July 2015, Kumuthini Kannan made an emergency ‘000’ call requesting that an ambulance attend 3 Gillian Road. She told the emergency operator that an Indian woman, about 58 years old, who had been staying with the family on and off for the past seven years, had collapsed on the bathroom floor and was unable to get up. The woman, she said, had been there for about three hours, lying in a puddle of her own urine and shivering because the tiles on the bathroom floor were very cold. She said that she only knew the woman’s first name; the woman had left the house a number of times during her stay after receiving telephone calls from unknown persons; on each occasion she packed her bags, asked for money (which she was given), then left for an unspecified amount of time; the woman had come to stay with the family to help out following the birth of twins and was recruited via friends in India; and the woman did not have any travel or identification documents with her.
Attending paramedics found Ms Natarajan lying barely conscious in a pool of urine on the bathroom floor. She was in a parlous state of health, weighing a mere 40 kilograms, and suffering hypothermia, altered consciousness, urinary sepsis and untreated type 2 diabetes.
Kumuthini Kannan gave false details about the complainant to the paramedics who attended the house, and to staff at the Box Hill Hospital where the complainant was admitted. She falsely told hospital staff that: the complainant’s name was Rangan Rajalakshi; Rangan had been unwell and unsteady on her feet for the past four to seven days; she had observed Rangan at about 2.00 pm that day sitting on the bathroom floor; Rangan did not respond to questions and could only mumble; she left Rangan shortly afterward to attend a piano concert for her children, returning home at about 6.00 pm; at that time she observed Rangan lying in her own urine and contacted ‘000’; she was unsure if Rangan had any family members; and Rangan cleaned and cooked for the household.
Ms Natarajan remained in an intensive care unit at the Box Hill Hospital for two days, before being moved to a general ward. Social workers at the hospital were unable to obtain a consistent account from her about the circumstances of her arrival in Australia.
In August 2015, the Australian High Commission in India and the Indian Embassy in Melbourne received letters from the complainant’s family in India concerning the complainant’s welfare. As a result, on 24 August 2015, at the request of the Indian Consulate, Victoria Police Senior Sergeant Carl Keenan and other members of police visited the applicants’ home to check on the welfare of Ms Natajaran (who at that time was a patient at the Box Hill Hospital, having been admitted under a false name). The applicants told police that, in around 2007, they paid for the complainant’s airfare from India to Australia and sponsored her on a six month visa. They claimed that she had then left their premises with unknown people whom they thought may be relatives from Sydney or Darwin, and they had not seen her since she left their home in 2007.
On 24 September 2015, Ms Natarajan advised Australian Federal Police and members from the Department of Immigration and Border Protection that she had resided with the Kannans from 2007 and that she had been mistreated during that time. Between 8 October 2015 and 30 June 2016 she participated in six wide-ranging ‘VARE’[8] interviews — with one small exception,[9] she confirmed in her evidence that the contents of the VAREs were true and correct — which formed the backbone of her evidence-in-chief. In the course of the VAREs, Ms Natarajan alleged (among other things) that:
[8]Video and audio recorded evidence. By virtue of ss 15YA and 15Y(2) of the Crimes Act 1914 (Cth), a proceeding for a slavery offence is a vulnerable adult proceeding; and s 15YAA(1) provides that a vulnerable adult complainant, in relation to a vulnerable adult proceeding, is an adult who is, or is alleged to be, a victim of a slavery offence. Under s 15M(1), a video recording of an interview of a vulnerable adult complainant conducted by a ‘constable’ (or person authorised by the regulations) ‘may be admitted as evidence in chief’ of the complainant in a vulnerable adult proceeding.
[9]In her evidence, which was pre-recorded and played to the jury, Ms Natarajan said that she was mistaken when she said that the salary she was to receive in Australia was 7,000 Indian rupees. She wanted to change that sum to 6,000 Indian rupees.
·    she first met both applicants in India when they came for holidays;
·    they spoke to her son-in-law, Jawahar Krishnan in 2005, requesting her assistance in Australia, for which she would be paid;
·    she agreed to come and work for the applicants in 2005, and, for the six months she was employed with them, conditions were satisfactory;
·    upon her return to Melbourne in 2007, she was expected to work hard from the very beginning of her employment but in the past three years things had become much worse;
·    she was not allowed to leave the house on her own and was escorted by Kumuthini Kannan when she was required to attend family functions to look after the children or assist with the grocery shopping;
·    during the times when the family did take her on holidays and outings, her responsibility was to look after the children;
·    she was too afraid to speak to any other family members or friends who were in attendance, even if they could speak Tamil because of the fear the applicants would punish her later;
·    Kumuthini Kannan told her to say she had only been with the family for three or four months if she was asked, and to say that she was from Sydney, where she had family;
·    she did not receive any cash payments from the applicants for her work, and was not aware of any money being set to her family overseas (except when they wanted her son-in-law to pass money for them to their families in India);
·    she was given a number of silk saris by the applicants, but was unsure if this was in lieu of payment;
·    she also received small amounts of Australian currency on special occasions such as birthdays;
·    Kumuthini Kannan would regularly berate her and say things such as ‘your daughter should be a prostitute’ and ‘you have no one without me’;
·    if the cooking or cleaning were not done to the satisfaction of Kumuthini Kannan, she would use items — including frozen food and knives — to strike her;
·    Kumuthini Kannan also kicked her, pulled her hair and pushed her to the ground;
·    Kandasamy Kannan would often witness his wife’s attacks, and, while he did nothing to stop them, he would later ask her if she was okay and whether she needed medicine for pain relief;
·    she was not permitted to wear shoes or socks in the house, which resulted in her feet becoming cracked;
·    when she first arrived at the applicant’s house she had a healthy appetite and had been ‘fat’, but more recently she had been surviving on cups of tea and rice as her main sustenance;
·    occasionally when there was a family function she would eat sweets such as cake, but was often too tired to eat substantial meals, so that she lost a lot of weight;
·    her teeth began to fall out and Kumuthini Kannan took her to a dentist to get a set of false teeth;
·    she complained a number of times to Kandasamy Kannan that she was urinating blood, but he said that she would have to tell his wife;
·    about two years ago Kumuthini Kannan took her to a doctor who diagnosed diabetes and said that one of her legs may have to be amputated;
·    around 2013, she began to ask Kumuthini Kannan if she could return to India, but Kumuthini Kannan told her that her family would have to provide the money for her to do so;
·    she was able to speak with her daughter and son-in-law on the phone only occasionally, at which times Kumuthini Kannan would dial the number and listen to the conversation;
·    she was too ashamed to tell her family what had happened and did not want to return home without any money;
·    on one occasion during her final year at the house, in the early hours, when it was cold and dark, Kumuthini Kannan forced her to go to the shops and buy yoghurt for the children, and when she returned Kumuthini Kannan slapped and kicked her in the legs and abdomen, telling her husband to ‘mind his own business’ when he tried to intervene;
·    every year, around January, when the applicants and their three children would visit family overseas, she was locked in the house and not given a key;
·    at these times the back door and windows were sealed with tape by Kumuthini Kannan, and she was not permitted to leave the house for any reason, not even to take the rubbish to the bins in the front yard, so that the rubbish piled up and began to smell; and
·    she believed the front door of the residence was locked from the outside and did not try to open it; and
·    she believed that, even if she did get out, she would not be able to speak to anyone and she was unsure what would happen to her, so she remained inside.
The central issue in the trial was Rajalakshmi Natarajan’s credibility and reliability. Hence, in his address to the jury, senior counsel for Kandasamy Kannan (among other things) submitted:
What you’ve got to do is look at Natarajan’s evidence, as I say, with a cool, critical, dispassionate eye. And you’ve got to do it understanding that she is – and there’s no nice way of putting this, but she’s a demonstrated liar.
Counsel for Kumuthini Kannan submitted to the jury that Ms Natarajan’s evidence was ‘fabrication’, and included a ‘mess of conflicting allegations’.

Kandasamy Kannan: Conviction grounds 1 and 2 — Did a miscarriage of justice result from a joint trial?

Kandasamy Kannan sought a separate trial from his wife. The trial judge refused that application. In this Court, Mr Kannan contended that he had suffered a substantial miscarriage of justice as a result of being tried jointly with his wife.
Initially, ground 2 of Mr Kannan’s notice seeking leave to appeal his conviction contended that the trial judge had erred in refusing his application for a separate trial. During the hearing in this Court, however, Mr Kannan was granted leave to substitute ground 2 as presently formulated. Further, in oral submissions, counsel for Mr Kannan argued ground 1 as a ‘particular’ of the substituted ground 2. Hence, Mr Kannan ultimately did not impugn the exercise of the judge’s discretion to refuse him a separate trial. Instead, his counsel contended that the judge did not adequately identify for the jury’s benefit the evidence solely admissible against him, so that a joint trial with his wife resulted in a substantial miscarriage of justice.

It is significant that, in the course of pre-empanelment argument at trial, the prosecution unequivocally disavowed any reliance on joint commission,[10] making it clear that each applicant was to be tried as a principal. As a result, the prosecution must be taken to have abandoned any reliance on Tripodi principles,[11] which might otherwise have seen the acts and declarations of the applicants in furtherance of an unlawful common purpose admissible one against the other. Thus, in considering the prosecution cases against each of the applicants, there was no occasion for the jury to have regard to their acts and declarations vis-à-vis each other.
[10]See Criminal Code (Cth), s 11.2A.
[11]Tripodi v The Queen (1961) 104 CLR 1, 7 (Dixon CJ, Fullagar and Windeyer JJ).
In support of the application for a separate trial, Mr Kannan’s counsel submitted to the trial judge that, although each of the accused were charged as a principal offender, there was a risk that the jury would impermissibly proceed on the basis Mr Kannan and his wife acted jointly in the commission of the two offences alleged against them. The preponderance of the prosecution’s evidence was, counsel submitted, solely admissible against Kumuthini Kannan, so that there was a substantial risk that the jury would use the evidence solely admissible against her as evidence against her husband. Further, there was a risk that the jury would use some of the evidence solely admissible against his wife to improperly bolster the weak case against Mr Kannan. Judicial directions would, counsel submitted, be ineffective to counter these risks; and, in any event, any necessary ameliorative directions would be inordinately complicated.
Resisting the application for a separate trial, prosecution counsel submitted that: there was considerable overlap between the two indicted offences of possession and use of a slave; it was a common element to both offences that the complainant was in a condition of slavery; the conduct element of possession of a person is also conduct that can constitute the offence of using a slave; there was a single complainant alleged to be in a condition of slavery; the evidence of the complainant established that the two accused put her in a condition of slavery and possessed and used her as a slave; and the complainant’s condition of slavery was largely confined to the house jointly occupied by both accused over a decade or so. The fact that the case against one accused in a joint trial is different or stronger than that against the other, counsel submitted, is not determinative as to whether a separate trial should be ordered, but is simply a factor to be taken into account in the exercise of the judicial discretion. In the present case, there were strong public interest considerations militating in favour of a joint trial. Any risk of prejudice arising from a joint trial could be countered by directions.
As we have said, counsel for Mr Kannan ultimately accepted that the judge’s exercise of discretion did not miscarry. That was a realistic position to adopt. Section 170(2) of the Criminal Procedure Act 2009 provides that, when an indictment names more than one accused, the accused must be tried together unless a judge makes an order under s 193.[12] Section 193(3) permits a court to order that an accused, charged on the same indictment with another, be tried separately if ‘a trial with the co-accused would prejudice the fair trial of the accused’ or ‘for any other reason it is appropriate to do so’. For a separate trial to be ordered, however, not only must there be substantial prejudice to an accused arising from a joint trial, but the prejudice must be of a kind not really amenable to nullification by judicial direction.[13] A decision whether to order a separate trial is within the discretion of the trial judge. The matters of public interest which must be considered in all such cases were spelled out in Demirok.[14] They are well-known, and we need not repeat them. In this case the trial judge considered that they told against an order under s 193(3).
[12]And see R v Grondkowski & Malinowski [1946] KB 369; R v Demirok [1976] VR 244 (‘Demirok’); R v Torney (1983) 8 A Crim R 437; R v Collie (1991) 56 SASR 302 (‘Collie’); Webb v The Queen (1994) 181 CLR 41, 88–9 (Toohey J); R v Alexander and McKenzie (2002) 6 VR 53, 67 [31] (Winneke P); R v Ferguson (2009) 24 VR 531, 587 [310] (Maxwell P, Buchanan and Weinberg JJA) (‘Ferguson’); Mwamba v The Queen [2015] VSCA 338, [24] (Priest, Beach and Kaye JJA).
[13]R v Jones & Waghorn (1991) 55 A Crim R 159, 164 (Crockett J); Ferguson, 587 [310]. See also R v Gibb & McKenzie [1983] 2 VR 155; R v Ditroia & Tucci [1981] VR 247.
[14]Demirok, 254 (Young CJ, Lush and Crockett JJ). See also Collie, 308–10 (King CJ). Compare Western Australia v Bowen (2006) 32 WAR 81, 89-90 [25]–[32] (Pullin JA).
Importantly, however, the Court in Demirok also recognised that, even if the decision to refuse a separate trial was made on correct grounds and was in itself a decision which an appellate court would consider to be unimpeachable, it may nevertheless appear that developments at the trial were such as to constitute a miscarriage of justice. The Court observed:[15]
When the judge’s exercise of his discretion comes to be challenged in an appellate court, the trial has been completed and the appellate court has the advantage of knowing how in the end it was conducted. This circumstance means that any review of the judge’s discretion has unusual qualities. If it can be shown that the judge made an error in the exercise of his discretion the appellate court will nevertheless not put the judge’s decision aside and substitute a different view of its own unless, in the event, it considers that the course of the trial constituted a miscarriage of justice. Conversely, if the decision of the trial judge was made on correct grounds and was in itself a decision which the appeal court would consider to be unimpeachable, it may nevertheless appear that developments at the trial were such as to constitute a miscarriage of justice. In the latter case, the ground of appeal taken no doubt should not be the ground that the trial judge’s discretion miscarried, but simply that because of the course of events which developed during the trial, the nature of the trial constituted such a miscarriage.
[15]Demirok, 251 (emphasis added). See also Collie, 310.
Consistently with Demirok (and the authorities in which it has been applied), ground 2 of Mr Kannan’s application in this Court will succeed if he satisfies the Court that, due to an error or irregularity in or in relation to the trial, or for any other reason, there has been a substantial miscarriage of justice flowing from being tried jointly with his wife.[16] As we will explain, however, having had regard to the whole of the record of the trial, we have been unable to conclude that Mr Kannan suffered a substantial miscarriage of justice.
[16]Criminal Procedure Act 2009, s 276(1).
In support of ground 1, Mr Kannan’s counsel submitted that, although the trial judge in his charge listed the powers of control said to have been exercised over Ms Natarajan by both applicants, relevant to the jury’s consideration of charge 2, the judge did not give the jury sufficient instruction about the evidence solely admissible against Mr Kannan which could be used in determining whether he, as a principal, had exercised any of those alleged powers. Indeed, so counsel submitted, the judge misdirected the jury that they could have regard to evidence of his wife’s use of the complainant as a slave when assessing the allegation that Mr Kannan had used the complainant as a slave.
Counsel for Mr Kannan drew particular attention to the following directions, which were claimed to demonstrate error. Thus, when directing the jury as to ‘areas of evidence that might apply more particularly to each accused separately’, the judge told the jury that
this is more straight forward, as it really relates to what functions Mrs Natarajan performed within the household. What did she actually do? How was she used? The answer to this is perhaps more obvious and the evidence about this is that she carried out domestic duties such as cooking, cleaning, doing the laundry, looking after the children and so on. Mrs Natarajan gave evidence that she was directed in her working activities by Mrs Kannan and this of course is also relevant to the aspect of use.
With respect to Mr Kannan, you might focus on many of the same things as with Mrs Kannan that I have just identified, with the caution that they must be admissible against him as I have previously explained. But as to the charge of possession, the evidence might particularly involve considering his role in the application process and his sponsorship of Mrs Natarajan to come to Australia, for the benefit of the whole family. His meeting her at the airport.
His acquisition and possession of Mrs Natarajan’s passport and thus, his ability to restrict her movement by controlling when and whether she could depart Australia, or not. His ability to decide whether she would receive medical treatment or not and his decision not to arrange for it, and his decision not to intervene in any abuse that he was aware of, if you find that abuse took place.
And as to the charge of use, the second charge against Mr Kannan, some of the things you might consider, is his evidence of the occupancy, the natural involvement in the running of the family household on a day to day basis, and the benefit he received from the domestic duties and childcare activities that Mrs Natarajan did. Especially given he was her sponsor in the visa application process.
He was a member of the Kannan household and you are entitled to evaluate his role in a common sense way, as not living in a vacuum and everything else that was going on in the household, but as a key member of a functioning household over a period of eight years. But having said that, again, the caution you must exercise is that the evidence that you use against him must be evidence that is admissible against him as I have already explained.
Following the giving of these directions, senior counsel for Mr Kannan at trial took exception to the italicised portion of them. He did so in an unorthodox manner. Hence, in an email sent to the trial judge’s Associate at 9.00 am on 22 April 2021 — after the jury had begun deliberating — counsel said (among other things):
We also refer to [the relevant page and line numbers of the transcript] of His Honour’s charge and say that it needs to be made plain to the jury that the second charge is not determined by whether the second accused [Kandasamy Kannan] derived a benefit from the complainant’s activities: the questions for the jury are whether the complainant was in a condition of slavery, whether the accused himself used her as a slave and whether he did so meaning to so use her NOT whether he benefitted from someone else’s use of her as a slave. Accordingly, although not the subject of argument yesterday, we say there needs to be a redirection in relation to this part of His Honour’s charge also.
Prosecuting counsel responded to the exception in an equally unorthodox manner. In an email to the judge’s Associate at 9.50 am on 22 April 2022, senior counsel for the prosecution said:
As to the request for redirection arising from [the relevant page and line numbers of the transcript] of the charge, no redirection should be given. The fact the jury may find that Mr Kannan derived benefit from Mrs Natarajan’s domestic duties is clearly a circumstance (along with other circumstances referred to in the passage that are open to the jury to find) that is relevant to the jury’s consideration of the elements of the offence. There is nothing objectionable about the passage to which the objection refers.
The trial judge also dealt with the exception taken by Mr Kannan’s counsel in an unconventional manner. At 4.04 pm on 22 April 2022, his Associate forwarded the following email to counsel and their instructing solicitors:
Subject: Proposed redirection
Good afternoon,
First, the jury have finished deliberating and have left for the day.
With respect to the concerns raised on behalf of Mr Kannan, namely that:
1. [omitted];
2. [omitted]; and
3. HH Charge requires more to be said to the jury on the second charge and that it needs to be made clear that the second charge is not determined by whether Mr Kannan derived a benefit from the complainant’s activities.
After considering the email submissions from [defence counsel] and [prosecutor] dated 22 April 2021, reviewing the evidence, the submissions made in court yesterday and his Honour’s Charge, relevant to the points raised; his Honour is not disposed to redirect the jury on any of the matters raised on behalf of Mr Kannan.
Kind regards,
[Associate]
We pause to note that the procedure adopted for taking exception summarised immediately above is not to be encouraged, even in ‘pandemic’ times. Indeed, it is a procedure that should not be repeated. It is fundamental that — save, perhaps, for minor or incidental matters — arguments of law and their resolution should take place in open court. There was no reason that we can see that would have justified an exception, submission relating to it and ruling on it, being accomplished by email. Guaranteeing and protecting the integrity of the judicial process dictates that the administration of justice must take place in the open. More is at stake than the convenience of the parties. Nothing, however, turns on the unconventional procedure adopted.
With respect to the particular direction referred to in the ‘email exception’ set out above, counsel for Mr Kannan in this Court submitted that, notwithstanding that Mr Kannan was being tried as a principal, the impugned portion of the relevant directions wrongly permitted the jury to have regard to evidence of his wife’s use of the complainant as a slave when assessing the allegation that Mr Kannan had used the complainant as a slave. In particular, counsel submitted, the direction invited the jury to take into account the benefit Mr Kannan might have derived from another’s use of the complainant as a slave. Counsel submitted in writing that, ‘by inviting the jury to resort to joint commission reasoning in imputing the acts of [Kumuthini Kannan] to [her husband] and inviting them to consider that if the complainant had been used as a slave by [her] such use could be imputed to [Mr Kannan] if he derived a benefit from such use, thus opening a path to conviction on charge 2 which relied on another’s use of the complainant as a slave, not [Mr Kannan’s]’.
More generally, counsel for Mr Kannan submitted in this Court that, when refusing a separate trial, the judge made clear that the prosecution would need clearly to differentiate the evidence admissible against each of the accused. Moreover, the judge assured the parties that he would give appropriate directions on the matter. As it happened, counsel submitted, neither of those things occurred. Counsel argued that the written prosecution opening for trial, dated 18 June 2019, referred individually to Mr Kannan in a limited way, and did not differentiate between the applicants as to the powers they each allegedly exercised over the complainant. Importantly, counsel submitted, when the prosecution closed its case, its differentiation of the evidence solely admissible against each applicant was inadequate. Moreover, the prosecution address in part related to evidence only admissible against Kumuthini Kannan to her husband’s culpability, and invited complicity reasoning. The directions identifying the evidence solely admissible against each applicant were unacceptably general and wholly insufficient. Hence, the direction, in effect, asked the jury to apply a ‘rule of thumb’ in differentiating between the two accused.

It is worth noting at this point that the senior prosecutor had submitted to the jury that the prosecution case at trial was that Mr Kannan’s (and his wife’s) possession and use of Ms Natarajan as a slave was demonstrated by seven ‘qualities’. Hence, in his final address to the jury, senior counsel for the prosecution said:
So, let’s get down to the nitty gritty of where the prosecution case is. What were those qualities of a slave about which the judge was speaking, what were the powers about which the judge was speaking, what were the powers that each of the accused is said to have exercised during the period covered by the indictment to create the conditions of slavery.
(1) The power to control her freedom of movement even to control her capacity to move outside the immediate vicinity of 3 Gillian Road. (2) The power to determine if and when she could return to her native country, India. (3) The power to determine how she conducted her daily life, when she worked, what work she did, when she slept, when she ate and even when she showered. (4) The power to determine how and when she communicate with her family in India. (5) The power to curtail her capacity to communicate with other Tamil speakers in Australia. (6) The power to determine what remuneration she was to receive and if, how and when it was to be paid. (7) The power to determine what health care she needed and how, when and where such care might be administered and ultimately the power to possess her as a slave and the power to use her as a slave.
Now, the Crown says that both accused at all relevant times after 6 August of 2007 has those powers and to varying degrees each of them exercised … each of those powers during the period covered by the indictment. In essence, both accused had exercised almost total control over every basic human right and freedom that should have been accorded to Mrs Natarajan at least from 6 August 2007 when she became an unlawful non-citizen.
In particular, the Crown says, each accused possessed and used her as a slave as defined by the law. …
Turning first to the direction that was the matter of exception earlier referred to, we consider that, when the impugned direction is read in context, it is clear that the judge did not direct the jury that they were entitled to rely on specific acts or instructions made by his wife to Ms Natarajan related to domestic duties and childcare activities, in order to find that Kandasamy Kannan had used or possessed Ms Natarajan as a slave. Instead, the direction made plain to the jury that, in considering the evidence against Mr Kannan on charge 2, they were entitled to have regard to the benefit that he received from the domestic and childcare activities performed by Ms Natarajan, as part of the evidence of his own use of her.
As to that, s 4.1 of the Criminal Code (Cth) defines conduct to be ‘an act, an omission to perform an act or a state of affairs’; and s 4.2(5) provides that ‘[i]f the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control’.
Section 270.1 of the Criminal Code (Cth) defines slavery as ‘the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person’. And 270.3(1)(a) relevantly provides:
270.3 Slavery offences
(1) A person who, whether within or outside Australia, intentionally
(a) possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership; …
is guilty of an offence.
In Tang, the High Court dealt with a slavery offence under ss 270.1 and 270.3(a). Gleeson CJ, with whom Gummow, Hayne, Heydon, Crennan and Kiefel JJ agreed, observed:[17]
The physical element was conduct (which includes a state of affairs); the fault element was intention. It was, therefore, s 5.2(1) that was relevant. A person has intention with respect to conduct if he or she means to engage in that conduct. Knowledge or belief is often relevant to intention. If, for example, it is the existence of a state of affairs that gives an act its criminal character, then proof of knowledge of that state of affairs ordinarily will be the best method of proving that an accused meant to engage in the proscribed conduct.
The terms of s 270.3(1) reinforce the conclusion that intention is the relevant fault element. The offences in question were of intentionally possessing a slave or intentionally exercising over a slave another power (here, using) attaching to the right of ownership. ... If a person is known by an accused to possess the qualities that, by virtue of s 270.1, go to make that person a slave, then the state of knowledge relevant to intention, and therefore intention itself, may be established regardless of whether the accused appreciates the legal significance of those qualities. An accused does not have to know anything about the law in order to contravene s 270.3(1)(a).
In so far as a state of knowledge or belief is factually relevant to intention as the fault element of the offence, it is knowledge or belief about the facts relevant to possession or using, and knowledge or belief about the facts which determine the existence of the condition described in s 270.1. This is a condition that results from the exercise of certain powers. Whether the powers that are exercised over a person are ‘any or all of the powers attaching to the right of ownership’ is for a jury to decide in the light of a judge’s directions as to the nature and extent of the powers that are capable of satisfying that description. This is not to ignore the word ‘intentionally’ in s 270.3(1). Rather, it involves no more than the common exercise of relating the fault element to the physical elements of the offence.
[17]R v Wei Tang (2008) 237 CLR 1, 24–5 [47]–[49] (footnotes omitted).

In our view, the direction specifically impugned conveyed no more to the jury than that, in determining whether Kandasamy Kannan possessed or used Ms Natarajan as a slave, it was legitimate to take into account the benefit that he received from the domestic duties and childcare activities that she performed. There was no error in the judge doing so, since those matters bore on both the physical, conduct element of the offences — including the ‘state of affairs’ within the Kannan household vis-à-vis Ms Natarajan — and the fault element — whether Mr Kannan knew of the qualities that went to make Ms Natarajan a slave. In other words, the jury were directed that, in determining whether Mr Kannan — separately from his wife — possessed or used a slave, it was legitimate to take into account that he received the benefit of the domestic duties and childcare activities that Ms Natarajan performed.
More generally, we consider that an examination of the charge reveals that the judge adequately directed the jury on the evidence solely admissible against Mr Kannan. To illustrate that he did so, it is profitable to set out at relative length the judge’s directions on the topic. Hence, in the course of giving ‘separate consideration’ directions in his charge, the judge said:[18]
[18]Emphasis added to this and following passages.
Ultimately you will bring in four verdicts in relation to these charges and you are required to treat separately the cases against Mr and Mrs Kannan. And you are indeed required to treat separately the cases against Mr and Mrs Kannan. And you are indeed required to treat separately each case in respect of each charge against each accused.
Now you must consider the case against each of the two accused on each of the two charges in light only of the evidence which applies to the particular accused and the particular charge you are considering.
I will just repeat that. You must consider the case again each of the two accused on each of the two charges in light only of the evidence which applies to the particular accused and the particular charge you are considering.
So you have to asked yourselves the question in relation to each of the two accused whether the evidence relating to that person has satisfied you beyond reasonable doubt that he or she is guilty of either intentionally possessing a slave or intentionally using a slave. If the answer is yes, then you will bring back a verdict of guilty. If the answer is no, you should find him or her not guilty of the charge you are considering.
Now in what I have just said you will have noticed that I used the words ‘in light only of the evidence which applies to that particular accused’. This is very important for you to understand because some of the evidence that you heard in this case is only relevant or admissible in relation to one accused and not the other.
So if a particular piece of evidence is only admissible against one accused then you may only use it in deciding whether that person is guilty or not guilty but you must not consider it in relation to the other accused person. And in this case there are a number of pieces of evidence that will draw to your attention in relation to this principle in order to illustrate it.
And to begin with some examples of the type of evidence that I’m talking about would include the evidence of statements made by Mrs Kannan in the absence of her husband. Now I am talking about the evidence in relation to Mrs Kannan at the moment. So the evidence of statements made by Mrs Kannan in the absence of her husband, for instance, statements made to social workers at the hospital or doctors at the Box Hill Hospital after Mrs Natarajan was admitted as a patient. You have many examples of these from the evidence of three social workers, Dr Manzanares ...
Another example of the statements made by Mrs Kannan to the 000 operator and then to the ambulance officers that attended her home to attend to Mrs Natarajan on 30 July 2015.
Furthermore, statements made to police officers by either accused in the absence of the other accused are not admissible against the accused that was absent and cannot be used against that absence person.
So none of the statements of the kind that I have just identified that have occurred in the absence of Mr Kannan, for instance, the things said by Mrs Kannan to the social workers, to the doctors, 000 and in the absence of Mr Kannan when she was speaking to police officers. None of that is admissible in the trial of Mr Kannan and cannot be used against him.
Another example might relate to some of the evidence of abuse that Mrs Natarajan alleges to have occurred at the hands of Mrs Kannan. If you conclude, and it is a matter entirely for you, that such instances did occur and that they took place in the absence of Mr Kannan then such evidence cannot be admissible against him, due to the fact that he was absent and it cannot be said that he could have been part of any such alleged abuse.
Yet another example of what have been described as the ‘fuck you’ emails, which the prosecution say were sent to Mr Krishnan by Mrs Kannan. They are not admissible against Mr Kannan and cannot be used against him.
So they are some examples of the type of evidence that you must keep separate when it is not admissible in the case of another person who was either not present or not involved in what was alleged to have been occurring.
On the other hand an example relating to evidence admissible against Mr Kannan and not Mrs Kannan, the statements that he made to police officers in the absence of Mrs Kannan.
The judge proceeded to provide examples of evidence not admissible against Kumuthini Kannan, and continued:
So those statements made by Mr Kannan, if you agree and if you conclude that they were made by Mr Kannan in the absence of Mrs Kannan would not be admissible against Mrs Kannan because she was not there.
Similarly, if you find that there were conversations between Mr Kannan and Mrs Natarajan that occurred in the absence of Mrs Kannan, these would be further examples of the principle in operation and those such statements could not be used against Mrs Kannan. For instance, there is evidence where Mrs Natarajan said that from time to time, she raised issues concerning her health with Mr Kandasamy Kannan. If you conclude that there were such conversations that were held in the absence of Mrs Kannan and were held with Mr Kannan, then those conversations would not be admissible against Mrs Kannan.
Now, that deals with those matters but there are also pieces of evidence that are admissible against both accused of course and [senior counsel for Kandasamy Kannan] in his address to you acknowledged this in his final address but emphasised the critical need to consider each case separately. ...
Having provided examples of evidence admissible against both applicants, the judge continued:
There are some other evidence [sic] about the arrival of Mrs Natarajan in Melbourne and what she then says became of her passport. For a start, you will recall Mrs Natarajan’s evidence was that Mr Kannan picked her up at the airport and that of course is evidence against him. Mrs Kannan was not there on the evidence, as I understand it.
When she arrived home taken there by Mr Kannan, again, my understanding of the evidence is that Mrs Natarajan said that Mrs Kannan took her passport and then gave it to Mr Kannan who then put it away somewhere. If you accept this happened and it is a matter for you as to whether it did, then it is capable of being evidence against both Mr and Mrs Kannan that she took the passport from Mrs Natarajan’s possession and gave it to him and then he gained possession of it.
Another example would be statements made by either accused to Senior Sergeant Keenan on the days that he went to the Kannans home in circumstances where the statements made were in the presence of both accused. You will recall the evidence of Mr Keenan that there were instances where he spoke to one or other of the accused not only in the absence of the other accused but also instances when the two accused were together.
In these examples, whatever one said in the absence of the other to Mr Keenan or indeed to Mr McGregor at a later time is not admissible against the one absent and cannot be used against the absent person and you will recall Federal Agent McGregor’s evidence that from time to time both accused were present when the search warrant was executed, some statements were made which were made in the presence of both accused; some not. You will need to be careful to assess these statements in the circumstances of who it was and who was not present.
So those examples should be sufficient to illustrate the principle to be applied that each case against each accused has to be considered separately and only in respect of the evidence which applies to that particular accused. A general rule of thumb would be if an event happened or a conversation occurred between an accused and some other person, when the other accused was not present, then the rule of thumb would be that evidence is not admissible against the one that was absent.
A little later, the judge gave the following directions, necessitated by Ms Natarajan’s use during her evidence of the plural pronouns ‘they’ and ‘them’, in circumstances where the context suggested that she was intending to refer to one or other of the applicants individually, not collectively. He said:
You could not have failed to be aware that on quite a number of occasions, Mrs Natarajan used the word ‘them’ or ‘they’ in the course of giving evidence and commonly referred to ‘them’ or ‘they’ as having done something or said something, generally of course referring to Mr and Mrs Kannan.
Each counsel made remarks about this aspect of the case. Now, this is a particularly important part of the directions in light of what I have said to you about considering the case against each accused separately on the basis of evidence that is properly admissible against each accused separately.
Now, what are you to make of the meaning impact of these words ‘them’ and ‘they’ will depend to a large part on the context in which the words were used and whether there was as often the case a qualification to that usage showing that what was really meant by Mrs Natarajan was that the words ‘them’ or ‘they’ really meant just one person and not two.
Within our understanding of using the English language, what can be meant by using ‘they’ draws its correct meaning in the context of the words or passages in which the word is used. You need to be very careful about this aspect of the evidence particularly in light of my directions about separate consideration and evidence that is admissible against one and not the other.
So going back to the principle of not being able to use evidence that is admissible against one accused and not admissible against the other, depending on the context of the surrounding evidence, you cannot in many instances use the word ‘them’ or ‘they’ as providing evidence against both accused that both accused either said or did or agreed to certain acts or it can be taken to have acted jointly or accepted a joint responsibility for what one might have said or done.
In some instances you may be able to but in some instances not at all. Furthermore, and bear in mind that in some instances you may think, and it is a matter for you, that the use of these terms was capable of being viewed as significant or important but sometimes it was not.
It really depends on the context of the surrounding passages and what you think that the witness meant to convey and again it is a matter for you and nobody else, but you do need to examine the surrounding context around the particular topics that are being discussed and asked questions about.
Starting with two simple examples you will recall that on occasions Mrs Natarajan said that the Kannan’s went on holiday to India. In that context she said that from time to time they travelled to India. In the overall context you may think that Mrs Natarajan intended to convey that they, meaning Mr and Mrs Kannan, including the children, went together on that trip.
You may think that that type of statement is both reasonable and logical and will often have been uncontroversial and that the evidence of these types of instances of activity was admissible against them both.
In these instances what might make it a little easier is that I do not think there is any controversy or dispute that for instance both the Kannan’s travelled together to India on occasions.
The judge then gave further examples drawn from the evidence relevant to use of the terms ‘them’ and ‘they’, and said:
Mrs Natarajan said that the husband and wife came to visit her in the hospital and she said that they did not say anything, ‘Just look after yourself’, and went.
Then she went on to say that, ‘Mrs Kannan asked me to lie’, with her saying, ‘Otherwise they will take you away and they will just send you back’. This is an example of the context where it seems to me there would be sufficient evidence to conclude that both Mr and Mrs Kannan attended the hospital to visit Mrs Natarajan but not sufficient evidence for you to conclude that Mr Kannan was actually present when those words were said if you found them to have been said.
So in that situation there would not be evidence you could use against Mr Kannan that he was part of the request by Mrs Kannan that Mrs Natarajan should just lie. So you see what you decide about what was meant by the use of the words ‘them’ or ‘they’ depends on not only what was said but also the surrounding context in which the comments or activity occurred and what was actually said and done which you must be careful to assess.
In the end your examination of this material and if it is important to distinguish between the words ‘they’ and ‘them’ then you need to look at the surrounding context of the events that are being talked about within the material that you are examining.
After the judge had given the lengthy directions set out above, the jury asked the following question:
A question on the point of separation of trials for the two accused and the use of “they/them”. With respect to your [the trial judge’s] example from VARE 4, Questions 178-9, you stated that when Mrs Natarajan says, “They didn’t say anything just ‘look after yourself’ and went”, and then she said, “If anyone asks, just tell them like three months, five months”, we were to understand or assume that they both said ‘Look after yourself’ but that the comment from Mrs Kannan (she said “If anyone askes”) could not be used as evidence against Mr Kannan. However, it is not clear here that Mr Kannan was not present when Mrs Kannan made his statement. It seems just as likely that he was present in which case the statement may be used as evidence in his trial?’. And your question is, ‘Is this correct?
The jury’s question was astute. It demonstrates that the jury had understood the direction that they needed to consider the case against each applicant according to the evidence admissible against them individually. Hence, with respect to a particular piece of evidence, the jury had understood the judge to be directing them that a comment by Kumuthini Kannan could not be used as evidence against her husband, but they required clarification of the position. The directions that the judge gave in answering the jury’s question were careful and complete. It is unnecessary to set them out in full. Among other things, he took the jury to the evidence bearing on the topic, and reminded them of directions he had given on inferential reasoning. He concluded his directions on the topic with the following:
So again, all of these matters are for you, but let me say this, of course if an accused was not present, then as you know, and I have directed you that you cannot use that evidence against the absent accused. And I remind you that this case is not put by the prosecution on the basis that there was a joint agreement by them, that slavery offences would be committed. And so the acts or statements by one accused, in the absence of another, cannot be used against the other one who is absent.
To make it clearly, the prosecution case is put on the basis that both accused were principal offenders, such that the evidence that can be used against each one must be separately and properly admissible against each in the way I have previously described. The case is not put on the basis that the acts and the statements by one accused can be used as attributable to the other, on the basis there was any joint agreement to commit offences of slavery which is not the way the prosecution is putting this case.
In light of the foregoing, we do not accept that Kandasamy Kannan suffered a miscarriage of justice as a result of being tried with his wife. It is clear from an examination of the judge’s directions as a whole that he identified sufficiently the evidence admissible solely against Mr Kannan, and provided the jury with adequate guidance as to how to approach the evidence solely admissible against each applicant. As to that, although counsel criticised the judge for providing the jury with a general ‘rule of thumb’, we consider that the rule of thumb provided the jury with a practical and convenient guideline with which to keep the evidence against each applicant separate in their collective mind when considering the cases against the applicants.
These grounds cannot be upheld.

Kandasamy Kannan: Conviction ground 3; and Kumuthini Kannan conviction ground — Are the jury verdicts unreasonable or cannot be supported by the evidence?

The applicants’ grounds contend that the verdicts are ‘unsafe and unsatisfactory’ or ‘unsafe or cannot be supported by the evidence’. These grounds invoke s 276(1)(a) of the Criminal Procedure Act 2009 (‘CPA’), which requires this Court to allow an appeal against conviction if the appellant satisfies the Court that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.
Central to each applicant’s case on these grounds is the proposition that Rajalakshmi Natarajan’s evidence was so lacking in credibility and reliability that the jury, acting reasonably, must have had a reasonable doubt about the applicant’s guilt. The applicants’ counsel submitted that, in order to find the applicants guilty, the jury needed to distinguish between ‘slavery’ on the one hand and what might be regarded as harsh and exploitative labour conditions on the other. In order to convict, counsel submitted, the jury was obliged to accept Ms Natarajan’s evidence of oppressive servitude extending beyond exploitative employment. Counsel contended that Ms Natarajan’s evidence featured so many improbabilities, internal and external inconsistencies, and demonstrable exaggerations, that the jury acting reasonably could not have failed to have had a reasonable doubt that the applicants possessed and used her as a slave. In order to secure convictions on the two charges, counsel submitted, the prosecution needed the jury to accept the credibility and reliability of Ms Natarajan’s evidence as to her living and working conditions within the charged period. The fundamental difficulty with that was, however, that there were multiple aspects of her evidence that significantly diminished (if not destroyed) her credibility and reliability.
In considering these grounds, we must ask ourselves whether we think that it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the applicants were guilty, according to the evidence admissible against each of them.[19] As the majority of the High Court observed in M:[20]
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the 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.
[19]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’).
[20]Ibid 494−5 (citations omitted).

The High Court once more endorsed the M approach in Pell, and said:[21]
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence,[22] in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment — either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence — the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
[21]Pell v The Queen (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (citation as in original) (‘Pell’).
[22][CPA], s 276(1)(a).
As was made clear from Pell, when assessing whether the jury’s verdict is unreasonable or cannot be supported by the evidence, the Court must assume that the jury assessed Ms Natarajan’s evidence to be both credible and reliable. The Court’s task is to examine the whole of the evidence to see whether her evidence reveals inconsistencies, discrepancies or other inadequacies, such that the Court is satisfied that the jury, acting rationally, should have entertained a reasonable doubt about guilt, notwithstanding their assessment that her evidence was credible and reliable.
We have earlier summarised the key aspects of Ms Natarajan’s evidence.[23] To determine these grounds it is necessary to consider the criticisms made of that evidence by the applicants’ counsel. As we have indicated, the applicants’ counsel submitted that, on an independent review of the evidence, it should be accepted that the problems associated with Ms Natarajan’s credibility and reliability were so far reaching and were so significant, that it was not open to any jury acting reasonably to be satisfied by her evidence of the applicants’ guilt beyond reasonable doubt.
[23]At [18] above.
Counsel for Kumuthini Kannan first drew attention to Ms Natarajan’s evidence that she had been kept a prisoner in the applicants’ house. She gave evidence that, when the Kannan’s travelled to India, they put tape over the front door so that Ms Natarajan could not open the door or leave the house; and that, when they went overseas, nobody visited her. That evidence, however, was significantly damaged by the unchallenged evidence of Gail Kelly, a neighbour of the Kannans. Her evidence was that during one of the Kannans’ overseas trips she visited Ms Natarajan almost every day for a month. For the purpose of her visits, Ms Kelly was given a key to the front door and regularly opened it. Ms Kelly gave evidence that she never saw the door taped.
Initially, when Ms Natarajan was confronted in cross-examination with the evidence of Ms Kelly, she maintained her account, claimed that Ms Kelly was lying, and gave evidence that Ms Kelly had never visited her. Later, however, she appeared to adopt a position where she denied ever having told the court or the police that the applicants had taped the door.
Gail Kelly’s evidence was supported by the evidence of other neighbours, Griffith and Giuseppina Young. Mr Young gave evidence that he saw an elderly woman at the Kannan household putting out the rubbish bins and taking the children to the park. Mrs Young’s evidence was that, after twins were born to the Kannans, she began seeing a woman at the house, on the front veranda, or on the street. On occasions, the woman would venture across the road with the children who would play on the equipment in the Young’s front yard and the woman would stand and supervise them. Occasionally she saw the woman walk down the street to the park. They would wave across the road at each other, but communication was difficult because the woman spoke no English. The Youngs’ unchallenged evidence contradicted Ms Natarajan’s account when she seemed to suggest that she never went outside the house, or her account that she was only ever allowed to go outside when in the presence of the applicants.
Another area of her evidence that counsel attacked, was Ms Natarajan’s account that, for the whole of the charged period, she was only allowed to sleep for one hour every single night. Her evidence was that, as she tried to sleep, Kumuthini Kannan would keep switching on the lights and would keep putting oil on her. Not only was Ms Natarajan’s account improbable, but it was contradicted by other evidence. Hence, elsewhere in her evidence Ms Natarajan accepted that Kumuthini Kannan was out of the house and at work at night between 7.00 pm and 7.00 am three nights a week, making these allegations unlikely to be true.
Counsel for the applicants submitted that there were many occasions in her cross-examination where, when confronted with previous evidence she had given, Ms Natarajan would steadfastly deny having given the previous evidence. These denials were made despite the fact that her previous evidence had been recorded, and Ms Natarajan having viewed the recordings in the lead-up to cross-examination.
Counsel took the Court to Ms Natarajan’s evidence that Kumuthini Kannan had seriously assaulted her. Thus, in her third VARE, she alleged that Kumuthini Kannan had stabbed her. She also said that she bled profusely after being cut with a knife. There was, however, no medical or forensic evidence to support these allegations. Furthermore, despite having participated in six VAREs, Ms Natarajan gave evidence for the first time when giving evidence at trial that Kumuthini Kannan had kicked her and ‘broke [her] skull’. Again, however, there was no medical evidence to support the allegation that her skull had been fractured. At another point in her evidence, Ms Natarajan alleged that Kumuthini Kannan had pushed her down the stairs and that she fractured her hand or wrist as a result. This evidence stood in contradiction to her fifth VARE, in which she said that Kumuthini Kannan had not pushed her down the stairs. Ms Natarajan had also alleged that Kumuthini Kannan had thrown hot and boiling liquid on her head, face, and skull. Once again, however, there was no medical evidence to support these allegations. Ms Natarajan had also given evidence that Kumuthini Kannan kicked her; hit her every day for two years; stamped on her; banged a plate on her head repeatedly; hit her with a stick; and beat her with a frozen chicken. At times blood was streaming from her as she ran through the house to escape the violence, yet there was no forensic evidence to support that account. And no medical evidence supported her evidence that she had been left with scars from having been stabbed or scalded with boiling water.
Under cross-examination, Ms Natarajan said if she spoke to other people she would be tortured and beaten up. Counsel submitted that this evidence was, however, in sharp contrast to evidence that Ms Natarajan had told a Federal Agent that Kumuthini Kannan had never hit her. Her explanation for this apparent contradiction was that Kumuthini Kannan had directed her ‘not to tell anything’ when she gave that version to the Federal Agent. But that explanation was at odds with the fact that Ms Natarajan had already raised other allegations of mistreatment by Kumuthini Kannan when she spoke to the Federal Agent.
Counsel submitted that there was also significant inconsistency as to when any alleged mistreatment by Kumuthini Kannan commenced. At one point Ms Natarajan gave evidence that she was tortured and harassed as early as her second visit to stay with the Kannans. At another point, she had said that she had asked to go home as soon as she arrived to stay with the Kannans. In the third VARE, however, Ms Natarajan had said that for the first five or six years of her stay with the applicants she was very happy.
Significantly, counsel submitted, Ms Natarajan’s evidence that she was kept as a prisoner in the applicants’ home and not allowed to have contact with other people, or with the outside world, or with Tamil-speaking people, was also seemingly contradicted by various photos produced in cross-examination. Those photos showed Ms Natarajan in a range of social settings, at a range of locations and with a range of different people (including Tamil people). Photographs showed her at Crown Casino, Ballarat, Phillip Island, Woolamai and Arthur’s Seat, and she had to accept that she had attended parks, temples and dance concerts. In that general context, her claim made at one point that she had never travelled to Sydney could not be true. On her own account she went to Sydney on four occasions. And her evidence that she was forced to sneak leftovers from the table after everyone else had eaten appeared to be inconsistent with the photographic evidence and with other evidence she had given.
Another area where Ms Natarajan’s evidence was contradicted by other evidence arose when she was cross-examined about a conversation she had with her son-in-law, Jawahar Krishnan, on 24 September 2015. In her evidence, Ms Natarajan was adamant that she did not discuss with him any sort of monthly payment from the Kannans. Another prosecution witness, however, Samanthi Fernandez, who had heard the conversation, gave unchallenged evidence, that the topic of monthly payments was indeed discussed in this conversation.
Counsel pointed out that Ms Natarajan claimed at one point that Kumuthini Kannan had not given her any clothing whatsoever (not even an undergarment), yet in cross-examination it emerged that she had been given clothing on a regular basis. Further, counsel submitted, even when it came to her own medical situation, Ms Natarajan’s evidence raised issues about her credibility and reliability. Hence, her claim that she was previously aware that she was suffering from diabetes was contradicted by the evidence of Dr Margaret Bird from Box Hill Hospital. Ms Natarajan’s evidence that her legs were going to be amputated was also contradicted by Dr Bird.
In oral submissions, senior counsel for Kandasamy Kannan adopted the arguments of counsel for his client’s wife, and made two further distinct points. First, as to Ms Natarajan’s claim that her passport had been confiscated, he submitted that the evidence suggested that the Kannans had taken her passport for ‘safekeeping’, rather than to control her movements. Secondly, the evidence available in proof of the two charges against Mr Kannan was very different to the evidence available to prove the charges against his wife.
It cannot be doubted that, viewed literally, much of Ms Natarajan’s evidence was inconsistent, and significant parts of it were improbable (if not wholly fanciful). In part, so much may be explained by language problems and difficulties with translation. As the prosecutor observed in his final address, the jury needed to understand the ‘cultural differences’, ‘the subtlety of a well-educated cross-examiner’, and Ms Natarajan’s inability to pick up on the nuances of language being employed. Thus, for example, we would not interpret her evidence that Kumuthini Kandasamy ‘broke [her] head’ as a literal assertion that her skull was fractured. It is more likely that she was simply endeavouring to convey that her head had been injured in some fashion.
In our view, however, problems of language and interpretation cannot fully explain many of the unsatisfactory aspects of Ms Natarajan’s evidence. Indeed, on a fair reading of her evidence, it is clear that there were occasions when Ms Natarajan prevaricated, dissembled and lied. Taking one example, it beggars belief that she was locked in the house, with the locks taped up, and the doors taped shut, so that she could not escape. Indeed, we consider that Gail Kelly’s evidence exposed these claims as being deliberate untruths.
The fact that much of Ms Natarajan’s evidence was unsatisfactory, however, does not lead inescapably to the conclusion that the jury’s verdicts are unreasonable or cannot be supported having regard to the evidence. There was, in our view, sufficient in Ms Natarajan’s evidence for the jury to be satisfied beyond reasonable doubt that each applicant possessed and used her as a slave, exercising to varying degrees rights of ownership over her.
Although the jury may well have thought some of Ms Natarajan’s claims were extravagant (if not preposterous), the preponderance of evidence would have justified the jury finding that the applicants had it within their power to determine how she conducted her daily life; when she worked; what work she did; when she slept; when she ate; and what money she was paid (which, on any view of the evidence, was a pittance). Moreover, although it was contended by the Kannans that they kept Ms Natarajan’s passport for ‘safekeeping’, it would have been open to the jury to instead conclude that her passport was retained by them in order to control her capacity to leave the Kannan household and return to her family India. It would also have been open to the jury to conclude that the Kannans controlled Ms Natarajan’s communication with her family. As to that, it will be remembered that Kumuthini Kannan called Ms Natarajan’s son-in-law, Jawahar Krishnan, in 2014, and told him that the complainant was ill and not able to move. When that occurred, Mr Krishnan asked Kumuthini Kannan to send Ms Natarajan back to India. Mrs Kannan said she could not do so, however, due to passport issues. When Mr Krishnan spoke to his mother-in-law on the telephone in May 2015, he became concerned that she was unwell, and again asked Kumuthini Kannan to send her home. Kumuthini Kannan claimed, however, that the complainant was too weak to travel. Importantly, save for the calls in 2014 and 2015, Ms Natarajan made no contact with her family after 2012.
Most significantly, we consider that it would have been well open to the jury to find that the Kannans exercised power over Ms Natarajan’s access to medical care. She lived in the home with both applicants. Her descent into grave ill-health cannot have gone unnoticed by them both, yet no medical assistance was sought for her until she had wasted to a mere 40 kilograms, and was found hypothermic and barely conscious in a pool of her own urine. Although it was not part of the prosecution case that Ms Natarajan’s ill-health was caused by her state of slavery, we consider that it was nonetheless open to the jury to find that the Kannans exercised control of her access to medical care to the extent that it was not sought for her until her state of health had become precarious.
Moreover, although the jury may not have accepted unequivocally all of what Ms Natarajan had to say about the physical abuse perpetrated by Kumuthini Kannan, it was, in our view, open to the jury to conclude that Kumuthini Kannan had on occasions physically and verbally abused Ms Natarajan, such abuse being an aspect of the exercise of a right of ownership (albeit it seems that the prosecution may not have relied directly upon it as such). Furthermore, the jury could well have concluded that his wife’s abuse of Ms Natarajan was such that it could not have escaped Kandasamy Kannan’s attention. Acknowledging its frailties, Ms Natarajan’s evidence disclosed a number of occasions of physical abuse perpetrated upon her by Kumuthini Kannan, in circumstances which would ordinarily have invited his intervention. His failure to have intervened may well have informed the jury’s view of Kandasamy Kannan’s attitude to Ms Natarajan and his state of mind.
Despite its defects, we consider that it was open on Ms Natarajan’s evidence to be satisfied of the applicants’ guilt beyond reasonable doubt. These grounds must fail.

Kandasamy Kannan: Sentence — Is the sentence manifestly excessive?

Although a number of ‘particulars’ subjoined to his ground — and a number of submissions advanced in support of those particulars — were redolent of complaints of specific error, in determining whether Kandasamy Kannan has made good the contention that his sentence is manifestly excessive this Court is not concerned with specific error. Rather, synthesising all relevant factors, the Court is concerned to determine whether the sentence imposed is wholly outside the range of those open to the judge in the sound exercise of the sentencing discretion. The guiding principles were summarised in Leimonitis:[24]
As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[25] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[26] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[27] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[28]
[24]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA) (footnotes as in original).
[25]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]–[52].
[26]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[27]Ibid.
[28]Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].
The jury’s verdicts recognised their satisfaction that, based on his own conduct, Mr Kannan had both possessed and used Ms Natarajan as a slave. Both the sentence imposed, and the sentencing reasons, however, reflect the judge’s recognition that Mr Kannan’s conduct differed from that of his wife, who was ‘more morally culpable’, and whose actions were of a ‘more aggravated nature’.[29] He said:
I find that the powers exercised by both of you over Mrs Natarajan were as set out by the prosecution. The degree and frequency of the exercise of those powers or indicia of slavery by each of you is difficult to determine with precision. In my opinion it is not necessary to do so. The jury’s verdicts make it plain that, taking into account all of the evidence, it was satisfied that any or all of the powers were exercised to the point where it was satisfied beyond reasonable doubt that a condition of slavery existed.
[29]DPP (Cth) v Kannan & Anor [2021] VSC 439, [231] (‘Reasons’).
At the time of his offending, Kandasamy Kannan had reached his sixth decade without attracting any prior breaches of the criminal law. He had an impeccable work history, and a number of character referees attested to his past good character. Adverse publicity associated with the case led to his summary dismissal from his employment prior to the jury’s verdicts, so much amounting to a degree of extra-curial punishment. The judge found that he had ‘good prospects of rehabilitation and [was] unlikely to reoffend in the future’,[30] and that ‘the sentences to be imposed do not require components of special deterrence’.[31] Furthermore, the judge was satisfied of exceptional family hardship.[32]
[30]Reasons, [209].
[31]Ibid [207].
[32]Ibid [206], [210]–[216].

In our view, the contention that the sentence is manifestly excessive has not been made out. We consider that the sentence imposed adequately balanced the nature of the offending and the features in mitigation, including Mr Kannan’s previous good character and lack of prior convictions; ‘good prospects of rehabilitation’;[33] the depressive disorder he suffered since the jury’s verdicts, and his diagnosis with mild autism spectrum disorder;[34] hardship to his children, and the additional burden of imprisonment as a result of anxiety about the impact on the children;[35] delay;[36] and ‘the added uncertainty and anxiety’ of having the issue of reparation unresolved.[37]
[33]Ibid [209].
[34]Ibid [205].
[35]Ibid [206], [210]–[216].
[36]Ibid [171].
[37]Ibid [217].
Moreover, we consider that the non-parole period — fifty per cent of the head sentence — adequately reflects the matters in mitigation. As to that, we note that the judge specifically observed that he had ‘reduced this non-parole period from what [he] would have otherwise imposed, largely due to [Mr Kannan’s] personal circumstances and those affecting [his] children’.[38]
[38]Ibid [239].

Kumuthini Kannan: Sentence — Was the parity principle breached?

Kumuthini Kannan’s complaint that the judge erred in the application of the parity principle by imposing a sentence that was too disparate from the sentence imposed on her husband cannot be sustained.
In his reasons for sentence, the judge said:[39]
The actions of you both must be regarded as being at a serious level and your offending falls into a serious category. I do not accept the submission that this offending should be categorised as being towards the lower level of this kind of offending. Your actions were such as to subjugate Mrs Natarajan, over an extended period measured in years rather than months, far beyond the examples reflected in other Australian slavery cases, albeit the form of slavery was mostly of a different character.
Although the finding of seriousness attaches to you both, I am of the opinion that as the person in day-to-day control of Mrs Natarajan’s life and working conditions, Kumuthini Kannan, your actions were of a more aggravated nature than those of your husband. Of the two of you, you are more morally culpable for your offending. You had ‘the say’ in the running of the household and controlled Mrs Natarajan’s recourse to health care and communications between her and her family. Towards the end, you became abusive and angry towards them when they enquired about Mrs Natarajan and clearly wanted her sent home.
On the other hand, you, Kandasamy Kannan, were more at arm’s length, in that you worked in a full-time occupation, were the major breadwinner and have been portrayed as being more susceptible to a degree of domination by your wife and as of a weaker character. That does not excuse your actions at all, but perhaps puts such actions, as well as your failure to take action, in somewhat of a different light. Overall, I regard you as less morally culpable than your wife.
[39]Ibid [104]–[106] (emphasis added).
In our view, the observations set out immediately above provided a sound reason for the judge imposing a more severe sentence on Kumuthini Kannan than on her husband. As to that, it was made clear in Postiglione that the parity principle[40]
is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them).[41] In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. …
[40]Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ) (citation as in original; emphasis added).
[41]See Lowe v R (1984) 154 CLR 606 at 610–611, per Mason J.

Conclusion

It would be futile to grant the extensions of time sought by the applicants. They should be refused.
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[2023] VSCA 58

21 March 2023