R v Kannan & Anor (Ruling No 1)

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IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0063
S CR 2018 0064

THE QUEEN
v
KUMUTHINI KANNAN
and
KANDASAMY KANNAN

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JUDGE:

CHAMPION J

WHERE HELD:

Melbourne

DATE OF HEARING:

26 June & 1 July 2019

DATE OF RULING:

16 July 2019

CASE MAY BE CITED AS:

R v Kannan & Anor (Ruling No 1)

MEDIUM NEUTRAL CITATION:

[2019] VSC 461

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CRIMINAL LAW – Ruling – Charges of intentionally possessing a slave and intentionally exercising over a slave any of the powers attaching to the right of ownership, namely use – Video Audio Recordings of Evidence (VAREs) – Six recordings – Prosecution seek leave to play VAREs of complainant – Leave granted – Defence application for video aspect of two recordings to be excluded – Defence claim unfair prejudice – Application refused.

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APPEARANCES:

Counsel Solicitors
For the Crown Ms T. McDonald SC
Ms K. Breckweg
Ms C. Fitzgerald
Commonwealth Director of Public Prosecutions
For Kumuthini Kannan Dr G. Boas
Mr P. Smallwood
Stary Norton Halphen
For Kandasamy Kannan Mr P. Chadwick QC
Ms M. Brown
Peter Lunt Lawyers

HIS HONOUR:

Introduction

  1. In this matter the prosecution seeks leave to rely on six Video Audio Recordings of Evidence (VAREs) of police interviews with Rajalakshmi Natarajan (‘the complainant’) to be led as evidence in chief.  These VAREs were recorded on 8, 13, 22 and 28 October 2015; 23 December 2015; and 30 June 2016.

  1. The first two VAREs taken by a federal agent of the Australian Federal Police (‘the AFP’) on 8 and 13 October 2015, show the complainant lying on a hospital bed in Box Hill Hospital while being interviewed.

  1. This ruling concerns the manner in which the first two VAREs are to be played to the jury.  Both accused make an application to exclude the video aspect of these first two VAREs, but concede the audio can be played to the jury.

  1. I note there is no dispute between the parties as to the admissibility of the audio and video of the remaining four VAREs, in which the complainant was interviewed in a residential aged care facility in Mont Albert North.

The prosecution case

  1. The accused are each charged with the following offences, both contrary to sub‑s 270.3(1)(a) of the Criminal Code Act 1995 (Cth) (‘the Code’):

(a)        Charge 1: Between 5 July 2007 and 30 July 2015, Kumuthini Kannan and Kandasamy Kannan intentionally possessed a slave; and

(b)       Charge 2: Between 5 July 2007 and 30 July 2015, Kumuthini Kannan and Kandasamy Kannan intentionally exercised over a slave any of the powers attaching to the right of ownership, namely use.

  1. The prosecution alleges that on 5 July 2007, the complainant, then a 55 year old Indian national, arrived in Melbourne from India.  It is alleged that the complainant, being the holder of an Indian passport, entered Australia on a tourist visa with an expiration date of 5 August 2007.

  1. The prosecution case is that the complainant travelled to Australia…

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Details
Case
[2019] VSC 461
Decision Date

CaseChat Overview and Summary

The matter of R v Kannan & Anor (Ruling No 1) came before the court in relation to two defendants who were charged with the offence of intentionally possessing a slave and intentionally exercising over a slave any of the powers attaching to the right of ownership, namely use. The case involved the use of Video Audio Recordings of Evidence (VAREs) as part of the prosecution's case. The defendants contested the use of these recordings, raising concerns about their admissibility and potential prejudicial impact on the trial.

The primary legal issue before the court was whether the prosecution should be granted leave to play the VAREs of the complainant and, if so, whether the defence's application to exclude the video aspect of two recordings should be upheld due to the claim of unfair prejudice. The court considered the relevance and probative value of the VAREs in relation to the charges, as well as the potential impact on the fairness of the trial. The court examined the balance between the probative value of the evidence and the risk of unfair prejudice to the defendants.

The court granted the prosecution's application for leave to play the VAREs, finding that they were relevant and had sufficient probative value to support the charges against the defendants. In relation to the defence's application to exclude the video aspect of two recordings, the court determined that the video evidence was necessary to provide context and that the probative value outweighed any potential prejudice. The court refused the application, emphasising the importance of the evidence in establishing the facts of the case.

The court's ruling allowed the prosecution to use the VAREs as evidence in the trial, while also addressing the concerns raised by the defence. The court's decision was based on a careful assessment of the evidence's relevance, probative value, and the potential for unfair prejudice. The outcome of the ruling ensured that the trial could proceed with the necessary evidence while maintaining a fair process for both parties.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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