R v Kannan & Anor (Ruling No 1) - [2019] VSC 461

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0063
S CR 2018 0064

THE QUEEN

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

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.

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.

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.

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

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.

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.

The prosecution case is that the complainant travelled to Australia…

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: [2019] VSC 461
Decision Date: 16 July 2019

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