Kannan and Kannan v The King - [2023] VSCA 58

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSCA 58
Decision Date: 21 March 2023

CaseChat Overview and Summary

In the case of Kannan and Kannan v The King, the applicants appealed against their convictions and sentences for slavery offences. The applicants were convicted of possessing and using a slave, and they sought an extension of time to bring an application for leave to appeal against their convictions and sentences. The High Court considered the application for an extension of time to bring an application for leave to appeal. The applicants argued that the joint trial caused a substantial miscarriage of justice, that the prosecution failed to isolate evidence admissible against each accused, and that the judge failed to adequately direct the jury as to the evidence admissible against each accused.

The High Court held that the applicants had not established that the joint trial caused a substantial miscarriage of justice. The Court found that the applicants' arguments about the prosecution's failure to isolate evidence and the judge's direction to the jury were not sufficient to establish a substantial miscarriage of justice. The Court held that the verdicts against each applicant were reasonable and could be supported by the evidence. The Court also found that the sentence imposed on the applicants was not manifestly excessive or in breach of the parity principle.

The High Court refused the applicants' application for an extension of time to bring an application for leave to appeal. The Court held that the applicants had not shown that they had a strong prospect of success in an appeal against their convictions or sentences. The Court found that the applicants' arguments were not sufficient to establish that the verdicts against them were unreasonable or could not be supported by the evidence. The Court also held that the sentence imposed on the applicants was not manifestly excessive or in breach of the parity principle. The Court concluded that the applicants had not made out a case for an extension of time to bring an application for leave to appeal.

Orders